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2 III

Contents Federal Register Vol. 62, No. 87

Tuesday, May 6, 1997

Agricultural Marketing Service Centers for Disease Control and Prevention RULES NOTICES Tobacco inspection: Grants and cooperative agreements; availability, etc.: Growers; mail referendum, 24559–24560 Occupational safety and health— PROPOSED RULES Exposure to radiation and other hazardous agents at Milk marketing orders: nuclear facilities and other energy-related Eastern Colorado, 24610–24611 industries; research projects, 24657–24661 Civil Rights Commission Agriculture Department NOTICES See Agricultural Marketing Service Meetings; State advisory committees: See Animal and Plant Health Inspection Service South Carolina, 24636 See Commodity Credit Corporation See Food Safety and Inspection Service Commerce Department See Forest Service See International Trade Administration See National Oceanic and Atmospheric Administration

Alcohol, Tobacco and Firearms Bureau Commodity Credit Corporation PROPOSED RULES RULES Alcohol; viticultural area designations: Export programs: Davis Mountains, Jeff Davis County, TX, 24622–24624 Commercial export programs; U.S. Agricultural Commodity; definition revision, 24560–24561 Animal and Plant Health Inspection Service Comptroller of the Currency RULES NOTICES Plant-related quarantine, domestic: Agency information collection activities: Karnal bunt disease— Submission for OMB review; comment request, 24686– Compensation, 24746–24753 24687 Regulatory flexibility analysis, 24753–24766 PROPOSED RULES Consumer Product Safety Commission Animal welfare: PROPOSED RULES Marine mammals and certain other regulated animals; Freedom of Information Act; implementation, 24614–24619 perimeter fence requirements, 24611–24614 Defense Department See Army Department Army Department NOTICES NOTICES Courts-Martial Manual, 24640–24644 Meetings: Drug Enforcement Administration Army Education Advisory Committee, 24644–24645 PROPOSED RULES Patent licenses; non-exclusive, exclusive, or partially Schedules of controlled substances: exclusive: Fenfluramine, 24620–24622 Liposomes including sterols having thiol moieties and peptides or proteins including CTL epitopes and Education Department administration thereof, 24645 NOTICES Medical Technology and Practice Patterns Institute, Inc., Agency information collection activities: 24645 Submission for OMB review; comment request, 24645– 24646 Assassination Records Review Board Grants and cooperative agreements; availability, etc.: NOTICES Elementary and secondary education— Meetings; Sunshine Act, 24635–24636 Safe and drug-free schools and communities national programs, 24773–24774 Federal activities program— Bonneville Power Administration Safe and drug-free schools and communities national NOTICES program, 24770–24773 Records of decision: Institutions of higher education— Canadian entitlement allocation extension agreements, Safe and drug-free schools and communities national 24646 programs, 24768–24770 Energy Department Broadcasting Board of Governors See Bonneville Power Administration NOTICES See Federal Energy Regulatory Commission Meetings; Sunshine Act, 24636 See Hearings and Appeals Office, Energy Department IV Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Contents

Environmental Protection Agency Federal Emergency Management Agency RULES NOTICES Air quality implementation plans; approval and Disaster and emergency areas: promulgation; various States: Louisiana, 24655 California, 24574–24576 Minnesota, 24655–24656 PROPOSED RULES North Dakota, 24656 Air programs: South Dakota, 24656 Fuel and fuel additives— Gasoline produced by foreign refiners; baseline Federal Energy Regulatory Commission requirements, 24776–24795 NOTICES Air quality implementation plans; approval and Applications, hearings, determinations, etc.: promulgation; various States: Crown Hydro Co., 24646–24647 California, 24632 El Paso Natural Gas Co., 24647 NOTICES Gas Research Institute, 24647 Environmental statements; availability, etc.: KO Transmission Co., 24647–24648 Antarctica; non-governmental activities; environmental Montana Power Co., 24648 assessment, 24652 Northwest Pipeline Corp., 24648 Tennessee Gas Pipeline Co., 24648 Farm Credit Administration Transwestern Pipeline Co., 24648–24649 RULES Williston Basin Interstate Pipeline Co., 24649 Farm credit system: Referral of known or suspected criminal violations, Federal Mine Safety and Health Review Commission 24562–24567 NOTICES Meetings; Sunshine Act, 24667–24668 Federal Aviation Administration Federal Reserve System RULES Airworthiness directives: NOTICES Airbus, 24568–24570 Banks and bank holding companies: Boeing, 24570–24572 Change in bank control, 24656–24657 British Aerospace, 24567–24568 Meetings; Sunshine Act, 24657 NOTICES Permissible nonbanking activities, 24657 Exemption petitions; summary and disposition, 24681– 24682 Fish and Wildlife Service Meetings: PROPOSED RULES RTCA, Inc., 24682–24683 Endangered and threatened species: Situational Awareness for Safety System Requirements Flat-tailed Horned Lizard, 24632–24633 Team, 24683 Food and Drug Administration Federal Bureau of Investigation PROPOSED RULES Food for human consumption: NOTICES Current good manufacturing practice— Agency information collection activities: Dietary supplements and dietary supplement Proposed collection; comment request, 24662–24666 ingredients, 24619

Federal Communications Commission Food Safety and Inspection Service RULES NOTICES Common carrier services: Organization, functions, and authority delegations: Pay telephone reclassification and compensation Docket reading room relocation and inclusion of Freedom provisions, 24583–24587 of Information Act documents for public display, Terminal equipment, connection to basic rate access 24634 service and public switched digital service; correction, 24587–24588 Forest Service Radio services, special: NOTICES Fixed microwave services— Environmental statements; notice of intent: Digital electronic messaging service reallocation, Kootenai National Forest, MT, 24634–24635 24576–24583 Kootenai National Forest, MT; cancellation, 24635 NOTICES Agency information collection activities: Proposed collection; comment request, 24652–24653 Health and Human Services Department Meetings; Sunshine Act, 24653–24654 See Centers for Disease Control and Prevention Privacy Act: See Food and Drug Administration Systems of records, 24654–24655 Televisions broadcasting: Hearings and Appeals Office, Energy Department Cable television systems— NOTICES Video programming and ‘‘V-chip’’ technology; industry Cases filed, 24649–24650 proposal; en banc hearing, 24655 Decisions and orders, 24650–24651 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Contents V

Housing and Urban Development Department Meetings: RULES Nuclear Waste Advisory Committee, 24670–24671 Community facilities: Petitions; Director’s decisions: Church Arson Prevention Act of 1996; implementation— Northeast Utilities, 24671–24673 Loan guarantee recovery fund, 24573–24574 Public Health Service Interior Department See Centers for Disease Control and Prevention See Fish and Wildlife Service See Food and Drug Administration See National Park Service Research and Special Programs Administration International Trade Administration RULES NOTICES Hazardous materials: Antidumping: Hazardous materials transportation— Certain cased pencils from— Regulations harmonization with dangerous goods China, 24636–24637 international standards, 24690–24744 Countervailing duties: Ferrochrome from— Securities and Exchange Commission South Africa, 24637–24639 RULES Oil country tubular goods and cold-rolled carbon steel Securities: flat products from— Securities Exchange Act of 1933; prepared by or on Argentina, 24639–24640 behalf of the issuer for purposes of Section 18 of the Act, 24572–24573 Justice Department NOTICES See Drug Enforcement Administration Applications, hearings, determinations, etc.: See Federal Bureau of Investigation Core Trust (Delaware) et al., 24673–24675 Enterprise Group of Funds, Inc., et al., 24675–24677 Legal Services Corporation Merrill Lynch KECALP L.P. 1997 et al., 24677–24679 NOTICES New USA Mutual Funds, Inc., et al., 24679–24680 Meetings; Sunshine Act, 24666–24667 Small Business Administration Mine Safety and Health Federal Review Commission NOTICES See Federal Mine Safety and Health Review Commission Disaster loan areas: Arkansas, 24680–24681 National Archives and Records Administration Tennessee, 24681 NOTICES Applications, hearings, determinations, etc.: Agency records schedules; availability, 24668 Centura SBIC, Inc., 24680

National Oceanic and Atmospheric Administration Surface Transportation Board RULES NOTICES Endangered and threatened species: Railroad operation, acquisition, construction, etc.: Coho salmon; Southern Oregon/Northern California coast, Southern Pacific Transportation Co., 24683–24684 24588–24609 Railroad services abandonment: Aroostook Valley Railroad Co., 24684 National Park Service PROPOSED RULES Transportation Department Special regulations: See Federal Aviation Administration Cape Cod National Seashore; off-road vehicle use, 24624– See Research and Special Programs Administration 24631 See Surface Transportation Board NOTICES See Transportation Statistics Bureau Environmental statements; availability, etc.: Cape Cod National Seashore, MA; off-road vehicle Transportation Statistics Bureau management program, 24661 NOTICES National Register of Historic Places: Meetings: Pending nominations, 24661–24662 Transportation Statistics Advisory Council, 24684

National Science Foundation Treasury Department NOTICES See Alcohol, Tobacco and Firearms Bureau Antarctic Conservation Act of 1978; permit applications, See Comptroller of the Currency etc., 24668–24669 NOTICES Agency information collection activities: National Skill Standards Board Submission for OMB review; comment request, 24684– NOTICES 24686 Meetings, 24669 United States Information Agency Nuclear Regulatory Commission NOTICES NOTICES Art objects; importation for eligibility: Environmental statements; availability, etc.: Padshahnama (History of the Emperor), 24687 Pennsylvania Power & Light Co., 24669–24670 VI Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Contents

Separate Parts In This Issue Reader Aids Additional information, including a list of public laws, Part II telephone numbers, reminders, and finding aids, appears in Department of Transportation, Research and Special the Reader Aids section at the end of this issue. Programs Administration, 24690–24744 Part III Department of Agriculture, Animal and Plant Health Electronic Bulletin Board Inspection Service, 24746–24766 Free Electronic Bulletin Board service for Public Law Part IV numbers, Federal Register finding aids, and a list of Department of Education, 24768–24774 documents on public inspection is available on 202–275– 1538 or 275–0920. Part V Environmental Protection Agency, 24776–24795 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 29...... 24559 301 (2 documents) ...... 24746, 24753 1493...... 24560 1494...... 24560 Proposed Rules: 1137...... 24610 9 CFR Proposed Rules: 3...... 24611 12 CFR 617...... 24562 14 CFR 39 (3 documents) ...... 24567, 24568, 24570 16 CFR Proposed Rules: 1015...... 24614 17 CFR 230...... 24572 21 CFR Proposed Rules: Ch.I ...... 24619 1308...... 24620 24 CFR 573...... 24573 27 CFR Proposed Rules: 9...... 24622 36 CFR Proposed Rules: 7...... 24624 40 CFR 52...... 24574 Proposed Rules: 52...... 24632 80...... 24776 47 CFR 1...... 24576 2...... 24576 64 (2 documents) ...... 24583, 24585 68...... 24587 101...... 24576 49 CFR 171...... 24690 172...... 24690 173...... 24690 175...... 24690 176...... 24690 178...... 24690 50 CFR 227...... 24588 Proposed Rules: 17...... 24632 24559

Rules and Regulations Federal Register Vol. 62, No. 87

Tuesday, May 6, 1997

This section of the FEDERAL REGISTER Department of Agriculture, P.O. Box final rule will not exempt any State or contains regulatory documents having general 96456, Washington, D.C. 20090–6456; local laws, regulations, or policies, applicability and legal effect, most of which telephone number (202) 205–0508. unless they present an irreconcilable are keyed to and codified in the Code of SUPPLEMENTARY INFORMATION: A notice conflict with this rule. There are no Federal Regulations, which is published under administrative procedures which must 50 titles pursuant to 44 U.S.C. 1510. was published in the March 13, 1997, issue of the Federal Register (62 FR be exhausted prior to any judicial The Code of Federal Regulations is sold by 11773) announcing that a referendum challenge to the provisions of this rule. the Superintendent of Documents. Prices of would be conducted among active flue- Additionally, in conformance with new books are listed in the first FEDERAL cured producers who sold tobacco on the provisions of the Regulatory REGISTER issue of each week. either Tabor City or Whiteville during Flexibility Act (5 U.S.C. 601 et seq.), full the 1996 season to ascertain if such consideration has been given to the producers favored the consolidation. potential economic impact upon small DEPARTMENT OF AGRICULTURE The notice of referendum announced business. Most tobacco producers and the determination by the Secretary that Agricultural Marketing Service many tobacco warehouses are small the consolidated market of Tabor City businesses as defined in the Regulatory 7 CFR Part 29 and Whiteville, North Carolina, would Flexibility Act. This action will not be designated as a flue-cured tobacco substantially affect the normal [Docket No. TB±97±01] auction market and receive mandatory movement of the commodity in the Federal grading of tobacco sold at marketplace. It has been determined Tobacco Inspection; Grower's auction for the 1997 and succeeding that this action will not have a Referendum Results seasons, subject to the results of the significant impact on a substantial AGENCY: Agricultural Marketing Service, referendum. The determination was number of small entities. USDA. based on the evidence and arguments presented at a public hearing held in List of Subjects in 7 CFR Part 29 ACTION: Final rule. Tabor City, North Carolina, on Administrative practices and SUMMARY: This document contains the November 6, 1996, pursuant to procedures, Advisory committees, determination with respect to the applicable provisions of the regulations Government publications, Imports, referendum on the merger of Tabor City issued under the Tobacco Inspection Pesticides and pests, Reporting and and Whiteville, North Carolina, to Act, as amended. The referendum was recordkeeping procedures, Tobacco. held in accordance with the provisions become the consolidated market of For the reasons set forth in the Tabor City-Whiteville. A mail of the Tobacco Inspection Act, as amended (7 U.S.C. 511d) and the preamble, 7 CFR Part 29 is amended as referendum was conducted during the follows: period of March 24–28, 1997, among regulations set forth in 7 CFR 29.74. Ballots for the March 24–28 tobacco growers who sold tobacco on PART 29ÐTOBACCO INSPECTION these markets in 1996 to determine referendum were mailed to 211 producer approval/disapproval of the producers. Approval required votes in 1. The authority citation for 7 CFR designation of these markets as one favor of the proposal by two-thirds of Part 29, Subpart D, continues to read as consolidated market. Therefore, for the the eligible voters who cast valid follows: ballots. The Department received a total 1997 and succeeding flue-cured of 197 responses: 160 eligible producers Authority: Sec. 5, 49 Stat. 732, as marketing seasons, the Tabor City and voted in favor of the consolidation; 22 amended, by Sec. 157(a)(1), 95 Stat. 374 (7 Whiteville, North Carolina, tobacco U.S.C. 511d). eligible producers voted against the markets shall be designated as and consolidation; and 15 ballots were called Tabor City-Whiteville. The Subpart DÐOrders of Designation of determined to be invalid. Tobacco Markets regulations are amended to reflect this The Department of Agriculture is new designated market. issuing this rule in conformance with 2. In § 29.8001, the table is amended EFFECTIVE DATE: June 5, 1997. Executive Order 12866. by adding a new entry (ooo) to read as FOR FURTHER INFORMATION CONTACT: This final rule has been reviewed follows: William O. Coats, Deputy Director, under Executive Order 12988, Civil Tobacco Division, Agricultural Justice Reform. This action is not § 29.8001 [Amended] Marketing Service, United States intended to have retroactive effect. The * * * * *

DESIGNATED TOBACCO MARKETS

Order of Territory Types of tobacco Auction markets designation Citation

******* (ooo) North Carolina ...... Flue-Cured ...... Tabor City-Whiteville ...... June 5, 1997 ...... (insert FR citation). 24560 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

Dated: April 30, 1997. USDA Office of Communications at Therefore, where legal discretion Lon Hatamiya, (202) 720–5881 (voice) or (202) 720– permits, the Department actively seeks Administrator. 7808 (TDD). to promulgate regulations that promote economic growth, create jobs, are [FR Doc. 97–11744 Filed 5–5–97; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 3410±02±P minimally burdensome, and are easy for Executive Order 12866 the public to understand, use or comply This final rule is issued in with. In short, the Department is DEPARTMENT OF AGRICULTURE conformance with Executive Order committed to issuing regulations that 12866. It has been determined to be maximize net benefits to society and Commodity Credit Corporation neither significant nor economically minimize costs imposed by those significant for the purposes of E.O. regulations. 7 CFR Parts 1493 and 1494 12866 and, therefore, has not been Background Revised Definition of U.S. Agricultural reviewed by the Office of Management Commodity for Commercial Export and Budget (OMB). The Federal Agriculture Improvement and Reform Act of 1996 (Pub. L. 104– Programs Regulatory Flexibility Act 127) (‘‘1996 Act’’) became effective on AGENCY: Commodity Credit Corporation It has determined that the Regulatory April 4, 1996. Section 243 (c) of the (CCC), USDA. Flexibility Act is not applicable to this 1996 Act amended the definition of ACTION: Final rule. final rule since CCC is not required by ‘‘United States agricultural commodity’’ 5 U.S.C. 553 or any other provision of set forth in section 102(7) of the SUMMARY: The Commodity Credit law to publish a notice of rulemaking Agricultural Trade Act of 1978. The new Corporation (CCC) is amending its with respect to the subject matter of this definition of a United States agricultural commercial export program regulations rule. commodity reads as follows: ‘‘(A) an to change the definition of the term Executive Order 12372 agricultural commodity or product ‘‘U.S. agricultural commodity.’’ These entirely produced in the United States; changes are to conform the applicable These programs are not subject to the or (B) a product of an agricultural regulations with a provision of the provisions of Executive Order 12372, commodity—(i) 90 percent, or more of Federal Agriculture Improvement and which requires intergovernmental the agricultural components of which by Reform Act of 1996. This final rule is consultation with State and local weight, excluding packaging and added applicable to the Export Enhancement officials. See notice related to 7 CFR water, is entirely produced in the Program (EEP), the Dairy Export part 3015, subpart V, published at 48 FR United States; and (ii) that the Secretary Incentive Program (DEIP), CCC’s Export 29115 (June 24, 1983). determines to be a high value Credit Guarantee Program (GSM–102), Environmental Evaluation agricultural product.’’ CCC’s Intermediate Export Credit Guarantee Program (GSM–103), and the The Foreign Agricultural Service This amendment did not affect that Supplier Credit Guarantee Program (FAS) is excluded from the part of the definition specifically (SCGP). The revised definition contains requirements of preparing procedures to concerning fish. As before, for purposes two subparagraphs. The first implement the National Environmental of Section 102(7), fish entirely produced subparagraph is similar to the current Policy Act and is categorically excluded in the United States include fish definition of U.S. agricultural from the preparation of an harvested by a documented fishing commodity. The second subparagraph Environmental Assessment or vessel as defined in title 46, United applies only to a product of an Environmental Impact Statement unless States Code, in waters that are not agricultural commodity that the the Administrator of FAS determines waters (including the territorial sea) of Secretary designates as a high value that an action may have a significant a foreign country. product. Under the applicable statute environmental effect 7 CFR 1b.4(b)(7). The revised definition is applicable to and the revised definition, if this The Administrator has made no such the Export Enhancement Program (EEP), designation is made, to qualify as a U.S. determination with respect to this 7 CFR part 1494, subpart B; the Dairy agricultural commodity 90 percent or action. Export Incentive Program (DEIP), 7 CFR more of the agricultural components of Paperwork Reduction Act part 1494, subpart D; CCC’s Export the product (by weight, excluding Credit Guarantee Program (GSM–102), 7 The amendments to 7 CFR parts 1493 packaging and water) must be entirely CFR part 1493, subpart B; CCC’s and 1494 set forth in this final rule do produced in the United States. Intermediate Export Credit Guarantee not contain information collections that EFFECTIVE DATE: June 5, 1997. Program (GSM–103), 7 CFR part 1493, require clearance by the OMB under the subpart B; and the Supplier Credit FOR FURTHER INFORMATION CONTACT: L.T. provisions of 44 U.S.C. 35. McElvain, Director, CCC Operations Guarantee Program (SCGP), 7 CFR part Division, Foreign Agricultural Service, Executive Order 12778 1493, subpart D. Pursuant to 7 CFR part U.S. Department of Agriculture, Stop This final rule has been reviewed 1494, subpart D, the operational 1035, Washington D.C., 20250–1035; under Executive Order 12778, Civil regulations of the EEP found at 7 CFR Fax (202) 720–2949; Telephone (202) Justice Reform. The final rule would not 1493, subpart B, also apply to the DEIP. 720–6211. The U.S. Department of have preemptive effect with respect to Therefore, the changes made by this Agriculture (USDA) prohibits any state or local laws, regulations, or final rule are applicable to the DEIP via discrimination in its programs on the policies which conflict with such a change to the EEP regulations. basis of race, color, national origin, sex, provisions or which otherwise impede This final rule amends each of the religion, age disability, political beliefs their full implementation. The rule above regulations to include the revised and marital or familial status. Persons would not have retroactive effect. statutory definition of a United States with disabilities who require alternative The Department of Agriculture is agricultural commodity and to make means for communication of program committed to carrying out its statutory conforming changes to the applicable information (braille, large print, and regulatory mandates in a manner certifications made by exporters. Such audiotape, etc.) should contact the that best serves the public interest. certifications are made by exporters at Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24561 the time of making offers (in EEP and produced in the United States include (a) The agricultural commodity or DEIP) and at the time of submitting fish harvested by a documented fishing product exported under the payment applications for payment guarantees and vessel as defined in title 46, United guarantee is a U.S. agricultural evidence of export reports in the GSM– States Code, in waters that are not commodity as defined by § 1493.410(x). 102/103 and SCGP. CCC is proceeding waters (including the territorial sea) of * * * * * directly through a final rule because the a foreign country. regulatory amendments are required by * * * * * PART 1494ÐEXPORT BONUS the statutory change. 3. Section 1493.50 is amended by PROGRAMS On the effective date of this rule, revising paragraph (a) to read as follows: CCC’s Notices to Participants Numbers Subpart BÐExport Enhancement § 1493.50 Certification requirements for GSM FY 96–2, EEP FY 96–4, DEIP FY Program Operations 96–4, COAP/SOAP FY 96–3, and SCGP obtaining payment guarantee. FY 96–1, issued on July 18, 1996, are * * * * * 1. The authority citation for 7 CFR (a) The agricultural commodity or superseded. Under these Notices to part 1994, subpart B, continues to read product to be exported under the Participants, exporters of designated as follows: high value products were to make payment guarantee is a U.S. agricultural commodity as defined by § 1493.20(z). Authority: 7 U.S.C. 5602, 5651, 5661, 5662, separate certifications that conformed to 5676; 15 U.S.C. 714c. the new definition of United States * * * * * Agricultural Commodity. 4. Section 1493.90 is amended by 2. Section 1494.201 is amended by revising paragraph (a) to read as follows: List of Subjects revising paragraph (gg) to read as § 1493.90 Certification requirements for follows: 7 CFR Part 1493 the evidence of export. § 1494.201 Definition of terms. Administrative practice and * * * * * procedures, Agricultural commodities, (a) The agricultural commodity or * * * * * Credit, Exports, Financing, Guarantees, product exported under the payment (gg) U.S. agricultural commodity. (1) Reporting and recordkeeping guarantee is a U.S. agricultural An agricultural commodity or product requirements. commodity as defined by § 1493.20(z). entirely produced in the United States; 7 CFR Part 1494 * * * * * or 5. Section 1493.410 is amended by Administrative practice and (2) A product of an agricultural revising paragraph (x) to read as follows: procedure, Agricultural commodities, commodity— Exports, Government contracts, § 1493.410 Definition of terms. (i) 90 percent or more of the Reporting and recordkeeping * * * * * agricultural components of which by requirements. (x) U.S. agricultural commodity. weight, excluding packaging and added Accordingly, 7 CFR parts 1493 and (1) An agricultural commodity or water, is entirely produced in the 1494 are amended as follows: product entirely produced in the United United States; and States; or (ii) That the Secretary determines to PART 1493ÐCCC EXPORT CREDIT (2) A product of an agricultural be a high value agricultural product. For GUARANTEE PROGRAMS commodity— purposes of this definition, fish entirely (i) 90 percent or more of the Subpart BÐCCC Export Credit produced in the United States include agricultural components of which by fish harvested by a documented fishing Guarantee Program (GSM±102) and weight, excluding packaging and added CCC Intermediate Export Credit vessel as defined in title 46, United water, is entirely produced in the States Code, in waters that are not Guarantee Program (GSM±103) United States; and Operations waters (including the territorial sea) of (ii) That the Secretary determines to a foreign country. be a high value agricultural product. For 1. The authority citation for 7 CFR 3. Section 1494.501 is amended by part 1493 continues to read as follows: purposes of this definition, fish entirely produced in the United States include revising paragraph (c)(20)(xi) to read as Authority: 7 U.S.C. 5602, 5622, 5661, 5662, fish harvested by a documented fishing follows: 5663, 5664, 5676; 15 U.S.C. 714b(d), 714c(f). vessel as defined in title 46, United § 1494.501 Submission of offers to CCC. 2. Section 1493.20 is amended by States Code, in waters that are not revising paragraph (z) to read as follows: waters (including the territorial sea) of * * * * * (c) * * * § 1493.20 Definition of terms. a foreign country. * * * * * * * * * * (20) * * * 6. Section 1493.440 is amended by (z) U.S. agricultural commodity. (1) (xi) The agricultural commodity or revising paragraph (a) to read as follows: An agricultural commodity or product product to be exported under an EEP entirely produced in the United States; § 1493.440 Certification requirements for a Agreement is a U.S. agricultural or payment guarantee. commodity as defined by (2) A product of an agricultural (a) The agricultural commodity or § 1494.201(gg). commodity— product to be exported under the * * * * * (i) 90 percent or more of the payment guarantee is a U.S. agricultural Signed at Washington, DC, on April 10, agricultural components of which by commodity as defined by § 1493.410(x). 1997. weight, excluding packaging and added 7. Section 1493.480 is amended by Christopher E. Goldthwait, water, is entirely produced in the revising paragraph (a) to read as follows: United States; and General Sales Manager and Vice President, (ii) That the Secretary determines to § 1493.480 Certification requirements for Commodity Credit Corporation. be a high value agricultural product. For the evidence of export. [FR Doc. 97–11693 Filed 5–5–97; 8:45 am] purposes of this definition, fish entirely * * * * * BILLING CODE 3410±10±M 24562 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

FARM CREDIT ADMINISTRATION of Federal laws and regulations could views on the reproposed regulation. undermine public confidence in the Hence, after the comment period closed, 12 CFR Part 617 FCS and affect the safety and soundness FCA staff met with the commenters in RIN 3052±AB33 of FCS institutions. System institutions Sacramento, California, on September have the responsibility to establish and 27, 1995. This meeting was held in Referral of Known or Suspected maintain safeguards to detect, deter, and compliance with the FCA Board’s Policy Criminal Violations report criminal activity involving the Statement FCA–PS–37 published in the assets, operations, or affairs of the Federal Register on April 1, 1992 (57 FR AGENCY: Farm Credit Administration institution. Law enforcement agencies 11083), which addresses (FCA). need to receive timely and specific communications with the public during ACTION: Final rule. information from FCS institutions on the rulemaking process. known or suspected criminal violations During the meeting, commenters SUMMARY: The Farm Credit to determine whether investigations and expounded on their written comments. Administration (FCA), by order of the prosecutions are warranted. After the meeting, several attendees FCA Board, issues a final rule amending The Interagency Bank Fraud Working provided written confirmation of the its regulations governing the referral of Group (BFWG) was formed to address meeting discussions. No new known or suspected criminal violations. concerns that financial institutions were substantive comments were made at the The objective of this final regulation is becoming increasingly vulnerable to meeting and, thus, comments made at to promote consistency, efficiencies, insider fraud and prosecutions were not the meeting are not separately described and timeliness by Farm Credit System keeping pace with criminality, and to herein. These follow-up letters and (FCS or System) institutions in promote cooperation toward the goal of minutes of the meeting are retained in reporting, investigating, and aiding in improving the Federal Government’s the FCA’s rulemaking file and are the prosecution of known or suspected response to white-collar crime in the available for public review. criminal activities. Therefore, the final Nation’s federally insured and/or regulation requires System institutions regulated financial institutions. The II. Analysis of Comments to the to notify law enforcement agencies of BFWG consists of the Office of the Reproposed Regulation and FCA known or suspected criminal violations Comptroller of the Currency, the Board Responses that meet certain reporting thresholds. of Governors of the Federal Reserve A. The Need for a New Criminal Generally, a criminal violation must be System, the Federal Deposit Insurance Referral Regulation reported under this part if there is a Corporation, the Office of Thrift reasonable basis to conclude that there Supervision, the National Credit Union Several commenters questioned the was an intent to ‘‘defraud’’ a System Administration, the Farm Credit need for a new criminal referral institution and the amount of the actual Administration, the Federal Bureau of regulation and argued that the existing or potential loss meets the reporting Investigation, the U.S. Secret Service, regulation (found in 12 CFR part 617) is thresholds. the Department of Justice, and the U.S. adequate to ensure the proper reporting The final regulation mandates the Department of the Treasury. The of criminal referrals. The FCA disagrees continued use of the FCA Criminal objectives of the BFWG were to facilitate and believes that the existing criminal Referral Form (hereinafter FCA Referral the reporting of criminal activity by referral regulation should be revised Form), which is located in the FCA financial institutions and to enhance the because it is out-of-date and fails to Examination Manual, for making a law enforcement agencies’ ability to reflect the arms-length relationship criminal referral. investigate and prosecute the matters between the FCA and the System. DATES: The regulation shall become reported. To accomplish these The existing regulation, first effective upon the expiration of 30 days objectives, the BFWG developed promulgated in 1982, has no minimum after publication during which either or uniform reporting standards and reporting thresholds and requires the both houses of Congress are in session. processes for filing criminal referrals reporting of all criminal violations. Notice of the effective date will be and developed a model regulation. Further, the existing regulation does not published in the Federal Register. Following the BFWG’s guidance, the contain procedures adequate to ensure consistent System-wide reporting. A FOR FURTHER INFORMATION CONTACT: FCA proposed a regulation that was 1982 interpretative letter from the FCA Eric Howard, Policy Analyst, Regulation published in the Federal Register on to the President of each Farm Credit Development Division, Office of October 13, 1992 (57 FR 46819). The Bank introduced procedures not Policy Development and Risk Control, comment period for the proposed included in the regulation at part 617. Farm Credit Administration, McLean, regulation amending part 617 closed on The letter indicated that dollar-reporting VA 22102–5090, (703) 883–4498, TDD November 12, 1992. Pursuant to the thresholds could be applied in certain (703) 883–4444, commenters’ request, the FCA Board agreed to republish the proposed circumstances and emphasized the or regulation in order to afford the public significant discretion District Bank Jane Virga, Senior Attorney, Legal another opportunity to comment. The counsel had in reviewing cases of Counsel Division, Office of General reproposed regulation was published in suspected violations. At present, some Counsel, Farm Credit Administration, the Federal Register on June 20, 1994 institutions report all violations and McLean, VA 22102–5090, (703) 883– (59 FR 31562). The FCA considered and some follow the 1982 interpretative 4020, TDD (703) 883–4444. addressed all comments to the proposed letter and only report criminal SUPPLEMENTARY INFORMATION: regulation in the reproposed regulation. violations exceeding certain thresholds, Following the reproposal, there were which in some cases is $50,000. This I. Background several requests that FCA staff meet final rule supersedes the guidelines Pursuant to the Farm Credit Act of with the commenters to discuss issues provided in the 1982 interpretative 1971, as amended, the FCA regulates and problems that arise in the area of letter and the existing regulation. The and examines FCS institutions for safety criminal referrals. Commenters believed final rule establishes reporting and soundness and for compliance with that it would provide a better thresholds that all System institutions Federal laws and regulations. Violations opportunity for them to present their must follow. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24563

The existing regulation established criminal referral regulation should from $5,000 to $25,000. This action slightly different procedures for incorporate the core principles of the responds to the commenters’ requests reporting violations allegedly model regulation. for higher thresholds. It also is committed by institution personnel and consistent with the BFWG’s revised B. Reporting Threshold Limits procedures for reporting violations recommendations on reporting allegedly committed by borrowers. The The dollar amount that would trigger thresholds, which the BFWG raised in existing regulation specifically requires the requirement to make a criminal response to commentary after the model that criminal referrals concerning referral has been a matter of some regulation was first proposed. institution personnel be reported to the controversy. The proposed and The use of uniform reporting Chief Examiner of FCA’s Office of reproposed regulation established thresholds will enhance the ability of Examination and that those concerning reporting thresholds of $1,000 and the Federal financial regulatory agencies borrowers be reported to the FCA. The $5,000 for known and unknown and the law enforcement agencies to regulation also specifies that the Chief suspects, respectively, and $0 for detect, investigate, and prosecute Examiner is to refer cases concerning institution personnel. (The term known or suspected criminal activities. criminal law violations by institution ‘‘unknown suspect’’ is used where a Therefore, the final regulation personnel to the U.S. Attorney, while criminal violation has occurred but no establishes reporting thresholds of $0 the general counsel of the Farm Credit reasonable basis exists for identifying for institution personnel, $5,000 for district is to refer criminal law the perpetrator.) Although commenters known suspects, and $25,000 for violations by borrowers to the U.S. supported the $0 reporting threshold for unknown suspects. institution personnel, they argued that Attorney and report the referral to the C. Compliance Costs FCA’s General Counsel. The final the FCA should adopt higher reporting regulation makes the reporting thresholds for borrowers. The Many of the commenters expressed procedures for institution personnel and commenters’ principal objection to the concern about the cost of compliance borrowers the same. It requires $1,000 and $5,000 thresholds was that with the regulatory requirements for institutions to make these referrals few investigations or prosecutions by making a criminal referral. The directly to the appropriate Federal law Federal law enforcement authorities commenters were concerned that enforcement authorities and to provide result from referrals unless the amount criminal referrals are costly and time- copies of all referrals to the FCA’s Office at issue is substantial. Several consuming, yet rarely result in of General Counsel. It is the Office of commenters suggested that a $50,000 investigations, much less prosecutions. General Counsel that, in practice, reporting threshold for borrowers would For example, one commenter indicated monitors criminal referrals and has be appropriate. One commenter that it took 40 hours of an employee’s primary contact with Federal law suggested that reporting thresholds time to investigate an allegation and enforcement authorities. The final should be the same for borrowers and complete a criminal referral form. regulation reflects that role in addition unknown suspects. Another commenter Another commenter indicated that legal to bringing greater consistency to the stated that if the FCA was not counsel was necessary to evaluate the referral process. mandating the use of a Uniform sufficiency of evidence or the In addition, the existing regulation is Criminal Referral Form it should not appropriateness of making certain not consistent with the BFWG’s mandate the use of uniform reporting criminal referrals. recommendations concerning reporting thresholds. The FCA recognizes that System thresholds, which have been The BFWG first recommended institutions will incur costs to comply implemented by the other Federal reporting thresholds of $1,000 for with the final regulation just as they financial regulatory agencies. The known suspects and $5,000 for currently incur costs to make a criminal BFWG, which included the FCA, unknown suspects. The BFWG referral. The FCA believes that the established the same thresholds for all subsequently revised the thresholds and benefit of timely and consistent Federal financial regulatory agencies. recommended reporting thresholds at reporting of criminal referrals at the The BFWG believed that uniform $5,000 for borrowers and $25,000 for new, higher reporting thresholds will thresholds would enhance the ability of unknown suspects. The BFWG has not outweigh the expense of compliance. the Federal financial regulatory agencies changed its recommendation of $0 for Also, the regulation will standardize the and the law enforcement agencies to institution personnel. The Federal law reporting process and ensure that detect, investigate, and prosecute enforcement authorities that are part of institutions apply uniform standards to known or suspected criminal violations. the BFWG, including the Department of all affected parties (borrowers, The Department of Justice, as a member Justice, believe these revised reporting employees, officers, and directors). of the BFWG and oversight agency for thresholds are appropriate and have However, compliance costs can be the Offices of the U.S. Attorneys, specifically stated that they want to minimized. For instance, an institution assisted in the establishment of the receive all criminal referrals meeting is not required to conduct an exhaustive thresholds. Therefore, as a participant in these thresholds. investigation of every reported the BFWG and in concurrence with the In the final regulation reporting violation. Rather, an institution is only Department of Justice’s judgment on this thresholds for institution personnel will required to conduct an inquiry matter, the FCA is establishing the remain at $0, so that any criminal act by sufficient to complete the FCA Referral reporting thresholds as recommended institution personnel will be reported. Form. by the BFWG. After careful evaluation of the BFWG’s Although the FCA’s final regulation recommendations and the commenters’ D. Defining Potential Loss has been tailored, as appropriate, to concerns, the Agency also believes that Several commenters believed that the address concerns raised by agricultural the reporting thresholds should be FCA’s discussion of ‘‘potential loss’’ in lending, it is patterned on the BFWG’s increased for both known and unknown the preamble to the reproposed model regulation and the rules suspects. Thus, the FCA is increasing regulation needed further clarification. promulgated by the other Federal the threshold for known suspects from The preamble indicated that potential financial regulatory agencies. The FCA $1,000 to $5,000. The threshold for loss would always equal the amount of continues to believe that the FCA unknown suspects is also increased the collateral conversion or financial 24564 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations misstatement. A number of commenters results. A loss (or potential loss) over there appears to be a reasonable basis to disagreed with this interpretation. They the threshold amount and the requisite believe that a criminal violation has pointed out that in some instances a intent must coincide before a criminal occurred and, if so, to report the lender may reasonably expect the referral is required. violation to the proper law enforcement potential loss to be smaller or even zero. Some commenters suggested that authorities. The FCA did not adopt the This could occur, for example, if a extenuating circumstances might argue language in current § 617.7160 because financial misstatement, although in against prosecution in a situation where the term ‘‘substantial evidence’’ may excess of $5,000, was insignificant in a criminal referral is required. An suggest a higher evidentiary standard light of the borrower’s overall financial institution may always express its view than may be warranted in determining position. Similarly, a lender might on whether prosecution does or does whether a criminal violation may have reasonably expect no loss on a loan, not appear to be warranted to the occurred. despite a conversion of collateral worth Federal authorities, including a U.S. The FCA reiterates that, generally, a more than $5,000, if the remaining Attorney or investigatory agency. A criminal violation that must be reported collateral well exceeded the lender’s well-reasoned recommendation against under this part involves a determination requirements and no other obstacle to prosecution in appropriate cases should that there is a reasonable basis to believe full repayment existed. Finally, the address any perceived inequities in the that a borrower or institution personnel commenters argued that if a lender criminal referral process without intended to ‘‘defraud’’ an institution discovered a financial misstatement or undermining the uniformity that the through violation of a Federal criminal collateral conversion only after the loan criminal referral regulations seek to statute. Institutions, therefore, must seek was repaid as agreed, the absence of any promote. to determine whether a actual loss should take precedence over There may also be situations where a misrepresentation of assets or a any retrospective view of potential loss. System institution wishes to refer a collateral conversion, for example, was The final rule continues to state that suspected criminal violation involving a done inadvertently or with the intent to lenders must refer crimes when the dollar amount under the threshold defraud the institution. This ‘‘actual or potential loss’’ exceeds the amount. System institutions should be determination involves the exercise of applicable thresholds, but the aware that the final regulation does not considerable discretion. In ascertaining parenthetical ‘‘(before reimbursement or affect, in any way, an institution’s whether a criminal referral is recovery)’’ has been deleted. discretion to make a criminal referral appropriate, an institution should Nevertheless, the FCA continues to that is below the reporting thresholds to consider all facts and circumstances, believe that when an institution the appropriate law enforcement including those that go to the question experiences an actual loss, the reporting authorities. Indeed, a System institution of intent. If the institution is persuaded thresholds in § 617.2 govern whether a should always bear in mind its that there is no evidence of intent and, referral is required and are to be applied obligation to uphold the integrity of the hence, no criminal violation, then it before reimbursement or recovery. The Farm Credit System and practice sound need not make a criminal referral. fact that a borrower reimburses the credit management. Thus, for example, However, an institution should institution after the fact or that the the repeated conversion of collateral or adequately document the basis for its converted collateral is recovered is the conversion of large amounts of determination that there was no irrelevant in determining whether a collateral should be reported even criminal intent, especially when the criminal referral is required. However, where the actual or potential loss does institution suffers a loss. While System when the amount of any actual loss is not meet the threshold requirements. institutions are not required to consult not yet known, the FCA has concluded E. Discretion To Make a Criminal legal counsel in determining whether an that the lender should make a Referral activity involved criminal intent, they reasonable assessment of the amount of may prefer to do so in close cases. the potential loss at the time of The preamble to the reproposed F. Probability of Prosecution discovery of the criminal activity and regulation attempted to clarify the use that amount to determine if a extent of an institution’s discretion to Several commenters urged the FCA to referral is required. The lender may base make a criminal referral. Commenters include in the final regulation a this assessment on the amount of the requested that the substance of the provision that would allow System collateral conversion or financial preamble discussion on discretion or institutions to make a referral misstatement, or on the reasonable the language in the current § 617.7160 determination based on the probability estimate of loan loss attributable to the be included in the final regulation. of prosecution of the subject of the conversion or misstatement, or another Current § 617.7160 provides that ‘‘it criminal referral. Commenters asserted method that is reasonable under the shall be the function of the general that some U.S. Attorneys have circumstances. When an estimate of counsel of the Farm Credit district established informal dollar thresholds potential loss is expressed as a range, a ** * to determine if there is for prosecution that are much higher referral is required if any part of the substantial evidence that a violation than the reporting thresholds range exceeds the applicable threshold. ** * has occurred * * *.’’ The established by the BFWG. The To further clarify, System institutions commenters also believed that further commenters stated that in their are advised that where criminal intent is discussion on discretion is necessary in experience some U.S. Attorneys will not not suspected, no criminal referral need the preamble to the final regulation to prosecute violations in amounts below be made because, in most avoid unnecessary referrals. these informal thresholds. circumstances, there would be no In response to the commenters’ The Department of Justice, a criminal violation regardless of the request, the FCA has incorporated participant in the BFWG and the actual or potential loss. If it is clear that guidance on discretion in the regulatory oversight agency for the Office of the an act was merely negligent and there text as well as in the preamble. The final U.S. Attorneys, helped establish and was no criminal intent, a referral would regulation incorporates language on fully supports the thresholds. While it is be inappropriate. Nor is a criminal discretion in new § 617.1(d), which true that prosecution for low dollar referral required if there is clear intent provides that a System institution is amounts is rare, the FCA believes that to defraud but no actual or potential loss responsible for determining whether the new reporting thresholds are Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24565 appropriate and that law enforcement criminal referral to the appropriate law K. Adding a Section Incorporating the agencies should have the chance to enforcement authorities and follow up Language of Current § 617.7140 determine whether a criminal referral as soon as possible to ensure that a One commenter requested that the above these amounts is investigated and complete accounting of the facts and language of § 617.7140 of the existing prosecuted. Thus, the FCA has decided circumstances are reported to the law regulation be incorporated in the final not to incorporate this proposal in the enforcement authorities. Finally, a regulation. Section 617.7140 outlines final regulation. System institution should not delay the two most common types of G. Discovery of a Criminal Violation making a complete and accurate malfeasance that System institutions criminal referral because it is involved encounter—conversion and false Several commenters correctly noted in a sensitive workout with a borrower financial statements—and cites the an inconsistency in the language of or the borrower is under bankruptcy statutory sources in the Federal criminal reproposed § 617.2(a) and (b). protection. code. The FCA does not believe that this Reproposed § 617.2(a) required System information needs to be included in the institutions to refer criminal activity I. Transferring Responsibility for Making final regulation because it is included in after a ‘‘determination’’ that a violation Criminal Referrals the FCA Referral Form. has occurred. Reproposed § 617.2(b) required forwarding an FCA Referral Several commenters queried whether L. FCA Referral Form the final regulation would allow System Form to the FCA after a System Commenters expressed some general institutions that have primary institution ‘‘has discovered (or should concern about whether System responsibility for making criminal have discovered)’’ a violation. institutions would be using the FCA referrals to transfer this activity to their Commenters also requested that the Referral Form found in the FCA supervising bank. While the institution FCA limit its references to due diligence Examination Manual or a Uniform retains the ultimate accountability for in the final regulation. Specifically, Criminal Referral Form developed by several commenters requested that the exercising due diligence to ensure the the BFWG. System institutions were FCA delete the language ‘‘(or should discovery, appropriate investigation, concerned that a Uniform Criminal have discovered)’’ from § 617.2(b). and reporting of criminal activity as Referral Form would not be appropriate The FCA agrees that the due diligence required by § 617.2(a) and for ensuring for reporting violations arising from standard is already established in that the criminal referral is made, a agricultural lending, such as collateral § 617.2(a) and therefore applies to all criminal referral can be made on the conversions of agricultural products. aspects of an institution’s criminal institution’s behalf by a supervising The FCA concludes that System referral process. Consequently, the FCA System bank. This may be done institutions should continue to use the is deleting § 617.2(b) and moving the pursuant to a formal agreement whereby FCA Referral Form found in the FCA requirement that an FCA Referral Form the System bank making the referral is Examination Manual rather than a be forwarded to the FCA’s Office of acting as an agent for the institution Uniform Criminal Referral Form General Counsel to § 617.2(a). with primary responsibility. developed by the BFWG. The FCA These changes make it clear that the J. Referrals to State and Local believes that the FCA Referral Form is obligation to make a criminal referral more closely tailored to the types of Authorities arises when management has crimes most often encountered in determined that there is a known or One commenter urged the FCA to agricultural lending. It has been suspected criminal activity, not when amend the final regulation so that designed to be easy to use and to ensure management ‘‘has discovered (or should System institutions are merely the proper reporting of all required have discovered)’’ a violation. encouraged to file copies of the FCA information. The form itself contains H. Time Limit To Make a Criminal Referral Form with State and local instructions and a brief summary of Referral authorities rather than be required to statutory provisions pertaining to make such a criminal referral. The FCA criminal violations that most often Several commenters requested that occur in the context of agricultural the 30-day period during which a never intended to require that System institutions use the FCA Referral Form lending. Thus, the final regulation System institution must make a criminal requires System institutions to continue referral be amended to reflect the to refer State and local violations to State and local authorities or to inform to use the FCA Referral Form for all varying complexity of some criminal criminal referrals. The FCA will review referrals. Although the FCA recognizes State and local authorities of Federal violations. Rather, § 617.2(b) (formerly the FCA Referral Form periodically as System concerns, the Agency does not part of its ongoing effort to ensure that § 617.2(c) in the reproposed regulation) believe a change is warranted. The final System institutions have access to the requires a System institution to notify regulation continues to provide that best guidance possible. referrals must be made within 30 days the appropriate State or local law of determining that a criminal violation enforcement authorities when there is a M. Civil Liability for Making a Criminal appears to have occurred. The FCA known or suspected violation of State or Referral believes that in the great majority of local criminal law. The FCA continues Several commenters expressed situations it is reasonable to expect that to believe that this is a reasonable concern that System institutions and System institutions will be able to make requirement that will help ensure the institution personnel did not have a criminal referral within 30 days of safety and soundness of the institution immunity from civil liability for making determining that a violation has and the System without imposing an a criminal referral. The FCA’s occurred. In unusual situations undue burden. A System institution reproposed regulation did not address involving complicated facts, a System may use whatever means it deems this issue and no provision has been institution may need more than 30 days appropriate to make the referral. If a provided in the final regulation as this to make a complete criminal referral System institution thinks it appropriate, matter has been addressed by a statutory detailing all relevant information to law it can recommend that the State or local amendment. enforcement authorities. If so, System authorities not pursue a criminal The Farm Credit System Reform Act institutions should make a preliminary investigation and prosecution. of 1996 amended the Farm Credit Act of 24566 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

1971 to provide System institutions and For the reasons stated in the whether there appears to be a reasonable their personnel with immunity from preamble, part 617 of chapter VI, title 12 basis to conclude that a criminal civil liability for making a criminal of the Code of Federal Regulations is violation has been committed and, if so, referral. See 12 U.S.C. 2219e. Now, FCS revised to read as follows: to report the matter to the proper law institutions and their personnel who enforcement authorities for disclose to a government authority PART 617ÐREFERRAL OF KNOWN consideration of prosecution. information proffered in good faith that OR SUSPECTED CRIMINAL (e) Each referral required by § 617.2(a) may be relevant to a possible violation VIOLATIONS shall be made on the FCA Referral Form of any law or regulation are not liable in accordance with the FCA Referral Sec. to any person under any law of the 617.1 Purpose and scope. Form instructions relating to its filing United States or of any State for the 617.2 Referrals. and distribution. disclosure or for any failure to notify the 617.3 Notification of board of directors and § 617.2 Referrals. person involved in the possible bonding company. violation. 617.4 Institution responsibilities. (a) Each institution and its board of As a result of this statutory change, Authority: Secs. 5.9, 5.17 of the Farm directors shall exercise due diligence to FCS institutions and their personnel Credit Act (12 U.S.C. 2243, 2252). ensure the discovery, appropriate enjoy immunity similar to that of the investigation, and reporting of criminal § 617.1 Purpose and scope. other financial institutions and their activity. Within 30 calendar days of personnel. See 12 U.S.C. 3401, 3403; 31 (a) This part applies to all institutions determining that there is a known or U.S.C. 5312, 5318. See also 31 CFR part of the Farm Credit System as defined in suspected criminal violation of the 103, subpart B. section 1.2(a) of the Farm Credit Act of United States Code involving or 1971, as amended, (Act) (12 U.S.C. affecting its assets, operations, or affairs, N. Miscellaneous Clarifications 2002(a)) including, but not limited to, the institution shall refer such criminal 1. Section 617.2(a) was amended to associations, banks, service corporations violation to the appropriate regional clarify the FCA’s intent that, although in chartered under section 4.25 of the Act, offices of the United States Attorney, the exercise of due diligence it is the the Federal Farm Credit Banks Funding and the Federal Bureau of Investigation direct lender’s responsibility to make a Corporation, the Farm Credit System or the United States Secret Service or criminal referral involving a loan it has Financial Assistance Corporation, the both, using the FCA Referral Form. A made, when a Federal land bank Farm Credit Leasing Services copy of the completed FCA Referral association services a loan made by a Corporation, and the Federal Form, accompanied by any relevant Farm Credit Bank, the association must Agricultural Mortgage Corporation documentation, shall be provided at the notify the Bank of any known or (hereinafter, institutions). The purposes same time to the Farm Credit suspected criminal violation involving of this part are to ensure public Administration’s Office of General that loan. confidence in the Farm Credit System, Counsel. In the event that a Farm Credit 2. Section 617.2(c) was amended to to ensure the reporting of known or bank makes a loan through a Federal specify that System institutions must suspected criminal activity, to reduce land bank association which services notify both the appropriate Federal law potential losses to institutions, and to the loan, the Federal land bank enforcement authorities and the FCA ensure the safety and soundness of association must inform the Farm Credit offices in those instances requiring institutions. This part requires that bank of any known or suspected urgent attention. institutions use the Farm Credit violation involving that loan and the 3. Former § 617.3(a) and (b) were Administration Criminal Referral Form Farm Credit bank shall refer the combined for brevity and renumbered as (hereinafter FCA Referral Form) to violation to Federal law enforcement § 617.3(a). That section provides that if notify the appropriate Federal authorities under this section. A report a criminal referral involves a member of authorities when any known or is required in circumstances where the board of directors, discretion may be suspected Federal criminal violations of there is: exercised in notifying such member of the type described in § 617.2 are (1) Any known or suspected criminal the criminal referral. The FCA intends discovered by institutions. activity (e.g., theft, embezzlement), the term ‘‘exercise of discretion’’ to (b) The specific referral requirements mysterious disappearance, unexplained mean that the institution must of this part apply to known or suspected shortage, misapplication, or other determine whether, under the criminal violations of the United States defalcation of property and/or funds, circumstances, only those members of Code involving the assets, operations, or regardless of amount, where an the board of directors not involved in affairs of an institution. This part institution employee, officer, director, the criminal violation should be notified prescribes procedures for referring those agent, or other person participating in of the criminal referral. violations to the proper Federal the conduct of the affairs of such an 4. Former § 617.3(c) has been authorities and the Farm Credit institution is suspected; renumbered as § 617.3(b) and amended Administration. No specific procedural (2) Any known or suspected criminal to provide that a System institution requirements apply to the referral of activity involving an actual or potential shall make all required notifications violations of State or local laws. loss of $5,000 or more, through false under a surety bond or other contract. (c) Nothing in this part should be statements or other fraudulent means, A System institution is no longer construed as reducing in any way an where the institution has a substantial required to make an initial institution’s ability to report known or basis for identifying a possible suspect determination of whether there is a loss suspected criminal activities to the or group of suspects and the suspect(s) prior to notification. appropriate investigatory or prosecuting is not an institution employee, officer, authorities, whether Federal, State, or director, agent, or other person List of Subjects in 12 CFR Part 617 local, even when the circumstances in participating in the conduct of the Banks, banking, Criminal referrals, which a report is required under § 617.2 affairs of such an institution; Criminal transactions, Embezzlement, are not present. (3) Any known or suspected criminal Insider abuse, Insvestigations, Money (d) It shall be the responsibility of activity involving an actual or potential laundering, Theft. each System institution to determine loss of $25,000 or more, through false Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24567 statements or other fraudulent means, DEPARTMENT OF TRANSPORTATION inspections to detect cracking of the where the institution has no substantial lugs of the lower forward, lower rear, basis for identifying a possible suspect Federal Aviation Administration upper forward, and upper rear engine or group of suspects; or mounting beams, and replacement of 14 CFR Part 39 (4) Any known or suspected criminal the beam with a serviceable part, if necessary. activity involving a financial transaction [Docket No. 96±NM±188±AD; Amendment 39±10015; AD 97±10±03] in which the institution was used as a Interested persons have been afforded an opportunity to participate in the conduit for such criminal activity (such RIN 2120±AA64 making of this amendment. No as money laundering/structuring comments were submitted in response schemes). Airworthiness Directives; British Aerospace Model BAC 1±11 200 and to the proposal or the FAA’s (b) In circumstances where there is a 400 Series Airplanes determination of the cost to the public. known or suspected violation of State or Conclusion local criminal law, the institution shall AGENCY: Federal Aviation notify the appropriate State or local law Administration, DOT. The FAA has determined that air enforcement authorities. ACTION: Final rule. safety and the public interest require the adoption of the rule as proposed. (c) In addition to the requirements of SUMMARY: This amendment adopts a paragraph (a) of this section, the new airworthiness directive (AD), Cost Impact institution shall immediately notify by applicable to all British Aerospace The FAA estimates that 31 British telephone the appropriate Federal law Model BAC 1–11 200 and 400 series Aerospace Model BAC 1–11 200 and enforcement authorities and FCA offices airplanes, that requires repetitive 400 series airplanes of U.S. registry will specified on the FCA Referral Form ultrasonic inspections to detect cracking be affected by this AD, that it will take upon determining that a known or of the lugs of the engine mounting approximately 6 work hours per suspected criminal violation of Federal beams, and replacement of the beam airplane to accomplish the required law requiring urgent attention has with a serviceable part, if necessary. actions, and that the average labor rate occurred or is ongoing. Such cases This amendment is prompted by reports is $60 per work hour. Based on these include, but are not limited to, those of fatigue cracking of the lugs of the figures, the cost impact of the AD on where: engine mounting beams. The actions U.S. operators is estimated to be specified by this AD are intended to $11,160, or $360 per airplane. (1) There is a likelihood that the detect and correct such cracking of the The cost impact figure discussed suspect(s) will flee; engine mounting lugs, which could above is based on assumptions that no (2) The magnitude or the continuation result in reduced structural capability of operator has yet accomplished any of of the known or suspected criminal the engine mount. the requirements of this AD action, and violation may imperil the institution’s DATES: Effective June 10, 1997. that no operator would accomplish continued operation; or The incorporation by reference of those actions in the future if this AD (3) Key institution personnel are certain publications listed in the were not adopted. involved. regulations is approved by the Director of the Federal Register as of June 10, Regulatory Impact § 617.3 Notification of board of directors 1997. The regulations adopted herein will and bonding company. ADDRESSES: The service information not have substantial direct effects on the (a) The institution’s board of directors referenced in this AD may be obtained States, on the relationship between the shall be promptly notified of any from British Aerospace, Airbus Limited, national government and the States, or criminal referral by the institution, P.O. Box 77, Bristol BS99 7AR, England. on the distribution of power and except that if the criminal referral This information may be examined at responsibilities among the various involves a member of the board of the Federal Aviation Administration levels of government. Therefore, in (FAA), Transport Airplane Directorate, directors, discretion may be exercised in accordance with Executive Order 12612, Rules Docket, 1601 Lind Avenue, SW., notifying such member of the referral. it is determined that this final rule does Renton, Washington; or at the Office of not have sufficient federalism (b) The institution involved shall the Federal Register, 800 North Capitol implications to warrant the preparation promptly make all required notifications Street, NW., suite 700, Washington, DC. of a Federalism Assessment. under any applicable surety bond or FOR FURTHER INFORMATION CONTACT: Tim For the reasons discussed above, I other contract for protection. Backman, Aerospace Engineer, certify that this action (1) is not a Standardization Branch, ANM–113, § 617.4 Institution responsibilities. ‘‘significant regulatory action’’ under FAA, Transport Airplane Directorate, Executive Order 12866; (2) is not a Each institution shall establish 1601 Lind Avenue, SW., Renton, ‘‘significant rule’’ under DOT effective policies and procedures Washington 98055–4056; telephone Regulatory Policies and Procedures (44 designed to ensure compliance with this (206) 227–2797; fax (206) 227–1149. FR 11034, February 26, 1979); and (3) part, including, but not limited to, SUPPLEMENTARY INFORMATION: A will not have a significant economic adequate internal controls. proposal to amend part 39 of the Federal impact, positive or negative, on a Dated: April 25, 1997. Aviation Regulations (14 CFR part 39) to substantial number of small entities include an airworthiness directive (AD) under the criteria of the Regulatory Floyd Fithian, that is applicable to all British Flexibility Act. A final evaluation has Secretary, Farm Credit Administration Board. Aerospace Model BAC 1–11 200 and been prepared for this action and it is [FR Doc. 97–11685 Filed 5–5–97; 8:45 am] 400 series airplanes was published in contained in the Rules Docket. A copy BILLING CODE 6705±01±P the Federal Register on February 14, of it may be obtained from the Rules 1997 (62 FR 6892). That action proposed Docket at the location provided under to require repetitive ultrasonic the caption ADDRESSES. 24568 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

List of Subjects in 14 CFR Part 39 exceed 1,700 flight hours or 850 landings, applicable to certain Airbus Model whichever occurs first. A310 series airplanes, that requires Air transportation, Aircraft, Aviation (c) If any cracking is detected, prior to repetitive inspections to detect safety, Incorporation by reference, further flight, replace the engine mounting discrepancies or damage of the steady Safety. beam in accordance with British Aerospace Alert Service Bulletin 53–A–PM6032, Issue bearing assemblies of the flap Adoption of the Amendment No. 1, dated April 7, 1995. transmission system, and replacement of any discrepant or damaged assembly Accordingly, pursuant to the (d) An alternative method of compliance or with a new, like assembly. This authority delegated to me by the adjustment of the compliance time that provides an acceptable level of safety may be amendment also requires eventual Administrator, the Federal Aviation used if approved by the Manager, replacement of all the steady bearing Administration amends part 39 of the Standardization Branch, ANM–113, FAA, assemblies with new, improved Federal Aviation Regulations (14 CFR Transport Airplane Directorate. Operators assemblies, which terminates the part 39) as follows: shall submit their requests through an repetitive inspection requirements. This appropriate FAA Principal Maintenance PART 39ÐAIRWORTHINESS Inspector, who may add comments and then amendment is prompted by reports of DIRECTIVES send it to the Manager, Standardization cracking of the hardened steel inner Branch, ANM–113. race, and broken or missing inner races 1. The authority citation for part 39 Note 2: Information concerning the of the steady bearing assemblies. The continues to read as follows: existence of approved alternative methods of actions specified by this AD are Authority: 49 U.S.C. 106(g), 40113, 44701. compliance with this AD, if any, may be intended to prevent such discrepancies obtained from the Standardization Branch, and damage of the shafts of the steady § 39.13 [Amended] ANM–113. bearing assemblies, which could cause 2. Section 39.13 is amended by (e) Special flight permits may be issued in the shafts to fail; failure of the steady adding the following new airworthiness accordance with sections 21.197 and 21.199 bearing shafts during a subsequent directive: of the Federal Aviation Regulations (14 CFR assymetric stop could result in an 21.197 and 21.199) to operate the airplane to uncommanded assymetric retraction of 97–10–03 British Aerospace Airbus Limited a location where the requirements of this AD the flap, and subsequent reduced (Formerly British Aerospace Commercial can be accomplished. Aircraft Limited, British Aerospace (f) The inspections and replacement shall controllability of the airplane. Aircraft Group): Amendment 39–10015. be done in accordance with British DATES: Effective June 10, 1997. Docket 96–NM–188–AD. Aerospace Alert Service Bulletin 53–A– The incorporation by reference of Applicability: All Model BAC 1–11 200 PM6032, Issue No. 1, dated April 7, 1995. certain publications listed in the and 400 series airplanes, certificated in any This incorporation by reference was regulations is approved by the Director category. approved by the Director of the Federal of the Federal Register as of June 10, Note 1: This AD applies to each airplane Register in accordance with 5 U.S.C. 552(a) 1997. and 1 CFR part 51. Copies may be obtained identified in the preceding applicability ADDRESSES: The service information from British Aerospace, Airbus Limited, P.O. provision, regardless of whether it has been referenced in this AD may be obtained modified, altered, or repaired in the area Box 77, Bristol BS99 7AR, England. Copies may be inspected at the FAA, Transport from Airbus Industrie, 1 Rond Point subject to the requirements of this AD. For Maurice Bellonte, 31707 Blagnac Cedex, airplanes that have been modified, altered, or Airplane Directorate, 1601 Lind Avenue, repaired so that the performance of the SW., Renton, Washington; or at the Office of France. This information may be requirements of this AD is affected, the the Federal Register, 800 North Capitol examined at the Federal Aviation owner/operator must request approval for an Street, NW., suite 700, Washington, DC. Administration (FAA), Transport alternative method of compliance in (g) This amendment becomes effective on Airplane Directorate, Rules Docket, accordance with paragraph (d) of this AD. June 10, 1997. 1601 Lind Avenue, SW., Renton, The request should include an assessment of Issued in Renton, Washington, on April 28, Washington; or at the Office of the the effect of the modification, alteration, or 1997. Federal Register, 800 North Capitol repair on the unsafe condition addressed by Neil D. Schalekamp, Street, NW., suite 700, Washington, DC. this AD; and, if the unsafe condition has not Acting Manager, Transport Airplane FOR FURTHER INFORMATION CONTACT: Tom been eliminated, the request should include Directorate, Aircraft Certification Service. specific proposed actions to address it. Groves, Aerospace Engineer, [FR Doc. 97–11522 Filed 5–5–97; 8:45 am] Compliance: Required as indicated, unless Standardization Branch, ANM–113, accomplished previously. BILLING CODE 4910±13±U FAA, Transport Airplane Directorate, To detect and correct cracking of the 1601 Lind Avenue, SW., Renton, engine mounting lugs, which could result in Washington 98055–4056; telephone reduced structural capability of the engine DEPARTMENT OF TRANSPORTATION (206) 227–1503; fax (206) 227–1149. mount; accomplish the following: Federal Aviation Administration SUPPLEMENTARY INFORMATION: A (a) Perform an ultrasonic inspection to proposal to amend part 39 of the Federal detect cracking of the lugs of the lower forward, lower rear, upper forward, and 14 CFR Part 39 Aviation Regulations (14 CFR part 39) to upper rear of the engine mounting beams in include an airworthiness directive (AD) [Docket No. 96±NM±60±AD; Amendment that is applicable to certain Airbus accordance with British Aerospace Alert 39±10013; AD 97±10±01] Service Bulletin 53–A–PM6032, Issue No. 1, Model A310 series airplanes was dated April 7, 1995, and at the earliest of the RIN 2120±AA64 published in the Federal Register on times specified in paragraph (a)(1), (a)(2), or January 14, 1997 (62 FR 1859). That (a)(3) of this AD. Airworthiness Directives; Airbus action proposed to require repetitive (1) Within 850 landings after the effective Industrie Model A310 Series Airplanes visual inspections to detect any date of this AD. Or discrepancy or damage to the steady (2) Within 1,700 flight hours after the AGENCY: Federal Aviation effective date of this AD. Or Administration, DOT. bearing assemblies of the flap (3) Within 2 years after the effective date ACTION: Final rule. transmission system, and replacement of this AD. of any damaged or discrepant assembly (b) If no cracking is detected, repeat the SUMMARY: This amendment adopts a with a new, like assembly. That action inspection thereafter at intervals not to new airworthiness directive (AD), also proposed to require eventual Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24569 replacement of all steady bearing FR 11034, February 26, 1979); and (3) system, in accordance with Airbus Service assemblies with the new, improved will not have a significant economic Bulletin A310–27–2067, Revision 1, dated assemblies, which terminates the impact, positive or negative, on a January 5, 1995. (1) If no damage or discrepancy is detected: repetitive inspection requirement. substantial number of small entities Repeat the inspection thereafter at intervals Interested persons have been afforded under the criteria of the Regulatory not to exceed 2,000 landings, until the an opportunity to participate in the Flexibility Act. A final evaluation has requirements of paragraph (b) of this AD are making of this amendment. Due been prepared for this action and it is accomplished. consideration has been given to the contained in the Rules Docket. A copy (2) If any damage or discrepancy is single comment received. of it may be obtained from the Rules detected and the groove depth of the shaft is The commenter supports the Docket at the location provided under less than 1 mm (.04 inch): Prior to the proposed rule. the caption ADDRESSES. accumulation of 50 landings after detection of this discrepancy, replace the steady Conclusion List of Subjects in 14 CFR Part 39 bearing assembly with a new, like assembly After careful review of the available in accordance with Airbus Service Bulletin Air transportation, Aircraft, Aviation A310–27–2067, Revision 1, dated January 5, data, including the comment noted safety, Incorporation by reference, 1995. above, the FAA has determined that air Safety. (3) If any damage or discrepancy is safety and the public interest require the Adoption of the Amendment detected and the groove depth on the shaft adoption of the rule as proposed. is 1 mm or more: Prior to further flight, Accordingly, pursuant to the replace the steady bearing assembly with a Cost Impact authority delegated to me by the new, like assembly, in accordance with The FAA estimates that 26 Airbus Administrator, the Federal Aviation Airbus Service Bulletin A310–27–2067, Model A310 series airplanes of U.S. Administration amends part 39 of the Revision 1, dated January 5, 1995. registry will be affected by this AD, that Federal Aviation Regulations (14 CFR (b) Within 5 years after the effective date it will take approximately 15 work of this AD, replace all steady bearing part 39) as follows: assemblies of the flap transmission system hours per airplane to accomplish the with new, improved assemblies, in required inspections, and that the PART 39ÐAIRWORTHINESS accordance with Airbus A310–27–2074, average labor rate is $60 per work hour. DIRECTIVES dated November 18, 1994. Accomplishment Based on these figures, the cost impact 1. The authority citation for part 39 of the replacement constitutes terminating action for the requirements of this AD. of the inspections required by this AD continues to read as follows: on U.S. operators is estimated to be Note 2: Airbus Service Bulletin A310–27– $23,400, or $900 per airplane, per Authority: 49 U.S.C. 106(g), 40113, 44701. 2074 references Lucas Liebherr Service Bulletin 551A–27–M551–03 as an additional inspection cycle. § 39.13 [Amended] It will take approximately 8 work source of service information for replacement 2. Section 39.13 is amended by hours per airplane to accomplish the of the steady bearing assemblies with the adding the following new airworthiness new, improved assemblies. required replacement, at an average directive: labor rate of $60 per work hour. (c) An alternative method of compliance or adjustment of the compliance time that Required parts will cost approximately 97–10–01 Airbus Industrie: Amendment 39– 10013. Docket 96–NM–60–AD. provides an acceptable level of safety may be $16,872 per airplane. Based on these used if approved by the Manager, Applicability: Model A310 series airplanes, figures, the cost impact of the required Standardization Branch, ANM–113, FAA, on which Airbus Modification 10962 has not replacement on U.S. operators is Transport Airplane Directorate. Operators been installed; certificated in any category. estimated to be $451,152, or $17,352 per shall submit their requests through an airplane. Note 1: This AD applies to each airplane appropriate FAA Principal Maintenance The cost impact figures discussed identified in the preceding applicability Inspector, who may add comments and then provision, regardless of whether it has been above are based on assumptions that no send it to the Manager, Standardization otherwise modified, altered, or repaired in Branch, ANM–113. operator has yet accomplished any of the area subject to the requirements of this Note 3: Information concerning the the requirements of this AD action, and AD. For airplanes that have been modified, existence of approved alternative methods of altered, or repaired so that the performance that no operator would accomplish compliance with this AD, if any, may be of the requirements of this AD is affected, the those actions in the future if this AD obtained from the Standardization Branch, owner/operator must request approval for an were not adopted. ANM–113. alternative method of compliance in (d) Special flight permits may be issued in Regulatory Impact accordance with paragraph (c) of this AD. accordance with sections 21.197 and 21.199 The regulations adopted herein will The request should include an assessment of of the Federal Aviation Regulations (14 CFR not have substantial direct effects on the the effect of the modification, alteration, or 21.197 and 21.199) to operate the airplane to repair on the unsafe condition addressed by States, on the relationship between the a location where the requirements of this AD this AD; and, if the unsafe condition has not can be accomplished. national government and the States, or been eliminated, the request should include on the distribution of power and (e) The inspection and certain specific proposed actions to address it. replacements shall be done in accordance responsibilities among the various Compliance: Required as indicated, unless with Airbus Service Bulletin A310–27–2067, levels of government. Therefore, in accomplished previously. Revision 1, dated January 5, 1995. Certain accordance with Executive Order 12612, To prevent failure of the flap transmission other replacements shall be done in it is determined that this final rule does shaft due to damaged steady bearing accordance with Airbus Service Bulletin not have sufficient federalism assemblies, which could cause an A310–27–2074, dated November 18, 1994. implications to warrant the preparation uncommanded asymmetric retraction of the This incorporation by reference was of a Federalism Assessment. flap, and result in reduced controllability of approved by the Director of the Federal For the reasons discussed above, I the airplane, accomplish the following: Register in accordance with 5 U.S.C. 552(a) (a) Prior to the accumulation of 2,000 total certify that this action (1) is not a and 1 CFR part 51. Copies may be obtained landings or within 500 flight hours after the from Airbus Industrie, 1 Rond Point Maurice ‘‘significant regulatory action’’ under effective date of this AD, whichever occurs Bellonte, 31707 Blagnac Cedex, France. Executive Order 12866; (2) is not a later: Perform a visual inspection to detect Copies may be inspected at the FAA, ‘‘significant rule’’ under DOT damage or any discrepancy of the steady Transport Airplane Directorate, 1601 Lind Regulatory Policies and Procedures (44 bearing assemblies of the flap transmission Avenue, SW., Renton, Washington; or at the 24570 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

Office of the Federal Register, 800 North ADDRESSES: Submit comments in maintains shield continuity, which Capitol Street, NW., suite 700, Washington, triplicate to the Federal Aviation reduces system sensitivity to an DC. Administration (FAA), Transport lightning strike or a HIRF event. (f) This amendment becomes effective on Airplane Directorate, ANM–103, June 10, 1997. Explanation of the Requirements of the Attention: Rules Docket No. 97–NM– Rule Issued in Renton, Washington, on April 28, 67–AD, 1601 Lind Avenue, SW., 1997. Renton, Washington 98055–4056. Since an unsafe condition has been Neil D. Schalekamp, The service information referenced in identified that is likely to exist or Acting Manager, Transport Airplane this AD may be obtained from Boeing develop on other Boeing Model 777 Directorate, Aircraft Certification Service. Commercial Airplane Group, P.O. Box series airplanes of the same type design, [FR Doc. 97–11525 Filed 5–5–97; 8:45 am] 3707, Seattle, Washington 98124–2207. this AD is being issued to detect and BILLING CODE 4910±13±U This information may be examined at correct corrosion in the wire bundles of the FAA, Transport Airplane the flight control system, which could Directorate, 1601 Lind Avenue, SW., reduce the system protection against DEPARTMENT OF TRANSPORTATION Renton, Washington; or at the Office of lightning strikes or HIRF events, which could adversely affect wire bundles Federal Aviation Administration the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. used for the flight control system, and consequently result in loss of function 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: of certain flight control surface actuators Chris Hartonas, Aerospace Engineer, in the event of a lightning strike. This [Docket No. 97±NM±67±AD; Amendment Systems and Equipment Branch, ANM– AD requires repetitive corrosion/ 39±10014; AD 97±10±02] 130S, FAA, Transport Airplane resistance inspections to measure the Directorate, Seattle Aircraft Certification RIN 2120±AA64 resistance of each wire bundle of the Office, 1601 Lind Avenue, SW., Renton, flight control system; and, if any Airworthiness Directives; Boeing Washington 98055–4056; telephone discrepancy is found, repair of the Model 777 Series Airplanes (206) 227–2864; fax (206) 227–1181. receptacle bond, repair of the bundle SUPPLEMENTARY INFORMATION: The FAA connector backshells, or replacement of AGENCY: Federal Aviation has received reports of corrosion wire bundles with new components, if Administration, DOT. between the backshell and bundle necessary. These actions are required to ACTION: Final rule; request for shield, loose shield retention bands, and be accomplished in accordance with the comments. loose backshells of the wire bundles of alert service bulletin described the flight control system on Boeing previously. SUMMARY: This amendment adopts a Model 777 series airplanes. In addition, this AD provides for an new airworthiness directive (AD) that is Investigation revealed wire bundles optional terminating action that applicable to all Boeing Model 777 with higher than specified resistance involves replacing existing wire bundle series airplanes. This action requires (which is an indicator of corrosion) connectors with new overmolded repetitive corrosion/resistance between the receptacles and mounting connectors. The FAA has determined inspections to measure the resistance of brackets and between the brackets and that this action will preclude the each wire bundle of the flight control structure. The cause of such corrosion collection of moisture inside the wire system; and repair of the receptacle has been attributed to the existing bundles and consequent corrosion of the bond, repair of the bundle connector design of the wire bundles, which components. This option is to be backshells, or replacement of the wire allows moisture to collect inside the accomplished in accordance with a bundles with new components, if wire bundle connectors. Corrosion in method approved by the FAA, and necessary. This amendment is prompted the subject area, if not detected and constitutes terminating action for the by reports of corroded connectors and corrected in a timely manner, could repetitive inspection requirements of numerous other discrepancies of the reduce system protection against this AD. wire bundles, such as loose backshells lightning strikes or high intensity The compliance times for and loose shield retention bands, due to radiated field (HIRF) events, which accomplishing the inspections are the presence of moisture inside the wire could adversely affect wire bundles dependent upon the time elapsed since bundles. The actions specified in this used for the flight control system, and the first production test flight of the AD are intended to detect and correct consequently result in loss of function airplane. Airplanes that have reached or such corrosion, which could reduce of certain flight control surface actuators exceeded 12 months from the time of system protection against lightning in the event of a lightning strike. the first production test flight of the strikes or high intensity radiated field airplane are to be inspected within 60 (HIRF) events, and consequently could Explanation of Relevant Service days after the effective date of the AD. adversely affect wire bundles used for Information For airplanes that have not yet reached the flight control system. This situation The FAA has reviewed and approved or exceeded 12 months since the time of could result in loss of function of Boeing Alert Service Bulletin 777– the first production test flight, the initial certain flight control surface actuators in 27A0019, dated April 3, 1997, which inspection is not required until the the event of a lightning strike. describes procedures for repetitive airplane reaches that threshold. The DATES: Effective May 21, 1997. corrosion/resistance inspections to FAA notes that the required compliance The incorporation by reference of measure the resistance of each wire time of within 12 months after the first certain publications listed in the bundle of the flight control system; and, production flight test is usually regulations is approved by the Director if any discrepancy is found, repair of the sufficient to allow for a brief comment of the Federal Register as of May 21, receptacle bond, repair of the bundle period before adoption of a final rule. 1997. connector backshells, or replacement of However, in this AD, the compliance Comments for inclusion in the Rules the wire bundles with new components, time of 12 months was selected based Docket must be received on or before if necessary. Accomplishment of the on the following factors. The FAA July 7, 1997. inspection will ensure that the wiring considered not only the degree of Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24571 urgency associated with addressing the summarizes each FAA-public contact § 39.13 [Amended] subject unsafe condition, but the concerned with the substance of this AD 2. Section 39.13 is amended by manufacturer’s recommendation as to will be filed in the Rules Docket. adding the following new airworthiness an appropriate compliance time; the fact Commenters wishing the FAA to directive: that the unsafe condition involves acknowledge receipt of their comments 97–10–02 Boeing: Amendment 39–10014. corrosion, which is associated with submitted in response to this rule must Docket 97–NM–67–AD. passage of time; and the fact that the submit a self-addressed, stamped Applicability: All Model 777 series times the first production flight test postcard on which the following airplanes, certificated in any category. occurs will significantly vary the date statement is made: ‘‘Comments to Note 1: This AD applies to each airplane the compliance time must be met for Docket Number 97–NM–67–AD.’’ The identified in the preceding applicability these airplanes. The FAA considers that, postcard will be date stamped and provision, regardless of whether it has been by allowing airplanes to reach or exceed otherwise modified, altered, or repaired in returned to the commenter. 12 months before performing the initial the area subject to the requirements of this inspection, no undue burden is created Regulatory Impact AD. For airplanes that have been modified, for the operators; rather, this altered, or repaired so that the performance compliance time will enable operators The regulations adopted herein will of the requirements of this AD is affected, the not have substantial direct effects on the owner/operator must request approval for an to continue to operate for a time that alternative method of compliance in does not adversely affect the operational States, on the relationship between the accordance with paragraph (e) of this AD. safety of these airplanes. national government and the States, or The request should include an assessment of on the distribution of power and Interim Action the effect of the modification, alteration, or responsibilities among the various repair on the unsafe condition addressed by This AD is considered to be interim levels of government. Therefore, in this AD; and, if the unsafe condition has not action until final action is identified, at accordance with Executive Order 12612, been eliminated, the request should include which time the FAA may consider it is determined that this final rule does specific proposed actions to address it. further rulemaking. not have sufficient federalism Compliance: Required as indicated, unless accomplished previously. Determination of Rule’s Effective Date implications to warrant the preparation of a Federalism Assessment. To detect and correct corrosion, which Since a situation exists that requires could reduce system protection against the immediate adoption of this The FAA has determined that this lightning strikes or high intensity radiated regulation, it is found that notice and regulation is an emergency regulation field (HIRF) events, adversely affect wire bundles used for the flight control system, opportunity for prior public comment that must be issued immediately to correct an unsafe condition in aircraft, and result in loss of function of certain flight hereon are impracticable, and that good control surface actuators, accomplish the cause exists for making this amendment and that it is not a ‘‘significant following: effective in less than 30 days. regulatory action’’ under Executive (a) Within 12 months after first production Order 12866. It has been determined test flight of the airplane, or within 60 days, Comments Invited further that this action involves an whichever comes later, perform an Although this action is in the form of emergency regulation under DOT inspection to determine the part number (P/ a final rule that involves requirements Regulatory Policies and Procedures (44 N) of each wire bundle connector at the affecting flight safety and, thus, was not FR 11034, February 26, 1979). If it is wheel well disconnects, as listed in the table preceded by notice and an opportunity determined that this emergency in paragraph D. of the Accomplishment Instructions of Boeing Alert Service Bulletin for public comment, comments are regulation otherwise would be 777–27A0019, dated April 3, 1997; and to invited on this rule. Interested persons significant under DOT Regulatory determine if the wire bundle has a molded are invited to comment on this rule by Policies and Procedures, a final backshell; in accordance with paragraph C. of submitting such written data, views, or regulatory evaluation will be prepared the Accomplishment Instructions in the arguments as they may desire. and placed in the Rules Docket. A copy previously referenced alert service bulletin. Communications shall identify the of it, if filed, may be obtained from the (1) If any wire bundle has P/N S280W655– Rules Docket number and be submitted Rules Docket at the location provided ( ) and has a molded backshell, no further action is required by paragraph (a) of this AD. in triplicate to the address specified ADDRESSES. under the caption (2) If any wire bundle does not have a under the caption ADDRESSES. All List of Subjects in 14 CFR Part 39 molded backshell, prior to further flight, communications received on or before perform a corrosion/resistance inspection to the closing date for comments will be Air transportation, Aircraft, Aviation measure the resistance of each bundle in considered, and this rule may be safety, Incorporation by reference, accordance with paragraph D. of the Accomplishment Instructions in the alert amended in light of the comments Safety. received. Factual information that service bulletin. supports the commenter’s ideas and Adoption of the Amendment (b) If, during any corrosion/resistance suggestions is extremely helpful in inspection required by this AD, the resistance Accordingly, pursuant to the of any wire bundle is found to be 150 evaluating the effectiveness of the AD milliohms or less, repeat the corrosion/ action and determining whether authority delegated to me by the Administrator, the Federal Aviation resistance inspection required by paragraph additional rulemaking action would be (a) of this AD thereafter at intervals not to needed. Administration amends part 39 of the exceed 7 months. Comments are specifically invited on Federal Aviation Regulations (14 CFR (c) If, during any corrosion/resistance the overall regulatory, economic, part 39) as follows: inspection required by this AD, the resistance environmental, and energy aspects of of any wire bundle is found to be greater than the rule that might suggest a need to PART 39ÐAIRWORTHINESS 150 milliohms, prior to further flight, repair modify the rule. All comments DIRECTIVES the receptacle bond, repair the bundle connector backshells, or replace the wire submitted will be available, both before bundles, in accordance with paragraph H. of and after the closing date for comments, 1. The authority citation for part 39 continues to read as follows: the Accomplishment Instructions in Boeing in the Rules Docket for examination by Alert Service Bulletin 777–27A0019, dated interested persons. A report that Authority: 49 U.S.C. 106(g), 40113, 44701. April 3, 1997. Repeat the corrosion/resistance 24572 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations inspection required by paragraph (a) of this SECURITIES AND EXCHANGE ‘‘prepared by or on behalf of the AD at the time specified in paragraph (c)(1) COMMISSION issuer.’’ 6 or (c)(2) of this AD, as applicable. (1) For airplanes on which any wire bundle 17 CFR Part 230 II. Rule 146 has been replaced: Within 12 months after The statute requires the Commission installation of the new wire bundle, [Release No. 33±7418; File Number S7±6± to define by rule the phrase ‘‘prepared 97] accomplish the corrosion/resistance by or on behalf of the issuer,’’ as used inspection required by paragraph (a) of this RIN 3235±AH14 in connection with the prohibition on AD; and thereafter, repeat that inspection at state regulation of offering documents intervals not to exceed 7 months. Definition of ``Prepared By or On for covered securities.7 The Commission (2) For airplanes on which any receptacle Behalf of the Issuer'' for Purposes of proposed a definition in February 1997 8 bond or bundle connector backshells have Determining if an Offering Document is and received three comment letters. been repaired: Repeat the corrosion/ Subject to State Regulation Today it adopts the definition, slightly resistance inspection required by paragraph modified from the proposed version. AGENCY: (a) of this AD thereafter at intervals not to Securities and Exchange The Commission continues to believe, exceed 7 months. Commission. as it stated in the proposing release, that (d) Replacement of existing wire bundle ACTION: Final rule. the phrase is intended to cover offering connectors with new overmolded connectors, documents prepared with the issuer’s SUMMARY: The National Securities in accordance with a method approved by knowledge and consent. Thus, the Markets Improvements Act of 1996 the Manager, Seattle Aircraft Certification definition encompasses offering mandates that the Securities and Office (ACO), FAA, Transport Airplane documents authorized and approved by Exchange Commission (‘‘Commission’’) Directorate, constitutes a terminating action the issuer. Conversely, documents that adopt a definition of the phrase for the repetitive inspection requirements of are prepared and circulated without ‘‘prepared by or on behalf of the issuer’’ this AD. issuer involvement are not covered, and found in Section 18 of the Securities Act (e) An alternative method of compliance or are subject to state regulation. of 1933. The Commission today adopts adjustment of the compliance time that Like the proposal, the final rule this definition, thereby providing provides an acceptable level of safety may be requires a two-step approach to this guidance as to when an offering used if approved by the Manager, Seattle process. First, the issuer must authorize ACO. Operators shall submit their requests document is subject to state regulation. the production of the document. This through an appropriate FAA Principal EFFECTIVE DATE: Rule 146 will be provision does not require a board of Maintenance Inspector, who may add effective on May 6, 1997. directors to act with respect to each comments and then send it to the Manager, FOR FURTHER INFORMATION CONTACT: document connected to a securities Seattle ACO. James R. Budge, Division of Corporation offering. A company may authorize Note 2: Information concerning the Finance, at (202) 942–2950, Securities agents or representatives to act in its existence of approved alternative methods of and Exchange Commission, 450 Fifth stead. The final rule clarifies the compliance with this AD, if any, may be Street, N.W., Washington, D.C. 20549. proposed language by specifically obtained from the Seattle ACO. SUPPLEMENTARY INFORMATION: The acknowledging authorization by an (f) Special flight permits may be issued in Commission today adds Rule 146 1 agent or representative chosen by the accordance with sections 21.197 and 21.199 issuer for that purpose. of the Federal Aviation Regulations (14 CFR Under the Securities Act of 1933 2 The second step requires the issuer, or 21.197 and 21.199) to operate the airplane to (‘‘Securities Act’’ or ‘‘the Act’’). The Rule defines the term ‘‘prepared by or its agent or representative, to approve an a location where the requirements of this AD authorized offering document before its can be accomplished. on behalf of the issuer,’’ for purposes of 3 use. The proposal reflected this concept (g) Certain action(s) shall be done in recently revised Section 18 of the Act. in its requirement that an authorized accordance with Boeing Alert Service I. Background document be prepared by ‘‘a director, Bulletin 777–27A0019, dated April 3, 1997. officer, general partner, employee, This incorporation by reference was Congress enacted the National approved by the Director of the Federal Securities Markets Improvement Act of affiliate, underwriter, attorney, Register in accordance with 5 U.S.C. 552(a) 1996, which became effective on accountant or agent of the issuer.’’ In 4 and 1 CFR part 51. Copies may be obtained October 11, 1996. The statute light of the public comment, and upon from Boeing Commercial Airplane Group, reallocates regulatory responsibility further consideration, the Commission P.O. Box 3707, Seattle, Washington 98124– relating to securities offerings between has recrafted this provision to clarify its 2207. Copies may be inspected at the FAA, the federal and state governments based intentions and make the rule simpler. In Transport Airplane Directorate, 1601 Lind on the nature of the security or offering. the final rule, an issuer-authorized Avenue, SW., Renton, Washington; or at the Among other things, it preempts state offering document (including one Office of the Federal Register, 800 North laws requiring or with respect to Capitol Street, NW., suite 700, Washington, registration or qualification of covered 6 The term ‘‘offering document’’ is defined in new section 18(d)(1) [15 U.S.C. 77r(d)(1)], as follows: DC. securities as defined in the Act.5 It also (1) Offering Document.—The term ‘‘offering (h) This amendment becomes effective on prohibits states from directly or document’’— May 21, 1997. indirectly prohibiting, limiting or (A) has the meaning given the term ‘‘prospectus’’ Issued in Renton, Washington, on April 28, imposing any conditions on the use of in section 2(10), but without regard to the 1997. any offering document for a covered provisions of subparagraphs (A) and (B) of that security if the offering document is section; and Darrell M. Pederson, (B) includes a communication that is not deemed to offer a security pursuant to a rule of the Acting Manager, Transport Airplane 1 The rule is codified at 17 CFR 230.146. Directorate, Aircraft Certification Service. Commission. 2 15 U.S.C. 77a et seq. 7 Section 18(d)(2) requires the Commission to [FR Doc. 97–11524 Filed 5–5–97; 8:45 am] 3 15 U.S.C. 77r. adopt this definition not later than six months after BILLING CODE 4910±13±U 4 Pub.L. 104–290, 110 Stat. 3416 (1996). the section’s enactment. 5 The term ‘‘covered security’’ is defined in new 8 Release No. 33–7388 (February 11, 1997) [62 FR section 18(b) [15 U.S.C. 77r(b)]. 7186] (‘‘Proposing Release’’). Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24573 authorized by the issuer’s agent or reliable way to determine the impact of PART 230ÐGENERAL RULES AND representative) is within the definition the rule on these entities, because it REGULATIONS, SECURITIES ACT OF if the issuer or its agent or cannot be determined how many of 1933 representative approves a prepared these entities may raise capital, thereby document before its use. The rule does benefiting from the rule. The 1. The general authority citation for not require the same person who Commission does not expect that part 230 is revised to read as follows: authorized the document’s production significant changes to reporting, Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, to be responsible for approving the recordkeeping and compliance burdens 77r, 77s, 77sss, 78c, 78d, 78l, 78m, 78n, 78o, prepared document. It is intended that will result from the rule, inasmuch as 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30, and this agent or representative will have the substantive effects of the changes to 80a-37, unless otherwise noted. reviewed the document in advance. Section 18 are controlled primarily by * * * * * Of course, state law controls how a the terms of the legislation, and not by 2. By adding § 230.146, to read as company authorizes activities. For the terms of this definition. The purpose follows: example, if under state law the board of of the definition is to give guidance with § 230.146 Definition of ``prepared by or on directors or other governing body may regard to the meaning of a statutory behalf of the issuer'' for purposes of delegate authorization or approval term. Section 18 of the Act. authority for all offering documents to The Commission considered whether Prepared by or on behalf of the issuer. an individual, committee, or even an there are any appropriate steps available An offering document (as defined in outside entity such as an underwriter, to minimize the economic impact of Section 18(d)(1) of the Act [15 U.S.C. then the authorization or approval of rule on small businesses and 77r(d)(1)]) is ‘‘prepared by or on behalf that person would be sufficient for Rule determined that establishing different of the issuer’’ for purposes of Section 18 146.9 requirements for small entities or of the Act, if the issuer or an agent or exempting them from all or part of the III. Cost-Benefit Analysis representative: definition would not serve the public (a) Authorizes the document’s There were no responses to the interest, nor would it aid small Commission’s solicitation of comment production, and businesses. The definition is (b) Approves the document before its regarding the costs and benefits of this purposefully crafted to give small use. definition. The Commission, at entities equal footing with large Congress’ behest, crafted Rule 146 to companies with respect to the benefits Dated: April 30, 1997. provide guidance with respect to how to of state preemption that Congress By the Commission. interpret the language of the statute. envisioned when it enacted revised Margaret H. McFarland, Therefore, the economic burdens and Section 18. Deputy Secretary. benefits relating to state preemption V. Effective Date [FR Doc. 97–11692 Filed 5–5–97; 8:45 am] generally will be attributable to the BILLING CODE 8010±01±P statute. While the Commission expects The effective date for Rule 146 is May the economic effects of this rule to be 6, 1997, the Federal Register publication date. In accordance with the minimal, the definition will allow DEPARTMENT OF HOUSING AND Administrative Procedure Act 5 U.S.C. greater certainty about when an offering URBAN DEVELOPMENT document is subject to state review. 553(d)(3), the Commission finds that the statutory mandate to adopt a rule within 24 CFR Part 573 IV. Summary of Final Regulatory six months of the statute’s effective date Flexibility Analysis provides good cause to establish an [Docket No. FR±4108±C±06] A final regulatory flexibility analysis effective date less than 30 days after RIN 2506±AB87 has been prepared in accordance with 5 publication of these rules. The early U.S.C. 604 concerning this definition. effective date will also allow affected Loan Guarantee Recovery Fund; The analysis notes that the rulemaking persons to begin relying on the new Technical Amendment to Final Rule relates to a Congressional mandate to definition immediately by eliminating AGENCY: define the term ‘‘prepared by or on confusion in the marketplace over Office of the Assistant behalf of the issuer’’ for purposes of whether a document is ‘‘prepared by or Secretary for Community Planning and Section 18 of the Act and describes the on behalf of the issuer’’ for purposes of Development, HUD. reasons for and purposes of the the statute. Finally, because the ACTION: Technical amendment to final definition. definition does not impose any new rule. The analysis states that no comments burdens, the public would derive no SUMMARY: On September 6, 1996 (61 FR were received in response to benefit from the time provided by a 47404), HUD published a final rule Commission solicitation with respect to delayed implementation date. the Initial Regulatory Flexibility implementing section 4 of the Church Analysis. The analysis goes on to state VI. Statutory Basis Arson Prevention Act of 1996. that there are approximately 1100 Rule 146 is being adopted pursuant to Specifically, the September 26, 1996 reporting companies that satisfy the Sections 18 and 19 of the Securities Act. final rule established the procedures, terms, and conditions by which HUD definition of ‘‘small business’’ under List of Subjects in Part 230 Exchange Act Rule 0–10, but there is no will guarantee loans to assist nonprofit Reporting and recordkeeping organizations in financing activities 9 As provided by statute, the definition is requirements, Securities. designed to rebuild and rehabilitate applicable only to Section 18 of the Securities Act. structures, to replace and restore As noted in the Proposing Release, in the case of Text of the Amendment personal property, and to finance other a registered investment company, an agent of the In accordance with the foregoing, eligible activities as provided for in the issuer would include, without limitation, the issuer’s investment adviser, attorney, underwriter, Title 17, chapter II of the Code of final rule. The September 6, 1996 final depositor or any other agent that performs Federal Regulations is amended as rule inadvertently omitted from the list administrative functions on behalf of the company. follows: of eligible activities the refinancing of 24574 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations existing indebtedness secured by a assistance (61 FR 47404). It was known (CAA or the Act). The rules control VOC property which has been constructed, to HUD that some of these organizations emissions from active and inactive rehabilitated, or reconstructed. The had already rebuilt their damaged landfills. Thus, EPA is finalizing a purpose of this document is to make the properties with loans carrying interest simultaneous limited approval and necessary correction. rates that might have been lower with limited disapproval of the rules under EFFECTIVE DATE: October 7, 1996. HUD loan guarantee assistance. CAA provisions regarding EPA action on SIP submittals and general SUPPLEMENTARY INFORMATION: On July 3, List of Subjects in 24 CFR Part 573 1996, President Clinton signed into law rulemaking authority because the rules, Loan programs—housing and the ‘‘Church Arson Prevention Act of while strengthening the SIP, also do not community development, Nonprofit 1996’’ (Pub. L. 104–155) (the Act). The fully meet the CAA provisions regarding organizations, Reporting and Act provides Federal, State and local plan submissions and plan requirements recordkeeping requirements. law-enforcement agencies with the for nonattainment areas. needed additional tools to address Accordingly, in title 24 of the Code of DATES: This action is effective on July 7, violent crimes against places of Federal Regulations, part 573 is 1997 unless adverse or critical worship, strengthens the penalties for amended as follows: comments are received by June 5, 1997. these crimes, and authorizes Federal 1. The authority citation for part 573 If the effective date is delayed, a timely assistance for rebuilding efforts. Section continues to read as follows: notice will be published in the Federal 4 of the Act, entitled ‘‘Loan Guarantee Authority: Pub. L. 104–155, 110 Stat. 1392, Register. Recovery Fund,’’ authorizes the 18 U.S.C. 241 note; 42 U.S.C. 3535(d). ADDRESSES: Copies of the rules and Secretary of HUD to guarantee loans 2. In § 573.3, paragraph (i) is revised EPA’s evaluation report for the rules are made by financial institutions to assist to read, as follows: available for public inspection at EPA’s certain nonprofit organizations Region IX office during normal business (organizations described in section § 573.3 Eligible activities. hours. Copies of the submitted rules are 501(c)(3) of the Internal Revenue Code * * * * * also available for inspection at the of 1986) that have been damaged as a (i) Loans for refinancing existing following locations: result of acts of arson or terrorism. indebtedness secured by a property Environmental Protection Agency, Air On September 6, 1996 (61 FR 47404), which has been or will be acquired, Docket (6102), 401 ‘‘M’’ Street, S.W., HUD published a final rule constructed, rehabilitated or Washington, D.C. 20460 implementing section 4 of the Act by reconstructed, if such financing is South Coast Air Quality Management establishing a new 24 CFR part 573. Part determined to be appropriate to achieve District, 21865 E. Copley Drive, 573 describes the procedures, terms, the objectives of the Act and this part. Diamond Bar, CA 91765–4182 and conditions by which HUD will * * * * * California Air Resources Board, guarantee loans to assist eligible Dated: May 1, 1997. Stationary Source Division, Rule nonprofit organizations. Under § 573.3, Camille E. Acevedo, Evaluation Section, 2020 ‘‘L’’ Street, eligible borrowers may use guaranteed Assistant General Counsel for Regulations. Sacramento, CA 95814. loan funds for a wide range of activities. [FR Doc. 97–11729 Filed 5–5–97; 8:45 am] FOR FURTHER INFORMATION CONTACT: Paragraph (i) of § 573.3 permits the use Patricia A. Bowlin, Rulemaking Office BILLING CODE 4210±29±P of guaranteed loan funds to refinance (AIR–4), Air Division, U.S. existing indebtedness secured by a Environmental Protection Agency, property to be constructed, Region IX, 75 Hawthorne Street, San ENVIRONMENTAL PROTECTION rehabilitated, or reconstructed. Francisco, CA 94105–3901, Telephone: AGENCY Unfortunately, § 573.3(i) inadvertently (415) 744–1188. omitted to include the refinancing of 40 CFR Part 52 SUPPLEMENTARY INFORMATION: existing indebtedness secured by a property for which construction, [CA 192±0037a; FRL±5816±9] Applicability rehabilitation, or reconstruction has Approval and Promulgation of The rules being incorporated into the already begun. As evidenced by the Implementation Plans; California State California SIP are SCAQMD Rule preamble to the September 6, 1996 final Implementation Plan Revision, South 1150.1, Control of Gaseous Emissions rule, HUD intended to include such Coast Air Quality Management District from Active Landfills, and SCAQMD refinancings in the list of eligible Rule 1150.2, Control of Gaseous activities. For example, the summary of AGENCY: Environmental Protection Emissions from Inactive Landfills. The eligible activities set forth in the Agency (EPA). rules were submitted by the California preamble provided that guaranteed loan ACTION: Direct final rule. Air Resources Board (CARB) to EPA on funds may be used for the ‘‘refinancing October 16, 1985 and February 10, 1986, of existing indebtedness’’ (61 FR 47404). SUMMARY: EPA is taking direct final respectively. The summary did not limit such action granting limited approval and refinancings to indebtedness secured by limited disapproval of revisions to the Background properties where rebuilding was a California State Implementation Plan On March 3, 1978, EPA promulgated future event. (SIP). The revisions concern two rules a list of ozone nonattainment areas Further, in justifying the need for from the South Coast Air Quality under the provisions of the Clean Air final rulemaking without prior public Management District (SCAQMD). This Act, as amended in l977 (1977 Act or comment, HUD noted that the final action will incorporate these rules pre-amended Act), that included the Los Department of Justice had identified into the federally approved SIP. The Angeles-South Coast Air Basin Area. 43 more than 40 eligible organizations intended effect of finalizing this action FR 8964, 40 CFR 81.305. The 1977 Act whose properties had been damaged or is to regulate emissions of volatile required that nonattainment areas destroyed by acts of arson or terrorism organic compounds (VOCs) in adopt, at a minimum, reasonably and that those organizations were in accordance with the requirements of the available control technology (RACT) for immediate need of loan guarantee Clean Air Act, as amended in 1990 all significant sources of emissions. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24575

The State of California submitted operation of facilities subject to the action also contains a simultaneous many RACT rules for incorporation into regulation and evaluating regulations for limited disapproval. In order to its SIP on October 16, 1985 and similar sources in other areas. strengthen the SIP, EPA is finalizing a February 10, 1986, including the rules Further interpretations of EPA policy limited approval of SCAQMD’s being acted on in this document. This are found in the Blue Book, referred to submitted Rules 1150.1 and 1150.2 document addresses EPA’s direct-final in footnote 1. In general, the EPA policy under sections 110(k)(3) and 301(a) of action for SCAQMD Rule 1150.1, guidance documents have been set forth the CAA. Control of Gaseous Emissions from to ensure that VOC rules are fully At the same time, EPA is also Active Landfills, and SCAQMD Rule enforceable and strengthen or maintain finalizing a limited disapproval of these 1150.2, Control of Gaseous Emissions the SIP. rules because they contain deficiencies from Inactive Landfills. SCAQMD SCAQMD’s Rule 1150.1, Control of and, as such, the rules do not fully meet adopted Rule 1150.1 on April 5, 1985 Gaseous Emissions from Active the requirements of Part D of the Act. and Rule 1150.2 on October 18, 1985. Landfills, and Rule 1150.2, Control of Under section 179(a)(2), if the These submitted rules are being Gaseous Emissions from Inactive Administrator disapproves a submission finalized for limited approval and Landfills are new rules for inclusion in under section 110(k) for an area limited disapproval into the SIP. the SIP. The submitted rules contain the designated nonattainment, based on the Rule 1150.1 and Rule 1150.2 control following requirements to control VOC submission’s failure to meet one or more the emissions of VOCs from active and emissions at active and inactive of the elements required by the Act, the inactive landfills, respectively. VOCs landfills: Administrator must apply one of the contribute to the production of ground • Installation of landfill gas control sanctions set forth in section 179(b) level ozone and smog. These rules were systems unless the deficiency has been corrected originally adopted as part of SCAQMD’s • Monitoring of off-site gas migration within 18 months of such disapproval. effort to achieve the National Ambient • Landfill surface monitoring Section 179(b) provides two sanctions Air Quality Standard (NAAQS) for • Periodic sampling of periphery available to the Administrator: highway ozone. The following is EPA’s subsurface gas and ambient air funding and offsets. The 18 month evaluation and final action for these • Periodic sampling of collected period referred to in section 179(a) will rules. landfill gas begin on the effective date of this final • Disposal of collected landfill gas limited disapproval. Moreover, this final EPA Evaluation and Action • Periodic evaluation of the efficiency limited disapproval triggers the Federal In determining the approvability of a of the gas disposal system implementation plan (FIP) requirement VOC rule, EPA must evaluate the rule Although SCAQMD Rules 1150.1 and under section 110(c). It should be noted for consistency with the requirements of 1150.2 will strengthen the SIP, the rules that the rules covered by this direct final the CAA and EPA regulations, as found contain the following deficiencies: rulemaking have been adopted by the in section 110 and Part D of the CAA • Numerous Director’s discretion SCAQMD and are currently in effect in and 40 CFR Part 51 (Requirements for provisions the District. EPA’s final limited Preparation, Adoption, and Submittal of • No specified criteria for granting disapproval action will not prevent the Implementation Plans). The EPA exemptions District or EPA from enforcing these interpretation of these requirements, • No specified control device rules. which forms the basis for today’s action, efficiency Nothing in this action should be appears in various EPA policy guidance • No test methods or monitoring construed as permitting or allowing or documents.1 Among those provisions is protocol establishing a precedent for any future the requirement that a VOC rule must, • Inadequate recordkeeping implementation plan. Each request for at a minimum, provide for the provisions revision to the state implementation implementation of RACT for stationary A detailed discussion of rule plan shall be considered separately in sources of VOC emissions. This deficiencies can be found in the light of specific technical, economic, requirement was carried forth from the Technical Support Document for Rules and environmental factors and in pre-amended Act. 1150.1 and 1150.2 (3/97), which is relation to relevant statutory and For the purpose of assisting state and available from the U.S. EPA’s Region IX regulatory requirements. local agencies in developing RACT office. Because of these deficiencies, the EPA is publishing this document rules, EPA prepared a series of Control rules are not approvable because the without prior proposal because the Technique Guideline (CTG) documents. deficiencies are not consistent with the Agency views this as a noncontroversial The CTGs are based on the underlying interpretation of section 172 of the 1977 amendment and anticipates no adverse requirements of the Act and specify the CAA as found in the Blue Book and may comments. However, in a separate presumptive norms for what is RACT lead to rule enforceability problems. document in this Federal Register for specific source categories. For source Because of the above deficiencies, publication, the EPA is proposing a categories that do not have an EPA cannot grant full approval of these limited approval and limited applicable CTG (such as landfills), state rules under section 110(k)(3) and Part D. disapproval of the SIP revision should and local agencies may determine what Also, because the submitted rules are adverse or critical comments be filed. controls are required by reviewing the not composed of separable parts which This action will be effective July 7, meet all the applicable requirements of 1997, unless, by June 5, 1997, adverse 1 Among other things, the pre-amendment the CAA, EPA cannot grant partial or critical comments are received. guidance consists of those portions of the proposed approval of the rules under section If the EPA receives such comments, post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044 (November 24, 1987); 110(k)(3). However, EPA may grant a this action will be withdrawn before the ‘‘Issues Relating to VOC Regulation Cutpoints, limited approval of the submitted rules effective date by publishing a Deficiencies, and Deviations, Clarification to under section 110(k)(3) in light of EPA’s subsequent document that will Appendix D of November 24, 1987 Federal Register authority pursuant to section 301(a) to withdraw the final action. All public Notice’’ (Blue Book) (notice of availability was published in the Federal Register on May 25, 1988); adopt regulations necessary to further comments received will then be and the existing control technique guidelines air quality by strengthening the SIP. The addressed in a subsequent final rule (CTGs). approval is limited because EPA’s based on this action serving as a 24576 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations proposed rule. The EPA will not finality of this rule for the purposes of Assistant Administrator for Air and institute a second comment period on judicial review nor does it extend the Radiation. The Office of Management this action. Any parties interested in time within which a petition for judicial and Budget (OMB) has exempted this commenting on this action should do so review may be filed and shall not regulatory action from Executive Order at this time. If no such comments are postpone the effectiveness of such rule 12866 review. received, the public is advised that this or action. This action may not be List of Subjects in 40 CFR Part 52 action will be effective July 7, 1997. challenged later in proceedings to enforce its requirements (see section Environmental protection, Air Regulatory Process 307(b)(2)). pollution control, Hydrocarbons, Regulatory Flexibility Incorporation by reference, Unfunded Mandates Intergovernmental relations, Ozone, Under the Regulatory Flexibility Act, Under Sections 202, 203, and 205 of Reporting and recordkeeping 5 U.S.C. 600 et seq., EPA must prepare the Unfunded Mandates Reform Act of requirements, Volatile organic a regulatory flexibility analysis 1995 (‘‘Unfunded Mandates Act’’), compounds. assessing the impact of any proposed or signed into law on March 22, 1995, EPA Note: Incorporation by reference of the final rule on small entities. 5 U.S.C. must undertake various actions in §§ 603 and 604. Alternatively, EPA may State Implementation Plan for the State of association with proposed or final rules California was approved by the Director of certify that the rule will not have a that include a Federal mandate that may the Federal Register on July 1, 1982. significant impact on a substantial result in estimated costs of $100 million Dated: April 13, 1997. number of small entities. Small entities or more to the private sector or to State, include small businesses, small not-for- Felicia Marcus, local, or tribal governments in the Regional Administrator. profit enterprises and government aggregate. entities with jurisdiction over Through submission of this state Part 52, chapter I, title 40 of the Code population of less than 50,000. implementation plan or plan revision, of Federal Regulations is amended as Limited approvals under sections 110 the State and any affected local or tribal follows: and 301(a) and subchapter I, Part D of governments have elected to adopt the PART 52Ð[AMENDED] the CAA do not create any new program provided for under Part D of requirements, but simply approve the Clean Air Act. This rule may bind 1. The authority citation for part 52 requirements that the State is already State, local, and tribal governments to continues to read as follows: imposing. Therefore, because the perform certain actions and also require Authority: 42 U.S.C. 7401–7671q. Federal SIP-approval does not impose the private sector to perform certain any new requirements, I certify that it duties. The rules being incorporated Subpart FÐCalifornia does not have a significant impact on into the SIP by this action will impose any small entities affected. Moreover, no new requirements because affected 2. Section 52.220 is amended by due to the nature of the Federal-state sources are already subject to these adding paragraphs (c)(164)(i)(E) and relationship under the CAA, preparation regulations under State law. Therefore, (c)(168)(i)(H)(2) to read as follows: of a regulatory flexibility analysis would no additional costs to State, local, or § 52.220 Identification of plan. constitute Federal inquiry into the tribal governments or to the private * * * * * economic reasonableness of state action. sector result from this action. EPA has Under the CAA, EPA may not base its (c) * * * also determined that this final action (164) * * * actions concerning SIPs on such does not include a mandate that may (i) * * * grounds. Union Electric Co. v. U.S. result in estimated costs of $100 million (E) South Coast Air Quality E.P.A., 427 U.S. 246, 256–66 (1976); 42 or more to State, local, or tribal Management District. U.S.C. 7410(a)(2). governments in the aggregate or to the (1) Rule 1150.1, adopted on April 5, EPA’s limited disapproval of the State private sector. 1985. request under sections 110 and 301 and * * * * * subchapter I, Part D of the CAA does not Submission to Congress and the General Accounting Office (168) * * * affect any existing requirements (i) * * * applicable to small entities. Federal Under 5 U.S.C. 801(a)(1)(A) as added (H) * * * disapproval of the state submittal does by the Small Business Regulatory (2) Rule 1150.2, adopted on October not affect its state enforceability. Enforcement Fairness Act of 1996, EPA 18, 1985. Moreover, EPA’s limited disapproval of submitted a report containing this rule * * * * * the submittal does not impose any new and other required information to the [FR Doc. 97–11911 Filed 5–6–97; 8:45 am] Federal requirements. Therefore, EPA U.S. Senate, the U.S. House of BILLING CODE 6560±50±P certifies that this limited disapproval Representatives and the Comptroller action does not have a significant General of the General Accounting impact on a substantial number of small Office prior to publication of the rule in entities because it does not remove today’s Federal Register. This rule is FEDERAL COMMUNICATIONS existing requirements nor does it not a ‘‘major rule’’ as defined by 5 COMMISSION impose any new Federal requirements. U.S.C. 804(2). 47 CFR Parts 1, 2, and 101 Petitions for Judicial Review Executive Order 12866 [ET Docket No. 97±99; FCC 97±95] Under section 307(b)(1) of the Act, This action has been classified as a petitions for judicial review of this Table 3 action for signature by the Reallocation of Digital Electronic action must be filed in the United States Regional Administrator under the Messaging Service Court of Appeals for the appropriate procedures published in the Federal AGENCY: Federal Communications circuit by July 7, 1997. Filing a petition Register on January 19, 1989 (54 FR Commission. for reconsideration by the Administrator 2214–2225), as revised by a July 10, ACTION: Final rule. of this final rule does not affect the 1995 memorandum from Mary Nichols, Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24577

SUMMARY: The Commission has adopted Information Administration (‘‘NTIA’’) Considering the maximum system rules and policies to amend its Table of because, according to NTIA, the parameters permitted under our rules Frequency Allocations and its rules reallocation is essential to fulfill for DEMS, a potential for interference regarding Fixed Microwave Services to requirements for Government space systems extends well beyond 40 km. Licenses for permit Fixed Service use of the 24.25– to perform satisfactorily [and] current DEMS have already been granted in the 24.45 GHz and 25.05–25.25 GHz bands Department of Defense (DoD) requirements vicinity of the Government facilities and (24 GHz band). This action facilitates cannot be accommodated in frequency bands operations under these licenses would the relocation of the digital electronic currently allocated for Government use. not be compatible with Government 3 message service (DEMS) from the 18.82– * * * ’’ operations. 18.92 GHz and 19.16–19.26 GHz bands In the MO&O, we stated that this band 5. Considering the extent of the area (18 GHz band) to the 24 GHz band and is allocated on a worldwide basis for in which DEMS operations would be to prohibit certain new low power Fixed Satellite Service (‘‘FSS’’) excluded, NTIA, on behalf of the operations in the Washington, D.C., and downlinks and domestically is Department of Defense, sent a letter Denver, Colorado, areas. This action is predominantly exclusive non- dated January 7, 1997, stating that co- being taken to advance, support, and Government spectrum. We further frequency, co-coverage operation of accommodate the national defense. In stated that the 17.8–19.7 GHz band is DEMS and the Government Earth order to accommodate this relocation, used by a variety of fixed services, stations is not possible and that steps the Commission establishes rules to including auxiliary broadcast, common should be taken to ensure protection of govern DEMS operations in the 24 GHz carrier, private, cable television, digital the Government Earth stations. Further, band. termination systems, and, the main recognizing the Commission’s desire to service addressed in this Order, DEMS. 4 EFFECTIVE DATE: June 5, 1997. ensure the viability of DEMS and that 3. Subsequently, the Commission this would require that spectrum for FOR FURTHER INFORMATION CONTACT: discussed various coordination DEMS be available on a nationwide Meribeth McCarrick, News Media alternatives with NTIA and put in place basis, NTIA proposed to make spectrum Contact, (202) 418–0256; Fred Thomas interim coordination procedures for from the 24.25—24.65 GHz band at (202) 418–2449 or Rodney Small at services in this band. In Maryland, available nationwide for DEMS. In (202) 418–2452, Office of Engineering Virginia, the District of Columbia and addition, NTIA requested that and Technology; Chris Murphy, Colorado (‘‘Washington, D.C. and accommodation of the Government International Bureau, Satellite Policy Denver areas’’), fixed service licensees Earth stations and relocation of DEMS Branch, (202) 418–2373; or Ron Netro, may not begin operation until their be undertaken on an expedited basis Wireless Telecommunications Bureau, applications are approved. 5 These because of the essential nature of these (202) 418–1310. interim measures have permitted actions to military functions and SUPPLEMENTARY INFORMATION: licensing of non-Government facilities sensitive national security interests of while preserving protection of the the United States. 7 NTIA also stated I. Introduction Government operations and providing that there are a limited number of By this action, the Commission an opportunity to evaluate longer term Government radionavigation amends its Table of Frequency solutions that are acceptable to both the assignments in portions of the 24.25— Allocations and Part 101 of its rules NTIA and the Commission. 24.65 GHz band and that coordination regarding Fixed Microwave Services to 4. Since adoption of footnote US334, between NTIA and the Commission may permit Fixed Service use of the 24.25– the NTIA and the Commission have be necessary to determine any sharing 24.45 GHz and 25.05–25.25 GHz bands explored various methods of protecting arrangements or transition plans for (‘‘24 GHz band’’). This action will the Government Earth stations while these stations. facilitate relocation of the digital minimizing the impact on non- 6. On March 5, 1997, we received a electronic message service (‘‘DEMS’’) Government services. Because of the second letter from NTIA making the from the 18.82–18.92 GHz and 19.16– variety of non-Government terrestrial 24.25—24.45 and 25.05—25.25 GHz 19.26 GHz bands (‘‘18 GHz band’’) to the services in the 17.8–20.2 GHz band, it bands available for non-Government 24 GHz band. This action is being taken was determined that the optimum uses (‘‘Second NTIA Letter’’). 8 The to advance, support and accommodate solution differs depending on the Second NTIA Letter reiterates the the national defense. 1 In order to characteristics of the service. For Government’s determination that accommodate this relocation, the instance, the highly directional nature existing DEMS licensees must relocate Commission establishes rules to govern of fixed point-to-point operations allows to minimize potential interference to DEMS operations in the 24 GHz band. individual point-to-point links to be Government Earth stations in the 18 coordinated with Government GHz band pursuant to footnote US334 II. Background operations at much closer distances and national security interests. To this 2. In a July 1995 Memorandum than is possible with point-to- end, NTIA has withdrawn the allocation Opinion and Order, FCC 95–316, 60 FR multipoint operations. In the case of for the Government radionavigation 39657 (‘‘MO&O’’), we amended our DEMS, based on typical system service in the 24.25—24.45 GHz and Table of Frequency Allocations by parameters, NTIA determined that it 25.05—25.25 GHz bands to permit adding footnote US334 to permit use of would not be possible for DEMS to be relocation of DEMS from the 18 GHz the 17.8–20.2 GHz band for Government provided within 40 km of the band. In addition, NTIA requires that space-to-Earth fixed satellite Government Earth stations. 6 the Commission limit future FCC transmissions and by modifying licensees from using the 17.8–20.2 GHz footnote G117 to limit Government use 3 Id. at ¶ 3. of this band to military systems. 2 This 4 Id. at ¶ 2. NTIA to Richard Smith, Chief, Office of Engineering action was taken at the request of the 5 11 FCC Rcd 13449, 13462 (1996) at ¶ 29. In all and Technology, FCC, dated January 7, 1997. 7 National Telecommunications and other parts of the U.S. licensees may begin Id. conditional operations upon filing an application 8 See Letter from Richard Parlow, Associate for a license to operate. See 47 CFR 101.5(d). Administrator, Office of Spectrum Management, 1 See 47 U.S.C. § 151. 6 See Letter from Richard Parlow, Associate NTIA to Richard Smith, Chief, Office of Engineering 2 See 10 FCC Rcd 9931 (1995). Administrator, Office of Spectrum Management, and Technology, FCC, dated March 5, 1997. 24578 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations band for operations in the Washington, concerns about frequency sharing with this goal might be accomplished by D.C. and Denver areas based on criteria DEMS operations. There were many moving the Washington, D.C. and discussed below. DEMS applications at various stages at Denver, Colorado operations only, doing 7. In addition to Government satellite that time. 10 Recognizing the need to so would effectively preclude these use, in July 1996, we set forth a plan for maintain the existing environment and areas from getting DEMS service, since non-Government satellite downlink use study the spectrum sharing issue, the it is unlikely that 24 GHz equipment of the 17.7—20.2 GHz band and for Wireless Telecommunications and could be manufactured at economic paired GSO and non-GSO (‘‘NGSO’’) International Bureaus granted prices solely for these two markets. We satellite uplinks, as well as Local Teledesic’s request and ordered an believe that the public interest is served Multipoint Distribution Service, in the administrative freeze on new by ensuring that services are deployed 27.5—30 GHz band (‘‘28 GHz Order’’) applications, amendments to pending so that consumers are not disadvantaged See First Report and Order and Fourth applications, renewals, modifications, by greater complexity in providing Notice of Proposed Rule Making to or extensions for either terrestrial fixed service to their geographic location. Amend Part 1, 2, 21, and 25 of the services or NGSO/FSS earth stations in Accordingly, we seek to maintain the Commission’s Rules to Redesignate the the 18 GHz band (‘‘18 GHz Freeze DEMS on a unified frequency band 27.5–29.5 GHz Frequency Band, to Order’’). Freeze on the Filing of nationwide. 13 Therefore, rather than Establish Rules and Policies for Local Applications for New Licenses, license DEMS using a second band of Multipoint Distribution Service and for Amendments, and Modifications in the frequencies solely for the Washington, Fixed Satellite Services, CC Docket No. 18.8–19.3 GHz Frequency Band, DA 96– D.C. and Denver areas, NTIA has offered 92–297, FCC 96–311, rel. July 22, 1996, 1481 (rel. Aug. 30, 1996), ¶ 3. The to make Government spectrum available 61 FR 44177, at ¶ 77. Specifically, of Bureaus also ordered that already-filed in the 24 GHz band to relocate the entire relevance to this decision, we applications for new markets in the 18 DEMS service for continued nationwide designated the 18.8—19.3 GHz segment GHz band be held in abeyance. 11 In the deployment. for NGSO/FSS uses. That designation interim, Teledesic and DEMS operators 12. Specifically, NTIA has made raised the issue of coordination with have been involved in private available 400 megahertz of spectrum in terrestrial services. negotiations to resolve the issues that the 24.25—24.45 GHz and 25.05—25.25 8. As part of the 28 GHz proceeding, gave rise to the 18 GHz Freeze Order. GHz bands in order to accommodate a great deal of effort, over several years, 10. Teledesic has a separate interest in DEMS and will delete its was put into determining whether relocating DEMS from the 18 GHz band Radionavigation Service allocation in ubiquitous satellite services could share due to interference with its Earth station those bands. Based on a very narrow set spectrum with ubiquitous terrestrial downlinks in the 18 GHz band. Even if of parameters that arise from the need services. In the 28 GHz Order we the DEMS licensees in the Washington, to move DEMS as quickly and with as concluded, based on the entire record D.C. and Denver areas had ceased little impact as possible, we find that before us, that co-frequency sharing service due to interference with 400 megahertz of spectrum in the 24 between NGSO/FSS uplinks from Government Earth stations, Teledesic GHz band will provide DEMS with ubiquitously deployed terminals determined that it was unable to share service equivalent to that at 18 GHz. The (satellite services) and Local Multipoint the 18 GHz band with point-to- 24 GHz band will accommodate existing Distribution Service (‘‘LMDS’’) (a high multipoint operations in other licensees using four times the channel- density point-to-multipoint terrestrial geographic areas as well. In order to width and sufficient transmit/receive service) with its ubiquitously deployed facilitate the relocation of DEMS, and frequency separation to permit DEMS subscriber terminals, was not feasible. eliminate sharing concerns with the systems to maintain equivalent We also concluded, however, that there DEMS licensees, Teledesic has now information capacity to similarly was no indication in the record that agreed to reimburse licensees which are engineered systems at 18 GHz. For a sharing between NGSO/FSS downlinks required to modify existing equipment more detailed technical explanation, and terrestrial services in the 18.8—19.3 in order to operate in the 24 GHz band attached hereto. GHz range would be infeasible, and being offered by the Government. 12 indicated that we would rely on 13. Therefore, in order to traditional coordination methods to III. Discussion accommodate the Government’s needs address potential incompatibility 11. In order to give effect to NTIA’s in the 18 GHz band, by this Order, we between the satellite and terrestrial request, we implement changes to our are allocating, for Fixed Service use, the services in the absence of such rules, as described below, without 24.25–24.45 GHz and 25.05–25.25 GHz evidence. 9 However, subsequent notice and comment procedures. These bands and are relocating DEMS to those developments, such as the availability rule changes provide for the relocation bands from the 18 GHz band. In of equipment to provide point-to- of DEMS interests from the 18 GHz band addition, NTIA has included, in the multipoint service in this band, have to the 24 GHz band. This is necessary Second NTIA Letter, a request that we raised substantial questions concerning because we are required to relocate replace our current interim coordination the feasibility of traditional DEMS in the Washington, D.C. and procedures for non-DEMS fixed services coordination methods for DEMS and Denver, Colorado, regions in the in the 18 GHz band with permanent NGSO/FSS in the 18 GHz band. interests of national security. Although coordination requirements developed by 9. After the release of the 28 GHz the Government user. 14 These Order on August 23, 1996, an NGSO/ 10 These included applications for additional FSS applicant, Teledesic Corporation, nodal sites within already-licensed exclusive 13 See Amendment of Parts 2, 21, 74 and 94 of defined areas and for new exclusive geographic the Commission’s Rules to Allocate Spectrum at 18 seeking to use the 18 GHz band, filed a areas. Id., ¶ 2. GHz, 54 RR2d 1091, 1100 (1983) at ¶ 40 (describing written request seeking an 11 Id., ¶ 12. the Commission’s policy that DEMS should be administrative freeze on acceptance and 12 See Letter dated February 27, 1997, from treated uniformly in Alaska and the contiguous 48 processing of applications for DEMS Russell Daggatt, President, Teledesic Corporation, states and that service allocation applies equally to and Laurence Harris, Counsel for Associated all areas of Commission jurisdiction). licenses in the 18 GHz band, due to Communications, L.L.C., to Michele C. Farquhar, 14 See Letter from Richard Parlow, Associate Chief, Wireless Telecommunications Bureau, and Administrator, Office of Spectrum Management, 9 Id. at ¶ 79. Donald H. Gips, Chief, International Bureau. NTIA to Richard Smith, Chief, Office of Engineering Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24579 permanent coordination procedures modify licenses. 18 All DEMS licenses license exists. The licenses granted will include exclusion zones around the for the 18 GHz band will be modified as permit operations at 18 GHz until the Government Earth stations in which no described above as well as to authorize year 2001 and at 24 GHz for the term of new DEMS or low power non- operations in the 24 GHz band. These the license. New facilities will be Government operations will be modifications will be effected by permitted only to the extent they are permitted in the 18 GHz band. We will separate action by the Wireless consistent with current authorizations, adopt rules consistent with the Telecommunications Bureau. None of except that in the Denver and exclusion and coordination these revisions is intended otherwise to Washington areas, no new facilities, or requirements requested by NTIA in a alter, modify, expand, or change in any modifications to existing facilities, will future order, except that by this Order material way the authorizations be permitted. No applications for new we are modifying our rules with regard provided to incumbent DEMS licensees 18 GHz DEMS facilities will be accepted to low power operations at 18 GHz. under the terms of their current for filing. Future licensing in the 24 GHz Because these low power operations are licenses. band will be addressed in a subsequent licensed on an area basis, it is very 15. The only current operations in the rulemaking. difficult to ensure that individual United States in the 24 GHz band are 17. With regard to the applications transmitters are properly coordinated two radionavigation radar facilities that were pending at the time of the 18 with the Government operations in the operated by the FAA. These are located GHz freeze but had not passed the 60- band. Accordingly, to help ensure the near Washington, D.C. and Newark, day cut-off period for competing protection of the Government New Jersey. These facilities are applications because of the freeze on the operations, we are prohibiting any new scheduled to be decommissioned as of filing of new applications, we believe January 1, 1998 and January 1, 2000, that it is appropriate and equitable to low power operations within 55 km respectively. Accordingly, DEMS dismiss them. These applications are when used outdoor and 20 km when operations at 24 GHz will be required to not ripe for processing because we used indoor of the coordinates 38°48′ N protect these facilities until the cannot predict whether competing and 76°52′ W (Washington, D.C., area) decommissioning dates. The FAA, applications would have been filed. and 39°43′ N and 104°46′ W (Denver, 15 NTIA, FCC, and affected licensees will Furthermore, in view of our decision to Colorado, area). Pending adoption of a coordinate to assure compatible move DEMS operations to the 24 GHz future order consistent with NTIA’s operations in these areas. However, we band, it is unnecessary to retain these request, we will continue to protect do not anticipate the protection criteria applications in a pending status in that Government operations in the 18 GHz as to unduly limit DEMS operations, we are not in the process of establishing band from other non-Government especially in view of near term new rules for the continued operation of operations by using the interim decommissioning. 19 We also note that DEMS at 18 GHz. 16 procedures currently in place. there are NASA operations in the IV. Procedural Matters 14. To effectuate the transition of adjacent band that must be DEMS licensees from 18 GHz to 24 GHz, considered. 20 Also, operations in 18. Based on the representations of we are amending our rules to require United States border areas will be NTIA that the relocation is essential to incumbent DEMS licensees to cease subject to coordination with Canada and fulfill requirements for Government operations using the 18 GHz band in the Mexico, as necessary. military space systems to perform Denver and Washington areas 16. In that this Order resolves satisfactorily,21 we are amending the immediately upon the effective date of conflicts surrounding the use of the 18 Table of Allocations in Part 2 of the our amended rules. 17 In all other areas, GHz band, we believe that we can now rules to include the Fixed service in the incumbent DEMS licensees must cease rescind our action in the 18 GHz Freeze 24.25–24.45 and 25.05–25.25 GHz bands operations not later than January 1, Order and substitute the following. We and making other changes in our rules 2001. The amended rules reflect the will grant the pending applications that necessary to relocate DEMS systems to current provisions of Part 101 governing have passed both the 30-day Public the 24 GHz band on a nationwide basis. existing DEMS licensing and operations Notice period and the 60 day competing The rules adopted in this order therefore with certain revisions necessary to effect application cut-off period and for which involve the exercise of military the relocation of these licensees to 24 there are no mutually exclusive functions of the United States in that GHz, for example, frequency band and competing applications. We will also they ensure the Government’s current channel bandwidth. The purpose of grant the pending applications for nodal and future ability to operate military these revisions is to ensure that, to the stations within markets for which a space systems in the 18 GHz frequency fullest extent practicable, incumbent band. In addition, to the extent that any DEMS operations are able to provide 18 Licensees will be afforded the 30 day protest additional frequencies are being period, pursuant to the statute. However, due to the service using frequencies in the 24 GHz reallocated, these measures are consensual nature of this relocation, we do not necessary to ensure that DEMS service band in a manner equivalent to their anticipate any objections to the proposed license operations in the 18 GHz band. To modifications. providers continue to be able to provide implement these changes, we are also 19 See Letter from Richard Parlow, Associate nationwide service. We believe that it Administrator, Office of Spectrum Management, exercising our authority under section would not be practical to have DEMS NTIA to Richard Smith, Chief, Office of Engineering operating in two bands on a long term 316 of the Communications Act to and Technology, FCC, dated March 5, 1997. 20 We have adopted limitations on out-of-band basis because of the complications emissions which we believe are sufficient to afford involved with coordinating with the and Technology, FCC, dated March 5, 1997, at ¶ iv, any necessary protection. See also Letter from v. Government Earth stations, Richard Parlow, Associate Administrator, Office of 15 inconvenience to subscribers, and See Appendix A, amended rule 47 CFR Spectrum Management, NTIA, to Richard Smith, 101.147(r)(10). Chief, Office of Engineering and Technology, FCC, coordination with NGSO/FSS 16 Supra ¶ 3. dated May 14, 1996 (NTIA making certain changes 17 These areas are defined by a circle with a in the Table of Frequency Allocations concerning 21 See Letter from Richard Parlow, Associate radius of 150 km from 38°48′ N and 76°52′ W these services and suggesting that the FCC do the Administrator, Office of Spectrum Management, (Washington, D.C., area) and a circle with a radius same). We intend to consider such changes to the NTIA, to Richard Smith, Chief, Office of of 150 km from 39°43′ N and 104°46′ W (Denver, Table of Frequency Allocations in a future Engineering and Technology, FCC, dated January 7, Colorado, area). proceeding. 1997. 24580 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations operations. Therefore, based on national is instructed to notify the incumbent current licensees. Dynamic bandwidth security needs and because notice and low power licensees of this Order on the allocation allows the DEMS systems to public comment and procedures are release date pursuant to section 1.87 of dynamically change the bandwidth otherwise, for good cause shown, the Commission’s Rules. available to a user based on actual unnecessary and contrary to the public 22. It is further ordered that, pending demand at any given time. Fixing the interest, notice and comment adoption of a future order consistent amount of spectrum available to a user procedures need not be followed prior with NTIA’s request for permanent provides an additional 4 dB in the link to adoption of these rules. See 5 U.S.C. coordination criteria concerning all non- budget over dynamic operations. 553 (a)(1), (b)(3)(B); Bendix Aviation Government operations in the 18 GHz Eliminating the efficiencies inherent in Corp. v. F.C.C., 272 F.2d 533 (D.C. Cir. band, we will continue to protect dynamically allocating spectrum, 1959), cert. denied sub nom. Government operations from non- however, results in a significant Aeronautical Radio, Inc. v. U.S., 361 Government operations not covered by reduction in system capacity. The exact U.S. 965 (1960). this Order by using the interim reduction in capacity varies with procedures currently in place. parameters assumed for a typical V. Ordering Clauses DEMS Relocation Technical Description system. Taken together, the changes in 19. Accordingly, it is ordered that system operations necessary to Parts 1, 2, and 101 of the Commission’s We have reviewed the operations and compensate for greater losses at 24 GHz Rules ARE AMENDED as specified proposed operations of incumbent 18 compared to 18 GHz result in a loss in below, effective June 5, 1997. This GHz DEMS licensees and evaluated the system capacity in excess of four times action is authorized by Sections 4(i), changes that would be necessary to the capacity at 18 GHz. 303(c), 303(f), and 303(r) of the provide equivalent operations at 24 It is not necessary, however, to Communications Act of 1934, as GHz. Differences in propagation, rain implement these changes in all areas of amended, 47 U.S.C. Section 154(i), attenuation, and available equipment at the cell. The changes are only necessary 303(c), 303(f), and 303(r). 18 GHz, compared to 24 GHz, will to maintain reliable coverage to the edge 20. It is further ordered that all DEMS require the licensees to use different of a typical 5 km cell. We expect that, licenses for the 18 GHz band that modulation and will affect the ability of to the extent possible, licensees will include service in an area within 150 operators to dynamically assign maximize system capacity by ° ′ ° ′ km of the coordinates 38 48 N/76 52 W channels to users. Assuming use of maintaining the efficiencies planned for ° ′ (Washington, D.C area) and 39 43 N/ similar equipment in all other respects 18 GHz. Accordingly, we calculated the ° ′ 104 46 W (Denver, CO area) will be including transmit power, systems at 24 net effect on system capacity by modified so as to prohibit operations in GHz will require approximately four considering the impact on information those areas on those frequencies at times the bandwidth as at 18 GHz to for any changes necessary to maintain a midnight on the effective date of the maintain equivalent capacity and reliable link weighted by the area in rules adopted herein. Furthermore, all coverage. Specifically, based on a which those changes would be DEMS licenses for the 18 GHz band will typical cell with a radius of 5 km and necessary. Taking these factors into be modified to expire on midnight of for a typical U.S. climate, there is an consideration, the information capacity January 1, 2001 so as to prohibit additional 11.8 dB of loss due to at 24 GHz is approximately one-fourth operations on those frequencies beyond propagation and rain attenuation at 24 that at 18 GHz, for a similar system with that date. All DEMS licenses will be GHz compared to 18 GHz based on a the same reliability and coverage. As a modified to permit operations in the 24 reliability of 99.99%. result, channels at 24 GHz will be four To provide for as rapid a transition as GHz band for the remainder of their times those at 18 GHz. license term and consistent with the possible, as requested by NTIA, we have rules applicable in the 24 GHz band. performed an analysis based on the use List of Subjects of the same or similar equipment to the Incumbent licensees will have 30 days 47 CFR Part 1 from the date of release of this Order to extent possible. Based on this protest the license modification assumption, existing licensees will not Administrative practice and consistent with Section 316 of the be able to compensate for losses in the procedure. Communications Act of 1934, as link budget merely by increasing 47 CFR Part 2 amended. The Chief, Wireless transmitter power. Instead, changes in Telecommunications Bureau, is system operation will be required to Radio. instructed to notify the incumbent achieve a reliable link comparable to 47 CFR Part 101 that available at 18 GHz. Some benefit DEMS licensees of this Order on the Communications equipment, Radio, is realized by using the same antenna at release date pursuant to Section 1.87 of Reporting and recordkeeping the higher frequency. This provides 2.3 the Commission’s Rules. requirements. 21. It is further ordered that licenses dB of additional gain at 24 GHz for low power systems in the 18 GHz compared to 18 GHz. If licensees are to Federal Communications Commission. band will be modified to prohibit any maintain the same cell coverage area, William F. Caton, new low power operations within 55 km the remaining loss must be made up by Acting Secretary. when used outdoor and 20 km when changes in modulation and system Final Rules used indoor of the coordinates 38°48′ N operation. Current systems use 16–TCM and 76°52′ W (Washington, D.C., area) (3⁄4) modulation, but have the capability For the reasons set out in the and 39°43′ N and 104°46′ W (Denver, to use QPSK (1⁄2). Using QPSK rather preamble, Parts 1, 2, and 101 of Title 47 Colorado, area). Incumbent licensees than 16–TCM to serve user stations at of the Code of Federal Regulations are will have 30 days from the date of the edge of the cell recovers 7 dB of the amended as set forth below. release of this Order to protest the loss. The information capacity, PART 1ÐPRACTICE AND license modification consistent with however, is reduced by a factor of three PROCEDURE Section 316 of the Communications Act (3). The additional path loss must be of 1934, as amended. The Chief, recouped by eliminating the dynamic 1. The authority citation for Part 1 Wireless Telecommunications Bureau, bandwidth allocation planned by continues to read as follows: Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24581

Authority: 15 U.S.C. 79 et seq., and 47 Authority: Sec. 4, 302, 303, and 307 of the c. In the International Footnotes U.S.C. 151, 154(i), 154(j), and 303(r). Communications Act of 1934, as amended, under heading I., add footnotes S5.534 47 U.S.C. Sections 154, 302, 303 and 307, and S5.535; § 1.825 [Amended] unless otherwise noted. 2. In § 1.825 remove paragraph (b) and d. In the International Footnotes remove the paragraph designation (a). 2. Section 2.106, the Table of under heading II., remove footnote Frequency Allocations, is amended as 882G; and PART 2ÐFREQUENCY ALLOCATIONS follows: e. Add new footnote US341. AND RADIO TREATY MATTERS; a. Remove the entries for 24.25–24.45 GENERAL RULES AND REGULATIONS GHz and 24.75–25.25 GHz; The additions read as follows: 1. The authority citation for Part 2 b. Add entries for 24.25–24.45 GHz, continues to read as follows: 24.75–25.05, and 25.05–25.25 GHz;

§ 2.106 Table of Frequency Allocations.

International table United States table FCC use designators Government Non-Government Region 1Ðalloca- Region 2Ðalloca- Region 3Ðalloca- Rule part(s) Special-use fre- tion GHz tion GHz tion GHz Allocation GHz Allocation GHz quencies

(1) (2) (3) (4) (5) (6) (7)

*******

24.25±24.45 24.25±24.45 24.25±24.45 24.25±24.45 24.25±24.45 FIXED RADIO- RADIO- RADIO- AVIATION (87) NAVIGATION NAVIGATION NAVIGATION FIXED MICRO- FIXED FIXED WAVE (101) MOBILE US341 US341

*******

24.75±25.05 24.75±25.05 24.75±25.05 24.75±25.05 24.75±25.05 FIXED FIXED-SAT- FIXED RADIO- RADIO- AVIATION (87) ELLITE (Earth- FIXED-SAT- NAVIGATION NAVIGATION to-space) ELLITE (Earth- S5.535 to-space) S5.535 MOBILE S5.534

25.05±25.25 25.05±25.25 25.05±25.25 25.05±25.25 25.05±25.25 FIXED FIXED-SAT- FIXED RADIO- AVIATION (87) ELLITE (Earth- FIXED-SAT- NAVIGATION FIXED MICRO- to-space) ELLITE (Earth- FIXED WAVE (101) S5.535 to-space) S5.535 MOBILE S5.534

*******

International Footnotes United States (US) Footnotes 2. In Section 101.13, paragraph (c) is * * * * * * * * * * amended by revising the first sentence US341 Non-government operations in the I. New ‘‘S’’ Numbering Scheme to read as follows: 24.25–24.45 GHz band must provide * * * * * protection to FAA radionavigation radar § 101.13 Application forms and S5.534 Additional allocation: in Japan, facilities near Washington, D.C., and Newark, requirements for private operational fixed the band 24.65–25.25 GHz is also allocated New Jersey, until January 1, 1998, and stations. to the radionavigation service on a primary January 1, 2000, respectively. Protection will * * * * * basis until 2008. be afforded in accordance with criteria S5.535 In the band 24.75–25.25 GHz, developed by the F.C.C. and N.T.I.A. (c) A separate Form 402 for point-to- feeder links to stations of the broadcasting- * * * * * multipoint frequencies in the 10.6, 18 satellite service shall have priority over other GHz and 24 GHz bands must be filed for users in the fixed-satellite service (Earth-to- PART 101ÐFIXED MICROWAVE each Nodal Station except for operations space). Such other users shall protect and SERVICES consistent with § 101.147. * * * shall not claim protection from existing and * * * * * future operating feeder-link networks to such 1. The authority citation for Part 101 broadcasting satellite stations. continues to read as follows: * * * * * Authority: 47 U.S.C. 154, 303. 24582 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

3. Section 101.45 is amended by paragraph (c)(2)(iii) is redesignated as (i) Any increase in equivalent adding a new paragraph (h) to read as paragraph (c)(2)(ii), to read as follows: isotropically radiated power is less than follows: 3 dB over the previously authorized § 101.59 Processing of applications for output power; § 101.45 Mutually exclusive applications. facility minor modifications. * * * * * * * * * * * * * * * (2) * * * (b) * * * (i) Any increase in antenna height is (h) Renewal applications will not be (1) It is in the Private Operational included in a random selection process. less than 3.0 meters (10 feet) above the Fixed Point-to-Point Microwave, previously authorized height; § 101.49 [Removed] Common Carrier Fixed Point-to-Point Microwave, or Local Television * * * * * 4. Section 101.49 is removed. Transmission Services; 6. Section 101.101 is amended by adding an entry to the table to read as 5. In § 101.59, paragraphs (b)(1), * * * * * follows: (c)(1)(i) and (c)(2)(i) are revised; (c) * * * paragraph (c)(2)(ii) is removed; and (1) * * * § 101.101 Frequency availability.

Frequency band Radio service (MHz) Other (Parts Common car- Private radio Broadcast 15, 21, 24, rier (Part 101) auxilliary 25, 74, 78 & Notes (Part 101) (Part 74) 100)

******* 24,250±25,250 ...... DEMS DEMS

*******

* * * * * § 101.111 Emission limitations. Maximum allowable 1, 2 7. In § 101.109, paragraph (c) is (a) * * * Frequency band EIRP amended by adding an entry to the table (4) For Digital Termination System (MHz) Fixed Mobile to read as follows: channels used in the Digital Electronic (dBW) (dBW) Message Service (DEMS) operating in § 101.109 Bandwidth. the 17,700–19,700 and 24,250–25,250 ***** 24,250±25,250 ...... +55 * * * * * MHz bands: (c) * * * * * * * * ***** 9. In § 101.113, paragraph (a) is Maxi- 1 Per polarization. mum amended by adding an entry to the table 2 For multiple address operations, see Frequency band author- to read as follows: § 101.147. Remote alarm units that are part of (MHz) ized a multiple address central station protection band- § 101.113 Transmitter power limitations. system are authorized a maximum of 2 watts. width (a) * * * * * * * * 24,250±25,250 ...... 40 MHz 10. In § 101.115, paragraph (c) is Maximum allowable amended by adding the entries to the 1, 2 Frequency band EIRP table to read as follows: * * * * * (MHz) Fixed Mobile § 101.115 Directional antennas. 8. In § 101.111, the introductory text (dBW) (dBW) of paragraph (a)(4) is revised to read as * * * * * follows: (c) * * *

Maximum Minimum radiation suppression to angle in degrees from centerline of main beam beam in decibels width to 3 Cat- dB Minimum Frequency (MHz) 1 antenna egory points gain (dbi) 10° to 15° to 20° to 30° to 100° to 140° to (included 5° to 10° ° ° ° ° ° ° angles in 15 20 30 100 140 180 degrees)

******* 24,250 to 25,250 10 ...... A 2.2 38 25 29 33 36 42 55 55 B 2.2 38 20 24 28 32 35 36 36

*******

******* 1 If a licensee chooses to show compliance using maximum beamwidth to 3 dB points, the beamwidth limit shall apply in both the azimuth and the elevation planes. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24583

10 DEMS User Stations antennas in this band must meet performance Standard B and have a minimum antenna gain of 34 dBI. The maximum beamwidth requirement does not apply to DEMS User Stations. DEMS Nodal Stations need not comply with these standards.

* * * * * section may operate multiple low power SUMMARY: On April 15, 1997, the 11. In § 101.141, the introductory text transmitting devices within a defined Common Carrier Bureau (‘‘Bureau’’) of paragraph (a) is revised to read as service area. New operations are granted a limited waiver of the follows: prohibited within 55 km when used Commission’s requirement that effective outdoor and within 20 km when used intrastate tariffs for payphone services § 101.141 Microwave modulation. indoor of the coordinates 38°48′ N/ be in compliance with federal (a) Microwave transmitters employing 76°52′ W and 39°43′ N/104°46′ W. guidelines, specifically that the tariffs digital modulation techniques and *** comply with the ‘‘new services’’ test, as operating below 19.7 GHz and in the * * * * * set forth in the Payphone 24.25–25.25 GHz band must, with 13. Section 101.501 is revised to read Reclassification Proceeding, CC Docket appropriate multiplex equipment, as follows: No. 96–128 [‘‘Payphone Order’’ 61 FR comply with the following additional 52307 (October 7, 1997); ‘‘Order on requirements: § 101.501 Eligibility. Reconsideration’’ 61 FR 65341 * * * * * In that DEMS operations will be (December 12, 1996)]. Local exchange 12. In § 101.147, paragraph (a) is transitioned to the 24 GHz band, carriers (‘‘LECs’’) must comply with this amended by adding an entry to the applications for new facilities using the requirement, among others, before they listing; revising paragraph (r) heading, 18 GHz channels identified in are eligible to receive the compensation paragraph (r)(9) introductory text, and § 101.147(r)(9) are not acceptable for from interexchange carriers (‘‘IXCs’’) the first two sentences of paragraph filing as of June 5, 1997. that is mandated in that proceeding. (r)(10); and adding new entries to the 14. Section 101.505 is revised to read Because some LEC intrastate tariffs for table in paragraph (r)(9), to read as as follows: payphone services are not in full follows: compliance with the Commission’s § 101.505 Frequencies. guidelines, the Bureau granted all LECs § 101.147 Frequency assignments. Frequencies, and the conditions on a limited waiver until May 19, 1997 to (a) * * * which they are available, for DEMS file intrastate tariffs for payphone * * * * * operations are contained in this subpart services consistent with the ‘‘new 24,250–25,250 MHz as well as in § 101.147(r)(9) of subpart services’’ test, pursuant to the federal * * * * * C of this part. guidelines established in the Order on (r) 17,700 to 19,700 and 24,250 to 15. Section 101.507 is revised to read Reconsideration, subject to the terms 25,250 MHz. * * * as follows: discussed therein. * * * * * § 101.507 Frequency stability. DATES Effective: April 15, 1997. (9) The following frequencies are The frequency stability in the 17,700– FOR FURTHER INFORMATION CONTACT: available for point-to-multipoint DEMS 19,700 and 24,250–25,250 MHz bands Michael Carowitz, 202–418–0960, Systems, except that channels 35–39 are must be ± 0.001% for each DEMS Nodal Enforcement Division, Common Carrier available only to existing 18 GHz DEMS Station transmitter and ± 0.003% for Bureau. licensees as of March 14, 1997. Systems each DEMS User Station transmitter. SUPPLEMENTARY INFORMATION: operating on Channels 25–34 must cease 16. In § 101.509, the introductory text operations as of January 1, 2001, except of paragraph (c) is revised to read as Synopsis of Order that those stations on these channels follows: within 150 km of the coordinates 38°48′ 1. Upon reviewing the contentions of N/76°52′ W (Washington, D.C., area) § 101.509 Interference protection criteria. the Regional Bell Operating Company (‘‘RBOC’’) Coalition and the language it and 39°43′ N/104°46′ W (Denver, * * * * * Colorado, area) must cease operations as (c) The following interference studies, cites from the two orders in the of June 5, 1997: as appropriate, must be included in Payphone Reclassification Proceeding, DEMS Nodal Station applications to the the Bureau concluded that while the Nodal station User station extent they are provided for in this individual BOCs may not be in full Channel compliance with the intrastate tariffing No. frequency band frequency band subpart: (MHz) limits (MHz) limits requirements of the Payphone * * * * * Reclassification Proceeding, they have [FR Doc. 97–11768 Filed 5–5–97; 8:45 am] made a good faith effort to comply with ***** BILLING CODE 6712±01±P 35 ...... 24,250±24,290 25,050±25,090 the requirements. The RBOC Coalition 36 ...... 24,290±24,330 25,090±25,130 concedes that the Commission’s payphone orders, as clarified by the 37 ...... 24,330±24,370 25,130±25,170 FEDERAL COMMUNICATIONS 38 ...... 24,370±24,410 25,170±25,210 Bureau Waiver Order, mandate that the 39 ...... 24,410±24,450 25,210±25,250 COMMISSION payphone services a LEC tariffs at the 47 CFR Part 64 state level are subject to the new * * * * * services test and that the requisite cost- (10) Special provision for low power [CC Docket No. 96±128; DA 97±805] support data must be submitted to the systems in the 17,700–19,700 MHz individual states. In addition, the RBOC band: Notwithstanding other provisions Pay Telephone Reclassification and Coalition states that it will take in this rule part and except for specified Compensation whatever action is necessary to comply areas around Washington, D.C., and AGENCY: Federal Communications with the Commission’s orders in order Denver, Colorado, licensees of point-to- Commission. to be eligible to receive payphone multipoint channel pairs 25–29 compensation at the earliest possible ACTION: Final rule; waiver. identified in paragraph (r)(9) of this date. Therefore, the Bureau adopted an 24584 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations order, which contains a limited waiver Bureau Waiver Order. The existing RBOC Coalition did not seek of the federal guidelines for intrastate intrastate payphone service tariffs will reconsideration of the rules adopted in tariffs, specifically the requirement that continue in effect until the intrastate the Payphone Reclassification LECs have filed intrastate payphone tariffs filed pursuant to the Bureau’s Proceeding, but instead sought service tariffs as required by the Order order become effective. additional time, in a specific, limited on Reconsideration and the Bureau 3. The RBOC Coalition and Ameritech circumstance, to comply with those Waiver Order that satisfy the new have committed, once the new intrastate rules. services test, and that effective intrastate tariffs are effective, to reimburse or 5. In response to AT&T’s arguments payphone service tariffs comply with provide credit to its customers for these that a LEC must show proof that its the ‘‘new services’’ test of the federal payphone services from April 15, 1997, intrastate tariffs have removed guidelines for the purpose of allowing a if newly tariffed rates, when effective, payphone subsidies consistent with LEC to be eligible to receive payphone are lower than the existing rates. This Section 276, the Bureau noted the compensation. The existing intrastate action will help to mitigate any delay in Commission concluded that ‘‘[t]o tariffs for payphone services will having in effect intrastate tariffs that receive compensation a LEC must be continue in effect until the intrastate comply with the guidelines required by able to certify’’ that it has satisfied each tariffs filed pursuant to the Order on the Order on Reconsideration, including of the individual prerequisites to Reconsideration, the Bureau Waiver the concern raised by MCI that the receiving the compensation mandated Order and the instant order become subsidies from payphone services will by the Payphone Reclassification effective. Because other LECs may also not have been removed before the LECs Proceeding. The Commission did not have failed to file the intrastate tariffs receive payphone compensation. A LEC require that the LECs file such a for payphone services that comply with who seeks to rely on the waiver granted certification with it. Nothing in the the ‘‘new services’’ test of the federal in the instant Order must also reimburse Commission’s orders, however, guidelines, the Bureau applied this their customers or provide credit, from prohibits the IXCs obligated to pay limited waiver to all LECs, with the April 15, 1997, in situations where the compensation from requiring that their limitations set forth therein. newly tariffed rates are lower than the LEC payees provide such a certification existing tariffed rates. The Bureau for each prerequisite. Such an approach 2. Consistent with its conclusions noted, in response to the arguments is consistent with the Commission’s above and in the interests of bringing raised by the IXCs, that its order did not statement that ‘‘we leave the details LECs into compliance with the waive the requirement that subsidies be associated with the administration of requirements of the Payphone removed from local exchange service this compensation mechanism to the Reclassification Proceeding, the Bureau and exchange access services, the parties to determine for themselves waived for 45 days from the April 4, ‘‘harm’’ to the IXCs resulting from the through mutual agreement.’’ 1997 release date of the Bureau Waiver delayed removal of subsidies from some 6. Waiver of Commission rules is Order the requirement that LEC intrastate payphone service tariffs will appropriate only if special intrastate tariffs for payphone services be limited. circumstances warrant a deviation from comply with the ‘‘new services’’ test of 4. The Bureau concluded that the the general rule and such deviation the federal guidelines, as set forth in waiver it granted, which is for a limited serves the public interest. Because the paragraph 163 of the Order on duration to address a specific LECs are required to file, and the states Reconsideration and clarified in the compliance issue, is consistent with, are required to review, intrastate tariffs Bureau Waiver Order. LECs must file and does not undermine, the rules for payphone services consistent with intrastate tariffs for payphone services, adopted by the Commission in the federal guidelines, which, in some as required by the Payphone Payphone Reclassification Proceeding. cases, may not have been previously Reclassification Proceeding consistent Therefore, it rejected the various filed in this manner at the intrastate with all the requirements set forth in the alternatives to granting a waiver that level, the Bureau found that special Order on Reconsideration, within 45 were suggested by the American Public circumstances exist in this case to grant days of the April 4, 1997 release date of Communications Council (‘‘APCC’’) and a limited waiver of brief duration to the Bureau Waiver Order. Any LEC that the IXCs. More specifically, it address this responsibility. In addition, files these intrastate tariffs for payphone concluded that APCC’s proposal to it found that its grant of a waiver in this services within 45 days of the release require the refiling of all intrastate limited circumstance, does not date of the Bureau Waiver Order will be payphone service tariffs would unduly undermine, and is consistent with, the eligible to receive the payphone delay, and possibly undermine, the Commission’s overall policies in CC compensation provided by the Commission’s efforts to implement Docket No. 96–128 to reclassify LEC Payphone Reclassification Proceeding Section 276 and the congressional goals payphone assets and ensure fair PSP as of April 15, 1997, as long as that LEC of ‘‘promot[ing] competition among compensation for all calls originated by has complied with all of the other payphone service providers and payphones. Moreover, the states’ review requirements set forth in paragraph 131 promot[ing] the widespread deployment of the intrastate tariffs that are the (and paragraph 132 for the Bell of payphone services to the benefit of subject of this limited waiver will Operating Companies) of the Order on the general public. * * *’’. In enable them to determine whether these Reconsideration, subject to the response to Sprint’s proposal that we tariffs have been filed in accordance clarifications and limited waiver in the delay the effective date of the LECs’ with the Commission’s rules, including Bureau Waiver Order. Under the terms interstate carrier common line the ‘‘new services’’ test. Accordingly, of this limited waiver, a LEC must have reductions, the Bureau concluded that the Bureau granted a limited waiver for in place intrastate tariffs for payphone the better approach would be to 45 days from the April 4, 1997 release services that are effective by April 15, evaluate requests for such treatment by date of the Bureau Waiver Order the 1997. The waiver permits the LEC to file individual LECs on a case-by-case basis. requirement that LEC intrastate tariffs intrastate tariffs that are consistent with In addition, the Bureau declined to treat for payphone services comply with the the ‘‘new services’’ test of the federal the request of the RBOC Coalition as an ‘‘new services’’ test of the federal guidelines set forth in the Order on untimely petition for reconsideration of guidelines, as set forth in paragraph 163 Reconsideration, as clarified by the the Commission’s rules, because the of the Order on Reconsideration. The Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24585 order did not waive any of the other federal tariffs for unbundled features must be federally tariffed now only if requirements set forth in paragraphs and functions, to the extent necessary, the LEC provides them separately and 131–132 of the Order on to enable LECs to file the required on an unbundled basis from the basic Reconsideration. federal tariffs within 45 days after the payphone line, either to its payphone release of the Bureau’s order, with a operations or to others, because the Ordering Clauses scheduled effective date no later than 15 payphone orders did not require 7. Accordingly, it is ordered, pursuant days after the date of filing. additional unbundling of features and to Sections 4(i,), 5(c), 201–205, 276 of DATES: Effective: April 4, 1997. functions by April 15 beyond those that the Communications Act of 1934, as FOR FURTHER INFORMATION CONTACT: the LEC chooses to provide. As required amended, 47 U.S.C. 154(i), 155(c), 201– Michael Carowitz, 202–418–0960, by the Payphone Reclassification 205, 276, and Sections 0.91 and 0.291 of Enforcement Division, Common Carrier Proceeding, however, a state may the Commission’s rules, 47 CFR 0.91 Bureau. require further unbundling, and PSPs and 0.291, that limited waiver of the may request additional unbundled Commission’s requirements to be SUPPLEMENTARY INFORMATION: features and functions from BOCs eligible to receive the compensation Synopsis of Order through the ONA 120-day service provided by the Payphone request process. Reclassification Proceeding, CC Docket 1. The Bureau clarified here that the 3. The Bureau concluded that the unbundled features and functions No. 96–128, is granted to the extent Payphone Reclassification Proceeding addressed in the Payphone stated herein. does not prohibit the mixing and 8. It is further ordered that this Order Reclassification Proceeding are network matching of payphone services between shall be effective upon release. services similar to basic service federal and state tariffs by LEC and elements (‘‘BSEs’’) under the Open independent payphone operations. This List of Subjects in 47 CFR Part 64 Network Architecture (‘‘ONA’’) conclusion applies only to payphone Communications common carriers, regulatory framework. BSEs are defined services and does not affect Computer Telephone. as optional unbundled features that an III requirements. In Computer III, the enhanced services provider may require Federal Communications Commission. Commission did not allow such mixing or find useful in configuring its William F. Caton, and matching because: (1) Mixing and enhanced service. In this case, the matching could result in mismatch of Acting Secretary. unbundled features are payphone- [FR Doc. 97–11683 Filed 5–5–97; 8:45 am] basic service arrangements (‘‘BSA’’) and specific, network-based features and BSEs costs and revenues; (2) it could BILLING CODE 6712±01±P functions used in configuring undermine state policies; (3) states may unregulated payphone operations impose terms and conditions on BSAs/ provided by payphone service providers BSEs that differ from those of the FCC; FEDERAL COMMUNICATIONS (‘‘PSPs’’) or LECs. Some of the LECs use COMMISSION and (4) other jurisdictional problems. terms such as tariffed ‘‘options’’ and Unlike Computer III, however, Section 47 CFR Part 64 ‘‘elective features’’ for network services 276 provides the Commission with that other LECs call features and jurisdiction over all tariffing of [CC Docket No. 96±128; DA 97±678] functions. Options and elective features payphone services. The Commission has must be federally tariffed in the same delegated to each state the review, Pay Telephone Reclassification and circumstances as features and functions Compensation pursuant to federal guidelines, of must be federally tariffed, depending on payphone tariffs filed in the state. Given AGENCY: Federal Communications whether they are provided on a bundled that the federal guidelines for tariffing Commission. basis with the basic network payphone discussed above are the same in the ACTION: Final rule; waiver. line (state tariff), or separately on an state and federal jurisdictions, there is unbundled basis (federal and state no undermining of state policies or the SUMMARY: On April 4, 1997, the tariffs). creation of jurisdictional conflicts. Common Carrier Bureau (‘‘Bureau’’) 2. The Bureau also clarified that the Moreover, in this case, mixing and clarified and granted a limited waiver of requirement to file federal tariffs applies matching provides a safeguard to ensure the Commission’s interstate tariffing only to payphone-specific, network- that unbundled features are available at requirements for unbundled features based, unbundled features and rates that comply with the guidelines and functions, as set forth in the functions provided to others or taken by established in the Payphone Payphone Reclassification Proceeding, a LEC’s operations, such as answer Reclassification Proceeding. The Bureau CC Docket No. 96–128 [‘‘Payphone supervision and call screening, with the concluded that the separations issues, if Order’’ 61 FR 52307 (October 7, 1997); following qualifications discussed any, raised by allowing mixing and ‘‘Order on Reconsideration’’ 61 FR below. It agreed with the Regional Bell matching are outweighed, in this case, 65341 (December 12, 1996)]. Local Operating Company (‘‘RBOC’’) Coalition by the importance of this safeguard to exchange carriers (‘‘LECs’’) must comply that the federal tariffing requirement ensure that unbundled features and with these requirements, among others, does not apply to non-network services, functions are available at rates that before they are eligible to receive the such as inside wire services. Moreover, comply with the guidelines established compensation from interexchange as suggested by the RBOC Coalition, the in the Payphone Reclassification carriers (‘‘IXCs’’) that is mandated in Bureau did not include in this federal Proceeding. that proceeding. Because some LECs are tariffing requirement features and 4. Upon reviewing the contentions of not in full compliance with the functions that are generally available to the RBOC Coalition and the language it Commission’s federal tariffing all local exchange customers and are cites from the two orders in the requirements for unbundled features only incidental to payphone service, Payphone Reclassification Proceeding, and functions under the Payphone such as touchtone services and various the Bureau concluded that while the Order and Order on Reconsideration, custom calling features. In addition, the individual BOCs are not in full the Bureau granted all LECs a limited Bureau clarified that payphone-specific, compliance with the requirements of the waiver of the deadline for filing the network-based features and functions Payphone Reclassification Proceeding, 24586 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations they have made a good faith effort to provided by the Payphone APCC. LECs, including the BOCs, must comply with the requirements. The Reclassification Proceeding on April 15, comply with the state tariffing RBOC Coalition conceded that the 1997, as long as that LEC has complied requirements of the Payphone Commission’s payphone orders mandate with all of the other requirements set Reclassification Proceeding. In response the federal tariffing of some payphone forth in paragraph 131 (and paragraph to APCC’s contentions, the Bureau services, namely those that the LEC 132 for the BOCs) of the Order on concluded that it did not have a record provides to its own payphone Reconsideration. If a LEC fails to file all to determine whether the BOCs have operations. In addition, the RBOC of the requisite federal tariffs within 45 complied with the state tariffing Coalition stated that it will take days, or if the federal tariffs for a requirement for cost-based rates. As whatever action is necessary to comply particular LEC are not in effect after 60 required by the Order on with the Commission’s orders in order days from the date of release of this Reconsideration, however, LECs, to be eligible to receive payphone Order, the LEC will not be eligible to including the BOCs, must be prepared compensation at the earliest possible receive the payphone compensation to certify that they have complied with date. Therefore, because the RBOC provided by the Payphone all the requirements of the Payphone Coalition has indicated its intent to Reclassification Proceeding. Reclassification Proceeding, including comply with the Commission’s 6. Waiver of Commission rules is those involving intrastate tariffs, subject requirements, as established by the appropriate only if special to the limited waiver provided herein. Payphone Reclassification Proceeding, circumstances warrant a deviation from 8. The Bureau emphasized that LECs and because the Coalition’s narrower the general rule and such deviation must comply with all of the enumerated reading of what payphone services need serves the public interest. Because the requirements established in the to be federally tariffed is based on its Commission is required to review Payphone Reclassification Proceeding, good faith efforts to comply with the incoming tariffs for the unbundled except as waived, before the LECs’ Commission’s rules, the Bureau adopted features and functions associated with payphone operations are eligible to an order, which contained a limited payphone service, which have not been receive the payphone compensation waiver of the federal tariffing previously filed at the interstate level, provided by that proceeding. Both requirements for unbundled features the Bureau found that special independent PSPs and IXCs claim that and functions a LEC must meet before circumstances existed to grant a limited some LECs have not filed state tariffs it is eligible to receive payphone waiver of brief duration to address this that comply with the requirements set compensation. Because other LECs may responsibility. In addition, for the forth in the Order on Reconsideration. also have failed to file all the federal reasons stated above, the Bureau’s grant These requirements are: (1) That tariffs for unbundled features and of a waiver in a limited circumstance, payphone service intrastate tariffs be functions required by the Payphone would not undermine, and is consistent cost-based, consistent with Section 276, Order and the Order on with, the Commission’s overall policies and nondiscriminatory; and (2) that the Reconsideration, the Bureau applied the in CC Docket No. 96–128 to reclassify states ensure that payphone costs for limited waiver to all LECs, with the LEC payphone assets and ensure fair unregulated equipment and subsidies be limitations set forth below. PSP compensation for all calls removed from the intrastate local originated by payphones. Moreover, the exchange service and exchange access 5. In the Payphone Order and Order Bureau’s review of the interstate tariffs service rates. LEC intrastate tariffs must on Reconsideration, the Commission that are the subject of this limited comply with these requirements by required that LECs file federal tariffs by waiver will enable it to determine April 15, 1997 in order for the payphone January 15, 1997 with a 90-day review whether these tariffs have been filed in operations of the LECs to be eligible to period for unbundled features and accordance with its rules. Accordingly, receive payphone compensation. LECs functions. Consistent with its the Bureau granted a limited waiver that have not complied with these conclusions outlined above and in the subject to the filing of federal tariffs for requirements will not be entitled to interests of bringing LECs into unbundled features and functions receive compensation. compliance with the requirements of the within 45 days of the release date of the 9. The Bureau disagreed with the Payphone Reclassification Proceeding, Bureau’s order. The Bureau’s order does RBOC Coalition regarding the the Bureau waived for 60 days the not waive any of the other requirements applicability of the federal guidelines requirement that LECs have ‘‘in effect set forth in paragraphs 131–132 of the for state tariffing of payphone services. ** * interstate tariffs for unbundled Order on Reconsideration, including the The Commission concluded in the functionalities associated with requirement that a LEC have ‘‘in effect Order on Reconsideration that it had [payphone] lines’’ by April 15, 1997. intrastate ** * tariffs for unbundled jurisdiction over the tariffing of The Bureau also waived both the functionalities.* * *’’ payphone services in order to January 15th filing deadline and the 90- 7. The Bureau denied the Motion by implement Section 276. The plain day review period for interstate tariffs. the American Public Communications language of the Order on LECs must file interstate tariffs for Council (‘‘APCC’’) that requested that Reconsideration provides that state unbundled features and functions, as the Commission conclude that the BOCs tariffs for payphone services must be required by the Payphone are disqualified from receiving interim cost based, consistent with the Reclassification Proceeding, as clarified compensation pursuant to the Payphone requirements of Section 276, herein, within 45 days after the release Reclassification Proceeding. APCC nondiscriminatory, and consistent with date of this order under the streamlined argues that the BOCs have failed both to Computer III guidelines. The footnote tariff review process. These tariffs will retariff their basic payphone services at referred to by the RBOC Coalition be effective no later than 15 days after cost-based rates, and to tariff separately provides references to Commission filing, unless suspended or rejected. from basic payphone lines coin service orders describing the applicable Any LEC that files federal tariffs for features and other unbundled features Computer III guidelines. unbundled functionalities, as clarified and functions. The Bureau clarified that 10. The guidelines for state review of herein, within 45 days of the release the Payphone Reclassification intrastate tariffs are essentially the same date of the instant Order will be eligible Proceeding did not require, by April 15, as those included in the Payphone to collect the payphone compensation 1997, the level of unbundling sought by Order for federal tariffs. On Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24587 reconsideration, the Commission stated List of Subjects in 47 CFR Part 64 Need for Correction that although it had the authority under Communications common carriers, As published, the final rules need to Section 276 to require federal tariffs for Telephone. be clarified to allow part 68 applicants payphone services, it delegated some of Federal Communications Commission. the customary 18 months to comply the tariffing requirements to the state with new registration requirements. jurisdiction. The Order on William F. Caton, Reconsideration required that state Acting Secretary. List of Subjects in 47 CFR Part 68 tariffs for payphone services meet the [FR Doc. 97–11682 Filed 5–5–97; 8:45 am] Federal Communications requirements outlined above. The Order BILLING CODE 6712±01±P Commission, Registered terminal on Reconsideration provides that states equipment, Telephone. that are unable to review these tariffs Accordingly, 47 CFR part 68 is FEDERAL COMMUNICATIONS may require the LECs to file the tariffs corrected by making the following COMMISSION with the Commission. correcting amendments: 11. The Bureau clarified that, for 47 CFR Part 68 purposes of meeting all of the PART 68ÐCONNECTION OF requirements necessary to receive [CC Docket No. 93±268; FCC 97±126] TERMINAL EQUIPMENT TO THE payphone compensation, the question of TELEPHONE NETWORK whether a LEC has effective intrastate Inclusion of Terminal Equipment tariffs is to be considered on a state-by- Connected to Basic Rate Access 1. The authority citation for Part 68 is state basis. Under this approach, Service Provided via Integrated amended to read as follows: assuming the LEC has complied with all Services Digital Network Access Authority: 47 U.S.C. 154, 303. of the other compliance list Technology and Terminal Equipment requirements, if a LEC has effective Connected to Public Switched Digital 2. Section 68.2 is amended by revising intrastate tariffs in State X and has filed Service paragraphs (j) and (k) as follows: tariffs in State Y that are not yet in AGENCY: Federal Communications § 68.2 Scope effect, then the LEC PSP will be able to Commission. * * * * * receive payphone compensation for its ACTION: Correcting amendments. (j)(1) Terminal equipment, including payphones in State X but not in State Y. its premises wiring directly connected The intrastate tariffs for payphone SUMMARY: This document contains to PSDS (Type I, II or III) on or before services, including unbundled features, corrections to the final rules which were November 13, 1996, may remain for and the state tariffs removing payphone published in the Federal Register service life without registration, unless equipment costs and subsidies must be August 15, 1996. (61 FR 42386). The subsequently modified. Service life in effect for a LEC to receive rules related to the effective dates after means the life of the equipment until compensation in a particular state. which new or modified equipment retired from service. Modification Ordering Clauses connected to the Integrated Services means changes to the equipment that Digital Network (ISDN) or to the Public 12. Accordingly, it is ordered, affect compliance with part 68 rules. Switched Digital Service (PSDS) must (2) New installation of terminal pursuant to Sections 4(i,), 5(c), 201–205, comply with the rules released in a 276 of the Communications Act of 1934, equipment, including its premises Report and Order on March 7, 1996. wiring, may occur until May 13, 1998, as amended, 47 U.S.C. 154(i), 155(c), (FCC 96–1). 201–205, 276, and Sections 0.91 and without registration of any terminal DATES: Effective on June 5, 1997. 0.291 of the Commission’s rules, 47 CFR equipment involved, provided that the 0.91 and 0.291, that limited waiver of FOR FURTHER INFORMATION CONTACT: Bill terminal equipment is of a type directly the Commission’s requirements to be von Alven, Senior Engineer, Network connected to PSDS (Type I, II or III) as eligible to receive the compensation Services Division, Common Carrier of November 13, 1996. This terminal provided by the Payphone Bureau, (202) 418–2342. equipment may remain connected and be reconnected to PSDS (Type I, II or III) Reclassification Proceeding, CC Docket SUPPLEMENTARY INFORMATION: No. 96–128, is granted to the extent for service life without registration Background stated herein. unless subsequently modified. 13. It is further ordered that each On April 10, 1997, the Commission (k)(1) Terminal equipment, including individual BOC must file an ex parte released an Order on Reconsideration premises wiring directly connected to document with the Secretary, by April (FCC 97–126) to change the dates ISDN BRA or PRA on November 13, 10, 1997, advising on the status of defining grandfathered equipment and 1996, may remain connected to ISDN intrastate tariffs for the unbundled thereby provide Part 68 applicants 18 BRA or PRA for service life without features and functions that it has not yet months to comply with the new registration, unless subsequently federally tariffed, and stating that it registration requirements. To retain the modified. commits to filing federal tariffs for such 18-month period necessary for an (2) New installation of terminal unbundled features and functions orderly transition of equipment to the equipment, including premises wiring, within 45 days of the release date of this new requirements, the Commission may occur until May 13, 1998, without Order. amends its rules to extend the time registration of any terminal equipment 14. It is further ordered that this frame for equipment governed by the involved, provided that the terminal limited waiver shall be effective upon rules. The dates January 1, 1996 and equipment is of a type directly release. July 1, 1997, are thus changed to connected to ISDN BRA or PRA as of 15. It is further ordered that the November 13, 1996 and May 13, 1998, November 13, 1996. This terminal Motion of APCC requesting that the respectively. Consequently, equipment equipment may remain connected and Commission conclude that the BOCs are connected by November 13, 1996 will be reconnected to ISDN BRA or PRA for disqualified from receiving interim be considered grandfathered and not service life without registration unless compensation under the Payphone subject to our registration rules under subsequently modified. Reclassification Proceeding is denied. Part 68. * * * * * 24588 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

Federal Communications Commission. EFFECTIVE DATE: June 5, 1997. salmon status review identified six William F. Caton, ADDRESSES: Garth Griffin, NMFS, distinct population segments (i.e., ESUs) Acting Secretary. Northwest Region, Protected Species in Washington, Oregon, and California [FR Doc. 97–11722 Filed 5–5–97; 8:45 am] Program, 525 N.E. Oregon St., Suite 500, and noted that natural runs in all ESUs BILLING CODE 6712±01±P Portland, OR 97232–2737; Craig are substantially below historical levels Wingert, NMFS, Southwest Region, (Weitkamp, et al. 1995). At least 33 Protected Species Management populations have been identified by DEPARTMENT OF COMMERCE Division, 501 W. Ocean Blvd., Suite state agencies and conservation groups 4200, Long Beach, CA 90802–4213; or as being at moderate or high risk of National Oceanic and Atmospheric Joe Blum, NMFS, Office of Protected extinction. In general, the impacts on Administration Resources, 1315 East-West Highway, West Coast coho salmon stocks decrease Silver Spring, MD 20910. geographically from south to north, with 50 CFR Part 227 FOR FURTHER INFORMATION CONTACT: the central California stocks being in the [Docket No. 950407093±6298±03; I.D. Garth Griffin at (503) 231–2005; Craig worst condition. 012595A] Wingert at (310) 980–4021; or Joe Blum This Federal Register document at (301) 713–1401. focuses on listing determinations for Endangered and Threatened Species; two coho salmon ESUs—the Southern SUPPLEMENTARY INFORMATION: Threatened Status for Southern Oregon/Northern California Coast ESU Oregon/Northern California Coast Species Background and the Oregon Coast ESU—both of Evolutionarily Significant Unit (ESU) of The coho salmon (Oncorhynchus which were proposed as threatened Coho Salmon kisutch) is an anadromous salmonid species under the ESA on July 25, 1995 (60 FR 38011). The Southern Oregon/ AGENCY: National Marine Fisheries species that was historically distributed Service (NMFS), National Oceanic and throughout the North Pacific Ocean Northern California Coast ESU is Atmospheric Administration (NOAA), from central California to Point Hope, composed of populations between Punta Commerce. AK, through the Aleutian Islands, and Gorda (CA) and Cape Blanco (OR). In the 1940s, estimated abundance of coho ACTION: Final rule. from the Anadyr River, Russia, south to Hokkaido, Japan. Historically, this salmon in this ESU ranged from 150,000 SUMMARY: The NMFS is issuing a final species probably inhabited most coastal to 400,000 naturally spawning fish. determination that the Southern streams in Washington, Oregon, and Today, coho populations in this ESU are Oregon/Northern California Coast northern and central California. Some very depressed, currently numbering Evolutionarily Significant Unit (ESU) of populations, now extinct, are believed approximately 10,000 naturally coho salmon (Oncorhynchus kisutch) is to have migrated hundreds of miles produced adults. Populations in the a ‘‘species’’ under the Endangered inland to spawn in tributaries of the California portion of this ESU could be Species Act (ESA) of 1973, as amended, upper Columbia River in Washington less than 6 percent of their abundance and is being listed as threatened. Coho and the Snake River in Idaho. during the 1940s (CDFG, 1994), while salmon populations are very depressed Coho salmon on the west coast of the Oregon populations have exhibited a in this ESU, currently numbering less contiguous United States and much of similar but slightly less severe decline than 10,000 naturally-produced adults. British Columbia generally exhibit a (ODFW, 1995); however, it is important The threats to this ESU are numerous relatively simple 3-year life cycle. to note that population abundance in and varied. Several human-caused Adults typically begin their freshwater the Rogue River Basin has increased factors, including habitat degradation, spawning migration in the late summer substantially over the last 3 years harvest, and artificial propagation, and fall, spawn by mid-winter, and then (NMFS, 1997a). The bulk of current exacerbate the adverse effects of natural die. The run and spawning times vary coho salmon production in this ESU environmental variability brought about between and within populations. consists of stocks from the Rogue River, by drought, floods, and poor ocean Depending on river temperatures, eggs Klamath River, Trinity River, and Eel conditions. NMFS has determined that incubate in ‘‘redds’’ (gravel nests River basins. Smaller basins known to existing regulatory mechanisms are excavated by spawning females) for 1.5 support coho salmon include the Elk either inadequate or not implemented to 4 months before hatching as River in Oregon, and the Smith and Mad well enough to conserve this ESU. ‘‘alevins’’ (a larval life stage dependent Rivers and Redwood Creek in While conservation efforts are underway on food stored in a yolk sac). Following California. for some populations in this ESU, they yolk sac absorption, alevins emerge The Oregon Coast ESU is composed of are not considered sufficient to change from the gravel as young juveniles or populations between Cape Blanco and the likelihood that the ESU as a whole ‘‘fry’’ and begin actively feeding. the Columbia River. More than one will become endangered in the Juveniles rear in fresh water for up to 15 million coho salmon are believed to foreseeable future. NMFS will issue months, then migrate to the ocean as have returned to Oregon coastal rivers shortly protective regulations under ‘‘smolts’’ in the spring. Coho salmon in the early 1900s (Lichatowich, 1989), section 4(d) of the ESA, which will typically spend 2 growing seasons in the the bulk of them originating in this ESU. apply section 9(a) prohibitions to this ocean before returning to their natal Current production is estimated to be ESU, with certain exceptions. NMFS stream to spawn as 3 year-olds. Some less than 10 percent of historical levels. does not expect those regulations to precocious males, called ‘‘jacks,’’ return Spawning in this ESU is distributed become effective before July 1, 1997. to spawn after only 6 months at sea. over a relatively large number of basins, NMFS has further determined that the During this century, indigenous, both large and small, with the bulk of Oregon Coast ESU does not warrant naturally-reproducing populations of the production being skewed to the listing at this time. Accordingly, NMFS coho salmon have been extirpated in southern portion of its range. There, the will consider the Oregon Coast coho nearly all Columbia River tributaries coastal lake systems (e.g., the Tenmile, salmon ESU to be a candidate species in and they are in decline in numerous Tahkenitch, and Siltcoos basins) and the 3 years (or earlier if warranted by new coastal streams throughout Washington, Coos and Coquille Rivers have been information). Oregon, and California. NMFS’’ coho particularly productive for coho salmon. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24589

Previous Federal ESA Actions Related west coast coho salmon status review salmon in British Columbia, to Coho Salmon (NMFS, 1997a). Washington, Oregon, and California. This was deemed critical to assessing Summary of Comments Regarding the The history of petitions received the current status of coho salmon ESUs. Oregon Coast and Southern Oregon/ regarding coho salmon is summarized in This new information, more fully Northern California Coast ESUs the proposed rule published on July 25, described in a report from the NMFS 1995 (60 FR 38011). The most The NMFS held six public hearings in BRT (NMFS, 1997a), generally consists comprehensive petition was submitted California, Oregon, and Washington to of updates of existing data series, new by the Pacific Rivers Council and 22 co- solicit comments on the proposed data series, and new analyses of various petitioners on October 20, 1993. In listing determination for west coast factors. NMFS also received analyses response to that petition, NMFS coho salmon. Sixty-three individuals and conservation measures associated assessed the best available scientific and presented testimony at the hearings. with the OCSRI (OCSRI, 1996 and commercial data, including technical During the 90-day public comment 1997). The OCSRI components relating information from Pacific Salmon period, NMFS received 174 written to hatchery and harvest measures were Biological and Technical Committees comments on the proposed rule from assessed by the BRT (NMFS, 1997a), (PSBTCs) in Washington, Oregon, and state, Federal, and local government while remaining measures were California. The PSBTCs consisted of agencies, Indian tribes, non- assessed by the NMFS Habitat program scientists with technical expertise governmental organizations, the (NMFS, 1997b). relevant to coho salmon. They were scientific community, and other NMFS believes that information drawn from Federal, state, and local individuals. In accordance with agency contained in the agency’s 1995 west resource agencies, Indian tribes, policy (59 FR 34270, July 1, 1994), coast coho salmon status review industries, professional societies, and NMFS also requested a scientific peer (Weitkamp et al., 1995), together with review of the proposed rule, receiving public interest groups. NMFS also more recent information collected by responses from two of the seven established a Biological Review Team NMFS scientists and information reviewers. A summary of major public (BRT), composed of staff from its provided to NMFS by other sources comments pertaining to the Oregon and Northwest Fisheries Science Center and since the proposed listing determination Northern California coho salmon ESUs Southwest Regional Office, which was published, represent the best (including issues raised by peer conducted a coastwide status review for scientific information presently reviewers) is presented below, grouped coho salmon (Weitkamp et al., 1995). available for coho salmon populations by issue categories. Based on the results of the BRT on the Oregon and California coast. report, and after considering other Issue 1: Sufficiency and Accuracy of NMFS believes that this information is information and existing conservation Scientific Information and Analyses sufficient and accurate, and, in measures, NMFS published a proposed Comment: Many individuals urged accordance with the ESA, finds it both listing determination (60 FR 38011, July NMFS to use the best available scientific mandatory and appropriate to make a 25, 1995) that identified six ESUs of information in reaching a final listing determination at this time. If coho salmon ranging from southern determination regarding the risk of substantial new scientific information British Columbia to central California. extinction that the coho salmon ESUs indicates a change in the status of either The Olympic Peninsula ESU was found face. Comments received from a peer coho salmon ESU, NMFS will not to warrant listing and the Oregon reviewer, as well as from scientists reconsider the present listing Coast ESU, Southern Oregon/Northern representing state fish and wildlife determinations. California Coast ESU, and Central agencies, tribes, and the private sector, Comment: Some commenters felt that California Coast ESU were proposed for disputed the sufficiency and accuracy of NMFS should establish explicit listing listing as threatened species. The Puget data that NMFS employed in its criteria common to all coho salmon Sound/Strait of Georgia ESU and the proposed rule to list west coast coho ESUs, and noted that such criteria lower Columbia River/southwest salmon. In particular, they questioned would lead to different conclusions Washington Coast ESU were identified the data relating to the ESUs in Oregon regarding extinction risk. as candidates for listing. NMFS is now and California. The primary areas of Response: At this time, there is no in the process of completing status disagreement concerned data relevant to accepted methodology nor explicit reviews for these latter two ESUs; risk assessment and NMFS’ evaluation listing criteria for determining the results and findings for both will be of existing protective measures. likelihood of extinction for Pacific announced in an upcoming Federal Response: The ESA requires that salmon. In November 1996, NMFS’ Register notice. listing determinations be made on the Northwest and Southwest Fisheries On October 31, 1996, NMFS basis of a population’s status which is Science Centers sponsored a published a final rule listing the Central determined by using the best available symposium/workshop on ‘‘Assessing California Coast ESU as a threatened scientific and commercial data, with Extinction Risk for West Coast Salmon’’ species (61 FR 56138). Concurrently, subsequent consideration being given to (Seattle, November 13–15, 1996). The NMFS announced that a 6-month state and foreign efforts to protect the objective of the workshop was to extension was warranted for the Oregon species. In response to the comments evaluate scientific methods for assessing Coast and Southern Oregon/Northern summarized above, NMFS published a various factors contributing to California Coast ESUs (61 FR 56211) document (61 FR 56211, October 31, extinction risk for Pacific salmon due to the fact that there was substantial 1996) extending the final listing populations. A preliminary summary of disagreement regarding the sufficiency determination deadline for the Oregon key recommendations was considered and accuracy of the available data Coast and Southern Oregon/Northern by the BRT during the coho salmon relevant to the listing determination California Coast ESUs for 6 months to status review. Most of these (pursuant to section 4(b)(6)(B)(i) of the solicit, collect, and analyze additional recommendations require long-term ESA). The NMFS has now completed a data. During this period, NMFS met development of improved methods, and review of additional data pertaining to with fisheries co-managers and received thus, could not be substantially applied these two ESUs and has updated its new and updated information on coho in this review. 24590 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

In recent months, NMFS has also Response: The NMFS has published a tagged with coded wire tags) for coho evaluated three different population policy describing how it would apply salmon released from this ESU simulation models for coho salmon the ESA definition of a ‘‘species’’ to (including releases from the Umpqua developed by members of the OCSRI anadromous salmonid species (56 FR stocks) are distinctly different from the Science Team. The preliminary results 58612, November 20, 1991). More distribution patterns for coho salmon of these viability models provide a wide recently, NMFS and the U.S. Fish and released from ESUs to the north and range of results, with one model Wildlife Service (FWS) published a joint south. Thus, NMFS concludes that the suggesting that most Oregon coastal policy, consistent with NMFS’ policy, ocean migration patterns of the Umpqua stocks cannot sustain themselves at the regarding the definition of ‘‘distinct stocks are similar to the rest of the ocean survival rates that have been population segments’’ (61 FR 4722, stocks in the ESU. In addition, genetic observed in the last 5 years (even in the February 7, 1996). The earlier policy is data that NMFS reviewed (Weitkamp et absence of harvest) and another more detailed and applies specifically to al., 1995) indicate that genetic suggesting that stocks are highly Pacific salmonids and, therefore, was discontinuities are particularly resilient and would be at significant risk used for this determination. This policy pronounced at Cape Blanco and the of extinction only if habitat degradation indicates that one or more naturally mouth of the Columbia River. While continues into the future (more detailed reproducing salmonid populations will there is evidence of genetic evaluations of these models are be considered to be distinct and, hence, heterogeneity within this area (e.g., the presented in NMFS’ status review species under the ESA, if they represent Oregon Department of Fish and Wildlife update (NMFS, 1997a)). While these an ESU of the biological species. To be (ODFW) has identified the Umpqua models have potential heuristic value, considered an ESU, a population must River basin as one of six distinct gene NMFS is presently reluctant to employ satisfy two criteria: (1) It must be conservation groups of coho salmon), them to forecast extinction risk for coho reproductively isolated from other NMFS believes that this ESU, as a salmon. Instead, NMFS has relied on its population units of the same species, whole, which includes the Umpqua traditional assessment method, which and (2) it must represent an important stocks, exhibits a reasonable degree of employs a variety of information types component in the evolutionary legacy of reproductive isolation from the other to evaluate the level of risk faced by an the biological species. The first two ESUs that border it. ESU. These include: (1) Absolute criterion, reproductive isolation, need Comment: Most commenters numbers of fish and their spatial and not be absolute but must have been expressed an opinion as to whether temporal distribution; (2) current strong enough to permit evolutionarily listing was warranted for these and abundance in relation to historical important differences to occur in other coho salmon ESUs, although few abundance and carrying capacity of the different population units. The second provided substantive new information habitat; (3) trends in abundance, based criterion is met if the population relevant to making risk assessments. on indices such as dam or redd counts contributes substantially to the The majority of comments stated that or on estimates of spawner-recruit ecological or genetic diversity of the both ESUs should be listed as ratios; (4) natural and human-influenced species as a whole. Guidance on threatened or endangered, while factors that cause variability in survival applying this policy is contained in a relatively few stated that listing was not and abundance; (5) possible threats to scientific paper entitled: ‘‘Pacific warranted. Response: Recent Status of the genetic integrity (e.g., fisheries and Salmon (Oncorhynchus spp.) and the Southern Oregon/Northern California interactions between hatchery and Definition of ‘Species’ under the Coast ESU: The Estimates of natural natural fish); and (6) recent events (e.g., Endangered Species Act.’’ It is also a drought or a change in management) population abundance in the ESU found in a NOAA Technical continue to be based on very limited that have predictable short-term effects Memorandum: ‘‘Definition of ‘Species’ on the ESU’s abundance. These information, but the ESU has clearly Under the Endangered Species Act: undergone a dramatic decline. considerations and the approaches to Application to Pacific Salmon.’’ NMFS’ evaluating them are described in more Favorable indicators include recent proposed listing determination and rule increases in abundance in the Rogue detail in Weitkamp et al. (1995) and (60 FR 38011, July 25, 1995) for west have been used by NMFS in other River and the presence of natural coast coho salmon and the west coast salmon status reviews. At this time, populations in both large and small coho salmon status review (Weitkamp et NMFS believes that an integrated basins within the ESU—factors that may al., 1995) describe the genetic, assessment using these types of provide some buffer against the ESU’s ecological, and life history information is both desirable and extinction. However, large hatchery characteristics, as well as human-caused appropriate for determining whether a programs, particularly in the Klamath/ genetic changes, that NMFS assessed to Pacific salmon species is likely to Trinity basin, raise serious concerns determine the number and geographic become endangered or extinct. about effects on, and sustainability of, extent of the coho salmon ESUs. natural populations. For example, Issue 2: Description and Status of the With respect to the Umpqua River, available information indicates that Southern Oregon/Northern California NMFS recognizes that physical and virtually all of the naturally spawning Coast and Oregon Coast Coho Salmon hydrological conditions in this basin are fish in the Trinity River are first- ESUs unique (i.e., it is by far the largest basin generation hatchery fish. Several Comment: A few commenters in the Oregon Coast ESU, and it is the hatcheries in the California portion of disputed NMFS’ conclusions regarding only basin in the ESU to cut through the this ESU have used exotic stocks the geographic boundaries for these Coast Range to drain the Cascade extensively in the past, in contrast to ESUs; those who did, believed that Mountains). However, NMFS believes Cole Rivers Hatchery in Oregon which NMFS should reduce the size/number of that application of the agency’s policy has only released Rogue River stock into populations that constitute ESUs. One (described above) justifies including the Rogue River. New data relating to commenter believed that the Umpqua Umpqua River coho salmon populations coho salmon presence/absence in River basin (in the Oregon Coast ESU) as an integral part of the Oregon Coast northern California streams that should be considered a separate ESU ESU. Ocean distribution patterns (based historically supported coho salmon are and that listing was not warranted. on marine recovery locations of fish even more disturbing than earlier Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24591 results, indicating that a smaller the declining trend in this ESU’s Issue 4: Adequacy of Existing percentage of streams in this ESU productivity. Conservation Measures or Regulatory contain coho salmon than did during an Mechanisms Issue 3: Factors Contributing to the earlier study. However, it is unclear Decline of West Coast Coho Salmon Comment: Many commenters whether these new data represent actual ESUs expressed opinions regarding the trends in local extinctions, or if they are adequacy of existing conservation simply biased by sampling methods. Comment: Many commenters efforts or regulatory mechanisms. While In the Rogue River basin, natural addressed factors contributing to the many thought that existing programs spawner abundance in 1996 was slightly decline of coho salmon. These included were sufficient to conserve coho salmon above levels found in 1994 and 1995. overharvest, predation by pinnipeds, (and hence avoid listing), others Abundances in the most recent 3 years effects of artificial propagation, and the believed that efforts were either are all substantially higher than they deterioration or loss of freshwater and inadequate, poorly implemented, or of were in 1989–93, and are comparable to marine habitats. One peer reviewer and uncertain benefit to the species. counts at Gold Ray Dam (upper Rogue) several commenters believed that Response: The regulatory mechanisms in the 1940s. Estimated return ratios for NMFS’ assessment did not adequately established by Federal, state, tribal, and 1996 are the highest on record, but this consider the large influence of natural local governments provide the most may be influenced by an underestimate environmental fluctuations. Some effective and available means to prevent of parental spawners. The Rogue River commenters took exception to a species from facing the peril of run included an estimated 60 percent generalizations that NMFS made extinction. In its proposed rule, NMFS hatchery fish in 1996; this figure is regarding the various factors for decline concluded that existing measures were comparable to the percentages found in and requested more detail on the not sufficient to offset population recent years. The majority of these various factors so that recovery efforts declines. Since that time, several hatchery fish return to Cole Rivers could be appropriately focussed. documents have been produced that Hatchery, but NMFS has no estimate of Response: NMFS agrees with the describe in more detail the existing the actual number that stray into natural commenters that many factors, past and conservation efforts for salmon in habitat. present, have contributed to the decline Oregon and California (NMFS, 1996a, Response: Recent Status of the Oregon of coho salmon. The agency also 1996c, and 1997b; OCSRI, 1997). Coast ESU: While this ESU’s current recognizes that natural environmental Moreover, the agency has reviewed a abundance is substantially less than it fluctuations have likely played a large variety of state and Federal conservation was historically, recent trends indicate role in the species’ recent declines. efforts (including regulatory that spawner escapements in this ESU However, NMFS believes that other mechanisms) aimed at protecting coho are stable or increasing as a likely result human-induced impacts (e.g., from salmon and their habitats in these ESUs, of significant harvest restrictions (or overharvest, hatchery practices, and and NMFS recognizes that significant other factors). Although escapement has habitat modification) have been equally conservation efforts have been made by been increasing for the ESU as a whole significant and, moreover, have likely an array of government agencies and (1996 estimate of ESU-wide escapement reduced the coho salmon populations’ private groups in California and Oregon. indicates an approximately four-fold resiliency in the face of adverse natural NMFS has also developed a document increase since 1990), recruitment and factors such as drought and poor ocean titled ‘‘Coastal Salmon Conservation: recruits-to-spawner ratios have conditions. Since the time of NMFS’ Working Guidance for Comprehensive remained low. While recent natural proposed listing, several documents Salmon Restoration Initiatives on the escapement has been estimated to be on have been produced that describe in Pacific Coast’’ (NMFS, 1996d). This the order of 50,000 fish per year in this more detail the impacts of various document was drafted to guide the ESU (reaching approximately 80,000 factors contributing to the decline of Pacific Coast states, tribes, and other fish in 1996), this has been coincident coho and other salmonids (NMFS, entities in taking the initiative for with drastic reductions in harvest. Pre- 1996a, 1997a, and 1997b; OCSRI 1997). coastal salmon restoration; it also fishery recruitment was higher in 1996 In addition, NMFS has developed a provides a framework for developing than in either 1994 or 1995, but it still document titled ‘‘Making Endangered successful salmon restoration strategies. exhibits a relatively flat trend since Species Act Determinations of Effect for Information that commenters provided 1990. When looked at on a finer Individual or Grouped Actions at the regarding existing regulatory geographic scale, the northern Oregon Watershed Scale’’ (NMFS, 1996b). This mechanisms has been incorporated in coast still has very poor escapement, the document presents guidelines to the sections below titled: ‘‘Summary of north-central coast is mixed with strong facilitate and standardize Factors Affecting Coho Salmon, and increases in some streams but continued determinations of ‘‘effect’’ under the Efforts to Protect Oregon and California poor escapement in others, and the ESA and includes a matrix for Coho Salmon.’’ south-central coast continues to have determining the condition of various increasing escapement. habitat parameters. This matrix is being Issue 5: Information Received After the In contrast to most of the 1980s, implemented in several northern Close of the Comment Period spawner-to-spawner ratios in this ESU California and Oregon coastal Comment: When the states of Oregon have remained at or above replacement watersheds and is expected to help and California announced that they since 1990 (due primarily to sharp guide efforts to define salmon risk were in the process of developing reductions in harvest). This represents factors and conservation strategies salmon restoration initiatives (61 FR the longest period of sustained throughout the west coast. A concise 56211, October 31, 1996), it generated replacement observed in the past 20 description of information contained in considerable interest among the general years. It is notable that this sustained these documents, as well as new public. This was especially true for the replacement has occurred during a information provided by commenters, OCSRI. Between the time the August period of low recruitment and primarily has been incorporated in the section OCSRI draft was released and this poor-to-fair ocean conditions. However, below titled ‘‘Summary of Factors Federal Register document was written, significant concerns remain regarding Affecting Coho Salmon.’’ NMFS received a great deal of 24592 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations correspondence on this subject. Some of A. The Present or Threatened Jackson, 1996). Of particular concern is the mail was addressed to NMFS, but Destruction, Modification, or the increased sediment input into much of it arrived in the form of Curtailment of its Habitat or Range spawning and rearing areas that results courtesy copies of mailings sent to the NMFS, in conjunction with the State from loss of properly functioning state. The majority of the comments of Oregon, identified the habitat factors riparian areas, land management NMFS received supported the concept for decline that have affected coho activities that occur on unstable slopes, of a state restoration initiative, but they salmon. The factors are: Channel and certain agricultural practices. also expressed the thought that NMFS morphology changes, substrate changes, Further, historical practices, such as the should still provide the additional loss of instream roughness, loss of use of splash dams, widespread removal protections afforded by a listing under estuarine habitat, loss of wetlands, loss/ of log jams, removal of snags from river channels, and eradication of beaver the ESA. degradation of riparian areas, declines in water quality (e.g., elevated water have adversely modified fish habitat Response: NMFS has considered this (Bottom et al., 1985). temperatures, reduced dissolved information and thanked as many of Agricultural practices have also oxygen, altered biological communities, these commenters as time has allowed, contributed to the degradation of toxics, elevated pH, and altered stream and, moreover, appreciates the input it salmonid habitat on the west coast fertility), altered streamflows, fish has received from the many comments through irrigation diversions, passage impediments, elimination of that were submitted. overgrazing in riparian areas, and habitat, and direct take. Additional compaction of soils in upland areas Summary of Factors Affecting Coho detail on each of these factors for from livestock (Botkin et al., 1995; Salmon decline can be found in reports by Spence et al., 1996). The vigor, NMFS (NMFS, 1996a, 1997a, and composition, and diversity of natural Section 4(a)(1) of the ESA and NMFS 1997b) and the State of Oregon (OCSRI, vegetation can be altered by livestock listing regulations (50 CFR part 424) set 1997). grazing in and around riparian areas. forth procedures for listing species. The The major activities responsible for This in turn can affect the site’s ability Secretary of Commerce (Secretary) must the decline of coho salmon in Oregon to control erosion, provide stability to determine, through the regulatory and California are logging, road stream banks, and provide shade, cover, process, if a species is endangered or building, grazing and mining activities, and nutrients to the stream. Mechanical threatened based upon any one or a urbanization, stream channelization, compaction can reduce the productivity combination of the following factors: (1) dams, wetland loss, beaver trapping, of the soils appreciably and cause bank The present or threatened destruction, water withdrawals and unscreened slough and erosion. Mechanical bank modification, or curtailment of its diversions for irrigation. Many damage often leads to channel habitat or range; (2) overutilization for commenters expressed concern that widening, lateral stream migration, commercial, recreational, scientific, or these and other habitat-related increases in water temperature, and activities, if unchecked, could educational purposes; (3) disease or excess sedimentation. Agricultural ultimately lead to the ESUs’ becoming predation; (4) inadequacy of existing practices are also a key producer of non- endangered or extinct. The following regulatory mechanisms; or (5) other point source pollution which includes discussion provides an overview of the runoff from livestock and tilled fields natural or human-made factors affecting types of activities and conditions that its continued existence. (nutrients and sediments) and adversely affect coho salmon in coastal agricultural chemicals. The factors threatening naturally- watersheds. Urbanization has degraded coho reproducing coho salmon throughout its Numerous studies have demonstrated salmon habitat through stream range are numerous and varied. For that land use activities associated with channelization, floodplain drainage, and coho salmon populations in California logging, road construction, urban riparian damage (Botkin et al., 1995). and Oregon, the present depressed development, mining, agriculture, and When watersheds are urbanized, condition is the result of several long- recreation have significantly altered the problems may result simply because standing, human-induced factors (e.g., quantity and quality of coho salmon structures are placed in the path of habitat degradation, harvest, water habitat. Impacts of concern associated natural runoff processes, or because the diversions, and artificial propagation) with these activities include the urbanization itself has induced changes that serve to exacerbate the adverse following: Alteration of streambank and in the hydrologic regime. In almost effects of natural environmental channel morphology, alteration of every point that urbanization activity ambient stream water temperatures, variability from such factors as drought, touches the watershed, point source and alteration of the magnitude and timing floods, and poor ocean conditions. nonpoint source pollution occurs. Water of annual stream flow patterns, infiltration is reduced due to an increase As noted earlier, NMFS received elimination of spawning and rearing in impervious surfaces. As a result, numerous comments regarding the habitat, fragmentation of available runoff from the watershed is flashier, relative importance of various factors habitats, elimination of downstream with increased flood hazard (Leopold, contributing to the decline of coho recruitment of spawning gravels and 1968). Flood control and land drainage salmon. Several recent documents have large woody debris, removal of riparian schemes may concentrate runoff, been produced that describe in more vegetation resulting in increased stream resulting in increased bank erosion detail the impacts of various factors bank erosion, and degradation of water which causes a loss of riparian contributing to the decline of coho and quality (CDFG, 1965; Bottom et al., vegetation and undercut banks and other salmonids (NMFS, 1996a, 1997a, 1985; California Advisory Committee on eventually causes widening and down- and 1997b; OCSRI, 1997). The following Salmon and Steelhead Trout, 1988; cutting of the stream channel. sections provide an overview of the CDFG, 1991; Nehlsen et al., 1991; Sediments washed from the urban areas various risk factors and their role in the California State Lands Commission, contain trace metals such as copper, decline of Oregon and California coho 1993; Wilderness Society, 1993; Bryant, cadmium, zinc, and lead (CSLC, 1993). salmon. 1994; CDFG, 1994; Brown et al., 1994; These, together with pesticides, Botkin et al., 1995; McEwan and herbicides, fertilizers, gasoline, and Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24593 other petroleum products, contaminate depend (Sweeney and Vannote, 1978; headwater streams may not harm drainage waters and harm aquatic life Quinn and Tallman, 1987). Desired salmonids there but can contribute to necessary for coho salmon survival. The conditions for coho salmon include an downstream warming (Bisson et al., California State Water Resources abundance of cool (generally in the 1987; Bjornn and Reiser, 1991). Control Board (CSWRCB, 1991) reported range of 11.8 degrees C to 14.6 degrees The most pervasive cumulative effect that nonpoint source pollution is the C), well oxygenated water that is present of past forest practices on habitats for cause of 50 to 80 percent of impairment year-round, free of excessive suspended anadromous salmonids has been an to water bodies in California. sediments and other pollutants that overall reduction in habitat complexity Forestry has degraded coho salmon could limit primary production and (Bisson et al., 1992), from loss of habitat through removal and benthic invertebrate abundance and multiple habitat components. Habitat disturbance of natural vegetation, diversity (Cordone and Kelley, 1961; complexity has declined principally disturbance and compaction of soils, Reiser and Bjornn, 1979; Lloyd et al., because of reduced size and frequency construction of roads, and installation of 1987). of pools due to filling with sediment culverts. Timber harvest activities can There are approximately 18,137 miles and loss of LWD (Reeves et al., 1993; result in sediment delivered to streams (30,228 km) of streams in the coastal Ralph et al., 1994). However, there has through mass wasting and surface basins of Oregon. Of that number, 6,086 also been a significant loss of off- erosion that can elevate the level of fine stream miles (10,143 km) (33.5 percent) channel rearing habitats (e.g., side sediments in spawning gravels and fill have been assessed by Oregon channels, riverine ponds, backwater the substrate interstices inhabited by Department of Environmental Quality sloughs) important for juvenile salmon invertebrates. Where logging in the (DEQ) for compliance with existing production, particularly coho salmon riparian areas occurs, inputs of leaf water quality standards using available (Peterson, 1982). Cumulative habitat litter, terrestrial insects, and large water quality information. Of the 6,086 simplification has caused a widespread woody debris to the stream are reduced. stream miles assessed (10,143 km), reduction in salmonid diversity Loss of large woody debris, combined 3,035 stream miles (5,058 km) (49.9 throughout California, Oregon, and the with alteration of hydrology and percent) were found to be water quality region. sediment transport, reduces complexity limited, and 2,345 stream miles (3,908 B. Overutilization for Commercial, of stream micro-and macrohabitats and km)(38.5 percent) need additional data Recreational, Scientific, or Education causes loss of pools and channel or were of potential concern. Only 706 Purposes sinuosity. The structure of the biological stream miles (1,177 km)(11.6 percent) of community may also change. This those assessed were found to be meeting Coho salmon have historically been a includes fish assemblages and diversity all state water quality standards (OCSRI, staple of Pacific Northwest and northern as well as timing of life history events 1997). California Indian tribes and have been (Spence et al., 1996). Eighteen water bodies in northern targeted in recreational and commercial Depletion and storage of natural flows California, including eight within the fisheries since the early 1800s have drastically altered natural range of the Southern Oregon/Northern (Nickelson et al., 1992). Coho salmon hydrological cycles, especially in California Coast ESU, have been harvested by California Native California and southern Oregon rivers designated as impaired by the American tribes in the northern and streams. Alteration of streamflows Environmental Protection Agency (EPA) California portion of the Southern has increased juvenile salmonid under section 303(d) of the Federal Oregon/Northern California Coast ESU mortality for a variety of reasons: Clean Water Act (CWA). These eight is primarily incidental to larger chinook Migration delay resulting from river basins include the Mattole, Eel, salmon subsistence fisheries in the insufficient flows or habitat blockages; Van Duzen, Mad, Shasta, Scott, Klamath and Trinity Rivers; in neither loss of usable habitat due to dewatering Klamath, and Trinity Rivers. The basin is tribal harvest considered to be and blockage; stranding of fish resulting primary factors for listing these river a major factor for the decline of coho from rapid flow fluctuations; basins as impaired are excessive salmon. The recent estimated Yurok entrainment of juveniles into sediment load and elevated water tribal net harvest of coho salmon in the unscreened or poorly screened temperatures. Klamath River was 27 in 1994, 660 in diversions; and increased juvenile Although individual management 1995, and 540 in 1996. The Yurok tribal mortality resulting from increased water activities by themselves may not cause fishery is managed annually under a temperatures (California Advisory significant harm to salmonid habitats, Harvest Management Plan adopted by Committee on Salmon and Steelhead incrementally and collectively, they the Tribal Council pursuant to the Trout, 1988; CDFG, 1991; CBFWA, may degrade habitat and cause long- authority of the Yurok Tribal Fishing 1991; Bergren and Filardo, 1991; term declines in fish abundance (Bisson Rights Ordinance. The Hoopa Tribe’s Palmisano et al., 1993; Reynolds et al., et al., 1992). Changes in sediment estimated net harvest of coho salmon 1993; Chapman et al., 1994; Cramer et dynamics, streamflow, and water from 1982–96 averaged 263 fish per year al., 1995; Botkin et al., 1995). In temperature are not just local problems and ranged from a low of 25 fish in 1994 addition, reduced flows degrade or restricted to a particular reach of a to a high of 1,115 fish in 1985. Harvest diminish fish habitats via increased stream, but problems that can have management practiced by the tribes is deposition of fine sediments in adverse cumulative effects throughout conservative and has resulted in limited spawning gravels, decreased the entire downstream basin (Sedell and impacts on the coho salmon stocks in recruitment of new spawning gravels, Swanson, 1984; Grant, 1988). For the Klamath and Trinity Rivers. and encroachment of riparian and non- example, increased erosion in Overfishing in non-tribal fisheries is endemic vegetation into spawning and headwaters, combined with reduced believed to have been a significant rearing areas. sediment storage capacity in small factor in the decline of coho salmon. Important elements of water quality streams, from loss of stable instream Marine harvest in the Oregon Coast and include water temperatures within the large woody debris (LWD), can Southern Oregon/Northern California range that corresponds with migration, overwhelm larger streams with Coast ESUs occurs primarily in rearing and emergence needs of fish and sediment (Bisson et al., 1992). Likewise, nearshore waters off Oregon, and the aquatic organisms upon which they increased water temperature in California (Weitkamp et al., 1995). Coho 24594 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations salmon landings off the California and a more restrictive fishery management C. Disease or Predation Oregon coast ranged from 0.7 to 3.0 regime that allocates most of future Relative to effects of fishing, habitat million in the 1970s, were consistently population increases to escapement. degradation, and hatchery practices, below 1 million in the 1980s, and Recreational fishing for coho salmon disease and predation are not believed averaged less than 0.4 million in the is pursued in numerous streams to be major factors contributing to the early 1990s prior to closure of the throughout the Oregon and California overall decline of coho salmon in fisheries in 1994 (PFMC, 1995). California and Oregon. However, Significant overfishing occurred from coast when adults return on their fall disease and predation may have the time marine survival turned poor for spawning migration. The contribution of substantial impacts in local areas. many stocks (ca. 1976) until the mid- coho salmon to the in-river sport catch Coho salmon are exposed to 1990s when harvest was substantially is unknown for most California numerous bacterial, protozoan, viral, curtailed. This overfishing watersheds, and losses due to injury and and parasitic pathogens in freshwater compromised escapement levels. mortality from incidental capture in and marine environments. Specific Spawning escapement targets other authorized fisheries, principally diseases such as bacterial kidney established for the Oregon Coastal steelhead, are also unknown. The disease (BKD), ceratomyxosis, Natural (OCN) coast wide aggregate California Department of Fish and Game columnaris, furunculosis, infectious (comprised of all naturally produced (CDFG) has monitored, with Trinity hematopoietic necrosis, redmouth and coho salmon from Oregon coastal River Basin Fish and Wildlife black spot disease, Erythrocytic streams) were rarely met over the past Restoration Act funding, angler harvest 2 decades. There are many reasons that of coho salmon in the Trinity River Inclusion Body Syndrome, whirling escapement targets were not met, above Willow Creek with reward tags disease, and others are present and including excessive harvests and since 1977. In-river angler harvest known to affect salmon and steelhead difficulty in estimating the maximum estimates for coho salmon range from (Rucker et al., 1953; Wood, 1979; Leek, sustainable yield given extreme zero in 1980 to a high of 3,368 in 1987, 1987; Cox, 1992; Foott et al., 1994; Gould and Wedemeyer, undated). Very fluctuations in ocean productivity and with an average of 598 coho salmon little current or historical information the inability to properly distinguish harvested per year. exists to quantify prevalences and wild spawners from stray hatchery fish. In the Oregon portion of the Southern Coho salmon stocks are managed by mortality rates attributable to these Oregon/Northern California Coast ESU, NMFS in conjunction with the Pacific diseases for coho salmon. However, Fishery Management Council (PFMC), marked hatchery coho salmon are studies have shown that native fish tend the states, and certain tribes. Coho allowed to be harvested in the Rogue to be less susceptible to these pathogens salmon ocean harvest is managed by River. All other recreational coho than hatchery-reared fish (Buchanon et setting escapement goals for OCN coho salmon fisheries in the Oregon portion al., 1983; Sanders et al., 1992). salmon. This stock aggregate constitutes of this ESU are closed. In the Oregon Infectious disease is one of many the largest portion of naturally- Coast ESU, recreational fisheries for factors that can influence adult and produced coho salmon caught in ocean coho salmon are limited to three rivers: juvenile survival (Buchanan et al., salmon fisheries off California and North Fork Nehalem River (primarily a 1983). Disease may be contracted by Oregon (PFMC, 1993). The PFMC hatchery run), Trask River, and Yaquina direct infection with waterborne prohibited the retention of coho salmon River. Regulations for the latter two pathogens or by interbreeding with in both the commercial and recreational rivers allow only marked hatchery fish infected hatchery fish (Fryer and salmon fisheries along the entire west to be kept. With the marking of all Sanders, 1981; Evelyn et al., 1984 and coast in 1994. A similar action hatchery fish, the Nehalem River 1986). Salmonids typically are exposed prohibiting the retention of coho salmon recreational fishery will also be limited to a variety of pathogens throughout in all salmon fisheries south of Cape to harvest of marked hatchery coho their life; however, disease results only Falcon (on the northern Oregon coast) salmon in the near future. when the complex interaction among host, pathogen, and environment is was implemented in 1995. These Collection for scientific research and altered. actions were taken because of the educational programs is believed to depressed status of Oregon and Many natural and hatchery coho have had little or no impact on coho salmon populations throughout California coastal coho salmon stocks in salmon populations in these ESUs. In 1994 and 1995 and are believed to have California’s coast have tested positive both California and Oregon, most of the immediately benefitted these stocks by for Renibacterium salmoninarum, the scientific collection permits are issued increasing escapement. causative bacterium of BKD (Cox, 1992; New OCN coho salmon adult spawner to environmental consultants, Federal Foott, 1992). For example, in the Central escapement rebuilding criteria and resource agencies, and universities by California Coast ESU, the overall associated fishery management strategy the CDFG and the ODFW. Regulation of prevalence of BKD measured by direct for OCN are currently being proposed by take is controlled by conditioning fluorescent antibody technique among Oregon to the PFMC and NMFS and are individual permits. The state fish and Scott Creek coho salmon was 100 described in more detail in the OCSRI wildlife agencies require reporting of percent (13/13 fish) and 95.5 percent (1997). Key provisions of this any coho salmon taken incidentally to (21/22 fish) among San Lorenzo River management strategy include: (1) other monitoring activities; however, no coho salmon (Cox, 1992). The CDFG Disaggregation of OCN stock into four comprehensive total or estimate of coho recently initiated a treatment protocol to components for better management of salmon mortalities related to scientific attempt to control BKD outbreaks in weaker stock units; (2) setting new adult sampling is kept for watersheds in hatchery fish released into the Russian spawner escapement rebuilding criteria either state. Neither CDFG (F. Reynolds, River and Scott Creek (Cox, 1992). The for each component derived from a pers. comm.) nor ODFW (R. Temple, impacts of this disease are subtle. model based on freshwater habitat pers. comm.) believe that mortalities, as Juvenile salmonids may survive well in assessment and production capability; regulated by the states’ permitting their journey downstream but may be and (3) establishing future coho salmon processes, are detrimental to coho unable to make appropriate changes in fishery-related exploitation rates under salmon in California and Oregon. kidney function for a successful Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24595 transition to sea water (Foott, 1992). salmonids and their populations are salmonids are then exposed to days or Stress during migration may also cause increasing. This raises concerns over the weeks of pinniped predation at these overt disease (Schreck, 1987). Water negative impacts of predation on small sites until sufficient rainfall occurs or quantity and quality during late summer salmonid populations, particularly higher tides allow access to the river or is a critical factor in controlling disease when the pinnipeds co-occur with stream. During successive years of epidemics. As water quantity and depressed salmonid populations in drought, the situation is exacerbated quality diminishes, stress may trigger estuaries and rivers during salmonid because the river mouths are open only the onset of these diseases in fish that migrations (NMFS, 1997c). The intermittently during the salmonid are carrying the infectious agents (Holt observations of steelhead predation by spawning season. Downstream et al., 1975; Wood, 1979; Matthews et California sea lions at the Ballard Locks migrating smolts also become more al., 1986; Maule et al., 1988). in Seattle, WA, show that a significant vulnerable to pinniped and bird Freshwater predation by salmonids proportion (65 percent) of an entire predation in these conditions as they and other fishes is not believed to be a salmonid run can be consumed by sea congregate in the lagoons formed near major factor contributing to the decline lions (Scordino and Pfeifer, 1993) and the river mouth until it opens up to the of coho salmon in the Oregon Coast and this clearly demonstrates that the sea. Southern Oregon/Northern California combination of high local predator It is unlikely that pinniped predation Coast ESUs, although it could be a factor abundance during salmonid migrations, was a significant factor in the decline of for some individual populations. For restricted passage, and depressed fish coho salmon populations on the west example, predation by exotic stocks can result in significant impacts coast; there have been no specific warmwater fish is believed to be a major on local salmonid populations (NMFS, studies that demonstrate a cause-effect factor limiting the production in 1997c). Unfortunately, there are only a relationship between increases in Tenmile Lake, formerly one of the few areas on the west coast, other than pinniped numbers and declines in largest producers of coho salmon along the Ballard Locks, where studies have salmonid populations. However, with the Oregon coast (Reimers, 1989). documented the influence of pinniped reduced salmonid populations and Higgins et al. (1992) and CDFG (1994) predation on local salmonid increased pinniped populations, reported that Sacramento River populations. In the Puntledge River pinniped predation can be a factor squawfish have been found occupying estuary in British Columbia, Bigg et al. affecting the recovery of some salmonid anadromous salmonid habitat (1990) observed Pacific harbor seals populations. Pinniped predation on throughout the Eel River basin and are surface feeding on salmonids and small salmonid populations, especially considered to be a serious threat to documented predation rates of up to 46 at areas of restricted fish passage, can native coho salmon. Avian predators percent of the returning adult fall have negative impacts on the recovery have been shown to impact some chinook. In the same river, observations of depressed salmonids. Seasonal juvenile salmonids in freshwater and of harbor seal predation on coho salmon predation by pinnipeds on some nearshore environments. Ruggerone smolts in 1995 indicated that the seals salmonid populations has been (1986) estimated that ring-billed gulls consumed 15 percent of the total observed, and a significant negative consumed 2 percent of the salmon and production. Predation on coho salmon impact on at least one salmonid steelhead trout passing Wanapum Dam, has also been observed at the Ballard population has been documented (i.e., in the Columbia River, during the spring Locks with a single California sea lion winter steelhead migrating through the Ballard Locks). Pinniped impacts on smolt outmigration in 1982. Wood documented to have consumed 136 (1987) estimated that the common salmonids are more likely due to coho salmon in 62 hours (2.1 coho merganser, a known freshwater predator opportunistic behavior by certain salmon per hour) (NMFS, 1997c). of juvenile salmonids, were able to individual pinnipeds that have learned Although there have been no specific consume 24 to 65 percent of coho to exploit situations where salmonids studies in any coastal estuary on the salmon production in coastal British are concentrated and particularly west coast on impacts of pinniped Columbia streams. Known avian vulnerable rather than being strictly predation, it is known that pinniped predators in the nearshore marine related to pinniped population size. As foraging on coho salmon can be environment include herons, the number of pinnipeds increases, extensive based on ancillary cormorants, and alcids (Allen, 1974). however, the likelihood of more information from hatcheries that have Cooper and Johnson (1992) and Botkin pinnipeds discovering these situations et al. (1995) reported that marine documented pinniped scarring on 11–20 increases, as does the opportunity to mammal and avian predation may occur percent of the returning coho salmon pass on such learned behavior to other on some local salmonid populations; (NMFS, 1997c). pinnipeds. however, they believed that it was a In many of the small coastal rivers All in all, the relative impacts of minor factor in the decline of coastwide and streams in southern Oregon and marine predation on anadromous salmonid populations. With the northern California, there is a situation salmonids are not well understood, but decrease in quality riverine and that makes returning adult coho salmon marine predation was not likely a major estuarine habitats, increased predation and winter steelhead more vulnerable to factor in the coho salmon decline, by freshwater, avian, and marine pinniped predation than larger systems although it can be a factor in the predators will occur. With the decrease (NMFS, 1997c). In low rainfall years, or recovery of some localized coho salmon in avoidance habitat (e.g., deep pools when rain arrives late in the winter stocks. Normally, predators play an and estuaries, and undercut banks) and season, small coastal rivers do not flow important role in the ecosystem, culling adequate migration and rearing flows, with sufficient volume to open the out unfit individuals, thereby predation may play a role in the beach crest and flow into the sea. Low strengthening the species as a whole. reduction of some localized coho tide periods also create or compound The increased impact of certain salmon stocks. this condition in low-flowing small predators has been, to a large degree, the California sea lions and Pacific harbor rivers and streams. During such periods, result of ecosystem modification. seals (which occur in most estuaries and adult fish arrive and accumulate in Therefore, it would seem more likely rivers where salmonid runs occur on the nearshore waters just offshore of the that increased predation is but a west coast) are known predators of closed-off river mouth. The adult symptom of a much larger problem, 24596 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations namely, habitat modification and a salvage logging is also an area where upper portions of the watershed. The decrease in water quantity and quality. better environmental review and quality of downstream habitats is monitoring could provide NMFS with determined, in part, by the timing and D. Inadequacy of Existing Regulatory the information to determine whether amount of organic and inorganic Mechanisms this practice impacts coho salmon. materials provided by these small Habitat Management There have been several reviews of streams (Chamberlin et al. in Meehan, 1. Northwest Forest Plan (NFP). The the current CFPRs and particularly the 1991). Given the existing depleted NFP is a Federal program with rules associated with the Water/lake condition of most riparian forests on important benefits for coho salmon, as Protection Zones (WLPZs) for their non-Federal lands, the time needed to described below (see Federal adequacy in protecting aquatic attain mature forest conditions, the lack dependent species such as coho salmon. Conservation Efforts). While the NFP of adequate protection for non-riparian Most reviews have shown that covers a very large area, the overall LWD sources in landslide-prone areas implementation and enforcement of the effectiveness of the NFP in conserving and small headwater streams (which current rules are not adequate in Oregon and California coho salmon is account for about half the wood found protecting coho salmon or their habitats limited by the extent of Federal lands naturally in stream channels) (Burnett (CDFG, 1994; Murphy, 1995). NMFS’ and the fact that Federal land ownership and Reeves, 1997, citing Van Sickle and inability to assess the adequacy of the is not uniformly distributed in Gregory, 1990; McDade et al., 1990; and CFPRs is primarily due to the lack of McGreary, 1994), and current rotation watersheds within the affected ESUs. In published documentation that the schedules (approximately 50 years), some areas, Federal lands tend to be CFPRs are functioning to protect coho there is a low probability that adequate located in the upper reaches of salmon. NMFS is currently reviewing LWD recruitment could be achieved watersheds or river basins, upstream of the CFPRs so that discussions can be under the current requirements of the lower gradient river reaches that were opened with CDF to determine where OFPA. Also, the OFPA does not historically important for coho salmon improvements in the language and adequately consider and manage timber production. In other areas, particularly definition of the CFPRs would be harvest and road construction on Bureau of Land Management (BLM) beneficial. sensitive, unstable slopes subject to ownership, Federal lands are distributed The CDF has recently proposed 15 mass wasting, nor does it address in a checkerboard fashion, resulting in amendments to the CFPRs that would cumulative effects. fragmented landscapes. Both of these become effective on January 1, 1998, if 3. Dredge, Fill, and Inwater Federal land distribution factors place approved by the BOF. The proposed Construction Programs. The Army constraints on the ability of the NFP to changes are a positive sign that CDF Corps of Engineers (COE) regulates achieve its aquatic habitat restoration recognizes the need to provide a higher removal/fill activities under section 404 objectives at watershed and river basin level of protection to stream side zones, of the CWA, which requires that the scales and highlight the importance of provide for additional control of COE not permit a discharge that would complementary salmon habitat sediment inputs from road construction ‘‘cause or contribute to significant conservation measures on non-Federal and harvest operations, and clarify degradation of the waters of the United lands within the subject ESUs. conditions for exemptions in stream States.’’ One of the factors that must be 2. State Forest Practices. The zones. However, the adoption of the considered in this determination is California Department of Forestry and proposed changes to the CFPRs is cumulative effects. However, the COE Fire Protection (CDF) enforces the State uncertain at this time. guidelines do not specify a methodology of California’s forest practice rules The BOF’s Monitoring Study Group to be used in assessing cumulative (CFPRs) which are promulgated through (MSG) has developed a Long-Term impacts or how much weight to assign the Board of Forestry (BOF). The CFPRs Monitoring Program (LTMP) for them in decision-making. In 1996 the contain provisions that can be assessing the effectiveness of the CFPRs Portland District Office of the COE protective of coho salmon if fully in protecting water quality. The MSG issued approximately 250 section 404 implemented. However, NMFS believes recently published a report on its Pilot permits for removal/fill in Oregon. The that the ability of the CFPRs to protect Monitoring Program for the LTMP COE does not have in place any process coho salmon can be improved, (January, 1997) which evaluated canopy to address the additive effects of the particularly in the area of developing retention in 50 randomly selected THPs continued development of waterfront, properly functioning riparian habitat. in Mendocino and Humboldt Counties. riverine, coastal, and wetland For this reason, NMFS is attempting to The Pilot Study found that canopy properties. improve the condition of riparian retention was higher (70 percent) in the The Oregon Division of State Lands buffers in ongoing habitat conservation THPs which were evaluated than the (DSL) manages the state-permitted plan negotiations with private minimum required by the CFPRs (50 portion of the removal fill laws. Oregon landowners. Specifically, the CFPRs do percent). intends to halt habitat degradation not adequately address large woody The Oregon Forest Practices Act through the development of debris recruitment, streamside tree (OFPA), while modified in 1995 and standardized permit conditions retention to maintain bank stability, and improved over the previous OFPA, does incorporating best management canopy retention standards that assure not have implementing rules that practices for Removal-Fill activities and stream temperatures are properly adequately protect coho salmon habitat. through strengthening interagency functioning for all life stages of coho In particular, the current OFPA does not coordination in Removal-Fill salmon. The current process for provide adequate protection for the permitting. The DSL also does not approving Timber Harvest Plans (THPs) production and introduction of large currently have methods to assess, under the CFPRs does not include woody debris (LWD) to medium, small analyze, or manage cumulative effects. monitoring of timber harvest operations and non-fish bearing streams. Small 4. Water Quality Programs. The to determine whether a particular non-fish bearing streams are vitally Federal CWA is intended to provide for operation damaged habitat and, if so, important to the quality of downstream the protection of beneficial uses, how it might be mitigated in future habitats. These streams carry water, including fishery resources. To date, THPs. The CFPR rule that permits sediment, nutrients, and LWD from implementation has not been effective Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24597 in adequately protecting fishery commitment within the agreed upon Since 1994, the PFMC has resources, particularly with respect to time frame. recommended harvest rates of 10–13 non-point sources of pollution. In The ability of these TMDLs to protect percent even though regulations Oregon, water quality standards are coho salmon in Oregon and California is allowed up to a 20 percent harvest rate implemented by the DEQ pursuant to expected to be significant in the long- during the same time period. Since section 303(c) of the CWA. DEQ is term; however, it will be difficult to 1994, the PFMC also has recommended required by section 303(d)(1) (C) and (D) develop them quickly in the short-term prohibiting the retention of coho salmon of the CWA to prepare Total Maximum and their efficacy in protecting coho south of Cape Falcon, OR, which has Daily Loads (TMDLs) for all water salmon habitat will be unknown for resulted in relatively low levels of bodies that do not meet State water years to come. incidental mortality. Oregon also has quality standards. 5. State Agricultural Practices. begun marking all hatchery fish so that TMDLs are a method for quantitative Historically, the impacts to fish habitat natural escapements can be more assessment of environmental problems from agricultural practices have not accurately quantified. Oregon has in a watershed and identifying pollution been closely regulated. The Oregon proposed that the PFMC amend its reductions needed to protect drinking Department of Agriculture has recently ocean fisheries regulations to adopt the water, aquatic life, recreation, and other completed guidance for development of OCSRI harvest framework. use of rivers, lakes, and streams. TMDLs agricultural water quality management Fisheries management of coho salmon may address all pollution sources, plans (AWQMPs) (as enacted by State in Oregon state waters inside the 3-mile including point sources such as sewage Senate Bill 1010). Plans that are (5 km) limit historically had similar or industrial plant discharges, and non- consistent with this guidance are likely problems and contributed to the overall point discharges such as runoff from to achieve state water quality standards. decline. In more recent years, however, roads, farm fields, and forests. The CWA It is open to question, however, whether state angling regulations have required gives state governments the primary they will adequately address salmonid the release of all naturally-produced responsibility for establishing TMDLs, habitat factors, such as properly coho salmon in the Oregon portion of functioning riparian conditions. Their however, EPA can also develop them. the Southern Oregon/Northern ability to address all relevant factors California Coast ESU. The harvest Oregon DEQ entered into a consent will depend on the manner in which measures and associated monitoring decree in 1987 to develop at least two they are implemented. AWQMPs are plan in the OCSRI will provide a TMDLs per year. The Healthy Streams anticipated to be developed at a basin significantly better framework from Partnership describes a general scale, so the entirety of coastal Oregon which PFMC and Oregon will manage approach to address non-point source may be covered. AWQMPs include their coho salmon fisheries. water quality problems in Oregon, regulatory authority and enforcement Oregon currently manages several particularly with respect to agricultural provisions. The Healthy Streams populations of non-indigenous fish activities. If Oregon’s Healthy Streams Partnership schedules adoption of species (e.g., striped, largemouth, and Partnership is fully funded, DEQ AWQMPs for all impaired waters by smallmouth bass) for optimal expects to complete all TMDLs for all 2001. recreational fisheries. These fish were in impaired coastal watersheds within 10 6. State Urban Growth Management. many cases introduced into Oregon years. Oregon’s guidance for non-point On lands inside Oregon’s urban growth waters in violation of Oregon law. source TMDLs includes an boundaries, some upgraded riparian Scientists have documented that at least implementation component that is area protection will be afforded by the in some circumstances, the presence of lacking in prior non-point source newly revised requirements for these non-indigenous species has TMDLs nationwide. Since the beneficial statewide planning Goal 5. Local reduced or eliminated coho salmon use of salmonid fishes is most often governments will amend their local populations (OCSRI 1997). The ongoing affected by the largely non-point source comprehensive plans to implement management applied to these exotic fish sediment and temperature impairments, these new requirements. Unfortunately, species, in certain locales, may not be this advance in non-point source Goal 5 does not require establishment consistent with the goals of the ESA. TMDLs may be important. The and protection of riparian vegetation to The OCSRI contains provisions to development of strong TMDLs to cover provide adequate large woody debris review the science and management all water quality impaired coastal waters and allows limited road building in direction pertinent to the interaction of could contribute substantially to coho riparian areas. non-indigenous fish species and coastal salmon recovery. coho salmon. Results of this review will Harvest Management The CWA gives state governments the guide NMFS and Oregon in the future primary responsibility for establishing Harvest of coho salmon in Federal management or actions addressing TMDLs. However, EPA is required to do waters off the west coast is managed by interactions of these species with coho so if a state does not meet this the PFMC and NMFS. Harvest of salmon. responsibility. In California, as a result California and Oregon coastal coho The State of California has of recent litigation, the EPA has made a salmon has been managed based on jurisdiction over ocean salmon fishing legal commitment guaranteeing that achieving adequate escapement of OCN within 3 miles (5 km) of the coast either EPA or the State of California will coho salmon. Despite annual offshore California. Subsequent to establish TMDLs, which identify management and use of best available NMFS’s implementation of ocean pollution reduction targets, for these 18 scientific information, spawning salmon harvest regulations for the impaired river basins in northern escapements have declined significantly Exclusive Economic Zone, the California by the year 2007. The State of over the past 20 years. Prior to 1994, California Fish and Game Commission California has made a commitment to harvest rates on OCN coho salmon were (CFGC) and CDFG, respectively, establish TMDLs for approximately half too high for the poor ocean conditions conform the State’s ocean salmon the 18 river basins by 2007. The EPA that are now realized to have been regulations for commercial and will develop TMDLs for the remaining occurring. Further, declining numbers sportfishing within the 3-mile (5 km) basins and has also agreed to complete of natural spawning fish were masked limit to those adopted by NMFS. In all TMDLS if the state fails to meet its by high stray rates of hatchery fish. most years the CFGC and CDFG issue 24598 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations regulations that conform fully with no more than 10 percent hatchery operate and returning fish to the river Federal ocean salmon regulation. strays. from which they were taken. Release of The CFGC is also responsible for In California, the CDFG directly hatchery fish occurs in streams with issuing in-river sportfishing regulations operates artificial propagation programs stocks similar to the native runs. Efforts in California. At present, the state’s for coho salmon at three hatcheries in are made to return hatchery fish to their sportfishing regulations continue to the Southern Oregon/Northern natal streams, and they are held for an allow fishing for coho salmon in the California Coast ESU. These include acclimation period to increase the inland waters of the Southern Oregon/ Iron Gate Hatchery, Trinity River probability of imprinting. In contrast, Northern California Coast ESU, and the Hatchery, and the Mad River Hatchery. the Mad River Hatchery has used Commission has not proposed to take The CDFG has recently developed numerous out-of-basin and out-of-state action in the event the ESU is listed production goals and constraints for coho salmon stocks. A review of CDFG under the Federal ESA. both the Iron Gate and Trinity River hatchery production and planting The contribution of coho salmon to Hatchery programs (CDFG, 1997a). Both records indicates that coho salmon the in-river sport catch is unknown for hatcheries now operate under goals and smolts still continue to be planted in most California watersheds, as are losses constraints which specify use of adults streams other than that where the due to injury and mortality from returning to the hatcheries and prohibits hatchery is located. These out-of-stream incidental capture in other state- use of stocks from other drainages for plants have occurred both in other coho authorized fisheries such as steelhead. spawning and rearing. Transfer of salmon ESUs and in other basins within However, the CDFG has conducted production to outside drainages is individual ESUs. In addition, there are limited in-river monitoring of coho generally prohibited, but can occur inadequate CDFG resources to tag salmon harvest by anglers in the Trinity under some circumstances. Additional enough hatchery coho salmon to River above Willow Creek since 1977, privately-owned and operated hatchery monitor return rates and rates of and estimates that in-river angler programs for coho salmon are straying (CDFG 1995). harvest for coho salmon in this reach of conducted in Rowdy Creek (Rowdy The CFGC has also developed specific the Trinity River has averaged 598 coho Creek Hatchery), the Eel River (Hollow policies for Private Non-profit salmon harvested per year. Current state Tree Creek Hatchery), and in the Hatcheries (section 1170–1175 of the funding and personnel resources are not Mattole River. Other smaller programs Fish and Game Code) and Cooperative available to implement comprehensive that are not currently propagating coho Salmon and Steelhead Rearing Facilities monitoring programs to evaluate the salmon are in Freshwater Creek and (sections 1200–1206 of the Fish and magnitude of in-river harvest impacts in Prairie Creek. Game Code) that have been incorporated California. In the past, non-native coho salmon into the Fish and Game Code. These stocks have been introduced as Hatchery Management policies are intended to ensure that the broodstock in hatcheries and widely bulk of the state’s salmon and steelhead Oregon has adopted a Wild Fish transplanted in many coastal rivers and Policy that guides many aspects of resources are produced naturally and streams in the California portion of the that the state’s goals of maintaining and hatchery use, their broodstock Southern Oregon/Northern California protocols, and the degree of interaction increasing natural production take Coast ESU (Weitkamp et al., 1995). precedence over the goals of between hatchery and wild fish. This Because of problems associated with policy has improved many hatchery cooperatively operated rearing this practice, CDFG developed its programs. Privately owned rearing and operations throughout Oregon with Salmon and Steelhead Stock hatchery programs for coho salmon in respect to the protection of wild fish Management Policy. This policy the Southern Oregon/Northern populations and their genetic diversity. recognizes that such stock mixing is California Coast ESU are operated in However, full and prompt detrimental and seeks to maintain the implementation of the policy has not accordance with these policies. genetic integrity of all identifiable In its comments on the proposed rule occurred and Oregon continues to make stocks of salmon and steelhead in program adjustments to achieve fish (CDFG, 1995), CDFG stated that its coho California, as well as minimize salmon hatchery programs can be management consistent with the interactions between hatchery and integrated into recovery plans for each purposes of the policy and the Federal natural populations. To protect the ESU within California through re- ESA. genetic integrity of salmon and evaluation of each hatchery’s goals and One provision of the Wild Fish Policy steelhead stocks, this policy directs constraints with program modifications is that hatcheries using local broodstock CDFG to evaluate each salmon and where appropriate. In a letter dated and managed according to specific steelhead stream and classify it March 7, 1997 (CDFG, 1997b), CDFG protocols can contribute up to 50 according to its probable genetic source reiterated its view that its coho salmon percent of the number of fish spawning and degree of integrity. However, this hatchery programs are compatible with in the natural habitat. NMFS believes has not yet been accomplished by the the recovery of coho salmon and other this 50 percent guideline can be state. appropriate when the hatchery fish are Although non-native coho salmon at-risk salmon and steelhead part of a recovery program needed to stocks have been introduced in the populations in California. boost an at-risk population. However, Southern Oregon/Northern California E. Other Natural or Human-Made current scientific information indicates Coast ESU, most hatchery programs are Factors Affecting Its Continued that it is not appropriate in hatchery now being conducted without the Existence programs intended to enhance import of broodstock from other ESUs in populations for the purposes of accordance with CDFG’s policy. With Natural Factors increased harvest. Consequently the exception of the Mad River Long-term trends in rainfall and discussions between NMFS and ODFW Hatchery, hatchery programs in this marine productivity associated with have resulted in the OCSRI including a ESU are being operated as atmospheric conditions in the North measure to manage coho salmon supplementation hatcheries rather than Pacific Ocean likely have a major hatchery and harvest programs so that production hatcheries. They are taking influence on coho salmon production. natural spawning populations contain eggs from the rivers in which they Numerous comments received by NMFS Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24599 underscored both the importance and sedimentation from natural erosive the greatest. This study also stressed uncertainties surrounding natural processes (California Advisory that landslides were highly correlated environmental fluctuations, but few Committee on Salmon and Steelhead with management activities and provided substantive new information. Trout, 1988; CSLC, 1993; FEMAT, originated from recent clear-cuts and Some commenters thought that recent 1993). Judsen and Ritter (1964), the forest roads at much higher frequencies coho salmon declines were merely California Department of Water than from wilderness or unmanaged reflective of a natural production cycle Resources (CDWR, 1982), and the areas. In addition to these observations, while others believed that declines had California State Lands Commission Pacific Watershed Associates concluded been exacerbated by human influences, (CSLC, 1993) have stated that that the floods may have had long-term especially on freshwater habitats. northwestern and central coastal effects on watershed habitats. For Populations that are fragmented or California have some of the most example, they suggested that materials reduced in size and range are more erodible terrain in the world. Several destabilized but not mobilized by the vulnerable to extinction by natural studies have indicated that, in this flood may remain unstable and therefore events. Whether recent climatic region, catastrophic erosion and be susceptible to future flood events for conditions represent a long-term change subsequent stream sedimentation (such some time, materials deposited in that will continue to affect salmonid as during the 1955 and 1964 floods) streams and rivers may persist for stocks in the future or whether these resulted from areas which had been decades, and the impact to larger changes are short-term environmental clearcut or which had roads constructed streams and rivers may actually increase fluctuations that can be expected to on unstable soils (Janda et al., 1975; over a period of several years as reverse in the near future remains Wahrhaftig, 1976; Kelsey, 1980; Lisle, sediment is moved downstream. unclear. Many of the coho salmon 1982; Hagans et al., 1986). With regard to impacts to in-stream population declines began prior to these As streams and pools fill in with coho salmon habitat, changes due to recent drought conditions. sediment, flood flow capacity is flooding were both positive and 1. Drought. Many areas of the Pacific reduced. Such changes cause decreased negative, depending on the area. For coast have experienced drought stream stability and increased bank example, ODFW surveys (Moore and conditions during much of the past erosion, and, subsequently, exacerbate Jones, 1997) identified some areas with decade, a situation that has undoubtedly existing sedimentation problems (Lisle, many new channels cut, which could contributed to the decline of many 1982), including sedimentation of provide off-channel habitat for coho salmonid populations. Drought spawning gravels and filling of pools salmon. In the Tillamook Bay basin, the conditions reduce the amount of water and estuaries. Channel widening and Wilson River received major negative available, resulting in reductions (or loss of pool-riffle sequence due to impacts, while the Tillamook and Trask elimination) of flows needed for adult sedimentation has damaged spawning Rivers received little impact. Siuslaw coho salmon passage, egg incubation, and rearing habitat of all salmonids. By National Forest (SNF, 1996) reported and juvenile rearing and migration. 1980, the pool-riffle sequence and pool that the February 1996 flooding actually There are indications in tree ring quality in some California streams still increased positive habitat changes records that droughts more severe than had not fully recovered from the 1964 (increased pool area and quality, the drought that California recently regional flood. In fact, Lisle (1982) and increased cover complexity, and shift experienced occurred in the past (Stine Weaver and Hagans (1996) found that from bedrock, boulder and cobble 1994). Aside from the critical role that many Pacific coast streams continue to substrates to gravel and sand) in many habitat complexity plays in providing show signs of harboring debris flow smaller streams in areas undergoing fish with instream refugia during from the 1964 flood. Such streams have habitat improvement projects but not in drought conditions, the key to survival remained shallow, wide, warm, and adjacent, untreated reaches, nor in in this type of variable and rapidly unstable. habitat improvement projects in large changing environment is the evolution More recently, between November streams. Bush et al. (1997) noted that of behaviors and life history traits that 1995 and April 1996, the Pacific decreases in pool area ranged from 10– allow coho salmon to cope with a Northwest experienced a rare series of 50 percent, and largely resulted from a variety of environmental conditions. storm and flood events. High winds, 60-percent loss of beaver pond habitat 2. Floods. With high inherent erosion heavy rainfall, rapid snowmelt, (which provide critical overwinter coho risk, urban encroachment, and intensive numerous landslides and debris salmon habitat). Large woody debris timber management, flood events can torrents, mobilization of large woody decreased by approximately 25 percent cause major soil loss (Hagans et al., debris and high runoff occurred over from the initial surveys, although much 1986; Nawa et al., 1991; Higgins et al., portions of Oregon, Washington, Idaho, of the lost wood had been pushed up 1992). As previously mentioned, and Montana (USFS and BLM, 1996). onto the floodplain or out of the active sedimentation of stream beds has been These storms, which resulted in 100- channel. Overall, large amounts of implicated as a principal cause of year floods in some Oregon coastal gravel were added to most streams, and declining salmonid populations basins, also had a potentially large effect new gravel bars were common. throughout their range. Floods can on the survival of Oregon coast coho Recent stream production studies result in mass wasting of erodible salmon and the freshwater habitats conducted by ODFW (Solazzi and hillslopes and failure of roads on upon which they depend. Aerial Johnson, 1997) indicate that 1996 smolt unstable slopes causing catastrophic surveys from a study by Pacific production in four central Oregon coast erosion. In addition, flooding can cause Watershed Associates (PWA undated) in study streams were lower than recent scour and redeposition of spawning the middle Coast Range of Oregon noted averages, with overwinter survival the gravels in typically inaccessible areas. that areas with the greatest impact were lowest or second lowest on record for During flood events, land typically watersheds with a the two streams for which estimates disturbances resulting from logging, combination of steep slopes, unstable were made, and that age zero fish road construction, mining, urbanization, bedrock geology, recent timber production was also low. They livestock grazing, agriculture, fire, and harvesting, high road densities, and concluded that the most significant other uses may contribute sediment within the altitude range where impact of the flooding was on juveniles directly to streams or exacerbate precipitation intensities were probably and coho salmon eggs that were in the 24600 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations gravel at the time of the flood. While fish, cephalopods, and zooplankton Manmade Factors—Artificial these results are based on a small (Brodeur and Ware, 1992); Propagation sample of streams and may not reflect oceanographic properties such as average effects of the floods, it suggests current transport (Royer, 1989), sea Potential problems associated with that 1997 and 1998 adult returns to surface temperature and upwelling hatchery programs include genetic some coastal basins will be reduced by (Holowed and Wooster, 1991); and impacts on indigenous, naturally- reproducing populations, disease the floods. Longer-term effects of the atmospheric phenomena such as transmission, predation of wild fish, floods can also be expected to vary atmospheric circulation patterns, sea- difficulty in determining wild stock among basins, but most reports available surface pressure patterns, and sea- status due to incomplete marking of to us suggest that long-term effects surface wind-stress (Trenberth, 1990; hatchery fish, depletion of wild stock to should generally be neutral or slightly Trenberth et al., 1993). beneficial (e.g., from sediment removal increase brood stock, and replacement and increased off-channel habitat) to Finally, Scarnecchia (1981) reported rather than supplementation of wild coho salmon. that near-shore conditions during the stocks through competition and 3. Ocean Conditions and El Nin˜ o. spring and summer months along the continued annual introduction of Large fluctuations in Pacific salmon California coast may dramatically affect hatchery fish (Waples, 1991; Hindar et catch have occurred during the past year-class strength of salmonids. Bottom al., 1991; Stewart and Bjornn, 1990). All century. Annual world harvest of Pacific et al. (1986) believed that coho salmon things being equal, the more hatchery salmon has varied from 772 million kg along the Oregon and California coast fish that are released, the more likely in the 1930s to about 409 million kg in may be especially sensitive to upwelling natural populations are to be impacted 1977 and back to 818 million kg by 1989 patterns because these regions lack by hatchery fish. Similarly, the more (Hare and Francis, 1993). Mechanisms extensive bays, straits, and estuaries, genetically similar hatchery fish are to linking atmospheric and oceanic such as those found along the natural populations they spawn with, physics and fish populations have been Washington, British Columbia, and the less change there will be in the suggested for Pacific salmon (Rogers, Alaskan coast, which could buffer genetic makeup of future generations in 1984; Nickelson, 1986; Johnson, 1988; adverse oceanographic effects. They the natural population. Non-native coho Brodeur and Ware, 1992; Francis et al., speculate that the paucity of high salmon stocks have been introduced as 1992; Francis, 1993; Hare and Francis, quality near-shore habitat, coupled with broodstock in hatcheries and widely 1993; Ward, 1993). Many studies have variable ocean conditions, makes transplanted in many coastal rivers and tried to correlate the production or freshwater rearing habitat more crucial streams in Oregon and California marine survival of salmon with for the survival and persistence of many (Bryant, 1994; Weitkamp et al., 1995; environmental factors (Pearcy, 1992; coho salmon populations. NMFS, 1997a). Neeley, 1994). Vernon (1958), Holtby An environmental condition often Advancement and compression of run and Scrivener (1989), and Holtby et al. timing have been common phenomena (1990) have reported associations cited as a cause for the decline of west coast salmonids is the condition known in hatchery populations, and these between salmon survival and sea changes can affect future generations of surface temperature and salinity, as ‘‘El Nin˜ o.’’ El Nin˜ o is a warming of the Pacific Ocean off South America and naturally-reproducing fish. Fry of early- especially during the first few months spawning adults generally hatch earlier that salmonids are at sea. Francis and is caused by atmospheric changes in the tropical Pacific Ocean. During an El and grow faster and can thus displace Sibley (1991), Rogers (1984), and fry of later-spawning natural fish Cooney et al. (1993) also found Nin˜ o event, a plume of warm sea water flows from west to east toward South (Chapman, 1962). Conversely, early- relationships between salmon spawning coho salmon redds are more America, eventually reaching the coast production and sea surface temperature. prone to being destroyed by early fall where it is deflected south and north Some studies have tried to link salmon floods. Consequently, early-spawning along the continents. production to oceanic and atmospheric individuals may be unable to establish climate change. For example, Beamish El Nin˜ o ocean conditions are permanent, self-sustaining populations and Bouillon (1993) and Ward (1993) characterized by anomalously warm sea but may nevertheless adversely affect found that trends in Pacific salmon surface temperature and changes in existing natural populations (Solazzi et catches were similar to trends in winter thermal structure, coastal currents, and al., 1990). A recent study found that atmospheric circulation in the North upwelling. Principal ecosystem over a period of 13 years, the range of Pacific. alterations include decreases in primary Francis and Sibley (1991) and Francis spawning timing of coho salmon at five and secondary productivity and changes et al. (1992) have developed a model Washington hatcheries decreased from linking decadal-scale atmospheric in prey and predator species 10 weeks to 3 weeks, causing the range variability and salmon production that distributions. Several El Nin˜ o events of the period of return to the hatcheries incorporates hypotheses developed by have been recorded during the last to decrease by one-half (Flagg et al., Hollowed and Wooster (1991) and several decades, including those of 1995). Wickett (1967), as well as evidence 1940–41, 1957–58, 1982–83, 1986–87, Another common hatchery practice presented in many other studies. The 1991–92, and 1993–94. The degree to with coho salmon is release of ‘‘excess’’ model developed by Francis et al. which adverse ocean conditions can hatchery production into natural habitat (1992) describes a time series of influence coho salmon production was as fry or parr. Outplanting large biological and physical variables from demonstrated during the El Nin˜ o event numbers of large hatchery juveniles into the Northeast Pacific that appear to of 1982–83, which resulted in a 24 to 27 streams already occupied by naturally- share decadal-scale patterns. Biological percent reduction in fecundity and a 58 produced juveniles may place the and physical variables that appear to percent reduction (based on pre-return resident fish at a competitive have undergone shifts during the late predictions) in survival of adult coho disadvantage and may force them into 1970s include the following: Abundance salmon stocks originating from the marginal habitats that have low survival of salmon (Rogers, 1984 and 1987; Hare Oregon Production Index area (Johnson, potential (Chapman, 1962; Solazzi et al., and Francis, 1993) and other pelagic 1988). 1990). Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24601

Stock transfers of coho salmon were status review update (NMFS 1997a). determination (October 31, 1996, 61 FR common throughout the Oregon and These findings note that widespread 56211), it was noted that the State of California coast; the nature and spawning by hatchery fish continues to Oregon was planning to submit a peer- magnitude of these transfers varied by be a major concern for both the Oregon reviewed salmon restoration initiative area and basin. Compared to areas Coast and Southern Oregon/Northern (i.e., the Oregon Coastal Salmon farther north, hatcheries in central California Coast ESUs. Scale analyses to Restoration Initiative) for NMFS’ California and southern Oregon/ determine hatchery-wild ratios of consideration in the spring of 1997. northern California are relatively small naturally spawning fish indicate California was undertaking a similar and widely dispersed, given the size of moderate to high levels of hatchery fish effort, but it was less certain when its both areas. Northern California spawning naturally in many basins on plan would be completed. These plans hatcheries have received fairly large the Oregon coast, and at least a few were expected to contain detailed transplants of coho salmon from hatchery fish were identified in almost summaries and assessments of hatcheries in Washington and Oregon, every basin examined. Although it is conservation measures which benefit which have spread to central California possible that these data do not provide coho salmon in the respective states, through stock transfers. Because of the a representative picture of the extent of and hence aid NMFS in making a listing predominance of hatchery stocks in the this problem, they represent the best determination. The following sections Klamath River basin, stock transfers into information available at the present summarize these Federal and state Trinity and Iron Gate Hatcheries may time. In addition to concerns for genetic conservation efforts. have had a substantial impact on natural and ecological interactions with wild I. Federal Conservation Efforts. 1. populations in the basin and raises fish, these data also suggest that the NFP. The NFP is a Federal interagency serious concerns about their natural portion (i.e., fish born in the cooperative program, the Record of sustainability. Available information gravel) of the natural spawner Decision for Amendments to U.S. Forest indicates that virtually all of the abundance may be overestimated by Service (USFS) and BLM Planning naturally spawning fish in the Trinity ODFW and that the declines in recruits Documents Within the Range of the River are first generation hatchery fish. per spawner in many areas may have Spotted Owl, which was signed and In contrast, Cole Rivers Hatchery (on the been even more severe than current implemented in April 1994. The NFP Rogue River) appears to have relied estimates indicate (NMFS, 1997a). represents a coordinated ecosystem exclusively on native stocks. However, Oregon has made some management strategy for Federal lands In recent years, large hatcheries in significant changes in its hatchery administered by the USFS and BLM southern Oregon/northern California practices, such as substantially reducing within the range of the Northern spotted (e.g., Mad and Trinity River Hatcheries) production levels in some basins, owl (which overlaps considerably with have produced 400,000 to 500,000 switching to on-station smolt releases, the freshwater range of coho salmon). juveniles annually, while smaller and decreasing fry releases, and The NFP region-wide management hatcheries, and most hatcheries in proposes additional changes (discussed direction either amended or was central California, produce no more below), to address this and other incorporated into approximately 26 than 100,000 to 200,000 juveniles each concerns about the impacts of hatchery USFS land and resource management year. Most Oregon coastal hatcheries fish on natural populations. plans (LRMPs) and two regional guides. recently produced approximately While there are obvious concerns over The most significant element of the 400,000 to 1,400,000 juveniles annually, the negative effects of hatchery fish on NFP for anadromous fish is its Aquatic although private hatcheries (no longer wild coho salmon stocks, it is important Conservation Strategy (ACS), a regional- in operation) recently produced 2 to 5 to note that artificial propagation could scale aquatic ecosystem conservation million juvenile coho salmon annually. play an important role in coho salmon strategy that includes: (1) Special land Most historic transfers of coho salmon recovery and that some hatchery allocations, such as key watersheds, into Oregon coastal hatcheries used populations of coho salmon may be riparian reserves, and late-successional other Oregon coastal stocks. However, deemed essential for the recovery of reserves, to provide aquatic habitat some coastal hatchery programs threatened or endangered ESUs (e.g., if refugia; (2) special requirements for (notably private hatcheries no longer in the associated natural population(s) project planning and design in the form existence) made extensive use of Puget were already extinct or at high risk of of standards and guidelines; and (3) new Sound coho salmon stocks. Some extinction). Under these circumstances, watershed analysis, watershed transfers of Columbia River coho salmon NMFS would consider taking the restoration, and monitoring processes. into Oregon coastal hatcheries have administrative action of listing the These ACS components collectively occurred, but these were relatively hatchery fish. ensure that Federal land management infrequent and minor. Similarly, most actions achieve a set of nine Aquatic Efforts To Protect Oregon and outplants of coho salmon into Oregon Conservation Strategy objectives, which California Coho Salmon coastal rivers have used Oregon coastal include salmon habitat conservation. In stocks, with outplants of stocks from Under section 4 of the ESA, a recognition of over 300 ‘‘at-risk’’ Pacific other areas being relatively small and determination to propose a species for salmonid stocks within the NFP area infrequent. listing as threatened or endangered (Nehlsen et al., 1991), the ACS was NMFS received a number of requires considering the biological developed by aquatic scientists, with comments regarding the impacts of status of the species, as well as efforts NMFS participation, to restore and hatchery fish on wild coho salmon being made to protect the species. Since maintain the ecological health of populations. Some commenters the early 1990s Federal agencies, state watersheds and aquatic ecosystems on (including a peer reviewer) contended and local governments and private public lands. The ACS strives to that NMFS overstated the significance of parties have taken substantial measures maintain and restore ecosystem health impacts from hatchery fish on wild coho to protect coho salmon in Oregon and at watershed and landscape scales to salmon. NMFS has worked with the California. These measures affect protect habitat for fish and other state agency comanagers to resolve habitat, harvest, and hatchery activities. riparian-dependent species and uncertainties regarding these impacts, In the agency’s decision to invoke a resources and to restore currently and has documented these findings in a statutory extension for the listing degraded habitats. The approach seeks 24602 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations to prevent further degradation and to northernmost California watersheds, (FOTGs) to better assist landowners in restore habitat on Federal lands over including significant portions of the California and Oregon desiring to broad landscapes. Smith River basin (including the Smith implement voluntary conservation In the final rule listing Umpqua River River National Recreational Area, which measures protective of, or benefitting, cutthroat trout as endangered (August 9, is part of Six Rivers NF), the mid-to salmonids. A subset of the FOTGs are 1996, 61 FR 41514), NMFS upper Klamath basin (with the the guidance that local field offices acknowledged that NFP amendments to exception of Scott and Shasta Rivers), follow when engaging in actions that Federal LRMPs were ‘‘intended to and the Trinity River basin. may affect anadromous fish or their ultimately reverse the trend of aquatic 2. Other Federal Programs. Other habitats. ecosystem degradation and contribute significant federally funded and/or 3. Habitat Conservation Plans. NMFS toward recovery of fish habitat,’’ managed conservation programs or and the FWS are engaged in an ongoing however, it was noted at the time that activities in the California portion of the effort to assist in the development of the results of the NFP ACS were ‘‘yet to Southern Oregon/Northern California multiple species Habitat Conservation be demonstrated.’’ Following 3 years of Coast ESU include the Klamath Basin Plans (HCPs) for state and privately NFP implementation, NMFS Restoration Program, the Trinity River owned lands in both California and subsequently reviewed the adequacy of Basin Fish and Wildlife Restoration Oregon. While section 7 of the ESA 14 individual LRMPs, as modified by Program, the Action Plan for the addresses species protection on Federal the NFP and its ACS, for conserving Restoration of the South Fork Trinity lands, Habitat Conservation Planning Oregon Coast and Southern Oregon/ River Watershed and Fisheries, and under section 10 of the ESA addresses Northern California Coast coho salmon. Redwood National Park efforts to restore species protection on private (non- The results of these reviews are anadromous salmonid habitat in the Federal) lands. HCPs are particularly described in two conference opinions Redwood Creek basin. important since approximately 65 (NMFS, 1995 and 1997d) that document In addition to these major efforts, percent of the habitat in the range of NMFS’’ determinations that the NMFS is also engaged in significant these ESUs is in non-federal ownership. programmatic direction for Federal land ESA section 7 consultation actions on The intent of the HCP process is to several Federal projects or activities in management actions embodied in the 14 reduce conflicts between listed species the California portion of this ESU. These LRMPs would not be likely to and economic development activities, efforts include: (1) Consultation with jeopardize the continued existence of and to provide a framework that would the Bureau of Reclamation (BOR) Oregon Coast or Southern Oregon/ encourage ‘‘creative partnerships’’ concerning operations management of Northern California Coast coho salmon. between the public and private sectors the Klamath Project in the upper Moreover, the opinions concluded that and state, municipal, and Federal Klamath River basin to provide implementation of management agencies in the interests of endangered direction in the LRMPs and RMPs will adequate flows for anadromous and threatened species and habitat result in substantially improved habitat salmonids in the mainstem Klamath conservation (NRC, 1995). conditions for these ESUs over the next River, (2) consultation with the FWS few decades and into the future. and BOR to provide adequate flows and II. Oregon’s Coastal Salmon Improved habitat conditions will result temperatures for anadromous salmonids Restoration Initiative (OCSRI). in increased survival of the freshwater in the mainstem Trinity River, (3) Beginnings of the OCSRI. In October life stages of these fish. Implementation consultation with the COE to address 1995, Oregon’s Governor John Kitzhaber of actions consistent with the ACS gravel mining and other instream launched the OCSRI. One of the objectives and components—including activities, and (4) consultation with the Governor’s first steps was to establish a watershed analysis, watershed Federal Energy Regulatory Commission team approach for developing an action restoration, reserve and refugia land (FERC) concerning inter-basin water plan to restore the health of coastal allocations, and associated standards transfers from the Eel River to the salmon and trout populations. The and guidelines—will provide high Russian River (between the Southern following key teams were formed early levels of aquatic ecosystem Oregon/Northern California Coast ESU in the process: (1) A Salmon Strategy understanding, protection, and and Central California ESU) via Pacific Team in which the directors of key state restoration for aquatic habitat- Gas & Electric’s Potter Valley Project. agencies met with the Governor on a dependent species. These consultation efforts are expected biweekly basis; (2) an Outreach and Federal lands managed under the NFP to contribute significantly to the long- Education Team that was directed to comprise about 35 percent of the total term conservation of coho salmon and work with key agency stakeholders, ask area of the Oregon Coast coho salmon its habitat. Other Federal efforts in for their advice, and present ideas for ESU. This includes all or part of the Oregon include the South Slough their comment; (3) a Science Team to Siskiyou, Siuslaw, and Umpqua National Estuarine Research Reserve work on technical issues; and (4) an National Forests (NF); and the Coos Bay, located in Coos Bay, an upcoming Agency Planning & Implementation Eugene, Medford, Roseburg and Salem consultation on a hydropower facility Team to coordinate many aspects of the BLM Districts. Federal land ownership on the Umpqua River, continued road development of the conservation plan. in the Southern Oregon/Northern retirement and obliteration on Federal Senior NMFS staff members California Coast coho salmon ESU forest lands, and ongoing review of Elk participated as members of the Salmon represents approximately 53 percent of Creek Dam and Savage Rapids Dam on Strategy Team, the Science Team, and the total area of the ESU and includes the Rogue River and the proposed the Agency Planning & Implementation Federal land managed by the USFS, Milltown Hill Dam on the Umpqua Team. BLM, and National Park Service (NPS). River. This effort focussed each of the major The USFS lands, for example, include The Natural Resource Conservation state agencies on developing a plan, all or substantial portions of four Service (NRCS) assists agriculture in removing institutional barriers, and National Forests (Klamath NF, Six addressing impacts to anadromous fish. working through difficult issues with Rivers NF, Shasta-Trinity NF, and The NRCS is currently engaged with the their state and Federal colleagues, Mendocino NF). The vast majority of the NMFS in discussions about updating stakeholders, and the public. USFS land is concentrated in the their Field Office Technical Guides Meanwhile, the science team was Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24603 working on the biological Shortly thereafter, county dissimilar hatchery fish, competition underpinnings of the OCSRI. commissioners sponsored a series of with hatchery fish, predation by public information meetings to involve pinnipeds and sea birds, and interaction Essential Tenets of the OCSRI key groups and interested individuals in with exotic fishes. The OCSRI 1. The plan comprehensively the following locations: Astoria, incorporates measures presented by addresses all factors for decline of the Tillamook, Newport, Coos Bay, Grants state agencies and their stakeholders as coho salmon, most notably, those factors Pass, Gold Beach, Roseburg, and well as Federal agencies to address relating to harvest, habitat, and hatchery Portland. The Governor’s staff presented these factors for decline. activities. the draft OCSRI and explained the OCSRI Habitat Measures 2. Under this plan, all State agencies opportunities for public comment. More whose activities affect salmon are held than 550 people attended these public The OCSRI organized its habitat accountable for coordinating their meetings. The August 1996 OCSRI draft measures by the 17 habitat-related programs in a manner that conserves was critically reviewed and over 600 factors for decline listed above. This and restores the species and their pages of comments, suggestions, and organization enables an evaluation of habitat. This is essential because coastal questions on the draft Plan were the extent to which the OSCRI’s salmon have been affected by the received. Those comments were used by measures influence or reverse each of actions of many different state agencies. Oregon to revise the Plan. the factors for decline. Typically, more 3. The Plan includes a framework for In September 1996, NMFS published than one management sector (forestry, prioritizing conservation and restoration and distributed Coastal Salmon agriculture, urban, etc.) contributed to efforts. Draft coho salmon ‘‘core areas’’ Conservation: Working Guidance For each of the factors for decline. For are identified in order to focus measures Comprehensive Salmon Restoration example, forestry and agricultural on retaining current salmon strongholds Initiatives On the Pacific Coast (NMFS, measures both address several factors while rebuilding other areas. 1996d). The intent of the document was for decline, including loss of riparian 4. The Plan includes a comprehensive to help guide restoration initiatives such areas, channel morphology, substrate monitoring plan that coordinates as the OCSRI. The OCSRI was revised changes, instream roughness, water Federal, state, and local efforts to and supplemented in many areas in quality and sedimentation (NMFS, improve our understanding of response to that guidance. In early 1997b). freshwater and marine conditions, November 1996, William Stelle, Jr., On state lands, the Oregon determine populations trends, evaluate NMFS’ Northwest Regional Department of Forestry is preparing a the effects of artificial propagation, and Administrator, sent Governor Kitzhaber Northwest Oregon State Forest rate the OCSRI’s success in restoring the a package of substantive comments on Management Plan. The State of Oregon salmon. the August OCSRI draft. has indicated interest in working with 5. The Plan recognizes that actions to A second draft of the OCSRI was NMFS and FWS on a multiple-species conserve and restore salmon must be issued on February 24, 1997. Although HCP for approximately 600,000 acres in worked out by communities and time was short, Legislators, constituents, the Clatsop, Tillamook, and possibly landowners—those who possess local and NMFS technical staff reviewed this Elliott State Forests. These HCPs would knowledge of problems and who have a draft and provided additional contain aquatic conservation strategies genuine stake in the outcome. suggestions for improving the Plan. that meet the standards of section 10 of Watershed councils, soil and water Many of these were incorporated into the ESA. Additional HCPs with private conservation districts, and other the final document. As part of the landowners may increase the total grassroots efforts are the vehicles for Oregon Legislature’s consideration of acreage managed under protective HCPs getting this work done. the OCSRI, several more public hearings within this timeframe. 6. The Plan is based upon the were held and testimony was taken. In On private forested lands, the State of principles of adaptive management. March 1997, NMFS received the final Oregon developed new forest practices Through this process, there is an OCSRI for consideration in this coho regulations (effective July 1995) that explicit mechanism for learning from salmon listing decision. represent an improvement over past experience, evaluating alternative forest practices. The OCSRI also Addressing Coho Salmon Factors for provides some additional voluntary approaches, and making needed Decline changes in the programs and measures. measures on the part of industrial forest 7. The Plan includes an Independent The protective measures contained in landowners and small woodland owners Multidisciplinary Science Team (IMST). the OCSRI represent commitments by that focus on OCSRI core areas, The IMST’s purpose is to provide an various state agencies (and their including increased conifer retention in independent audit of the OCSRI’s stakeholders), watershed councils, the riparian management areas and in-unit strengths and weaknesses. They will aid forest industry, and the Federal leave tree placement for some fish and the adaptive management process by government to address coho salmon non-fish bearing streams. Another compiling new information into a yearly ‘‘factors for decline.’’ Factors for decline voluntary measure with significant review of goals, objectives, and identified in the OCSRI include: Loss/ promise is a road erosion and risk strategies, and by recommending degradation of riparian areas, changes in reduction measure that could reduce changes. channel morphology, changes in stream road-related sediment inputs, road 8. The Plan requires that a yearly substrate, loss of instream roughness related mass failures, and culvert report be made to the Governor, the (structure), fish passage impediments, problems. legislature, and the public. This will loss of estuarine rearing habitat, loss of On agricultural lands, the State of help the agencies make the adjustments wetlands, water quality degradation/ Oregon addresses coho salmon habitat described for the adaptive management sedimentation, changes in flow, protection and restoration through the process (above). elimination of habitat, harvest impacts 1993 Senate Bill (SB) 1010 (ORS on spawner escapement, illegal salmon 568.900–933) and its extension, the Development of the OCSRI catch, salmon bycatch, low ocean Healthy Streams Partnership (HSP). The The state distributed a draft OCSRI to productivity, loss of genetic adaptation purpose of SB1010 is to meet the interested parties in August 1996. through interbreeding with genetically requirements of the Federal CWA on 24604 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations agricultural lands. Complete and within that basin and in mixed-stock selective fisheries on hatchery coho successful implementation of the CWA, areas may be further restricted. salmon when conditions permit. and the State’s water quality programs, In the near term, Oregon proposes to Artificial propagation may be used to could substantially benefit coho salmon. limit ocean coho salmon harvest boost natural coho salmon populations The OCSRI’s greatest contribution is impacts (mostly incidental to the or reintroduce coho salmon into vacant that it provides a comprehensive harvest of chinook salmon) to low habitats, but only after specific framework for integrating habitat levels. As populations achieve management plans are developed and protection and restoration efforts by all abundance and productivity targets, reviewed. fisheries may be established to target entities, public and private. An Watershed Councils important innovation is the emphasis marked, unlisted hatchery coho salmon. upon voluntary citizen action, utilizing Ultimately, after high escapement levels Watershed councils are voluntary the industry and resource management have been achieved and evaluated, groups established to improve the expertise of local private property specific fisheries may be allowed that condition of the state’s watersheds. owners. Critical components of the take some unmarked, naturally- Oregon laid the foundation for its OCSRI that should contribute to habitat produced coho salmon from healthy statewide local watershed council restoration include watershed council populations, as other weaker program in 1993. That year, House Bill programs, monitoring, and adaptive populations continue to recover. Any 2215 set up the program and established management described below. downturn in either the marine survival two pilot project areas. Due to the or escapement targets will result in success of the program pilots, in 1995 OCSRI Harvest Measures further restrictions. the legislature passed House Bill 3441. Overfishing has greatly depleted the As described in OCSRI’s monitoring This law delegates to the Governor’s coastal coho salmon; it is a primary program, harvest impacts will be Watershed Enhancement Board (GWEB) the responsibility to work with local factor for the species’ decline. Harvest regulated through established, public councils and to coordinate project rates on coho salmon have at times forums that evaluate the most recent funding. The GWEB approves funding exceeded 80 percent, but have recently data on natural escapements, population abundance, direct and indirect fishing for only those projects based on sound been reduced to an average of less than mortalities, and measurements of wild principles of watershed management 15 percent. Ocean harvest of coho and hatchery fish survival rates in ocean and encourages the use of nonstructural salmon stocks is managed by NMFS in waters. methods to enhance riparian areas and conjunction with the Pacific Fishery associated uplands. The GWEB uses the Management Council, the states, and OCSRI Hatchery Measures expertise of state agencies according to certain tribes. Coho salmon ocean Hatchery production of coho salmon the type of enhancement project in harvest is managed by setting has been identified as a factor in the development, and cooperates with the escapement goals for OCN coho salmon. decline of natural coho salmon Federal agencies to ensure integrated Due to concerns over declining populations. Past increases in hatchery efforts. population status, directed harvest of programs to enhance sport and The premise of the OCSRI is that coho salmon has been eliminated since commercial fisheries are now believed factors for decline are, and will continue 1994. to have adversely affected natural to be, identified in individual The OCSRI establishes a populations: Hatchery fish competed watersheds, and that one of the primary comprehensive, weak-stock with wild coho salmon for limited food means to address those factors will be management framework for ensuring and habitat; stray hatchery adults action plans implemented on a local that fishing-related mortalities remain at spawned, often in excessive numbers, level involving watershed councils, soil low levels. The harvest levels may with wild fish, likely reducing the and water conservation districts increase in the future, but only fitness and productivity of the wild (SWCDs), the Oregon State University moderately, and only based on (1) populations. This problem of genetic Cooperative Extension Service, substantiated increases in coho salmon introgression was, at times, landowners, local governments, escapement beyond targeted levels, and compounded by the use of non-local conservation groups and other (2) greater marine survival that will hatchery broodstocks. grassroots stakeholders. Since 1993, ensure continued growth of the natural Under the OCSRI, coho salmon smolt over 60 watershed Councils have been spawning populations. releases that numbered 6.4 million in formed in Oregon. The entire Oregon More specifically, the OCSRI 1990 (and were subsequently reduced to coast is now represented by local establishes new, disaggregated 3.5 million in 1996) will be reduced 64 watershed Councils. Three of these escapement objectives for four percent by 1998, thus decreasing watersheds will be used as model component stocks of the existing OCN adverse competitive interactions. integration projects for the OCSRI. Two coho salmon stock. Harvest rates on Hatchery releases will be further of these, the Applegate and the Coquille each of these four stock components reduced or modified, if necessary, to Councils, already have strong programs will be allowed to increase from current keep adult stray rates to less than 10 that will act as a templates for other levels of 10–13 percent (to a maximum percent, thus minimizing the effects of Councils on the coast. of 35 percent) only if significant genetic introgression. As deemed Watershed Councils are currently in increases are attained in escapement appropriate to meet wild fish different stages in their development of and productivity. In mixed-stock areas, management needs, hatchery watershed action plans. The action plan such as most ocean waters, harvest rates broodstocks will receive infusion of is a working document that will be limited by the weakest stock wild fish to minimize genetic characterizes the conditions on the component. Within any given stock divergence of the populations. watershed, identifies priority areas component, terminal and in-river Oregon has already begun marking all (based on watershed analysis) for harvest will be regulated to achieve hatchery coho salmon to differentiate restoration and protection, sets out escapement limits for that component. them from naturally-produced fish. This public involvement strategies, and In addition, if any individual basin has will allow more accurate assessment of identifies funding sources. Currently, a severe conservation problem, harvest stray rates and allow for any future Councils in the Rogue and South Coast Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24605 watersheds are participating in an effort to improve conditions for salmon, and A bipartisan Joint Legislative to develop a guidance document that provide the analysis needed to help Committee on Salmon and Stream will address the decline of salmon in develop adaptive management strategies Enhancement will receive reports from those basins. A key to this process is for agencies, private landowners, the IMST including recommendations identification of current conditions and watershed Councils, and individuals. for changes to the OCSRI. On the basis trends and developing an understanding More specifically, monitoring and of these reports, and reports of Oregon’s of their causes. The guidance document, reporting at the regional, basin, or Salmon Restoration and Production once fully developed, will allow the subbasin scale will include: (1) Stream Task Force, the Committee may watershed Councils to update their biotic condition and ambient water recommend changes to the OSCRI. The action plans and assessments. quality assessments, (2) juvenile salmon annual Governor’s report on the ‘‘State Councils generally request abundance surveys, (3) stream channel of the Salmon’’ will also include participation from local, state, Federal, and habitat assessments, (4) spawner discussion and recommendations based and private resource professionals to abundance surveys, (5) genetic and life upon the monitoring results. This report participate in a Technical Advisory history monitoring, (6) fish propagation will describe how the monitoring results Committee (TAC). A TAC is a voluntary, monitoring, (7) harvest monitoring, (8) will be used to adjust the OSCRI’s best scientific, interdisciplinary, nonpolitical ‘‘core area’’ and ‘‘index area’’ management practices (BMPs) and group whose purpose is to provide population and habitat monitoring, (9) program measures. advice and guidance on technical ocean condition monitoring, (10) Funding for the OCSRI issues. A TAC advises Councils on how estuary and riverine wetland population to complete a watershed assessment, and habitat monitoring, (11) Oregon The Natural Resource Investment develop strategic plans, set priorities, Forest Practices and Northwest Forest Budget (authorized by the 69th Oregon and design and implement projects and Plan conservation strategy monitoring, Legislative Assembly [House Bill 5042 monitoring programs. and (12) cumulative effects/watershed and 5044] for the biennium beginning Since 1994, coastal watershed Council assessment for mixed ownership. July 1, 1997) provides $20 million in new grant funding to support watershed TACs have helped review, design, and For more localized decision making, implement over 250 projects (including Council coordinators and other local the key monitoring and assessment data one riparian restoration project that organizations. The existing Governor’s will be provided on an ongoing basis to involved over 200 private land owners). Watershed Enhancement Board will agency managers, watershed Councils TACs have also been heavily involved administer the grant program. The and initiative groups, and other in developing 11 watershed assessments budget also provides approximately $10 interested participants. Regional and action plans for watershed million to add new technical staff to the interagency groups have been organized Councils. The process is continuing. Department of Agriculture (19 around state agency administrative TACs are being created for new positions), the Department of boundaries. Participants in the regional Councils, helping OCSRI, updating Environmental Quality (19 positions), groups are lead agency decision-makers watershed Council action plans and the Department of Fish and Wildlife (14 assessments, developing new watershed for field operational programs. Relevant positions), the Department of Forestry (6 Council action plans and assessments, watershed assessment efforts and data positions), the Water Resources and continuing to develop, design, and will be routinely reported to this group Department (4 positions), and the implement on-the-ground projects. for coordination and application Department of Land Conservation and The future success of watershed purposes. The participants of this group Development (1 position). In addition, Councils depends on many factors— are expected to coordinate with the Oregon State Police reprogrammed 13 including strong TACs. State agencies watershed Councils and SWCDs to officers for public education and have made providing scientific and ensure they all receive the same enforcement of the OCSRI. technical support for watershed information in a timely manner. Memorandum of Agreement (MOA) Councils a priority. Under the OCSRI, Watershed Councils, SWCDs, and between NMFS and Governor of Oregon state agencies and the Governor have other partners will report the results of requested new budget packages that will their watershed assessment efforts to the NMFS welcomed adoption of the enable agencies to better meet the Monitoring Program coordinator as each OCSRI by Oregon and believed it would increased Council demands by adding module is completed. These results will provide significant protections for field staff and increasing also be given to the involved state and Oregon Coast ESU in a number of areas. communication. Federal agencies to support their day-to- In particular, the harvest and hatchery day decision making. measures will continue to contribute to Monitoring Results and Adaptive The interagency monitoring group improved spawning escapement and the Management will convene an annual monitoring near-term population stability of the The OCSRI describes a conference at which agencies and other ESU. NMFS was concerned, however, comprehensive, aggressive, and partners will be required to present the that the habitat measures contained in coordinated monitoring program. Full results of their monitoring efforts. This the OCSRI will not secure adequate high implementation of the monitoring conference will be used to adjust quality habitat over the long term to program is a crucial tool for adaptive monitoring efforts and protocols and ensure coho survival under a range of management and the success of the describe the habitat and population environmental conditions. To address OSCRI. State and Federal agencies and trends. Annual progress of the OCSRI this concern, NMFS entered into a MOA other groups have made major will be assessed by comparing these in April 1997 with the Governor of commitments to developing and monitoring results and trends with the Oregon (MOA 1997). Under the MOA, supporting this effort. The objectives of OCSRI’s published biological objectives. NMFS will provide the state of Oregon the monitoring program are to develop The report (and results of the guidance on those specific measures it accurate information on the status of conference) will be sent to the IMST considers adquate and necessary for salmon populations and their habitats, established by the Oregon Legislature habitat protection. If these or equivalent detect trends in abundance, determine (SB 924–B) for its use in auditing the measures are not adopted by Oregon the effectiveness of measures designed program. within 2 years, NMFS will promptly 24606 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations change the ESA status of this ESU to the functions on a watershed basis, integrate efforts are critical to the conservation of extent warranted. The MOA further resources in priority watersheds, and coho salmon in the Southern Oregon/ commits the parties to full maximize community involvement in Northern California Coast ESU because implementation of all elements of the the development and implementation of nearly 50 percent of the land is privately OCSRI, including harvest and hatchery water quality control plans, (3) $900,000 owned. measures and provisions for monitoring for the Department of Conservation for Long-term sustained gravel mining and scientific review. inter-agency watershed management plans have been, or are being, developed III. California Efforts. In 1995, the teams and for grants to Resource by three northern California counties California Resources Agency initiated Conservation Districts, and (4) $400,000 (Del Norte, Humboldt, and Mendocino) its Coastal Salmon Initiative (CSI), a for the Department of Forestry and Fire which comprise a substantial portion of community-oriented planning effort Protection to lead inter-agency the Southern Oregon/Northern designed to produce a conservation watershed teams, conduct watershed California Coast ESU’s range in program based on voluntary measures assessments, and provide geographic California. The approach that is being and incentives to protect fish and information data base support. used is to evaluate the impacts of all wildlife habitat in a manner that would In California, the Range Management gravel extraction projects within a protect the economic interests of Advisory Committee has developed a watershed as part of a long-term gravel communities within the range of coho Rangeland Water Quality Management mining plan, and then obtain a Letter of salmon. The CSI planning process Plan for inclusion in the State’s Permission (LOP) from the COE to progressed slowly and was suspended Nonpoint Source Management Plan. Its approve graveling mining projects at the in late 1996, before a comprehensive purpose is to maintain and improve the county level. The LOPs would be issued state conservation plan for coho salmon quality and associated beneficial uses of for a period of 3 years and would in California was developed. surface water as it passes through and require annual monitoring reports on Recently, however, the State of out of rangeland resources in the State. gravel recruitment, river California has proposed instead to The programmatic emphasis is on a geomorphology, and fisheries. develop and implement a state voluntary, cooperative approach to Humboldt County currently has an LOP conservation plan known as the water quality management. This in-place and Del Norte and Mendocino California Watersheds Protection includes appropriate technical Counties are in the process of obtaining Program based on the State’s Natural assistance, planning mechanisms, their LOPs. NMFS will be working with Communities Conservation Planning program incentives, and regulatory the counties and the COE to ensure that (NCCP) Act. This conservation program authorities. This Plan has been any LOPs issued for gravel mining are is intended to provide for the long-term favorably received by the State Water protective of coho salmon. protection and conservation of coho Resources Control Board, EPA, and the Timber, farming, and fishing interests salmon and other anadromous BOF. formed the Fish, Forests, and Farms salmonids on non-Federal lands in The state agencies identified in the Community (FFFC) organization in California’s coastal watersheds, as well Governor’s Watershed Initiative have California in an effort to address land as a means for incidental take developed budget plans, but the management and fisheries issues related authorization for activities on non- likelihood of funding and to salmon and steelhead listings in Federal lands. As part of this implementation are unknown at this California. The FFFC has focused its conservation effort, the State would time. Implementation of the Watershed efforts in: (1) Promoting research convene a Scientific Review Panel to Initiative will depend on the State projects to improve the scientific develop conservation guidelines for the Legislature’s approval of the budget knowledge regarding salmonid life implementation of the Watershed request. Specific deficiencies of the histories and habitat requirements in Protection Program. These guidelines Watershed Initiative are that no funding coastal watersheds, and (2) developing would include conservation strategies past the current fiscal cycle is proposed, standardized protocols for biological and monitoring protocols necessary to and landowner participation in the and physical assessment and monitoring protect salmonid habitat in coastal program is voluntary. NMFS believes of anadromous fish habitat and watersheds. The State would that stakeholder-based solutions at the populations in coastal watersheds. The subsequently adopt these conservation watershed level are essential to FFFC has made important progress to guidelines under the California Fish and recovering coho salmon but that date, and it should be recognized for its Game Code and then begin the adequate long-term funding and full efforts to bring together multiple and development of individual watershed participation by all stakeholder groups diverse interests. More importantly, protection plans. will be necessary for the state’s program FFFC is attempting to fill a void for The Governor of California has to succeed. standardizing data collection and to proposed a $3.8 million Watershed Local and private efforts are also quantify technical processes that should Initiative to assist in the development underway in California. At least eight eventually lead to a better scientific and implementation of the California industrial timber landowners are in the understanding of coho salmon. Watersheds Protection Program. The process of developing HCPs that cover In 1996, the California Forestry Governor’s Budget specifically approximately 1.2 million acres of Association established the Forest proposes: (1) $1.5 million for CDFG to privately owned land in Del Norte, Science Project (FSP) at Humboldt State participate on inter-agency watershed Humboldt, Siskiyou, Trinity, and University. The purpose of the industry- management team, lead wildlife Mendocino counties. This acreage sponsored FSP is to acquire, compile, standard teams, provide guidance and includes ownership in the river basins: and disseminate baseline biological and technical assistance to community- Smith River, Klamath River, Redwood habitat information being developed by based watershed groups, and make Creek, Little River, Mad River, Eel River, private timber companies operating grants for habitat restoration, (2) $1.0 and several smaller coastal streams. within the California portion of the million for the state Water Resources NMFS anticipates these landowners will Southern Oregon/Northern California Control Board and Regional Boards, for be submitting applications for ESA Coast ESU. The timber industry expects watershed coordinators who will section 10 incidental take permits to continue this on-going effort to facilitate prioritization of regulatory within the next 6–12 months. These compile and synthesize biological, Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24607 habitat, and other types of data, and has will publish shortly in the Federal term survival of the ESU, especially expressed interest in developing a Register protective regulations, under variable and unpredictable future process with NMFS that would assure pursuant to ESA section 4(d), which climate conditions. There were two that such data are available for future will apply the ESA section 9(a) primary concerns with respect to decision making. prohibitions to the listed ESU, with habitat: First, that the habitat capacity Local habitat restoration and planning certain exceptions. NMFS does not for coho salmon within the range of the efforts are also currently ongoing in expect those regulations to become ESU has significantly decreased from several watersheds that should effective before July 1, 1997. historical levels; and, second, that contribute to the conservation of coho Oregon Coast Coho Salmon ESU preliminary results of the Nickelson- salmon in the Southern Oregon/ Lawson model predicted that, during Northern California Coast ESU. These Section 4(b)(1)(A) of the ESA provides poor ocean survival periods, only high include efforts by the Scott River that the Secretary shall make a listing quality habitat is capable of sustaining Watershed Committee and French Creek determination solely on the basis of the coho populations, and subpopulations Watershed Advisory Group in the Scott best scientific and commercial data dependent on medium and low quality River watershed, the Shasta River available, after conducting a review of habitats would be likely to go extinct. Project (Shasta River watershed), the the species’ status and ‘‘after taking into Both of these concerns caused the BRT South Fork Trinity River (South Fork account those efforts * * * being made to consider risks from habitat loss and Trinity River), and the Mattole by any state or foreign nation * * * to degradation to be relatively high for this Restoration Council (Mattole River). In protect such species, whether by ESU. predator control, protection of habitat several counties within the range of the The previous section of this document and food supply, or other conservation Southern Oregon/Northern California describes the Federal NFP and the practices, within an area under its Coast ESU, there are county-based OCSRI adopted by Oregon to protect jurisdiction.’’ NMFS has carefully Resource Conservation Districts (RCDs) and restore Oregon coastal coho salmon considered the conclusions of the that are providing the focus for stocks. The NFP, which covers 35 scientists on NMFS’ Biological Review agricultural and local conservation percent of the geographic range of this Team (BRT) regarding the species’ status groups to use Federal grants to develop ESU, will provide a high level of and has taken into account the OCSRI, and prioritize restoration plans. protection for coho habitat into the An extensive network of RCDs exists the NFP and other actions that protect future. The OCSRI also contains many within the range of coho salmon in the coho in this ESU. programs that will improve habitat Southern Oregon/Northern California The scientists on the BRT generally conditions. The forest practices Coast ESU. These RCDs represent an agreed that implementation of the regulations adopted by Oregon in 1995 important vehicle through which the harvest and hatchery measures of the agricultural community can voluntarily OCSRI would have a positive effect on provide improvements over past address and correct management the status of the ESU. Previous harvest practices, and the measures regarding practices that impact coho salmon and rate reductions on Oregon coastal coho, agricultural practices should result in its habitat, and their potential is as refined and continued in the OCSRI, improvements in water quality. Overall, significant. Working with individual will continue to contribute to improved however, the habitat measures of the landowners or through organizations spawning escapement and near-term OCSRI do not currently provide the such as the California Farm Bureau, population stability of the Oregon coast protections NMFS considers essential to these RCDs can assist landowners in ESU. The BRT expressed the view that creating and maintaining the high developing and implementing best these harvest and hatchery reforms may quality habitat needed to sustain Oregon management practices that are substantially reduce the short-term risk Coast coho over the long term across a protective of salmonids, including coho of extinction. The BRT was about evenly range of environmental conditions. salmon. NMFS believes that the split as to whether the effects of these The OCSRI contains the tools conservation and recovery of coho reforms would be substantial enough to necessary to ensure that adequate salmon in California will require the move the ESU out of the ‘‘likely to habitat measures are ultimately adopted active participation of the agriculture become endangered’’ category. Some and implemented: a comprehensive community. members felt that, in addition to the monitoring program, scientific review, extinction buffer provided by the and an adaptive management program. Finding and Withdrawal estimated 80,000 naturally produced Natural escapement has been increasing Based on its assessment of the best spawners in 1996, the reforms would markedly in recent years and reached available information, NMFS has promote higher escapements and 80,000 fish in 1996. On the basis of the determined that the Southern Oregon/ alleviate genetic concerns enough that harvest and hatchery improvements Northern California Coast and the the ESU would not be at significant risk together with the habitat protections in Oregon Coast coho salmon ESUs of extinction or endangerment in the the NFP and given the improving trends constitute distinct ‘‘species’’ under the foreseeable future. Other members were in escapement, the Oregon Coast coho is ESA. NMFS has further determined that not convinced that the hatchery and not likely to become endangered in the the Oregon Coast ESU does not warrant harvest reforms by themselves would be interval between this decision and the listing at this time, and that the sufficient to alleviate risk due to adoption of improved habitat measures Southern Oregon/Northern California declining productivity and habitat by the State of Oregon. Under the April Coast ESU does warrant listing as a degradation. 1997 MOA between NMFS and the threatened species. Accordingly, NMFS Habitat degradation was one of the Governor of Oregon (MOA, 1997), is listing the Southern Oregon/Northern primary concerns of the BRT in described in the previous section, California Coast coho salmon ESU as evaluating long-term risks to this ESU. NMFS will propose to Oregon threatened. NMFS will consider the The BRT concluded that while the additional forest practices modifications Oregon Coast coho salmon ESU to be a harvest and hatchery improvements necessary to provide adequate habitat candidate species and will review its may substantially reduce the short-term conditions for coho. If these or other listing status in 3 years (or earlier if risk of extinction, habitat protection and comparable protections are not adopted warranted by new information). NMFS restoration are key to ensuring the long- within 2 years, NMFS will act promptly 24608 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations to change the ESA status of this ESU to (NMFS, 1997a). Two of these hatchery essential for recovery, nor does it have whatever extent may be warranted. stocks from California are either not an important role to play in recovery. Because the determination not to list considered part of the ESU (Mad River NMFS therefore concludes that it is not the Oregon Coast ESU relies heavily on Hatchery) or are of uncertain inconsistent with NMFS’ interim policy, continued implementation of the OCSRI relationship to the ESU (Iron Gate nor with the policy and purposes of the (in accordance with the MOA), Hatchery). In contrast, NMFS has ESA, to consider these progeny as part including the enactment of improved concluded that fish from four California of the ESU but not listed. habitat protective measures, NMFS hatchery populations (Mattole River, Eel Critical Habitat intends to review this listing River, Trinity River, and Rowdy Creek) determination no later than the and Oregon’s Rogue River hatchery Section 4(a)(3)(A) of the ESA requires conclusion of 3 years (which represents stock should be included in the that, to the extent prudent and one full life cycle and 3 year classes of definition of this ESU. None of these determinable, critical habitat be coho salmon) or at any time sooner if five hatchery stocks considered part of designated concurrently with the listing substantive new information warrants this ESU are presently deemed of a species. NMFS has completed its consideration. During the interim, ‘‘essential’’ for its recovery, hence these analysis of the biological status of the NMFS is designating the Oregon Coast hatchery fish are not being listed at this Southern Oregon/Northern California ESU as a candidate species under the time. However, NMFS has determined Coast ESU but has not completed the ESA and will continue to monitor the that two of the hatchery populations analysis necessary for the designation of ESU’s status as well as the efficacy of may play an important role in recovery critical habitat. NMFS has decided to the OCSRI and other conservation efforts: Mattole River, because the proceed with the final listing measures. natural population is very depressed, determination now and to proceed with Southern Oregon/Northern California and the Trinity River, because there the designation of critical habitat in a Coast Coho Salmon ESU appears to be essentially no natural separate rulemaking. Section production in the basin. It is important 4(b)(6)(C)(ii) provides that, where Coho salmon populations are very to note that the determination that a critical habitat is not determinable at the depressed in this ESU, currently hatchery stock is not ‘‘essential’’ for time of final listing, NMFS may extend numbering fewer than 10,000 naturally- recovery does not preclude it from produced adults. The threats to this ESU the period for designating critical playing a role in recovery. Any hatchery are numerous and varied as described habitat by not more than 1 additional population that is part of the ESU is elsewhere in this document. Several year. Congress further stated in the 1982 available for use in recovery if human-caused factors, including habitat amendments to the ESA, ‘‘where the conditions warrant. In this context, an degradation, harvest, and artificial biology relating to the status of the propagation, exacerbate the adverse ‘‘essential’’ hatchery population is one species is clear, it should not be denied effects of natural environmental that is vital to fully incorporate into the protection of the Act because of the variability brought about by drought, recovery efforts (for example, if the inability of the Secretary to complete floods, and poor ocean conditions. associated natural population(s) were the work necessary to designate critical NMFS has determined that existing extinct or at high risk of extinction). habitat.’’ (H. Rep. No. 567, 97th Cong., regulatory mechanisms over the ESU as Under these circumstances, NMFS 2d Sess. 19, 1982). NMFS believes that a whole are either inadequate or not would consider taking the proceeding with this final listing implemented well enough to conserve administrative action of listing the determination, even though critical this ESU. While conservation efforts are existing hatchery fish. habitat has not been designated, is underway for some populations in this NMFS’ ‘‘Interim Policy on Artificial appropriate and necessary to protect ESU, particularly in the Oregon portion Propagation of Pacific Salmon Under this ESU and is consistent with of the ESU, they are not considered the Endangered Species Act’’ (58 FR congressional direction. sufficient to reduce the risk that the ESU 17573, April 5, 1993) provides guidance NMFS further concludes that critical as a whole will become endangered in on the treatment of hatchery stocks in habitat is not determinable at this time, the foreseeable future. Accordingly, the event of a listing. Under this policy, because information sufficient to NMFS concludes that this ESU warrants ‘‘progeny of fish from the listed species perform the required analysis of the listing as threatened. NMFS will issue that are propagated artificially are impacts of the designation is lacking. shortly protective regulations that will considered part of the listed species and NMFS has solicited information apply the section 9(a) prohibitions to are protected under the ESA.’’ In the necessary to designate critical habitat in this ESU, with certain exceptions. case of Oregon’s Rogue River hatchery its proposed rule (60 FR 38011, July 25, As described in the BRT status (Cole Rivers), the protective regulations 1995) and will consider such reviews (Weitkamp et al., 1995; NMFS, that NMFS will issue shortly will information in the proposed 1997a) and the proposed listing exempt take of naturally spawned listed designation. Specifically, designation determination for west coast coho fish for use as broodstock as part of an requires a determination of those salmon (July 25, 1995, 60 FR 38011), overall conservation program. physical and biological features that are NMFS defines the Southern Oregon/ According to the interim policy, the essential to the conservation of the Northern California Coast coho salmon progeny of these hatchery-wild crosses species and that may require special ESU to include all naturally spawned would also be listed. NMFS has management considerations or populations of coho salmon (and their determined in this case, however, not to protection. It further requires the progeny) that are part of the biological consider hatchery-reared progeny of consideration of an economic analysis ESU and reside below long-term, intentional hatchery-wild crosses as of the impacts of the designation. These naturally impassible barriers in streams listed. The Rogue River natural analyses have not yet been completed, between Punta Gorda (CA) and Cape population is relatively abundant, the and, therefore, critical habitat is not Blanco (OR). NMFS has also evaluated take of naturally spawned fish for determinable at this time. NMFS is the status of seven hatchery stocks of broodstock purposes is specifically extending the period for the designation coho salmon presently reared and limited, and the BRT concluded that of critical habitat by not more than 1 released within the range of this ESU this hatchery population was not additional year. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24609

Available Conservation Measures These actions will likely be subject to Classification Conservation measures provided to ESA section 7 consultation The 1982 amendments to the ESA, in species listed as endangered or requirements that may result in section 4(b)(1)(A), restrict the threatened under the ESA include conditions designed to achieve the information that may be considered recognition, recovery actions, Federal intended purpose of the project and when assessing species for listing. Based agency consultation requirements, and avoid or reduce impacts to coho salmon on this limitation of criteria for a listing prohibitions on taking. Recognition and its habitat within the range of the decision and the opinion in Pacific through listing promotes public listed ESU. Legal Foundation v. Andrus, 675 F. 2d awareness and conservation actions by There are likely to be Federal actions 825 (6th Cir., 1981), NMFS has Federal, state, and local agencies, ongoing in the range of the Southern categorically excluded all ESA listing private organizations, and individuals. Oregon/Northern California Coast ESU actions from the environmental With respect to the Southern Oregon/ at the time that this listing becomes assessment requirements of NEPA (48 Northern California Coast coho salmon effective. Therefore, NMFS will review FR 4413, February 6, 1984). ESU, several efforts are underway all on-going actions that may affect the As noted in the Conference Report on (described previously) that may slow or listed species with the Federal agencies the 1982 amendments to the ESA, reverse the decline of coho salmon in and will complete formal or informal economic considerations have no this ESU. The NMFS intends to move consultations, where requested or relevance to determinations regarding rapidly during the next year to work necessary, for such actions as the status of the species. Therefore, the with Federal, state, and tribal entities to appropriate, pursuant to ESA section economic analysis requirements of the develop and implement a 7(a)(2). Regulatory Flexibility Act are not comprehensive strategy to halt the Sections 10(a)(1)(A) and 10(a)(1)(B) of applicable to the listing process. decline and begin the recovery of coho the ESA provide NMFS with authority Similarly, this final rule is exempt from salmon populations within this ESU. to grant exceptions to the ESA’s review under E.O. 12866. Because a substantial portion of land in ‘‘taking’’ prohibitions (see regulations at this ESU is in private ownership 50 CFR 222.22 through 222.24). Section References (approximately 46 percent), 10(a)(1)(A) scientific research and The complete citations for the conservation measures on private lands enhancement permits may be issued to references used in this document can be will be key to protecting and recovering entities (Federal and non-Federal) obtained by contacting Garth Griffin or coho salmon in this ESU. conducting research that involves Craig Wingert, NMFS (see ADDRESSES). Section 4(d) of the ESA directs the directed take of listed species. Secretary to implement regulations ‘‘to NMFS has issued section 10(a)(1)(A) List of Subjects in 50 CFR Part 227 provide for the conservation of research or enhancement permits for Endangered and threatened species, [threatened] species,’’ that may include other listed species (e.g., Snake River Exports, Imports, Marine mammals, extending any or all of the prohibitions chinook salmon, Sacramento River Transportation. winter-run chinook salmon) for a of section 9 to threatened species. Dated: April 25, 1997. number of activities, including trapping Section 9(a)(1)(g) also prohibits Rolland A. Schmitten, violations of protective regulations for and tagging to determine population distribution and abundance, and Assistant Administrator for Fisheries, threatened species implemented under National Marine Fisheries Service. section 4(d). NMFS will issue shortly collection of adult fish for artificial protective regulations pursuant to propagation programs. NMFS is aware For the reasons set out in the section 4(d) for the conservation of the of several sampling efforts for coho preamble, 50 CFR part 227 is amended species. salmon in the Southern Oregon/ as follows: For listed species, section 7(a)(2) of Northern California Coast ESU, PART 227ÐTHREATENED FISH AND the ESA requires Federal agencies to including efforts by Federal and state WILDLIFE ensure that activities they authorize, fisheries agencies, and private fund, or conduct are not likely to landowners. These and other research 1. The authority citation for part 227 jeopardize the continued existence of a efforts could provide critical continues to read as follows: listed species or to destroy or adversely information regarding coho salmon Authority: 16 U.S.C. 1531 et seq. modify its critical habitat. If a Federal distribution and population abundance. action may affect a listed species or its Section 10(a)(1)(B) incidental take 2. In § 227.4, paragraph (i) is added to critical habitat, the responsible Federal permits may be issued to non-Federal read as follows: agency must enter into consultation entities to authorize take of listed § 227.4 Enumeration of threatened with NMFS. species incidental to otherwise lawful species. Examples of Federal actions most activities. The types of activities * * * * * likely to be affected by listing this ESU potentially requiring a section (i) Southern Oregon/Northern include COE section 404 permitting 10(a)(1)(B) incidental take permit California Coast coho salmon activities under the CWA, COE section include the operation and funding of (Oncorhynchus kisutch). Includes all 10 permitting activities under the River hatcheries and release of artificially coho salmon naturally reproduced in and Harbors Act, FERC licensing and propagated fish by the state, state or streams between Cape Blanco in Curry relicensing for non-Federal university research not receiving County, OR, and Punta Gorda in development and operation of Federal authorization or funding, the Humboldt County, CA. hydropower, EPA implementation of implementation of state fishing TMDLs and 303(c) water quality regulations, and timber harvest [FR Doc. 97–11571 Filed 5–5–97; 8:45 am] standards, and NRCS funded activities. activities on non-Federal lands. BILLING CODE 3510±22±P 24610

Proposed Rules Federal Register Vol. 62, No. 87

Tuesday, May 6, 1997

This section of the FEDERAL REGISTER this proposed rule will not preempt any For the month of March 1997, the contains notices to the public of the proposed state or local laws, regulations, or milk of 415 producers was pooled on issuance of rules and regulations. The policies, unless they present an the Eastern Colorado Federal milk order. purpose of these notices is to give interested irreconcilable conflict with the rule. Of these producers, 308 producers were persons an opportunity to participate in the below the 326,000-pound production rule making prior to the adoption of the final The Agricultural Marketing rules. Agreement Act of 1937, as amended (7 guideline and are considered small U.S.C. 601–674), provides that businesses. During this same period, administrative proceedings must be there were 10 handlers operating 11 DEPARTMENT OF AGRICULTURE exhausted before parties may file suit in pool plants under the Eastern Colorado court. Under section 608c(15)(A) of the order. Five of these handlers would be Agricultural Marketing Service Act, any handler subject to an order may considered small businesses. request modification or exemption from This rule would lessen the regulatory 7 CFR Part 1137 such order by filing with the Secretary impact of the order on certain milk [DA±97±05] a petition stating that the order, any handlers and would tend to ensure that provision of the order, or any obligation dairy farmers would continue to have Milk in the Eastern Colorado Marketing imposed in connection with the order is their milk priced under the order and Area; Notice of Proposed Suspension not in accordance with law. A handler thereby receive the benefits that accrue of Certain Provisions of the Order is afforded the opportunity for a hearing from such pricing. This proposed on the petition. After a hearing, the suspension will not result in any AGENCY: Agricultural Marketing Service, Secretary would rule on the petition. additional regulatory burden on USDA. The Act provides that the district court handlers in the Eastern Colorado ACTION: Proposed suspension of rule. of the United States in any district in marketing area since this suspension has been continually in effect since SUMMARY: This notice invites written which the handler is an inhabitant, or has its principal place of business, has 1985. comments on a proposal to suspend Interested parties are invited to certain performance standards of the jurisdiction in equity to review the Secretary’s ruling on the petition, submit comments on the probable Eastern Colorado Federal milk order. regulatory and informational impact of provided a bill in equity is filed not The suspension was requested by Mid- this proposed rule on small entities. later than 20 days after the date of the America Dairymen, Inc., a cooperative Also, parties may suggest modifications entry of the ruling. association that supplies milk for the of this proposal for the purpose of market’s fluid needs. The suspension Small Business Consideration tailoring their applicability to small was requested to prevent the businesses. uneconomic movement of milk that In accordance with the Regulatory otherwise would be required in order to Flexibility Act (5 U.S.C. 601 et seq.), the Proposed Rule maintain the pooling status of milk that Agricultural Marketing Service has Notice is hereby given that, pursuant has been historically associated with the considered the economic impact of this to the provisions of the Act, the order. action on small entities and has certified suspension of the following provisions that this proposed rule will not have a DATES: of the order regulating the handling of Comments are due no later than significant economic impact on a June 5, 1997. milk in the Eastern Colorado marketing substantial number of small entities. For area is being considered: ADDRESSES: Comments (two copies) the purpose of the Regulatory Flexibility 1. For the months of September 1, should be filed with the USDA/AMS/ Act, a dairy farm is considered a ‘‘small 1997, through February 28, 1998: In the Dairy Division, Order Formulation business’’ if it has an annual gross second sentence of § 1137.7(b), the Branch, Room 2968, South Building, revenue of less than $500,000, and a words ‘‘plant which has qualified as a’’ P.O. Box 96456, Washington, DC 20090– dairy products manufacturer is a ‘‘small and ‘‘of March through August’’; and 6456. Reference should be given to the business’’ if it has fewer than 500 2. For the months of September 1, title of action and docket number. employees. For the purposes of 1997, through August 31, 1998: In the FOR FURTHER INFORMATION CONTACT: determining which dairy farms are first sentence of § 1137.12(a)(1), the Clifford M. Carman, Marketing ‘‘small businesses,’’ the $500,000 per words ‘‘from whom at least three Specialist, USDA/AMS/Dairy Division, year criterion was used to establish a deliveries of milk are received during Order Formulation Branch, Room 2968, production guideline of 326,000 pounds the month at a distributing pool plant’’; South Building, P.O. Box 96456, per month. Although this guideline does and in the second sentence ‘‘30 percent Washington, DC 20090–6456, (202) 720– not factor in additional monies that may in the months of March, April, May, 9368, e-mail address: be received by dairy producers, it June, July, and December and 20 percent [email protected]. should be an inclusive standard for in other months of’’, and the word SUPPLEMENTARY INFORMATION: The most ‘‘small’’ dairy farmers. For ‘‘distributing’’. Department is issuing this proposed rule purposes of determining a handler’s All persons who want to send written in conformance with Executive Order size, if the plant is part of a larger data, views or arguments about the 12866. company operating multiple plants that proposed suspension should send two This proposed rule has been reviewed collectively exceed the 500-employee copies of them to the USDA/AMS/Dairy under Executive Order 12988, Civil limit, the plant will be considered a Division, Order Formulation Branch, Justice Reform. This rule is not intended large business even if the local plant has Room 2971, South Building, P.O. Box to have a retroactive effect. If adopted, fewer than 500 employees. 96456, Washington, DC 20090–6456, by Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24611 the 30th day after publication of this The authority citation for 7 CFR Part SUPPLEMENTARY INFORMATION: notice in the Federal Register. 1137 continues to read as follows: Background All written submissions made Authority: 7 U.S.C. 601–674. pursuant to this notice will be made The Animal Welfare regulations available for public inspection in the Dated: April 30, 1997. contained in 9 CFR chapter 1, Dairy Division during normal business Aggie Thompson, subchapter A, part 3 (referred to below hours (7 CFR 1.27(b)). Acting Director, Dairy Division. as ‘‘the regulations’’) provide [FR Doc. 97–11745 Filed 5–5–97; 8:45 am] specifications for the humane handling, Statement of Consideration BILLING CODE 3410±02±P care, treatment, and transportation, by The proposed rule would suspend regulated entities, of animals covered by certain portions of the pool plant and the Animal Welfare Act (7 U.S.C. 2131, producer definitions of the Eastern DEPARTMENT OF AGRICULTURE et seq.) (The Act). The regulations in Colorado order. The proposed part 3 are divided into six subparts, suspension would make it easier for Animal and Plant Health Inspection designated as subparts A through F, handlers to qualify milk for pooling Service each of which contains facility and under the order. operating standards, animal health and The proposed suspension was 9 CFR Part 3 husbandry standards, and transportation requested by Mid-America Dairyman, [Docket No. 95±029±1] standards for a specific category of Inc. (Mid-Am), a cooperative association animals. These categories are: (A) cats that has pooled milk of dairy farmers on Animal Welfare; Perimeter Fence and dogs, (B) guinea pigs and hamsters, the Eastern Colorado order for several Requirements (C) rabbits, (D) nonhuman primates, (E) years. Mid-Am has requested the marine mammals, and (F) animals other AGENCY: Animal and Plant Health than cats, dogs, guinea pigs, hamsters, suspension to prevent the uneconomic Inspection Service, USDA. and inefficient movement of milk for the rabbits, nonhuman primates, and ACTION: sole purpose of pooling the milk of Proposed rule. marine mammals. Each of these subparts contains producers historically associated with SUMMARY: We are proposing to amend the Eastern Colorado order. the Animal Welfare regulations to regulations regarding outdoor housing Mid-Am requests, for the months of require that a perimeter fence be placed facilities, and subparts A and D contain regulations regarding sheltered housing September 1997 through February 1998, around the outdoor areas of sheltered facilities. However, only subpart D that the limit on the period of automatic housing facilities and outdoor housing (nonhuman primates) includes a pool plant status for a supply plant that facilities for marine mammals and requirement for a perimeter fence met pool shipping standards during the certain other regulated animals. surrounding outdoor housing facilities previous September through February Although it has been our policy that and sheltered housing facilities. period be suspended. This provision has such fences should be in place around Although perimeter fences are not been suspended annually for several sheltered and outdoor housing facilities required by the regulations for animals years. Mid-Am also requests the for such animals, there have been no other than nonhuman primates, most suspension of the touch-base and provisions in the regulations diversion limitation requirements facilities do have perimeter fences in specifically requiring their use. Adding place. It has been the policy of the during the months of September 1997 the perimeter fence requirement to the through August 1998. These Animal and Plant Health Inspection regulations for these additional Service (APHIS) that perimeter fences requirements have been suspended categories of animals would serve to since September 1985. should be in place at outdoor and protect the safety of the animals and sheltered housing facilities for animals These provisions have been provide for their well being. suspended previously in order to other than nonhuman primates, but, as DATES: Consideration will be given only maintain the pool status of producers noted above, only the regulations in to comments received on or before July who have historically supplied the fluid subpart D require perimeter fences. We 7, 1997. needs of Eastern Colorado distributing now believe that it is necessary to plants. Mid-Am asserts that they have ADDRESSES: Please send an original and include perimeter fence requirements in made a commitment to meet the fluid three copies of your comments to subparts E and F in order to protect the requirements of fluid distributing plants Docket No. 95–029–1, Regulatory safety of marine mammals and certain if the suspension request is granted. Analysis and Development, PPD, other animals and to provide for their Without the suspension action, Mid-Am APHIS, Suite 3C03, 4700 River Road well-being. We will not be amending contends that it will be necessary to Unit 118, Riverdale, MD 20737–1238. subpart A (cats and dogs) or subpart C ship milk from distant areas to Denver Please state that your comments refer to (rabbits) at this time as most dogs, cats, area bottling plants. This will displace Docket No. 95–029–1. Comments and rabbits are currently maintained in locally produced milk that would then received may be inspected at USDA, enclosed kennels or indoors, with the have to be shipped from the Denver area room 1141, South Building, 14th Street exception of tethered dogs. Tethered to surplus handling plants. and Independence Avenue SW., dogs are already required to have a In addition, Mid-Am maintains that Washington, DC, between 8 a.m. and perimeter fence. No amendment is ample supplies of locally produced milk 4:30 p.m., Monday through Friday, needed in subpart B (guinea pigs and will be available to meet fluid needs except holidays. Persons wishing to hamsters) because outdoor housing for without requiring that each producer’s inspect comments are requested to call hamsters is prohibited, and any outdoor milk be received at least three times ahead on (202) 690–2817 to facilitate housing for guinea pigs must be each month at a pool distributing plant entry into the comment reading room. approved in advance by APHIS. or by restricting the amount of milk that FOR FURTHER INFORMATION CONTACT: Dr. Therefore, we are proposing to amend can be diverted to nonpool plants. Barbara Kohn, Staff Veterinarian, §§ 3.103 and 3.127 to require that a Animal Care, APHIS, 4700 River Road perimeter fence be placed around the List of Subjects in 7 CFR Part 1137 Unit 84, Riverdale, MD 20737–1234; outdoor areas of sheltered housing Milk marketing orders. (301) 734–7833. facilities and outdoor housing facilities 24612 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules for marine mammals and animals other animals include, but are not limited to, primary enclosure to prevent physical than cats, dogs, guinea pigs, hamsters, large felines (e.g., lions, tigers, leopards, contact between animals inside the rabbits, nonhuman primates, and cougars, bobcats, etc.), bears, wolves, enclosure and animals and persons marine mammals. With the exception of elephants, and rhinoceros. This outside the perimeter fence. Sufficient the proposed 8-foot-fence requirement provision would protect the animals space—i.e., at least 3 feet—would also explained in the following paragraphs, from injury by other species and would provide enough room to clean and the proposed requirements would serve prevent the animals’ exposure to maintain the space between the the same purpose as those currently diseases carried by other species. perimeter fence and the primary found in §§ 3.77 and 3.78 for nonhuman However, as in the case of polar bears, enclosure. This provision would offer a primates. we propose that for potentially ‘‘safety zone’’ for the animals in the For marine mammals, we propose that dangerous animals covered by the facility by ensuring that animals or the perimeter fence be high enough to regulations in subpart F, the perimeter persons outside of the perimeter fence reasonably be expected to keep animals fence be a minimum of 8 feet in height cannot reach into the enclosure to poke, and unauthorized persons out of the to provide an added measure of security bite, or otherwise harm a contained containment area. If the facility is a sea for the protection of the animals and the animal or expose a contained animal to pen facility, this would mean that a protection of the public. As with polar disease. perimeter fence high enough to bears, it is in the interest of the welfare However, we recognize that reasonably be expected to keep animals of the animal to be contained within the conditions at a particular facility may and unauthorized persons from gaining facility, rather than tracked and possibly allow for less space between the access to the sea pen from the killed if it escapes from containment. perimeter fence and the outside wall or surrounding land would be installed to Therefore, we believe that a perimeter fence of the primary enclosure for encompass the land portion of the fence measuring at least 8 feet in height marine mammals or animals other than facility (from one end of sea pen- would act as a secondary containment cats, dogs, guinea pigs, hamsters, shoreline contact, around the land based system and would reduce the possibility rabbits, nonhuman primates, and portion of the facility, to the other end that a potentially dangerous animal marine mammals. A fence located less of sea pen-shoreline contact). The would escape from the containment area than 3 feet away from the outside wall perimeter fence would help prevent and be harmed in its recapture or of the primary enclosure would have to injury of marine mammals by other control. be approved by the Administrator. animals or persons and would afford the However, we recognize that Approval by the Administrator would marine mammals protection from conditions at a particular facility may only be given if the alternative spacing exposure to diseases. We believe that for allow for the use of a shorter perimeter offered by the facility would provide the most marine mammals, a perimeter fence for marine mammals or animals same or better degree of protection from fence should be at least 6 feet high to other than cats, dogs, guinea pigs, physical contact between the animals reasonably be expected to prevent entry hamsters, rabbits, nonhuman primates, inside the enclosure and animals and of animals and unauthorized persons, and marine mammals. The shorter fence persons outside the perimeter fence and and protect against disease exposure. would have to be approved by the would provide the same or better degree However, in the case of polar bears, we Administrator. Approval by the of protection from possible escape of a believe that the perimeter fence should Administrator of a shorter perimeter housed animal. be at least 8 feet high to provide an fence would only be given if the added measure of security for the alternative security measures offered by There may be cases in which the protection of the bears and the the facility would provide the same or conditions at a facility are such that a protection of the public. Polar bears are better degree of protection from access perimeter fence is not necessary to keep categorized as dangerous animals and by animals and unauthorized persons, animals and unauthorized persons from will likely attack if provoked. Should disease exposure, and animal escape, if entering the facility or from having the bears escape from captivity, they applicable. physical contact with animals in the would be subject to potentially We are also proposing to require that facility. Therefore, the proposed dangerous, or lethal, recapture and the perimeter fence be constructed so regulations state that a perimeter fence control methods. It is in the interest of that it prevents animals the size of dogs, is not required if the outside walls of the the welfare of the animal to be skunks, and raccoons, as well as primary enclosure are made of sturdy, contained within the facility, rather unauthorized persons, from going durable material, which may include than tracked and possibly killed if it through or under the fence. The certain types of concrete, wood, plastic, escapes from containment. Therefore, perimeter fence could be slatted, metal, or glass, and are high enough and we believe that a perimeter fence latticed, or of other similar design, as constructed in a manner that restricts measuring at least 8 feet in height would long as it is designed and constructed in contact with or entry by animals and act as a secondary containment system a manner that restricts unauthorized unauthorized persons that are outside and would reduce the possibility that a animals and persons from entering the the facility, and the Administrator gives polar bear would escape from the facility or having contact with the written approval. containment area and be harmed in its animals in the facility and can function Similarly, a perimeter fence would recapture or control. as a secondary containment system for not be required if the facility is Except for potentially dangerous the animals in the facility. This surrounded by an effective (i.e., animals, we propose to require that the provision would help prevent an impenetrable) natural barrier that keeps perimeter fence for animals other than animal’s injury and exposure to disease the animals in the facility and protects cats, dogs, guinea pigs, hamsters, from unauthorized animals, and would them from contact with animals and rabbits, nonhuman primates, and minimize the need to employ unauthorized persons that are outside of marine mammals be high enough to potentially harmful or fatal recapture the facility. As a means of ensuring that reasonably be expected to keep animals techniques. the natural barrier is inspected and and unauthorized persons out of the We are proposing to require that the found to be adequate, the operator of the containment area. For the purposes of perimeter fence be set far enough away facility would have to obtain written this regulation, potentially dangerous from the outside wall or fence of the permission from the Administrator to Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24613 use a natural barrier instead of a and operating budget (funding levels, present an irreconcilable conflict with perimeter fence. income, etc.) vary greatly from facility to this rule. The Act does not provide We believe that the proposed facility. administrative procedures which must requirements for perimeter fences A 50-yard roll of a 6-foot-high chain be exhausted prior to a judicial would serve to protect the safety of link fence would cost approximately challenge to the provisions of this rule. marine mammals and animals other $60 to $70, and a 50-yard roll of an 8- than cats, dogs, guinea pigs, hamsters, foot-high fence would cost Paperwork Reduction Act rabbits, nonhuman primates, and approximately $80 to $100. There is In accordance with section 3507(d) of marine mammals in facilities and would some flexibility as to the type of fence the Paperwork Reduction Act of 1995 provide for the well-being of such a facility could use, so certain facilities (44 U.S.C. 3501 et seq.), the information animals. may have a perimeter fence of less collection or recordkeeping expensive material, such as a tightly requirements included in this proposed Executive Order 12866 and Regulatory woven wire. In addition, a fence that is rule have been submitted for approval to Flexibility Act not tall enough to meet the proposed 6- the Office of Management and Budget This proposed rule has been reviewed foot or 8-foot height requirement could (OMB). Please send written comments under Executive Order 12866. The rule be modified to meet the standard rather to the Office of Information and has been determined to not be than replaced if a 6- or 8-foot-high fence Regulatory Affairs, OMB, Attention: significant for the purpose of Executive was necessary for the facility. The size Desk Officer for APHIS, Washington, DC Order 12866 and, therefore, has not of a perimeter fence for a dealer, 20503. Please state that your comments been reviewed by the Office of exhibitor, or research facility would refer to Docket No. 95–029–1. Please Management and Budget. depend on the size of the facility and send a copy of your comments to: (1) This proposed rule would amend the type of housing provided, but for almost Docket No. 95–029–1, Regulatory Animal Welfare regulations by requiring all facilities, we estimate that perimeter Analysis and Development, PPD, that a perimeter fence be placed around fences represent less than 5 percent of APHIS, suite 3C03, 4700 River Road the outdoor areas of sheltered housing total expenses for the facility. Unit 118, Riverdale, MD 20737–1238, facilities and outdoor housing facilities There are several reasons the impact and (2) Clearance Officer, OIRM, USDA, for marine mammals and animals other of the proposed requirement on small room 404-W, 14th Street and than cats, dogs, guinea pigs, hamsters, businesses would be limited. First, most Independence Avenue SW., rabbits, nonhuman primates, and licensed dealers and regulated Washington, DC 20250. A comment to marine mammals. exhibitors already meet the proposed OMB is best assured of having its full Class A and B dealers, Class C perimeter fence requirement. Most effect if OMB receives it within 30 days exhibitors, registered exhibitors, and research facilities do not utilize of publication of this proposed rule. research facilities are the entities that sheltered and/or outdoor housing This proposed rule would amend the would be affected by the proposed facilities (it is estimated that greater Animal Welfare regulations to require perimeter fence requirement. Class A than 90 percent of research facilities are that a perimeter fence be placed around dealers breed and raise animals to sell solely indoor facilities), and all research the outdoor areas of sheltered housing for research, teaching, or exhibition; facilities utilizing outdoor housing for facilities and outdoor housing facilities Class B dealers include brokers and nonhuman primates are already for marine mammals and certain other operators of auctions sales for animals; required to provide perimeter fencing in regulated animals. The proposed rule and Class C licensees and registered accordance with the regulations in would provide the opportunity for a exhibitors include exhibitors such as subpart D. Second, fencing costs facility to request approval from the animal acts, carnivals, circuses, and represent only a small portion of a Administrator to have a shorter public and roadside zoos. Research facility’s operational costs. Finally, the perimeter fence or other measures, if facilities include schools, institutions, fencing requirements are relatively that facility already provides the same organizations, or persons who use live flexible and provide for alternatives or better degree of protection from animals in research, tests, or where appropriate. access by animals and unauthorized experiments. Under these circumstances, the persons, disease exposure, and animal In 1995, there were 4,325 licensed Administrator of the Animal and Plant escape. In order to adequately evaluate dealers, 1,968 regulated exhibitors, and Health Inspection Service has and track such requests, the facility 1,300 registered research facilities. determined that this action would not must make the request in writing. According to the Small Business have a significant economic impact on Facilities not in compliance with the Administration (SBA) size standards, a substantial number of small entities. rule must come into compliance or more than 50 percent of zoos are request approval from the Administrator considered large businesses. There are Executive Order 12372 for a shorter fence or other measures. no SBA standards for animal dealers; This program/activity is listed in the Requests for approval from the the number of animals handled and Catalog of Federal Domestic Assistance Administrator would usually be a one gross sales vary greatly with the type of under No. 10.025 and is subject to time request. We are soliciting animals bought and sold by a dealer. Executive Order 12372, which requires comments from the public (as well as Class A and B dealers may deal in exotic intergovernmental consultation with affected agencies) concerning our animals for private owners and for State and local officials. (See 7 CFR part proposed information collection. We public exhibition, as well as in animals 3015, subpart V.) need this outside input to help us: for biomedical research. There are no (1) Evaluate whether the proposed uniform SBA standards for research Executive Order 12988 information collection is necessary for facilities, as the standards are This proposed rule has been reviewed the proper performance of our agency’s categorized for type of research under Executive Order 12988, Civil functions, including whether the activities undertaken and/or number of Justice Reform. It is not intended to information will have practical utility; employees. The type of research have retroactive effect. This rule would (2) Evaluate the accuracy of our activities undertaken, type and number not preempt any State or local laws, estimate of the burden of the proposed of animals used, number of employees, regulations, or policies, unless they information collection, including the 24614 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules validity of the methodology and wall or fence of the primary enclosure enclosure must be approved by the assumptions used; to prevent physical contact between Administrator. A perimeter fence is not (3) Enhance the quality, utility, and animals inside the enclosure and required if: clarity of the information to be animals or persons outside the (1) The outside walls of the primary collected; and perimeter fence. Such fences less than 3 enclosure are made of sturdy, durable (4) Minimize the burden of the feet in distance from the primary material, which may include certain information collection on those who are enclosure must be approved by the types of concrete, wood, plastic, metal, to respond (such as through the use of Administrator. For facilities with sea or glass, and are high enough and appropriate automated, electronic, pens, the perimeter fence must prevent constructed in a manner that restricts mechanical, or other technological access by animals and unauthorized contact with or entry by animals and collection techniques or other forms of persons to the sea pen from the unauthorized persons that are outside information technology, e.g., permitting surrounding land, and would be the outdoor facility, and the electronic submission of responses). required to encompass the land portion Administrator gives written approval; or Estimate of burden: Public reporting of the facility from one end of sea pen- (2) The outdoor facility is surrounded burden for this collection of information shoreline contact to the other end of sea by an impenetrable natural barrier that is estimated to average 2 hours per pen-shoreline contact. A perimeter restricts the animals in the facility to the response. fence is not required if: facility and protects them from contact Respondents: Dealers, exhibitors, and (1) The outside walls of the primary with animals and unauthorized persons research facilities. enclosure are made of sturdy, durable that are outside the facility, and the Estimated number of respondents: material, which may include certain Administrator gives written approval. 164. types of concrete, wood, plastic, metal, Estimated number of responses per or glass, and are high enough and Done in Washington, DC, this 30th day of April 1997. respondent: 1. constructed in a manner that restricts Estimated total annual burden on contact with or entry by animals and Donald W. Luchsinger, respondents: 328 hours. unauthorized persons that are outside Acting Administrator, Animal and Plant Copies of this information collection the outdoor facility, and the Health Inspection Service. can be obtained from: Clearance Officer, Administrator gives written approval; or [FR Doc. 97–11723 Filed 5–5–97; 8:45 am] OIRM, USDA, room 404-W, 14th Street (2) The outdoor facility is surrounded BILLING CODE 3410±34±P and Independence Avenue, SW., by an impenetrable natural barrier that Washington, DC 20250. restricts the marine mammals to the facility and protects them from contact List of Subjects in 9 CFR Part 3 CONSUMER PRODUCT SAFETY with animals and unauthorized persons COMMISSION Animal welfare, Marine mammals, that are outside the facility, and the Pets, Reporting and recordkeeping Administrator gives written approval. 16 CFR Part 1015 requirements, Research, Transportation. 3. Section 3.127 would be amended Accordingly, 9 CFR part 3 would be by adding a new paragraph (d) to read Procedures for Disclosure or amended as follows: as follows: Production of Information Under the Freedom of Information Act; PART 3ÐSTANDARDS § 3.127 Facilities, outdoor. Amendments * * * * * 1. The authority citation for part 3 (d) Perimeter fence. On or after [date AGENCY: Consumer Product Safety would be revised to read as follows: 6 months after effective date of final Commission. Authority: 7 U.S.C. 2131–2159; 7 CFR 2.22, rule] an outdoor facility must be ACTION: Proposed amendments to rule. 2.80, and 371.2(d). enclosed by a fence that is of sufficient SUMMARY: The Electronic Freedom of 2. Section 3.103 would be amended height to keep animals and unauthorized persons out. Fences less Information Act Amendments of 1996, by adding a new paragraph (c) to read which amend the Freedom of as follows: than 8 feet high for potentially dangerous animals, such as, but not Information Act, are designed to make § 3.103 Facilities, outdoor. limited to, large felines (e.g., lions, government documents more accessible to the public in electronic form. The * * * * * tigers, leopards, cougars, bobcats, etc.), (c) Perimeter fence. On and after [date bears, wolves, rhinoceros, and amendments are also intended to 6 months after effective date of final elephants, or less than 6 feet high for expedite and streamline the process by rule] an outdoor facility must be other animals must be approved by the which agencies disclose information enclosed by a fence that is of sufficient Administrator. The fence must be generally. In this notice, the height to keep animals and constructed so that it protects the Commission proposes amendments to unauthorized persons out. Fences less animals in the facility by restricting its Freedom of Information Act than 8 feet high for polar bears or less animals and unauthorized persons from regulations to comply with the than 6 feet high for other marine going through it or under it and having requirements of the new statute. mammals must be approved by the contact with the animals in the facility, DATES: Comments concerning this Administrator. The fence must be and so that it can function as a proposal must be received in the Office constructed so that it protects marine secondary containment system for the of the Secretary no later than July 7, mammals by restricting animals and animals in the facility. It must be of 1997. The amendments are proposed to unauthorized persons from going sufficient distance from the outside wall become effective 30 days after their through it or under it and having or fence of the primary enclosure to publication in the Federal Register in contact with the marine mammals, and prevent physical contact between final form. so that it can function as a secondary animals inside the enclosure and ADDRESSES: Mail comments concerning containment system for the animals in animals or persons outside the this proposal to the Office of the the facility when appropriate. It must be perimeter fence. Such fences less than 3 Secretary, Consumer Product Safety of sufficient distance from the outside feet in distance from the primary Commission, Washington, DC 20207, or Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24615 deliver them to room 502, 4330 East this definition of ‘‘record’’ and to clarify requests. If requests were processed on West Highway, Bethesda, MD 20814. that the Commission produces all a strict first in, first out basis, easily Comments may be seen in the releasable records responsive to a FOIA filled requests—for example for a press Commission’s Public Reading Room, request, whether in traditional paper or release or Commission brochure— 4330 East West Highway, Bethesda, MD electronic form. would be processed only after earlier- 20814. B. Electronic Reading Room received, complex requests for dozens of FOR FURTHER INFORMATION CONTACT: documents located in offices throughout Jayme Rizzolo Epstein, Office of the FOIA section 552(a)(2) requires the Commission. The Commission General Counsel, Consumer Product agencies to make available for currently intends to process FOIA Safety Commission, Washington, DC inspection and copying the following: requests on five tracks, as follows: 20207, telephone (301) 504–0980; or (1) Final opinions and orders made in adjudicated cases; (2) statements of Track 1: Responsive documents are Todd Stevenson, Freedom of available in the Office of the Secretary in Information Officer, Office of the policy and interpretations not published releasable form. Examples include press Secretary, Consumer Product Safety in the Federal Register; and (3) releases, Commission brochures, and cleared Commission, Washington, DC 20207, administrative staff manuals and Commission briefing packages. telephone (301) 504–0800. instructions to staff that affect the Track 2: Responsive documents are on file public. 5 U.S.C. 552(a)(2). As stated in outside the Office of the Secretary in one SUPPLEMENTARY INFORMATION: the Commission’s FOIA regulations, the easily identifiable location, but must be Background Information Commission maintains these materials located and copied, and require internal clearance. Examples include meeting logs, On October 2, 1996, the President in its Public Information Center. 16 CFR 1015.2(a). EFOIA adds a fourth category technical reports and contractor reports. signed into law the Electronic Freedom Track 3: Responsive documents are located of Information Act Amendments of 1996 to the materials that agencies must place in various Commission offices and require (‘‘EFOIA’’), Public Law 231, 110 Stat. in their reading rooms: internal clearance. 3048 (1996). EFOIA includes provisions Copies of all records * * * which have Track 4: Responsive documents require authorizing or requiring agencies to been released to any person under [FOIA] both internal clearance and review by promulgate regulations implementing and which, because of the nature of their identified manufacturers pursuant to sections 6(a) and/or (b) of the Consumer Product certain of its requirements, including subject matter, the agency determines have become or are likely to become the subject of Safety Act, 15 U.S.C. 2055(a) and (b). the tracking of Freedom of Information subsequent requests for substantially the Examples include requests for information Act (‘‘FOIA’’) requests, the aggregation same records. regarding Commission investigations of of FOIA requests, and the expedited specific products and/or companies. processing of FOIA requests. In EFOIA sec. 4; 5 USC § 552(a)(2)(D). EFOIA further requires agencies to Track 5: Responsive documents are addition, EFOIA changes the time limit voluminous or are located in various make available by ‘‘computer for responding to a FOIA request from Commission offices, and require section 6(a) telecommunications’’ all reading room ten to twenty days, the requirements for and/or (b) review. materials that are created on or after reporting regarding FOIA activities to In general, when a request is received, Congress, and the cases in which an November 1, 1996. The statute envisions that each agency will ultimately have the Freedom of Information Office will agency may extend the time within review it and categorize it for tracking which it will respond to a FOIA request. both a traditional reading room and a new ‘‘electronic reading room’’ on the purposes. Requests within each ‘‘track’’ EFOIA also includes provisions will then be processed according to the regarding the availability of documents World-Wide Web. Proposed regulation 1015.2(c) states date of receipt within each category. in electronic form, the treatment of that the Commission will post the This should help further expedite electronic records, and the requisite materials on its Website. responses to FOIA requests that are establishment of ‘‘electronic reading Where appropriate and feasible, and as easier to fill. Of course, many requests rooms.’’ resources permit, the Commission may are unique and will not easily fit one of The Consumer Product Safety the above descriptions. Others may Commission (‘‘Commission’’) proposes also place additional reading room materials on the Website. appear to qualify for a fast track but amendments to its regulations prove complex once the search for the implementing the Freedom of C. Multitrack Processing of Requests responsive documents is underway. As Information Act, 16 CFR part 1015. The EFOIA authorizes agencies to the Office of the Secretary implements proposed amendments would revise the promulgate regulations providing for and gains experience with the Commission’s FOIA regulations to multitrack processing of requests for multitrack system, adjustments will comply with EFOIA. records based on the amount of work almost certainly be required. New Provisions and/or time involved in processing Pursuant to proposed regulation requests. EFOIA section 7(a); 5 USC 1015.3(e), the Office of the Secretary A. Electronic Records 552(a)(6)(D)(i). This would expedite the may contact requesters whose requests Section 3 of EFOIA amends 5 USC production of records where little work do not appear to qualify for the fastest 552(f) to define ‘‘record’’ for purposes of or time is required. The statute states tracks and provide such requesters the FOIA as including ‘‘any information that an agency’s regulations may opportunity to limit their requests so that would be an agency record subject include a provision granting a FOIA they qualify for a faster track. Such to the requirements of (5 USC section requester whose request does not notification will be at the discretion of 552) when maintained by an agency in qualify for the fastest multitrack the Office of the Secretary and will any format, including an electronic processing an opportunity to limit the depend largely on whether that Office format.’’ Section 552(f) thus clarifies scope of the request in order to qualify believes that a narrowing of the request that the term ‘‘agency record’’ includes for faster processing. 5 USC could put the request on a faster track. information stored on computer as well 552(6)(D)(ii). The regulation further provides that as traditional paper documents. The The Commission believes that requesters who believe that their proposed regulations amend 16 CFR multitrack processing is the most requests qualify for the fastest tracks 1015.1(a) by adding language to reflect efficient and fair way to process FOIA and who wish to be notified if the Office 24616 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules of the Secretary disagrees may so promulgate regulations providing for the engages in information dissemination, indicate in the request. If practicable, expedited processing of FOIA requests besides other activities, would not the Office of the Secretary may also in cases of ‘‘compelling need’’ and in satisfy this requirement.’’ Id. work with such requesters to limit their other cases determined by the agency. To meet the second ‘‘urgency to requests to qualify for a faster track. EFOIA sec. 8(a); 5 U.S.C. 552(a)(6)(E)(i). inform’’ criterion, the requester must The statute specifies two categories of show more than a general interest in the D. Time Limit for Responding to ‘‘public’s right to know.’’ See id. Rather, Requests ‘‘compelling need’’: (1) That a failure to obtain requested as explained in the legislative history, a 1. General: EFOIA lengthened the records on an expedited basis under this requester must show that a delay in the time within which agencies must paragraph could reasonably be expected to release of the requested information respond to FOIA requests from ten to pose an imminent threat to the life or would ‘‘compromise a significant twenty working days. EFOIA sec. 8(b); physical safety of an individual; or recognized interest,’’ and that the 5 U.S.C. 552(a)(6)(A)(i). The proposed (2) With respect to a request made by a requested information ‘‘pertain[s] to a regulations amend the Commission’s person primarily engaged in disseminating matter of current exigency to the current regulations to conform to the information, urgency to inform the public American public.’’ Id. (emphasis new time limit. See 16 CFR 1015.4, concerning actual or alleged Federal Government activity. added). It would, therefore, be 1015.5(a), 1015.6(c). insufficient to base a showing of 2. Extension of time in unusual 5 U.S.C. 552(a)(6)(E)(v). Additionally, ‘‘compelling need’’ on a reporter’s circumstances: Pursuant to FOIA the statute sets forth requirements for desire to inform the public of something section 552(a)(6)(B), agencies are the handling of requests for expedited he or she believes might be of public permitted to extend the time limit for processing and for the judicial review of concern if it were publicized. Rather, a responding to a request or deciding an agency denials of such requests. 5 reporter must show that the information appeal of a denial of a request in U.S.C. 552(a)(6)(E)(ii)–(iv). pertains to a subject currently of ‘‘unusual circumstances,’’ as defined in Proposed regulation 1015.5(f) significant interest to the public and that section, for no more than ten implements the expedited processing that delaying the release of the working days, upon written notice to requirements of EFOIA. The information would harm the public’s the requester. 5 U.S.C. 552(a)(6)(B). Commission emphasizes that, in ability to assess the subject EFOIA amends section 552(a)(6)(B) to keeping with Congress’ express intent governmental activity. permit agencies to extend the response that the specified criteria for compelling The final ‘‘urgency to inform’’ time by notifying the requesters and need ‘‘be narrowly applied,’’ expedited criterion makes clear that the providing them with an opportunity to: processing will be granted only in those information must relate to the activities (1) Limit the scope of the request so that truly extraordinary cases meeting the of the Commission and its staff. A it may be timely answered; or (2) specific statutory requirements. H.R. request for expedited processing could arrange with the agency an alternative Rep. 795, 104th Cong., 2d Sess. 26 thus be considered for information time frame for processing the request. (1996) (hereafter ‘‘House Report’’). As relating, for example, to a Commission EFOIA sec. 7(b); 5 U.S.C. the legislative history states, ‘‘the decision. The Office of the Secretary 552(a)(6)(B)(ii). EFOIA also provides expedited process procedure is intended generally would not, however, grant a that a requester’s refusal to modify a to be limited to circumstances in which request for expedited processing of request or arrange an alternative a delay in obtaining information can information the Commission has response time shall be considered a reasonably be foreseen to cause a collected regarding incidents involving factor in the judicial review of an significant adverse consequence to a specific consumer products. agency’s failure to comply with the recognized interest.’’ Id. EFOIA also authorizes agencies to applicable time limits. EFOIA does not A requester seeking expedited expand the categories of requests alter the definition of ‘‘unusual processing under the ‘‘imminent threat’’ qualifying for expedited processing circumstances.’’ category of the ‘‘compelling need’’ beyond the two specified in the statute. The proposed regulations would add definition must show that: (1) The EFOIA sec. 8(a); 5 U.S.C. 552 a new paragraph (d) to 16 CFR 1015.5 failure to obtain the information (a)(6)(E)(i)(II). The Commission has to conform to the new provision. expeditiously threatens the life or safety determined that no further categories 3. Aggregation of related requests: of an individual; and (2) the threat is are currently necessary or appropriate. EFOIA authorizes agencies to ‘‘imminent.’’ That an individual or his As the legislative history explains, promulgate regulations providing for the or her attorney needs information for an ‘‘[g]iven the finite resources generally aggregation of related requests by the approaching litigation deadline is not a available for fulfilling FOIA requests, same requester or a group of requesters ‘‘compelling need’’ under this unduly generous use of the expedited acting in concert when the requests provision. processing procedure would unfairly would, if treated as a single request, A requester seeking expedited disadvantage other requestors who do present ‘‘unusual circumstances’’ as processing under the second, ‘‘urgency not qualify for its treatment.’’ House defined in 5 U.S.C. 552(a)(6)(B). EFOIA to inform,’’ category must show that: (1) Report at 26. section 7(b); 5 USC 552(a)(6)(B)(iv). He or she is ‘‘primarily engaged in As EFOIA requires, proposed Proposed regulation 1015.5(e) disseminating information;’’ (2) there is regulation 1015.5(f)(5) states that the implements this provision. As EFOIA an ‘‘urgency to inform the public’’ about Secretary will process requests granted requires, the proposed regulation the information requested; and (3) the expedited processing ‘‘as soon as provides that requests will be aggregated information relates to an ‘‘actual or practicable.’’ See EFOIA sec. 8(a); 5 only when the Commission ‘‘reasonably alleged Federal government activity.’’ U.S.C. 552(a)(6)(E)(iii). Pursuant to this believes that such requests actually To meet the first ‘‘urgency to inform’’ requirement, the Office of the Secretary constitute a single request’’ and the criterion, the requester must show that will give priority to such requests. requests ‘‘involve clearly related his or her principal occupation is 5. Time limits and section 6(b) of the matters.’’ Id.; 16 CFR 1015.5(e). disseminating information to the public. Consumer Product Safety Act: Pursuant 4. Requests for expedited processing: As the legislative history makes clear, to section 6(b) of the Consumer Product EFOIA requires each agency to ‘‘[a] requestor who only incidentally Safety Act (15 U.S.C. 2055(b)), prior to Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24617 the release of information that identifies § 1015.9(e)(5) sets forth the amount Impact on Small Business a manufacturer or private labeler, the charged for computerized records that In accordance with the Regulatory Commission must ‘‘take reasonable the Commission retrieves from on offsite Flexibility Act, 5 U.S.C. 605(b), the steps to assure * * * that (the central processing system. Currently, information) is accurate, and that (its) Commission certifies that these the majority of computer printouts are amendments will not have a significant disclosure is fair in the circumstances made at the Commission’s offices, and and reasonably related to effectuating economic impact upon a substantial the specified calculation is inapplicable. number of small entities. the purposes of the (Consumer Product Proposed § 1015.9(e)(5) would amend Safety Act).’’ Section 6(b) requires that the regulation to specify a charge of ten Environmental Considerations the Commission notify identified cents per page for computer printouts These amendments do not fall within manufacturers and private labelers that generated at the Commission. it intends to disclose information at any of the categories of Commission least 30 days prior to the disclosure. 15 Section 1015.9(g)(1) currently states activities described in 16 CFR 1021.5(b) U.S.C. 2055(b)(1). The manufacturer or that interest will be charged on fees which have the potential for producing private labeler may then submit owed ‘‘on the 31st day following the day environmental effects and which, comments regarding the disclosure of on which the billing was sent.’’ therefore, require environmental the information to the Commission. Id. (Emphasis added.) Proposed section assessments, and, in some cases, If the Commission, after reviewing the 1015.9(g)(1) would amend the environmental impact statements. The comments, decides to release the regulation to provide that interest will Commission does not believe that the information over the objections of the instead be calculated based on the day proposal contains any unusual aspects manufacturer or private labeler, it must the requester receives the bill, as is the which may produce effects on the so notify the firm at least 10 days prior current Commission practice. human environment, nor can the to the release. 15 U.S.C. 2055(b)(2). Commission foresee any circumstances The Supreme Court, in Consumer G. Annual Report to Congress in which the amendments may produce such effects. For this reason, neither an Product Safety Commission v. GTE The current Commission regulations environmental assessment nor an Sylvania, Inc., 100 S. Ct. 2051 (1980), describe the information the environmental impact statement is ruled that the Commission must follow Commission submits to Congress required. the requirements of section 6(b) prior to annually regarding the Commission’s the release of information in response to processing of FOIA requests. 16 CFR Preemption a FOIA request. As a result, it is 1015.10. EFOIA amended the FOIA frequently impossible for the In accordance with Executive Order provisions regarding reporting in several Commission to comply with FOIA time 12988 (February 5, 1996), the ways, including the timing of reports limits when information responsive to a Commission states that these request identifies a manufacturer or and the information to be reported. amendments have no preemptive effect. private labeler. When the Office of the EFOIA sec. 10; 5 U.S.C. 552(e). The Other Executive Orders Secretary receives a request for proposed regulations amend § 1015.10 information that requires section 6(b) to conform to the EFOIA reporting Because this rule will not have any review, it routinely notifies the requirements. significant impact on family formation, requester that the response will be Comments maintenance, or well-being if issued on delayed. Proposed regulation 1015.5(g) a final basis, no assessment of the rule is intended to assure that requesters are The Commission invites comments by is required by Executive Order 12606 of aware of the requirements of section interested persons on these proposed September 2, 1987. The Commission 6(b) and of the Commission’s section amendments to the Commission’s rules also certifies that the rule does not have 6(b) regulations at 16 CFR part 1101. governing the processing of FOIA sufficient implications for federalism to requests. Comments must be submitted warrant a Federalism Assessment under E. Estimates of the Volume of Materials Executive Order 12612 of October 26, Denied by July 7, 1997. Late filed comments will be considered to the extent 1987. EFOIA requires that agency responses practicable. Comments should be List of Subjects in 16 CFR Part 1015 denying information include an addressed to the Secretary, Consumer estimate of the volume of any Product Safety Commission, Administrative practice and responsive documents the agency is Washington, DC 20207, or delivered to procedure, Consumer protection, withholding. EFOIA sec. 8(c); 5 U.S.C. the Secretary in room 502, 4330 East Disclosure of information, Freedom of 552(a)(6)(F). Additionally, EFOIA West Highway, Bethesda, MD 20814. information. requires that when an agency withholds Interested persons may examine In accordance with the provisions of only a portion of a record, the response comments received in the Commission’s 5 U.S.C. 553 and under the authority of shall indicate the amount of information Public Reading Room, room 419, 4330 the Consumer Product Safety Act, 15 deleted on the released record, where East West Highway, Bethesda, MD, U.S.C. 2051 et seq., the Commission possible at the place of the deletion. between 8 a.m. and 5 p.m., Monday proposes to amend Part 1015 of Title 16, EFOIA sec. 9; 5 U.S.C. 552(b)(9). through Friday. Chapter II, of the Code of Federal Proposed regulation 1015.6 includes a Regulations as follows: new subparagraph (b)(3) to implement Proposed Effective Date these new requirements. PART 1015ÐPROCEDURES FOR The Commission proposes that the F. Fees DISCLOSURE OR PRODUCTION OF amendments become effective 30 days INFORMATION UNDER THE FREEDOM Proposed §§ 1015.9 (e)(5) and (g)(1) after the date of publication of the OF INFORMATION ACT would amend the current regulation on amendments in final form in the fees the agency charges for the Federal Register, and would apply to all 1. Section 1015.1 is amended by production of documents to reflect requests for information received after revising the second and third sentences current Commission practices. Current that date. of paragraph (a) as follows: 24618 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

§ 1015.1 Purpose and scope. to qualify for a faster track. Requesters expedited processing of requests in (a) * * * Official records of the who believe that their requests qualify cases where the requester demonstrates Consumer Product Safety Commission for the fastest tracks and who wish to be a compelling need for such processing. consist of all documentary material notified if the Secretary or delegate of (1) The term compelling need means: maintained by the Commission in any the Secretary disagrees may so indicate (i) That a failure to obtain requested format, including an electronic format. in the request and, where appropriate records on an expedited basis could These records include those maintained and feasible, will also be given an reasonably be expected to pose an in connection with the Commission’s opportunity to limit their requests. imminent threat to the life or physical responsibilities and functions under the 4. Section 1015.4 is amended by safety of an individual; or Consumer Product Safety Act, as well as revising the last sentence to read as (ii) With respect to a request made by those responsibilities and functions follows: a person primarily engaged in transferred to the Commission under the disseminating information, urgency to § 1015.4 Responses to requests for inform the public concerning actual or Federal Hazardous Substances Act, records; responsibility. Poison Prevention Packaging Act of alleged Federal Government activity. ** * If no response is made by the 1970, Refrigerator Safety Act, and (2) Requesters for expedited Commission within twenty working Flammable Fabrics Act, and those processing must include in their days, or any extension thereof, the maintained under any other authorized requests a statement setting forth the requester and the Commission may take activity * * * basis for the claim that a ‘‘compelling the action specified in § 1015.7(e). need’’ exists for the requested * * * * * 5. Section 1015.5 is amended by information, certified by the requester to 2. Section 1015.2 is amended by revising the heading and the first be true and correct to the best of his or revising paragraph (a) and adding sentence of paragraph (a), changing the her knowledge and belief. paragraph (c) as follows: phrase ‘‘Chairman of the Commission’’ (3) The Secretary or delegate of the § 1015.2 Public reference facilities. to ‘‘General Counsel of the Secretary will determine whether to Commission’’ in paragraph (b), and (a) The Consumer Product Safety grant a request for expedited processing adding new paragraphs (d), (e), (f), and Commission will maintain in a public and will notify the requester of such (g) as follows: reference room or area the materials determination within ten (10) days of receipt of the request. relating to the Consumer Product Safety § 1015.5 Time limitation on responses to (4) Denials of requests for expedited Commission which are required by 5 requests for records and requests for processing may be appealed to the U.S.C. 552(a)(2) and 552(a)(5) to be expedited processing. Office of the General Counsel as set made available for public inspection (a) The Secretary or delegate of the forth in § 1015.7 of this part. The and copying. The principal location will Secretary shall respond to all written General Counsel will expeditiously be in the Office of the Secretary of the requests for records within twenty (20) determine any such appeal. Commission. The address of this office working days (excepting Saturdays, (5) The Secretary or delegate of the is: Sundays, and legal public holidays). Secretary will process as soon as Office of the Secretary, Consumer Product *** practicable the documents responsive to Safety Commission, Room 500, 4330 East * * * * * a request for which expedited West Highway, Bethesda, MD 20814. (d) If the Secretary at the initial stage processing is granted. * * * * * or the General Counsel at the appellate (g) The Secretary may be unable to (c) The Consumer Product Safety stage determines that an extension of comply with the time limits set forth in Commission will maintain an time greater than ten (10) working days this § 1015.5 when disclosure of ‘‘electronic reading room’’ on the is necessary to respond to a request documents responsive to a request World-Wide Web for those records satisfying the ‘‘unusual circumstances’’ under this part is subject to the which are required by 5 U.S.C. 552(a)(2) specified in paragraph (b) of this requirements of section 6(b) of the to be available by ‘‘computer section, the Secretary or the General Consumer Product Safety Act, 15 U.S.C. telecommunications.’’ Counsel shall so notify the requester 2055(b), and the regulations 3. Section 1015.3 is amended by and give the requester the opportunity implementing that section, 16 CFR part adding a new paragraph (e) as follows: to: 1101. The Secretary or delegate of the (1) Limit the scope of the request so § 1015.3 Requests for records and copies. Secretary will notify requesters whose that it may be processed within the time requests will be delayed for this reason. * * * * * limit prescribed in paragraph (b); or 6. Section 1015.6 is amended by (e) The Consumer Product Safety (2) Arrange with the Secretary or the redesignating paragraph (b)(3) as (b)(4), Commission uses a multitrack system to General Counsel an alternative time adding a new paragraph (b)(3), and process requests under the Freedom of frame for processing the request or a revising the first sentence of paragraph Information Act that is based on the modified request. (c) as follows: amount of work and/or time involved in (e) The Secretary or delegate of the processing requests. Requests for Secretary may aggregate and process as § 1015.6 Responses: Form and content. records are processed in the order they a single request requests by the same * * * * * are received within each track. Upon requester, or a group of requesters acting (b) * * * receipt of a request for records, the in concert, if the Secretary or delegate (3) An estimation of the volume of Secretary or delegate of the Secretary reasonably believes that the requests requested material withheld. When only will determine which track is actually constitute a single request a portion or portions of a document are appropriate for the request. The which would otherwise satisfy the withheld, the amount of information Secretary or delegate of the Secretary unusual circumstances specified in deleted shall be indicated on the may contact requesters whose requests paragraph (b) of this section, and the released portion(s) of the record. When do not appear to qualify for the fastest requests involve clearly related matters. technically feasible, the indication of tracks and provide such requesters the (f) The Secretary or delegate of the the amount of material withheld will opportunity to limit their requests so as Secretary will consider requests for the appear at the place in the document Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24619 where any deletion is made. Neither an September 30 of the preceding year, and DATES: Written comments by June 6, estimation of the volume of requested the median number of days that such 1997. material nor an indication of the amount requests had been pending before the ADDRESSES: Submit written comments of information deleted shall be included Commission as of that date. to the Dockets Management Branch in a response if doing so would harm an (d) The number of requests for records (HFA–305), Food and Drug interest protected by the exemption in 5 received by the Commission and the Administration, 12420 Parklawn Dr., U.S.C. 552(b) pursuant to which the number of requests which the rm. 1–23, Rockville, MD 20857. material is withheld. Commission processed. FOR FURTHER INFORMATION CONTACT: (e) The median number of days taken * * * * * Robert J. Moore, Center for Food Safety by the Commission to process different (c) If no response is made within and Applied Nutrition (HFS–456), Food twenty (20) working days or any types of requests. (f) The total amount of fees collected and Drug Administration, 200 C St. SW., extension thereof, the requester can Washington, DC 20204, 202–205–4605. consider his or her administrative by the Commission for processing SUPPLEMENTARY INFORMATION: In the remedies exhausted and seek judicial requests. Federal Register of February 6, 1997 (62 relief in a United States District Court as (g) The number of full-time staff of the FR 5700), FDA published an advance specified in 5 U.S.C. 552(a)(4)(B). * ** Commission devoted to processing 7. Section 1015.9 is amended by requests for records under such notice of proposed rulemaking on revising paragraphs (e)(5) and (g)(1) to provisions, and the total amount CGMP in manufacturing, packing, or read as follows: expended by the Commission for holding dietary supplements (Docket processing such requests. No. 96N–0417). Interested persons were § 1015.9 Fees for production of records. given until May 7, 1997, to comment on Dated: April 29, 1997. the advance notice of proposed * * * * * Sadye E. Dunn, (e) * * * rulemaking. Secretary, Consumer Product Safety FDA has received requests from two * * * * * Commission. (5) Computerized records: $0.10 per manufacturers, and two trade [FR Doc. 97–11497 Filed 5–5–97; 8:45 am] page of computer printouts or, for organizations representing central processing, $0.32 per second of BILLING CODE 6355±01±P manufacturers, of dietary supplements central processing unit (CPU) time; for for an extension of the comment period. printer, $10.00 per 1,000 lines; and for Three requests asked that the agency computer magnetic tapes or discs, direct DEPARTMENT OF HEALTH AND extend the comment period in order to costs. HUMAN SERVICES provide more time for interested parties to develop comments on FDA’s request * * * * * Food and Drug Administration (g) * * * for information on whether (1) Interest will be charged on 21 CFR Ch. I requirements for manufacturing and amounts billed, starting on the 31st day handling dietary ingredients and dietary following the day on which the [Docket No. 96N±0417] supplements may be adequately requester received the bill. Interest will RIN 0910±AA59 addressed by a regulation based on the be at the rate prescribed in 31 U.S.C. principles of HACCP. The requests 3717. Current Good Manufacturing Practice stated that many dietary supplement 8. Section 1015.10 is amended by in Manufacturing, Packing, or Holding manufacturers were not familiar with revising the introductory paragraph and Dietary Supplements the HACCP concept, and additional paragraphs (b) through (g) as follows: time was needed to fully understand AGENCY: Food and Drug Administration, HACCP and its applicability to the § 1015.10 Commission report of actions to HHS. development of CGMP for dietary Congress. ACTION: Advance notice of proposed supplements. After careful On or before February 1 of each year, rulemaking; extension of comment consideration of the requests submitted the Commission shall submit a report of period. to the agency, FDA has decided to grant its activities with regard to freedom of an extension of the comment period information requests during the SUMMARY: The Food and Drug until June 6, 1997. preceding fiscal year to the Attorney Administration (FDA) is announcing Interested persons may, on or before General of the United States. This report that it is extending to June 6, 1997, the June 6, 1997, submit to the Dockets shall include: comment period for the advance notice Management Branch (address above) * * * * * of proposed rulemaking on current good written comments regarding this (b)(1) The number of appeals made by manufacturing practice (CGMP) in advance notice of proposed rulemaking. persons under such provisions, the manufacturing, packing, or holding Two copies of any comments are to be result of such appeals, and the reason dietary supplements that published in submitted, except that individuals may for the action upon each appeal that the Federal Register of February 6, 1997 submit one copy. Comments should be results in a denial of information; and (62 FR 5700). This action is being taken identified with the appropriate docket (2) a complete list of all statutes that in response to several requests from number found in brackets in the the Commission relies upon to withhold interested persons for an extension of heading of this document. Received information under such provisions, a the comment period on this document comments may be seen in the office description of whether a court has to allow a more thorough development above between 9 a.m. and 4 p.m., upheld the decision of the Commission of comments on FDA’s request for Monday through Friday. to withhold information under each information on whether requirements Dated: April 28, 1997. such statute, and a concise description for manufacturing and handling dietary of the scope of any information ingredients and dietary supplements William B. Schultz, withheld. may be addressed by a regulation based Deputy Commissioner for Policy. (c) The number of requests for records on the principles of Hazard Analysis [FR Doc. 97–11713 Filed 5–5–97; 8:45 am] pending before the Commission as of and Critical Control Points (HACCP). BILLING CODE 4160±01±F 24620 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

DEPARTMENT OF JUSTICE and Drug Administration for marketing the abuse or misuse of any other agent in the United States in April 1996) that is taken outside of appropriate Drug Enforcement Administration petitioned the DEA on March 18, 1991 medical direction. However, the DHHS to decontrol fenfluramine, citing a lack did cite neurotoxic consequences and 21 CFR Part 1308 of actual or potential for abuse. The primary pulmonary hypertension in [DEA Number 162P] DEA Administrator, after gathering humans as possible safety risks available data and conducting an initial associated with fenfluramine use. The Schedules of Controlled Substances: review of that data, requested a DHHS review also indicates that based Proposed Removal of Fenfluramine scientific and medical evaluation and upon over 20 years of marketing of From the Controlled Substances Act scheduling recommendation from the fenfluramine in the United States and Assistant Secretary for Health, elsewhere, abuse of fenfluramine has AGENCY: Drug Enforcement Department of Health and Human not been demonstrated to result in Administration (DEA), Justice. Services (DHHS) by letter dated either physical or psychic dependence ACTION: Notice of proposed rulemaking. December 2, 1991 in accordance with 21 that would lead to craving of the desire U.S.C. 811(b). DHHS provided its to re-initiate the drug upon SUMMARY: This proposed rule is issued discontinuation of use. The document by the Acting Deputy Administrator of medical and scientific evaluation and scheduling recommendation on indicates that reports of actual abuse, the DEA to remove the anorectic drug, diversion and withdrawal syndrome fenfluramine, including its salts, fenfluramine to the DEA by letter dated June 3, 1996. The Assistant Secretary for have been collected but are considered isomers and salts of isomers from isolated. The significance of these control under the Controlled Substances Health concluded that fenfluramine does not warrant control under the CSA reports, relative to the production of Act (CSA). This proposed action is dependence to the same extend as other based upon a finding by the Acting and recommended to the DEA that fenfluramine be decontrolled. The substances in Schedules IV or V, has not Deputy Administrator of the DEA that been established. the data collected and reviewed to date Assistant Secretary for Health provided a written scientific and medical The DHHS, in its evaluation, are insufficient to establish that however, noted that there had been fenfluramine has sufficient potential for evaluation which formed the basis for the recommendation. limited sales and prescribing of abuse and dependence to justify its fenfluramine from 1973 to 1992, thus continued control in any schedule at The DHHS evaluation considered data on abuse, diversion and trafficking this time. This rule, if finalized, would reports in the scientific and medical of fenfluramine would be expected to be remove all regulatory controls and literature (1968–1995), adverse reaction minimal. DHHS reported a recent criminal sanctions of the CSA from reports (1973–1995), data from the Drug dramatic increase in usage of activities involving fenfluramine. Abuse Warning Network (DAWN) fenfluramine, particularly in (1985–1993), the System to Retrieve DATES: Comments, objections, and combination with phentermine, a requests for a hearing must be received Information from Drug Evidence Schedule IV controlled substance. on or before July 7, 1997. (STRIDE) (1973–1991), marketing data DHHS noted that this could be reason (1990–1993) and other sources of ADDRESSES: Comments, objections and for concern because the long-term use information. Data from the scientific could significantly impact the public requests for a hearing should be and medical literature demonstrate that submitted in quintuplicate to the Acting health. fenfluramine is not an amphetamine- While the recommendations of DHHS Deputy Administrator, Drug like stimulant. Fenfluramine does not Enforcement Administration, are binding on DEA regarding scientific maintain self-administration as and medical matters, the Washington, DC 20537, Attn: DEA evidenced by studies in several species Federal Register Representative/CCR. recommendation to decontrol (rhesus monkeys, baboons, dogs or fenfluramine is not binding on the DEA FOR FURTHER INFORMATION CONTACT: rodents). In drug discrimination studies because fenfluramine is currently Frank Sapienza, Chief, Drug and in humans and laboratory animals, the controlled under the CSA. The DEA Chemical Evaluation Section, Drug effects of fenfluramine differed from must consider the DHHS Enforcement Administration, those of amphetamine and cocaine. In recommendation and all other relevant Washington, D.C. 20537, (202) 307– human studies, the subjective effects of data prior to making a determination as 7183. fenfluramine were found to differ from to whether substantial evidence of SUPPLEMENTARY INFORMATION: those of other amphetamine-like potential for abuse exists so as to Fenfluramine is an anorectic indicated anorectics. Fenfluramine however, at warrant continued control of for the management of exogenous high doses, displays complete fenfluramine under the CSA. Thus, the obesity that was first approved for generalization to MDMA in rodents. DEA examined the DHHS marketing in the United States under Subjective evaluation studies of high recommendation, supplemented by the trade name of Pondimin in 1973. doses of fenfluramine in humans shows more recent abuse, diversion, and Fenfluramine, its salts, isomers and salts that in some cases it produces euphoria trafficking data in light of the following of isomers, were placed into Schedule alternating with dysphoria. The DHHS factors determinative of control or IV of the CSA effective on June 15, 1973 reported that although high doses of removal of a drug or other substance because fenfluramine was determined to fenfluramine may result in LSD-like from the schedules [21 U.S.C. 811(c)]: be chemically and pharmacologically responses, these have been (1) Its actual or relative potential for similar to amphetamine and other characterized by dysphoric. Clinical abuse. anorectic drugs controlled under the data does not show that the use of (2) Scientific evidence of its CSA. This action was based on a fenfluramine or dexfenfluramine at high pharmacological effect, if known. recommendation by the Acting doses leads to dependence to the same (3) The state of current scientific Assistant Secretary for Health. extend as other substances in Schedules knowledge regarding the drug or other Interneuron Pharmaceuticals, Inc., the IV or V. The DHHS found the risks to substance. manufacturer of a new fenfluramine the public health resulting from the (4) Its history and current pattern of product (Redux, approved by the Food abuse of fenfluramine to be similar to abuse. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24621

(5) The scope, duration, and million, an increase of 6100 percent in is a formal rulemaking ‘‘on the record significance of abuse. four years. after opportunity for a hearing.’’ Such (6) What, if any, risk there is to the The Acting Deputy Administrator of proceedings are conducted pursuant to public health. the DEA, based on the DHHS evaluation the provisions of 5 U.S.C. 556 and 557 (7) Its psychic or physiological and the DEA review, has concluded that and, as such, are exempt from review by dependence liability. there is insufficient data available at this the Office of Management and Budget (8) Whether the substance is an time to establish that fenfluramine has pursuant to Executive Order (E.O.) immediate precursor of a substance a potential for abuse which warrants 12866, Section 3(d)(1). already controlled under the CSA. control under the CSA. Nevertheless, it The Acting Deputy Administrator, in In addition to the DHHS data, the is unclear whether the low levels of accordance with the Regulatory DEA review shows that: abuse, trafficking and diversion are due Flexibility Act [5 U.S.C. 605(b)], has (1) DAWN, forensic laboratory data to the fact that only recently reviewed this proposed rule and by and associated federal investigative files fenfluramine became available in approving it certifies that it will not show very little abuse, trafficking and significant quantities or if the low levels have a significant economic impact on diversion of fenfluramine. A few DEA of data are an indication that a substantial number of small-business Field Offices have reported increases in fenfluramine lacks abuse potential. entities. Fenfluramine is available in fenfluramine purchases by physicians Therefore, in light of the increasing drug products for the treatment of and pharmacies accompanied by availability and use of fenfluramine, obesity, some of which have been indiscriminate prescribing of particularly in combination with marketed in the United States for a fenfluramine, often in combination with phentermine, and possible public health number of years. This proposed rule, if phentermine. The U.S. Customs Service and safety risks including neurotoxicity, finalized, will allow persons to handle has documented seizures of illegally primary pulmonary hypertension and fenfluramine without being subject to imported fenfluramine tablets into the reports that fenfluramine may have the regulatory controls of the CSA. pharmacological similarity to some United States, that were repackaged and Fenfluramine will continue to be a hallucinogenic substances, the DEA will shipped to Mexican pharmacies. The prescription drug. carefully monitor the abuse, trafficking significance of these reports in terms of This rule will not have substantial and diversion indicators regarding this fenfluramine’s abuse potential is direct effects on the States, on the substance. If this data indicates the need unknown as of this time. The levels of relationship between the national for a reexamination of the control status abuse, trafficking and diversion government and the States, or the of fenfluramine, the DEA will re-initiate identified thus far for fenfluramine are distribution of power and the evaluation process as set forth in the less than those of similarly controlled responsibilities among their various CSA [21 U.S.C. 811(b)]. substances. levels of government. States may choose Relying on the scientific and medical to decontrol fenfluramine or continue to (2) State authorities including Boards evaluation and the recommendation of of Pharmacy, Boards of Medical control it under their respective CSA. the Assistant Secretary of Health Therefore, in accordance with E.O. Examiners, Departments of Health, and received in accordance with 21 U.S.C. police crime laboratories were queried 12612, it is determined that this rule, if 811(b), and the independent review of finalized, does not have sufficient and reported little or no documented the DEA, the Acting Deputy actual abuse, trafficking and diversion at federalism implications to warrant the Administrator of the DEA, pursuant to preparation of a Federalism Assessment. this time. DEA received input from 36 Section 201(b) of the Act [21 U.S.C. state agencies and the District of 811(b)], has determined that these facts List of Subjects in 21 CFR Part 1308 Columbia. The majority of state drug and all other relevant data constitute Administrative practice and regulatory agencies reported that they substantial evidence that fenfluramine had no evidence that fenfluramine is procedure, drug traffic control, should be removed entirely from the narcotics, prescription drugs. trafficked or abused. There were a few schedules. cases reported where patients had Interested persons are invited to Under the authority vested in the obtained fenfluramine through submit their comments, objections or Attorney General by section 201(a) of unauthorized prescription refills, requests for a hearing, in writing, with the CSA [21 U.S.C. 811(a)], and fraudulent prescriptions, doctor regard to this proposal. Requests for a delegated to the Administrator of the shopping, illegal sales, mail order hearing should state, with particularity, DEA by the Department of Justice schemes and thefts. However, these the issues concerning which the person regulations (28 CFR 0.100) and reports generally include phentermine desires to be heard. All correspondence redelegate to the Acting Deputy and their association with fenfluramine regarding this matter should be Administrator pursuant to 28 CFR abuse has not been established. Very submitted to the Acting Deputy 0.104, the Acting Deputy Administrator few state police crime laboratories Administrator, Drug Enforcement hereby proposes that 21 CFR part 1308 reported cases involving fenfluramine. Administration, Washington, D.C. be amended as follows: (3) Fenfluramine has been marketed 20537. Attention: DEA Federal Register PART 1308Ð[AMENDED] in the U.S. since 1973, with little Representative. In the event that therapeutic use until recently when the comments, objections or requests for a 1. The authority citation for 21 CFR combination of phentermine and hearing raise one or more issues which part 1308 continues to read as follows: fenfluramine emerged. The number of the Acting Deputy Administrator finds Authority: 21 U.S.C. 811, 812, 871(b) prescriptions for fenfluramine has warrants a hearing, the Acting Deputy unless otherwise noted. increased dramatically since 1992 and Administrator shall order a public has more than doubled each year since hearing by notice in the Federal § 1308.14 [Amended] 1994. Total prescriptions dispensed in Register, summarizing the issues to be 2. Section 1308.14 is proposed to be the United States in 1992 for heard and setting the time for the amended by removing the existing fenfluramine were less than 100,000. In hearing. paragraph (d) and by redesignating the 1996, total prescriptions dispensed in In accordance with the provisions of existing paragraphs (e) and (f) as (d) and the United States totalled over 5.1 the CSA [21 U.S.C. 811(a)], this action (e), respectively. 24622 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

Dated: April 29, 1997. CFR part 4. These regulations allow the Mountains’’ to aid in national James S. Milford, establishment of definite American recognition of the area. She noted that, Acting Deputy Administrator. viticultural areas. The regulations also outside of the State of Texas, the name [FR Doc. 97–11689 Filed 5–5–97; 8:45 am] allow the name of an approved Davis Mountains may not be well BILLING CODE 4410±09±M viticultural area to be used as an known. Evidence supporting the use of appellation of origin in the labeling and the name ‘‘Davis Mountains’’ includes: advertising of wine. (a) One of the U.S.G.S. maps used to On October 2, 1979, ATF published show the boundaries of the proposed DEPARTMENT OF THE TREASURY Treasury Decision ATF–60 (44 FR area (Mount Livermore, Texas— Bureau of Alcohol, Tobacco and 56692) which added a new part 9 to 27 Chihuahua) uses the name ‘‘Davis Firearms CFR, providing for the listing of Mountains’’ to identify the northern approved American viticultural areas. portion of the proposed area. There is a 27 CFR Part 9 Section 4.25a(e)(1), title 27, CFR, park named ‘‘Davis Mountain State defines an American viticultural area as Park’’ in the southeastern portion of the [Notice No. 851 (97±105)] a delimited grape-growing region proposed area. The map shows no RIN: 1512±AA07 distinguishable by geographical conflicting designation for the features, the boundaries of which have remainder of the proposed area. Davis Mountains Viticultural Area been delineated in subpart C of part 9. (b) The petitioner provided an excerpt Section 4.25a(e)(2) outlines the from the 1952 edition of The Handbook AGENCY: Bureau of Alcohol, Tobacco procedure for proposing an American of Texas, published by the Texas State and Firearms (ATF), Department of the viticultural area. Any interested person Historical Association, which describes Treasury. may petition ATF to establish a grape- the Davis Mountains. The location and ACTION: Notice of proposed rulemaking. growing region as a viticultural area. other features described in this entry are consistent with the petition. SUMMARY: The Bureau of Alcohol, The petition should include: (a) Evidence that the name of the (c) The petitioner also provided an Tobacco and Firearms (ATF) is proposed viticultural area is locally excerpt from the 1968 edition of Texas considering the establishment of a and/or nationally known as referring to Today, a book in the Harlow State viticultural area located in Jeff Davis the area specified in the petition; Geography Series, from the Harlow County, Texas, to be known as ‘‘Davis (b) Historical or current evidence that Publishing Corporation. In it, the Davis Mountains.’’ This proposal is the result the boundaries of the viticultural area Mountains are described as the most of a petition filed by Maymie Nelda are as specified in the petition; extensive and among the highest of the Weisbach of Blue Mountain Vineyard, (c) Evidence relating to the Texas mountain groups. Inc. ATF believes that the establishment geographical features (climate, soil, (d) Finally, the petitioner provided of viticultural areas and the subsequent elevation, physical features, etc.) which copies of two highway maps, the use of viticultural area names as distinguish the viticultural features of Champion Map of Texas, and the Exxon appellations of origin in wine labeling the proposed area from surrounding Travel Club Map of the United States, and advertising allows wineries to areas; both of which identify the Davis designate the specific areas where the (d) A description of the specific Mountains by name. grapes used to make the wine were boundaries of the viticultural area, ATF reviewed available resources and grown and enables consumers to better based on features which can be found found no references to any other ‘‘Davis identify the wines they purchase. on United States Geological Survey Mountains.’’ There is national DATES: Written comments must be (U.S.G.S.) maps of the largest applicable recognition of the name ‘‘Davis received by July 7, 1997. scale; and Mountains’’ as an area in Texas, known ADDRESSES: Send written comments to: (e) A copy of the appropriate U.S.G.S. for the McDonald Observatory, which is Chief, Wine, Beer and Spirits map(s) with the boundaries prominently located there, and as a tourist Regulations Branch, Bureau of Alcohol, marked. destination for its history, scenery and wildlife. For purposes of this notice, the Tobacco and Firearms, P.O. Box 50221, Petition Washington, DC 20091–0221, Attn: name ‘‘Davis Mountains’’ will be used Notice No. 851. Copies of written ATF has received a petition from as the name for the proposed area. comments received in response to this Maymie Nelda Weisbach, of Blue Comments on the need for further notice of proposed rulemaking will be Mountain Vineyard, Inc., proposing to clarification of this name are solicited in available for public inspection during establish a viticultural area in Jeff Davis the Public Participation section of this normal business hours at: ATF County, Texas, to be known as ‘‘Texas notice. Davis Mountains.’’ The proposed Reference Library, Document Services Evidence of Boundaries Branch, Room 6300, 650 Massachusetts viticultural area is located in the Trans- The petitioner has defined the Avenue, NW, Washington, DC 20226. Pecos region of west Texas. The entire area contains approximately 270,000 proposed area primarily by highways FOR FURTHER INFORMATION CONTACT: acres, of which approximately 40 acres which, she states, parallel geographic Marjorie D. Ruhf, Wine, Beer and Spirits are planted to vineyards. Blue Mountain features which define the area. In Regulations Branch, Bureau of Alcohol, Vineyard is the only commercial grower support of this approach, the petitioner Tobacco and Firearms, 650 currently active within the proposed provided a copy of ‘‘Texas,’’ the Massachusetts Avenue, NW., viticultural area. Houston Chronicle Magazine, for June 2, Washington, DC 20226 (202–927–8230). 1996. The cover story was ‘‘High Evidence of Name SUPPLEMENTARY INFORMATION: mountain vistas, driving the 73-mile The petitioner provided evidence that loop around the Davis Mountains.’’ In a Background the name ‘‘Davis Mountains’’ is locally map associated with the article, the On August 23, 1978, ATF published known as referring to the area specified routes used for the driving tour are the Treasury Decision ATF–53 (43 FR in the petition, and proposed that the same as those selected by the petitioner, 37672, 54624) revising regulations in 27 area be designated as ‘‘Texas Davis except the northern boundary. The Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24623 driving tour recommendation followed a than the vast plains of the Chihuahua comment period, any person may route to the north of the proposed desert that surround it.’’ The article request an opportunity to present oral northern boundary, which the petitioner went on to note that the Davis testimony at a public hearing. However, drew using other features. As evidence Mountains receive 20 inches of rainfall the Director reserves the right to that the proposed boundaries for the a year, contrasted with 10 inches a year determine, in light of all circumstances, area are as specified in the petition, the in the surrounding desert. whether a public hearing will be held. petitioner states the proposed limits of Drafting Information: The principal Proposed Boundary the area parallel geographic features author of this document is Marjorie D. such as canyons, creeks and The boundary of the proposed Davis Ruhf, Wine, Beer and Spirits escarpments, which represent natural Mountains viticultural area may be Regulations Branch, Bureau of Alcohol, boundaries between the mountains and found on two United States Geological Tobacco and Firearms. the surrounding desert. Survey (U.S.G.S.) maps with a scale of 1:100,000. The boundary is described in List of Subjects in 27 CFR Part 9 Geographical Features § 9.155 Administrative practice and The proposed viticultural area is procedure, Consumer protection, Executive Order 12866 described in Great Texas Getaways, Viticultural areas, and Wine. copyright 1992, by Ann Ruff, as follows: It has been determined that this Authority and Issuance No matter which way you drive into the proposed regulation is not a significant Davis Mountains you will have to face the regulatory action as defined in Title 27, Code of Federal Regulations, barren terrain without the taste of cool water. Executive Order 12866. Accordingly, part 9, American Viticultural Areas, is But when you reach this wonderful oasis, this proposal is not subject to the amended as follows: those long, dreary miles are more than worth analysis required by this Executive the reward. Here the days are fresh and cool, Order. PART 9ÐAMERICAN VITICULTURAL the nights brisk, and the scenery fantastic. AREAS Regulatory Flexibility Act The petitioner stated the proposed area is Paragraph 1. The authority citation distinguishable from surrounding areas It is hereby certified that this primarily by its altitude, which contributes to regulation will not have a significant for part 9 continues to read as follows: the geographic and climatic features which economic impact on a substantial Authority: 27 U.S.C. 205. provide for excellent grape-growing. number of small entities. Any benefit Par. 2. The table of sections in subpart The petitioner provided the following derived from the use of a viticultural C is amended by adding § 9.155 to read evidence to support her claims: area name is the result of the as follows: proprietor’s own efforts and consumer Sec. Topography acceptance of wines from a particular * * * * * area. No new requirements are The U.S.G.S. topographic map 9. Davis Mountains. proposed. Accordingly, a regulatory submitted by the petitioner shows the Par. 3. Subpart C is amended by flexibility analysis is not required. proposed area is a mountainous area adding § 9.155 to read as follows: varying in elevation from 4,500 to 8,300 Paperwork Reduction Act feet, surrounded by flatter terrain. The Subpart CÐApproved American petitioner adds these mountains are the The provisions of the Paperwork Viticultural Areas second-highest range in Texas. The Reduction Act of 1995 (44 U.S.C. northern and eastern limits are clearly 3507(j)) and its implementing * * * * * regulations, 5 CFR Part 1320, do not defined by escarpments. Sharp § 9.155 Davis Mountains. boundaries in the west and south, apply to this notice of proposed however, are lacking as the same rulemaking because no requirement to (a) Name. The name of the viticultural formations continue into the Ord and collect information is proposed. area described in this section is ‘‘Davis Mountains.’’ Del Norte Mountains. The Chihuahua Public Participation desert extends for miles in all (b) Approved map. The appropriate directions, its gently rolling grasses ATF requests comments from all maps for determining the boundary of interspersed with yucca and agave. interested parties. We are particularly the Davis Mountains viticultural area interested in comments concerning the are two U.S.G.S. metric topographical Soil need for the use of the name ‘‘Texas maps of the 1:100,000 scale, titled: The petitioner states the Davis Davis Mountains’’ to clarify the location (1) ‘‘Fort Davis, Texas,’’ 1985. Mountains were created about 35 of the proposed area. Comments (2) ‘‘Mount Livermore, Texas— million years ago by the same volcanic received on or before the closing date Chihuahua,’’ 1985. thrust that formed the front range of the will be carefully considered. Comments (c) Boundary. The Davis Mountains Rockies. The mountains are composed received after that date will be given the viticultural area is located in Jeff Davis of granitic, porphrytic and volcanic same consideration if it is practical to County, Texas. The boundary is as rocks, as well as limestones of various do so, but assurance of consideration follows: ages. cannot be given except as to comments (1) The beginning point is the received on or before the closing date. intersection of Texas Highway 17 and Climate ATF will not recognize any comment Farm Road 1832 on the Fort Davis, The cover story in ‘‘Texas,’’ the as confidential. Comments may be Texas, U.S.G.S. map; Houston Chronicle Magazine, for June 2, disclosed to the public. Any material (2) From the beginning point, the 1996, titled ‘‘High mountain vistas, which a commenter considers to be boundary follows Highway 17 in a driving the 73-mile loop around the confidential or inappropriate for southeasterly and then southwesterly Davis Mountains’’ by Leslie Sowers, disclosure to the public should not be direction until it intersects with described the proposed area as a included in the comment. The name of Highway 166; ‘‘mountain island * * * that is cooler, the person submitting a comment is not (3) The boundary then follows wetter, and more biologically diverse exempt from disclosure. During the Highway 166 in a southwesterly 24624 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules direction onto the Mt. Livermore, ACTION: Proposed rule. (Charadrius melodus) in compliance Texas—Chihuahua, U.S.G.S. map; with the Endangered Species Act of (4) The boundary continues to follow SUMMARY: The National Park Service 1973, as amended, and other Seashore Highway 166 in a westerly direction; (NPS) is proposing to revise the current resources. (5) The boundary then continues to regulation for off-road vehicle (ORV) use The 1981 ORV Management Plan was follow Highway 166 as it turns in a at Cape Cod National Seashore. Since challenged in U.S. District Court. northerly and then northeasterly the current plan (1981 ORV However, the plan, as amended in 1985 direction to the point where it meets Management Plan, as amended in 1985) (50 FR 31181), was upheld by the Highway 118; went into effect, new and unrelated District Court in 1988 and the U.S. (6) The boundary then follows measures have impacted the off-road Court of Appeals in 1989. The District Highway 118 in a northerly direction vehicle corridor identified in the Court found that ORV use at Cape Cod until it reaches a point where it amended plan. These measures have National Seashore is not inappropriate; intersects with the 1600 meter contour resulted from the necessity to protect that the 1985 Plan minimized user line, just north of Robbers Roost the federally listed threatened piping conflicts; that the NPS had provided Canyon; plover (Charadrius melodus). Because of other recreational users adequate use of (7) The boundary then proceeds in a a lack of flexibility in the Amended the Seashore; that the NPS had properly straight line due east for about two 1985 Plan, there has been an inability to surveyed the sentiments of Seashore miles until it reaches the 1600 meter adapt it to changing natural resource users; and that ORV use, as managed by contour line to the west of Friend concerns. the NPS, does not adversely affect the The piping plover became a federally Mountain; Seashore’s values or its ecology. (8) The boundary follows the 1600 listed threatened species in 1986. In 1995 there were 83 pair of plovers The 1985 regulation that established meter contour line in a northeasterly an 8.5 mile ORV corridor on the 40 direction until it reaches the nesting on the beaches of Cape Cod National Seashore. Thirty-three pair miles of outer beach within the northernmost point of Friend Mountain; Seashore would have provided a (9) The boundary then diverges from were within the eight and one-half miles of the ORV corridor. During the Fourth satisfactory solution except that since the contour line and proceeds in a 1988, the number of nesting pair of straight line east-southeast until it of July weekend (a period of peak use for ORV’s) in 1994, eight-tenths of a piping plover increased in this area over reaches the beginning point of Buckley 800 percent. The ORV corridor is one of Canyon, approximately three-fifths of a mile of the ORV corridor was open. In 1995, only six-tenths of a mile was the prime nesting areas in the Seashore mile; (in 1995, 33 of 87 pair nested in the (10) The boundary then follows open. Because of the sand dune configuration on portions of the outer corridor). Primarily because of plovers Buckley Canyon in an easterly direction in the corridor, the Seashore staff to the point where it meets Cherry beach, 1995, only six-tenths of a mile was open. Because of the sand dune monitors every bird, nest and egg daily Canyon; to determine if the ORV corridor should (11) The boundary then follows configuration on portions of the outer beach, it is expected that the birds will be open or closed. Symbolic fencing is Cherry Canyon in a northeasterly put up as soon as a nest is established direction to the point where it meets continue to nest here. Thus, Cape Cod National Seashore hopes to develop a to identify the site. Wire enclosures are Grapevine Canyon; put up once the eggs have been laid and (12) The boundary then proceeds in a more flexible and effective regulation governing ORV use that will the ORV corridor is closed from the time straight line from the intersection of the birds hatch until they fledge, Cherry and Grapevine Canyons to the accommodate the NPS’s responsibilities for managing natural resources. approximately 28 days later. In the past peak of Bear Cave Mountain, on the Fort few years, during the time when the DATES: Written comments will be Davis, Texas, U.S.G.S. map; Seashore receives the most visitors accepted through June 5, 1997. (13) The boundary then proceeds in a (Fourth of July), including people straight line from the peak of Bear Cave ADDRESSES: All comments should be wishing to use the ORV corridor, only Mountain to the point where Farm Road addressed to: Superintendent, Cape Cod 0.4 to 0.6 miles of the corridor has been 1832 begins; National Seashore, 99 Marconi Site open. (14) The boundary follows Farm Road Road, Wellfleet, MA 02667. 1832 back to its intersection with Texas FOR FURTHER INFORMATION CONTACT: Decision To Initiate Negotiated Highway 17, at the point of beginning. Maria Burks, Superintendent, Cape Cod Rulemaking Approved: April 21, 1997. National Seashore, 99 Marconi Site The need for a new rule and the use John W. Magaw, Road, Wellfleet, MA 02667. Telephone of the negotiated process was motivated 508–349–3785, est. 203. Director. by a number of events including [FR Doc. 97–11746 Filed 5–5–97; 8:45 am] SUPPLEMENTARY INFORMATION: legislative requirements, past litigation, management issues and inflexibility of BILLING CODE 4810±31±U Background the existing rule to deal with changing The mission of the NPS is to preserve conditions such as the use of the and protect park resources while at the corridor by the piping plover. The DEPARTMENT OF THE INTERIOR same time allowing for the enjoyment of proposed regulation and the negotiated National Park Service these same resources in a manner that rulemaking process is an attempt to will leave them unimpaired for future manage off-road vehicle (ORV) access 36 CFR Part 7 generations. In September 1995, Cape on the outer beach in a way that Cod National Seashore convened a accommodates the wishes of ORV RIN 1024±AC47 committee to negotiate a rulemaking enthusiasts and those choosing other Cape Cod National Seashore, Off-road (per the Federal Advisory Commission forms of beach use, while minimizing Vehicle Use Act (FACA), 5 U.S.C. App. II conflicts, impacts to natural and cultural while also providing optimum resources and providing a degree of AGENCY: National Park Service, Interior. protection for the piping plover flexibility for managing the beach. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24625

Since the current plan (1981 ORV 17. Town of Chatham compliance. The proposed rule, Management Plan, as amended in 1985) 18. Town of Eastham accompanied by the environmental went into effect, issues which had not 19. Town of Orleans compliance documentation for that rule, been anticipated or addressed 20. Town of Provincetown is published here for public comment previously impacted the off-road vehicle 21. Town of Truro and review. corridor. These impacts were mainly in 22. Town of Wellfleet Issues of Concern Raised During the response to the importance of and the 23. Town of U.S. Fish and Wildlife Negotiated Rulemaking efforts to protect the piping plover. Service During the course of negotiations, Thus, Cap Cod National Seashore hopes Each organization selected one many ideas and issues were discussed, the new regulation will be more flexible representative to sit at the table. This clarified and agreed to by the and effective in governing ORV use, and person spoke and made commitments negotiating committee. The committee will accommodate the NPS’s for that organization. Only reached consensus on the following responsibilities for managing natural representatives were allowed to items and agreed that, although not resources and the recreational participate in the formal discussions. appropriate for inclusion in the text of opportunities mandated in the All participants at the table had an the regulation, these items were Seashore’s enabling legislation. equal voice. important points, ideas and agreements The objective of negotiated To avoid problems with unbalanced that should be included in the preamble rulemaking is to front load the votes on one ‘‘side,’’ the negotiated controversy by getting all the interested where they would be part of the official rulemaking was done as a consensus record and identified as part of the parties involved in the decision making process (every organization had veto process from the beginning and committee consensus. authority). The task assigned the Executive Order 11644, as amended acknowledging, if not resolving, all the committee was to develop a new ORV by E.O. 11989, ‘‘Use of Off-Road issues and concerns. The process brings regulation for Cape Cod National Vehicles on Public Lands’’ directs the together at the negotiating table the Seashore. If the committee was unable NPS to monitor the impacts of the ORV organizations that are interested in the to reach consensus on a new regulation, program on the resources of Cape Cod issues and charges them with then the NPS would develop a new rule National Seashore. The committee developing a solution that is acceptable using the ideas, information and supported this monitoring to identify to everyone. This process is used by creativity that had been gathered from the actual effects (or lack of effects) of many Federal agencies, but this was the the group. This process allowed every ORV use at the Seashore. The intent of first time the NPS used negotiated issue, idea and concern to be heard; all this research is not to develop ‘‘new’’ rulemaking to develop a rule that will sides had a chance to hear what was science on the effects of ORV use on the become part of the Code of Federal most important and what most worried outer beaches, but to document Regulations (CFR). the other participants. The NPS agreed specifically the current condition of the A total of 23 agencies, organizations that if consensus was reached, the ORV corridor and to monitor the and interest groups with long term consensus regulation would be put changes, if any, that occur over time. interests and involvement in the ORV forward as a proposed rule through the This data will be used to assess any issue were identified for the committee. notice and comment rulemaking process changes that occur in the area where the They included State agencies, the 6 with full public involvement. ORV corridor is located and to try to towns the Seashore is located within, As required by FACA, all formal identify the causes of these changes. ORV user groups, environmental meetings were announced in the The monitoring methods identified for groups, Federal agencies, and tourism Federal Register and were open to the use by the NPS will undergo peer and preservation groups. public. There was a public comment review by the broader scientific Specifically, the Committee consisted period at the end of each meeting. community to identify weaknesses, of members from the following Letters could be submitted to be including areas of monitoring not organizations: included in the official record if covered by the technical research 1. Association for the Preservation of someone was unable to attend. design. In this context, ‘‘peer’’ includes Cape Cod The rulemaking sessions were scientists beyond the NPS scientific 2. Cape Cod Chamber of Commerce conducted by contracted professional community. The monitoring will result 3. Cape Cod Commission negotiators. The sessions were limited in an annual report that NPS will also 4. Cape Cod Salties to three, two-day meetings. These distribute for public and peer review 5. Citizens Concerned for Seacoast meetings were spaced one month apart and comment. While user fees gathered Management to allow the representatives sufficient from ORV permits can be used to fund 6. Conservation Law Foundation time between meetings to report back to this research, this funding is limited. 7. Eastham Forum their respective organizations and to The committee recognized the 8. Highland Fish and Game Club ensure that they were not committing to importance and relative fragility of 9. Massachusetts Audubon Society things the organizations could not barrier spits, such as the sand spit at 10. Massachusetts Beach Buggy support and, very importantly, to allow Hatches Harbor. The NPS agrees to work Association time for independent interactions and in consultation with the Massachusetts 11. Massachusetts Coastal Zone negotiations among committee members Office of Coastal Zone Management to Management to occur. address concerns specific to barrier 12. Massachusetts Department of The committee was successful in spits. It is understood that these areas Environmental Protection reaching consensus on a proposed ORV are more sensitive; that they are 13. Massachusetts Division of Fisheries regulation for Cape Cod National important to shorebirds and for and Wildlife Seashore. It is the contents of that protecting the natural resources located 14. Massachusetts Division of Marine regulation that have been used to behind them; and that a closer look at Fisheries identify issues, alternatives and these sensitive areas may result in a 15. National Park Service potential impacts for National need to limit use or further control 16. Sierra Club Environmental Policy Act (NEPA) existing uses to protect resources. 24626 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

The Cape Cod National Seashore probability portions of the beach may be make use of the unique skills and Advisory Commission will be requested closed at various times because of knowledge of individuals within the to develop a new subcommittee to resource protection concerns. To ORV community. This program will provide input and advice on the ORV provide access to some locations formalize and recognize the program at Cape Cod National Seashore. immediately adjacent to prime fishing preservation efforts, education, beach The chair of the subcommittee will be areas, the committee identified ‘‘limited clean up and other activities many of a duly appointed member of the parking areas’’ for fishing access. These these individuals already perform. Commission. Other members of the areas will be sand pull-offs located subcommittee will represent the same behind the primary dunes and be Section-by-Section Analysis general mix of interests represented in limited to two or three cars. NPS staff The two main reasons for use of off- the negotiated rulemaking committee. will identify areas for these to be located road vehicles on the outer beach are to This subcommittee will be assigned to on the High Head access route and the get to prime fishing areas that are review and analyze the annual Power Line route. Every attempt will be located a considerable distance from monitoring report. Following its review made to locate the parking spaces on parking lots or other access points, and and analysis, the subcommittee may previously impacted areas. They will be to participate in family related activities refer any ORV program management located to provide minimal visual including swimming, picnicking and issues it identifies to the commission for impact and to minimize widening of the other activities compatible with the further deliberation, and the route or impact to vegetation. The establishment of the Seashore. The Commission may advise the spaces will be posted to identify that proposed rule will permit flexibility, Superintendent with respect to those only people actively fishing may park. while protecting resources and issues. It is recognized that boat launching, restricting off-road vehicle use to a Night fishing is recognized as an within the ORV corridor, is permitted limited portion of the beaches. important activity on the beaches of by properly approved and permitted Cape Cod National Seashore. Vehicles vehicles. The definition of boat in this Section 7.67(a) Off-road Operation of displaying a permit approved by the context does not include personal Motor Vehicles Superintendent are able to access paved watercraft (e.g., jet skis style vessel). The proposed rule will permit public parking lots, closed to the general Additional information regarding the flexibility, while protecting resources public after hours, for nighttime fishing. requirements pertaining to the use of and restricting off-road vehicle use to a An annual report submitted to the personal watercraft and boats is limited portion of the beach. The major Secretary of the Interior will include an contained within the Compendium of changes in the rule include the analysis of the annual operating costs of Designations, Closures (36 CFR 1.5 and following. the ORV program. 1.7) for Cape Cod National Seashore and The negotiated rulemaking committee 36 CFR part 3. Section 7.67(a)(1) Closure discussed a potential future need for Self-contained vehicles will continue This new paragraph clarifies that the commercial permittees who would bring to be managed as they have in the past. Superintendent may close any access or people to various outer beach locations A self-contained vehicle is a vehicle route when necessary to protect to fish, swim, picnic or enjoy other with a water or chemical toilet and a resources. activities compatible with the permanently installed holding tank able establishment of the Seashore. This to hold a minimum of three days of Section 7.67(a)(2) Route Designations service could potentially reduce the waste material. It is recognized that self- The new rule will close a section of number of people needing to drive their contained vehicles need to be located the existing off-road vehicle corridor personal ORV’s on the beach. The within close proximity to a beach access from April 1 through July 20. This Seashore agreed to evaluate the impact route. They also need to be located on section is prime plover nesting area and if the number of commercial permits for a wider section of beach away from consequently is usually closed. The the ORV corridor exceeded the number vegetation. The access route for self- total closure of this area will also issued in 1981 (18). Operators of a contained vehicles must be fairly flat eliminate the need, by Seashore staff, to passenger vehicle for hire, engaged in and stable. These factors will limit the watch daily the nests, eggs and carrying passengers for a fee on a possible locations for this activity. The unfledged chicks of piping plover. designated ORV route, will obtain a committee agreed that, while the permit for commercial use issued by the location of the self-contained parking The rule will open a section of the Superintendent. One condition of this area may need to shift somewhat, outer beach which is currently closed to permit will be that the applicants must neither the scale nor the general level of ORV’s to allow use for night fishing of demonstrate they possess adequate impact would increase. prime fishing areas. knowledge of the Seashore’s off-road All the organizations represented by The rule will authorize the use of an system and points of interest, and they the committee agreed that the protection alternative access route (route through must comply with all applicable of the piping plover is important. There the inner dunes to the outer beach), Federal, State and local regulations. The was consensus of the need to close which previously could only be open fee for this permit will be based on the beaches to ORV’s when chicks have during emergencies, to be opened by the costs incurred by the NPS to administer hatched and before they have fledged. superintendent for a variety of reasons. this program. Failure to comply with The committee acknowledged Often one pair of plover, by nesting at any provision of an ORV permit, any Executive Order 12962, Recreational the end of an access route, will close off regulation listed in this section or Part Fisheries, which, in part, acknowledges large portions of the corridor. 2 or Part 4 of this chapter, or the the importance of participating in The new rule will establish small, requirements of the commercial use recreational fishing, and protecting and undeveloped parking areas, located permit may result in revocation of conserving fish stock. behind the primary dunes, for people permits by the Superintendent. The NPS recognizes the importance of who want to fish. These parking areas The committee recognized that, even citizen participation in the ORV would be used when the off-road given the greater flexibility of the program. In accordance with NPS corridor was closed to vehicles. The consensus rule, there is a high policy, a program will be developed to location of these lots would improve the Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24627 transportation of fishing equipment to Section-by-Section Comparison (iii) Caretaker functions at a dune and from the outer beach to a vehicle. cottage. Section 7.67 Cape Cod National New: (i)(A) An oversand permit is a Section 7.67(a)(3) Travel Restriction Seashore type of Special Use Permit that is issued (a) Off-road operation of motor This new paragraph will allow boat under the authority found at 36 CFR 1.6 vehicles. (1) Route designations. launching in designated open route and 4.10. The following information Existing: (i) From April 15–November must be provided for each vehicle for corridors. 15 on the outer beach from the opening which a permit is requested: Name and Section 7.67(a)(4) Equipment to Hatches Harbor, around Race Point to address of registered owner; drivers Requirements High Head, and including the beach license number and State of issue; access routes at Race Point and High vehicle license plate number and State This paragraph is unchanged. Head and the bypass route at Race Point of issue; vehicle description, including Light. Section 7.67(a)(5) Oversand Permit year, make, model and color; make, (iv) Except as described in paragraph model and size of tires; and the During the off-season (November 16 (a)(1)(ii), from November 16 through equipment on board as required by through April 14), a person with an April 14 oversand travel is restricted to section 4 of this rule. oversand permit would be able to access uses and routes approved in writing or (ii) Off-season oversand use. During a limited section of the ORV corridor for by permit by the Superintendent on a the period from November 16 through single-trip basis. fishing, as well as for the recovery of April 14, an oversand route user will New: (2) Route designations. (i) From personal property, flotsam and jetsam, possess an oversand permit and a April 15 through November 15 on the and for caretaker functions at dune limited access pass that requires the outer beach between the opening to viewing of an educational program that cottages. This can be prime fishing Hatches Harbor, around Race Point to outlines the special aspects of off-season season, and would provide access to High Head including the North and oversand use. The limited access pass isolated locations. South beach access routes at Race Point, will be issued to any vehicle operator Section 7.67(a)(6) Commercial Vehicle the bypass route at Race Point Light, the possessing a valid permit issued under Permits access route at High Head, and for night section 5(i)(A) of this rule. fishing (hours as posted) from Coast (A) Vehicle travel during this season This new paragraph is broken out Guard Beach in Truro to Longnook is limited to that portion of the beach from § 7.67(a)(5) Oversand permits for Beach. The off-road vehicle corridor between High Head and Hatches Harbor. clarity. from Exit 8 to High Head will be closed (B) Vehicle travel during this season from April 1 through July 20. The is prohibited within two hours either Section 7.67(a)(7) Camping Superintendent may open the Power side of high tide. The new rule will eliminate language Line Route access and fishing parking (C) The limited access pass may be area when high tides, beach erosion, issued for the following purposes which suggests that the only beach shorebird closures, or other (1) Access to town shellfish beds at camping that is allowed is in a self- circumstances exist that warrant public Hatches Harbor; contained ORV, and will allow the park use of this access way. (2) Recovery of personal property, to consider potential future camping on (iv) From January 1 through December flotsam and jetsam from the beach; the beach, if authorized by the 31 the access road and parking area for (3) Caretaker functions at a dune Superintendent through another fishing only at High Head. cottage; or approved permitting process. (v) From July 1 through August 31 on (4) Fishing the outer beach from High Head to Head The limited access pass will be Section 7.67(a)(8) Program Management annotated to specify the purpose(s) for and Review of the Meadow. (3) Travel restrictions. (vii)(a) which the permit is being issued. This new paragraph strengthens the Existing: No such section. (ii) Commercial vehicle permits Existing: (ii) Commercial vehicle NPS commitment to monitoring the use New: (vii) The following is permitted: permits. The operation of a passenger and condition of the oversand routes for (a) Boat trailering and launching in designated open route corridors. vehicle for hire on a designated the purpose of reviewing the effects on oversand route is permitted only natural, cultural and aesthetic resources (5) Oversand permits. Existing: (E) during the period from pursuant to a commercial vehicle permit by vehicles in designated corridors, but November 16 through April 14 the issued by the Superintendent, subject to recognizes that funding is a limiting Superintendent may issue a limited- all applicable regulations in this section factor in this research. The rule also access pass to the holder of an oversand and all applicable Federal, State and commits the NPS to producing an permit. local regulations concerning vehicles for annual report. Cape Cod National (1) Travel under this pass is limited hire. Seashore is one of the approved to that portion of the beach between (A) Commercial vehicle permits are Inventory and Monitoring parks, and the High Head and Hatches Harbor only. limited to 18, which is the number need for this information has already (2) Vehicle travel under this pass is issued in the 1981 permit year. been integrated into this program. prohibited within two hours either side (B) Each operator of a passenger of high tide. vehicle for hire who is engaged in Section 7.67(a)(9) Penalties (3) The pass will specify the times carrying passengers for a fee on a This new paragraph clarifies the and routes of travel authorized. designated oversand route will obtain a penalty for a violation of the section. (4) The pass may be issued for the guide permit issued by the following purposes: Superintendent. Such permit may only Section 7.67(a)(10) Information (i) Access to town shellfish beds at be issued upon a showing that the Collection Hatches Harbor; applicant possesses adequate knowledge (ii) Recovery of personal property, of the Seashore’s off-road system and This paragraph is unchanged. flotsam and jetsam from the beach; or points of interest and has complied with 24628 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules all applicable Federal, State and local (i) monitor the use and condition of requirements contained in this proposed regulations. the oversand routes for the purpose of rule have been approved by the Office (C) Annual permit fees. reviewing the effects on natural, cultural of Management and Budget and (1) Commercial Vehicle Permit: $10 and aesthetic resources of vehicles in assigned clearance number 1024–0026. for each passenger-carrying seat in the designated corridors. The This information is being collected to vehicle to be operated. Superintendent may amend, rescind, solicit information that is necessary for (2) Guide Permit: $15 for the calendar limit the use of, or close designated the Superintendent to issue off-road year or any part thereof. routes for the purpose of resource vehicle permits. The public is being (iii) Failure to comply with any protection if monitoring results find asked to provide this information in provision of an oversand permit or with resource degradation or visitor impact is order for the park to track the number any regulation listed in this section or occurring, consistent with 36 CFR 1.5 of permits issued and to whom they are part 2 or part 4 of this chapter is and 1.7, Executive Order 11644 Sec. 3 issued. Should the park need to contact prohibited and is grounds for immediate and Executive Order 11989 Sec. 8; the permittees, a mechanism will be in revocation of an oversand permit. (ii) consult with the Cape Code place to allow them to do so. The New: (6) Commercial vehicle permits. National Seashore Advisory information will be used to grant (i) The operation of a passenger vehicle Commission regarding management of administrative benefits. The obligation for hire on a designated oversand route the off-road vehicle program; to respond is required to obtain a is permitted only pursuant to a permit (iii) pursuant to 16 U.S.C. 18g–j, benefit. issued by the Superintendent, subject to recognize and utilize volunteers to Specifically, the NPS needs the all applicable regulations in this section provide education, inventorying, following information to issue a permit: and all applicable Federal, State and monitoring, field support, and other (1) Name and address of registered local regulations concerning vehicles for activities involving off-road vehicle use; owner. hire. A commercial vehicle permit is (iv) provide an annual report to the (2) Drivers license number and State issued under the authority found at 36 Secretary and the public of the results of issue. CFR 1.6, 4.10 and 5.6. The following of the monitoring conducted under (3) Vehicle license plate number and information must be provided by the subparagraph (7)(i) subject to the State. (4) Vehicle description, including applicant for each vehicle that will use availability of funding; and year, make, model and color. a designated oversand route: Name and (v) issue no more than a combined (5) Make, model and size of tires. address of tour company and name of total of 3400 oversand permits annually, including self-contained permits. (6) List of equipment on board as company owner; make and model of required in section 4 of the rule. vehicle; vehicle license plate number (9) Penalties. Existing: No such section. The public reporting burden for the and State of issue; and number of collection of information in this passenger seats. New: (9) Penalties. Failure to comply with any provision of an oversand instance is estimated to be 0.28 hours (7) Camping per response, including the time for Existing: (5) Camping. (v) Tents and permit, or with any regulation listed in this section or part 2 or part 4 of this reviewing instructions, searching camping trailers are prohibited on the existing data sources, gathering and beach. chapter, is prohibited and may result in revocation of an oversand permit by the maintaining the data needed and (vi) Beach camping in any manner completing and reviewing the collection other than authorized by this section is Superintendent. Note: Section (6) Information Collection of of information. Send comments prohibited. regarding this burden estimate or any New: (7) Camping. The operator of an existing rule is now section (10) of new rule, same language. other aspect of this collection of oversand vehicle wishing to camp on information, including suggestions for the beach must possess a valid permit Public Participation reducing the burden of these issued under section (5)(i)(A) of this It is the policy of the Department of information collection requests, to rule and under the authority found at 36 the Interior, whenever practicable, to Information Collection Officer, National CFR 2.10. In addition, the operator must afford the public an opportunity to Park Service, 800 North Capitol Street, provide the following information for participate in the rulemaking process. Washington, DC 20001; and the Office each vehicle for which a permit is Accordingly, interested persons may of Management and Budget, Office of requested: Name and address of submit written comments regarding this Information and Regulatory Affairs, registered owner; drivers license proposed rule to the address noted at Attention: Desk Officer for Department number and State of issue; vehicle the beginning of this rulemaking. The of the Interior (1024–0125), Washington, license plate number and State of issue; NPS will review all comments and DC 20503. vehicle description, including year, consider making changes to the rule Compliance With Other Laws make, model, color, pickup or motor based upon an analysis of the home; and the equipment on board as comments. This rule is subject to Office of required by section 4 of this rule. Management and Budget review under (v) Camping on the beach in any Drafting Information Executive Order 12866. The Department manner other than authorized in the A formal negotiated rulemaking was of the Interior determined that this provisions of this section or as utilized in the development of this document will not have a significant authorized by the Superintendent proposed rule in accordance with the economic effect on a substantial number through another approved permitting Federal Advisory Commission Act of small entities under the Regulatory process, is prohibited. (FACA) and the Negotiated Rulemaking Flexibility Act (5 U.S.C. 601 et. seq.). (vi) deleted. Act (5 U.S.C. 561). The economic effects of this rulemaking (8) Program management and review. are local in nature and negligible in Existing: No such section. Paperwork Reduction Act scope. New: (8) Program management and As required by the Paperwork The NPS has determined and certifies review. In implementing this rule, the Reduction Act of 1995 (44 U.S.C. 3501 pursuant to the Unfunded Mandates Superintendent will: et seq.), the information collection Reform Act (2 U.S.C. 152 et seq.), that Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24629 this rule will not impose a cost of $100 and cottage access routes as described in will be equipped to the standard million or more in any given year on the appropriate permit. identified by the Superintendent, local, State or tribal governments or (iv) From January 1 through December including: private entities. 31, the access road and parking area at (A) Shovel; This regulation is subject to National High Head for fishing only. (B) Tow rope, chain, cable or other Environmental Policy Act (NEPA) (v) From July 1 through August 31, on similar towing device; compliance and a draft Environmental the outer beach from High Head to Head (C) Jack; Assessment (EA) has been completed. of the Meadow. (D) Jack support board; This document is available for public (3) Travel restrictions. The operation (E) Low air pressure tire gauge; and review and can be obtained by of a motor vehicle on oversand routes is (F) Five tires that meet or exceed contacting the park at the address noted subject to all applicable provisions of established standards. at the beginning of this rulemaking. this chapter, including part 4 as well as (ii) Operating a vehicle on an the specific provisions of this section. oversand route without the required List of Subjects in 36 CFR Part 7 (i) Route limits. (A) On the beach, a equipment is prohibited. National parks, Reporting and vehicle operator will drive in a corridor (5) Oversand permits. No oversand recordkeeping requirements. extending from a point 10 feet seaward vehicle, other than an authorized In consideration of the foregoing, the of the spring high tide drift line to the emergency vehicle, will be operated on NPS proposes to amend 36 CFR Ch. I, berm crest. An operator may drive a designated oversand route without an as follows: below the berm crest only to pass a oversand permit issued by the temporary cut in the beach, but will Superintendent. PART 7ÐSPECIAL REGULATIONS, regain the crest immediately following (i) The Superintendent may establish AREAS OF THE NATIONAL PARK the cut. Delineator posts mark the a permit system for oversand vehicles SYSTEM landward side of the corridor in critical and establish fees, designed to recover areas. the costs incurred by the National Park 1. The authority citation for Part 7 (B) On an inland oversand route, a Service to administer the oversand continues to read as follows: vehicle operator will drive only in a program. Authority: 16 U.S.C. 1, 3, 9a, 460(q), lane designated by pairs of delineator (A) An oversand permit is a type of 462(k), Sec. 7.96 also issue under Code 8–137 posts showing the sides of the route. Special Use Permit that is issued under (1981) and D.C. Code 40–721 (1981). (ii) An oversand route is closed at any the authority found at 36 CFR 1.6 and 2. Section 7.67(a) is proposed to be time that tides, nesting birds or surface 4.10. The following information must be revised to read as follows: configuration prevent vehicle travel provided for each vehicle for which a within the designated corridor. permit is requested: Name and address § 7.67 Cape Cod National Seashore. (iii) When two vehicles meet on the of registered owner; drivers license (a) Off-road operation of motor beach, the operator of the vehicle with number and State if issue; vehicle vehicles.—(1) Closure. The the water on the left will yield. license plate number and State of issue; Superintendent may close any access or (iv) When two vehicles meet on a vehicle description, including year, oversand route at any time for weather, single-lane oversand route, the operator make, model and color; make, model impassable conditions due to changing of the vehicle in the best position to and size of tires; and the equipment on beach conditions or to protect resources. yield will pull out of the track only so board as required by paragraph (a)(4) of (2) Route designations. The operation far as necessary to allow the other this section. of motor vehicles, other than on vehicle to pass safely, and then will (B) Prior to being issued a permit, an established roads and parking areas, is back into the established track before operator of an oversand vehicle will: limited to the following oversand routes resuming the original direction of travel. (1) Demonstrate that the vehicle is (v) When the process of freeing a during the prescribed dates: equipped as required in paragraph (a)(3) vehicle that has been stuck results in (i) From April 15 through November of this section; and 15, on the outer beach between the ruts or holes, the operator will fill the (2) Demonstrate evidence of opening to Hatches Harbor, around Race ruts or holes created by such activity compliance with all Federal and State Point to High Head, including the North before removing the vehicle from the regulations that apply to licensing, and South Beach access routes at Race immediate area. registering, inspecting and insuring (vi) The following are prohibited: Point, the bypass route at Race Point (A) Driving off a designated oversand such a vehicle. Light, the access route at High Head, route. (C) Before being issued a permit, an and for night fishing (hours as posted), (B) Exceeding a speed of 15 miles per applicant for an oversand permit will from Coast Guard Beach in Truro to hour unless posted otherwise. view an oversand vehicle operation Longnook Beach. The off-road vehicle (C) Parking a vehicle in an oversand educational program and shall assure corridor from Exit 8 to High Head will route so as to obstruct traffic. that all other potential operators view be closed from April 1 through July 20. (D) Riding on a fender, tailgate, roof, the same program. The Superintendent may open the door or any other location on the (D) The Superintendent will affix an Power Line Route access and fishing outside of a vehicle. oversand permit to the permitted parking area when high tides, beach (E) Driving a vehicle across a vehicle at the time of issuance. erosion, shorebird closures of other designated swimming beach at any time (E) Transfer of an oversand permit circumstances exist that warrant public when it is posted with a sign prohibiting from one vehicle to another is use of this access way. vehicles. prohibited. (ii) From January 1 through December (F) Operating a motorcycle on an (ii) Off-season oversand use. During 31, on controlled access routes for oversand route. the period from November 16 through residents or caretakers of individual (vii) Boat trailering and launching by April 14, an oversand route user will dune cottages in the Province Lands. permitted ORV’s in designated open possess an oversand permit and a (iii) From April 15 through November route corridors is permitted. limited access pass that requires the 15, on commercial dune taxi routes (4) Equipment requirements. (i) Each viewing of an educational program that following portions of the outer beach vehicle operated on an oversand route outlines the special aspects of off season 24630 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules oversand use. The limited access pass of registered owner; drivers license limit the use of or close designated will be issued to any vehicle operator number and State if issue; vehicle routes for the purpose of resource possessing a valid permit issued under license plate number and State of issue; protection if monitoring results find paragraph (a) (5)(i)(A) of this section. vehicle description, including year, resource degradation or visitor impact is The limited access pass will be make, model, color, pickup or motor occurring, consistent with 36 CFR 1.5 annotated to specify the purpose(s) for home; and the equipment on board as and 1.7, Executive Order 11644 Sec. 3 which the permit is being issued. required by paragraph (a)(4) of this and Executive Order 11989 Sec. 8; (A) Vehicle travel during the off- section. (ii) Consult with the Cape Cod season is limited to that portion of the (i) A self-contained vehicle is defined National Seashore Advisory beach between High Head and Hatches as one that has a self-contained water or Commission regarding management of Harbor. chemical toilet and a permanently the off-road vehicle program; (B) Vehicle travel during the off- installed holding tank with a minimum (iii) Pursuant to 16 U.S.C. 18g-j, season is prohibited within two hours capacity of three days’ waste material. recognize and utilize volunteers to either side of high tide. (ii) Camping is allowed only in self- provide education, inventorying, (C) The limited access pass may be contained vehicles in areas designated monitoring, field support, and other issued for the following purposes: for that purpose. activities involving off-road vehicle use; (1) Access to town shellfish beds at (iii) Two areas with a maximum (iv) Provide an annual report to the Hatches Harbor; combined capacity of 100 vehicles are Secretary of the Interior and the public (2) Recovery of personal property, designated. of the results of the monitoring flotsam and jetsam from the beach; (A) An operator will drive the self- conducted under paragraph (a)(8)(i) of (3) Caretaker functions at a dune contained vehicle off the beach for the this section subject to the availability of cottage; or purpose of emptying holding tanks at a funding; and (4) Fishing dumping station at intervals of no more (v) Issue no more than a combined (6) Commercial vehicle permits. (1) than 72 hours. total of 3400 oversand permits annually, The operation of a passenger vehicle for (B) Before returning to the beach, a including self-contained permits. hire on a designated oversand route is vehicle operator will notify the (9) Penalties. Violation of a term or permitted only pursuant to a permit Oversand Station as specified by the condition of an oversand permit issued issued by the Superintendent, subject to Superintendent. in accordance with this section is all applicable regulations in this section (iii) An operator will not drive a self- prohibited. A violation may also result and all applicable Federal, State and contained vehicle outside the limits of in the suspension or revocation of the local regulations concerning vehicles for a designated camping area except when permit. hire. A commercial vehicle permit is entering or leaving the beach by the (10) Information collection. The issued under the authority found at 36 most direct authorized route. information collection requirement CFR 1.6, 4.10 and 5.6. The following (iv) Each self-contained vehicle contained in this rule has been information must be provided by the permit holder is limited to a maximum approved by the Office of Management applicant for each vehicle that will use of 21 days camping on the beach from and Budget under 44 U.S.C. 3501 et seq. a designated oversand route: Name and July 1 through Labor Day. and assigned clearance number 1024– address of tour company and name of (v) Camping on the beach in any 0026. The information is being collected company owner; make and model of manner other than authorized in the to solicit information necessary for the vehicle; vehicle license plate number provisions of this section or as Superintendent to issue off-road vehicle and State of issue; and number of authorized by the Superintendent permits. This information will be used passenger seats. through another approved permitting to grant administrative benefits. The (7) Camping. The operator of an process is prohibited. obligation to respond is required to oversand vehicle wishing to camp on (8) Program management and review. obtain a benefit. the beach must possess a valid permit In implementing this program, the * * * * * issued under paragraph (a)(5)(i)(A) of Superintendent will: (i) Monitor the use Dated: March 23, 1997. this section and under the authority and condition of the oversand routes for found at 36 CFR 2.10. In addition, the the purpose of reviewing the effects on Don Barry, operator must provide the following natural, cultural and aesthetic resources Assistant Secretary for Fish and Wildlife and information for each vehicle for which of vehicles in designated corridors. The Parks. a permit is requested: Name and address Superintendent may amend, rescind, BILLING CODE 4310±70±M Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24631

[FR Doc. 97–11433 Filed 5–5–97; 8:45 am] BILLING CODE 4310±70±C 24632 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION South Coast Air Quality Management close on June 9, 1997. Any comments AGENCY District, 21865 E. Copley Drive, received by the closing date will be Diamond Bar, CA 91765–4182 considered in the final decision on this 40 CFR Part 52 California Air Resources Board, proposal. Stationary Source Division, Rule [CA 192±0037b; FRL±5817±1] ADDRESSES: Written comments and Evaluation Section, 2020 ‘‘L’’ Street, materials concerning this proposal Approval and Promulgation of State Sacramento, CA 95814. should be sent directly to the Field Implementation Plans; California State FOR FURTHER INFORMATION CONTACT: Supervisor, Carlsbad Field Office, 2730 Implementation Plan Revision, South Patricia A. Bowlin, Rulemaking Office Loker Avenue West, Carlsbad California Coast Air Quality Management District (AIR–4), Air Division, U.S. 92008. Comments and materials Environmental Protection Agency, received will be available for public AGENCY: Environmental Protection Region IX, 75 Hawthorne Street, San inspection, by appointment, during Agency (EPA). Francisco, CA 94105–3901, Telephone: normal business hours at the above ACTION: Proposed Rule. (415) 744–1188 address. FOR FURTHER INFORMATION CONTACT: SUMMARY: SUPPLEMENTARY INFORMATION: EPA is proposing a limited Sandy Vissman, at the address listed approval and limited disapproval of This document concerns South Coast above (telephone 760/431–9440, revisions to the California State Air Quality Management District’s Rule facsimile 760/431–9618). Implementation Plan (SIP) which 1150.1, Control of Gaseous Emissions concern the control of volatile organic from Active Landfills, and Rule 1150.2, SUPPLEMENTARY INFORMATION: compound (VOC) emissions from active Control of Gaseous Emissions from Background and inactive landfills. Inactive Landfills. The rules were The flat-tailed horned lizard inhabits The intended effect of proposing submitted by the California Air desert areas of southern Riverside, limited approval and limited Resources Board (CARB) to EPA on eastern San Diego, and Imperial disapproval of these rules is to regulate October 16, 1985 and February 10, 1986, Counties in California; southwestern emissions of VOCs in accordance with respectively. For further information, Arizona; and adjacent regions of the requirements of the Clean Air Act, please see the information provided in northwestern Sonora and northeastern as amended in 1990 (CAA or the Act). the Direct Final action which is located Baja California Norte, Mexico. Within In the Final Rules Section of this in the Final Rules Section of this the United States, populations of the Federal Register, the EPA is finalizing Federal Register. a simultaneous limited approval and flat-tailed horned lizard are centered in Authority: 42 U.S.C. 7401–7671q. limited disapproval of the state’s SIP portions of the Coachella Valley, revision as a direct final rule without Dated: April 13, 1997. Ocotillo Wells, Anza Borrego Desert, prior proposal because the Agency Felicia Marcus, West Mesa, East Mesa and the Yuma views this as a noncontroversial action Regional Administrator. Desert in California; and the area and anticipates no adverse comments. A [FR Doc. 97–11912 Filed 5–5–97; 8:45 am] between Yuma and the Gila Mountains detailed rationale for this limited BILLING CODE 6560±50±P in Arizona. The flat-tailed horned lizard approval and limited disapproval is set occurs on Federal, State, county, and forth in the direct final rule. If no privately owned lands. This species may be threatened by adverse comments are received in DEPARTMENT OF THE INTERIOR response to this proposed rule, no one or more of the following: further activity is contemplated in Fish and Wildlife Service commercial and residential relation to this rule. If EPA receives development, agricultural development, adverse comments, the direct final rule 50 CFR Part 17 off-highway vehicle activity, energy developments, military activities, and will be withdrawn and all public RIN 1018ÐAC10 comments received will be addressed in pesticide use. On November 29, 1993, the Service a subsequent final rule based on this Endangered and Threatened Wildlife published a rule proposing threatened proposed rule. The EPA will not and Plants, Notice of Extension of status for the flat-tailed horned lizard. institute a second comment period on Comment Period on Proposed The original comment period closed on this document. Any parties interested in Threatened Status for the Flat-tailed January 28, 1994. The Service was commenting on this action should do so Horned Lizard unable to make a final listing at this time. AGENCY: Fish and Wildlife Service, determination on this species because of DATES: Comments on this proposed rule Interior. a limited budget, other endangered must be received in writing by June 5, ACTION: Proposed rule, notice of species assignments driven by court 1997. extension of comment period. orders, and higher listing priorities. In ADDRESSES: Written comments on this addition, a moratorium on listing action should be addressed to: Andrew SUMMARY: The Fish and Wildlife Service actions (Pub. L. 104–6) that took effect Steckel, Rulemaking Office (AIR–4), Air (Service), pursuant to the Endangered April 10, 1995, stipulated that no funds Division, U.S. Environmental Protection Species Act of 1973, as amended (Act), could be used to make final listing or Agency, Region IX, 75 Hawthorne provides notice of an extension of the critical habitat determinations. Now that Street, San Francisco, CA 94105–3901. comment period on the proposed funding has been restored, the Service is Copies of the rules and EPA’s threatened status for the flat-tailed proceeding with a final determination evaluation report of the rules are horned lizard (Phrynosoma mcalli). The for this species. available for public inspection at EPA’s comment period has been extended at In response to a request from a Region IX office during normal business the request of an individual interested constituent of Senator Kyl of Arizona, hours. Copies of the submitted rules are in providing public comment. the Service is extending the comment also available for inspection at the DATES: The public comment period has period for 30 days. This individual following locations: been extended 30 days, and will now requested an extension to allow Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24633 sufficient time to review requested documents and prepare comments. The Service continues to seek information that has become available in the last 3 years concerning: (1) biological, commercial, or other relevant data on any threat (or lack thereof) to this species; and (2) the size, number, or distribution of populations of this species. Written comments may be submitted through June 9, 1997, to the Service office in the ADDRESSES section. Author: The primary author of this notice is Sandy Vissman (see ADDRESSES section). Authority: The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) Dated: April 29, 1997. Thomas J. Dwyer, Acting Regional Director, Region 1. [FR Doc. 97–11712 Filed 5–5–97; 8:45 am] BILLING CODE 4310±55±P 24634

Notices Federal Register Vol. 62, No. 87

Tuesday, May 6, 1997

This section of the FEDERAL REGISTER DEPARTMENT OF AGRICULTURE Proposed Action: The Kootenai contains documents other than rules or National Forest is proposing to issue proposed rules that are applicable to the Forest Service two special use permits for permanent public. Notices of hearings and investigations, access to West Fisher private property committee meetings, agency decisions and Private Property Access-Road and to allow reconstruction of roads to rulings, delegations of authority, filing of Construction; Kootenai National allow passenger traffic. The purpose of petitions and applications and agency Forest, Lincoln County, Montana statements of organization and functions are the projects is to access private land that examples of documents appearing in this AGENCY: Forest Service, USDA. is surrounded by National Forest. No section. proposed activities are located in areas ACTION: Notice of intent to prepare an considered for inclusion to the National environmental impact statement. Wilderness Preservation System as DEPARTMENT OF AGRICULTURE SUMMARY: The owner of record of recommended by the Kootenai National landlocked private property located in Forest Plan. Food Safety and Inspection Service portions of Sections 33 and 34, The Kootenai National Forest Land Township 27 North, Range 31 West, and Resource Management Plan [Docket 97±032N] Principal Montana Meridian and the provides overall management objectives owner of record of landlocked private in individual delineated management Relocation of FSIS Docket Reading property located in portions of Sections areas (MA’s). The decision area is Room and Inclusion of Freedom of 12 and 13, Township 26 North, Range allocated to MA–2, Semi-Primitive Non- Information Act Documents for Public 31 West, Principal Montana Meridian Motorized Recreation. Briefly described, Display and Access have requested special use permit MA–2 is managed to provide for the applications for the construction and protection and enhancement of areas for AGENCY: Food Safety and Inspection reconstruction of roads to their roadless recreation use, and to provide Service. property. for wildlife management where specific values are high. Within grizzly bear ACTION: Notice. The Libby Ranger District on the Kootenai National Forest intends to habitat, the goal of MA–2 is to provide prepare an Environmental Impact habitat that will contribute to the SUMMARY: The Food Safety and Statement (EIS) to assess and disclose recovery of the grizzly bear. Inspection Service (FSIS) is relocating the environmental effects of the Preliminary Issues: Several its Docket Reading Room from the South proposed road construction and preliminary issues of concern have been Agriculture Building to the Cotton reconstruction. The decision areas are identified by the Forest Service. These Annex Building. FSIS is also making located approximately 24 and 26 air issues are briefly described below. available in the Reading Room Freedom miles respectively south of Libby, • Water Quality—How would the of Information Act (FOIA) documents Montana. proposed actions affect sediment for review by the public. The EIS will tier to the Kootenai production? • Roadless Areas—The proposed road DATES: The Docket Reading Room is National Forest Land and Resource construction lies entirely within the open from 8:30 a.m. to 4:30 p.m., each Management Plan and Final EIS of September 1987, which provides overall Cabinet Face East Inventoried Roadless Monday through Friday, except for Area #671. What effect would the designated Federal holidays. guidance for forest management of the area. proposals have on the character of this ADDRESSES: The FSIS Docket Reading Roadless Area? DATES: Written comments and • Room has moved to Room 102 Cotton suggestions should be received on or Grizzly Bear—The decision area lies Annex Building, Department of before June 5, 1997. within the recovery area for the Cabinet/ Yaak grizzly bear ecosystem. How Agriculture, 300 12th Street SW., ADDRESSES: The Responsible Official is Washington, DC. 20250–3700 from its would the proposals protect and Robert L. Schrenk, Forest Supervisor, enhance grizzly bear habitat, and former location in Room 3806 South Kootenai National Forest. Written Agriculture Building, 1400 contributes to recovery efforts? comments and suggestions concerning • Fisheries—The proposed road Independence Avenue SW., the scope of the analysis should be sent Washington, DC. 20250–3700. construction would cross Bramlet and to Lawrence A. Froberg, District Ranger, 4th of July Creeks which are priority FOR FURTHER INFORMATION CONTACT: To Libby Ranger District, 12557 U.S. Hwy bull trout streams. How would the inquire about the availability of FSIS 37 N, Libby, Montana 59923. proposed action affect sediment dockets and other public documents, FOR FURTHER INFORMATION CONTACT: production and bull trout habitat? contact Ms. Diane Moore, FSIS Docket Jon Jeresek, Interdisciplinary Team • Heritage Resources—The road Clerk, at (202) 720–3813. Leader, Libby Ranger District. Phone: construction is proposed to occur over (406) 293–7773. the existing historic 4th of July Trail Done at Washington, DC, on: April 24, # 1997. SUPPLEMENTARY INFORMATION: All of the 115. Can the loss of this resource and properties and proposed road associated sites by mitigated? Thomas J. Billy, constructions are located within the Forest Plan Amendment: The Administrator. Inventoried Roadless Area #671— Kootenai National Forest Land and [FR Doc. 97–11743 Filed 5–5–97; 8:45 am] Cabinet Face East. The decision areas Resource Management Plan has specific BILLING CODE 3410±DM±P are occupied grizzly bear habitat. management direction for the Harpole Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24635 and Skranak decision area. Prior to comment period on the draft EIS will be Dated: April 28, 1997. making a NEPA decision, a thorough 45 days from the date the EPA publishes Robert L. Schrenk, examination of all standards and the Notice of Availability in the Federal Forest Supervisor. guidelines of the Forest Plan would be Register. [FR Doc. 97–11749 Filed 5–5–97; 8:45 am] completed and, if necessary, plan The final EIS is scheduled to be BILLING CODE 3410±11±M amendments would be addressed in the completed in November, 1997. In the EIS. final EIS, the Forest Service is required Decisions To Be Made: The Kootenai to respond to comments and responses DEPARTMENT OF AGRICULTURE Forest Supervisor will decide the received during the comment period following: that pertain to the environmental Forest Service Should road construction to the consequences discussed in the draft EIS private properties be permitted and if so Skranak Road Construction; Kootenai and applicable laws, regulations, and National Forest, Lincoln County, how and where, policies considered in making a What mitigation measures would be Montana decision regarding the proposal. required for protection of National AGENCY: Forest Service, USDA. Forest Service resources, and Reviewer’s Obligations: The Forest If Forest Plan amendments are Service believes, at this early stage, it is ACTION: Cancellation of the notice of necessary to proceed with the Proposed important to give reviewers notice of intent to prepare an environmental Action within the decision area. several court rulings related to public impact statement published Monday, Public Involvement and Scoping: participation in the environmental November 18, 1996, Federal Register, Notices will be mailed to interested review process. First, reviewers of draft Vol. 61, No. 223. parties from a mailing list, to provide an environmental impact statements must opportunity for the public to review and structure their participation in the SUMMARY: The Skranak Road comment on the proposed action. environmental review of the proposal so Construction Environmental Analysis Consultation with appropriate State and that it is meaningful and alerts an has been combined with another private Federal agencies will be initiated. agency to the reviewer’s position and property access request. Both of these Preliminary effects analysis indicated contentions. Vermont Yankee Nuclear private property requests are located in that the proposed road construction may Power Corp. v. NRDC, 435 U.S. 519, 553 the same inventoried roadless area and significantly affect the quality of the (1978). Also, environmental objections in the same Grizzly Bear Management human environment. These potential that could be raised at the draft Unit. Therefore, the Libby Ranger effects prompted the decision to prepare environmental impact statement stage District has decided to combine the an EIS for the road construction may be waived or dismissed by the analyses of the requests and proposed proposals. courts. City of Angoon v. Hodel, 803, road construction and reconstruction This environmental analysis and F.2d 1016, 1022 (9th Cir. 1986) and and prepare one Environmental Impact decision making process will enable Wisconsin Heritages, Inc. v. Harris, 490 Statement. The Notice of Intent, additional interested and affected F. Supp. 1334, 1338 (E.D. Wis. 1980). published in the Federal Register, Vol. people to participate and contribute to Because of these court rulings, it is very 61, No. 223, on Monday, November 18, the final decision. Public participation important that those interested in this 1996 is thereby rescinded. A new notice will be requested at several points proposed action participate by the close of intent will be issued. during the analysis. The Forest Service of the 45 day comment period so that FOR FURTHER INFORMATION CONTACT: will be seeking information, comments, substantive comments and objections Jon Jeresek, Interdisciplinary Team and assistance from Federal, State, local are made available to the Forest Service Leader, Libby Ranger District. Phone: agencies, and other individuals or at a time when it can meaningfully (406) 293–7773. organizations who may be interested in consider and respond to them in the Dated: April 28, 1997. or affected by the proposed projects. final EIS. Robert L. Schrenk, This input will be used in preparation To be most helpful, comments on the Forest Supervisor. of the draft and final EIS. The scoping draft EIS should be as specific as [FR Doc. 97–11751 Filed 5–5–97; 8:45 am] process will include: • possible and may address the adequacy BILLING CODE 3410±11±M Identifying potential issues. of the statement or the merit of the • Identifying major issues to be alternative discussed. Reviewers may analyzed in depth. wish to refer to the Council on • Exploring additional alternatives ASSASSINATION RECORDS REVIEW Environmental Quality regulations for which will be derived from issues BOARD implementing the procedural provisions recognized during scoping activities. • Identifying potential environmental of the National Environmental Policy Sunshine Act Meeting Act at 40 CFR 1503.3 in addressing effects of this project and alternatives DATE: May 12–13, 1997. (i.e. direct, indirect, and cumulative these points. PLACE: effects and connected actions). Responsible Official: Robert L. ARRB 600 E Street, NW., The analysis will consider a range of Schrenk, Forest Supervisor, Kootenai Washington, DC. alternatives, including the proposed National Forest, 506 U.S. Highway 2 STATUS: Closed. action, no action, and other reasonable West, Libby, MT 59923 is the MATTERS TO BE CONSIDERED: action alternatives. Responsible Official. As the Responsible Estimated Dates for Filing: The draft Official I will decide which, if any, of 1. Review and Accept Minutes of Closed EIS is expected to be filed with the the proposed projects will be Meeting Environmental Protection Agency (EPA) implemented. I will document the 2. Review of Assassination Records and to be available for public review by decision and reasons for the decision in 3. Other Business August, 1997. At that time EPA will the Record of Decision. That decision CONTACT PERSON FOR MORE INFORMATION: publish a Notice of Availability of the will be subject to Forest Service Appeal Eileen Sullivan, Assistant Press and draft EIS in the Federal Register. The Regulations. Public Affairs Officer, 600 E Street, 24636 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

NW., Second Floor, Washington, DC regulations of the US Commission on opportunity to comment on our 20530. Telephone: (202) 724–0088; Fax: Civil Rights, that a meeting of the South preliminary results. We received no (202) 724–0457. Carolina Advisory Committee to the comments. Therefore, the preliminary David G. Marwell, Commission will convene at 2 p.m. and results are unaltered. The review Executive Director. adjourn at 5 p.m. on Thursday, May 29, indicates the existence of a PRC-wide [FR Doc. 97–11815 Filed 5–2–97; 9:44 am] 1997, at the Sheraton Hotel and dumping margin of 44.66 percent for BILLING CODE 6118±01±P Conference Center, Boardroom, 2100 this period. Bush River Road in Columbia, South EFFECTIVE DATE: May 6, 1997. Carolina 29210. The purpose of the FOR FURTHER INFORMATION CONTACT: Paul BROADCASTING BOARD OF meeting is to: (1) Review Commission Stolz or Thomas Futtner, Office of GOVERNORS and Committee activities; (2) discuss Antidumping/Countervailing Duty report on church burnings in the State; Enforcement, Import Administration, Sunshine Act Meeting (3) discuss civil rights progress and/or US Department of Commerce, 14th problems in the State; and (4) discuss Street and Constitution Avenue NW., DATE AND TIME: May 13, 1997; 9:30 a.m. plans to adopt a new project. The Washington, DC 20230, telephone (202) PLACE: Radio Free Asia, 2025 ‘‘M’’ meeting is open to the public. 482–4474/3814. Street, NW., Suite 300, Washington, DC Persons desiring additional 20036. information, or planning a presentation Applicable Statute CLOSED MEETING: The members of the to the Committee, should contact Unless otherwise indicated, all Broadcasting Board of Governors (BAG) Committee Chairperson Milton B. citations to the statute are references to will meet in closed session to review Kimpson, 803–779–2597, or Bobby D. the provisions effective January 1, 1995, and discuss a number of issues relating Doctor, Director of the Southern the effective date of the amendments to U.S. Government-funded nonmilitary Regional Office, 404–562–7000 (TDD made to the Tariff Act of 1930 (the Act), international broadcasting. They will 404–562–7004). Hearing-impaired by the Uruguay Round Agreements Act address internal procedural, persons who will attend the meeting (URAA). In addition, unless otherwise organizational, budgetary, and and require the services of a sign indicated, all citations to the personnel issues, as well as sensitive language interpreter should contact the Departments regulations are to the foreign policy issues relating to Regional Office at least five (5) working current regulations, as amended by the potential options in the U.S. days before the scheduled date of the interim regulations published in the international broadcasting field. This meeting. Federal Register on May 11, 1995 (60 meeting is closed because if open it The meeting will be conducted FR 25130). likely would either disclose matters that pursuant to the provisions of the rules would be properly classified to be kept and regulations of the Commission. SUPPLEMENTARY INFORMATION: secret in the interest of foreign policy Dated at Washington, DC, April 29, 1997. Scope of the Review under the appropriate executive order (5 Carol-Lee Hurley, The products covered by this review U.S.C. 552b.(c)(1)) or would disclose Chief, Regional Programs Coordination Unit. are certain cased pencils of any shape or information the premature disclosure of dimension which are writing and/or which would be likely to significantly [FR Doc. 97–11748 Filed 5–5–97; 8:45 am] BILLING CODE 6335±01±P drawing instruments that feature cores frustrate implementation of a proposed of graphite or other materials encased in agency action. (5 U.S.C. 552b.(c)(9)(B)) wood and/or man-made materials, In addition, part of the discussion will DEPARTMENT OF COMMERCE whether or not decorated and whether relate solely to the internal personnel or not tipped (e.g., with erasers, etc.) in issues of the BAG or the International International Trade Administration any fashion, and either sharpened or Broadcasting Bureau. (5 U.S.C. 552b. unsharpened. The pencils subject to this (c)(2) and (6)) The meeting of the [A±570±827] review are classified under subheading Broadcasting Board of Governors will be 9609.10.00 of the Harmonized Tariff followed, as necessary, by meetings of Certain Cased Pencils From the People's Republic of China; Final Schedule of the United States the corporate boards of Radio Free Asia (‘‘HTSUS’’). Specifically excluded from and RFE/RL, Inc. Results of Antidumping Duty Administrative Review the scope of this investigation are CONTACT PERSON FOR MORE INFORMATION: mechanical pencils, cosmetic pencils, Persons interested in obtaining more AGENCY: Import Administration, pens, non-case crayons (wax), pastels, information should contact Brenda International Trade Administration, charcoals, and chalks. Although the Thomas at (202) 401–3736. Commerce. HTSUS subheading is provided for Dated: May 2, 1997. ACTION: Notice of final results of convenience and customs purposes, our David W. Burke, antidumping duty administrative written description of the scope of this Chairman. review. review is dispositive. [FR Doc. 97–11882 Filed 5–2–97; 1:27 pm] SUMMARY: On January 13, 1997, the Background BILLING CODE 8230±01±M Department of Commerce (the The antidumping duty order on Department) published the preliminary pencils from the PRC was published on results and partial rescission of an December 28, 1994 (59 FR 66909). On COMMISSION ON CIVIL RIGHTS administrative review of the January 13, 1997, the Department Agenda and Notice of Public Meeting antidumping duty order on certain published in the Federal Register the of the South Carolina Advisory cased pencils (pencils) from the preliminary results of its review of this Committee People’s Republic of China (PRC) order for the period December 21, 1994 covering the period of December 21, through November 30, 1995 POR. In our Notice is hereby given, pursuant to 1994, through November 30, 1995 (62 notice of January 13, 1997, we rescinded the provisions of the rules and FR 1734). We gave interested parties an the review as to the several companies Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24637 which reported that they had no Furthermore, the following deposit DEPARTMENT OF COMMERCE shipments of subject merchandise requirements will be effective for all during the POR and as to China First shipments of the subject merchandise, International Trade Administration Pencil Company, Ltd. (China First) and entered, or withdrawn from warehouse, [C±791±001] Guangdong Provincial Stationery & for consumption on or after the Sporting Goods Import and Export publication date of these final results of Final Results of the 1992 Corporation (Guangdong). With respect administrative review, as provided for Countervailing Duty Administrative to China First and Guangdong, we by section 751(a)(1) of the Act: (1) No Review; Ferrochrome From South verified that the only subject cash deposit is required for entries of Africa merchandise exported by these firms subject merchandise both produced by during the December 21, 1994 through AGENCY: International Trade China First and exported by China First, Administration/Import Administration November 30, 1995 POR was or for subject merchandise both merchandise excluded from the order Department of Commerce. produced by Three Star Stationery and (i.e., manufactured by the factories upon ACTION: Notice of final results of exported by Guangdong; (2) the cash which the zero margins in the less-than- countervailing duty Administrative fair-value investigation were based). See deposit rate for merchandise exported Review. Antidumping Duty Order: Certain Cased by China First and produced by any Pencils from the People’s Republic of manufacturer other than China First, SUMMARY: On December 13, 1996, the China, 59 FR 66909, (December 28, merchandise exported by Guangdong Department of Commerce (the 1994). Therefore, these final results and produced by any manufacturer Department) published in the Federal apply only to the PRC-wide entity other than Three Star, and merchandise Register its preliminary results of which includes the remaining exported by all other PRC exporters will administrative review of the respondents in this review which did be the PRC rate of 44.66 percent; (3) the countervailing duty order on not reply to our questionnaire and show cash deposit rate for SFTC will be 8.31 ferrochrome from South Africa for the that they were entitled to a rate separate percent; and (4) for non-PRC exporters period January 1, 1992 through from the PRC entity. of subject merchandise from the PRC, December 31, 1992 (see 61 FR 65546) the cash deposit rate will be the rate of (Preliminary Results). We have Final Results of the Review its supplier, i.e., the PRC rate. completed this review and determine We gave interested parties an the net subsidy to be zero percent ad These deposit requirements shall valorem for all companies. The opportunity to comment on our remain in effect until publication of the preliminary results. We received no Department will instruct the Customs final results of the next administrative Service to liquidate, without regard to comments. Therefore, the preliminary review. This notice serves as the final results are unaltered. Based on the countervailing duties, all shipments of reminder to importers of their rationale set forth in our preliminary the subject merchandise from South responsibility under 19 CFR 353.26 to determination, we have determined that Africa exported on or after January 1, a margin of 44.66 percent exists for the file a certificate regarding the 1992, and on or before December 31, PRC entity for the period December 21, reimbursement of antidumping duties 1992. 1994 through November 30, 1995. (This prior to liquidation of the relevant EFFECTIVE DATE: May 6, 1997. rate applies to all exports of pencils entries during this review period. FOR FURTHER INFORMATION CONTACT: from the PRC other than those produced Failure to comply with this requirement Cynthia Thirumalai, Office 1, Group I, and exported by China First and those could result in the Secretary’s Import Administration, International produced by Shanghai Three Star presumption that reimbursement of Trade Administration, U.S. Department Stationery Company, Ltd. (Three Star) antidumping duties occurred and the of Commerce, Washington, DC 20230; and exported by Guangdong, and those subsequent assessment of double telephone: (202) 482–4087. antidumping duties. exported by Shanghai Foreign Trade SUPPLEMENTARY INFORMATION: Corporation (SFTC), an exporter which This notice also serves as a reminder Background was previously determined to be to parties subject to administrative entitled to a separate rate, and for which protective order (APO) of their On December 13, 1996, the the petitioner withdrew its request for responsibility concerning the Department published in the Federal this administrative review.) The disposition of proprietary information Register the Preliminary Results. The weighted-average dumping margins are disclosed under APO in accordance Department has now completed this as follows: with 19 CFR 353.34(d). Timely written administrative review in accordance with section 751 of the Tariff Act of Weighted notification or conversion to judicial Manufacturer/ protective order is hereby requested. 1930, as amended (the Act). producer/ average margin Failure to comply with the regulations We invited interested parties to exporter comment on the Preliminary Results. percentage and the terms of the APO is a Respondents Consolidated Metallurgical sanctionable violation. PRC Rate ...... 44.66 Industries, Ltd. (CMI), Ferralloys This administrative review and notice are Limited (Ferralloys) and Samancor Ltd. The U.S. Customs Service shall assess in accordance with section 751(a)(1) of the (Samancor), producers of the subject antidumping duties on all appropriate Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22. merchandise which exported entries. Individual differences between Dated: April 30, 1997. ferrochrome to the United States during United States price and normal value Robert S. LaRussa, the review period, submitted a case brief may vary from the percentage stated Acting Assistant Secretary for Import on January 22, 1997. No case brief was above. The Department will issue Administration. submitted by the Macalloy Corporation appraisement instructions concerning [FR Doc. 97–11756 Filed 5–5–97; 8:45 am] (petitioner). the respondent directly to the U.S. This review covers three producers/ Customs Service. BILLING CODE 3510±DS±P exporters of the subject merchandise 24638 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

(CMI, Ferralloys, and Samancor), which I. Programs Conferring Subsidies evidence from respondents above account for all exports of the subject secondary evidence from the foreign A. Regional Industrial Development governments. In addition, according to merchandise to the United States from Incentives: Subsidy on Housing for Key respondents, the decision ignored the South Africa, and eight programs. One Personnel company, Chromecorp Technology evidence already on the record which (PTY) Ltd. (Chromecorp), reported In the Preliminary Results we found clearly indicated that Category A having no exports to the United States that this program conferred benefits on benefits were tied to non-U.S. exports. during the review period; therefore, we the subject merchandise of 0.003 Nevertheless, should the Department did not include Chromecorp in this percent which, when rounded, gives an continue to require government ad valorem subsidy rate of zero percent. review (see the Preliminary Results). oversight, the information submitted by We received no comments by the respondents should demonstrate that Applicable Statute interested parties. Therefore, we have there was sufficient GOSA oversight of not changed our findings from the Category A claims to ensure that the The Department is conducting this Preliminary Results. allocated benefits were tied solely to administrative review in accordance exports to countries other than the with section 751(a) of the Tariff Act of II. Programs Found Not To Be Used United States. 1930, as amended (the Act). Unless Our analysis of the comments DOC Response otherwise indicated, all citations to the submitted by the interested parties, statute and to the Department’s summarized below, has led us to change We agree with respondents that regulations are references to the the status of the following program from government oversight of claims under a provisions as they existed on December a program conferring subsidies to a program whose benefits are allocated to 31, 1994. program not used with respect to exports in general is not necessarily exports of subject merchandise to the required for a determination that the Scope of Review United States: benefits are tied to specific markets. A. Category A of the EIP (see However, it is essential that any such The imported product covered by this comment, below). tying of benefits be done by the review is ferrochrome from South Africa In addition, in the Preliminary Results government at time of bestowal (see which is currently classifiable under we found that the producers and/or General Issues Appendix, Final items 7202.41.00, 7202.49.10 and exporters of the subject merchandise did Affirmative Countervailing Duty 7202.49.50 of the Harmonized Tariff not apply for or receive benefits under Determination: Certain Steel Products Schedule of the United States (HTSUS). the following programs: From Austria (58 FR 37217 at 37232 The HTSUS item numbers are provided B. Industrial Development (July 9, 1993)). for convenience and Customs purposes, Corporation Loans; The record in this case shows that the our written description of the scope of C. Export Incentive Program, producers of the subject merchandise this proceeding remains dispositive. Categories B, C and D; were required by the GOSA to refrain from claiming Category A benefits on Calculation Methodology for D. Regional Industrial Development Incentives; exports to the United States. In addition, Assessment and Cash Deposit Purposes (1) Labor Incentive; other information on the record, including evidence of GOSA oversight Respondents received countervailable (2) Interest Concession; E. Preferential Rail Rates; of Category A claims, demonstrates benefits only with respect to one sufficiently that the producers did not program. We weight-averaged the rate F. Government Loan Guarantees; G. Beneficiation Allowances—Electric claim or receive benefits on exports to received by each company for this the United States pursuant to the program, including companies with de Power Cost Aid Scheme; H. General Export Incentive Scheme; GOSA’s requirement. Therefore, we minimis and zero rates, by that determine that the benefits received company’s share of total exports of I. Rail Transport Rebate on Outgoing Goods (subprogram of the Regional were tied to markets other than the ferrochrome to the United States (see Industrial Development Incentives). United States at the time of bestowal Ceramica Regiomontana, S.A. v. United We received no comments regarding and, accordingly, that Category A was States, 853 F. Supp. 431 (CIT 1994)). We these programs from the interested not used with respect to exports of then summed the individual companies’ parties. Therefore, we have not changed subject merchandise to the United weighted-averaged rates to determine our findings in the Preliminary Results. States during the POR. the total subsidy rate benefitting exports Final Results of Review of subject merchandise to the United Analysis of Comments For the period January 1, 1992 States. The benefits received under this Comment program were so small (0.003 percent) through December 31, 1992, we as to render a zero ad valorem subsidy Respondents argue that the determine the net subsidy to be zero Department does not have to rely on percent ad valorem for all companies. rate, when rounded. Therefore, the total GOSA oversight in order to achieve the The Department will instruct the U.S. country-wide rate is zero percent ad requisite assurance that Category A Customs Service to liquidate, without valorem. Since the country-wide rate benefits were limited to non-U.S. regard to countervailing duties, all was zero, no further calculations were exports, as required by the GOSA. shipments of subject merchandise necessary. Instead, respondents point out that the exported on or after January 1, 1992 and Analysis of Programs Department has other means at its entered on or before December 31, 1992. disposal with which to assure itself, Because the countervailing duty order Based upon our analysis of including the option to conduct was revoked effective January 1, 1995 respondents’ questionnaire responses verification. Respondents also state that (see Revocation of Countervailing Duty and written comments from the the decision to require GOSA oversight Orders (60 FR 40568, August 9, 1995)) interested parties, we determine the is contrary to the Department’s policy of pursuant to section 753 of the Act, as following: preferring to rely upon primary amended by the Uruguay Round Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24639

Agreements Act, no other instructions Office of CVD/AD Enforcement VI, Applicable Statute and Regulations will be sent to the U.S. Customs Service. Import Administration, International With the exception of the 1994 This notice serves as a reminder to Trade Administration, US Department administrative review of the parties subject to administrative of Commerce, 14th Street and countervailing duty order on OCTG protective order (APO) of their Constitution Avenue, NW, Washington, from Argentina, the Department is responsibility concerning the DC 20230; telephone: (202) 482–2786. conducting these administrative reviews disposition of proprietary information SUPPLEMENTARY INFORMATION: in accordance with section 751(a) of the disclosed under APO in accordance Act. The 1994 OCTG review is being Background with 19 CFR 355.34(d). Timely written conducted in accordance with the notification of return/destruction of On December 30, 1996, the provisions of the Tariff Act of 1930, as APO materials or conversion to judicial Department published in the Federal amended by the Uruguay Round protective order is hereby requested. Register (61 FR 68713 ) the preliminary Agreements Act, effective January 1, Failure to comply with the regulations results of its administrative reviews and 1995. Otherwise, citations to the statute and the terms of an APO is a its intent to terminate the administrative and to the Department’s regulations are sanctionable violation. reviews of the countervailing duty in reference to the provisions as they This administrative review and notice orders on OCTG and Cold-Rolled Steel existed on December 31, 1994. are in accordance with section 751(a)(1) from Argentina. The Department has of the Act (19 U.S.C. 1675(a)(1)) and 19 Scope of the Reviews now completed these administrative CFR 355.22. reviews in accordance with section 751 OCTG from Argentina. Imports Dated: April 29, 1997. of the Tariff Act of 1930, as amended covered by this order include shipments Robert S. LaRussa, (the Act). of Argentine oil country tubular goods. Acting Assistant Secretary for Import The review of OCTG covering the Oil country tubular goods include Administration. period January 1 through December 31, hollow steel products of circular cross- [FR Doc. 97–11757 Filed 5–5–97; 8:45 am] 1994, was initiated on December 15, section intended for use in the drilling of oil or gas and oil well casing, tubing BILLING CODE 3510±DS±P 1995 (60 FR 64413). The review of OCTG covering the period January 1 and drill pipe or carbon or alloy steel, through December 31, 1993, was whether welded or seamless, DEPARTMENT OF COMMERCE initiated on December 15, 1994 (59 FR manufactured to either American 64650). The review of OCTG covering Petroleum Institute (API) or proprietary International Trade Administration the period January 1 through December specifications. The scope covers both [C±357±403; C±357±005] 31, 1992, was initiated on December 17, finished and unfinished OCTG. The 1993 (58 FR 65964). products covered in this review are Oil Country Tubular Goods From provided for under item numbers of the The review of Cold-Rolled Steel Argentina and Cold-Rolled Carbon Harmonized Tariff Schedule (HTS): covering the period January 1 through Steel Flat Products From Argentina; 7304.20.20, 7304.20.40, 7304.20.50, December 31, 1993, was initiated on Termination of Administrative Reviews 7304.20.60, 7304.20.80, 7304.39.00, May 12, 1994 (59 FR 24683). The review 7304.51.50, 7304.20.70, 7304.59.60, AGENCY: Import Administration, of Cold-Rolled Steel covering the period 7304.59.80, 7304.90.70, 7305.20.40, International Trade Administration, January 1 through December 31, 1992, 7305.20.60, 7305.20.80, 7305.31.40, Department of Commerce. was initiated on May 27, 1993 (58 FR 7305.31.60, 7305.39.10, 7305.39.50, ACTION: Notice of final results of 30767). 7305.90.10, 7305.90.50, 7306.20.20, countervailing duty administrative In the preliminary results, the 7306.20.30, 7306.20.40, 7306.20.60, review/termination of administrative Department determined that it lacks the 7306.20.80, 7306.30.50, 7306.50.50, reviews. authority to assess countervailing duties 7306.60.70, 7306.90.10. The HTS on entries of OCTG and Cold-Rolled subheadings are provided for SUMMARY: On December 30, 1996, the Steel made on or after September 20, convenience and Customs purposes. Department of Commerce (the 1991 and on or before December 31, The written description remains Department) published in the Federal 1994. We invited interested parties to dispositive. Register its preliminary results of comment on these preliminary results. Cold-Rolled Steel from Argentina. administrative reviews of the We did not receive any comments. Imports covered by this order include countervailing duty order on Oil Therefore, for the reasons stated in the shipments of Argentine cold-rolled Country Tubular Goods (OCTG) from preliminary results (61 FR 68713), we carbon steel flat products, whether or Argentina for the periods 1992, 1993 are terminating these reviews. not corrugated or crimped; whether or and 1994, and the countervailing duty The question of the Department’s not painted or varnished and whether or order on Cold-Rolled Carbon Steel Flat authority to assess duties on not pickled; not cut, not pressed, and Products (Cold-Rolled Steel) from unliquidated entries of OCTG made on not stamped to non-rectangular shape; Argentina for the periods 1992 and or after January 1, 1995 remains to be not coated or plated with metal; over 12 1993. The Department preliminarily determined in the context of the inches in width and under 0.1875 determined that it lacked the authority ongoing changed circumstances inches in thickness whether or not in to assess countervailing duties on the reviews. See, Leather from Argentina, coils; as currently provided for under entries subject to these reviews, and Wool from Argentina, Oil Country the following item numbers of the HTS: announced its intent to terminate the Tubular Goods from Argentina, and 7209.11.00, 7209.12.00, 7209.13.00, reviews. We have now finalized that Carbon Steel Cold-Rolled Flat Products 7209.14.00, 7209.21.00, 7209.22.00, determination and terminate these from Argentina; Preliminary Results of 7209.23.00, 7209.24.00, 7209.31.00, reviews. Changed Circumstances Countervailing 7209.32.00, 7209.33.00, 7209.34.00, EFFECTIVE DATE: May 6, 1997. Duty Reviews (Changed Circumstances 7209.41.00, 7209.42.00, 7209.43.00, FOR FURTHER INFORMATION CONTACT: Reviews), to be published on May 2, 7209.44.00, 7209.90.00, 7210.70.00, Dana Mermelstein or Richard Herring, 1997, in the Federal Register. 7211.30.50, 7211.41.70, 7211.49.50, 24640 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

7211.90.00, 7212.40.50. The HTS item DEPARTMENT OF DEFENSE DATES: Comments on the proposed numbers are provided for convenience changes must be received no later than and Customs purposes. The written Office of the Secretary July 20, 1997 for consideration by the description remains dispositive. JSC. Manual for Courts-Martial ADDRESSES: Comments on the proposed Termination of Administrative Reviews AGENCY: Joint Service Committee on changes should be sent to LTC Paul P. We determine that we do not have the Military Justice (JSC). Holden, Jr., U.S. Army, Office of the authority to assess countervailing duties ACTION: Notice of proposed Judge Advocate General, Criminal Law for the period September 20, 1991 amendments. Division, 2200 Army Pentagon, through December 31,1994, for the Washington, DC, 20310–2200. SUMMARY: The Department of Defense is reasons stated in the preliminary results FOR FURTHER INFORMATION CONTACT: LTC considering recommending changes to Paul P. Holden, Jr., US Army, Office of (61 FR 68713). Thus, we are terminating the Manual for Courts-Martial, United administrative reviews covering the the Judge Advocate General, Criminal States, (1995 ed.) [MCM]. The proposed Law Division, 2200 Army Pentagon, periods 1992, 1993, and 1994, for the changes are the 1997 draft annual countervailing duty order on OCTG Washington, DC, 20310–2200; 703-695– review required by the MCM and DoD 1891; FAX 703–693–5086. from Argentina, and the periods 1992 Directive 5500.17, ‘‘Role and and 1993, for the countervailing duty Responsibilities of the Joint Service Manual for Courts-Martial Proposed order on Cold-Rolled Steel from Committee (JSC) on Military Justice,’’ Amendments Argentina. May 8, 1996. With one exception, the The full text of the affected sections Therefore, the Department will proposed changes concern the rules of follows: instruct the Customs Service to procedure and evidence applicable in R.C.M. 502(c) is amended by deleting liquidate, without regard to trials by courts-martial. One proposed the words ‘‘on active duty’’ in the countervailing duties, all shipments of change adds an offense to Part IV of the second line of the rule. the subject merchandise from Argentina MCM. More specifically, the proposed The analysis accompanying R.C.M. entered during those periods. changes would: (1) Delete the 502(c) is amended by adding the requirement that judges be on ‘‘active following: The requirement for cash deposits of duty’’ at the time of trial; (2) permit the 199l Amendment: R.C.M. 502(c) was estimated countervailing duties of zero referral and trial of additional charges at amended to delete the requirement that percent of the f.o.b. invoice price on all any time until entry of pleas; (3) set military judges be ‘‘on active duty’’ to shipments of OCTG from Argentina, forth rules for taking the testimony of enable Reserve Component judges to entered, or withdrawn from warehouse, children by remote closed-circuit conduct trials during periods of inactive for consumption on or after January 1, television; (4) clarify that ‘‘hate duty for training (IDT/IADT) and 1995 will remain in effect pending the motivation’’ can be considered as inactive duty training travel (IATT). The outcome of the changed circumstances aggravation evidence in sentencing; (5) active duty requirement does not appear reviews of the four Argentine eliminate the punishment of loss of in Article 26, UCMJ which prescribes countervailing duty orders currently numbers; (6) add the youth of the victim the qualifications for military judges. It being conducted by the Department. See as an aggravating factor in capital cases; appears to be a vestigial requirement Changed Circumstances Reviews. The (7) clarify the length of time during from paragraph 4e of the 1951 and 1969 order on Cold-Rolled Steel was revoked which sentences may be suspended; (8) MCM. Neither the current MCM nor its effective January 1, 1995; thus, the clarify the limitations on post-trial predecessors provide an explanation for suspension of liquidation and cash contact with court members; (9) this additional requirement. It was deposit requirements were discontinued recognize a limited, qualified deleted to enhance efficiency in the effective that date. psychotherapist-patient privilege; and military justice system. (10) recognize the offense of reckless R.C.M. 601(e)(2) is amended by This notice serves as a reminder to deleting the words ‘‘arraignment’’ and parties subject to administrative endangerment. The proposed changes have not been substituting the words ‘‘the entry of protective order (APO) of their coordinated within the Department of pleas’’, in the second sentence, and by responsibility concerning the Defense under DoD Directive 5500.1, deleting the words ‘‘arraignment of the disposition of proprietary information ‘‘Preparation and Processing of accused upon charges’’ and inserting the disclosed under APO in accordance Legislation, Executive Orders, words ‘‘the entry of pleas’’ in the last with 19 CFR 355.34(d). Timely written Proclamations, and Reports and sentence. notification of return/destruction of Comments Thereon,’’ May 21, 1964, and The analysis accompanying R.C.M. APO materials or conversion to judicial do not constitute the official position of 601(e)(2) is amended by adding the protective order is hereby requested. the Department of Defense, the Military following: Failure to comply with the regulations Departments, or any other government 199l Amendment: R.C.M. 601(e)(2) and the terms of an APO is a agency. was amended to permit the adding of sanctionable violation. This notice is provided in accordance charges until the entry of pleas in These administrative reviews and notice with DoD Directive 5500.17, ‘‘Role and general and special courts-martial are in accordance with section 751(a)(1) of Responsibilities of the Joint Service without the consent of the accused, the Act (19 U.S.C. 1675(a)(1)) and 19 CFR Committee (JSC) on Military Justice,’’ provided that all necessary procedural 355.22. May 8, 1996. This notice is intended requirements concerning the additional charges have been complied with. Prior Dated: April 29, 1997. only to improve the internal management of the Federal Government. to this amendment, arraignment had Robert S. LaRussa, It is not intended to create any right or always been the point of demarcation, Acting Assistant Secretary for Import benefit, substantive or procedural, after which new charges could not be Administration. enforceable at law by any party against added without the accused’s consent. [FR Doc. 97–11755 Filed 5–5–97; 8:45 am] the United States, its agencies, its United States v. Davis, 11 USCMA 407, BILLING CODE 3510±DS±P officers, or any person. 29 C.M.R. 223 (1960). Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24641

In the Federal civilian system, television to transmit the child’s The analysis accompanying R.C.M. arraignment was the preliminary stage testimony from the courtroom to the 914A is as follows: where the accused was informed of the accused’s location. The use of two-way 199lAmendment: This rule allows indictment and pled to it, thereby television, to some degree, may defeat the military judge to determine what formulating the issues to be tried. the purpose of these alternative procedure to use when taking testimony Hamilton v. Alabama, 368 U.S. 52 procedures, which is to avoid trauma to under Mil. R. Evid. 611(d)(2). It states (1961). In the military, arraignment the victim who must view his or her that normally such testimony should be symbolized formal notice to the accused alleged abuser. In such cases, the judge taken via a two-way closed circuit and often was followed closely by pleas. has discretion to direct one-way television system. The rule further Id. However, arraignment has become television communication. The use of prescribes the procedures to be used if the event whereby the court-martial is one-way television was approved by the a television system is employed. The formally placed under the cognizance of Supreme Court in Maryland v. Craig, use of two-way television, to some the military judge, and the entry of pleas 497 U.S. 836 (1990). This amendment degree, may defeat the purpose of these is oftentimes now deferred. Precluding also gives the accused the election to alternative procedures, which is to the addition of charges at arraignment absent himself from the courtroom to avoid trauma to the victim who must no longer serves a useful purpose. prevent remote testimony. Such a view his or her alleged abuser. In such This amendment extends the period provision gives the accused a greater cases, the judge has discretion to direct of time during which charges can be role in determining how this issue will one-way television communication. The served on the accused at courts-martial be resolved. use of one-way television was approved to the taking of pleas. Provided that R.C.M. 914A is created as follows: by the Supreme Court in Maryland v. procedural safeguards with respect to Craig, 497 U.S. 836 (1990). This Rule 914A. Use of Remote Live the additional charges are accorded, (i.e. amendment also gives the accused an Testimony in Child Abuse Cases Article 32 hearing, or the 3/5 day election to absent himself from the statutory waiting period, voir dire of the (a) General procedures. A child courtroom to prevent remote testimony. military judge, and challenge of the witness in a case involving abuse shall Such a provision gives the accused a qualifications of counsel), the original be allowed to testify out of the presence greater role in determining how this purpose of the rule is fulfilled. of the accused after appropriate findings issue will be resolved. R.C.M. 804 is amended by have been entered in accordance with redesignating the current subsection (c) M.R.E. 611(d)(2). The procedure used to Military Rule of Evidence 611 is as subsection (d) and inserting the take such testimony will be determined amended by adding the following following as subsection (c) by the military judge based upon the subsection: exigencies of the situation. However, (d) Remote examination of child (c) Absence for Limited Purpose of such testimony should normally be witness. Child Testimony taken via a two-way closed circuit (1) In a case involving abuse of a child (1) Election by accused. Following a television system. When a television under the age of 16, the military judge determination by the military judge in a system is employed, the following shall, subject to the requirements of child abuse case that remote testimony procedures will be observed: section (2) of this rule, allow the child of a child is appropriate pursuant to (1) The witness will testify from a to testify from an area outside the M.R.E. 611(d)(2), the accused may elect closed location outside the courtroom; courtroom as prescribed in R.C.M. to voluntarily absent himself from the (2) The only persons present at the 914A. courtroom in order to preclude the use remote location will be the witness, (2) Remote examination will be used of procedures described in R.C.M. 914A. counsel for each side (not including an only where the military judge makes a (2) Procedure. The accused’s absence accused pro se), equipment operators, finding on the record, following expert will be conditional upon his being able and other persons, such as an attendant testimony, that either: to view the witness’ testimony from a for the child, whose presence is deemed (A) The child witness is likely to remote location. A two-way closed necessary by the military judge; suffer substantial trauma if made to circuit television system will be used to (3) The military judge, the accused, testify in the presence of the accused; or transmit the child’s testimony from the members, the court reporter, and all (B) The prosecution will be unable to courtroom to the accused’s location. The other persons viewing or participating elicit testimony from the child witness accused will also be provided in the trial will remain in the in the presence of the accused. contemporaneous audio communication courtroom; (3) Remote examination of a child with his counsel, or recesses will be (4) Sufficient monitors will be placed witness will not be utilized where the granted as necessary in order to allow in the courtroom to allow viewing of the accused elects to absent himself from the accused to confer with counsel. The testimony by both the accused and the the courtroom in accordance with procedures described herein will be fact finder; R.C.M. 804(c). employed unless the accused has made (5) The voice of the military judge The analysis accompanying Mil. R. a knowing and affirmative waiver of will be transmitted into the remote Evid. 611 is amended by adding the these procedures. location to allow control of the following: (3) Effect on accused’s rights proceedings; 199lAmendment: This amendment generally. Exercise by the accused of the (6) The accused will be permitted to Mil. R. Evid. 611 gives substantive procedures under subsection (c)(2) will audio contact with his counsel, or the guidance to military judges regarding not otherwise affect the accused’s right court will recess as necessary to provide the use of alternative examination to be present at the remainder of the the accused an opportunity to confer methods for child abuse victims. The trial in accordance with this rule. with counsel. use of two-way television, to some The analysis accompanying R.C.M. (b) Prohibitions. The procedures degree, may defeat the purpose of these 804 is amended by adding the described above will not be used where alternative procedures; which is to following: the accused elects to absent himself avoid trauma to the victim who must 199l Amendment: The amendment from the courtroom pursuant to R.C.M. view his or her abuser. In such cases, provides for two-way closed circuit 804(c). the military judge has discretion to 24642 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices direct one-way communication. The use in the court-martial presentencing convening authority’s action shall not of one-way television was approved by procedure. This amendment also differs be deemed ‘‘unreasonably long’’ for a the Supreme Court in Maryland v. from the Federal Sentencing Guideline sentence adjudged by a special court- Craig, 497 U.S. 836 (1990). This in that the amendment does not specify martial. Notwithstanding the foregoing, amendment also gives the accused an the burden of proof required regarding a period of suspension agreed to by the election to absent himself from the evidence of ‘‘hate crime’’ motivation. No parties in a pretrial agreement (R.C.M. courtroom to prevent remote testimony. burden of proof is customarily specified 705) ordinarily shall not be deemed Such a provision gives the accused a regarding aggravating evidence admitted ‘‘unreasonably long.’’ greater role in determining how this in the presentencing procedure, with The analysis accompanying R.C.M. issue will be resolved. the notable exception of aggravating 1108(d) is amended by adding the Rule for Courts-Martial 1001(b)(4), factors under R.C.M. 1004 in capital following: regarding the introduction of evidence cases. 199lAmendment: This amendment in aggravation during the presentencing R.C.M. 1003 is amended by deleting clarifies the term ‘‘not unreasonably procedure, is amended by adding ‘‘(4) Loss of numbers, lineal position, or long’’ by defining the maximum period between the first and second sentences, seniority. These punishments are of suspension which is reasonable and the following: authorized only in cases of Navy, lawful, thereby assisting convening Evidence in aggravation includes, but Marine Corps, and Coast Guard authorities, those who advise them, and is not limited to, evidence of financial, officers;’’ by deleting the ‘‘Discussion’’ courts as to the maximum length of time social, psychological, and medical thereto, and by correcting subsequent the unexecuted portion of a sentence impact on or cost to any person or entity numbered paragraphs to reflect this may be suspended. Thus, convening who was the victim of an offense deletion. authorities are guided in fixing a period committed by the accused and evidence The analysis accompanying R.C.M. of suspension which bears a rational of significant adverse impact on the 1003 is amended by adding the relationship to the severity of the mission, discipline, or efficiency of the following: sentence adjudged and approved. This command directly and immediately 199lAmendment: Although loss of amendment does not address any other resulting from the accused’s offense. In numbers had the effect of lowering term of suspension than time. Further, addition, evidence in aggravation may precedence for some purposes, e.g., the amendment will most often be include evidence that the accused quarters priority, board and court applied to suspended, unexecuted intentionally selected any victim or any seniority, and actual date of promotion, confinement. A convening authority property as the object of the offense loss of numbers did not affect the may, however, in the exercise of because of the actual or perceived race, officer’s original position for purposes discretionary powers, suspend all or any color, religion, national origin, of consideration for retention or part of an adjudged sentence, and may ethnicity, gender, disability, or sexual promotion. Accordingly, this impose reasonable and lawful orientation of any person. punishment was deleted because of its conditions upon the accused as The Discussion to R.C.M. 1001(b)(4) is negligible consequences and the provision of that suspension. UCMJ, amended by striking the first paragraph misconception that it was a meaningful Arts. 60, 71, 10 U.S.C.A. §§ 860, 871 thereof. punishment. (1994); United States v. Cowan, 34 M.J. The analysis to R.C.M. 1001(b)(4) is Appendix 11 of the MCM is amended 258 (C.M.A. 1992). The service amended by adding the following: by deleting ‘‘Loss of numbers, Etc., l Secretaries may further restrict the 199 Amendment: R.C.M. 1001(b)(4) paragraphs (6) and (7) thereunder, by periods of suspension. was amended by elevating to the Rule correcting subsequent numbered Rule for Court-Martial 1012 is created language that heretofore appeared in the paragraphs to reflect this deletion, and as follows: Discussion to the Rule. The Rule was deleting the notation at the end of Rule 1012. Interviewing Members further amended to recognize that Appendix 11 which states ‘‘Numbers 6 Following Adjournment evidence that the offense was a ‘‘hate and 7 apply only in the Navy, Marine crime’’ may also be presented to the Corps, and Coast Guard.’’ Rule for Except as provided in R.C.M. sentencing authority. The additional Courts-Martial 1004(c)(7) is amended by 1105(b)(4), following adjournment, no ‘‘hate crime’’ language was derived in adding at the end thereof, the following attorney or any party to a court-martial part from § 3A1.1 of the Federal aggravating factor applicable in the case shall themselves or through any Sentencing Guidelines, in which hate of a violation of Article 118(1): ‘‘(K) The investigator or other person acting for crime motivation results in an upward victim of the murder was 14 years of age them, interview, examine, or question adjustment in the level of the offense for or younger.’’ any member of a court-martial, after the which the defendant is sentenced. The Analysis to R.C.M. 1004 is member has been excused from the Courts-martial sentences are not amended by adding the following: court-martial, about any matter awarded upon the basis of guidelines, 199lAmendment: R.C.M. pertaining to the court-martial, except at such as the Federal Sentencing 1004(c)(7)(K) was added to afford a session held under Article 39(a). Any Guidelines, but rather upon broad greater protection to victims who are such session shall be limited to considerations of the needs of the especially vulnerable due to their age. inquiring into whether extraneous service and the accused and on the R.C.M. 1108(d) is amended by adding prejudicial information was improperly premise that each sentence is after the second sentence the following: brought to the attention of the members individually tailored to the offender and A period of suspension equal to the of the court-martial, whether any offense. The upward adjustment used in time served in confinement, plus 2 years outside influence was improperly the Federal Sentencing Guidelines does thereafter, or a period of suspension of brought to bear upon any member, or not directly translate to the court- 5 years from the date of convening whether there was unlawful command martial presentencing procedure. authority’s action, whichever is greater, influence. Therefore, in order to adapt this concept shall not be deemed ‘‘unreasonably The analysis accompanying R.C.M. to the court-martial process, this long’’ for a sentence adjudged by a 1012 is created as follows: amendment was made to recognize that general court-martial. A period of 199lAmendment: Prior to ‘‘hate crime’’ motivation is admissible suspension of 2 years from the date of adjournment, contacts with court- Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24643 members are already adequately who holds credentials to provide such (6) Military necessity. When regulated by the military judge. This services from any military health care necessary to ensure the safety and rule was added to address post-trial facility, or is a person reasonably security of military personnel, military contacts with members. It prevents believed by the patient to have such dependents, military property, classified anyone from disturbing the sanctity of qualifications. information, or the accomplishment of a deliberations by questioning members (3) An ‘‘assistant to a military mission. about matters associated with their psychotherapist’’ is a person employed (e) Procedure to determine duties as members. Such questioning by or assigned to assist a admissibility of patient records or results in lessened public confidence in psychotherapist in providing communications: the court-martial system and intrudes professional services, or is reasonably (1) In any case in which the into a process that must remain secret believed by the patient to be such. production or admission of records or in order to grant court members the (4) A communication is communications of a patient other than independence and discretion needed to ‘‘confidential’’ if not intended to be the accused is a matter in dispute, a arrive at a verdict free from fear of disclosed to third persons other than party may seek an interlocutory ruling public or private criticism or those to whom disclosure is in by the military judge. In order to obtain retribution. See United States v. Turner, furtherance of the rendition of such a ruling, the party shall: 42 M.J. 783 (N.M.Ct.Crim.App. 1995); professional services to the patient or (A) file a written motion at least 5 United States v. Thomas, 39 M.J. 626 those reasonably necessary for the days prior to entry of pleas specifically (N.M.C.M.R. 1993). Also, this transmission of the communication. describing the evidence and stating the amendment brings the military practice (5) ‘‘Evidence of a patient’s records or purpose for which it is sought or in line with most Federal courts. See communications’’ is testimony of a offered, or objected to, unless the United States v. Hooshmand, 931 F.2d. psychiatrist, psychologist, or assistant to military judge, for good cause shown, 725, 736–37 (11th Cir. 1991); United the same, or patient records that pertain requires a different time for filing or States v. Davila, 704 F.2d. 749, 753–54 to communications by a patient to a permits filing during trial; and (5th Cir. 1983). psychiatrist, psychologist, or assistant to (B) serve the motion on the opposing Military Rule of Evidence 501(d) is the same for the purposes of diagnosis party, the military judge and, if amended to read as follows: or treatment of the patient’s mental or practicable, notify the patient or the (d) Except as provided in Rule 513, emotional condition. patient’s guardian or representative of information not otherwise privileged (c) Who may claim the privilege. The the filing of the motion and of the does not become privileged on the basis privilege may be claimed by the patient opportunity to be heard as set forth in that it was acquired by a military or or the guardian or conservator of the subparagraph (e)(2). civilian health care provider acting in a patient. The psychotherapist or assistant (2) Before ordering the production or professional capacity. to a psychotherapist who received the admission of evidence of a patient’s Military Rules of Evidence 513 is communication may claim the privilege records or communications, the military created as follows on behalf of the patient. The authority judge shall conduct a hearing. Upon the Rule 513. Psychotherapist-Patient of such a psychotherapist or assistant to motion of counsel for either party and Privilege so assert the privilege is presumed in upon good cause shown, the military (a) General rule of privilege. A patient, the absence of evidence to the contrary. judge may order the hearing closed. At as that term is defined in this rule, has (d) Exceptions. There is no privilege the hearing, the parties may call a privilege to refuse to disclose and to under this rule under the following witnesses, including the patient, and prevent any other person from circumstances: offer other relevant evidence. The disclosing a confidential (1) Death of patient. The patient is patient will be afforded a reasonable communication made by the patient to dead; opportunity to attend the hearing and be a psychotherapist or an assistant to a (2) Crime or fraud. If the heard at the patient’s own expense psychotherapist, as those terms are communication clearly contemplated unless the patient has been otherwise defined in this rule, if such the future commission of a fraud or subpoenaed or ordered to appear at the communication was made for the crime or if the services of the hearing. However, the proceedings will purpose of facilitating diagnosis or psychotherapist were sought or obtained not be unduly delayed for this purpose. treatment of the patient’s mental or to enable or aid anyone to commit or In a case before a court-martial emotional condition. plan to commit what the patient knew composed of a military judge and (b) Definitions. As used in this rule: or reasonably should have known to be members, the military judge shall (1) A ‘‘patient’’ is a person who a crime or fraud; conduct the hearing outside the consults with or is examined or (3) Spouse abuse or child abuse or presence of the members. interviewed by a psychotherapist, but neglect. When the communication is (3) If the military judge determines on the term does not include a person who, evidence of spouse abuse, or child abuse the basis of the hearing described in at the time of such consultation, or neglect; subparagraph (2) of this subdivision that examination or interview, is subject to (4) Mandatory reports. When a federal the evidence that the party seeks to the Uniform Code of Military Justice law, state law, or military regulation acquire, offer, or exclude is privileged, under Article 2(a)(1), (2), (3), (7), (8), (9), imposes a duty to report information irrelevant, or otherwise inadmissible, no or (10). contained in a communication; further proceedings will be conducted (2) A ‘‘psychotherapist’’ is a (5) Patient is dangerous to self or on the issue and the military judge shall psychiatrist or psychologist who is others. When a psychotherapist or not order the production or admission licensed or certified in any state, assistant to a psychotherapist has a of the evidence. territory, the District of Columbia or reasonable belief that a patient’s mental (4) If the military judge is unable to Puerto Rico to perform professional or emotional condition makes the determine whether the evidence is services as such and, if such person is patient a danger to any person, privileged or relevant, the military judge a member of, employed by, or serving including the patient, or to the property shall examine the evidence or a proffer under contract with the armed forces, of another person; thereof in camera. 24644 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

(A) If the military judge determines on 135 L.Ed. 2d. 337] (1996). Jaffee injury. It does not include minor the basis of the in camera examination interpreted Fed. R. Evid. 501, which injuries, such as a black eye or a bloody that the evidence is privileged, refers federal courts to state law to nose, but does include fractured or irrelevant, or otherwise inadmissible, determine the extent of privileges in dislocated bones, deep cuts, torn the military judge shall not order the civil proceedings. Although Mil. R. members of the body, serious damage to production or admission of the Evid. 501(d), as it existed at the time of internal organs, and other serious bodily evidence. the Jaffee decision, precluded injuries. (B) If the military judge determines application of such a privilege in courts- (6) Death or injury not required. It is that the evidence is relevant and not martial, Rule 501(d) was amended to not necessary that death or grievous privileged, such evidence, or pertinent prevent misapplication of a privilege. bodily harm be actually inflicted to portions thereof, shall be produced and/ The language of Mil R. Evid 513 is based prove reckless endangerment. or admitted in the trial to the extent in part on Proposed Fed. R. Evid. (not d. Lesser included offenses. None. specified by the military judge. enacted) 504 and state rules of evidence. e. Maximum punishment. Bad- (5) To prevent unnecessary disclosure conduct discharge, forfeiture of all pay of evidence of a patient’s records or The following new paragraph is inserted and allowances, and confinement for 6 communications, the military judge may in MCM, part IV after paragraph 100: months. issue protective orders or may admit f. Sample specification. In that 100a. Article 134 (Reckless llllllll only portions of the evidence. Endangerment) (personal jurisdiction (6) The motion, related papers, and data), did, (at/on board llllll the record of the hearing shall be sealed a. Text. See paragraph 60. location) (subject-matter jurisdiction and shall remain under seal unless the b. Elements. data, if required), on or about military judge or an appellate court (1) That the accused did engage in llllll 19ll, wrongfully and orders otherwise. conduct; recklessly engage in conduct, to wit: The analysis to Mil. R. Evid. 501 is (2) That the conduct was wrongful (he/she) (describe conduct) and that the amended by adding: and reckless or wanton; accused’s conduct was likely to cause ‘‘199 Amendment: The amendment of (3) That the conduct was likely to death or serious bodily harm to Mil. R. Evid 501(d), and the related produce death or grievous bodily harm llllll. creation of Mil. R. Evid. 513, clarify the to another person; state of military law after the Supreme (4) That under the circumstances, the The following paragraph is added to the Court decision in Jaffee v. Redmond, conduct of the accused was to the analysis of the punitive articles, A23, lll U.S. lll [116 S. Ct. 1923, 135 prejudice of good order and discipline MCM: L.Ed. 2d. 337] (1996). Jaffee interpreted in the armed forces or was of a nature 100a. Article 134 (Reckless Fed. R. Evid. 501, which refers federal to bring discredit upon the armed Endangerment). courts to state law to determine the forces. extent of privileges in civil proceedings. c. Explanation. c. Explanation. This paragraph is new Although Mil. R. Evid. 501(d), as it (1) In general. This offense is intended and is based on United States v. Woods, existed at the time of the Jaffee decision, to prohibit and therefore deter reckless 28 M.J. 318 (C.M.A. 1989); see also Md. precluded application of such a or wanton conduct which wrongfully Ann. Code art. 27, sect. 120. The privilege in courts-martial, Rule 501(d) creates a substantial risk of death or definitions of ‘‘reckless’’ and ‘‘wanton’’ was amended to prevent misapplication serious injury to others. have been taken from Article 111, of a privilege. The language of Mil R. (2) Wrongfulness. Conduct is drunken or reckless driving. The Evid 513 is based in part on Proposed wrongful when it is without legal definition of ‘‘likely to produce grievous Fed. R. Evid. (not enacted) 504 and state justification or excuse. bodily harm’’ has been taken from rules of evidence. Mil. R. Evid. 513 was (3) Recklessness. ‘‘Reckless’’ conduct Article 128, assault. created to establish a limited is conduct that exhibits a culpable Dated: April 29, 1997. psychotherapist-patient privilege for disregard of foreseeable consequences to L.M. Bynum, civilians not subject to the UCMJ and others from the act or omission Alternate OSD Federal Register Liaison military retirees. In keeping with the involved. The accused need not Officer, Department of Defense. practice of American military law since intentionally cause a resulting harm or [FR Doc. 97–11601 Filed 5–5–97; 8:45 am] know that his conduct is substantially its inception, there is still no doctor- BILLING CODE 5000±04±P patient or psychotherapist-patient certain to cause that result. The ultimate privilege for members of the Armed question is whether, under all the Forces. circumstances, the accused’s conduct DEPARTMENT OF DEFENSE The analysis to Mil. R. Evid. 513 is was of that heedless nature which made created as follows: it actually or imminently dangerous to Department of the Army ‘‘199 Amendment: Mil. R. Evid. 513 the rights or safety of others. was created to establish a limited (3) Wantoness. ‘‘Wanton’’ includes Committee Meeting Notice psychotherapist-patient privilege for ‘‘reckless,’’ but may connote willfulness, AGENCY: School of the Americas, civilians not subject to the UCMJ and or a disregard of probable consequences, Training and Doctrine Command. military retirees. In keeping with the and thus describe a more aggravated ACTION: Notice of meeting. practice of American military law since offense. its inception, there is still no doctor- (4) Likely to produce. When the SUMMARY: In accordance with Section patient or psychotherapist-patient natural or probable consequence of 10(a)(2) of the Federal Advisory privilege for members of the Armed particular conduct would be death or Committee Act (Pub.L. 92–463), Forces. Rule 513, and the related grievous bodily harm, it may be inferred announcement is made of the following amendment to Mil. R. Evid 501(d), that the conduct is ‘‘likely’’ to produce committee meeting: clarify the state of military law after the that result. See paragraph 54c(4)(a)(ii). Name of Committee: School of the Supreme Court decision in Jaffee v. (5) Grievous bodily harm. ‘‘Grievous Americas (SOA) Subcommittee of the Redmond, U.S. lll [116 S. Ct. 1923, bodily harm’’ means serious bodily Army Education Advisory Committee. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24645

Dates of Meeting: 21 and 22 May entitled ‘‘Liposomes Including Sterols objections may be filed with the Office 1997. Having Thiol Moieties and Peptides or of the Command Judge Advocate, U.S. Place: School of the Americas, Proteins Including CTL Epitopes and Army Medical Research and Materiel Building 35, Fort Benning, Georgia. Administration Thereof,’’ filed July 2, Command, 504 Scott Street, Fort Time: 0900–1700 on 21 May, 0900– 1996. This patent has been assigned to Detrick, Maryland, 21702–5012, Attn: 1600 on 22 May 1997. the United States Government as MCMR–JA. FOR FURTHER INFORMATION CONTACT: represented by the Secretary of the FOR FURTHER INFORMATION CONTACT: School of the Americas, Attention: Army. CPT Elizabeth Arwine, Legal Advisor, TMD, MAJ Clemente, Room 333, ADDRESSES: Office of the Command (301) 619–2065 or fax (301) 619–5034. Building 35, Fort Benning, GA 31905. Judge Advocate, U.S. Army Medical SUPPLEMENTARY INFORMATION: None. SUPPLEMENTARY INFORMATION: Research and Materiel Command, 504 Gregory D. Showalter, Proposed Agenda: Presentation by the Scott Street, Fort Detrick, Maryland Army Federal Register Liaison Officer. Commanding General Training and 21702–5012, Attn: MCMR–JA. [FR Doc. 97–11716 Filed 5–5–97; 8:45 am] FOR FURTHER INFORMATION CONTACT Doctrine Command on the : BILLING CODE 3710±08±M Subcommittee’s report of the previous CPT Elizabeth Arwine, Legal Advisor, meeting and issues requested from that (301) 619–2065 or fax (301) 619–5034. meeting. SUPPLEMENTARY INFORMATION: This DEPARTMENT OF EDUCATION 1. Purpose of Meeting: This is the invention is a method for production of third SOA Subcommittee meeting. The an unlimited number of uniquely Submission for OMB Review; subcommittee will receive a report from modified liposomes which result in an Comment Request the Commander Training and Doctrine enhanced cytotoxic T lymphocyte (CTL) Command, and briefings they requested response and which can be used in AGENCY: Department of Education. as a result of the second subcommittee production of vaccines and reagents. ACTION: Submission for OMB review; meeting. Modification occurs by altering the comment request. 2. Meeting of the Advisory Committee liposomes to include at least one sterol SUMMARY: The Director, Information is open to the public. Due to space having at least one thiol moiety and Resources Management Group, invites limitations, attendance may be limited which include peptides or proteins. comments on the submission for OMB to those persons who have notified the Examples of the method’s utility review as required by the Paperwork Committee Management Office in include synthesis of peptides which Reduction Act of 1995. writing at least 5 days prior to the may be used in construction of vaccines meeting date of their intent to attend. directed against viral and bacterial DATES: Interested persons are invited to 3. Any member of the public may file pathogens, composed of varied HIV submit comments on or before June 5, a written statement with the committee subunits, or in which enhanced CTL 1997. before, during, or after the meeting. To activity is desired. ADDRESSES: Written comments should the extent that time permits, the Gregory D. Showalter, be addressed to the Office of subcommittee chairman may allow Army Federal Register Liaison Officer. Information and Regulatory Affairs, public presentations of oral statements Attention: Wendy Taylor, Desk Officer, [FR Doc. 97–11715 Filed 5–5–97; 8:45 am] at the meeting. Department of Education, Office of 4. All communications regarding this BILLING CODE 3710±08±M Management and Budget, 725 17th subcommittee should be addressed to Street, NW., Room 10235, New Lieutenant Colonel Franklin Montalvo, DEPARTMENT OF DEFENSE Executive Office Building, Washington, Designated Federal Official, US Army DC 20503. Requests for copies of the School of the Americas, Attn: ATZB– Department of the Army proposed information collection SAZ–CS, Fort Benning, GA 31905–6245. requests should be addressed to Patrick Gregory D. Showalter, Intent To Grant Exclusive Patent J. Sherrill, Department of Education, 600 Army Federal Register Liaison Officer. License; Medical Technology and Independence Avenue, S.W., Room [FR Doc. 97–11714 Filed 5–5–97; 8:45 am] Practice Patterns Institute, Inc. 5624, Regional Office Building 3, Washington, DC 20202–4651. BILLING CODE 3710±08±M AGENCY: U.S. Army Medical Research and Materiel Command, DoD. FOR FURTHER INFORMATION CONTACT: Patrick J. Sherrill (202) 708–8196. ACTION: Notice. DEPARTMENT OF DEFENSE Individuals who use a SUMMARY: The Department of the Army telecommunications device for the deaf Department of the Army hereby gives notice of its intent to grant (TDD) may call the Federal Information to Medical Technology and Practice Relay Service (FIRS) at 1–800–877–8339 Availability of Exclusive Licensing of Patterns Institute, Inc., a revocable, between 8 a.m. and 8 p.m., Eastern time, U.S. Patent Application Concerning nonassignable, exclusive license in the Monday through Friday. Liposomes Including Sterols Having United States to practice the SUPPLEMENTARY INFORMATION: Section Thiol Moieties and Peptides or Government owned invention described 3506 of the Paperwork Reduction Act of Proteins Including CTL Epitopes and in U.S. Patent Application Serial No. 1995 (44 U. S. C. Chapter 35) requires Administration Thereof 08/764,469, entitled ‘‘Liposomes that the Office of Management and AGENCY: U.S. Army Medical Research Including Sterols Having Thiol Moieties Budget (OMB) provide interested and Materiel Command, DoD. and Peptides or Proteins Including CTL Federal agencies and the public an early ACTION: Notice. Epitopes And Administration Thereof,’’ opportunity to comment on information filed July 2, 1996. Anyone wishing to collection requests. OMB may amend or SUMMARY: In accordance with 37 CFR object to the grant of this license has 60 waive the requirement for public 404.6, announcement is made of the days from the date of this notice to file consultation to the extent that public availability for licensing of U.S. Patent written objections along with participation in the approval process Application Serial No. 08/764,469, supporting evidence, if any. Written would defeat the purpose of the 24646 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices information collection, violate State or SUMMARY: The Administrator and Chief establishes both the Federal and non- Federal law, or substantially interfere Executive Officer (CEO) of BPA, acting Federal allocation of the Canadian with any agency’s ability to perform its for BPA, and, as Chairman of the United Entitlement. The CEAEA will begin to statutory obligations. The Director of the States Entity (the Administrator of BPA replace the existing CEAA when the Information Resources Management and the Division Engineer, North Pacific first portion of the Canadian Entitlement Group publishes this notice containing Division of the United States Army is returned to Canada in 1998. The proposed information collection Corps of Engineers), acting on behalf of CEAEA extend to 2024, since the United requests prior to submission of these the United States Entity, has decided to States’ obligation to return the Canadian requests to OMB. Each proposed adopt for the CEAEA a Federal Entitlement continues to 2024, the first information collection, grouped by hydroelectric project allocation of 72.5 year the Treaty can be terminated with office, contains the following: (1) Type percent and a non-Federal hydroelectric 10 years’ notice. of review requested, e.g., new, revision, project allocation of 27.5 percent. Issued by the United States Entity in extension, existing or reinstatement; (2) This decision is consistent with the Portland, Oregon, on April 29, 1997. Title; (3) Summary of the collection; (4) Columbia River System Operation Randall W. Hardy, Description of the need for, and Review (SOR) Final Environmental Administrator and CEO, Bonneville Power proposed use of, the information; (5) Impact Statement (EIS) (DOE/EIS–0170, Administration, and Chairman, United States Respondents and frequency of November 1995) which evaluated the Entity. collection; and (6) Reporting and/or potential impacts of four alternatives [FR Doc. 97–11730 Filed 5–5–97; 8:45 am] Recordkeeping burden. OMB invites that represent the likely range of BILLING CODE 6450±01±P public comment at the address specified allocations between the Federal and above. Copies of the requests are non-Federal projects. The selected available from Patrick J. Sherrill at the allocation falls within this range of DEPARTMENT OF ENERGY address specified above. alternatives. None of the allocation Federal Energy Regulatory Dated: April 30, 1997. alternatives influence power system operations under the system operating Commission Gloria Parker, strategy selected in the Columbia River [Project No. 11175±002 Minnesota] Director, Information Resources Management SOR on Selecting an Operating Strategy Group. for the Federal Columbia River Power Crown Hydro Company; Notice of Office of Postsecondary Education System (SOS) ROD, published February Proposed Restricted Service List on a Title: Directory of Teacher Shortage 1997. Programmatic Agreement for Subject Areas for the Federal Perkins ADDRESSES: Copies of the SOR Final EIS, Managing Properties Included in or Loan Program. Appendix P of the EIS (which presents Eligible for Inclusion in the National Frequency: Annually. the environmental review for the Register of Historic Places CEAEA), the SOS ROD, and complete Affected Public: Individuals or April 30, 1997. copies of this ROD may be obtained by households; not-for-profit institutions; Rule 2010 of the Commission’s Rules calling BPA’s toll-free document request Federal Government; State, local or of Practice and Procedure provides that, line: 1–800–622–4520. Tribal Gov’t, SEAs or LEAs. to eliminate unnecessary expense or Annual Reporting and Recordkeeping FOR FURTHER INFORMATION CONTACT: Mr. improve administrative efficiency, the Hour Burden: Phil Mesa—PGPL–DITT2, Bonneville Secretary may establish a restricted Responses: 57. Power Administration, P.O. Box 3621, service list for a particular phase or Burden Hours: 2,127. Portland, Oregon 97208–3621, phone issue in a proceeding.1 The restricted Abstract: The Higher Education Act of number (360) 418–2152. service list should contain the names of 1992 (Pub. L 102–325) enacted SUPPLEMENTARY INFORMATION: The persons on the service list who, in the provisions for Federal Perkins Loan Columbia River Treaty (Treaty), ratified judgement of the decisional authority and National Direct Student Loan in 1964, required the construction of establishing the list, are active (NDSL) borrowers to receive a loan three storage dams in Canada. These participants with respect to the phase or cancellation for providing teaching storage dams provide regulated issue in the proceeding for which the service in any field of expertise that streamflows that enable hydroelectric list is established. is determined by the State education projects downstream in the United The Commission is consulting with agency to have a shortage in certain States to produce additional power the Minnesota State Historic subject areas. benefits. The Treaty requires the United Preservation Office (hereinafter, SHPO) [FR Doc. 97–11695 Filed 5–5–97; 8:45 am] States to deliver to Canada one-half of and the Advisory Council on Historic these downstream power benefits Preservation (hereinafter, Council) BILLING CODE 4000±01±P (known as the Canadian Entitlement). pursuant to 36 CFR 800.13 of the The Canadian Entitlement is Council’s regulations implementing generated downstream in the United Section 106 of the National Historic DEPARTMENT OF ENERGY States at both Federal and non-Federal Preservation Act, as amended, (16 USC hydroelectric projects. The Canadian 470f), to prepare a Programmatic Bonneville Power Administration Entitlement Allocation Agreements Agreement for managing properties in or (CEAA), also executed in 1964, eligible for inclusion in the National Canadian Entitlement Allocation established how the Canadian Register of Historic Places at Project No. Extension Agreements (CEAEA) Entitlement was to be attributed 11175. AGENCY: Bonneville Power collectively to the six downstream The Programmatic Agreement, upon Administration (BPA), Department of Federal hydroelectric projects and to approval by the Commission, the SHPO, Energy (DOE). each of the five downstream non- and the Council, would satisfy the Federal projects. Commission’s Section 106 ACTION: Notice of Availability of Record The Administrator’s decision on the of Decision (ROD). new allocation agreements, the CEAEA, 1 18 CFR 385.2010. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24647 responsibilities for all individuals Volume No. 1–A, the following tariff the Commission in determining the undertakings carried out in accordance sheets, to become effective on April 10, appropriate action to be taken, but will with the agreement until the agreement 1997: not serve to make protestants parties to expires or is terminated (36 CFR Substitute Fourth Revised Sheet No. 113 the proceeding. Any person wishing to 800.13(e)). Substitute First Revised Sheet No. 290 become a party must file a motion to Crown Hydro Company as Original Sheet No. 290A intervene. Copies of this filing are on prospective licensee for the project, is Third Revised Sheet No. 338 file with the Commission and are being asked to participate in the El Paso states that it has revised available for public inspection in the Public Reference Room. consultation and is being invited to sign certain aspects of its negotiated rate as a concurring party to the tariff provisions in compliance with the Linwood A. Watson, Jr., Programmatic Agreement. Commission’s order issued April 10, Acting Secretary. For purposes of commenting on the 1997 at Docket No. RP97–287–000. [FR Doc. 97–11706 Filed 5–6–97; 8:45 am] Programmatic Agreement we propose to Any person desiring to protest said BILLING CODE 6717±01±M restrict the service list for Project No. filing should file a protest with the 11175 as follows: Federal Energy Regulatory Commission, Nina Archabal, Minnesota Historical 888 First Street, NE., Washington, DC. DEPARTMENT OF ENERGY Society, 345 Kellog Blvd. West, St. 20426, in accordance with Section Federal Energy Regulatory Paul, MN 55102–1906, Advisory 385.211 of the Commission’s Rules and Commission Council on Historic Preservation, Regulations. All such protests must be Eastern Office of Project Review, The filed in accordance with Section [Docket Nos. RP97±339±000] Old Post Office Building, Suite 809, 154.210 of the Commission’s 1100 Pennsylvania Avenue, NW, Regulations. Protests will be considered KO Transmission Company; Notice of Washington, DC 20004 by the Commission in determining the Proposed Changes in FERC Gas Tariff Tom Griffin, Crown Hydro Company, appropriate action to be taken, but will 5436 Columbus Avenue, Minneapolis, April 30, 1997. not serve to make protestants parties to Take notice that on April 25, 1997, MN 55417 the proceeding. Copies of this filing are Robert F. Copeland, Minneapolis KO Transmission Company (KO on file with the Commission and are Transmission) tendered for filing to Heritage Preservation Commission, available for public inspection in the Room 210, 350 South Fifth Street, become a part of KO Transmission’s Public Reference Room. FERC Gas Tariff, Original Volume No. 1, Minneapolis, MN 55415–1385. Linwood A. Watson, Jr., the pro forma tariff sheets on Appendix Any person on the official service list Acting Secretary. A attached to the filing, proposed to be for the above-captioned proceedings [FR Doc. 97–11703 Filed 5–5–97; 8:45 am] effective on June 1, 1997. may request inclusion on the restricted BILLING CODE 6717±01±M On July 17, 1996, the Commission service list, or may request that a issued Order No. 587 in Docket No. restricted service list not be established, RM96–1–000 (Final Rule). The Final by filing a motion to that effect within DEPARTMENT OF ENERGY Rule adopts certain standardized 15 days of this notice date. An original business practices and electronic and 8 copies of any such motion must Federal Energy Regulatory communication practices promulgated be filed with the Secretary of the Commission by the Gas Industry Standards Board Commission (888 First Street, NE, [Docket No. RP97±340±000] (GISB) and requires pipelines to comply Washington, DC 20426) and must be with the requirements of the GISB served on each person whose name Gas Research Institute; Notice of standards by incorporating by reference appears on the official service list. If no Refund Report the standards into Commission such motions are filed, the restricted regulations. The purpose of this filing is service list will be effective at the end April 30, 1997. to comply with the Final Rule. of the 15-day period. Otherwise, a Take notice that on April 25, 1997, KO Transmission states that copies of further notice will be issued ruling on the Gas Research Institute (GRI) filed its this filing were served to KO the motion. report summarizing its 1996 Tier 1 Transmission’s firm and interruptible Lois D. Cashell, refunds made to its pipeline members. customers. Secretary. GRI states that the refunds, totaling Any person desiring to be heard or to [FR Doc. 97–11701 Filed 5–5–97; 8:45 am] $27,700,087 to twenty-nine pipelines, protest said filing should file a motion to intervene or protest with the Federal BILLING CODE 6717±01±M were made in accordance with the Commission’s October 13, 1995 Energy Regulatory Commission, 888 directive reflected in Opinion No. 402 First Street, NW., Washington, DC DEPARTMENT OF ENERGY (73 FERC ¶ 61,073). 20426, in accordance with Sections GRI states that it has served copies of 385.214 and 385.211 of the Federal Energy Regulatory the filing to each person included on the Commission’s Rules and Regulations. Commission Secretary’s service list. All such motions or protests should be Any person desiring to be heard or filed as provided in Section 154.210 of [Docket No. RP97±287±002] protest this filing should file a motion the Commission’s Regulations. All El Paso Natural Gas Company; Notice to intervene or protest with the Federal protests will be considered by the of Compliance Filing Energy Regulatory Commission, 888 Commission in determining the First Street, NE, Washington, DC 20426, appropriate action to be taken in this April 30, 1997. in accordance with Sections 385.214 proceeding, but will not serve to make Take notice that on April 25, 1997, El and 385.211 of the Commission’s Rules any protestant a party to the proceeding. Paso Natural Gas Company (El Paso) and Regulations. All such motions or Any person wishing to become a party tendered for filing to become part of its protests must be filed on or before May must file a motion to intervene. Copies FERC Gas Tariff, Second Revised 7, 1997. Protests will be considered by of this filing are on file with the 24648 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Commission and are available for Revised Volume No. 1, to become the Commission interest rate, set forth inspection. effective April 8, 1997. in 18 CFR 154.501, from the 25th day Linwood A. Watson, Jr., Northwest states that the non- of the month in which the customer’s Acting Secretary. confirming service agreement provides payment to Tennessee was due. [FR Doc. 97–11705 Filed 5–6–97; 8:45 am] for a periodic, temporary reallocation of Tennessee states that the total refund up to 20,000 Dth per day of maximum BILLING CODE 6717±01±M obligation was $191,233,137.26, daily delivery obligations from the inclusive of principal and interest. Northeast Portland delivery point to the Tennessee states that this amount was DEPARTMENT OF ENERGY Portland West delivery point in order to adjusted for customers who have elected accommodate firm transportation of to apply their rate case refund as a Federal Energy Regulatory vaporized LNG from Northwest’s credit to their future billing of the GSR Commission Plymouth LNG storage facility. Settlement Surcharge and for other Northwest also states that it filed a [Docket Nos. ER97±399±001 and ER97±449± billing adjustments, resulting in a net 001] revised Sheet No. 363 to add this refund of $154,274,766.86 as shown on agreement to its list of non-conforming Schedule 1 to the filing. Each customer Montana Power Company; Notice of service agreements. was provided with a detailed and Filing Northwest states that a copy of this summary report supporting their refund filing has been served upon all of calculation. April 30, 1997. Northwest’s customers and upon Tennessee states that each customer Take notice that on March 31, 1997, interested state regulatory comissions. was served with a summary and Montana Power Company tendered for Any person desiring to be heard or detailed calculation of that customer’s filing an amendment to its January 31, protest this filing should file a motion refund, along with their refunds. 1997, filing in the above-referenced to intervene or protest with the Federal Any person desiring to protest said dockets. Energy Regulation Commission, 888 filing should file a protest with the Any person desiring to be heard or to First Street, N.E., Washington, DC Federal Energy Regulatory Commission, protest said filing should file a motion 20426, in accordance with Sections 888 First Street, NE., Washington, DC to intervene or protest with the Federal 385.214 and 385.211 of the 20426, in accordance with Section Energy Regulatory Commission, 888 Commission’s Rules and Regulations. 385.211 of the Commission’s Rules and First Street, NE., Washington, DC 20426, All such motions or protests must be Regulations. All such protests must be in accordance with Rules 211 and 214 filed as provided in Section 154.210 of filed on or before May 7, 1997. Protests of the Commission’s Rules of Practice the Commission’s Regulations. Protests will be considered by the Commission and Procedure (18 CFR 385.211 and will be considered by the Commission in determining the appropriate action to 385.214). All such motions or protests in determining the appropriate action to be taken in this proceeding, but will not should be filed on or before May 12, be taken, but will not serve to make serve to make Protestant a party to the 1997. Protests will be considered by the protestants parties to the proceeding. proceeding. Copies of this filing are on Commission in determining the Any person wishing to become a party file with the Commission and are appropriate action to be taken, but will must file a motion to intervene. Copies available for inspection. not serve to make protestants parties to of this filing are on file with the Linwood A. Watson, Jr., the proceeding. Any person wishing to Commission and are available for public Acting Secretary. become a party to the proceeding must inspection in the Public Reference [FR Doc. 97–11702 Filed 5–5–97; 8:45 am] file a motion to intervene. Copies of this Room. BILLING CODE 6717±01±M filing are on file with the Commission Linwood A. Watson, Jr., and are available for public inspection. Acting Secretary. Linwood A. Watson, Jr., [FR Doc. 97–11700 Filed 5–5–97; 8:45 am] DEPARTMENT OF ENERGY Acting Secretary. BILLING CODE 6717±01±M [FR Doc. 97–11754 Filed 5–5–97; 8:45 am] Federal Energy Regulatory BILLING CODE 6717±01±M Commission DEPARTMENT OF ENERGY [Docket No. RP97±288±001]

DEPARTMENT OF ENERGY Federal Energy Regulatory Transwestern Pipeline Company, Commission Notice of Compliance Filing Federal Energy Regulatory [Docket No. RP95±112±020] Commission April 30, 1997. [Docket No. GT97±21±000] Tennessee Gas Pipeline Company; Take notice that on April 25, 1997, Notice of Refund Report Transwestern Pipeline Company Northwest Pipeline Corporation; Notice (Transwestern), tendered for filing to of Proposed Changes in FERC Gas April 30, 1997. become part of Transwestern’s FERC Tariff and Filing of Non-Conforming Take notice that on April 28, 1997, Gas Tariff, the following tariff sheets, Service Agreement Tennessee Gas Pipeline Company proposed to be effective April 11, 1997: (Tennessee), pursuant to Article II, April 30, 1997. section 1(b) of the Stipulation and Second Revised Volume No. 1 Take notice that on April 25, 1997, Agreement filed in the referred Second Revised Sheet No. 112 Northwest Pipeline Corporation proceeding and 18 CFR 154.501(e), Fourth Revised Sheet No. 126 (Northwest) tendered for filing and hereby submits its rate case refund First Revised Sheet No. 138 acceptance (1) A non-conforming report. Transwestern states that the above service agreement with Northwest Tennessee states that the refunds tariff sheets are being filed by Natural Gas Company (Northwest include principal amounts for the Transwestern to comply with the Natural), and (2) Third Revised Sheet period of July 1, 1995 through February Commission’s April 11, 1997 Order No. 363 of its FERC Gas Tariff, Third 28, 1997 as well as interest calculated at allowing Transwestern to charge Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24649 negotiated transportation rates pursuant DEPARTMENT OF ENERGY requirements of the Commission’s Rules to the Commission’s Policy Statement of Practice and Procedure (18 CFR on Alternatives to Traditional Cost-of- Federal Energy Regulatory 385.214 or 385.211) and the Regulations Service Ratemaking Methodologies, Commission under the Natural Gas Act (18 CFR 157.10). All protests filed with the issued January 31, 1996. The tariff [Docket No. CP97±353±000] sheets modify Transwestern’s form Commission will be considered by it in service agreements to conform to the Williston Basin Interstate Pipeline determining the appropriate action to be tariff provisions in its negotiated rate Company; Notice of Application taken but will not serve to make the proposal. protestants parties to the proceeding. April 30, 1997. Any person wishing to become a party Transwestern states that copies of the Take notice that on April 17, 1997, to a proceeding or to participate as a filing were served upon Transwestern’s Williston Basin Interstate Pipeline party in any hearing therein must file a customers and interested state Company (Williston Basin), 200 North motion to intervene in accordance with commissions. Third Street, Suite 300, Bismarck, North the Commission’s Rules. Any person desiring to protest said Dakota 58501, filed an Abbreviated Linwood A. Watson, Jr., filing should file a protest with the Application pursuant to Section 7(b) of Acting Secretary. Federal Energy Regulatory Commission, the Natural Gas Act for an order [FR Doc. 97–11699 Filed 5–5–97; 8:45 am] permitting the abandonment of 2.1 888 First Street, NE., Washington, DC, BILLING CODE 6717±01±M 20426, in accordance with Section miles of Marmarth-Bowman Lateral 385.211 of the Commission’s Rules and natural gas transmission pipeline Regulations. All such protests must be located in Fallon County, Montana and DEPARTMENT OF ENERGY filed in accordance with Section 5.2 miles of the Marmarth-Bowman 154.210 of the Commission’s Lateral natural gas transmission Notice of Cases Filed During the Week pipeline located in Bowman and Slope of January 20 Through January 24, Regulations. Protests will be considered Counties, North Dakota, all as more 1997 by the Commission in determining the fully set forth in the application which appropriate action to be taken in this is on file with the Commission and open Office of Hearings and Appeals proceeding, but will not serve to make to public inspection. During the Week of January 20 Protestant a party to the proceeding. Williston Basin states that through January 24, 1997, the appeals, Copies of this filing are on file with the concurrently with this application, and applications, petitions or other Commission and are available for Williston Basin is filing for authority to requests listed in this Notice were filed inspection. replace these segments of the Marmarth- with the Office of Hearings and Appeals Linwood A. Watson, Jr., Bowman Lateral and to uprate the of the Department of Energy. Maximum Allowable Operating Acting Secretary. Any person who will be aggrieved by Pressure (MAOP) of the Marmarth- [FR Doc. 97–11704 Filed 5–5–97; 8:45 am] the DOE action sought in any of these Bowman Lateral from the Baker to Little BILLING CODE 6717±01±M cases may file written comments on the Beaver mainline take-off to the town of application within ten days of Marmarth, North Dakota from its publication of this Notice or the date of existing MAOP of 350 psig to an MAOP receipt of actual notice, whichever of 500 psig. occurs first. All such comments shall be Any person desiring to be heard or to filed with the Office of Hearings and make any protest with reference to said Appeals, Department of Energy, application should on or before May 21, Washington, DC 20585–0107. 1997, file with the Federal Energy Regulatory Commission, Washington, Dated: April 28, 1997. DC 20426, a motion to intervene or a George B. Breznay, protest in accordance with the Director, Office of Hearings and Appeals.

LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS [Week of January 20 through January 24, 1997]

Date Name and location of applicant Case No. Type of submission

01/21/97 ...... Arawak Paving Co., Inc. Santa Barbara, RR272±280 Request for Modification/Rescission in the Crude Oil Re- California 93103. fund Proceeding. IF GRANTED: The December 19, 1996 Dismissal, Case No. RG272±991, issued to Arawak Paving Co., Inc., would be modified regarding the firm's application for refund submitted in the Crude Oil refund proceeding. 01/21/97 ...... Poe Asphalt Paving, Inc. Santa Barbara, RR272±278 Request for Modification/Rescission in the Crude Oil Re- California. fund Proceeding. IF GRANTED: The December 19, 1996 Dismissal, Case No. RG272±990, issued to Poe Asphalt Paving, Inc., would be modified regarding the firm's application for refund submitted in the Crude Oil refund proceeding. 24650 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALSÐContinued [Week of January 20 through January 24, 1997]

Date Name and location of applicant Case No. Type of submission

01/21/97 ...... Sankey Construction, Inc. Santa Barbara, RR272±279 Request for Modification/Rescission in the Crude Oil Re- California. fund Proceeding. IF GRANTED: The December 19, 1996 Dismissal, Case No. RG272±992, issued to Sankey Construction, Inc., would be modified regarding the firm's application for refund submitted in the Crude Oil refund proceeding. 01/22/97 ...... Stand of Amarillo, Inc. Amarillo, Texas ...... VFA±0261 Appeal of an Information Request Denial. IF GRANTED: A December 12, 1996 Freedom of Information Request Denial issued by Albuquerque Operations Office would be rescinded, and Stand of Amarillo, Inc. would receive access to certain DOE information. 01/22/97 ...... William H. Payne ...... VFA±0262 Appeal of an Information Request Denial. IF GRANTED: The December 4, 1996 Freedom of Information Request Denial issued by Albuquerque Operations Office would be rescinded, and William H. Payne would receive ac- cess to certain DOE information. 01/24/97 ...... Fried, Frank, Harris, Shriver & Jacobson VFA±0263 Appeal of an Information Request Denial. IF GRANTED: Washington, D.C. The December 24, 1996 Freedom of Information Re- quest Denial issued by Albuquerque Operations Office would be rescinded, and Fried, Frank, Harris, Shriver and Jacobson would receive access to certain DOE in- formation.

[FR Doc. 97–11732 Filed 5–5–97; 8:45 am] Dated: April 28, 1997. continued eligibility of an individual for BILLING CODE 6450±01±P George B. Breznay, access authorization. The Hearing Director, Office of Hearings and Appeals. Officer found that the individual has been a user of alcohol habitually to Decision List No. 25 DEPARTMENT OF ENERGY excess and has been diagnosed by a Week of March 17 Through March 21, practicing psychiatrist as suffering from Office of Hearings and Appeals 1997 alcohol abuse, and has an illness or mental condition, which, in the opinion Notice of Issuance of Decisions and Appeals of that psychiatrist, causes or may cause Orders During the Week of March 17 J. Richard Quirk, 3/19/97, VFA–0266 a significant defect in judgment or Through March 21, 1997 The DOE granted a Freedom of reliability. The Hearing Officer further Information Act (FOIA) Appeal filed by found that the individual failed to During the week of March 17 through J. Richard Quirk. The DOE remanded present sufficient evidence of March 21, 1997, the decisions and the request to the Savannah River rehabilitation, reformation or other orders summarized below were issued Operations Office with instructions to factors to mitigate the derogatory with respect to appeals, applications, conduct a new expanded search for information. Specifically, the Hearing petitions, or other requests filed with responsive documents and to issue a Officer found that there was a the Office of Hearings and Appeals of new determination. significant risk that the individual might the Department of Energy. The Niagara Mohawk Power Corp., 3/17/97, resume drinking since his asserted following summary also contains a list VEA–0004 abstinence from alcohol was for less of submissions that were dismissed by The Niagara Mohawk Power than a year and he had not fully the Office of Hearings and Appeals. Corporation (Niagara) filed an Appeal accepted the Alcoholics Anonymous from a determination issued to it by the program. Accordingly, the Hearing Copies of the full text of these Officer recommended that the decisions and orders are available in the Office of Environmental Management (OEM). Niagara asserted that the OEM individual’s access authorization not be Public Reference Room of the Office of erroneously determined its liability for restored. Hearings and Appeals, Room 1E–234, payment into the Uranium Enrichment Personnel Security Hearing, 3/21/97, Forrestal Building, 1000 Independence Decontamination and Decommissioning VSO–0124 Avenue, SW, Washington, D.C. 20585– Fund established under the Energy An Office of Hearings and Appeals 0107, Monday through Friday, between Policy Act of 1992. The Office of Hearing Officer issued an opinion the hours of 1 p.m. and 5 p.m., except Hearings and Appeals found that the addressing the eligibility of an federal holidays. They are also available OEM properly determined Niagara’s individual for access authorization in Energy Management: Federal Energy Special Assessment. Accordingly, under the provisions of 10 CFR Part 710. Guidelines, a commercially published Niagara’s Appeal was denied The Hearing Officer found that the DOE loose leaf reporter system. Some Office had presented sufficient evidence decisions and orders are available on Personnel Security Hearings to show that the individual: (i) Had been the Office of Hearings and Appeals Personnel Security Hearing, 3/21/97, diagnosed as polysubstance dependent World Wide Web site at http:// VSO–0120 and continued to have an alcohol- www.oha.doe.gov. An Office of Hearings and Appeals related disorder, and (ii) has engaged in Hearing Officer issued an opinion under conduct or which tends to show that he 10 CFR Part 710 concerning the is not reliable and trustworthy. The Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24651

Hearing Officer also found that the special hardship, inequity or unfair the Wales application should be denied individual had not shown he was distribution of burdens as a result of the because the firm had given up its right rehabilitated or presented evidence requirement that it file the Forms. to a Subpart V crude oil overcharge which mitigated the security concerns Consequently, the DOE denied the refund by filing a waiver in the Surface of the DOE. Accordingly, the Hearing Application for Exception. Transporters refund proceeding. The Officer recommended that the Refund Application DOE further found that the three individual be denied an access individuals should receive a refund for Wales Transportation, Ed McCormick, authorization. White’s purchases, divided according to John Burkhart, Richard Cook, 3/18/ their respective ownership shares. Request for Exception 97, RF272–97064, RF272–97065, Rice Oil Company, 3/21/97, VEE–0035 RG272–1050, RG272–1051 Refund Applications Rice Oil Company (Rice) filed an The Department of Energy considered Application for Exception asking that it Applications for Refund filed in the The Office of Hearings and Appeals be relieved of the requirement of filing Subpart V crude oil refund proceeding issued the following Decisions and Form EIA–782B, entitled ‘‘Resellers/ by Wales Transportation, Ed Orders concerning refund applications, Retailers’ Monthly Petroleum Products McCormick, John Burkhart and Richard which are not summarized. Copies of Sales Report’’ and Form EIA–821, Cook. The applications of the the full texts of the Decisions and entitled ‘‘Annual Fuel Oil and Kerosene individuals were based on the Orders are available in the Public Sales Report.’’ The DOE found that purchases of petroleum products made Reference Room of the Office of exception relief was not warranted by their trucking firm, C.A. White Hearings and Appeals. because Rice was not experiencing a Trucking Company. The DOE found that Carol Management Corporation ...... RF272–74782 3/21/97 Carol Management Corporation ...... RD272–74782 Gerald Wright ...... RJ272–40 3/21/97 H.E. Butt Grocery Co ...... RF272–98776 3/21/97 Crowley Maritime Corp ...... RF272–98784 Margaret M. Thomsen, et al ...... RK272–03032 3/17/97 S.C. Johnson & Son, Inc ...... RR272–00150 3/21/97 Toys ‘‘R’’ Us, Inc., et al ...... RK272–02030 3/21/97 Tupper Lake Central Schl Dist, et al ...... RF272–95314 3/18/97 Valley Camp Coal Company ...... RF272–86827 3/21/97 Vermont Depart. of Public Safety ...... RF272–97149 3/17/97 Vessels Gas Processing Co./Gas Engineering & Equip. Co ...... RF354–00007 3/17/97 Wales Transportation, Inc ...... RF272–97064 3/18/97 John Burkhart ...... RG272–1050 Richard Cook ...... RG272–1051 Ed McCormick ...... RF272–97065 Western Industries Holding Corp., et al ...... RK272–4091 3/21/97 Dismissals The following submissions were dismissed.

Name Case No.

American Blackline Coatings ...... RG272±1 American Steel & Aluminum Corp ...... RG272±858 Bounds Oil Company ...... RF300±21836 Bruckerhoff Elevator/Sharon Walter ...... RK272±4176 Cairo Elevator ...... RG272±26 Cecil I. Walker Machinery Co ...... RG272±128 Charlotte School Dept ...... RF272±81158 Delran Township ...... RG272±137 Eastport School Dept ...... RF272±81159 Nationwide Moving & Storage Co ...... RG272±142 Pembroke School Dept ...... RF272±81157 Personnel Security Hearing ...... VSO±0135 Schafer Oil Company ...... VEE±0038 Spring Lake Public School Dist ...... RF272±80701 Towne Bus Corp ...... RF272±98734

[FR Doc. 97–11731 Filed 5–5–97; 8:45 am] 24652 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

ENVIRONMENTAL PROTECTION EPA concluded that the Interim Final opportunity to comment on the AGENCY Rule will foster appropriate following information collection, as environmental impact assessment and required by the Paperwork Reduction [ER±FRL±5479±9] documentation procedures, including Act of 1995, Public Law 104–13. An Notice of Availability of Environmental documentation regarding planned agency may not conduct or sponsor a Assessment for the Interim Final Rule mitigation and monitoring, if collection of information unless it for Environmental Impact Assessment appropriate, by tour operators; enhance displays a currently valid control of Nongovernmental Activities in the collection of data on effects and number. No person shall be subject to Antarctica intensity of activities by any penalty for failing to comply with nongovernmental visitors in Antarctica; a collection of information subject to the AGENCY: U.S. Environmental Protection reduce the likelihood of inadvertent Paperwork Reduction Act (PRA) that Agency (EPA). environmental perturbations that may does not display a valid control number. NOTICE OF AVAILABILITY: The be avoidable; and will allow the U.S. to Comments are requested concerning Environmental Protection Agency immediately ratify the Protocol which, whether the proposed collection of (EPA), pursuant to Public Law 104–227, in turn, should lead to its adoption by information is necessary for the proper the Antarctic Science, Tourism, and all Parties. The EPA concluded that all performance of the functions of the Conservation Act of 1996 (Act), has of the potential impacts of the Interim Commission, including whether the published an Interim Final Rule. In Final Rule would be beneficial for the information shall have practical utility; support of the Interim Final Rule, EPA Antarctic environment. The Interim the accuracy of the Commission’s prepared an Environmental Assessment Final Rule was issued without notice burden estimate; ways to enhance the (EA), ‘‘Environmental Assessment of and comment pursuant to 5 U.S.C. quality, utility, and clarity of the Proposed Rules for Non-Governmental 553(b)(B), as discussed in the Preamble information collected; and ways to Activity in Antarctica,’’ and made a to the Interim Final Rule and, for the minimize the burden of the collection of Finding of No Significant Impact (FNSI). same reasons, under 5 U.S.C. 553(d)(3) information on the respondents, FOR FURTHER INFORMATION AND FOR became effective on April 30, 1997 including the use of automated COPIES OF THE EA, FNSI, AND INTERIM FINAL (Federal Register/Vol. 62, No. 83/ collection techniques or other forms of RULE CONTACT: Mr. Joseph Montgomery Wednesday, April 30, 1997/23538– information technology. or Ms. Katherine Biggs, Office of Federal 23549). The Interim Final Rule is DATES: Persons wishing to comment on Activities (2252A), U.S. Environmental limited in time and effect and applies this information collection should Protection Agency, 401 M Street, S.W., only to nongovernmental activities to be submit comments by July 7, 1997. Washington, D.C. 20460; telephone: conducted in Antarctica through the ADDRESSES: Direct all comments to (202)564–7157 or (202)564–7144, 1998–99 austral summer; it will expire Dorothy Conway, Federal respectively. Copies of the EA, FNSI and upon the earlier of the end of the 1998– Communications Commission, Room Interim Final Rule are also available on 99 austral summer or upon issuance of 234, 1919 M St., N.W., Washington, DC the World Wide Web at: http:// a Final Rule. To support the regulatory 20554 or via Internet to es.inel.gov/oeca/ofa/. Information on the development of the Final Rule, EPA is [email protected]. process for development of the EIS and preparing an Environmental Impact FOR FURTHER INFORMATION CONTACT: For Final Rule discussed in the Statement (EIS) to consider the additional information or copies of the SUPPLEMENTARY INFORMATION section environmental and regulatory issues to information collections, contact Dorothy below may also be obtained from these be addressed in the Final Rule and the Conway at 202–418–0217 or via Internet contacts. alternatives for addressing these issues at dconway@ fcc.gov. SUPPLEMENTARY INFORMATION: The Act within the rule-making process. implements the Protocol on Although the Interim Final Rule was SUPPLEMENTARY INFORMATION: Environmental Protection (Protocol) to promulgated without public notice and OMB Approval Number: 3060–XXXX. the Antarctic Treaty of 1959 (Treaty). comment, the Final Rule and the Title: Auction Forms and License Pursuant to the Act, the EPA is required associated EIS will include extensive Transfer Disclosures—Supplement for to promulgate regulations that provide opportunities for public comment. the Second Report and Order, Order on for assessment of the environmental Responsible Official: Reconsideration, and Fifth Notice of impacts of nongovernmental activities, Dated: May 1, 1997. Proposed Rulemaking in CC Docket No. including tourism, in Antarctica and for Richard E. Sanderson, 92–297. Type of Review: New Collection. coordination of the review of Director, Office of Federal Activities. Respondents: Businesses or other for- information regarding environmental [FR Doc. 97–11758 Filed 5–5–97; 8:45 am] impact assessments received from profit entities. BILLING CODE 6560±50±P Parties to the Protocol. The EPA Number of Estimated time promulgated an Interim Final Rule so Category respondents for response that the United States would have the FEDERAL COMMUNICATIONS ability to implement its obligations COMMISSION 1. Owner- 44,000 .5±4 hours. under the Protocol as soon as the ship and Protocol enters into force. The EPA Notice of Public Information Gross prepared the EA to evaluate the Reve- Collections Being Reviewed by the nues In- environmental and cultural impacts of Federal Communications Commission an interim rule relative to the No Action formation. 2. Disclo- 44,000 .5 hour. April 30, 1997. Alternative, i.e., no interim rule. Based sure of on the EA analysis, EPA issued a FNSI SUMMARY: The Federal Communications Terms of concluding that the promulgation of the Commission, as part of its continuing Joint Bid- Interim Final Rule will not have or effort to reduce paperwork burden, ding cause significant impacts on the invites the general public and other Agree- Antarctic environment. Through the EA, Federal agencies to take this ments. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24653

Number of Estimated time necessary for the proper performance of voluntary collection by May 12, 1997 to Category respondents for response the functions of the Commission, permit expeditious processing of the including whether the information shall pending STAs. 3. Maintain- 33,000 4 hours/5 year. have practical utility; (b) the accuracy of Federal Communications Commission. ing Own- the Commission’s burden estimates; (c) ership William F. Caton, ways to enhance the quality, utility, and and Acting Secretary. clarity of the information collected; and Gross [FR Doc. 97–11681 Filed 5–2–97; 8:45 am] Reve- (d) ways to minimize the burden of the BILLING CODE 6712±01±P nues In- collection of information on the formation. respondents, including the use of 4. Transfer 44,000 .5 hour. automated information techniques or FEDERAL COMMUNICATIONS Disclo- other forms of information technology. sures. COMMISSION ADDRESSES: Direct all comments to Judy Total Annual Burden: 764,500 hours. Boley, Federal Communications Sunshine Act Meeting Commission, Room 234, 1919 M. St., Total Cost to Respondents: April 30, 1997. $45,734,700. NW., Washington, DC 20554 or via Needs and Uses: The ownership, internet to [email protected]. Open Commission Meeting Tentatively gross revenues and joint bidding FOR FURTHER INFORMATION CALL: For Scheduled for May 6, 1997, agreement information portions of this additional information or copies of the Rescheduled to Wednesday, May 7, collection will be used by the information collections contact Judy 1997 Commission to determine whether the Boley at 202–418–0214 or via internet to The Federal Communications applicant is legally, technically and [email protected]. Commission has rescheduled the Open financially qualified to be a licensee. OMB Approval Number: 3060–. Meeting tentatively scheduled for Without such information, the Title: § 5.56, Procedure for Obtaining Tuesday, May 6, 1997, to Wednesday, Commission could not determine a Special Temporary Authorization May 7, 1997, on the subject listed whether to issue the licenses to the (STA) in the Experimental Radio below. The meeting is scheduled to applicants that provide Service. commence at 9:30 am, in Room 856, at telecommunications, multi-channel Form No.: N/A. 1919 M Street, NW., Washington, DC. video programming distribution and Type of Review: Existing collection in Item No. 1 other communications services to the use without OMB control number. Bureau: Office of General Counsel and public and therefore fulfill its statutory Respondents: Not-for-profit Office of Communications Business responsibilities in accordance with the institutions; Business or other for-profit; Opportunities. Communications Act of 1934, as Small businesses and organizations. Subject: Title: Section 257 proceeding amended. The information will also be Number of Respondents: 500. to Identify and Eliminate Market Entry used to ensure the market integrity of Estimated time per response: 1 hour. Barriers for Small Businesses (GN future auctions. Likewise, the Total Annual Burden: 500 hours. Docket No. 96–113); Summary: The information collected in connection Estimated Cost per Respondent: Based Commission will consider addressing with § 1.2111(a) of the Commission’s on the estimated salaries of one implementation of Section 257. rules, 47 CFR 1.2111(a) (transfer technical (11⁄2 hrs @ $25 per hr) and one Additional information concerning disclosures), will be used to maintain clerical (1⁄2 hr @ $10 per hr), it is this meeting may be obtained from the market integrity of future auctions estimated that the total cost will be Maureen Peratino or David Fiske, Office and prevent unjust enrichment. approximately $21,250. of Public Affairs, telephone number Federal Communications Commission. Needs and Uses: In cases where a (202) 418–0500. need is shown for operation of an Copies of materials adopted at this William F. Caton, experimental radio authorized station meeting can be purchased from the Acting Secretary. for a limited time only, a request for a FCC’s duplicating contractor, [FR Doc. 97–11679 Filed 5–6–97; 8:45 am] Special Temporary Authorization (STA) International Transcription Services, BILLING CODE 6712±01±P to operate transmitting equipment will Inc. (ITS, Inc.) at (202) 857–3800 or fax be accepted under the conditions set (202) 857–3805 and 857–3184. These forth in § 5.56 (a), (b), & (c) of Part 5 of copies are available in paper format and FEDERAL COMMUNICATIONS the Commission’s Rules. The request alternative media which includes, large COMMISSION may be filed as an informal application, print/type; digital disk; and audio tape. Notice of Public Information Collection normally by letter from the applicant, ITS may be reached by e-mail: l Being Reviewed by the Federal and shall contain the information its [email protected]. Their Internet Communications Commission specified in § 5.56(b). Since STAs are address is http://www.itsi.com. filed as informal requests, no form is This meeting can be viewed over April 29, 1997. required. The information collected is George Mason University’s Capitol SUMMARY: The Federal Communications necessary to ensure that the STA request Connection. For information on this Commission, as part of its continuing complies with Part 5 of the service call (703) 993–3100. The audio effort to reduce paperwork burden Commission’s Rules, and that the portion of the meeting will be broadcast invites the general public and other proposed operation will not cause live on the Internet via the FCC’s Federal agencies to take this interference to existing government and Internet audio broadcast page at . The meeting following continuing information Due to an administrative oversight can also be heard via telephone, for a collection, as required by the Paperwork this information collection was not fee, from National Narrowcast Network, Reduction Act of 1995, Public Law 104– submitted to OMB for approval of the telephone (202) 966–2211 or fax (202) 13. Comments are requested concerning collection. The Commission is 966–1770; and from Conference Call (a) Whether the proposed collection is requesting OMB approval of this USA (available only outside the 24654 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Washington, D.C. metropolitan area), FCC/OMD±7 litigation, and by careful review, the telephone 1–800–962–0044. Audio and agency determines that the records are SYSTEM NAME: video tapes of this meeting can be both relevant and necessary to the obtained from the Office of Public FCC Employee Transit Benefit litigation and the use of such records by Affairs, Television Staff, telephone (202) Program. the Department of Justice is therefore 418–0460, or TTY (202) 418–1398; fax SYSTEM LOCATION: deemed by the agency to be for a numbers (202) 418–2809 or (202) 418– FCC, Office of Managing Director, purpose that is compatible with the 7286. AMD—Operations, Operations purpose for which the agency collected Federal Communications Commission. Management Services Division, 1919 M the records; and William F. Caton, Street, NW, Washington, DC 20554. 3. To the National Finance Center (the Acting Secretary. Commission’s designated payroll office), CATEGORIES OF INDIVIDUALS COVERED BY THE the Department of the Treasury’s Debt [FR Doc. 97–11784 Filed 5–1–97; 3:46 pm] SYSTEM: Management Services and/or a current BILLING CODE 6712±01±P FCC employees who apply for and employer to effect a salary, IRS tax participate in the FCC Transit Benefit refund or administrative offset to satisfy FEDERAL COMMUNICATIONS Program. an indebtedness incurred for unofficial COMMISSION use of transit benefits; and to Federal CATEGORIES OF RECORDS IN THE SYSTEM: agencies to identify and locate former Privacy Act System of Records This system contains various records employees for the purpose of collecting required to administer the Transit such indebtedness, including through AGENCY: Federal Communications Benefit Program. It contains information administrative, salary or tax refund Commission. regarding the organizational location, offsets. Identifying and locating former ACTION: Notice of a new Privacy Act telephone number, FCC badge number, employees, and the subsequent referral system of records. home address, mode of transportation to such agencies for offset purposes, and monthly cost of transportation of may be accomplished through SUMMARY: Pursuant to the provisions of any applicant who has submitted an authorized computer matching the Privacy Act of 1974 (5 U.S.C. 552), application for the Transit Benefit programs. Disclosures will be made only the Federal Communications Program. The system contains records when all procedural steps established Commission (FCC), Office of the and reports of disbursements to transit by the Debt Collection Act of 1982, and Managing Director, Operations benefit recipients and information on the Debt Collection Improvement Act of Management and Services Division, is local public mass transit facilities. The 1996 or the Computer Matching and creating a system of records entitled records in the system consist of the Privacy Protection Act of 1988 as ‘‘FCC Employee Transit Benefit Employee Transit Benefit Program appropriate, have been taken. Program, FCC/OMD–7.’’ This notice Application, Transit Benefit meets the requirement of documenting Certification Forms, and Change of POLICIES AND PRACTICES FOR STORING, the change to the Commission’s system Information on Employee Transit RETRIEVING, ACCESSING, RETAINING AND of records inventory, and provides the Benefit Program Application. DISPOSING OF RECORDS IN THE SYSTEM: public, Congress and the Office of STORAGE: Management and Budget (OMB) an AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 1 opportunity to comment. The Federal Employees Clean Air Records are maintained on 8 ⁄2 x 11 and 81⁄2 x 5 papers in file folders and DATES: Any interested person may Incentives Act (section 2(a) of Pub. L. on the transit benefit computer system. submit written comments concerning 103–172, found at 5 U.S.C. 7905). Storage will be at the FCC, Office of the the routine uses of this system on or ROUTINE USES OF RECORDS MAINTAINED IN THE Managing Director, AMD—Operations, before June 5, 1997. OMB, which has SYSTEM, INCLUDING CATEGORIES OF USERS AND Operations Management and Services oversight responsibility under the THE PURPOSES OF SUCH USES: Division, 1919 M Street, NW., Privacy Act to review the system may The Commission does not normally Washington, DC 20554. submit comments on or before June 16, disclose records from this system of 1997. This system becomes effective records. However, in the event it is RETRIEVABILITY: without further notice on June 16, 1997, appropriate, disclosure of relevant Records are retrieved by the unless the comments received cause the information may be made in accordance employee’s name and/or by the FCC Commission to change its decision. with the provisions of 5 U.S.C. 552a(b). Badge Identification Number. ADDRESSES: Address comments to Records and data may be disclosed as Federal Communications Commission necessary pursuant to 5 U.S.C. SAFEGUARDS: Chief, Operations Management and 552a(b)(3): Records are maintained in a secured Services Division, 1919 M St., NW, 1. To a member of Congress or to a area and are available only to authorized Room 404, Washington, DC 20554. Congressional staff member in response personnel responsible for implementing FOR FURTHER INFORMATION CONTACT: to an inquiry of the Congressional office the Program and whose duties require Dorothy Conway, Privacy Act Liaison, at made at the written request of the access. Computer systems are set up (202) 418–0217 or via internet at constituent about whom the record is with a secured password. File cabinets [email protected]. maintained; where the records are stored will be SUPPLEMENTARY INFORMATION: The 2. To the Department of Justice when: controlled by on-site personnel when purpose of maintaining FCC Employee (a) The agency or any component unlocked and locked when not in use. Transit Benefit Program records is to thereof; or (b) any employee of the identify transit benefit applicants and agency in his or her official capacity RETENTION AND DISPOSAL: recipients. This system will also provide where the Department of Justice has Records are disposed of in accordance a mechanism for monitoring agreed to represent the employee; or (c) with General Records Schedule 6, disbursement of transit benefit the United States Government, is a party National Archives and Records subsidies. to litigation or has an interest in such Administration. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24655

SYSTEM MANAGER(S) AND ADDRESS: On February 7, 1997, the Commission Calcasieu, Cameron, and Jefferson Davis Federal Communications issued a public notice seeking comment Parishes for Hazard Mitigation (already Commission, Chief, Operations on the industry proposal. See public designated for Public Assistance). Management and Services Division, notice, Commission Seeks Comment on (Catalog of Federal Domestic Assistance No. 1919 M St., NW., Room 404, Industry Proposal for Rating Video 83.516, Disaster Assistance) Washington, DC 20554. Programming, CS Docket No. 97–55, Lacy E. Suiter, FCC 97–34, Report No. CS 97–6 Executive Associate Director, Response and NOTIFICATION PROCEDURE: (February 7, 1997). Copies of the public Recovery Directorate. Anyone inquiring about an employee notice, which attaches a copy of the [FR Doc. 97–11733 Filed 5–5–97; 8:45 am] record under the Transit Benefit industry proposal as an Appendix, may BILLING CODE 6718±02±P Program should contact the Transit be obtained from the Commission’s Benefit Program Coordinator. Public Reference Room, Room 239, 1919 Individuals must supply their full name M Street, NW., Washington, DC, from FEDERAL EMERGENCY and FCC Badge Identification Number the Commission’s Internet site (http:// MANAGEMENT AGENCY (ID Number must match what is in the www.fcc.gov/vchip), or by calling ITS, [FEMA±1175±DR] system) in order for records to be the Commission’s transcription service, located and identified. at (202) 857–3800. Minnesota; Amendment to Notice of a Major Disaster Declaration RECORD ACCESS PROCEDURES: In order to provide interested parties an opportunity to respond to matters Same as Notification Procedures. AGENCY: Federal Emergency raised in the en banc hearing, the due Management Agency (FEMA). CONTESTING RECORD PROCEDURES: date for surreply comments in CS ACTION: Notice. Same as Notification Procedures. Docket No. 97–55 is extended from May 23, 1997 to June 16, 1997. SUMMARY: This notice amends the notice RECORD SOURCE CATEGORIES: Media contact: Morgan Broman (202) of a major disaster for the State of Information in the system of records 418–2358. Minnesota (FEMA–1175–DR), dated is obtained from applications submitted TV Ratings contact: Meryl S. Icove or April 8, 1997, and related by individuals for participation in the Rick Chessen (202) 418–7096. determinations. Transit Benefit Program. V-chip Technology contact: Rick EFFECTIVE DATE: April 22, 1997. Engelman (202) 418–2157. EXEMPTIONS CLAIMED FOR THE SYSTEM: FOR FURTHER INFORMATION CONTACT: None. Federal Communications Commission. Magda Ruiz, Response and Recovery William F. Caton, Directorate, Federal Emergency Federal Communications Commission. Acting Secretary. Management Agency, Washington, DC William F. Caton, [FR Doc. 97–11720 Filed 5–5–97; 8:45 am] 20472, (202) 646–3260. Acting Secretary. BILLING CODE 6712±01±P SUPPLEMENTARY INFORMATION: Notice is [FR Doc. 97–11680 Filed 5–5–97; 8:45 am] hereby given that, in a letter dated April BILLING CODE 6712±01±P 22, 1997, the President amended the cost-sharing arrangements concerning FEDERAL EMERGENCY Federal funds provided under the FEDERAL COMMUNICATIONS MANAGEMENT AGENCY authority of the Robert T. Stafford COMMISSION Disaster Relief and Emergency [FEMA±1169±DR] [DA 97±857] Assistance Act (42 U.S.C. 51521 et seq.), Louisiana; Amendment to Notice of a in a letter to James L. Witt, Director of Cable Services Action; Commission Major Disaster Declaration the Federal Emergency Management Announces En Banc Hearing on Agency, as follows: Industry Proposal for Rating Video AGENCY: Federal Emergency I have determined that the damage in Programming and on ``V-Chip'' Management Agency (FEMA). certain areas of the State of Minnesota, Technology ACTION: Notice. resulting from severe flooding, severe winter storms, snowmelt, high winds, rain, and ice April 23, 1997. SUMMARY: This notice amends the notice on March 21, 1997, and continuing, is of On June 4, 1997, the Federal of a major disaster for the State of sufficient severity and magnitude that the Communications Commission will hold Louisiana, (FEMA–1169–DR), dated provision of direct Federal assistance to an en banc hearing on: (1) The joint March 18, 1997, and related ensure public health and safety is warranted under the Robert T. Stafford Disaster Relief proposal submitted to the Commission determinations. on January 17, 1997 by the National and Emergency Assistance Act (‘‘the Stafford Association of Broadcasters, the EFFECTIVE DATE: April 28, 1997. Act’’). Therefore, I amend my declaration of April National Cable Television Association FOR FURTHER INFORMATION CONTACT: Magda Ruiz, Response and Recovery 8, 1997 to provide that the Federal and the Motion Picture Association of Emergency Management Agency (FEMA) America describing a voluntary system Directorate, Federal Emergency may reimburse 100 percent of the costs of for rating video programming (the Management Agency, Washington, DC providing direct Federal assistance for ‘‘industry proposal’’); and (2) video 20472, (202) 646–3260. emergency work which FEMA approves programming blocking technology (the SUPPLEMENTARY INFORMATION: The notice retroactive to April 8, 1997 through April 30, so-called ‘‘V-chip’’ technology). The en of a major disaster for the State of 1997. This assistance may be provided to all banc hearing will begin at 9:30 a.m. in Louisiana, is hereby amended to include counties currently designated under the major disaster declaration. You may extend the Commission meeting room, Room the following areas among those areas this assistance for an additional period of 856, 1919 M Street, NW., Washington, determined to have been adversely time, if warranted. DC 20554. The Commission will affected by the catastrophe declared a Please notify the Governor of Minnesota announce participants and a hearing major disaster by the President in his and the Federal Coordinating Officer of this format in the near future. declaration of March 18, 1997: amendment to my major disaster declaration. 24656 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

(Catalog of Federal Domestic Assistance No. ACTION: Notice. SUMMARY: This notice amends the notice 83.516, Disaster Assistance.) of a major disaster for the State of South Dated: April 28, 1997. SUMMARY: This notice amends the notice Dakota (FEMA–1173–DR), dated April Jane A. Bullock, of a major disaster for the State North 7, 1997, and related determinations. Dakota (FEMA–1174–DR), dated April Chief of Staff. EFFECTIVE DATE: April 22, 1997. 7, 1997, and related determinations. [FR Doc. 97–11734 Filed 5–5–97; 8:45 am] FOR FURTHER INFORMATION CONTACT: EFFECTIVE DATE: April 22, 1997. BILLING CODE 6718±02±P Magda Ruiz, Response and Recovery FOR FURTHER INFORMATION CONTACT: Directorate, Federal Emergency Magda Ruiz, Response and Recovery Management Agency, Washington, DC Directorate, Federal Emergency FEDERAL EMERGENCY 20472, (202) 646–3260. MANAGEMENT AGENCY Management Agency, Washington, DC 20472, (202) 646–3260. SUPPLEMENTARY INFORMATION: Notice is [FEMA±1175±DR] hereby given that, in a letter dated April SUPPLEMENTARY INFORMATION: Notice is 22, 1997, the President amended the hereby given that, in a letter dated April Minnesota; Amendment to Notice of a cost-sharing arrangements concerning 22, 1997, the President amended the Major Disaster Declaration Federal funds provided under the cost-sharing arrangements concerning authority of the Robert T. Stafford AGENCY: Federal Emergency Federal funds provided under the Disaster Relief and Emergency Management Agency (FEMA). authority of the Robert T. Stafford Assistance Act (42 U.S.C. 51521 et seq.), Disaster Relief and Emergency ACTION: Notice. in a letter to James L. Witt, Director of Assistance Act (42 U.S.C. 51521 et seq.), the Federal Emergency Management SUMMARY: This notice amends the notice in a letter to James L. Witt, Director of Agency, as follows: of a major disaster for the State of the Federal Emergency Management Minnesota, (FEMA–1175–DR), dated Agency, as follows: I have determined that the damage in certain areas of the State of South Dakota, April 8, 1997, and related I have determined that the damage in determinations. resulting, from severe flooding, severe winter certain areas of the State of North Dakota, storms, heavy spring rain, rapid snowmelt, EFFECTIVE DATE: April 21, 1997. resulting from severe flooding, severe winter high winds, and ice jams beginning on FOR FURTHER INFORMATION CONTACT: storms, heavy spring rain, rapid snowmelt, February 3, 1997, and continuing, is of Magda Ruiz, Response and Recovery high winds, ice jams, and ground saturation sufficient severity and magnitude that the due to high water tables beginning on provision of direct Federal assistance to Directorate, Federal Emergency February 28, 1997, and continuing, is of ensure public health and safety is warranted Management Agency, Washington, DC sufficient severity and magnitude that the under the Robert T. Stafford Disaster Relief 20472, (202) 646–3260. provision of direct Federal assistance to and Emergency Assistance Act (‘‘the Stafford ensure public health and safety is warranted SUPPLEMENTARY INFORMATION: The notice Act’’). under the Robert T. Stafford Disaster Relief of a major disaster for the State of Therefore, I amend my declaration of April and Emergency Assistance Act (‘‘the Stafford Minnesota, is hereby amended to 7, 1997 to provide that the Federal Act’’). Emergency Management Agency (FEMA) include Categories C through G under Therefore, I amend my declaration of April may reimburse 100 percent of the costs of the Public Assistance program for the 7, 1997 to provide that the Federal providing direct Federal assistance for following areas among those areas Emergency Management Agency (FEMA) emergency work which FEMA approves determined to have been adversely may reimburse 100 percent of the costs of retroactive to April 7, 1997 through April 30, providing direct Federal assistance for affected by the catastrophe declared a 1997. This assistance may be provided to all emergency work which FEMA approves major disaster by the President in his counties currently designated under the retroactive to April 7, 1997 through April 30, declaration of April 8, 1997: major disaster declaration. You may extend 1997. This assistance may be provided to all this assistance for an additional period of Big Stone, Blue Earth, Brown, Chippewa, counties currently designated under the time, if warranted. Dakota, Grant, Lac Qui Parle, Le Suere, major disaster declaration. You may extend Please notify the Governor of South Dakota Nicollet, Polk, Redwood, Renville, Sibley, this assistance for an additional period of and the Federal Coordinating Officer of this Stevens, Swift, Traverse, Wilkin, and Yellow time, if warranted. amendment to my major disaster declaration. Medicine for Categories C–G under the Please notify the Governor of North Dakota Public Assistance program (already and the Federal Coordinating Officer of this (Catalog of Federal Domestic Assistance No. designated for Individual Assistance, amendment to my major disaster declaration. 83.516, Disaster Assistance) Categories A and B under the Public (Catalog of Federal Domestic Assistance No. Dated: April 28, 1997. Assistance program and Hazard Mitigation). 83.516, Disaster Assistance) Jane A. Bullock, (Catalog of Federal Domestic Assistance No. Dated: April 28, 1997. Chief of Staff. 83.516, Disaster Assistance) Jane A. Bullock, [FR Doc. 97–11737 Filed 5–5–97; 8:45 am] Lacy E. Suiter, Chief of Staff. BILLING CODE 6718±02±P Executive Associate Director, Response and [FR Doc. 97–11736 Filed 5–5–97; 8:45 am] Recovery Directorate. BILLING CODE 6718±02±P [FR Doc. 97–11735 Filed 5–5–97; 8:45 am] FEDERAL RESERVE SYSTEM BILLING CODE 6718±02±P FEDERAL EMERGENCY Change in Bank Control Notices; MANAGEMENT AGENCY Acquisitions of Shares of Banks or FEDERAL EMERGENCY Bank Holding Companies MANAGEMENT AGENCY [FEMA±1173±DR] The notificants listed below have [FEMA±1174±DR] South Dakota; Amendment to Notice of applied under the Change in Bank a Major Disaster Declaration North Dakota; Amendment to Notice of Control Act (12 U.S.C. 1817(j)) and § a Major Disaster Declaration AGENCY: Federal Emergency 225.41 of the Board’s Regulation Y (12 Management Agency (FEMA). CFR 225.41) to acquire a bank or bank AGENCY: Federal Emergency holding company. The factors that are ACTION: Notice. Management Agency (FEMA). considered in acting on the notices are Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24657 set forth in paragraph 7 of the Act (12 FEDERAL RESERVE SYSTEM DEPARTMENT OF HEALTH AND U.S.C. 1817(j)(7)). HUMAN SERVICES The notices are available for Notice of Proposals to Engage in immediate inspection at the Federal Permissible Nonbanking Activities or Centers for Disease Control and Reserve Bank indicated. Once the to Acquire Companies that are Prevention notices have been accepted for Engaged in Permissible Nonbanking [Announcement Number 740] processing, they will also be available Activities for inspection at the offices of the Board Occupational Radiation and Energy- of Governors. Interested persons may The companies listed in this notice Related Health Research Grants; express their views in writing to the have given notice under section 4 of the Notice of Availability of Funds for Reserve Bank indicated for that notice Bank Holding Company Act (12 U.S.C. Fiscal Year 1997 or to the offices of the Board of 1843) (BHC Act) and Regulation Introduction Governors. Comments must be received Y, (12 CFR Part 225) to engage de novo, not later than May 27, 1997. or to acquire or control voting securities The Centers for Disease Control and A. Federal Reserve Bank of San or assets of a company that engages Prevention (CDC), National Institute for Francisco (Pat Marshall, Manager of either directly or through a subsidiary or Occupational Safety and Health Analytical Support, Consumer other company, in a nonbanking activity (NIOSH), announces that grant Regulation Group) 101 Market Street, that is listed in § 225.28 of Regulation applications are being accepted for San Francisco, California 94105-1579: Y (12 CFR 225.28) or that the Board has research projects relating to 1. Clifford R. Ronnenberg, Sunset occupational safety and health concerns determined by Order to be closely Beach, California; to acquire 27.8 associated with occupational exposures related to banking and permissible for percent of the voting shares of Security to radiation and other hazardous agents First Bank, Fullerton, California. bank holding companies. Unless at nuclear facilities and in other energy- otherwise noted, these activities will be Board of Governors of the Federal Reserve related industries. Studies in the System, April 30, 1997. conducted throughout the United States. nuclear power industry and deliberate Jennifer J. Johnson, Each notice is available for inspection exposure of human subjects in radiation Deputy Secretary of the Board. at the Federal Reserve Bank indicated. experiments are outside the scope of [FR Doc. 97–11691 Filed 5–5–97; 8:45 am] Once the notice has been accepted for this announcement. CDC is committed to achieving the BILLING CODE 6210±01±F processing, it will also be available for inspection at the offices of the Board of health promotion and disease Governors. Interested persons may prevention objectives of ‘‘Healthy FEDERAL RESERVE SYSTEM express their views in writing on the People 2000,’’ a national activity to question whether the proposal complies reduce morbidity and mortality and Sunshine Act Meeting with the standards of section 4 of the improve the quality of life. This BHC Act. announcement is related to the priority AGENCY HOLDING THE MEETING: Board of area of Occupational Safety and Health. Governors of the Federal Reserve Unless otherwise noted, comments (For ordering a copy of ‘‘Healthy People System. regarding the applications must be 2000,’’ see the section WHERE TO OBTAIN TIME AND DATE: 11:00 am., Monday, May received at the Reserve Bank indicated ADDITIONAL INFORMATION.) 12, 1997. or the offices of the Board of Governors Authority PLACE: Marriner S. Eccles Federal not later than May 27, 1997. Reserve Board Building, C Street A. Federal Reserve Bank of Cleveland This program is authorized under the entrance between 20th and 21st Streets, (Jeffrey Hirsch, Banking Supervisor) Public Health Service Act, as amended, section 301(a) (42 U.S.C. 241(a)) and the NW., Washington, DC 20551. 1455 East Sixth Street, Cleveland, Ohio Occupational Safety and Health Act of STATUS: Closed. 44101-2566: 1970, sections 20(a) and 22 (29 U.S.C. MATTERS TO BE CONSIDERED: 1. Fifth Third Bancorp, Cincinnati, 669(a) and 671). The applicable program 1. Personnel actions (appointments, Ohio; to acquire 100 percent of the regulation is 42 CFR Part 52. promotions, assignments, voting shares of Suburban reassignments, and salary actions) Bancorporation, Inc., Cincinnati, Ohio, Eligible Applicants involving individual Federal Reserve and thereby indirectly acquire Suburban Eligible applicants include domestic System employees. Federal Savings Bank, Cincinnati, Ohio, and foreign non-profit and for-profit 2. Any items carried forward from a and thereby engage in operating a organizations, universities, colleges, previously announced meeting. savings association, pursuant to § research institutions, and other public CONTACT PERSON FOR MORE INFORMATION: 225.28(b(4)(ii) of the Board’s Regulation and private organizations, including Mr. Joseph R. Coyne, Assistant to the Y. State and local governments and small, Board; (202) 452–3204. You may call minority and/or woman-owned (202) 452–3207, beginning at Board of Governors of the Federal Reserve businesses. System, April 30, 1997. approximately 5 pm. two business days Note: An organization described in section before this meeting, for a recorded Jennifer J. Johnson, 501(c)(4) of the Internal Revenue Code of announcement of bank and bank Deputy Secretary of the Board. 1986 which engages in lobbying activities holding company applications [FR Doc. 97–11690 Filed 5–5–97; 8:45 am] shall not be eligible to receive Federal funds scheduled for the meeting. constituting an award, grant, contract, loan, BILLING CODE 6210±01±F or any other form. Dated: May 2, 1997. Jennifer J. Johnson, Smoke-Free Workplace Deputy Secretary of the Board. CDC strongly encourages all grant [FR Doc. 97–11938 Filed 5–2–97; 3:46 pm] recipients to provide a smoke-free BILLING CODE 6210±01±P workplace and promote the non-use of 24658 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices all tobacco products, and Public Law (b) No part of any appropriation contained meta-analysis and combined analysis 103–227, the Pro-Children Act of 1994, in this Act shall be used to pay the salary or methodologies, (5) uncertainty analysis, prohibits smoking in certain facilities expenses of any grant or contract recipient, (6) effects of measurement error on risk that receive Federal funds in which or agent acting for such recipient, related to estimates, and (7) studies of current any activity designed to influence legislation workers. education, library, day care, health care, or appropriations pending before the and early childhood development Congress or any State legislature. (1) Retrospective Exposure Assessment services are provided to children. Department of Labor, Health and Epidemiologic studies of occupational Availability of Funds Human Services, and Education, and cohorts frequently involve, and can Approximately $250,000 is available Related Agencies Appropriations Act, generally benefit from, retrospective in fiscal year (FY) 1997 to fund 1997, as enacted by the Omnibus exposure assessment to provide approximately 3 to 5 research project Consolidated Appropriations Act, 1997, estimates of exposure or categorize grants (R01). The amount of funding Division A, Title I, section 101(e), groups of workers by common exposure. available may vary and is subject to Public Law 104–208 (September 30, Exposure assessment in energy-related change. Awards will range from $50,000 1996). occupational epidemiology requires evaluating exposures to various hazards to $100,000 in total costs (direct and Background including ionizing and non-ionizing indirect) per year. Awards are expected The Secretary, Department of Health to begin on or about September 1, 1997. radiation, metals, acids, and solvents. and Human Services (HHS) and the Grant opportunities encompass the Awards will be made for a 12-month Secretary, Department of Energy (DOE) fields of industrial hygiene and budget period within a project period signed a Memorandum of retrospective exposure assessment of not to exceed 3 years. Continuation Understanding (MOU) transferring the health physics dosimetry. Research awards within the project period will be authority and resources to manage and areas of general interest include: made on the basis of satisfactory conduct energy-related analytic Methods to use limited data to best progress and availability of funds. epidemiologic research from DOE to advantage; how to treat censored data in Use of Funds HHS. This includes the authority, retrospective exposure assessment; resources, and responsibility for the uncertainty analysis techniques for Restrictions on Lobbying design, implementation, analysis, and industrial hygiene exposure data and Applicants should be aware of scientific interpretation of analytic health physics dosimetry; insight to restrictions on the use of HHS funds for epidemiologic studies of the following sampling strategy design yielding a lobbying of Federal or State legislative populations: workers at DOE facilities; representative understanding of exposed bodies. Under the provisions of 31 other workers potentially exposed to groups; decision logic to select/use the U.S.C. 1352 (which has been in effect radiation; and workers exposed to most appropriate exposure metric for since December 23, 1989), recipients potential hazards resulting from non- epidemiologic and risk assessment use; (and their subtier contractors) are nuclear energy production and use. and, development approaches of prohibited from using appropriated The Comprehensive Epidemiologic ‘‘Homogeneous Exposed Groupings’’ Federal funds (other than profits from a Data Resource (CEDR) was established and the advantages/limitations for Federal contract) for lobbying Congress by DOE to serve as a repository for data epidemiologic use. Research or any Federal agency in connection from epidemiologic studies they had opportunities of specific interest with the award of a particular contract, sponsored prior to transferring this include: reconstruction and dose grant, cooperative agreement, or loan. responsibility to CDC. These data are adjustment of historic film badges; This includes grants/cooperative available to investigators who wish to exposure assessment for acid mists, agreements that, in whole or in part, conduct additional analyses on these carcinogenic solvents, exotic metals, involve conferences for which Federal completed studies in response to this and leukemogens; assessment of funds cannot be used directly or program announcement. The CEDR is electromagnetic field exposure; and indirectly to encourage participants to maintained by DOE and to access the evaluation of biomarkers of exposure. data, an investigator must make an lobby or to instruct participants on how (2) Radiation Measurement Issues to lobby. application to the DOE’s Office of This topic will focus on the In addition, the FY 1997 HHS Environment, Safety and Health. applicability and utility of radiation Appropriations Act, which became Purpose dose data in epidemiological research. effective October 1, 1996, expressly NIOSH will support applied field Examples of such issues include how to prohibits the use of 1997 appropriated research projects to identify and use nondetectable values and missing funds for indirect or ‘‘grass roots’’ investigate the relationships between dose data in historical radiation lobbying efforts that are designed to health outcomes and occupational exposure measurements, the accuracy of support or defeat legislation pending exposure to radiation and other historical external dosimetry techniques before State legislatures. This new law, hazardous agents; epidemiologic (film and pocket dosimeters), combining section 503 of Public Law 104–208, methods research relevant to energy- external and internal doses into a useful provides as follows: related occupational health research; index, historical bioassay, and Sec. 503(a) No part of any appropriation and research related to assessing radiochemistry techniques. contained in this Act shall be used, other occupational exposures. than for normal and recognized executive- (3) Non-Cancer Morbidity and Mortality legislative relationships, for publicity or Programmatic Interest Outcomes propaganda purposes, for the preparation, The focus of grants should reflect the The majority of analytical distribution, or use of any kit, pamphlet, booklet, publication, radio, television, or following topical areas, emphasizing epidemiologic research of health effects video presentation designed to support or field research: (1) Occupational of energy-related occupational and defeat legislation pending before the exposure assessment, (2) radiation environmental exposures has focused Congress, * * * except in presentation to the measurement issues, (3) non-cancer historically on the assessment of the Congress or any State legislative body itself. morbidity and mortality outcomes, (4) association between cancer mortality Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24659 and exposure to ionizing radiation. management and other work that is not Brooks (DOE Headquarters, telephone Although the importance of this related to the design and production of 301–903–4674) or Mark Durst research should not be underestimated, nuclear weapons. Workers are being (Lawrence Berkeley Labs, telephone it is essential that other potential exposed to radiation and other 510–486–4136). adverse health effects, as well as other hazardous agents under conditions and Evaluation Criteria possible energy-related exposures, be in processes not previously thoroughly evaluated as well. Among encountered. Exposure assessment, Upon receipt, applications will be these would be the possible effects of epidemiologic and related studies are reviewed by NIOSH for completeness radiation on the reproductive, needed to evaluate these new conditions and responsiveness. Applications neurologic, and immune systems. and processes and the impact on worker determined to be incomplete or Chemical exposures highly prevalent in health. unresponsive to this announcement will Department of Energy facilities, such as Reporting Requirements be returned to the applicant without beryllium and mercury, have also been further consideration. If the proposed associated with a variety of disease Progress reports are required annually project involves organizations or outcomes, particularly respiratory and as part of the continuation application persons other than those affiliated with neurologic in nature. (75 days prior to the start of the next the applicant organization, letters of budget period). The annual progress support and/or cooperation must be (4) Meta-Analysis and Combined reports must contain information on included. Analysis Methodologies accomplishments during the previous Applications that are complete and budget period and plans for each Many of the cohorts at nuclear responsive to the announcement will be remaining year of the project. Financial facilities are not individually large evaluated for scientific and technical status reports (FSR) are required no later enough to detect statistically significant merit by appropriate peer reviewers in than 90 days after the end of the budget increases in mortality or incidence for accordance with the review criteria period. The final performance and rare cancer types. Methods and/or stated below. As part of the initial merit financial status reports are required 90 analyses for combining data across review, a process (triage) may be used days after the end of the project period. studies, whether in summary form or by the peer reviewers in which The final performance report should individual data, are valuable to the applications will be determined to be include, at a minimum, a statement of NIOSH research effort involving energy- competitive or non-competitive using related health research. original objectives, a summary of research methodology, a summary of the evaluation criteria below to (5) Uncertainty Analysis positive and negative findings, and a list determine their scientific merit relative to other applications received in Measures of occupational exposure of publications resulting from the response to this announcement. are inherently uncertain. Even when project. Research papers, project reports, Applications judged to be competitive measures of external radiation exposure or theses are acceptable items to include will be discussed and be assigned a are generally available, the models used in the final report. The final report priority score. Applications determined to estimate organ dose, shallow versus should stand alone rather than citing the to be non-competitive will be deep dose, neutron dose, etc., are original application. Three copies of withdrawn from further consideration subject to error. Measures of dose reprints of publications prepared under and the principal investigator/program derived from biological monitoring of the grant should accompany the report. director and the official signing for the urine, feces, blood, etc., are even less In addition, under 45 CFR 74.36(c), applicant organization will be promptly precise. Methods for assessing the ‘‘The Federal Government has the right notified. degree of error in various estimates of to: (1) Obtain, reproduce, publish, or exposure to both ionizing radiation as otherwise use the data first produced The review criteria are: well as other toxic agents (chemicals, under an award; and (2) authorize —Scientific, technical, or medical EMF, etc.) are desirable. others to receive, reproduce, publish, or significance and originality of otherwise use such data for Federal proposed research; (6) Effects of Measurement Error on Risk purposes.’’ This regulation is consistent —Appropriateness and adequacy of the Estimates with an HHS, DOE, MOU requirement experimental approach and Estimation of both bias and that any data collected on workers at methodology proposed to carry out imprecision introduced into risk DOE facilities must be sent to DOE with the research; analyses through exposure measurement personal identifiers removed. These —Qualifications and research error have recently received data are then included in the CEDR experience of the Principal database for future reference by other considerable attention. Many of the Investigator and staff, particularly but researchers. On or before the expiration suggested approaches are very computer not exclusively in the area of the date of the grant, the applicant shall intensive. Practical solutions to this proposed research; problem with regard to the spectrum of submit study data, with appropriate documentation, to the CEDR, —Availability of resources necessary to epidemiologic designs (cohort, case- perform the research; control, cross-sectional, etc.) are needed, maintained by the Department of Energy —Adequacy of plans to include both with particular attention to the nature of at the Lawrence Berkeley Laboratory. sexes and minorities and their exposure measurement in radiation This shall include analysis files and subgroups as appropriate for the epidemiology. separate analytic files for all relevant study data, including demographic scientific goals of the research. Plans (7) Studies of Current Workers variables, radiation dosimetry, for the recruitment and retention of Much of the epidemiologic research industrial hygiene, work history, and/or subjects will also be evaluated. on nuclear workers conducted at medical records data. A written report The peer reviewers will critically nuclear facilities and other sites has describing each data set and a code book examine the submitted budget and will emphasized retrospective studies. More for each data set shall also be submitted. recommend an appropriate budget and recently new activities involve Information about preparation of CEDR period of support for each scored environmental restoration, waste files can be obtained from Barbara application. 24660 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Secondary review criteria for Women and Racial and Ethnic section B., ‘‘Applications’’). It should be programmatic importance are as Minorities postmarked no later than May 30, 1997. follows: It is the policy of the CDC to ensure The letter should identify the 1. Results of the initial review. that women and racial and ethnic announcement number, name of 2. Magnitude of the problem in terms groups will be included in CDC principal investigator, and specify the of numbers of workers affected. supported research projects involving priority area to be addressed by the 3. Severity of the disease or injury in human subjects, whenever feasible and proposed project. The letter of intent the worker population. appropriate. Racial and ethnic groups does not influence review or funding 4. Usefulness to applied technical are those defined in OMB Directive No. decisions, but it will enable CDC to plan knowledge in the identification, 15 and include American Indian, the review more efficiently, and will evaluation, and/or control of Alaskan Native, Asian, Pacific Islander, ensure that each applicant receives occupational safety and health hazards. Black and Hispanic. Applicants shall timely and relevant information prior to Applicants will compete for available ensure that women and racial and application submission. funds with all other approved ethnic minority populations are B. Applications applications that were submitted in appropriately represented in Applicants should use Form PHS–398 response to this program applications for research involving (OMB Number 0925–0001) and adhere announcement. The following will be human subjects. Where clear and to the ERRATA Instruction Sheet for considered in making funding compelling rationale exist that inclusion Form PHS–398 contained in the Grant decisions: is not feasible, this situation must be Application Kit. Please submit an 1. Quality of the proposed project as explained as part of the application. In original and five copies on or before July determined by peer review. conducting the review of applications 15, 1997 to: Ron Van Duyne, Grants 2. Availability of funds. for scientific merit, review groups will Management Officer, Grants 3. Program balance among research evaluate proposed plans for inclusion of Management Branch, Procurement and areas of the announcement. minorities and both sexes as part of the Grants Office, Centers for Disease scientific assessment and assigned Executive Order 12372 Review Control and Prevention, (CDC), 255 East score. This policy does not apply to Paces Ferry Road, NE., Room 321, MS– Applications are not subject to the research studies when the investigator E13, Atlanta, GA 30305. review requirements of Executive Order cannot control the race, ethnicity and/ 12372, entitled Intergovernmental or sex of subjects. Further guidance to C. Deadlines Review of Federal Programs. this policy is contained in the Federal 1. Applications shall be considered as Public Health System Reporting Register, Vol. 60, No. 179, Friday, meeting a deadline if they are either: Requirement September 15, 1995, pages 47947– A. Received at the above address on 47951. This program is not subject to the or before the deadline date, or Public Health System Reporting Confidentiality Agreement B. Sent on or before the deadline date Requirements. to the above address, and received in To comply with the routine uses time for the review process. Applicants Catalog of Federal Domestic Assistance allowing access to Department of Energy should request a legibly dated U.S. Number (DOE) Privacy Act systems of records, Postal Service postmark or obtain a grantees who will be accessing DOE legibly dated receipt from a commercial The Catalog of Federal Domestic records to conduct epidemiologic Assistance number is 93.262. carrier or the U.S. Postal Service. Private studies and/or other public health metered postmarks shall not be accepted Other Requirements activities on behalf of NIOSH will be as proof of timely mailings. asked to sign a written statement that Human Subjects 2. Applications which do not meet the documents data security procedures to criteria above are considered late If the proposed project involves be maintained by the grantee and an applications and will be returned to the research on human subjects, the agreement to comply with the privacy applicant. applicant must comply with the and confidentiality requirements of the Department of Health and Human Privacy Act routine uses and the Where To Obtain Additional Services Regulations (45 CFR part 46) Memorandum of Understanding Information regarding the protection of human between the Department of Energy and To receive a complete program subjects. Assurance must be provided to the Department of Health and Human description, information on application demonstrate that the project will be Services. procedures, and application forms, call subject to initial and continuing review Travel (404) 332–4561. You will be asked your by an appropriate institutional review name, address, and telephone number committee. The applicant will be The applicant shall include in its and will need to refer to Announcement responsible for providing assurance in proposal the costs of travel to NIOSH in 740. In addition, this announcement is accordance with the appropriate Cincinnati, Ohio, for the annual meeting also available through the CDC Home guidelines and form provided in the of energy-related research extramural Page on the Internet. The address for the application kit. In addition, the partners. CDC Home Page is http://www.cdc.gov. applicant will be responsible for Application Submission and Deadlines If you have questions after reviewing the complying with a NIOSH–DOE contents of all the documents, business agreement that assures the research A. Preapplication Letter of Intent management information may be protocol is reviewed by the institutional Although not a prerequisite of obtained from Joanne Wojcik, Grants review committee(s) (if such a application, a non-binding letter of Management Specialist, Grants committee exists) at each DOE site intent-to-apply is requested from Management Branch, Procurement and where the research will be conducted. potential applicants. The letter should Grants Office, Centers for Disease This process will be coordinated by be submitted to the Grants Management Control and Prevention (CDC), 255 East NIOSH after the award of the grant. Officer (whose address is reflected in Paces Ferry Road, NE., MS–E13, Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24661

Atlanta, GA 30305, telephone (404) proposed regulation resulting from the Washington County 842–6535, fax: (404) 842–6513; internet: negotiated rulemaking process is Jones, E. Fay and Gus, House [email protected]. Programmatic technical published elsewhere in this issue of the (Arkansas Designs of E. Fay Jones MPS) assistance may be obtained from Roy M. Federal Register. 1330 N. Hillcrest, Fleming, Sc.D., Associate Director for The EA is available for review at Fayetteville, 97000453. Grants, National Institute for CCNS Headquarters located in South FLORIDA Occupational Safety and Health, Centers Wellfleet, MA from 8 to 4:30, Monday for Disease Control and Prevention through Friday. Copies of the EA may be Jackson County (CDC), 1600 Clifton Road, NE., Building obtained by writing to the Marianna Historic District 1, Room 3053, MS–D30, Atlanta, GA Superintendent at the address shown (Marianna MPS) 30333, telephone (404) 639–3343, fax: below. Bounded by Davis, Park, Jackson, and Wynn (404) 639–4616; internet: [email protected]. Sts., FOR FURTHER INFORMATION CONTACT: Potential applicants may obtain a Marianna, 97000456. Maria Burks, Superintendent, Cape Cod copy of ‘‘Healthy People 2000’’ (Full National Seashore, 99 Marconi Site Polk County Report, Stock No. 017–001–00474–0) or Road, South Wellfleet, MA 02667. ‘‘Healthy People 2000’’ (Summary Henley Field Ball Park, Telephone 508–349–3785. 1125 N. Florida Ave., Report, Stock No. 017–001–00473–1) Lakeland, 97000458. through the Superintendent of Dated: April 24, 1997. Documents, Government Printing Chris L. Andress, Volusia County Office, Washington, DC 20402–9325, Division Chief, Ranger Activities Division. Southwest Daytona Beach Black Heritage telephone (202) 512–1800. [FR Doc. 97–11432 Filed 5–5–97; 8:45 am] District Dated: April 29, 1997. BILLING CODE 4310±70±P (Daytona Beach MPS) Diane D. Porter, Roughly bounded by Foote Court, South St., Acting Director, National Institute for Dr. Martin Luther King Blvd., and the FEC Occupational Safety and Health, Centers for DEPARTMENT OF THE INTERIOR RR tracks., Disease Control and Prevention (CDC). Daytona Beach, 97000457. [FR Doc. 97–11688 Filed 5–5–97; 8:45 am] National Park Service GEORGIA BILLING CODE 4163±19±P National Register of Historic Places; De Kalb County Notification of Pending Nominations Decatur Cemetery, 229 Bell St., Decatur, 97000459. DEPARTMENT OF THE INTERIOR Nominations for the following properties being considered for listing ILLINOIS National Park Service in the National Register were received Champaign County by the National Park Service before Notice of Availability of Environmental Alpha Rho Chi Fraternity House (Fraternity April 26, 1997. Pursuant to § 60.13 of 36 Assessment for Off-Road Vehicle and Sorority Houses at the Urbana- CFR Part 60 written comments Management Program Cape Cod Champaign Campus of the University of concerning the significance of these National Seashore Illinois MPS) 1108 S. First St., Champaign, properties under the National Register 97000460. AGENCY: National Park Service, Interior. criteria for evaluation may be forwarded IOWA ACTION: Public notice. to the National Register, National Park Service, P.O. Box 37127, Washington, Harrison County SUMMARY: The National Park Service has D.C. 20013–7127. Written comments available for public review, the Woodbine Public Library, 58 5th St., should be submitted by May 21, 1997. Woodbine, 97000462. Environmental Assessment (EA) to Paul Lusignan, Woodbury County evaluate the proposed regulation for off- Acting Keeper of the National Register. road vehicle (ORV) use at Cape Cod Sioux City Free Public Library, 705 6th St., National Seashore (CCNS). In order to ARKANSAS Sioux City, 97000461. resolve an ongoing issue, ORV use on Benton County KANSAS Cape Cod National Seashore beaches, Applegate, Joe, House CCNS convened a negotiated (Arkansas Designs of E. Fay Jones MPS) Finney County rulemaking committee (per the Federal 2301 SW. 2nd St., Cedar Cliff, 501 N. 9th St., Garden City, Advisory Commission Act [FACA, Pub. Benton, 97000451. 97000464. L. 92–463, 5 U.S.C. App. II Sec 9(c)], Carroll County and the Negotiated Rulemaking Act, 5 Shawnee County U.S.C. 561–570) in September 1995. Thorncrown Chapel and Office Willits House, 1035 SW. Fillmore, Topeka, ORV use and management of ORV use (Arkansas Designs of E. Fay Jones MPS) 97000463. AR 62, 0.5 mi. W of Eureka Springs, has led to many years of controversy, Eureka Springs vicinity, 97000452. LOUISIANA litigation and several different proposed regulations. These regulations have Phillips County Acadia Parish attempted to provide a wide range of Spirit of the American Doughboy Hoffpauir, Ellis, House, 210 LeBlanc St., visitor experiences and minimize users Monument—Helena, Jct. of Cherry and Etherwood, 97000467. Perry Sts., conflicts while also providing optimum Lafourche Parish protection for the piping plover Helena, 97000455. Ledet House, LA 308, E of Bayou Lafourche, (Charadrius melodus) in compliance Sebastian County Racland vicinity, 97000468. with the Endangered Species Act of Spirit of the American Doughboy 1973, as amended, and other natural Monument—Fort Smith, Sabine Parish and cultural resources located within 4901 Midland Ave., Miller, J. M., and Brother Store, 7886 LA 473, the areas utilized by ORVs. The Fort Smith, 97000454. Florien, 97000465. 24662 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

St. Martin Parish Franklin County The purpose of this notice is to allow Soulier House, 417 N. Main St., St. Finney—Lee House, 0.75 mi. N of Jct. of VA an additional 30 days for public Martinville, 97000466. 717 and VA 890, Snow Creek vicinity, comments. Comments are encouraged 97000484. and will be accepted until June 5, 1997. MASSACHUSETTS Northumberland County This process is conducted in accordance Barnstable County with 5 CFR 1320.10. Written comments Claughton—Wright House, 2 mi. NE of Jct. of Forestdale School, 87 Falmouth—Sandwich VA 623 and VA 624, Lewisetta vicinity, and suggestions regarding the estimated Rd., Sandwich, 97000469. 97000491. public burden and associated response Union Hall, Town Hall Rd., E of MA 6, Truro, time, should be directed to the Office of Page County 97000470. Management and Budget, Office of Spitler, Isaac, House, 2948 Oak Forest Ln., Information and Regulatory Affairs, NEW YORK Luray vicinity, 97000486. Attention: Department of Justice Desk Warren County Smyth County Officer, Washington, D.C., 20503. Riverside Train Station, Jct. of Hudson R. and Greer, R. T., and Company, 107 Pendleton Additionally, comments may be NY 8, Johnsburg, 97000471. St., Marion vicinity, 97000481. submitted to OMB via facsimile to 202– Konnarock Training School, Jct. of VA 603 395–7285. NORTH CAROLINA and VA 600, Konnarock vicinity, Comments may also be submitted to Cabarrus County 97000483. the Department of Justice (DOJ), Justice Management Division, Information Bethel Church Arbor, Jct. of NC 1123 and NC Washington County Management and Security Staff, 1121, Midland vicinity, 97000472. Brook Hall, 13160 Byars Ln., Abingdon vicinity, 97000490. Attention: Department Clearance Watauga County Officer, Suite 850, 1001 G Street, N.W., Ward Family House, 8018 Rominger Rd., Virginia Beach Independent City Washington, D.C., 20530. Additionally, Sugar Grove vicinity, 97000473. Miller—Masury, Dr. John, House, 515 Wilder comments may be submitted to DOJ via Point, Virginia Beach, 97000488. fascimile to 202–514–1534. Yadkin County Williamsburg Independent City The purpose of this notice is to Durrett—Jarratt House, 0.35 mi. SW of jct. of request written comments and NC 1605 and NC 1569, Enon vicinity, Williamsburg Inn, 136 E. Francis St., Williamsburg, 97000480. suggestions from the public, including 97000474. telecommunications carriers, and TENNESSEE WASHINGTON affected agencies should address one or Jefferson County more of the following points: Shelby County Butler—Jackson House, 1703 Grand Ave., (1) evaluate whether the proposed Vollintine Evergreen North Historic District, Everett, 97000494. collection of information is necessary Roughly bounded by Mclean Blvd., Everett High School, 2400 Colby Ave., for the proper performance of the Vollintine Ave., University St., and Everett, 97000493. functions of the agency, including Rainbow Cir., Memphis, 97000475. WYOMING whether the information will have Vollintine Evergreen Avalon Historic District, practical utility; Roughly bounded by Stonewall, Vollintine, Teton County (2) evaluate the accuracy of the and Evergreen Sts., and Cypress Creek, Mormon Row Historic District (Grand Teton agency’s estimate of the burden of the Memphis, 97000476. National Park MPS) Roughly E of US 26– proposed collection of information, TEXAS 89–187 from Antelope Flats to Grand Teton including the validity of methodology National Park—Teton National Forest Dallas County and assumptions used; border, Moose vicinity, 97000495. (3) enhance the quality, utility, and Santa Fe Terminal Buildings No. 1 and No. [FR Doc. 97–11710 Filed 5–5–97; 8:45 am] clarity of the information to be 2, 1114 Commerce St. and 1118 Jackson BILLING CODE 4310±70±P collected; and St., Dallas, 97000478. (4) minimize the burden of collection Travis County of information on those who are to Zilker Park Historic District, 2100 Barton DEPARTMENT OF JUSTICE respond, including through the use of Springs Rd., Austin, 97000479. appropriate automated, electronic, Federal Bureau of Investigation mechanical, or other technological Wise County collection techniques or other forms of Texas Tourist Camp, 900—904 S US 81/287, Telecommunications Industry Liaison information technology (e.g., permitting Decatur, 97000477. Unit; Agency Information Collection electronic submission of responses.) Activities: Proposed Collection; Overview of this Information VIRGINIA Comment Request Collection: Amherst County (1) Type of Information Collection: ACTION: Notice of information collection Hite Store, 0.25 mi. S of jct. of VA 778 and under review; implementation of NEW COLLECTION: The type of VA 666, Lowesville, 97000487. Section 104(d) of the Communications information acquired is required to be Assistance for Law Enforcement Act. furnished by law in terms of a carrier Bedford County statement, as set forth in subsection Brook Hill Farm, 0.75 mi. S of jct. of US 221 Office of Management and Budget 104(d) of the Communications and VA 643, Forest, 97000489. (OMB) approval is being sought for the Assistance for Law Enforcement Act Caroline County information collection listed below. (CALEA) (Pub. L. 103–414, 47 U.S.C. This proposed information collection 1001–1010). A template, which is not Green Falls, Jct of VA 627 and VA 623, Bowling Green vicinity, 97000485. was previously published on April 10, mandatory, has been developed through 1996, in the Federal Register and the consultative process with the Clarke County allowed 60 days for public comment. A telecommunications industry to Cool Spring Battlefield, Jct. of Shenandoah R. summary of these comments are facilitate submission of the and VA 643, Berryville vicinity, 97000492. included at the end of this notice. telecommunications carrier statements. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24663

Such information is quantitative and regulation, and through non-disclosure Response: CALEA, SEC. 104, (d) qualitative data necessary to identify agreements as necessary. CARRIER STATEMENT states in part any systems or services of a (5) An estimate of the total number of that, ‘‘Within 180 days after the telecommunications carrier that do not respondents and the amount of time publication by the Attorney General of have the capacity to accommodate estimated for an average respondent to a notice of capacity requirements simultaneously the number of respond: The FBI estimates that there pursuant to subsection (a) or (c), a interceptions, pen registers, and trap are approximately three-thousand four- telecommunications carrier shall submit and trace devices as specified in the hundred ninety-seven (3,497) to the Attorney General a statement final capacity notice to subsection telecommunications carriers, with identifying any of its systems or services 104(a) of CALEA. approximately twenty-three thousand that do not have the capacity to (2) The title of the information (23,000) unique systems or services, that accommodate.’’ The PRA Carrier collection: ‘‘Telecommunications will be affected by this collection of Statement estimates the hour burden for Carrier Statement.’’ information. The total amount of time startup time to read the (3) The agency form number, if any, required to complete the Telecommunications Carrier Statement and the applicable component of the Telecommunications Carrier Statement and determine data sources. It was Department sponsoring the collections; will vary, depending upon the total never intended to include time to Form number: None. Sponsored by the number of systems and services that the evaluate the Final Notice of Capacity. Federal Bureau of Investigation (FBI), telecommunications carrier deploys that • PTG contends that it is United States Department of Justice. provide a customer or subscriber with extraordinarily difficult to determine (4) Who will be asked or required to the ability to originate, terminate, or the county for each prefix served by a respond, as well as a brief abstract; direct communications. The time switch. The difficulty escalates further BUSINESS OR OTHER FOR PROFIT: required to read and prepare for those switches located near county Telecommunications carrier, as defined information, for one system or service is boundaries and which include prefixes in CALEA subsection 102(8), will estimated at 10 minutes. There is also that serve multiple counties. The work respond. an associated startup time per carrier to make these identifications would be The collected data will be used in that is estimated at 2 hours. This startup administratively burdensome and labor conjunction with law enforcement time consists of reading the intensive, and would certainly exceed priorities and other factors to determine Telecommunications Carrier Statement the ten-minute parameter utilized by the telecommunications carriers that and determining data sources. TILU. PTG would support a change to may be eligible for cost reimbursement (6) An estimate of the total public the provision of information regarding according to section 104. burden (in hours) associated with the county in which a switch resides, rather The amount and type of information collection is 10,904 hours. These than counties served by each prefix collected will be minimized to ensure estimates were derived from close within a switch. that the submission of this data by consultation with industry. Response: While we agree that county telecommunications carriers will not be Public comment on this proposed information does not reside in the burdensome nor unreasonable. Each information collection is strongly traditional engineering and planning telecommunications carrier will submit encouraged. database, i.e., Local Switch Demand and a statement identifying any of its Summary of Comments to the 60-Day Facility (LSD&F) database, this systems or services that do not have the Notice information is available in other capacity to accommodate Based on industry comments and to databases such as E911 and Wirecenter simultaneously the number of conform with the Second Notice of Map Information. Also, software is interceptions, pen registers, and trap Capacity that was published in the available that provides information on and trace devices as set forth in the final Federal Register on January 16, 1997, wirecenter serving areas. One of the capacity notice. the Telecommunications Carrier RBOCs stated on an ECSP Based on consultation with industry, Statement Template has been changed Subcommittee conference call that they information solicited to specifically to: were able to extract county information identify such systems and services that (a) Remove the capacity field. This from their E911 database. The cannot meet the estimated capacity information is no longer required mechanized Telecommunications requirements will include: Common because estimates of actual and Carrier Statement Template allows for Language Location Identifier (CLLI) maximum capacity requirements are the import of data from a database and code or equivalent identifier, switch being provided by geographical location provides instructions for dealing with model or other system or service type, in Appendices sections A through D of imports from multiple databases. and the city and state where the system the Second Notice of Capacity. United States Telephone Association or service is located. Unique (b) Associate the county(s) field to be (USTA) information required for wireline unique information required for systems and services would include the wireline systems and services only. • USTA recommends that the final host CLLI code if the system or service review and public comment period be is a remote and the county name(s) that Pacific Telesis Group (PTG) provided on this notice following the the system or service serves. Unique • PTG is concerned that the startup final promulgation of the Final Notice of information required for wireless time does not include time required to Capacity requirements and Cost systems and services would include the evaluate the Final Notice of Capacity Recovery Procedures. Since the carrier Metropolitan or Rural Service Area Requirements itself and match up statement is intended to respond to a number(s), or the Metropolitan or Basic switch capability with law enforcement notice of capacity requirements, Trading Area number(s) served by the needs. This is necessary before the responding to item 3c (‘‘capacity’’) is system or service. template can be populated, and the time problematic. In short, the ability of Confidentiality regarding the data does not appear to be included in carriers to complete column 3c, and the received from the telecommunications current estimates of hours required to burden imposed by column 3c is carriers will be protected by statute, complete the survey. directly related to the definition of 24664 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices capacity in the Final Notice of Capacity CARRIER STATEMENT states in part BellSouth Telecommunications, Inc. requirements. that, ‘‘Within 180 days after the • BellSouth is unable to estimate the Response: CALEA, SEC. 104, (d) publication by the Attorney General of amount of time required to complete a CARRIER STATEMENT states in part a notice of capacity requirements carrier statement which seeks data that, ‘‘Within 180 days after the pursuant to subsection (a) or (c), a concerning the capacity of a system or publication by the Attorney General of telecommunications carrier shall submit service that is not a switch with a CLLI a notice of capacity requirements to the Attorney General a statement code. pursuant to subsection (a) or (c), a identifying any of its systems or services Response: The ‘‘Equipment Type’’, telecommunications carrier shall submit that do not have the capacity to item 3b, is intended for listing to the Attorney General a statement accommodate * * *’’. The equipment that the carrier believes does identifying any of its systems or services telecommunications carrier may need to not have the capacity to accommodate that do not have the capacity to identify any element in their network or simultaneously the number of accommodate * * *.’’ This PRA Carrier other network (i.e., Service Control interceptions, pen registers, and trap Statement requires a minimum of 90 Point, Voice Mail System) that provides and trace devices as specified in the days for comment (one 60 day comment call identifying information or call Final Notice of Capacity to subsection period and the current 30 day comment content as identified in CALEA Section period). If the PRA Carrier Statement 104(a) of CALEA. As stated in CALEA, 103. SEC. 104, (d) CARRIER STATEMENT was deferred until after the issuance of • CALEA requires carriers to be in the Final Notice of Capacity, the ‘‘Within 180 days after the publication compliance with the Act’s capabilities by the Attorney General of a Notice of template would be unavailable for most requirements by October 1998. of the 180 days. Furthermore, template Capacity requirements pursuant to However, carriers are given three years subsection (a) or (c), a item 3c (‘‘capacity’’) has been removed following the publication of the Final from the Telecommunications Carrier telecommunications carrier shall submit Notice of Capacity in which to comply to the Attorney General a statement Statement Template. with the capacity requirements. USTA • USTA believes that the template identifying any of its systems or services understands that TILU considers the should apply to switches alone. that do not have a capacity to Response: The ‘‘Equipment Type,’’ operative deadline for compliance with accommodate * * *.’’ The item 3b, is intended for listing the Act therefore is contingent on telecommunications carrier may need to equipment that the carrier believes does capacity requirements deadline, not the identify any element in their network or not have the capacity to accommodate capabilities requirements deadline. other network (i.e., Service Control simultaneously the number of USTA seeks final clarification of this Point, Voice Mail System) that provides interceptions, pen registers, and trap issue. call identifying information or call and trace devices as specified in the Response: The FBI has no statutory content as identified in CALEA Section Final Notice of Capacity to subsection authority to countermand the intentions 103. of the Congress, and it has no authority 104(a) of CALEA. As stated in CALEA, Ameritech SEC. 104, (d) CARRIER STATEMENT to waive the statutory compliance dates ‘‘Within 180 days after the publication specified in CALEA. There is, however, • Although the Notice states that by the Attorney General of a Notice of a provision and mechanism under carriers should provide information Capacity requirements pursuant to CALEA, grounded in the principle of identifying ‘‘systems and services’’, the subsection (a) or (c), a reasonableness, that offers relief to FBI should acknowledge that carriers telecommunications carrier shall submit telecommunications carriers where will be providing information only to the Attorney General a statement there is a prospect that the capability regarding their switches. More identifying any of its systems or services assistance compliance deadline cannot importantly however, although the FBI’s that do not have the capacity to be met. Section 107 of CALEA permits Electronic Surveillance Interface accommodate * * *.’’ The telecommunications carriers to seek an Document lists different services which telecommunications carrier may need to extension(s) of time from the FCC in the FBI views as subject to CALEA, the identify any element in their network or order to achieve compliance with the generic requirements [industry other network (i.e., Service Control assistance capability requirements standard] currently being finalized, Point, Voice Mail System) that provides under circumstances where a carrier can focus exclusively on building ‘wiretap call identifying information or call show that compliance with those capability’ within the switch. content as identified in CALEA Section requirements is not reasonably Response: The ‘‘Equipment Type’’, 103. achievable through the application of item 3b, is intended for listing • USTA is not convinced that the available technology during the equipment that the carrier believes does burden imposed on carriers, especially compliance period specified in Section not have the capacity to accommodate small companies, by completing the 111. The Commission may grant such an simultaneously the number of template will be manageable as is extension after consultation with the interceptions, pen registers, and trap implied in the notice [of Information Attorney General in those cases where and trace devices as specified in the Collection]. Given the lack of certain such an extension is reasonably Final Notice of Capacity to subsection key definitions and terms upon which warranted. Since CALEA was enacted, it 104(a) of CALEA. As stated in CALEA, the template is based (e.g., capacity, is generally understood that various SEC. 104, (d) CARRIER STATEMENT service), this burden in fact could be carriers and manufacturers have moved ‘‘Within 180 days after the publication significant. at different paces in pursuing CALEA by the Attorney General of a Notice of Response: The concern about burden capability solutions. Given this, there is Capacity requirements pursuant to is based on lack of definitions such as support for the perspective that subsection (a) or (c), a capacity and service. The request for CALEA’s provisions, which contain telecommunications carrier shall submit capacity information has been removed mechanisms for reasonable treatment to the Attorney General a statement from the Telecommunications Carrier and compliance date extensions in identifying any of its systems or services Statement Template. With regard to special cases, should be utilized as that do not have the capacity to services, CALEA, SEC. 104, (d) enacted. accommodate * * *.’’ The Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24665 telecommunications carrier may need to were able to extract county information providers that provide telephone service identify any element in their network or from their E911 database. The to the tenants of a building or campus other network (i.e., Service Control mechanized Telecommunications and it is not clear whether the capacity Point, Voice Mail System) that does not Carrier Statement Template allows for of such offerings should be included. have the capacity to accommodate the the import of data from a database and Third, CALEA excludes information call identifying information or call provides instructions for dealing with services. Again, a firm’s CALEA content as identified in CALEA Section imports from multiple databases. obligations can be minimized to the 103. • Concern was expressed about extent that it unilaterally classifies its • Ameritech points out that the capacity requirements being stated activities as information services. So ‘‘capacity’’ of the switch has yet to be based upon the conditions at the time of long as the precise scope of information defined by the FBI. collection and that over time the and telecommunications services is not Response: Law enforcement has requirements would change. SBC stated defined, some firms will report capacity defined capacity in the Second Notice of that ongoing collection and validation of that others would not. Capacity by geographic area as required data to determine capacity would Response: As stated in CALEA, SEC. in CALEA. The switch capacity is not exceed the time estimates in the Carrier 104, (d) CARRIER STATEMENT required in the Telecommunications Statement Notice. ‘‘Within 180 days after the publication Carrier Statement. Therefore, template Response: The Second Notice of by the Attorney General of a Notice of item 3c (‘‘capacity’’) has been removed Capacity issues estimated actual and Capacity requirements pursuant to from the Telecommunications Carrier maximum capacity requirements in subsection (a) or (c), a Statement Template. actual numbers. A change in the telecommunications carrier shall submit requirements would only occur on the to the Attorney General a statement SBC Communications Inc. issuance of a new Notice of Capacity, identifying any of its systems or services • The estimate of time required to which would require a response. that do not have the capacity to prepare the Telecommunications Carrier accommodate simultaneously the MFS Communications Company, Inc. Statement, whether using template or number of interceptions, pen registers, not, is potentially understated. It is in • MFS states, ‘‘It is not clear that the and trap and trace devices set forth in the estimation of capacity that most of information sought will be the notice under such subsection.’’ The the work involved in the preparation of comprehensive or very useful to the FBI Telecommunications Carrier Statement a Telecommunications Carrier in fulfilling its notice requirements Template is not a survey and is not Statement will occur, not in the under CALEA for three major reasons’’ mandatory. The Telecommunications preparation of the form itself. SBC that are listed. Carrier Statement Template was estimates that it spent a minimum of 64 First, the FBI’s survey of existing developed through the consultative hours working on the Initial Capacity switches and telecommunications process with industry representatives to Notice developing data that will be used capacity will likely capture only a facilitate submission of the Carrier in filling out the Telecommunications minority of telecommunications carriers Statement. The information requested Carrier Statement * * *. and will provide a distorted view of the will be used by law enforcement in Response: The PRA Carrier Statement industry. With the enactment of the conjunction with law enforcement estimates the hour burden for startup Telecommunications Act, a number of priorities and other factors to determine time to read the Telecommunications new firms—like MFS—can be expected the specific equipment, facilities, and Carrier Statement and determine data to enter or greatly expand their services that require immediate sources. It was never intended to operations in the telecommunications modification. include time to evaluate the Final market over the next four years. In the Second Notice of Capacity, law Notice of Capacity. The hour burden Obviously, those new entrants’ capacity enforcement provided a notice of estimates were developed through the and networks, particularly those estimated capacity requirements by consultative process with the ECSP entrants who have not yet entered the geographic area and has selected Committee. One of the assumptions was market, will not be included. The counties as the appropriate basis for that most of the data could be obtained Telecommunications Act also permits expressing capacity requirements for from the Local Switch Demand and carriers to enter local telephone markets telecommunications carriers offering Facilities (LSD&F) database or its as resellers of local service capacity local exchange service (i.e., wireline equivalent. The concern that most of the (e.g., AT&T buys capacity from NYNEX carriers). Appendix A of the Second work will involve capacity estimation and resells it as local service). The Notice of Capacity lists all actual and will be eliminated because item 3c impact of such resale activities on an maximum capacity requirements by (‘‘capacity’’) has been removed from the aggregate estimate of capacity are county. These requirements represent Telecommunications Carrier Statement unclear. the simultaneous number of call-content Template. Second, CALEA includes only public interceptions and wireline interceptions • Serving areas extend far beyond the telecommunications networks, and of call-identifying information for each location of the switch or other facility excludes private networks. So long as county in the United States and its and are not kept by county in the the definition of private networks is territories. Wireline carriers may ordinary course of business. unclear, firms can minimize their ascertain the actual and maximum Response: While we agree that county CALEA reporting requirements and capacity requirements that will affect information does not reside in the obligations if they unilaterally classify them by looking up in Appendix A the traditional engineering and planning facilities as ‘‘private network’’ facilities. county (or counties) for which they offer database (e.g., LSD&F), this information Often there is not a crisp distinction local exchange service. is available in other databases such as between public and private Law enforcement’s county capacity E911 and Wirecenter Map Information. telecommunications networks and requirements are based on historical Also, software is available that provides services, so there is a strong possibility interception data and represent its information on wirecenter serving areas. that the survey will include a mismatch interception needs anywhere in the One of the RBOCs stated on an ECSP of services. There are many firms, such county. The county requirements apply Subcommittee conference call that they as shared tenant services (STS) to all existing and any future wireline 24666 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices carriers offering local exchange service to evaluate whether the systems of the Instead, law enforcement determined in each county, regardless of equipment telecommunications service provider that the wireless market service area type used or customer base. collectively provide the required access would be the most appropriate CALEA applies to all for each of several independent features geographic designations. Although these telecommunications carriers as defined and services.’’ areas comprise sets of counties, the use in section 102(8). Notices will Response: The Telecommunications of such market service areas best takes eventually be issued covering all Carrier Statement Template was into account the greatest inherent telecommunications carriers. However, simplified to its present form through mobility of wireless subscribers. What is the Second Notice of Capacity and its the consultative process with the most important is that historical associated Final Notice of Capacity telecommunications industry. The information on wireless interceptions should be viewed as a first phase telecommunications carriers need only could only be associated with market application to telecommunications list systems and services that do not service areas. carriers offering services that are of most meet the requirements of CALEA Therefore, the county(s) field of the immediate concern to law subsection 104(d). If any system or Telecommunications Carrier Statement enforcement—that is, those service does not meet the requirements Template is information required for telecommunications carriers offering of CALEA subsection 104(d), it must be wireline systems and services only. local exchange service and certain reported. Dated: April 30, 1997. • Synacom states that, ‘‘There should commercial mobile radio services, Robert B. Briggs, specifically cellular service and be a ‘jurisdiction’ column instead of the ‘county’, ‘city’, and ‘state’ columns.’’ Department Clearance Officer, United States personal communications service (PCS). Department of Justice. The exclusion from the notice of Also, ‘‘the ‘MSA, RSA, MTA, or BTA’ [FR Doc. 97–11708 Filed 5–5–97; 8:45 am] certain telecommunications carriers that field is largely irrelevant.’’ have services deployed currently or Response: In the Second Notice of BILLING CODE 4410±02±M anticipate deploying services in the near Capacity, law enforcement provides a term does not exempt them from notice of estimated capacity obligations under CALEA. requirements by geographical area and LEGAL SERVICES CORPORATION • The hour burden depends on how has selected counties and market as the Sunshine Act Meeting; Meeting of the each carrier interprets the meaning of appropriate basis for expressing capacity requirements for Board of Directors Operations and capacity. Regulations Committee Response: The Second Notice of telecommunications carriers offering Capacity provides capacity local exchange service. Appendix A of ``FEDERAL REGISTER'' CITATION OF requirements based on geographic area the Second Notice of Capacity lists all PREVIOUS ANNOUNCEMENT: 62 FR 24138 and states the estimated actual and estimated actual and maximum capacity (May 2, 1997) maximum capacity numbers and not a requirements by county. The selection PREVIOUSLY ANNOUNCED TIME AND DATE OF percentage. Also, item 3c (‘‘capacity’’) of county as a means to define law MEETING: The Operations and has been removed from the enforcement requirements takes into Regulations Committee of the Legal Telecommunications Carrier Statement consideration, by its very nature, a Services Corporation Board of Directors Template and therefore should not longstanding territorial location that is will meet on May 9, 1997. The meeting impact the estimated hour burden to unchanged, well documented, is will begin at 10:00 a.m. and continue respondents. understandable to both law enforcement until the committee concludes its and industry, and takes into agenda. Synacom Technology, Inc. consideration a specific law • CHANGES IN THE MEETING: The agenda has Synacom states, ‘‘Law enforcement enforcement jurisdiction. These been revised as follows: should provide some guidance as to requirements represent the which features and services should be simultaneous number of call-content MATTERS TO BE CONSIDERED: accessible and then determine the interceptions and wireline interceptions Open Session capacity required for each feature and of call-identifying information for each service. This is to prevent overbuilding county in the United States and its 1. Approval of agenda. 2. Approval of minutes of the March the intercept capacity.’’ Also, ‘‘The territories. Wireline carriers may 7, 1997, committee meeting. information requested is largely ascertain the estimated actual and 3. Approval of minutes of the unnecessary, because its resolution is maximum capacity requirements that committee’s March 7, 1997, executive not adequate to accurately measure will affect them by looking up in session. compliance with neither the CALEA Appendix A the county (or counties) or capability requirements nor the capacity Appendices B, C, D for which they offer Closed Session notice.’’ local exchange service. 4. Report by legal counsel on Response: The Telecommunications Law enforcement’s county or market litigation involving the Corporation. Carrier Statement Template was capacity requirements are based on developed through the consultative historical interception data and Open Session process with industry representatives. represent its interception needs 5. Consider and act on final revisions The information requested will be used anywhere in the county or market. The to 45 CFR Part 1610, the Corporation’s by law enforcement in conjunction with county or market requirements apply to regulation governing the use of non-LSC law enforcement priorities and other all existing and any future wireline funds. factors to determine the specific carriers offering local exchange service 6. Consider and act on final revisions equipment, facilities, and services that in each county, regardless of equipment to 45 CFR Part 1639, the Corporation’s require immediate modification. type used or customer base. regulation proscribing involvement in • Synacom also states, ‘‘* * * the For wireless carriers, individual welfare reform. burden to gather the required county boundaries were not considered 7. Consider and act on a draft information is much more difficult to to be feasible geographic designations personnel rule to be codified at 45 CFR gather as it requires technical expertise for identifying capacity requirements. Part 1601. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24667

8. Consider and act on proposed 11. Consider and act on possible 1. Secretary of Labor v. Faith Coal Co., procedures to govern employee amendment to the Corporation’s Docket No. SE 91–97, et al. (Issues grievances filed against either the communications policy, as adopted include whether the judge erred in Inspector General or the President. on March 8, 1997. finding that the operator violated 30 9. Consider and act on other business. 12. Consider and act on proposed CFR 75.202(a) and 75.220 by permitting CONTACT PERSON FOR INFORMATION: Report of the Board of Directors to work or travel under an unsupported Victor M. Fortuno, General Counsel and accompany the Inspector General’s roof and by failing to comply with a Secretary of the Corporation, at (202) Semiannual Report to the Congress requirement of its roof control plan to 336–8810. for the period of October 1, 1996– set cribs prior to splitting a pillar, and March 31, 1997. Dated: May 2, 1997. that a separate violation of section 75.220, involving cuts of excessive Victor M. Fortuno, Closed Session length and a crosscut driven into an area General Counsel. 13. Briefing 1 by the Inspector General of unsupported roof, was the result of [FR Doc. 97–11929 Filed 5–2–97; 3:11 pm] on the activities of the OIG, the operator’s unwarrantable failure to BILLING CODE 7050±01±P including but not limited to a status comply with its roof plan, and whether report on the OIG’s special audits. the judge erred in vacating a citation 14. Consider and act on the General alleging that the operator improperly LEGAL SERVICES CORPORATION Counsel’s report on potential and operated a scoop loader that contained pending litigation involving the an inoperative methane monitor and in Sunshine Act Meeting of the Corporation. Corporation's Board of Directors finding that the operator did not violate Open Session 30 CFR 75.203(b) by failing to use sight ``FEDERAL REGISTER'' CITATION OF lines to control the direction of mining). 15. Consider and act on making PREVIOUS ANNOUNCEMENT: 62 FR 24139 TIME AND DATE: 10:00 a.m., Thursday, (May 2, 1997). available to the incoming President May 15, 1997. of the Corporation copies of PREVIOUSLY ANNOUNCED TIME AND DATE OF PLACE: selected executive session Room 6005, 6th Floor, 1730 K THE MEETING: The Board of Directors of transcripts, or excerpts thereof, for Street, NW., Washington, DC. the Legal Services Corporation will meet the purpose of providing him with STATUS: Closed [Pursuant to 5 U.S.C. on May 10, 1997. The meeting will background on specific issues 552b(c)(10)]. begin at 9:00 a.m. and continue until relating to the Corporation and its MATTERS TO BE CONSIDERED: It was conclusion of the Board’s agenda. operations. determined by a unanimous vote of the CHANGES IN THE MEETING: The meeting 16. Consider and act on scheduling of Commissioners that the Commission agenda has been revised as follows: board and committee meetings for consider and act upon the following in MATTERS TO BE CONSIDERED: the period from July through closed session: December 1997. 1. Contractors Sand & Gravel Supply, Open Session 17. Public comment. Inc. v. Secretary of Labor, Docket No. 1. Approval of agenda. 18. Consider and act on other business. EAJ 96–3 (Issues include whether the 2. Approval of minutes of the March CONTACT PERSON FOR INFORMATION: Commission has jurisdiction to review 8, 1997, Board meeting. Victor M. Fortuno, General Counsel and the decision of the administrative law 3. Approval of minutes of the March Secretary of the Corporation, at (202) judge issued pursuant to the Equal 23, 1997, Board meeting. 336–8810. Access to Justice Act and whether the 4. Approval of minutes of the Board’s position of the Secretary was executive session of March 23, 1997. Dated: May 2, 1997. substantially justified in the underlying 5. Chairman’s and Members’ Reports. Victor M. Fortuno, proceeding). 6. President’s Report. General Counsel. TIME AND DATE: 10:00 a.m., Thursday, 7. Inspector General’s Report. [FR Doc. 97–11930 Filed 5–2–97; 3:12 pm] May 29, 1997. 8. Consider and act on the report of BILLING CODE 7050±01±P PLACE: Room 6005, 6th Floor, 1730 K the Board’s Finance Committee. Street, NW., Washington, DC. 9. Consider and act on the report of STATUS: Open. the Board’s Operations and Regulations FEDERAL MINE SAFETY AND HEALTH MATTERS TO BE CONSIDERED: The Committee: REVIEW COMMISSION a. Consider and act on final revisions Commission will hear oral argument on to 45 CFR Part 1610, the Sunshine Act Meeting the following: 1. Secretary of Labor o.b.o. Glover v. Corporation’s regulation governing Consolidation Coal Co., Docket No. the use of non-LSC funds. TIME AND DATE: 10:00 a.m., Thursday, LAKE 95–78–D (Issues include whether b. Consider and act on final revisions May 8, 1997. the judge erred in finding that the to 45 CFR Part 1639, the PLACE: Room 6005, 6th Floor, 1730 K operator discriminated against two mine Corporation’s regulation proscribing Street, NW., Washington, DC. representatives when it transferred them involvement in welfare reform. STATUS: Open. from positions as scooter barn c. Consider and act on a draft MATTERS TO BE CONSIDERED: The mechanics to underground mechanics, personnel rule to be codified at 45 Commission will consider and act upon and whether he properly assessed the CFR Part 1601. the following: d. Consider and act on procedures to penalty amount for the violation). TIME AND DATE: 11:30 a.m., Thursday, govern employee grievances filed 1 Any portion of the closed session consisting against either the Inspector General solely of staff briefings does not fall within the May 29, 1997. or the President. Sunshine Act’s definition of the term ‘‘meeting’’ PLACE: Room 6005, 6th Floor, 1730 K and, therefore, the requirements of the Sunshine Street, NW., Washington, DC. 10. Consider and act on the report of the Act do not apply to any such portion of the closed Board’s Provision for the Delivery session. 5 U.S.C. 552(b)(a) (2) and (b). See also 45 STATUS: Closed [Pursuant to 5 U.S.C. of Legal Services Committee. CFR § 1622.2 & 1622.3. 552b(c)(10)]. 24668 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

MATTERS TO BE CONSIDERED: It was notice to the Civilian Appraisal Staff management system and other determined by a unanimous vote of the (NWRC), National Archives and Records facilitative records maintained by the Commissioners that the Commission Administration, College Park, MD Office of the Secretary (substantive consider and act upon the following in 20740–6001. Requesters must cite the program records are designated for closed session: control number assigned to each permanent retention). 1. Secretary of Labor o.b.o. Glover v. schedule when requesting a copy. The 5. Department of Energy (N1–434–96– Consolidation Coal Co., Docket No. control number appears in the 9). Routine administrative and LAKE 95–78–D (See oral argument parentheses immediately after the name housekeeping files relating to the listing, supra, for issues). of the requesting agency. management of Research and Any person attending oral argument FOR FURTHER INFORMATION CONTACT: Development Projects, Project Working or an open meeting who requires special Michael L. Miller, Director, Records Papers, raw data that has been accessibility features and/or auxiliary Management Programs, National summarized in interim or final reports, aids, such as sign language interpreters, Archives and Records Administration, and researchers notes. Complete Project must inform the Commission in advance 8601 Adelphi Road, College Park, MD Case Files for significant Projects, as of those needs. Subject to 29 CFR 20740–6001, telephone (301) 713–7110. well as final and interim reports for all 2706.150(a)(3) and 2706.160(d). SUPPLEMENTARY INFORMATION: Each year Research and Development Projects will CONTACT PERSON FOR MORE INFORMATION: U.S. Government agencies create be retained as permanent records. Jean Ellen, (202) 653–5629/(202) 708– billions of records on paper, film, 6. Department of Housing and Urban 9300 for TDD Relay/1–800–877–8339 magnetic tape, and other media. In order Development (N1–207–96–9). Records for toll free. to control this accumulation, agency relating to the survey of mortgage Dated: May 1, 1997. records managers prepare records lending activity system database Jean H. Ellen, schedules specifying when the agency (exclusive of electronic and textual output reports designated for Chief Docket Clerk. no longer needs the records and what happens to the records after this period. preservation). [FR Doc. 97–11937 Filed 5–2–97; 3:39 pm] 7. Department of Justice, Federal BILLING CODE 6735±01±M Some schedules are comprehensive and cover all the records of an agency or one Bureau of Investigation (N1–65–97–01). of its major subdivisions. These Work orders maintained by the Special comprehensive schedules provide for Projects Section, Laboratory Division. NATIONAL ARCHIVES AND RECORDS 8. Department of Justice, Immigration ADMINISTRATION the eventual transfer to the National Archives of historically valuable records and Naturalization Service (N1–85–97– and authorize the disposal of all other 2). Reduction in retention period for Records Schedules; Availability and alien identification cards, INS Form I– Request for Comments records. Most schedules, however, cover records of only one office or program or 89, Camera Card. AGENCY: National Archives and Records a few series of records, and many are 9. Department of Justice, United Administration, Office of Records updates of previously approved States Marshals Service (N1–527–97–7). Services. schedules. Such schedules also may Audiovisual records documenting ACTION: Notice of availability of include records that are designated for routine activities and administrative proposed records schedules; request for permanent retention. matters. comments. Destruction of records requires the 10. Defense Intelligence Agency ( N1– approval of the Archivist of the United 373–96–2). Records relating to the SUMMARY: The National Archives and States. This approval is granted after a General Intelligence Training System Records Administration (NARA) thorough study of the records that takes (GITS). publishes notice at least once monthly into account their administrative use by 11. Panama Canal Commission (N1– of certain Federal agency requests for the agency of origin, the rights of the 185–97–12). Budgetary records. records disposition authority (records Government and of private persons Dated: April 28, 1997. schedules). Records schedules identify directly affected by the Government’s Michael J. Kurtz, records of sufficient value to warrant activities, and historical or other value. preservation in the National Archives of Assistant Archivist, for Record Services— This public notice identifies the Washington, DC. the United States. Schedules also Federal agencies and their subdivisions authorize agencies after a specified [FR Doc. 97–11721 Filed 5–5–97; 8:45 am] requesting disposition authority, BILLING CODE 7515±01±P period to dispose of records lacking includes the control number assigned to administrative, legal, research, or other each schedule, and briefly describes the value. Notice is published for records records proposed for disposal. The NATIONAL SCIENCE FOUNDATION schedules that propose the destruction records schedule contains additional of records not previously authorized for information about the records and their Notice of Permits Issued Under the disposal, or reduce the retention period disposition. Further information about Antarctic Conservation Act of 1978 for records already authorized for the disposition process will be fur disposal. NARA invites public nished to each requester. AGENCY: National Science Foundation. comments on such schedules, as ACTION: Notice of permits issued under required by 44 U.S.C. 3303a(a). Schedules Pending the Antarctic Conservation Act of 1978, DATES: Requests for copies must be 1. Department of the Army (N1–AU– Public Law 95–541. received in writing on or before June 20, 96–1). Radiation safety program records. 1997. Once the appraisal of the records 2. Department of the Army (N1–AU– SUMMARY: The National Science is completed, NARA will send a copy of 97–8). Personal financial record folders. Foundation (NSF) is required to publish the schedule. The requester will be 3. Department of the Army (N1–AU– notice of permits issued under the given 30 days to submit comments. 97–9). Individual retirement records. Antarctic Conservation Act of 1978. ADDRESSES: Address requests for single 4. Department of Education ( N1–441– This is the required notice. copies of schedules identified in this 97–1). Control correspondence FOR FURTHER INFORMATION CONTACT: Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24669

Nadene G. Kennedy, Permit Office, Signed at Washington, D.C., this 30th day Susquehanna Steam Electric Station, Office of Polar Programs, Rm. 755, of April, 1997. Unit 2, have been evaluated by the NRC National Science Foundation, 4201 Edie West, staff and the staff has concluded that Wilson Boulevard, Arlington, VA 22230. Executive Director, National Skill Standards this change in the reactor fuel design Board. would not adversely affect plant safety. SUPPLEMENTARY INFORMATION: On March [FR Doc. 97–11709 Filed 5–5–97; 8:45 am] 26, 1997 (62 FR 14448), the National The proposed change to the fuel design Science Foundation published a notice BILLING CODE 4510±23±M has no adverse effect on the probability in the Federal Register of a permit of any accident previously analyzed. application received. A permit was The increase in fuel enrichment from issued on April 29, 1997 to the NUCLEAR REGULATORY 4.0% versus 4.5% for an increased fuel following applicant: Ron Koger, Permit COMMISSION cycle of 24 months results in an increase in the projected maximum burnup rate #98–001. [50±388] or discharge exposure from the current Nadene G. Kennedy, Pennsylvania Power and Light 45 to 48 MWd/kgU. This increased Permit Office. burnup may slightly change the mix of [FR Doc. 97–11753 5–5–97; 8:45 am] Company; Susquehanna Steam Electric Station, Unit 2; Environmental fission products that might be released BILLING CODE 7555±01±M Assessment and Finding of No in the event of a serious accident, but Significant Impact such changes would not significantly affect the consequences of serious The U.S. Nuclear Regulatory accidents. Routine radiological effluents NATIONAL SKILL STANDARDS Commission (the Commission) is are not affected. As a result, there is no BOARD considering issuance of an amendment increase in individual or cumulative to Facility Operating License No. NPF– Notice of Open Meeting radiation exposure. 22, issued to Pennsylvania Power and The environmental impacts of Light Company (the licensee), for AGENCY: National Skill Standards Board. transportation resulting from the use of operation of the Susquehanna Steam higher enrichment and extended ACTION: Notice of open meeting. Electric Station, located in Luzerne irradiation are discussed in the staff County, PA. SUMMARY: The National Skill Standards assessment entitled, ‘‘NRC Assessment Environmental Assessment Board was established by an Act of of the Environmental Effects of Congress, the Goals 2000: Educate Identification of the Proposed Action Transportation Resulting from Extended America Act of 1994, Title V, Public Fuel Enrichment and Irradiation.’’ This The proposed action would change assessment was published in the Law 103–227. The 27-member National the Technical Specifications for the unit Skill Standards Board will serve as a Federal Register on August 11, 1988 (53 to permit the use of ATRIUM–10 fuel in FR 30355), as corrected on August 24, catalyst and be responsible for the the reactor. The changes include core development and implementation of a 1988 (53 FR 32322), in connection with flow dependent minimum critical the Shearon Harris Nuclear Power Plant, national system of voluntary skill power ratio (MCPR) Safety Limits in standards and certification through Unit 1: Environmental Assessment and Sections 2.1.2 and 3.4.1.1.2, addition of Finding of No Significant Impact. As voluntary partnerships which have the Siemens Power Corporation (SPC) full and balanced participation of indicated therein, the environmental methodology topical report references in cost contribution of an increase in fuel business, industry, labor, education and Section 6.9.3.2, changes in Section 5.3.1 other key groups. enrichment of up to 5 weight percent U– to reflect new fuel design features, 235 and irradiation limits of up to 60 TIME & PLACE: The meeting will be held changes in definitions in Section 1 to Gigawatt Days per Metric Ton (GWd/ from 8:00 a.m. to approximately 4:00 reflect the new fuel design, and changes MT) are either unchanged, or may in p.m. on Friday, May 30, 1997, in the to the Bases to correspond to the above fact be reduced from those summarized Ballroom at the Ritz-Carlton located at changes as appropriate. in Table S–4 as set forth in 10 CFR 2100 Massachusetts Avenue, NW, The proposed action is in accordance 51.52(c). These findings are applicable Washington, D.C. 20008. with the licensee’s application for to the proposed increase in the amendment dated December 18, 1996, AGENDA: allowable exposure of SPC ATRIUM–10 The agenda for the Board as supplemented by letters dated Meeting will include: a strategic plan fuel for Susquehanna, Unit 2. February 26, 1997, March 12 and 27, Accordingly, the Commission concludes update, progress on Voluntary April 3, 9, 16, 18, and 24, 1997. Partnership start-up, proposed NSSB that this proposed action would result recognition programs, and a Web Site The Need for the Proposed Action in no significant radiological environmental impact. presentation. The proposed action will enable the PUBLIC PARTICIPATION: The meeting, from licensee to complete its maintenance With regard to potential 8:00 a.m. to 4:00 p.m., is open to the and refueling outage on this unit and nonradiological impacts, the proposed public. Seating is limited and will be begin a new fuel cycle which will change will in no way affect environs available on a first-come, first-served include a portion of the core consisting located outside the restricted area as basis. Seats will be reserved for the of the new ATRIUM–10 nuclear fuel. defined in 10 CFR Part 20. It does not media. Individuals with disabilities affect nonradiological plant effluents Environmental Impacts of the Proposed and has no other environmental impact. should contact Pat Warfield at (202) Action 254–8628, if special accommodations Therefore, the Commission concludes are needed. The Commission has completed its that there are no significant evaluation of the proposed action and nonradiological environmental impacts FOR FURTHER INFORMATION CONTACT: concludes that it is acceptable. The associated with the proposed change in Majorie Haas, Director of safety considerations associated with the fuel exposure limit and the use of Communications, at (202) 254–8628. the use of the ATRIUM–10 fuel in the the new fuel design. 24670 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Alternatives to the Proposed Action NUCLEAR REGULATORY site-specific Topical Safety Analysis COMMISSION Report (TSAR) for a Central Interim Since the Commission has concluded Storage Facility (CISF). there is no measurable environmental Advisory Committee on Nuclear G. Federal Guidance Report 13—The impact associated with the proposed Waste; Notice of Meeting Committee will review the Proposed action, any alternatives with equal or Federal Guidance Report 13, Health greater environmental impact need not The Advisory Committee on Nuclear Risk for Environmental Exposure to be evaluated. As an alternative to the Waste (ACNW) will hold its 92nd Radionuclides (tentative). meeting on May 20–22, 1997, in Room proposed action, the staff considered H. Waste Classification at Hanford, T–2B3, at 11545 Rockville Pike, denial of the proposed action. Denial of Washington, and Savannah River, South Rockville, Maryland. the application would result in no Carolina—The Committee will discuss The entire meeting will be open to the waste classification methodology change in current environmental public attendance. impacts. The environmental impacts of used by the DOE for wastes resulting The schedule for this meeting is as from HLW treatment and from bulk the proposed action and the alternative follows: action are similar. HLW removal and cleaning of tanks Tuesday, May 20, 1997—8:30 a.m. until (tentative). Alternative Use of Resources 6 p.m. I. Preparation of ACNW Reports—The Wednesday, May 21, 1997—8:30 a.m. Committee will discuss potential This action does not involve the use until 6 p.m. reports, including igneous activity of any resources not previously Thursday, May 22, 1997—8:30 a.m. related to the proposed Yucca Mountain considered in the Final Environmental until 4 p.m. Repository, and other topics discussed Statement for the Susquehanna Steam During this meeting, the Committee during the meeting as the need arises. Electric Station, Unit 2. plans to consider the following: J. Committee Activities/Future A. Planning for and Meeting with the Agenda—The Committee will consider Agencies and Persons Consulted Nuclear Regulatory Commission—The topics proposed for future consideration In accordance with its stated policy, Committee will prepare for and meet by the full Committee and Working on May 1, 1997, NRC staff consulted with the Commission to discuss items of Groups. The Committee will discuss with the Pennsylvania State official, R. mutual interest. Topics will include the ACNW-related activities of individual Maiers of the Pennsylvania Department ACNW priority list and past Committee members. reports on the reference biosphere and K. Miscellaneous—The Committee of Environmental Protection, regarding critical group, flow and transport will discuss miscellaneous matters the environmental impact of the models for Yucca Mountain, coupled related to the conduct of Committee proposed action. The State official had processes in NRC’s high-level waste activities and organizational activities no comments. prelicensing program, igneous activity and complete discussion of matters and Finding of No Significant Impact at Yucca Mountain, and risk informed, specific issues that were not completed performance based regulations. The during previous meetings, as time and Based upon the environmental Committee is currently scheduled to availability of information permit. assessment, the Commission concludes meet with the Commission on May 20, Procedures for the conduct of and that the proposed action will not have 1997 at 2:00 p.m. participation in ACNW meetings were a significant effect on the quality of the B. Generic Methodology for published in the Federal Register on human environment. Accordingly, the Decommissioning Performance October 8, 1996 (61 FR 52814). In Commission has determined not to Assessment (PA)—The Committee will accordance with these procedures, oral prepare an environmental impact review the use of PA in the or written statements may be presented statement for the proposed action. decommissioning of various facilities. by members of the public, electronic C. Meeting with NRC’s Director, recordings will be permitted only For further details with respect to the Division of Waste Management, MSS— during those portions of the meeting proposed action, see the licensee’s letter The Committee will hold a current that are open to the public, and dated December 18, 1996, as events discussion with the Director of questions may be asked only by supplemented by letters dated February NMSS. Topics might include the status members of the Committee, its 26, 1997, March 12 and 27, April 3, 9, of work at the Yucca Mountain site, and consultants, and staff. Persons desiring 16, 18, and 24, 1997, which are high-level waste standards and to make oral statements should notify available for public inspection at the regulations. the Chief, Nuclear Waste Branch, Mr. Commission’s Public Document Room, D. Meeting with Representatives of the Richard K. Major, as far in advance as The Gelman Building, 2120 L Street, DOE and NRC—The Committee will practicable so that appropriate NW., Washington, DC, and at the local meet with representatives of the arrangements can be made to schedule public document room located at the Department of Energy and the NRC staff the necessary time during the meeting Osterhout Free Library, Reference to discuss DOE’s Performance Integrated for such statements. Use of still, motion Department, 71 South Franklin Street, Safety Assessment (PISA), experience picture, and television cameras during Wilkes-Barre, Pennsylvania 18701. with the use of expert elicitation in the this meeting will be limited to selected Dated at Rockville, Maryland, this 2nd day high-level waste repository program, portions of the meeting as determined of May 1997. and comments on the defense-in-depth by the ACNW Chairman. Information regarding the time to be set aside for this For the Nuclear Regulatory Commission. philosophy. E. Spent Fuel Dry Storage Facilities— purpose may be obtained by contacting John F. Stolz, The Committee will review a draft the Chief, Nuclear Waste Branch, prior Director, Project Directorate I–2, Division of version of the NRC staff’s Standard to the meeting. In view of the possibility Reactor Projects—I/II, Office of Nuclear Review Plan for a spent fuel dry storage that the schedule for ACNW meetings Reactor Regulation. facility. may be adjusted by the Chairman as [FR Doc. 97–11868 Filed 5–5–97; 8:45 am] F. Central Interim Storage Facility— necessary to facilitate the conduct of the BILLING CODE 7590±01±P The Committee will review DOE’s non- meeting, persons planning to attend Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24671 should notify Mr. Major as to their which follows this notice and is assigned a severity level by the NRC, particular needs. available for public inspection at the and that when all of the violations are Further information regarding topics Commission’s Public Document Room, considered collectively, escalated to be discussed, whether the meeting the Gelman Building, 2120 L Street, enforcement action is warranted has been cancelled or rescheduled, the NW., Washington, DC and at the local because of the repetitive nature of the Chairman’s ruling on requests for the public document room located at the violations. opportunity to present oral statements Learning Resources Center, Three Rivers On February 23, 1995, the NRC and the time allotted therefor can be Community-Technical College, New informed the Petitioner that the Petition obtained by contacting Mr. Richard K. London Turnpike, Norwich, had been referred to the Office of Major, Chief, Nuclear Waste Branch Connecticut, as well as at the temporary Nuclear Reactor Regulation, and that (telephone 301/415–7366), between 8 local public document room located at action would be taken within a a.m. and 5 p.m. EDT. the Waterford Library, ATTN: Vince reasonable time regarding the specific ACNW meeting notices, meeting Juliano, 49 Rope Ferry Road, Waterford, concerns raised in the Petition. transcripts, and letter reports are now Connecticut. NU responded to the NRC on May 12, available on FedWorld from the ‘‘NRC A copy of the Decision will be filed 1995, regarding the issues raised in the MAIN MENU.’’ Direct Dial Access with the Secretary of the Commission Petition; the Petitioner submitted a number to FedWorld is (800) 303–9672; for the Commission’s review in response on July 11, 1995, regarding the local direct dial number is 703–321– accordance with 10 CFR 2.206(c) of the issues raised in the NU submittal. 3339. Commission’s regulations. As provided On October 14, 1995, the Petitioner for by this regulation, the Decision will submitted a Petition requesting that the Dated: April 30, 1997. constitute the final action of the NRC take immediate enforcement action Andrew L. Bates, Commission 25 days after the date of consisting of immediate suspension of Advisory Committee Management Office. issuance unless the Commission, on its the licenses to operate the three units at [FR Doc. 97–11717 Filed 5–5–97; 8:45 am] own motion, institutes a review of the the Millstone Station, and immediate BILLING CODE 7590±01±P Decision in that time. imposition of the maximum daily civil Dated at Rockville, Maryland, this 29th day penalty allowed because of the of April 1997. numerous continuing and repetitive NUCLEAR REGULATORY For the Nuclear Regulatory Commission. violations committed by the licensee COMMISSION Samuel J. Collins, since early 1989. The NRC informed the Petitioner by letter dated November 24, [Docket Nos. 50±245, 50±336, 50±423] Director, Office of Nuclear Reactor Regulation. 1995, that because his October 14, 1995, Northeast Utilities; Millstone Nuclear Petition did not contain any new Power Station, Units 1, 2, and 3; Director’s Decision Pursuant to 10 CFR information but merely raised again the Issuance of Director's Decision Under 2.206 same issues as in his previous Petition, 10 CFR 2.206 I. Introduction his October 14, 1995, Petition would be considered as an additional supplement Notice is hereby given that the On October 28, 1994, Mr. Anthony J. to his January 15, 1995, Petition.2 Director, Office of Nuclear Reactor Ross (Petitioner) filed a Petition with Regulation, has taken action with regard the Executive Director for Operations II. Discussion to a Petition dated October 28, 1994, as pursuant to Section 2.206 of Title 10 of The Petitioner requested that supplemented January 15, February 8 the Code of Federal Regulations (10 CFR ‘‘accelerated enforcement action’’ be and 20, and October 14, 1995, submitted 2.206). By letter dated December 15, taken against NU for violations at by Mr. Anthony J. Ross. The Petition 1994, the NRC informed the Petitioner Millstone involving procedure pertains to Millstone Nuclear Power that he had not provided a sufficient compliance, work control, and tagging Station, Units 1, 2, and 3. factual basis to warrant action under 10 control. As a basis for his request, the In the Petition, the Petitioner raised CFR 2.206. The NRC stated that if the Petitioner alleged that since August concerns regarding violations at the Petitioner wished the staff to take action 1993, violations in these areas had Millstone Station involving procedure under 10 CFR 2.206, he needed to increased significantly, that many of compliance, work control, and tagging provide more information describing the these violations had never been control and requested that ‘‘accelerated’’ specific technical violations that he assigned a severity level, and that when enforcement action be taken against alleged the NRC had not adequately these violations are considered Northeast Utilities for these violations. addressed. By letters dated January 15, collectively with violations that had As grounds for this request, the February 8, and February 20, 1995, the been assigned a severity level, escalated Petitioner asserted violations in these Petitioner supplemented his Petition by enforcement action is warranted areas had increased significantly, that submitting lists of alleged violations. In because of the repetitive nature of the many of these violations had never been the Petition, the Petitioner requested violations. In his October 14, 1995, assigned a severity level by the NRC, that ‘‘accelerated enforcement action’’ supplement to the Petition, the and that when these violations are be taken against Northeast Utilities (NU) Petitioner requested that the NRC considered collectively, escalated for violations at Millstone 1 involving enforcement action is warranted procedure compliance, work control, 2 The Petitioner also asserted in his October 14, because of the repetitive nature of the and tagging control. As a basis for his 1995, Petition that, since many of the violations had violations. request, the Petitioner asserted that been substantiated by the NRC inspectors and/or The Director of the Office of Nuclear since August 1993, violations in these the licensee, but have not been identified as areas had increased significantly, that violations by the NRC, the Office of the Inspector Reactor Regulation has granted the General (OIG) should conduct a full investigation of Petition, in part. In other respects, the many of these violations had never been the NRC’s neglect. In its November 24, 1995, letter, Petition is denied. The reasons for this the NRC informed the Petitioner that this assertion determination are explained in the 1 Northeast Nuclear Energy Company (NNECO/ would be referred to the OIG. In addition, in this licensee), an electric-power operating subsidiary of letter, the Petitioner’s request for immediate action ‘‘Director’s Decision Pursuant to 10 CFR NU, holds licenses for the operation of Millstone was denied. The Petitioner’s assertion of neglect by 2.206’’ (DD–97–11), the complete text of Nuclear Power Station, Units 1, 2, and 3. the NRC was referred to the OIG. 24672 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices suspend the licensee’s licenses to Nonetheless, the NRC shares the attention until the licensee operate all three Millstone units, and Petitioner’s concern about the number demonstrates a period of improved impose a daily civil penalty until the and duration of these examples of performance. In February and March licensee can assure the public and NRC failures in the areas of procedural 1996, the licensee shut down Millstone that there will be no more violations in compliance, work control, and tagging Units 2 and 3, respectively, due to certain areas. control. If the NRC were to reassess the design issues. In response to: (1) A In the Petition and its supplements, examples provided by the Petitioner, it licensee root-cause analysis of is possible that many could be classified inaccuracies in the Millstone Unit 1 the Petitioner provided numerous as repetitive violations under the UFSAR that identified the potential for examples of what he believed were Enforcement Policy.4 However, the NRC similar configuration-management violations in the areas of procedure has determined that these examples are conditions at Millstone Units 2 and 3; compliance, work control, and tagging indicative of a more significant problem; and (2) design configuration issues control. The NRC had been aware of the specifically, a programmatic breakdown identified at these units, the NRC issued examples described by the Petitioner. in management at the Millstone facility. letters to the licensee, pursuant to 10 These examples were taken from NRC The NRC has been aware of CFR 50.54(f), on March 7 and April 4, inspection reports dating back to 1989 weaknesses in the licensees operations 1996. These letters required that the and from other NRC documents. The at Millstone, and has taken significant licensee inform the NRC of the NRC considered whether enforcement regulatory action as a result. corrective actions taken regarding action should be taken for these Specifically, programmatic concerns in design configuration issues at Millstone violations in accordance with the the areas of procedural compliance, Units 2 and 3 before the restart of each guidance provided in the ‘‘General work control, and tagging control, were unit.5 Statement of Policy and Procedures for among the programmatic weaknesses In June 1996, the NRC designated the NRC Enforcement Actions’’ common to all three Millstone units, units at Millstone as Category 3 plants (Enforcement Policy) in effect at the which were identified in the most 3 due to additional inspection findings time that the violations occurred. As recent systematic assessment of licensee regarding design bases and design provided in the Enforcement Policy, the performance (SALP) report of August control, some of which were similar to basic enforcement sanctions available to 26, 1994. These weaknesses included the examples the Petitioner raised. the NRC include Notices of Violation continuing problems with procedure Plants in this category have significant (NOVs), civil penalties, and orders of quality and implementation, the weaknesses that warrant maintaining various types, including Suspension informality in several maintenance and them in a shutdown condition until the Orders. As further provided in the engineering programs that contributed licensee can demonstrate to the NRC Enforcement Policy, for those cases in to instances of poor performance, and that it has both established and which a strong message is warranted for the failure to take proper corrective implemented adequate programs to a significant violation that continues for action at the site. Based on these ensure substantial improvement. Plants more than one day, the NRC may identified weaknesses, the NRC in this category require Commission exercise discretion and assess a separate continued its increased inspection and authorization to resume operations. violation and attendant civil penalty for oversight activities at the facility. On August 14, 1996, the NRC issued each day that the violation continues. On November 4, 1995, the licensee a Confirmatory Order directing the In accordance with that guidance, shut down Millstone Unit 1 for a licensee to contract with a third party to some of the examples cited by the scheduled refueling outage. During an implement an Independent Corrective Petitioner were violations for which the NRC inspection of licensed activities at Action Verification Program (ICAVP) to NRC issued a NOV, but for the majority Millstone Unit 1 in the fall of 1995, the verify the adequacy of its efforts to of the examples, no NOV was issued. In NRC identified refueling practices and establish adequate design bases and some instances in which no NOV was operations regarding the spent fuel pool design controls. The ICAVP is intended issued, the example was considered to cooling systems that were inconsistent to provide additional assurance, before be of only minor safety significance with the updated Final Safety Analysis each of the three Millstone units restart, because it was not a violation that could Report (UFSAR). The NRC sent a letter that the licensee has identified and reasonably be expected to have been to the licensee on December 13, 1995, corrected existing problems in the prevented by the licensee’s corrective requiring that, before the restart of design and configuration control actions for a previous violation, it was Millstone Unit 1, it inform the NRC, processes. or will be, corrected within a reasonable pursuant to Section 182a of the Atomic The guidelines for approving the time, and it was not willful, and Energy Act of 1954, as amended, and 10 restart of a nuclear power plant after a therefore, was not cited in accordance CFR 50.54(f), of the actions taken to shutdown resulting from a significant with the above mentioned Enforcement ensure that in the future it would event, a complex hardware issue, or a Policy. With regard to other instances, operate that facility according to the serious management deficiency are the examples cited by the Petitioner did terms and conditions of the plant’s found in NRC Inspection Manual not constitute violations of NRC operating license, the Commission’s Chapter (MC) 0350, ‘‘Staff Guidelines regulatory requirements, but instead regulations, and the plant’s UFSAR. for Restart Approval.’’ MC 0350 states were deviations from established In January 1996, the NRC designated that the staff should develop a plant- procedures in non-safety-related areas, the units at Millstone as Category 2 specific restart action plan for NRC or simply constituted certain equipment plants. Plants in this category have oversight of each plant startup. The problems or weaknesses in certain areas, weaknesses that warrant increased NRC restart action plan is to include those which required further clarification or issues listed in MC 0350 that the NRC the attention of licensee management. 4 Section IV.B of the Enforcement Policy defines restart panel has deemed applicable to a repetitive violation as a violation that reasonably could have been prevented by a licensee’s the reasons for the shutdown. In the 3 The Enforcement Policy in effect at the time that corrective action for a previous violation normally the violations occurred was set forth at 10 CFR Part occurring (1) within the past 2 years of the 5 By letter dated April 16, 1997, the NRC clarified 2, Appendix C. The Commission’s present inspection at issue, or (2) during the period within the information it needed pursuant to 10 CFR Enforcement Policy is described in NUREG–1600. the last two inspections, whichever is longer. 50.54(f). Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24673 case of Millstone, the restart action plan the apparent violations which have been APPLICANTS: Core Trust (Delaware) will include those issues which the identified as a result of inspections (‘‘Core Trust’’), Norwest Advantage Petitioner has raised; specifically, conducted at the facility between Funds (the ‘‘Trust’’), and Norwest Bank procedure compliance, work control, October 1995 and August 1996, and, Minnesota, N.A. (‘‘Norwest’’). and tagging control. Therefore, the NRC following its review, will take such RELEVANT 1940 ACT SECTIONS: Exemption staff will thoroughly review these areas enforcement action as it deems is requested under section 17(b) of the Act prior to the restart of each unit. warranted. granting an exemption from section Following a determination that the These actions go beyond those 17(a). relevant issues have been identified and requested by the Petitioner. Therefore, SUMMARY OF APPLICATION: Applicants corrected by the licensee, the NRC staff to the extent that the Petitioner has seek an order under section 17(b) will make its recommendation for requested that the NRC take action granting an exemption from section 17 restart approval to the Commission against the licensee for violations at regarding restart for each Millstone unit. (a) of the Act to permit: (a) A series of Millstone involving procedural Core Trust to acquire all of the assets Upon receipt of the staff’s compliance, work control, and tagging recommendation, the Commission will and assume all of the liabilities of control, the Petition has been granted. another series of Core Trust; and (b) a meet to assess the recommendation and Given the action already taken by the vote on whether to approve the restart series of the Trust to transfer all of its NRC, the NRC has determined that the assets to a series of Core Trust in of the unit. additional enforcement action requested In addition, during eight NRC exchange for an interest in that series of by the Petitioner is not warranted at this Core Trust. inspections conducted between October time. 1995 and August 1996, more than 60 FILING DATE: The application was filed apparent violations of NRC III. Conclusion on March 26, 1997. requirements were identified at The staff has completed its review of HEARING OR NOTIFICATION OF HEARING: An Millstone, some of which were similar the information submitted by the order granting the application will be to the examples the Petitioner raised. Petitioner in his Petition and its issued unless the SEC orders a hearing. These apparent violations were supplements. The staff has concluded Interested persons may request a discussed with the licensee at a public that the actions taken by the NRC hearing by writing to the SEC’s pre-decisional enforcement conference against NU are appropriate and Secretary and serving applicants with a held at the Millstone site on December encompass the Petitioner’s examples of copy of the request, personally or by 5, 1996. During the meeting, the violations in the areas of procedure mail. Hearing requests should be licensee stated that management failed compliance, work control, and tagging received by the SEC by 5:30 p.m. on to provide clear direction and oversight, control. To this extent, the Petitioner’s May 27, 1997, and should be performance standards were low, requests for enforcement action against accompanied by proof of service on management expectations were weak, NU is granted, in part. In other respects, applicants, in the form of an affidavit or, and station priorities were the Petition is denied. As provided for for lawyers, a certificate of service. inappropriate. Following its evaluation in 10 CFR 2.206(c), a copy of this Hearing requests should state the nature of the information presented at the Decision will be filed with the Secretary of the writer’s interest, the reason for the enforcement conference, the NRC will of the Commission for the Commission’s request, and the issues contested. determine whether further enforcement review. This Decision will constitute the Persons who wish to be notified of a action is warranted for these apparent final action of the Commission 25 days hearing may request notification by violations. after issuance unless the Commission, writing to the SEC’s Secretary. In sum, the issues raised by the on its own motion, institutes review of ADDRESSES: Petitioner are indicative of a more Secretary, SEC, 450 5th the Decision in that time. fundamental problem of inadequate Street, NW., Washington, DC 20549. management oversight at the Millstone Dated at Rockville, Maryland, this 29th day Applicants: Core Trust (Delaware) and facility. The NRC has been aware of this of April 1997. Norwest Advantage Funds, Two programmatic problem and weaknesses For the Nuclear Regulatory Commission. Portland Square, Portland, Maine 04101, in numerous areas of the licensee’s Samuel J. Collins, and Norwest Bank Minnesota, N.A., Norwest Center, Sixth and Marquette, program, including the areas of Director, Office of Nuclear Reactor procedural compliance, work control, Regulation. Minneapolis, Minnesota 55479–1026. and tagging control, and has taken [FR Doc. 97–11724 Filed 5–5–97; 8:45 am] FOR FURTHER INFORMATION CONTACT: extensive regulatory action. In BILLING CODE 7590±01±P Joseph B. McDonald, Jr., Senior particular, as a result of action taken by Counsel, at (202) 942–0533, or Mary Kay the NRC, all three units at Millstone will Frech, Branch Chief, at (202) 942–0564 remain shut down until the Commission (Division of Investment Management, approves restart of operations. Prior to SECURITIES AND EXCHANGE Office of Investment Company such approval, the licensee is required COMMISSION Regulation). to submit a response to the NRC’s 10 SUPPLEMENTARY INFORMATION: The CFR 50.54(f) letter dated April 16, 1997, [Release No. IC±22646; 812±10594] following is a summary of the identifying what actions the licensee Core Trust (Delaware), et al.; Notice of application. The complete application has taken to ensure that in the future it Application may be obtained for a fee at the SEC’s would operate that facility according to Public Reference Branch. the terms and conditions of the plant’s April 30, 1997. Applicants’ Representations operating license, the Commission’s AGENCY: Securities and Exchange regulations, and the plant’s UFSAR. Commission (‘‘SEC’’). 1. Core Trust, organized as a Delaware This response will encompass the areas business trust, is registered under the ACTION: Notice of application for identified by the Petitioner and will be Act as an open-end management exemption under the Investment thoroughly reviewed by the NRC. In investment company. Core Trust does Company Act of 1940 (the ‘‘Act’’). addition, the NRC is currently reviewing not offer the securities of its various 24674 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices series to the public; its securities are in Acquiror Portfolio. Schroder also separate series of Core Trust that offered only in private placement serves as subadviser to International conduct business in substantially the transactions to institutional investors. Fund. Norwest and Schroder will same manner.2 Five series of Core Trust, including provide their services to International 9. The Core Board concluded that the International Portfolio (the ‘‘Target Fund only in the event that the Fund’s Reorganization is in the best interests of Portfolio’’), operate as master funds assets are withdrawn from Target the interestholders of Target Portfolio pursuant to master-feeder arrangements Portfolio and invested directly in and Acquiror Portfolio and will not under section 12(d)(1)(E) of the Act. portfolio securities. result in the dilution of the interests of Three other series of Core Trust, 5. Norwest holds approximately 23 any of the existing interestholders of including International Portfolio II (the percent of the outstanding shares of Target Portfolio and Acquiror Portfolio. ‘‘Acquiror Portfolio’’) and Index Growth Equity Fund on behalf of the In approving the Reorganization, the Portfolio, are portfolios in which two or Norwest Corporation Savings Core Board noted that Target Portfolio more investment companies invest in a Investment Plan, a defined contribution and Acquiror Portfolio have the same fund-of-funds structure established plan (the ‘‘Norwest Defined investment objective, investment pursuant to an exemptive order issued Contribution Plan’’), which represents policies, associated risk profiles, service by the SEC.1 Schroder Capital an indirect interest in approximately 11 providers, advisory fees and expense Management International Inc. percent of the outstanding voting ratios. The Core Board reviewed the (‘‘Schroder’’) serves as investment securities of Acquiror Portfolio and annualized expense ratios of Target adviser to both Target Portfolio and more than 10 percent of the outstanding Portfolio and Acquiror Portfolio and Acquiror Portfolio. Norwest, a voting securities of Index Portfolio. noted that the expense ratio of the pro subsidiary of Norwest Corporation, Norwest votes those shares of Growth forma combined portfolio following the serves as investment adviser to Index Equity Fund held on behalf of the Reorganization would be likely to be Portfolio. Target Portfolio and Acquiror Norwest Defined Contribution Plan in less than the expense ratio of Target proportion to the votes cast by other Portfolio have the same investment Portfolio prior to the Reorganization. In shareholders of the Growth Equity objectives and policies. addition, The Core Board noted 2. The Trust, organized as a Delaware Fund. Norwest’s interests in Target Portfolio business trust, is registered under the 6. Norwest owns approximately 68 and Acquiror Portfolio described above. Act as an open-end management percent of the total outstanding shares The Core Board approved the investment company. The Trust offers of the International Fund and more than Reorganization based on: (a) The securities to the public in various series, 25 percent of the total outstanding similarities of Target Portfolio and including Conservative Balanced Fund, shares of Index Fund on behalf of the Acquiror Portfolio; (b) the benefits that Moderate Balanced Fund, Growth Norwest Corporation Pension Plan, the would accrue to the shareholders of Balanced Fund, Diversified Equity Fund Retirement Income Plan of the United Target Portfolio and Acquiror Portfolio and Growth Equity Fund (the ‘‘Blended Banks of Colorado, Inc. and the First after the Reorganization; (c) the tax-free Funds’’), Index Fund, and International Minnesota Employer’s Pension Plan nature of the Reorganization; (d) the fund. In accordance with the 1996 (collectively, the ‘‘Norwest Pension terms and conditions of the Order, each Blended Fund operates in a Plans’’). The Norwest Pension Plans are Reorganization and the nondilutive fund-of-funds structure and invests that defined benefit plans sponsored by effect of the Reorganization; and (e) the portion of its assets that are allocated to Norwest. Norwest also holds more than costs of the Reorganization. an international style in Acquiror 10 percent of the outstanding voting Portfolio and invests that portion of its securities of Index Fund on behalf of the 10. The Plan of Reorganization and assets that are allocated to an index Norwest Defined Contribution Plan. Liquidation (the ‘‘Reorganization style in Index Portfolio. The Blended Norwest votes those shares of Index Agreement’’) provides that Target funds are the only interestholders of Fund held on behalf of the Norwest Portfolio will transfer all of its assets Acquiror Portfolio and Index Portfolio. Defined Contribution Plan in proportion and liabilities to Acquiror Portfolio in 3. International Fund operates in a to the votes cast by other shareholders exchange for an interest in Acquiror master-feeder structure and invests all of the Index Fund. Portfolio (the ‘‘Interest’’). The Interest its investable assets in Target Portfolio. 7. As a result of its interests in Growth will be equal in value to the net value Other than a nominal interest held by Equity Fund and International Fund, of Target Portfolio’s assets computed as Forum Financial Services, Inc., the Norwest indirectly holds with power to of 4:00 p.m. on the date of the closing administrator and placement agent of vote more than 5 percent of the (as defined in the Reorganization Core Trust and manager and distributor outstanding voting securities of Agreement). Target Portfolio will of the Trust, all of the outstanding Acquiror Portfolio in a fiduciary or constructively distribute the Interest to interests in Target Portfolio are owned representative capacity and owns more its interestholders of record pro rata in by International Fund. than 25 percent of the outstanding exchange for their interests in Target 4. Norwest serves as investment voting securities of Target Portfolio. In Portfolio. The distribution will be adviser to each series of the Trust. addition, Norwest indirectly holds with accomplished by opening a capital Schroder serves as subadviser to each power to vote more than 5 percent of the account on Acquiror Portfolio’s books in Blended Fund with respect to that outstanding voting securities of Index each interestholder’s name, crediting portion of a Blended Fund’s assets, if Portfolio and owns more than 25 thereto the interestholder’s any, that are allocated to an percent of the outstanding voting proportionate share of the Interest, and international style but are not invested securities of Index Fund. thereafter treating the interestholders for 8. On March 13, 1997, the Board of 1 See Norwest Bank Minnesota, N.A., et al., Trustees of Core Trust (‘‘Core Board’’) 2 Prior to being superseded by the 1996 Order, the Investment Company Act Release Nos. 20640 (Oct. unanimously approved the combination Original Order prohibited a fund operating as a 19, 1994) (notice) and 20697 (Nov. 10, 1994) (order) of Target Portfolio and Acquiror feeder fund in a master-feeder structure (such as (‘‘Original Order’’), superseded by Norwest Bank International Fund) from investing its assets in a Minnesota, N.A., et al., Investment Company Act Portfolio (the ‘‘Reorganization’’) to series of Core Trust in which any assets of a Release Nos. 22056 (July 9, 1996) (notice) and eliminate the duplicative functions and Blended Fund were invested. The 1996 Order now 22120 (Aug. 6, 1996) (order) (the ‘‘1996 Order’’). costs associated with operating two permits the combination of those assets. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24675 all purposes as interestholders of record will be borne pro rata by Index Portfolio Norwest controls or holds with power to in Acquiror Portfolio. and Index Fund on the basis of their vote more than 25% of the outstanding 11. The Board of Trustees of the Trust respective net assets. voting securities of Index Fund and (‘‘Trust Board’’) and the Core Board 15. Applicants state that no material more than 5% of the outstanding shares unanimously approved, on January 25, change that would affect the application of Index Portfolio. 1997 and March 13, 1997, respectively, will be made to either the 6. Section 17(b) of the Act provides the investment of all of the investable Reorganization Agreement or the that the SEC may exempt a transaction assets of Index Fund in Index Portfolio Transfer Agreement without prior SEC from section 17(a) if evidence (the ‘‘Transfer’’) in order to obtain approval. establishes that the terms of the economies of scale and eliminate Applicants’ Legal Analysis proposed transaction, including the duplicative functions and costs consideration to be paid, are reasonable associated with operating two separate 1. Section 17(a) of the Act, in relevant and fair and do not involve funds that conduct business in the same part, prohibits an affiliated person of a overreaching on the part of any person manner. registered investment company, or any concerned, and that the proposed 12. Each Board concluded that the affiliated person of such a person, acting transaction is consistent with the policy Transfer is in the best interests of the as principal, from selling to or of the registered investment company shareholders of Index Portfolio and purchasing from such registered concerned and with the general Index Fund and will not result in the company, or any company controlled by purposes of the Act. dilution of the interests of any of the such registered company, any security 7. Applicants submit that the terms of existing shareholders of Index Portfolio or other property. the Reorganization satisfy the standards 2. Section 2(a)(3) of the Act defines an or Index Fund. Portfolio and Index set forth in section 17(b) of the Act in ‘‘affiliated person’’ of another person to Fund have the same investment that they are fair and reasonable and do include any person directly or indirectly objective, investment policies, not involve overreaching on the part of owning, controlling, or holding with associated risk profiles, service any party concerned, and that the procedures, advisory fees and expense power to vote, 5% or more of the outstanding voting securities of such Reorganization is consistent with both ratios. Each Board reviewed the the policies of Target Portfolio and annualized expense ratios of Index other person, and any person directly or indirectly controlling, controlled by, or Acquiring Portfolio. In addition, Portfolio and Index fund and the applicants submit that the terms of the estimated expense ratios of each of under common control with such other person, and if such other person is an Transfer satisfy the standards set forth Index Portfolio and Index Fund in section 17(b) in that they are fair and following the Transfer and noted that investment company, any investment adviser thereof. Section 2(a)(9) of the reasonable and do not involve the estimated expense ratios would be overreaching on the part of any party the same as the expense ratios of each Act defines ‘‘control’’ to mean the concerned, and that the Transfer is of Index Portfolio and Index Fund prior power to exercise a controlling consistent with both the policies of to the Transfer. In addition, each Board influence over the management or Index Fund and Index Portfolio. noted Norwest’s interests in Index Fund policies of a company, unless such and Index Portfolio. Each Board power is solely the result of an official For the Commission, by the Division of approved the Transfer based on: (a) The position with such company. Under Investment Management, under delegated similarities of Index Portfolio and Index section 2(a)(9), a person who owns 25% authority. Fund; (b) the benefits that would accrue or more of the voting securities of a Margaret H. McFarland, to the interestholders of Index Portfolio company is presumed to control such Deputy Secretary. and Index Fund after the Transfer; (c) company. [FR Doc. 97–11739 Filed 5–5–97; 8:45 am] the tax-free nature of the Transfer; (d) 3. Rule 17a–8 under the Act exempts BILLING CODE 8010±01±M the terms and conditions of the Transfer from the prohibitions of section 17(a) and the nondilutive effect of the mergers, consolidations, or purchases or Transfer; and (e) the costs of the sales of substantially all of the assets of SECURITIES AND EXCHANGE Transfer. registered investment companies that COMMISSION 13. The Plan of Division and are affiliated persons solely by reason of [Investment Company Act Release No. Liquidation (the ‘‘Transfer Agreement’’) having a common investment adviser, 22648; 812±10548] provides that Index Fund will transfer common directors, and/or common all of its assets to Index Portfolio in officers, provided that certain Enterprise Group of Funds, Inc., et al.; exchange for an interest in Index conditions set forth in the rule are Notice of Application Portfolio (the ‘‘Transfer Interest’’). The satisfied. Transfer Interest will be equal in value 4. Applicants may not rely on rule April 30, 1997. to the net value of Index Fund’s assets 17a–8 in connection with the AGENCY: Securities and Exchange computed as of 4:00 p.m. on May 30, Reorganization because Target Portfolio Commission (‘‘SEC’’). 1997. The value of the assets transferred and Acquiror Portfolio may be deemed ACTION: Notice of application for will be determined in accordance with to be affiliated in ways other than as exemption under the Investment the standard valuation procedures of permitted in the rule. Norwest controls Company Act of 1940 (‘‘Act’’). Index Portfolio. or holds with power to vote more than 14. The expenses of the 5% of the outstanding shares of APPLICANTS: Enterprise Group of Funds, Reorganization, including all expenses Acquiror Portfolio and more than 25% Inc., (‘‘Enterprise Funds’’), on behalf of related to obtaining exemptive relief of the outstanding voting securities of its series, Enterprise Government from the SEC, will be borne pro rata by Target Portfolio. Securities Portfolio (‘‘Enterprise Target Portfolio and Acquiror Portfolio 5. Applicants may not rely on rule Government’’), Enterprise Money on the basis of their respective net 17a–8 in connection with the Transfer Market Portfolio (‘‘Enterprise Money’’), assets. The expenses of the Transfer, because Index Fund and Index Portfolio Enterprise Growth and Income Portfolio including all expenses related to may be deemed to be affiliated in ways (‘‘Enterprise Growth and Income’’), and obtaining exemptive relief from the SEC, other than as permitted in the rule. Enterprise Small Company Growth 24676 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Portfolio (‘‘Enterprise Small Company Chief, at (202) 942–0564 (Division of (‘‘Retirement Group’’) in connection Growth’’) (the series are collectively, the Investment Management, Office of with the Transaction. ‘‘Enterprise Portfolios’’); Enterprise Investment Company Regulation). 5. Retirement Investors and Capital Management Inc. (‘‘Enterprise SUPPLEMENTARY INFORMATION: The Retirement Group have executed a letter Capital’’); Retirement System Fund Inc. following is a summary of the of intent with Enterprise Capital dated (‘‘Retirement Inc.’’), on behalf of its application. The complete application January 7, 1997 (the ‘‘letter of Intent’’). series, Intermediate Term Fixed Income may be obtained for a fee from the SEC’s The Letter of Intent, among other things, Fund (‘‘Retirement Intermediate’’), Public Reference Branch. contemplates that Retirement Money Market Fund (‘‘Retirement Intermediate be reorganized with Money’’), Core Equity Fund Applicants’ Representations Enterprise Government; Retirement (‘‘Retirement Core’’), and Emerging 1. Enterprise Funds is an open-end Money be reorganized with Enterprise Growth Equity Fund (‘‘Retirement management investment company Money; and Retirement Core and Emerging’’) (the series are collectively, registered under the Act consisting of Retirement Emerging be reorganized the ‘‘Retirement Funds’’); and thirteen investment portfolios, with two newly created portfolios of Retirement System Investors, Inc. including, Enterprise Government, Enterprise Funds, Enterprise Growth (‘‘Retirement Investors’’). Enterprise Money, Enterprise Growth and Income and Enterprise Small Company Growth, respectively. RELEVANT ACT SECTIONS: Order requested and Income, and Enterprise Small under section 6(c) for an exemption Company Growth. Applicants state that consummation of each of the Reorganizations from section 15(f)(1)(A). 2. Enterprise Capital is registered under the Investment Advisers Act of contemplated by the Letter of Intent is SUMMARY OF APPLICATION: Applicants 1940 (the ‘‘Advisers Act’’) and, pursuant subject to certain conditions, including request an exemption from section to an investment advisory agreement negotiation and execution of a mutually 15(f)(1)(A) to permit Retirement (‘‘Enterprise Advisory Agreement’’), satisfactory definitive agreement among Investors and its parent corporation to serves as investment adviser for Enterprise Capital, Retirement Investors receive compensation in connection Enterprise Funds. The Enterprise and Retirement Group relating to the with Enterprise Funds’ acquisition of Advisory Agreement authorizes Transaction (the ‘‘Transaction the net assets of the Retirement Funds, Enterprise Capital to enter into Agreement’’) and receipt of various without having to reconstitute subadvisory agreements with various required approvals, including approval Enterprise Funds’ board of directors. investment advisers as portfolio of the boards of directors of the mutual Without the requested exemption, managers for Enterprise Portfolios. funds involved in the Transaction and Enterprise Funds would have to Applicants state that it is contemplated approval by the shareholders of the reconstitute it boards of directors to that Retirement Investors will serve as Retirement Funds. meet the 75 percent non-interested portfolio manager for Enterprise Growth 6. Retirement Investors, Retirement director requirement of section and Income. Group, and Enterprise Capital have 15(f)(1)(A) in order to comply with the 3. Retirement Inc. is an open-end agreed to bear their own expenses in safe harbor provisions of section 15(f). management investment company connection with the negotiation and FILING DATES: The application was filed registered under the Act consisting of execution of the Transaction Agreement. on March 7, 1997. seven funds, including Retirement In addition, Retirement Investors and HEARING OR NOTIFICATION OF HEARING: An Intermediate, Retirement Money, Retirement Group have agreed to bear order granting the application will be Retirement Core, and Retirement any expenses incurred by Retirement issued unless the SEC orders a hearing. Emerging. Retirement Investors is Inc. in connection with the Transaction. Interested persons may request a registered under the Advisers Act and Applicants’ Legal Analysis hearing by writing the SEC’s Secretary serves as investment adviser for the 1. Section 15(f) of the Act is a safe and serving applicants with a copy of Retirement Funds. harbor that permits an investment the request, personally or by mail. 4. Applicants request an order under adviser to a registered investment Hearing requests should be received by section 6(c) of the Act, exempting company (or an affiliated person of the the SEC by 5:30 p.m. on May 27, 1997 Enterprise Funds from the provisions of investment adviser) to receive ‘‘any and should be accompanied by proof of section 15(f)(1)(A) of the Act with amount or benefit’’ in connection with service on applicants, in the form of an respect to the proposed transaction (the a sale of securities of, or sale of any affidavit or, for lawyers, a certificate of ‘‘Transaction’’). The Transaction other interest in, such investment service. Hearing requests should state contemplates, among other things, adviser (which results in an assignment the nature of the writer’s interest, the reorganizations whereby the net assets of an advisory contract with such reason for the request, and the issues of each of the Retirement Funds will be company) is certain conditions are met. contested. Persons may request acquired by the respective Enterprise Section 15(f)(1)(A) requires that, for a notification of a hearing by writing to Portfolio, in exchange for an equivalent period of three years after such sale, at the SEC’s Secretary. 1 value of Class Y Shares of the least 75 percent of the board of an ADDRESSES: Secretary, SEC, 450 Fifth Enterprise Portfolio, which shares will investment company (or its successor, Street, NW., Washington, DC 20549. be distributed to the shareholders of by reorganization or otherwise) may not Applicants: Enterprise Group of Funds, each Retirement Fund in liquidation be ‘‘interested persons’’ with respect to Inc. and Enterprise Capital Management thereof (the ‘‘Reorganizations’’). either the predecessor or successor Inc., 3343 Peachtree Road, NE., Suite Applicants state that Enterprise Capital adviser of the investment company. 450, Atlanta, Georgia 30326; Retirement intends to compensate Retirement 2. Section 6(c) of the Act permits the System Fund Inc. and Retirement Investors and its parent corporation, SEC to exempt any person or transaction System Investors Inc., 317 Madison Retirement Systems Group, Inc. from any provision of the Act, or any Avenue, New York, New York, 10017. rule or regulation thereunder, if the 1 FOR FURTHER INFORMATION CONTACT: Applicants state that Class Y shares are not subject to any initial or contingent deferred sales exemption is necessary of appropriate in Mary T. Geffroy, Staff Attorney, at (202) charge, or any distribution or service fees pursuant the public interest and consistent with 942–0553, or Mary Kay Frech, Branch to rule 12b–1 under the Act. the protection of investors and the Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24677 purposes fairly intended by the policy Number Number SUMMARY OF APPLICATION: Applicants 1 and provisions of the Act. Section Investment of inter- of disin- Total request an order to amend a prior order 15(f)(3)(B) provides that if the company ested di- terested (the ‘‘1982 Order’’), as previously rectors directors assignment of an investment advisory amended by a subsequent order 2 (the contract results from the merger of, or Enterprise ‘‘1991 Order’’ and, together with the sale of substantially all the assets by, a Funds ...... 3 4 7 1982 Order, the ‘‘Order’’), to permit registered investment company with or Retirement Merrill Lynch & Co., Inc. and its to another registered investment Inc ...... 3 4 7 affiliates (‘‘ML & Co.’’) to acquire company with assets substantially limited partnership interests in the 1997 greater in amount, such discrepancy in In order to comply with section Partnership and in any similar size shall be considered by the SEC in 15(f)(1)(A) following consummation of partnership commencing operations in determining whether, or to what extent, the transactions, Enterprise Funds the future (collectively, the to grant exemptive relief pursuant to would have to add five Disinterested ‘‘Partnerships’’). Each Partnership will section 6(c) from section 15(f)(1)(A). Directors or reduce the number of be an employees’ securities company within the meaning of section 2(a)(13) of 3. Applicants state that the net assets Interested Directors from three to one. If Enterprise Funds were to add five the Act. of Enterprise Government and FILING DATES: The application was filed Disinterested Directors, a vote of Enterprise Money ($79,375,576 and on December 3, 1996, and amended on shareholders would be required $60,417,051 respectively, as of April 30, 1997. December 31, 1996) are substantially pursuant to section 16(a) of the Act, HEARING OR NOTIFICATION OF HEARING: An greater than the net assets of Retirement which requires that at least two-thirds of order granting the application will be Intermediate and Retirement Money a fund’s trustees be elected by shareholders. Enterprise Funds would issued unless the SEC orders a hearing. ($6,487,280 and $1,670,085 Interested persons may request a respectively, as of December 31, 1996), not otherwise be required to hold a shareholders meeting under Maryland hearing by writing to the SEC’s individually. Applicants also state that Secretary and serving applicants with a the net assets of Enterprise Funds law. Applicants submit that reconstitution of the board of Enterprise copy of the request, personally or by ($952,100,717, as of December 31, 1996) mail. Hearing requests should be as a whole are far greater than the net Funds would serve no public interest, and in fact, would be contrary to the received by the SEC by 5:30 p.m. on assets of the four Retirement Funds May 27, 1997, and should be ($27,242,022, as of December 31, 1996), interests of shareholders of Enterprise Funds. accompanied by proof of service on even though the two newly created applicants in the form of an affidavit or, portfolios will initially have no assets 6. For the reasons stated above, for lawyers, a certificate of service. other than what is received from the applicants submit that the requested Hearing requests should state the nature Retirement Funds, making the relief is necessary and appropriate in of the writer’s interest, the reason for the Retirement Funds’ assets less than 3% the public interest and consistent with request, and the issues contested. of Enterprise Funds’ assets. the protection of investors and the Persons who wish to be notified of a purposes fairly intended by the policy 4. Applicants submit that it is hearing may request notification by and provisions of the Act. appropriate for the assets of Enterprise writing to the SEC’s Secretary. Funds as a whole, as opposed to the For the SEC, by the Division of Investment ADDRESSES: Secretary, SEC, 450 5th individual Enterprise Portfolios, to be Management, under delegated authority. Street, NW, Washington, DC 20549. taken into account when considering Margaret H. McFarland, Applicants, South Tower, World the ‘‘substantially greater’’ test of Deputy Secretary. Financial Center, 225 Liberty Street, section 15(f)(3)(B). Applicants contend [FR Doc. 97–11741 Filed 5–5–97; 8:45 am] New York, NY 10080–6123. that any other conclusion would be BILLING CODE 8010±01±M FOR FURTHER INFORMATION CONTACT: inconsistent with the literal language of Suzanne Krudys, Senior Attorney, at the Act. Applicants state that section (202) 942–0641, or Mary Kay Frech, 15(f)(3)(B) specifically refers to the sale SECURITIES AND EXCHANGE Branch Chief, (202) 942–0564 (Office of of assets of one investment company to COMMISSION Investment Company Regulation, another ‘‘investment company with Division of Investment Management). assets substantially greater in amount.’’ [Rel. No. IC±22647; 813±162] SUPPLEMENTARY INFORMATION: The Enterprise Funds is the investment following is a summary of the company involved in each Merrill Lynch KECALP L.P. 1997 and application. The complete application Reorganization and, in fact, the board of KECALP Inc.; Notice of Application may be obtained for a fee at the SEC’s directors of Enterprise Funds must Public Reference Branch. authorize the Reorganization on behalf April 30, 1997. Applicants’ Representations of the Enterprise Portfolios. AGENCY: Securities and Exchange 5. The boards of directors of Commission (‘‘SEC’’). 1. The 1997 Partnership is a Delaware limited partnership registered under the Retirement Inc. and Enterprise Funds ACTION: Notice of application for Act as a non-diversified, closed-end consist of the following, including the exemption under the Investment management investment company. The respective number of directors who are Company Act of 1940 (the ‘‘Act’’). ‘‘interested persons,’’ of Retirement 1 Merrill Lynch KECALP Ventures Limited Investors, Retirement Group, or APPLICANTS: Merrill Lynch KECALP L.P. Partnership 1982, KECALP Inc., Investment Enterprise Capital, as the case may be, 1997 (the ‘‘1997 Partnership’’) and Company Act Release Nos. 12290 (Mar. 11, 1982) (notice) and 12363 (Apr. 8, 1982) (order). within the meaning of section 2(a)(19) of KECALP Inc. (the ‘‘General Partner’’). the Act (‘‘Interested Directors’’), and 2 Merrill Lynch KECALP Growth Investments RELEVANT ACT SECTION: Order requested Limited Partnership 1983, et. al., Investment who are not Interested Directors Company Act Release Nos. 18081 (Apr. 18, 1991) (‘‘Disinterested Directors’’): under section 6(b). (notice) and 18137 (May 7, 1991) (order). 24678 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

1997 Partnership is an ‘‘employees for which the Partnership option was Partnerships as contemplated for securities company’’ within the selected. ML & Co. would acquire such employees’ securities companies by the meaning of section 2(a)(13) of the Act, Units at the closing of the offering of a Act. and will operate pursuant to the terms Partnership for a purchase price per 4. ML & Co. has developed the of the Order. In accordance with the Unit equal to the price paid by all other KECALP program as a series of terms of the Order, limited partnership limited partners participating in the investment vehicles to generate and interests in the 1997 Partnership Partnership’s offering. Participants in maintain goodwill by offering its (‘‘Units’’) will be offered to certain the plan would not acquire any directors, officers and key employees employees of ML & Co. and its ownership interest in the Units the opportunity to participate in subsidiaries and to non-employee purchased by ML & Co. The acquisition investments that might otherwise by directors of ML & Co. and, to the extent of Units by ML & Co. would be made unavailable to them. Applicants submit the relief requested herein is granted, to solely to mirror the deferred that ML & Co.’s participation as a ML & Co. compensation elections of its employees limited partner in a Partnership will 2. The General Partner is an indirect, who have elected to receive a return only serve to further benefit the other wholly-owned subsidiary of ML & Co. determined by reference to the limited partners. ML & Co.’s investment The General Partner is registered as an performance of a Partnership, and not may significantly increase a investment adviser under the for ML & Co.’s own proprietary Partnership’s assets and thus provide Investment Advisers Act of 1940. The investment. ML & Co. will agree to vote economies for such Partnerships’ General Partner was formed to manage its interests in a Partnership in identical expenses. In order to ensure that ML & each of the partnerships operating in proportions as the other limited partners Co.’s participation does not impair the accordance with the terms of the Order in respect of any matter submitted for a influence that limited partners of a (together with the Partnerships, the vote of limited partners. Partnership would otherwise enjoy, ML ‘‘KECALP Partnerships’’) and has the & Co. will vote its interest in a authority to make all decisions Applicants’ Legal Analysis Partnership in identical proportions as regarding the acquisition, management, 1. Applicants request an exemption the other limited partners in respect of and disposition of the KECALP under section 6(b) of the Act to amend any matter submitted for a vote of Partnerships’ investments. All the Order to permit ML & Co. to acquire limited partners. In addition, the investments and dispositions of Units in the Partnerships in connection acquisition by ML & Co. of an interest investments by the KECALP with certain deferred compensation in the Partnership will be disclosed to Partnerships are approved by the board programs offered by Merrill Lynch to prospective limited partners in the of directors of the General Partner. select highly compensated employees prospectuses relating to the 3. The Order limits the classes of upon the terms set forth in the Partnerships’ offerings. potential investors eligible for applications. 5. Applicants believe that the terms of participation in the KECALP 2. Section 2(a)(13) of the Act defines the relief requested are consistent with Partnerships to directors of ML & Co. ‘‘employees’ securities company’’ as any the protection of investors and with the and key officers and other employees of investment company or similar issuer general purposes of the Act. Except as ML & Co. and its subsidiaries. Key all of the outstanding securities of amended herein, applicants will remain officers and other employees must have which (other than short-term paper) are subject to the conditions of all prior earned a gross income from ML & Co. beneficially owned (a) By the employees orders of the SEC applicable to during the most recent calendar year or persons on retainer of a single applicants. which exceeds the minimum amount employer or of two or more employers specified by the General Partner for each each of which is an affiliated company Applicants’ Conditions Partnership. The 1991 Order amended of the other, (b) by former employees of Applicants agree that any order of the the 1982 Order to include conditions such employer or employers, (c) by SEC granting the requested relief will be relating to the eligibility requirements of members of the immediate family of subject to the following additional investors in any KECALP Partnership. such employees, persons on retainer, or conditions: 4. Applicants request an amendment former employees, (d) by any two or 1. In connection with Section 17(d) to the Order to permit Units to be more of the foregoing classes of persons, transactions, the General Partner and acquired by ML & Co. in connection or (e) by such employer or employers any general partner of any subsequent with certain deferred compensation together with any one or more of the KECALP Partnerships will adopt, and plans offered by ML & Co. to select foregoing classes of persons. Section periodically review and update, employees satisfying significant 6(b) of the Act provides that the SEC procedures designed to ensure that eligibility requirements that will, in all may, upon application, exempt an reasonable inquiry is made, prior to the cases, exceed the standards for employees’ securities company from consummation of any such transaction, participation directly in the KECALP provisions of the Act if, and to the with respect to the possible involvement program. Pursuant to the deferred extent that, the exemption is consistent in the transaction of any affiliated compensation plans, eligible employees with the protection of investors. person of the KECALP Partnership, or of ML & Co. and its subsidiaries would Applicants are not seeking relief from any affiliated person of such a person. be permitted to defer compensation any additional provisions of the Act. 2. Each KECALP Partnership and its earned during a particular year and to 3. Applicants believe the requested general partner will maintain and elect to receive a return on such relief is consistent with the protection of preserve, for the life of the Partnership deferred compensation determined by investors and with the general purposes and at least two years thereafter, such reference to the performance of one of of the Act. Applicants state that the accounts, books, and other documents several investment options, including proposed additional investor is within as constitute the record forming the the performance of a Partnership. ML & the class of investors contemplated by basis for the audited financial Co. would acquire Units having a section 2(a)(13). Applicants believe that statements that are to be provided to the purchase price approximately ML & Co. has the community of interest limited partners, and each annual report equivalent to the aggregate amount of with the existing classes of eligible of the KECALP Partnership required to compensation deferred under its plan participants for the KECALP be sent to the limited partners, and Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24679 agree that all such records will be ACTION: Notice of application for application. The complete application subject to examination by the exemption under the Investment may be obtained for a fee from the SEC’s Commission and its staff. Company Act of 1940 (‘‘Act’’). Public Reference Branch. 3. The General Partner and any APPLICANTS: New USA Mutual Funds, Applicant’s Representations general partner of any subsequent Inc. (‘‘New USA Co.’’) on behalf of its KECALP Partnership will send to each 1. New USA Co. is an open-end series, New USA Growth Fund; New management investment company limited partner of such Partnership who USA Research & Management Co. had an interest in any capital account of registered under the Act consisting of (‘‘NURM’’); O’Neil Data Systems, Inc. one series, the New USA Growth Fund. such Partnership, at any time during the (‘‘ODS’’); and MFS Series Trust II (‘‘MFS fiscal year then ended, Partnership NURM is the investment manager of the Series II’’). on behalf of its series, MFS New USA Growth Fund pursuant to an financial statements audited by the Emerging Growth Fund (‘‘MFS Growth KECALP Partnership’s independent investment management agreement Fund’’). between New USA Co. and NURM (the accountants. At the end of each fiscal RELEVANT ACT SECTIONS: Order requested year, the General Partner and the ‘‘Investment Advisory Agreement’’). under section 6(c) for an exemption NURM’s sole stockholder and parent general partner of each subsequent from section 15(f)(1)(A). KECALP partnership will make a company is ODS. SUMMARY OF APPLICATION: Applicants valuation or have a valuation made of 2. MFS Series II is an open-end request an exemption from section management investment company all of the assets of such Partnership as 15(f)(1)(A) to permit ODS to sell its of such fiscal year end in a manner registered under the Act consisting of interest in NURM, the investment four separate series (the ‘‘MFS Series II consistent with customary practice with manager of the New USA Growth Fund, respect to the valuation of assets of the Funds’’), including the MFS Growth a series offered by New USA Co., to Fund. The MFS Growth Fund is part of kind held by the KECALP Partnership. MFS. Without the requested exemption, In addition within 90 days after the end the MFS family of funds, which consists MFS Series II would have to of approximately 50 funds (collectively, of each fiscal year of each KECALP reconstitute its boards of directors to Partnership or as soon as practicable the ‘‘MFS Funds’’). Massachusetts meet the 75 percent non-interested Financial Services Company (‘‘MFS’’) is thereafter, the general partner of such director requirement of section KECALP Partnership will send a report the investment adviser to the MFS 15(f)(1)(A) in order to comply with the Growth Fund. to each person who was a partner at any safe harbor provisions of section 15(f). time during the fiscal year, then ended, 3. MFS Series II proposes to acquire FILING DATES: The application was filed setting forth such tax information as the assets and liabilities of the New on March 11, 1997. shall be necessary for the preparation by USA Growth Fund in exchange for the partner of his or its Federal and state HEARING OR NOTIFICATION OF HEARING: An shares of equal aggregate value of the income tax returns and a report of order granting the application will be MFS Growth Fund. In connection investment activities of such issued unless the SEC orders a hearing. therewith, MFS will acquire all of the Partnership during the year. Interested persons may request a outstanding shares of the stock of hearing by writing to the SEC’s NURM from ODS. The foregoing 4. If purchases or sales are made by Secretary and serving applicants with a transactions are referred to as the a KECALP Partnership from or to an copy of the request, personally or by ‘‘Transaction.’’ entity affiliated with the KECALP mail. Hearing requests should be 4. On March 6, 1997, ODS and MFS Partnership by reason of a 5% or more received by the SEC by 5:30 p.m. on entered into a Stock Purchase investment in such entity by any May 27, 1997 and should be Agreement (the ‘‘Purchase Agreement’’) director, officer or employee of ML & accompanied by proof of service on pursuant to which, and subject to Co. and its subsidiaries, by any director, applicants, in the form of an affidavit or, certain conditions, MFS agreed to officer of the general partner of that for lawyers, a certificate of service. purchase all of the outstanding capital KACALP Partnership, such individual Hearing requests should state the nature stock of NURM. The consummation of will not participate in that general of the writer’s interest, the reason for the the Purchase Agreement is subject to, partner’s determination of whether or request, and the issues contested. among other things, the approval of the not to effect such purchase or sale. Persons may request notification of a shareholders of the New USA Growth For the SEC, by the Division of Investment hearing by writing to the SEC’s Fund of a plan of reorganization by and Management, under delegated authority. Secretary. between New USA Co., on behalf of the Margaret H. McFarland, ADDRESSES: Secretary, SEC, 450 Fifth New USA Growth Fund, and MFS Deputy Secretary. Street, NW., Washington, DC 20549. Series II, on behalf of the MFS Growth [FR Doc. 97–11740 Filed 5–5–97; 8:45 am] Applicants: New USA Mutual Funds, Fund (the ‘‘Reorganization Agreement’’). BILLING CODE 8010±01±M Inc., New USA Research & Management 5. The MFS Series II board of trustees Co., and O’Neil Data Systems, Inc., approved the Reorganization Agreement 12655 Beatrice Street, Los Angeles, on December 11, 1996, and the New SECURITIES AND EXCHANGE California 90066; and MFS Series Trust USA Co. board of directors unanimously COMMISSION II c/o MFS Emerging Growth Fund, 500 approved it on March 4, 1997. The Boylston Street, Boston, Massachusetts Reorganization Agreement provides for: [Investment Company Act Release No. 02116. (a) The acquisition by the MFS Growth 22649; 812±10564] FOR FURTHER INFORMATION CONTACT: Fund of substantially all of the assets Mary T. Geffroy, Staff Attorney, at (202) and liabilities of the New USA Growth New USA Mutual Funds, Inc., et al.; 942–0553, or Mary Kay Frech, Branch Fund in exchange for shares of the MFS Notice of Application Chief, at (202) 942–0564 (Division of Growth Fund; (b) the distribution of Investment Management, Office of these MFS Growth Fund shares to the April 30, 1997. Investment Company Regulation). shareholders of the New USA Growth AGENCY: Securities and Exchange SUPPLEMENTARY INFORMATION: The Fund in liquidation of the New USA Commission (‘‘SEC’’). following is a summary of the Growth Fund; and (c) New USA Co.’s 24680 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices liquidation and termination under state greater’’ test set forth in section SMALL BUSINESS ADMINISTRATION law. 15(f)(3)(B). Applicants contend that any [License No. 04/04±0268] 6. Applicants request an exemption other conclusion would be inconsistent under section 6(c) of the Act from the with the literal language of the section, Centura SBIC, Inc.; Issuance of a Small provisions of section 15(f)(1)(A) to which refers to the sale of assets of one Business Investment Company permit ODS to receive consideration in investment company to another License compliance with section 15(f) in ‘‘investment company with assets connection with the Transaction, substantially greater in amount.’’ On March 21, 1996, an application notwithstanding the fact that, after the Applicants state that MFS Series II and was filed by Centura SBIC, Inc., 200 Transaction, the MFS Growth Fund will the New USA Co. are the registered Queens Road, Suite 100, Charlotte, have a board of trustees consisting of North Carolina, with the Small Business investment companies involved in the fewer than 75% disinterested trustees. Administration (SBA) in accordance transaction and, in fact, the board of Applicants’ Legal Analysis with § 107.300 of the Regulations trustees of MFS Series II and the board governing small business investment 1. Section 15(f) of the Act is a safe of director of New USA Co. authorized companies (13 CFR 107.300 1996) for a harbor that permits an investment the transaction on behalf of their license to operate as a small business adviser to a registered investment respective series. investment company. company (or an affiliated person of the 5. The board of directors of New USA Notice is hereby given that, pursuant investment adviser) to realize a profit Co. and the board of trustees of MFS to section 301 (c) of the Small Business upon the sale of its business (which Series II consist of the following Investment Act of 1958, as amended, results in an assignment of an advisory (‘‘Interested Directors’’ and ‘‘Interested after having considered the application contract with such company) if certain Trustees’’ are directors and trustees who and all other pertinent information, SBA conditions are met. Section 15(f)(1)(A) are ‘‘interested persons,’’ within the issued License No. 04/04–0268 on April requires that, for a period of three years 8, 1997 to Centura SBIC, Inc. to operate after such a sale, at least 75 percent of meaning of section 2(a)(19) of the Act, of NURM and MFS, respectively): as a small business investment the board of the investment company (or company. its successor, by reorganization or otherwise) may not be ‘‘interested Number (Catalog of Federal Domestic Assistance Number of disin- persons’’ with respect to either the of inter- Program No. 59.011, Small Business Investment terested Investment Companies) predecessor or successor adviser of the company ested di- direc- Total rectors/ Dated: May 1, 1997. investment company. trustees tors/ 2. Section 6(c) of the Act permits the trustees Don A. Christensen, SEC to exempt any person or transaction Associate Administrator for Investment. New USA Co 1 4 5 from any provision of the Act, or any [FR Doc. 97–11772 Filed 5–5–97; 8:45 am] MFS Series 4 7 11 rule or regulation thereunder, if the BILLING CODE 8025±01±P exemption is necessary or appropriate in the public interest and consistent In order to comply with section with the protection of investors and the 15(f)(1)(A) following consummation of SMALL BUSINESS ADMINISTRATION the transactions, MFS Series II would purposes fairly intended by the policy [Declaration of Disaster #2950, Amdt. #2] and provisions of the Act. Section have to add five Disinterested Trustees 15(f)(3)(B) provides that if the or reduce the number of Interested State of Arkansas assignment of an investment advisory Trustees from four to two. If MFS Series contract results from the merger of, or II were to add five Disinterested In accordance with a notice from the sale of substantially all the assets by, a Trustees, a vote of it shareholders would Federal Emergency Management registered investment company with or be required pursuant to section 16(a) of Agency, dated April 24, 1997, the to another registered investment the Act, which requires that at least two- above-numbered Declaration is hereby company with assets substantially thirds of a fund’s trustees be elected by amended to include the Counties of Cleburne, Dallas, Faulkner, Grant, greater in amount, such discrepancy in shareholders. MFS Series II otherwise Greene, Sharp, Union, and White as a size shall be considered by the SEC in would not be required to hold a determining whether, or to what extent, disaster area due to damages caused by shareholders meeting under severe storms and flooding beginning on to grant exemptive relief pursuant to Massachusetts law or the Act to section 6(c) from section 15(f)(1)(A). April 4, 1997 and continuing through 3. Applicants state that at February consummate the transaction. April 21, 1997. 24, 1997, the New USA Co. had assets 6. For the reasons stated above, In addition, applications for economic of approximately $203 million, as applicants assert that the requested injury loans from small businesses compared to MFS Series II’s assets of relief is necessary and appropriate in located in the following contiguous approximately $2.649 billion; therefore, the public interest, and is consistent counties may be filed until the specified the assets of New USA Co. are with the protection of investors and the date at the previously designated approximately 7.7% of the assets of purposes fairly intended by the policy location: Ashley, Bradley, Clay, MFS Series II. Thus, the transaction and provisions of the Act, as required by Conway, Fulton, Hot Spring, involves an acquisition by an section 6(c). Independence, Izard, Perry, Randolph, investment company with assets Saline, Stone, Van Buren, and Woodruff ‘‘substantially greater’’ than the assets of For the SEC, by the Division of Investment in the State of Arkansas; Union in the Management, under delegated authority. the acquired fund. State of Louisiana; and Oregon in the 4. Applicants assert that it is Margaret H. McFarland, State of Missouri. appropriate for the assets of each Deputy Secretary. The numbers assigned to this disaster investment company, as opposed to [FR Doc. 97–11742 Filed 5–5–97; 8:45 am] for economic injury are 947400 for each series, to be taken into account BILLING CODE 8010±01±M Arkansas, 947600 for Louisiana, and when considering the ‘‘substantially 947700 for Missouri. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24681

All other information remains the ACTION: Notice of petitions for 121.411, 121.413, 121.415, 121.417, same, i.e., the termination date for filing exemption received and of dispositions 121.418, 121.419, 121.424, 121.433, applications for physical damage is June of prior petitions. 121.440, 121.441, 121.589, 121.689 13, 1997, and for loans for economic (relief requested from preceding injury the deadline is January 14, 1998. SUMMARY: Pursuant to FAA’s rulemaking sections until September 30, 1997); provisions governing the application, 121.93, 121.99, 121.101, 121.103, (Catalog of Federal Domestic Assistance processing, and disposition of petitions Program Nos. 59002 and 59008) 121.107, 121.113, 121.119, 121.121, for exemption (14 CFR part 11), this 121.422, 121.533, 121.537, 121.593, Dated: April 29, 1997. notice contains a summary of certain Bernard Kulik, 121.597, 121.601, 121.617, 121.619, petitions seeking relief from specified 121.623, 121.631, 121.637, 121.663, Associate Administrator for Disaster requirements of the Federal Aviation Assistance. 121.683, 121.687, and 121.689 (relief Regulations (14 CFR Chapter I), requested from preceding sections until [FR Doc. 97–11773 Filed 5–5–97; 8:45 am] dispositions of certain petitions March 31, 2005). BILLING CODE 8025±01±P previously received, and corrections. Description of Relief Sought: To The purpose of this notice is to improve permit Cape Smythe Air Service to the public’s awareness of, and SMALL BUSINESS ADMINISTRATION operate its Beechcraft Model 99 aircraft participation in, this aspect of FAA’s with 10 or more seats in scheduled regulatory activities. Neither publication [Declaration of Disaster #2945, Amdt. #1] passenger service under 14 CFR part 135 of this notice nor the inclusion or until it can transition to part 121 omission of information in the summary State of Tennessee operations. is intended to affect the legal status of In accordance with a notice from the any petition or its final disposition. Dispositions of Petitions Federal Emergency Management DATES: Comments on petitions received Docket No.: 26877. Agency, dated April 22, 1997, the must identify the petition docket Petitioner: General Motors Air above-numbered Declaration is hereby number involved and must be received Transport Section. amended to include the County of on or before May 26, 1997. Sections of the FAR Affected: 14 CFR Grundy as a disaster area due to ADDRESSES: Send comments on any 61.55(b). damages caused by severe storms and petition in triplicate to: Federal Description of Relief Sought/ tornadoes on March 28 through March Aviation Administration, Office of the Disposition: To permit petitioner’s 29, 1997. Chief Counsel, Attn: Rule Docket (AGC– pilots serving as second in command to In addition, applications for economic 200), Petition Docket No. ll, 800 comply with company-required injury loans from small businesses Independence Avenue, SW., proficiency reviews in lieu of the located in the following contiguous Washington, DC 20591. requirements of 61.55(b). Grant, April counties may be filed until the specified Comments may also be sent 22, 1997, Exemption No. 5647B. date at the previously designated electronically to the following internet Docket No.: 28179. location: Coffee and Franklin in the address: 9–NPRM–[email protected]. Petitioner: Washington Flight State of Tennessee. Any counties The petition, any comments received, Program. contiguous to the above-named primary and a copy of any final disposition are Sections of the FAR Affected: 14 CFR counties and not listed herein have filed in the assigned regulatory docket 135.251, 135.255, and appendixes I and already been covered under a previous and are available for examination in the J to part 121. declaration for the same occurrence. Rules Docket (AGC–200), Room 915G, Description of Relief Sought/ All other information remains the FAA Headquarters Building (FOB 10A), Disposition: To permit petitioner to use same, i.e., the termination date for filing 800 Independence Avenue, SW., the substance abuse and drug testing applications for physical damage is June Washington, DC 20591; telephone (202) program mandated by Department of 1, 1997, and for loans for economic 267–3132. Transportation Order No. 3910.1C ‘‘The injury the deadline is January 2, 1998. FOR FURTHER INFORMATION CONTACT: Drug and Alcohol-Free Departmental (Catalog of Federal Domestic Assistance Heather Thorson (202) 267–7470 or Workplace’’ for its management, pilot, Program Nos. 59002 and 59008) Agela Anderson (202) 267–9681 Office and maintenance personnel in lieu of Dated: April 29, 1997. of Rulemaking (ARM–1), Federal certain drug and alcohol program Bernard Kulik, Aviation Administration, 800 requirements contained in parts 121 and Associate Administrator for Disaster Independence Avenue, SW., 135. Grant, April 23, 1997, Exemption Assistance. Washington, DC 20591. No. 6074A. [FR Doc. 97–11774 Filed 5–5–97; 8:45 am] This notice is published pursuant to Docket No.: 22690. paragraphs (c), (e), and (g) of § 11.27 of BILLING CODE 8025±01±P Petitioner: Boeing Commercial Part 11 of the Federal Aviation Airplane Group. Regulations (14 CFR part 11). Sections of the FAR Affected: 14 CFR Issued in Washington, DC, on May 1, 1997. 61.57 (c) and (d). DEPARTMENT OF TRANSPORTATION Donald P. Byrne, Description of Relief Sought/ Assistant Chief Counsel for Regulations. Disposition: To allow petitioner and Federal Aviation Administration pilots employed as crewmembers for Petitions for Exemption petitioner to continue to use any type of [Summary Notice No. PE±97±26] Docket No.: 28857. Boeing airplane or a Level B, C, or D simulator to meet the part 61 takeoff and Petitions for Exemption; Summary of Petitioner: Cape Smythe Air Service, landing recency of experience Petitions Received; Dispositions of Inc. requirements. Grant, April 23, 1997, Petitions Issued Sections of the FAR Affected: 14 CFR 119.2, 119.33, 119.35, 119.49, Exemption No. 4779F. AGENCY: Federal Aviation 119.65(a)(1), 121.125, 121.127, 121.133, Docket No.: 23430. Administration (FAA), DOT. 121.163, 121.400, 121.401, 121.403, Petitioner: Douglas Aircraft Company. 24682 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Sections of the FAR Affected: 14 CFR certificated flight crewmembers to 12, 1997, starting at 8:30 a.m. on June 61.57 (c) and (d). install and/or remove medevac 10. (On subsequent days, meeting begins Description of Relief Sought/ stretchers, and to make an appropriate at 8:00 a.m.) The meeting will be held Disposition: To allow petitioner and entry in the aircraft maintenance at RTCA, 1140 Connecticut Avenue, pilots employed as crewmembers by records. Grant, April 16, 1997, NW., Suite 1020, Washington, DC petitioner to continue to use FAA- Exemption No. 6603. 20036. approved flight simulators to meet the Docket No.: 28522. The agenda will be as follows: (1) part 61 takeoff and landing recency of Petitioner: Bell Helicopter Textron, Chairman’s Introductory Remarks; (2) experience requirements. Grant, April Inc. Review and Approval of Meeting 23, 1997, Exemption No. 3754G. Sections of the FAR Affected: 14 CFR Agenda; (3) Review and Approval of Docket No.: 28772. 21.325 (b)(1) and (3). Minutes of Previous Joint Meeting; (4) Petitioner: Robert W. Fortnam. Description of Relief Sought/ Leadership Team Meeting Report; (5) Sections of the FAR Affected: 14 CFR Disposition: To allow petitioner to issue Review Action Items; (6) Review Issue 91.109 (a) and (b)(3). export airworthiness approvals for Class Logs; (7) Issue Team Status; (8) Break Description of Relief Sought/ I, II, and III products that are into Teams; (9) Issue Team Reports; (10) Disposition: To permit petitioner to manufactured and located outside of the New Items for Consensus; (11) Other conduct recurrent flight training in United States. Grant, April 23, 1997, Business; (12) Establish Agenda for Next Beechcraft Bonanza, Baron, and Travel Exemption No. 6607. Meeting; (13) Date and Place of Next Air aircraft, and recurrent flight training Docket No.: 27911. Meeting. in simulated instrument flight in Petitioner: Linder Taxi Aereo S.A. Attendance is open to the interested Beechcraft Baron and Travel Air aircraft Sections of the FAR Affected: 14 CFR public but limited to space availability. when those aircraft are equipped with a 145.47(b). With the approval of the chairman, functioning throwover control wheel in Description of Relief Sought/ members of the public may present oral place of functioning dual controls. Disposition: To permit petitioner to statements at the meeting. Persons Grant, April 21, 1997, Exemption No. substitute the calibration standards of wishing to present statements or obtain 6605. the Instituto Nacional de Metrologia, information should contact the RTCA Docket No.: 28774. Normalizacao e Qualidade Industrial Secretariat, 1140 Connecticut Avenue, Petitioner: Mid East Jet, Inc. (INMETRO), Brazil’s national standards NW., Suite 1020, Washington, DC Sections of the FAR Affected: 14 CFR organization, for the calibration 20036; (202) 833–9339 (phone); (202) 61.55(b)(3)(ii), 61.57 (c)(3) and (d)(2), standards of the US National Institute of 833–9434 (fax); or http:\\www.rtca.org 61.64(e)(3), 61.67 (c)(4) and (d)(2), 71.68 Standards and Technology (NIST), (web site). Members of the public may (d)(2)(ii)(C) and (e)(2)(i)(B), 61.158(d) (1) formerly the National Bureau of present a written statement to the and (2), and 125.297(b). Standards, to test its inspection and test committee at any time. Description of Relief Sought/ equipment. Grant, April 21, 1997, Disposition: To allow petitioner to use Issued in Washington, DC, on April 30, Exemption No. 6606. 1997. FAA-approved simulators to meet Docket No.: 28559. Janice L. Peters, certain flight experience requirements of Petitioner: Collins Commercial 0arts 61 and 125. Grant, April 24, 1997, Designated Official. Avionics. [FR Doc. 97–11762 Filed 5–5–97; 8:45 am] Exemption No. 6609. Sections of the FAR Affected: 14 CFR BILLING CODE 4810±13±M Docket No.: 010NM. 21.327(a). Petitioner: Boeing Commercial Description of Relief Sought/ Airplane Group. Disposition: To allow petitioner to use DEPARTMENT OF TRANSPORTATION Sections of the FAR Affected: 14 CFR a printout from its Order Management 25.809(f). System (OMS) for class II product Federal Aviation Administration Description of Relief Sought/ instead of the Application for Export Disposition: To permit petitioner to use Certificate of airworthiness (Form 8130– RTCA, Inc.; Special Committee 147; inertia reel descent devices and 1), even though Collins does not hold a Minimum Operational Performance harnesses for emergency evacuation at production certificate. Grant, April 17, Standards for Traffic Alert and the crew entry door on the model 757– 1997, Exemption No. 6604. Collision Avoidance Systems Airborne 200PF (Package Freighter) airplane. Equipment Grant, April 17, 1997, Exemption No. [FR Doc. 97–11761 Filed 5–5–97; 8:45 am] 4808A. BILLING CODE 4910±13±M Pursuant to section 10(a)(2) of the Docket No.: 28669. Federal Advisory Committee Act (Pub. Petitioner: Elsinore LP. L. 92–463, 5 U.S.C., Appendix 2), notice Sections of the FAR Affected: 14 CFR DEPARTMENT OF TRANSPORTATION is hereby given for a Special Committee (SC) 147 meeting to be held May 27–30, 25.785(d), 25.813(b), and 25.857(e). Federal Aviation Administration Description of Relief Sought/ 1997, starting at 1 p.m. on May 27 and Disposition: To permit petitioner to RTCA, Inc.; Joint RTCA Special 9 a.m. on May 28–30. The meeting will carry supernumerary occupants on Committee 180 and Eurocae Working be held at RTCA, 1140 Connecticut certain Airbus Model. A300 series Group 46 Meeting; Design Assurance Avenue, NW., Suite 1020, Washington, airplanes with passenger-to-freighter Guidance for Airborne Electronic DC 20036. conversions. Grant, April 17, 1997, Hardware The agenda will be as follows: May Exemption No. 6602. 27, 1–5:30 pm (1) Chairman’s Docket No.: 28672. Pursuant to section 10(a)(2) of the Introductory Remarks; (2) Review of Petitioner: Alaska Airlines, Inc. Federal Advisory Committee Act (Pub. Meeting Agenda; (3) Review and Sections of the FAR Affected: 14 CFR L. 92–463, 5 U.S.C., Appendix 2), notice Approval of Minutes of the Previous 43.3, 43.5, 43.7, and 121.709. is hereby given for a joint RTCA Special Meeting; (4) Report of Working Group Description of Relief Sought/ Committee 180 and EUROCAE Working Activities: a. Operations Working Disposition: To allow petitioner’s Group 46 meeting to be held June 10– Group; b. Requirements Working Group; Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24683

(5) Report on SC–186 Activities; (6) Previous Meeting; (4) Review and efforts and that such a postponement is Report on FAA TCAS Program Status: a. Incorporation of Comments Received in the best interests of both government TCAS I; b. TCAS II; c. Future FAA from TMC and Others into the Draft and industry. It would also be prudent TCAS Activities; (7) Briefing on Closely ATN Avionics MOPS; (5) Other to use the insight gained from the Spaced Parallel Approach Project; (8) Business; (6) Adjourn. commitment to Flight 2000 in the ADS– Discussion of SC–147 Future Status and Attendance is open to the interested B planning process. We apologize for Plans; May 28, 9 am–5:30 pm (9) Review public but limited to space availability. the late postponement, but hope you of Action Items From Last Meeting: a. With the approval of the chairman, will concur with the rationale. We FAA Response to RTCA Letter members of the public may present oral intend to reschedule this SRT later in Regarding TCAS Training Issues; b. statements at the meeting. Persons the year. Briefing on Results of Interference wishing to present statements or obtain FOR FURTHER INFORMATION CONTACT: Limiting Flight Tests; (10) Review and information should contact the RTCA Mr. James McDaniel, Federal Aviation Consideration of Proposed Change to Secretariat, 1140 Connecticut Avenue, Administration, 800 Independence TCAS I MOPS (DO–197A); (11) Review NW., Suite 1020, Washington, DC Ave., SW, Washington, DC 20591, and Consideration of Proposed Change 20036; (202) 833–9339 (phone); (202) telephone (202) 260–9899. 7.0 to TCAS II MOPS (DO–185A); May 833–9434 (fax); or http://www.rtca.org Issued in Washington, DC, on May 2, 1997. 29, 9 am–5 pm Review and (web site). Members of the public may Consideration of Proposed Change 7.0 to present a written statement to the James I. McDaniel, TCAS II MOPS (DO–185A) (Continued); committee at any time. Program Manager, Situational Awareness for Safety. May 30, 9 am–1 pm Review and Issued in Washington, DC, on April 30, Consideration of Proposed Change 7.0 to 1997. [FR Doc. 97–11866 Filed 5–5–97; 8:45 am] TCAS II MOPS (DO–195A) (Continued); Janice L. Peters, BILLING CODE 4810±13±M (12) Committee Approval of DO–185A Designated Official. and Change 1, DO–197A; (13) Other [FR Doc. 97–11764 Filed 5–5–97; 8:45 am] Business; (14) Date and Place of Next DEPARTMENT OF TRANSPORTATION BILLING CODE 4810±13±M Meeting. Surface Transportation Board Attendance is open to the interested public but limited to space availability. DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33394] With the approval of the chairman, members of the public may present oral Federal Aviation Administration Southern Pacific Transportation statements at the meeting. Persons CompanyÐTrackage Rights wishing to present statements or obtain Situational Awareness for Safety (SAS) ExemptionÐUnion Pacific Railroad information should contact the RTCA System Requirements Team (SRT) Company Meeting Secretariat, 1140 Connecticut Avenue, Union Pacific Railroad Company has NW, Suite 1020, Washington, DC 20036; agreed to grant overhead trackage rights (202) 833–9339 (phone); (202) 833–9434 May 2, 1997. AGENCY: to Southern Pacific Transportation (fax); or http://www.rtca.org (web site). Federal Aviation Administration (FAA), DOT. Company (SP) over trackage extending Members of the public may present a from milepost 82.88, near Lathrop, to written statement to the committee at ACTION: Notice of postponement of meeting. milepost 94.50, near Stockton, a any time. distance of 11.62 miles in San Joaquin Issued in Washington, DC, on April 29, SUMMARY: The System Requirements County, CA. 1997. Team (SRT) meeting on the Automatic The earliest the transaction can be Janice L. Peters, Dependent Surveillance-Broadcast consummated is May 5, 1997, the Designated Official. (ADS–B) Avionics Management Plan, effective date of the exemption (7 days [FR Doc. 97–11763 Filed 5–5–97; 8:45 am] scheduled for May 7–8 at the Arlington after the exemption was filed). BILLING CODE 4810±13±M Hilton Hotel in Arlington, Virginia, has The purpose of the trackage rights is been postponed (62 FR 13209, March to facilitate efficient train operations 19, 1997). Flight 2000, a recently during reconstruction of SP’s Roseville DEPARTMENT OF TRANSPORTATION announced program to demonstrate new Yard. technology, has an extensive As a condition to this exemption, any Federal Aviation Administration commitment on the part of the Agency. employees affected by the trackage As Flight 2000 will almost certainly use rights will be protected by the RTCA, Inc.; Special Committee 162; ADS–B technology as a cornerstone, conditions imposed in Norfolk and Aviation Systems Design Guidelines comprehensive planning activities have Western Ry. Co.—Trackage Rights—BN, for Open Systems Interconnection now begun within the Agency. It would 354 I.C.C. 605 (1978), as modified in Pursuant to section 10(a) (2) of the be premature to codify the management Mendocino Coast Ry., Inc.—Lease and Federal Advisory Committee Act (P.L. plan and achieve consensus on ADS–B Operate, 360 I.C.C. 653 (1980). 92–463, 5 U.S.C., Appendix 2), notice is concepts and applications until the This notice is filed under 49 CFR hereby given for the Special Committee Flight 2000 operational concept and 1180.2(d)(7). If it contains false or 162 meeting to be held May 30, 1997, program structure have matured. Many misleading information, the exemption starting at 9 am. The meeting will be of those who should attend the SRT is void ab initio. Petitions to revoke the held at RTCA, 1140 Connecticut would be unavailable because of Flight exemption under 49 U.S.C. 10502(d) Avenue, NW, Suite 1020, Washington, 2000 activities. The FAA senior may be filed at any time. The filing of DC 20036. management feels that, while it is a petition to revoke will not The agenda will be as follows: (1) certainly undesirable to postpone a automatically stay the transaction. Chairman’s Introductory Remarks; (2) meeting such as this on short notice, An original and 10 copies of all Approval of Proposed Meeting Agenda; diluting the already limited resources pleadings, referring to STB Finance (3) Approval of the Minutes of the was considered detrimental to both Docket No. 33394, must be filed with 24684 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices the Surface Transportation Board, Office Dyer, Esq., Dyer and Goodall, 45 attend the meeting must notify Ms. of the Secretary, Case Control Unit, 1925 Memorial Circle, Augusta, ME 04330. Carolee Bush, Council Liaison, on (202) K Street, NW., Washington, DC 20423– FOR FURTHER INFORMATION CONTACT: 366–6946 prior to May 22. Attendance 0001. In addition, a copy of each Beryl Gordon, (202) 565–1600. [TDD for is open to the interested public but pleading must be served on Joseph D. the hearing impaired: (202) 565–1695.] limited to space available. With the # Anthofer, Esq., 1416 Dodge Street, 830, SUPPLEMENTARY INFORMATION: approval of the Chair, members of the Omaha, NE 68179. Additional information is contained in public may present oral statements at Decided: April 30, 1997. the Board’s decision. To purchase a the meeting. Noncommittee members By the Board, David M. Konschnik, copy of the full decision, write to, call, wishing to present oral statements, Director, Office of Proceedings. or pick up in person from: DC News & obtain information, or who plan to Vernon A. Williams, Data, Inc., 1925 K Street, NW., Suite access the building to attend the 210, Washington, DC 20006. Telephone: meeting should also contact Ms. Bush. Secretary. Members of the public may present a [FR Doc. 97–11759 Filed 5–5–97; 8:45 am] (202) 289–4357. [Assistance for the hearing impaired is available through written statement to the Council at any BILLING CODE 4915±00±P TDD services (202) 565–1695.] time. Persons with a disability requiring Decided: April 25, 1997. special services, such as an interpreter DEPARTMENT OF TRANSPORTATION By the Board, Chairman Morgan and Vice for the hearing impaired, should contact Chairman Owen. Ms. Bush (202) 366–6946 at least seven Surface Transportation Board Vernon A. Williams, days prior to the meeting. Secretary. [STB Docket No. AB±42 (Sub±No. 3X)] Issued in Washington, DC, on May 1, 1997. [FR Doc. 97–11760 Filed 5–5–97; 8:45 am] Robert A. Knisely, Aroostook Valley Railroad CompanyÐ BILLING CODE 4915±00±P Abandonment ExemptionÐin Executive Director, Advisory Council on Aroostook County, ME Transportation Statistics. DEPARTMENT OF TRANSPORTATION [FR Doc. 97–11767 Filed 5–5–97; 8:45 am] AGENCY: Surface Transportation Board. BILLING CODE 4910±FE±P ACTION: Notice of exemption. Bureau of Transportation Statistics

SUMMARY: Under 49 U.S.C. 10502, the Advisory Council on Transportation DEPARTMENT OF THE TREASURY Board exempts from the prior approval Statistics; Meeting requirements of 49 U.S.C. 10903 the Submission to OMB for Review; AGENCY: Bureau of Transportation abandonment by Aroostook Valley Statistics, DOT. Comment Request Railroad Company of its entire line of ACTION: railroad between: (1) Milepost 3.04 on Notice of meeting. April 18, 1997. The Department of Treasury has Skyway Branch and milepost 4.62 (the SUMMARY: Pursuant to Section 10(A)(2) submitted the following public end of the main line) at Skyway of the Federal Advisory Committee Act information collection requirement(s) to Industrial Park, including all line and (Public Law 72–363; 5 U.S.C. App. 2), OMB for review and clearance under the sidings on Skyway Industrial Park; and notice is hereby given of a meeting of Paperwork Reduction Act of 1995, Pub. (2) the connection with Bangor and the Bureau of Transportation Statistics L. 104–13. Copies of the submission(s) Aroostook Railroad at AVR milepost 0.0 (BTS) Advisory Council on may be obtained by calling the Treasury at Skyway Junction and milepost 3.41 Transportation Statistics (ACTS) to be Bureau Clearance Officer listed. on Skyway Branch, for a total of held Friday, May 23, 1997, 10:00 a.m. to Comments regarding this information approximately 3.19 miles,1 in Aroostook 4:00 p.m. The meeting will take place at collection should be addressed to the County, ME. the U.S. Department of Transportation, OMB reviewer listed and to the DATES: Provided no formal expression of 400 7th Street, SW., Washington, DC, in Treasury Department Clearance Officer, intent to file an offer of financial conference room 10234–38 of the Nassif Department of the Treasury, Room 2110, assistance (OFA) is received, this Building. exemption will be effective on June 5, The Advisory Council, called for 1425 New York Avenue, NW., 1997. Formal expressions of intent to under Section 6007 of Public Law 102– Washington, DC 20220. file an OFA under 1152.27(c)(2) must be 240, Intermodal Surface Transportation Internal Revenue Service (IRS) filed by May 16, 1997; petitions to stay Efficiency Act of 1991, December 18, OMB Number: 1545–1241. must be filed by May 21, 1997; requests 1991, and chartered on June 19, 1995, Regulation Project Number: PS–92–90 for public use conditions in conformity was created to advise the Director of Final. with 49 CFR 1152.28(a)(2) must be filed BTS on transportation statistics and Type of Review: Extension. by May 27, 1997; and petitions to analyses, including whether or not the Title: Special Valuation Rules. reopen must be filed by June 2, 1997. statistics and analysis disseminated by Description: Section 2701 of the ADDRESSES: An original and 10 copies of the Bureau are of high quality and are Internal Revenue Code allows various all pleadings referring to STB Docket based upon the best available objective elections by family members who make No. AB–42 (Sub-No. 3X) must be filed information. gifts of common stock or partnership with: the Surface Transportation Board, The agenda for this meeting will interests and retain senior interests. The Office of the Secretary, Case Control include a review of the last meeting, elections affect the value of the gifted Unit, 1925 K Street, NW., Washington, identification of substantive issues, interests and the retained interests. DC 20423–0001. In addition, a copy of review of plans and schedule, other Respondents: Individuals or all pleadings must be served on items of interest, discussion and households. petitioner’s representative: Linda Smith agreement of date(s) for subsequent Estimated Number of Respondents: meetings, and comments from the floor. 1,000. 1 Actual mileage does not correspond with the Since access to the DOT building is Estimated Burden Hours Per milepost numbers. controlled, all persons who plan to Respondent: 25 minutes. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24685

Frequency of Response: Other (one- DEPARTMENT OF THE TREASURY Estimated Number of Respondents/ time election). Recordkeepers: 1,000. Estimated Total Reporting Burden: Submission to OMB for Review; Estimated Burden Hours Per 496 hours. Comment Request Respondent/Recordkeepers: Recordkeeping—7 min. OMB Number: 1545–1254. April 23, 1997. Regulation Project Number: FI–34–91 Learning about the law or the form— The Department of Treasury has 5 min. Final. submitted the following public Type of Review: Extension. Preparing the form—18 min. information collection requirement(s) to Copying, assembling, and sending the Title: Conclusive Presumption of OMB for review and clearance under the form to the IRS—20 min. Worthlessness of Debts Held by Banks. Paperwork Reduction Act of 1995, Pub. Frequency of Response: Annually. Description: Paragraph (d) (3) of L. 104–13. Copies of the submission(s) Estimated Total Reporting/ section 1.166–2 of the regulations may be obtained by calling the Treasury Recordkeeping Burden: 830 hours. allows banks and thrifts to elect to Bureau Clearance Officer listed. OMB Number: 1545–0970. conform their tax accounting for bad Comments regarding this information Form Number: IRS Form 8453–P. debts with their regulatory accounting. collection should be addressed to the Type of Review: Extension. An election, or revocation thereof, is a OMB reviewer listed and to the Title: US Partnership Declaration and change in method of accounting. The Treasury Department Clearance Officer, Signature for Electronic and Magnetic collection of information required in Department of the Treasury, Room 2110, Media Filing. section 1.166–2(d)(3) is necessary to 1425 New York Avenue, NW., Description: This form is used to monitor the elections. Washington, DC 20220. secure the general partners’ signature Respondents: Business or other for- and declaration in conjunction with the profit. Internal Revenue Service (IRS) electronic/magnetic media filing Estimated Number of Respondents: OMB Number: 1545–0066. program. This form, together with the 200. Form Number: IRS Form 2688. electronic/magnetic media transmission, Estimated Burden Hours Per Type of Review: Extension. will comprise the partnership’s return. Respondent: 15 minutes. Title: Application for Additional Respondents: Business or other for- Frequency of Response: On occasion. Extension of Time to File U.S. profit. Estimated Total Reporting Burden: 50 Individual Income Tax Return. Estimated Number of Respondents/ hours. Description: Internal Revenue Code Recordkeepers: 500. OMB Number: 1545–1426. (IRC) section 6081 permits the Secretary Estimated Burden Hours Per Regulation Project Number: INTL–21– to grant a reasonable extension of time Respondent/Recordkeepers: 91 Temporary and Final. for filing any return, declaration, Recordkeeping—7 min. Type of Review: Extension. statement, or other document. This form Learning about the law or the form— Title: Section 6662—Imposition of the is used by individuals to ask for an 5 min. Accuracy-Related Penalty. additional extension of time to file U.S. Preparing the form—20 min. Description: These regulations income tax returns after filing for the Copying, assembling, and sending the provide guidance about substantial and automatic extension, but still needing form to the IRS—17 min. gross valuation misstatements as more time. Frequency of Response: Annually. defined in sections 6662(e) and 6662(h). Respondents: Individuals or Estimated Total Reporting/ They also provide guidance about the households. Recordkeeping Burden: 410 hours. reasonable cause and good faith Estimated Number of Respondents: OMB Number: 1545–1364. exclusion. The regulations apply to 1,453,000. Regulation Project Number: INTL– taxpayers who have transactions Estimated Burden Hours Per 372–88 Final and INTL–401–88 Final . between persons described in section Respondent: Type of Review: Extension. 482 and net section 482 transfer price Learning about the law or the form— Title: Section 482 Cost Sharing adjustments. 8 min. Regulations (INTL–372–88); and Respondents: Business or other for- Preparing the form—10 min. Intercompany Transfer Pricing profit. Copying, assembling, and sending the Regulations Under Section 482 (INTL– Estimated Number of Respondents/ form to the IRS—20 min. 401–88). Recordkeepers: 2,500. Frequency of Response: On occasion. Description: INTL–372–88. The Estimated Burden Hours Per Estimated Total Reporting Burden: information will be used to determine Respondent/Recordkeeper: 8 hours, 3 929,920 hours. whether an entity is an eligible minutes. OMB Number: 1545–0967. participant of a qualified cost-sharing Estimated Total Reporting/ Form Number: IRS Form 8453–F. arrangement and whether each eligible Recordkeeping Burden: 20,125 hours. Type of Review: Extension. participant is sharing the costs and Title: US Estate or Trust Income Tax Clearance Officer: Garrick Shear (202) benefits of intangible development on Declaration and Signature for Electronic 622–3869, Internal Revenue Service, an arm’s length basis. and Magnetic Media Filing. Room 5571, 1111 Constitution Avenue, INTL–401–88. This document Description: This form is used to contains regulations relating to the NW., Washington, DC 20224. secure taxpayer signatures and OMB Reviewer: Alexander T. Hunt pricing of transfer of tangible property, declarations in conjunction with (202) 395–7860, Office of Management intangible property, or services between electronic and magnetic media filing of and Budget, Room 10226, New related parties. trust and fiduciary income tax returns. Respondents: Business or other for- Executive Office Building, Washington, This form, together with the electronic profit. DC 20503. and magnetic media transmission, will Estimated Number of Respondents/ Lois K. Holland, comprise the taxpayer’s income tax Recordkeepers: 1,000. Departmental Reports Management Officer. return (Form 1041). Estimated Burden Hours Per [FR Doc. 97–11694 Filed 5–5–97; 8:45 am] Respondents: Individuals or Respondent/Recordkeeper: 7 hours, 51 BILLING CODE 4830±01±P households, business or other for-profit. minutes. 24686 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Frequency of Response: Annually. Revenue Service Clearance Officer at the Title: Exportation of Used Self- Estimated Total Reporting/ address listed below. Propelled Vehicles. Recordkeeping Burden: 7,850 hours. Description: The Exportation of Self- Internal Revenue Service (IRS) OMB Number: 1545–1403. Propelled Vehicles requires the Regulation Project Number: FI–46–93 OMB Number: 1545–1432. submission of documents verifying Final. Project Number: M:SP:V 97–015–G. vehicle ownership of exporters for Type of Review: Extension. Type of Review: Revision. exportation of vehicles in the United Title: Hedging Transactions. Title: Houston District Customer States. Description: The information is Satisfaction Survey. Respondents: Business or other for- required by the IRS to aid it in Description: This survey instrument profit, Individuals or households, Not- administering the law and to prevent was designed by the Implementation for-profit institutions. manipulation. The information will be Team to measure customer satisfaction Estimated Number of Respondents: used to verify that a taxpayer is properly levels and expectations. The survey is 500,000. reporting its business hedging voluntary and brief; customer Estimated Burden Hours Per transactions. satisfaction will be measured by Respondent: 10 minutes. Respondents: Business or other for- function: telephone, walk-in, collection Frequency of Response: On occasion. profit. and examination; and the survey will be Estimated Total Reporting Burden: Estimated Number of Recordkeepers: printed in both English and Spanish. 83,330 hours. 110,000. Respondents: Individuals or OMB Number: 1515–0189. Estimated Burden Hours Per households. Form Number: None. Recordkeeper: 52 minutes. Estimated Number of Respondents: Type of Review: Extension. Estimated Total Recordkeeping 3,600. Title: Petroleum Refineries in Foreign Burden: 95,000 hours. Estimated Burden Hours Per Trade Subzones. Clearance Officer: Garrick Shear (202) Response: 3 minutes. Description: This recordkeeping 622–3869, Internal Revenue Service, Frequency of Response: Other (one- requirement provides special Room 5571, 1111 Constitution Avenue, time only). procedures for Petroleum Refineries in NW, Washington, DC 20224. Estimated Total Reporting Burden: Foreign Trade Subzones and OMB Reviewer: Alexander T. Hunt 180 hours. requirements governing the operations (202) 395–7860, Office of Management Clearance Officer: Garrick Shear (202) of crude petroleum and refineries and Budget, Room 10226, New 622–3869, Internal Revenue Service, approved as foreign trade zones. Executive Office Building, Washington, Room 5571, 1111 Constitution Avenue, Respondents: Business or other for- DC 20503. NW, Washington, DC 20224. profit, Not-for-profit institutions. Estimated Number of Recordkeepers: OMB Reviewer: Alexander T. Hunt Lois K. Holland, 18. Departmental Reports Management Officer. (202) 395–7860, Office of Management Estimated Burden Hours Per [FR Doc. 97–11696 Filed 5–5–97; 8:45 am] and Budget, Room 10226, New Recordkeeper: 732 hours. Executive Office Building, Washington, BILLING CODE 4830±01±P Frequency of Response: On occasion. DC 20503. Estimated Total Recordkeeping Lois K. Holland, Burden: 13,176 hours. DEPARTMENT OF THE TREASURY Departmental Reports Management Officer. Clearance Officer: J. Edgar Nichols [FR Doc. 97–11697 Filed 5–5–97; 8:45 am] (202) 927–1426, US Customs Service, Submission for OMB Review; BILLING CODE 4830±01±P Printing and Records Management Comment Request Branch, Room 6216, 1301 Constitution April 29, 1997. Avenue, NW, Washington, DC 20229. DEPARTMENT OF THE TREASURY OMB Reviewer: Alexander T. Hunt The Department of Treasury has (202) 395–7860, Office of Management submitted the following public Submission for OMB Review; and Budget, Room 10202, New information collection requirement(s) to Comment Request Executive Office Building, Washington, OMB for review and clearance under the DC 20503. Paperwork Reduction Act of 1995, Pub. April 28, 1997. L. 104–13. Copies of the submission(s) The Department of Treasury has Lois K. Holland, may be obtained by calling the Treasury submitted the following public Departmental Reports Management Officer. Bureau Clearance Officer listed. information collection requirement(s) to [FR Doc. 97–11698 Filed 5–5–97; 8:45 am] Comments regarding this information OMB for review and clearance under the BILLING CODE 4820±02±P collection should be addressed to the Paperwork Reduction Act of 1995, Pub. OMB reviewer listed and to the L. 104–13. Copies of the submission(s) Treasury Department Clearance Officer, may be obtained by calling the Treasury DEPARTMENT OF THE TREASURY Department of the Treasury, Room 2110, Bureau Clearance Officer listed. 1425 New York Avenue, NW., Comments regarding this information Office of the Comptroller of the Washington, DC 20220. collection should be addressed to the Currency OMB reviewer listed and to the Special Request Information Collection; Submission for Treasury Department Clearance Officer, OMB Review; Comment Request In order to conduct the customer Department of the Treasury, Room 2110, survey described below in a timely 1425 New York Avenue, NW., AGENCY: Office of the Comptroller of the manner, the Department of the Treasury Washington, DC 20220. Currency, Treasury. is requesting that the Office of Customs Service (CUS) ACTION: Submission for OMB review; Management and Budget (OMB) review comment request. and approve this information collection OMB Number: 1515–0157. by May 9, 1997. To obtain a copy of this Form Number: None. SUMMARY: In accordance with the study, please contact the Internal Type of Review: Extension. requirements of the Paperwork Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24687

Reduction Act of 1995 (44 U.S.C. Data will be collected for eleven maintenance, and purchase of services Chapter 35), the Office of the categories of loan products (i.e., real to provide the information. Comptroller of the Currency (OCC) estate project finance, home mortgages Dated: April 30, 1997. hereby gives notice that it has sent to and home equity lines, credit cards, the Office of Management and Budget direct automobile). Data on more than Karen Solomon, (OMB) for review an information one category of loan product may be Director, Legislative & Regulatory Activities collection titled Loan Index Information collected from a single bank. Division. Collection. The data will be used by the OCC as [FR Doc. 97–11711 Filed 5–5–97; 8:45 am] DATES: Comments regarding this a supervisory tool. The OCC will BILLING CODE 4810±33±P information collection should be analyze the data to identify benchmarks submitted to both the OMB Reviewer in underwriting for the loan products it and the OCC. Comments are due on or reviews and to assess the impact of before June 5, 1997. changes or trends in underwriting on UNITED STATES INFORMATION ADDRESSES: A copy of the submission the national banking system. The OCC’s AGENCY may be obtained by calling the OCC analysis will enhance the effectiveness Contact listed. Direct all written of the risk-focused approach to Culturally Significant Objects Imported comments to the Communications supervising banks, enable the OCC to for Exhibition; Notice provide useful, aggregate information Division, Attention: 1557–LOAN, Third Determinations Floor, Office of the Comptroller of the about underwriting benchmarks and Currency, 250 E Street, SW, trends to national banks and examiners, Notice is hereby given of the Washington, DC 20219. In addition, and enable the OCC to develop and following determinations: Pursuant to comments may be sent by facsimile issue timely system-wide guidance as the authority vested in me by the Act of transmission to (202) 874–5274, or by appropriate. October 19, 1965 (79 Stat. 985, 22 USC electronic mail to Respondents: Businesses or other for- 2459), Executive Order 12047 of March [email protected]. profit; individuals 27, 1978 (43 FR 13359, March 29, 1978), Comments should also be submitted to Number of Respondents: 242. and Delegation Order No. 85–5 of June Alexander Hunt, Office of Management Total Annual Responses: 888. 27, 1985 (50 FR 27393, July 2, 1985), I and Budget, Attention: 1557–LOAN, Frequency of Response: Quarterly, hereby determine that the objects to be Room 10226, New Executive Office except agriculture loan data which is included in the exhibit, ‘‘The Building, Washington, DC 20503. semiannual. Padshahnama (History of the Emperor)’’ SUPPLEMENTARY INFORMATION: Estimated Total Annual Burden: (See list 1 ), imported from abroad for the 1,332. OMB Number: 1557–LOAN. temporary exhibition without profit OCC Contact: Jessie Gates or Dionne within the United States are of cultural Form Number: Not applicable. Walsh, (202) 874–5090, Legislative and Type of Review: New collection. significance. These objects are imported Title: Loan Index Information Regulatory Activities Division, Office of pursuant to a loan agreement with the Collection. the Comptroller of the Currency, 250 E foreign lenders. I also determine that the Description: Effective implementation Street, SW., Washington, DC 20219. exhibition or display of the listed of the OCC’s Supervision by Risk OMB Reviewer: Alexander Hunt, (202) exhibit objects at the Arthur M. Sackler, Program requires the OCC to identify 395–7340, Paperwork Reduction Project Smithsonian Institution from on or and evaluate movements and trends in 1557–LOAN, Office of Management and about May 18, 1997 to on or about the loan underwriting standards applied Budget, Room 10226, New Executive October 13, 1997, and at the by national banks. The OCC therefore Office Building, Washington, DC 20503. Metropolitan Museum of Art from on or proposes to collect data on loan The OCC may not conduct or sponsor, about November 16, 1997 to on or about underwriting standards or benchmarks and a respondent is not required to February 8, 1998, and at Los Angeles on a variety of loan products. Every respond to, an information collection County Museum of Art from on or about quarter, the OCC will collect data on that has been extended, revised, or February 22, 1998 to on or about May loans made or renewed the previous implemented on or after October 1, 17, 1998, and at the Kimbell Art quarter. The data will be collected by 1995, unless it displays a currently valid Museum from on or about May 31, 1998 examiners who will review bank OMB control number. Comments are to on or about August 23, 1998, and at documents, including loan files. If invited on: (a) Whether the proposed the Indianapolis Museum of Art from on practicable, information gathered as part collection is necessary for the proper or about September 6, 1998 to on or of this collection may be used to reduce performance of the OCC’s functions, about November 29, 1998, is in the the scope of loan reviews conducted including whether the information has national interest. Public Notice of these during regularly scheduled practical utility; (b) the accuracy of the determinations is ordered to be examinations. OCC’s estimate of the burden of the published in the Federal Register. This collection will not require banks information collection, including the Dated: May 2, 1997. validity of the methodology and to gather, maintain, or provide data in Les Jin, a specified format. OCC examiners will assumptions used; (c) ways to enhance gather information from existing bank the quality, utility, and clarity of the General Counsel. documents. The estimated burden on information; (d) ways to minimize the [FR Doc. 97–11867 Filed 5–2–97; 12:55 pm] banks results from planned examiner burden of the information collection on BILLING CODE 8230±01±M discussions with bank management respondents, including through the use regarding the bank’s projections for loan of automated collection techniques or 1 A copy of this list may be obtained by product volume and quality, and other forms of information technology; contacting Mrs. Jacqueline H. Caldwell, Assistant examiner requests for assistance in and (e) estimates of capital or startup General Counsel, at 202/619–6982, and the address is Room 700, U.S. Information Agency, 301 Fourth locating files. costs and costs of operation, Street, SW., Washington, DC 20547–0001. federal register May 6,1997 Tuesday Final Rule Organization's TechnicalInstructions; Code, andInternationalCivilAviation International MaritimeDangerousGoods the UnitedNationsRecommendations, Hazardous Materials:HarmonizationWith 49 CFRPart171,etal. Administration Research andSpecialPrograms Transportation Department of Part II 24689 24690 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: ICAO Technical Instructions until June I. Background 1, 1997. Research and Special Programs This final rule amends the HMR based Administration On December 21, 1990, the Research on the ninth revised edition of the UN and Special Programs Administration Recommendations, the 1997–98 ICAO 49 CFR Parts 171, 172, 173, 175, 176, (RSPA) published a final rule [Docket Technical Instructions, and Amendment 178 HM–181; 55 FR 52402] which 28 to the IMDG Code. It is intended to comprehensively revised the Hazardous more fully align the HMR with [Docket No. HM±215B; Amdt Nos. 171±153, Materials Regulations (HMR), 49 CFR international air and sea transport 172±154, 173±261, 175±86, 176±43, 178±119] Parts 171 to 180, with respect to hazard requirements which became effective communication, classification, and January 1, 1997. Other changes are RIN 2137±AC82 packaging requirements, based on the based on feedback from the regulated UN Recommendations. One intended industry and RSPA initiatives. Hazardous Materials: Harmonization effect of the rule was to facilitate the With the United Nations international transportation of II. Summary of Comments Recommendations, International hazardous materials by ensuring a basic Maritime Dangerous Goods Code, and RSPA received over 40 comments in consistency between the HMR and response to the Docket HM–215B Notice International Civil Aviation international regulations. Organization's Technical Instructions of Proposed Rulemaking (NPRM), which The UN Recommendations are not was published in the Federal Register regulations, but are recommendations AGENCY: Research and Special Programs on October 25, 1996 (61 FR 55364). Administration (RSPA), DOT. issued ‘by the UN Committee of Experts Comments were submitted by chemical on the Transport of Dangerous Goods manufacturers, trade associations, ACTION: Final rule. (UNCOE). These recommendations are packaging manufacturers, and rail and amended and updated biennially by the SUMMARY: This final rule amends the vessel carriers. Commenters were UNCOE and are distributed to nations Hazardous Materials Regulations to supportive of RSPA’s efforts to maintain throughout the world. They serve as the maintain alignment with corresponding alignment with international standards. basis for national, regional, and provisions of international standards. Certain issues proposed in the NPRM international modal regulations Because of recent changes to the received little or no comment. Other (specifically the IMDG Code, issued by International Maritime Dangerous issues, including a proposed definition the International Maritime Organization Goods Code (IMDG Code), the for ‘‘aerosol,’’ a proposed approval (IMO), and the ICAO Technical International Civil Aviation requirement for certain nitroglycerin Instructions, issued by the ICAO Organization’s Technical Instructions mixtures, and various proposed changes Dangerous Goods Panel). In 49 CFR for the Safe Transport of Dangerous for organic peroxides and explosives 171.12, the HMR authorize shipments Goods by Air (ICAO Technical packagings, were the focus of most prepared in accordance with the IMDG Instructions), and the United Nations comments. Several commenters Code if all or part of the transportation Recommendations on the Transport of requested transitional provisions and is by vessel, subject to certain Dangerous Goods (UN other amendments to the HMR as part conditions and limitations. Offering, Recommendations), these revisions are of this initiative. In this final rule, RSPA accepting and transporting hazardous necessary to facilitate the transport of is providing a delayed compliance materials by aircraft, in conformance hazardous materials in international period for implementation of these with the ICAO Technical Instructions, commerce. changes; however, many other and by motor vehicle either before or suggestions are beyond the scope of the DATES: Effective date: The effective date after being transported by aircraft, are proposed changes in this rule and first of these amendments is October 1, 1997. authorized in § 171.11 (subject to certain should be the subject of an NPRM to Compliance date: RSPA is authorizing conditions and limitations). immediate voluntary compliance. On December 29, 1994, RSPA issued offer adequate opportunity for notice However, persons voluntarily a final rule [Docket HM–215A; 59 FR and comment. complying with these regulations 67390] amending the HMR by III. Summary of Regulatory Changes by should be aware that petitions for incorporating changes to more fully Section reconsideration may be received and, as align the HMR with the seventh and Listed below is a section-by-section a result of RSPA’s evaluation of those eighth revised editions of the UN summary of changes and, as applicable, petitions, the amendments adopted in Recommendations, Amendment 27 to a discussion of comments received. this final rule could be subject to further the IMDG Code and the 1995–96 ICAO revision. Technical Instructions. The final rule Part 171 Incorporation by reference. The provided consistency with international Section 171.7 incorporation by reference of certain air and sea transportation requirements publications listed in these amendments which became effective January 1, 1995. RSPA proposed to add or update has been approved by the Director of the In a final rule published December 16, various American Society for Testing Federal Register as of October 1, 1997. 1996, RSPA incorporated the latest and Materials (ASTM) standards, FOR FURTHER INFORMATION CONTACT: Bob editions of the ICAO Technical including an ASTM standard for flash Richard, Assistant International Instructions and the IMDG Code into the point determination (ASTM D–3828–93) Standards Coordinator, telephone (202) HMR to ensure that international which establishes whether a material is 366–0656, or Joan McIntyre, Office of shippers could begin complying with capable of sustaining combustion in Hazardous Materials Standards, changes to international air and vessel relation to classifying flammable liquids telephone (202) 366–8553, Research and standards going into effect on January 1, (ASTM D–4206–96), and the ASTM Special Programs Administration, U.S. 1997. That final rule authorized standard for assessing corrosivity to Department of Transportation, 400 compliance with either Amendment 27 metals (ASTM G 31–72 (Reapproved Seventh Street, S.W., Washington, D.C. or Amendment 28 of the IMDG Code 1995)). ASTM D–3828–93 is the 20590–0001. and either the 1995–96 or 1997–98 Standard Test Method for Flash Point by Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24691

Small Scale Closed Tester. This method with certain restrictions applying to and use of non-metallic aerosol is equivalent to ASTM D–3278 but internal pressure, filling limits and containers. specifically applies to testing petroleum testing of the container. The capacity of In addition, RSPA proposed products and lubricants. ASTM D 4206– this container cannot exceed 50 cubic corresponding changes in §§ 171.11, 96 Standard Test Method for Sustained inches or 27.7 fluid ounces. These 171.12 and 171.12a to clarify the Burning of Liquid Mixtures Using the provisions apply only to solutions of proposed definition of aerosols as it Small Scale Open-Cup Apparatus is materials and compressed gas or gases applies to aerosols imported in equivalent to the test method currently which are not poisonous (other than accordance with the ICAO Technical provided in Part 173, Appendix H- Division 6.1, Packing Group III Instructions, the IMDG Code and the Method of Testing for Sustained materials). A final rule published TDG Regulations. These changes, as Combustibility. October 28, 1991, under Docket HM– well as the definition for aerosols, are In addition, RSPA proposed to 210 [56 FR 55471], was issued for adopted as proposed in this final rule. incorporate the most current versions of clarification and to promote the safe RSPA also proposed definitions for the ICAO Technical Instructions, the transportation of gases shipped under ‘‘SADT’’ (self-accelerating IMDG Code, the UN Recommendations limited quantity provisions. This final decomposition temperature), salvage and the UN Manual of Tests and rule stated, in part: packagings and intermediate packagings. No comments were received Criteria. Updated references for the RSPA is concerned about the serious IMDG Code and the ICAO Technical potential hazards posed by shipping on these proposed definitions, and they Instructions were adopted in a final rule flammable compressed gases, under limited are adopted as proposed. published December 16, 1996 [61 FR quantity or consumer commodity provisions, Sections 171.11, 171.12, and 171.12a 65958] with an effective date of June 1, when a compressed gas is the primary 1997. Two references were proposed for product and not merely an aerosol propellant These sections authorize shipments incorporation under the Transportation additive. RSPA and its predecessor agencies prepared under the ICAO Technical of Dangerous Goods (TDG) Regulations never intended that gases other than those Instructions, the IMDG Code, and the used as a propellant could be excepted from issued by Transport Canada. These new TDG Regulations, respectively. RSPA any of the HMR when a package has more proposed to remove the requirement to entries reference Schedule 21 and than a 4-fluid ounce capacity. Schedule 22, which were adopted in include the words ‘‘Dangerous When 1995. Thus, current aerosol provisions in the Wet’’ on shipping papers in association HMR do not correspond to the aerosol with the basic description for Division Section 171.8 definition in international standards, 4.3 materials. Commenters uniformly In the NPRM, RSPA proposed several which authorizes a gas to be expelled supported this proposal, stating that the new definitions, including a definition ‘‘without a liquid, paste, or powder.’’ change was compatible with for ‘‘Aerosol’’ which is consistent with Nor does RSPA intend to adopt such a international standards and that the provisions of § 173.306(a)(3). As noted provision, because filling a container ‘‘Dangerous When Wet’’ hazard is in the NPRM, the definition for aerosols solely with a gas, such as butane, poses clearly communicated through in the IMDG Code and the ICAO a significantly greater risk than filling indication of Division 4.3 as part of the Technical Instructions includes the container with a liquid, paste or basic shipping description and through containers that are filled solely with a powder which is expelled by a butane use of Division 4.3 labels and placards. gas, whereas aerosol containers gas due to greater quantities of gas Therefore, RSPA is removing the authorized in § 173.306(a)(3) may be contained in aerosols that do not requirement for ‘‘Dangerous When Wet’’ charged with a gas only for the purpose contain liquid, paste or powder. to appear on shipping papers in of expelling a liquid, powder or paste. Furthermore, in response to association with the basic description. RSPA received two comments commenters’ concern that the proposed RSPA also proposed that the words opposing the proposed definition of definition may not cover foams, pastes, ‘‘Toxic Inhalation Hazard’’ be added as ‘‘Aerosol’’. Both commenters (a gels and other liquids which are not an alternative to ‘‘Poison Inhalation chemical manufacturing company and ejected in suspension in a gas, RSPA Hazard’’ or ‘‘Inhalation Hazard’’ and The Chemical Specialties Manufacturers believes that because foams or gels that ‘‘Toxic’’ or ‘‘Toxic Gas’’ be added Association (CSMA)) believed the would be considered liquids expelled as alternatives to ‘‘Poison’’ or ‘‘Poison definition in the HMR should be by a gas, it is not necessary to Gas’’. A corresponding provision for worded in the same manner as in the specifically list them. shipping paper descriptions was UN Recommendations. These Another difference between domestic proposed for § 172.203(m). Two commenters also claimed that the requirements for aerosols and comments expressing opposing proposed definition may not cover international standards is that the HMR viewpoints were received. One foams, pastes, gels and other liquids authorize only metal containers, while commenter, an international chemical which are not ejected in suspension in non-metallic (e.g., made from glass or and industrial gases manufacturer, a gas. CSMA further noted that the plastic) containers are authorized supported this proposal, stating that this proposed definition only recognizes internationally. A November 13, 1995 alternative will simplify compliance metal aerosol containers while response to a petition for when shipping materials poisonous by international standards authorize glass reconsideration issued under Docket inhalation. The other commenter, a and plastic as materials of construction HM–215A [60 FR 56957] emphasized vessel carrier, believed consistency for aerosol containers. that only metal aerosol containers are could be achieved through use of only RSPA’s proposed definition for authorized for use. This document the ‘‘Toxic’’ designation. This ‘‘Aerosol’’ corresponds to current noted that ‘‘RSPA is not aware of any commenter claimed that providing an requirements for aerosols in proposed industry standards for the option for use of either term will § 173.306(a)(3). Paragraph (a)(3) manufacture and use of aerosol confuse people in the field. RSPA does contains an authorization for the use of containers other than those made of not agree and is adopting the alternative metal nonspecification packagings metal.’’ Nor is RSPA aware of any ‘‘Toxic Inhalation Hazard’’ as proposed charged with a solution of materials and subsequent ongoing action to propose in the NPRM. However, RSPA is not compressed gas or gases (i.e., aerosols) industry standards for the manufacture adopting proposed modifications to 24692 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

POISON and POISON GAS label and (other than regulated medical waste) do several pharmaceutical manufacturers placard references. These references not have packing group assignments. opposed this proposal. According to were recently modified by the Docket Changes to the HMT include: these commenters, a preparation HM–206 final rule [62 FR 1227] and New Packing Group I entries added consisting of 10% nitroglycerin is used RSPA believes additional modifications for certain commodities, including in the treatment of acute angina attacks. to these references are unnecessary. Adhesives, Resin solutions, Paint and They claimed that, unless this proposal Also, as discussed above for § 171.8, Paint-related material, Disinfectants, is dropped or the domestic supplier of RSPA is adopting a provision to allow Dyes, and Oxidizing liquid, n.o.s. this material is granted an approval to An alternative proper shipping name only aerosols meeting the definition of ship the preparation as a Division 4.1 ‘‘Refrigerant gas’’ plus the ‘‘R’’ number ‘‘aerosol’’ in § 171.8 to be imported in material, transporting this material as a is added to numerous entries, consistent accordance with the ICAO Technical Division 1.1D explosive would have a with the ninth revised edition of the UN Instructions, IMDG Code and TDG significant negative impact on the Recommendations. Current entries that regulations. continued production and distribution contain an italicized ‘‘R’’ number are of this product. Section 171.14 revised to include the ‘‘R’’ number in RSPA does not agree. A certain Roman type as part of the ‘‘Refrigerant preparation containing 10% A new paragraph (d) is added to gas’’ alternative proper shipping name. nitroglycerin was considered to be a UN provide a delayed implementation date One commenter engaged in reselling 0143, 1.1D explosive by the UNCOE in for amendments adopted in this final prepackaged refrigerants expressed December 1994, based on the fact that rule. The effective date of this final rule concern that some refrigerant the preparation detonated in the bonfire is October 1, 1997. However, RSPA is manufacturers would use the newly test prescribed in test series 6(c) of the authorizing an immediate voluntary authorized ‘‘Refrigerant gas, R ***’’ UN Manual of Tests and Criteria. The compliance date to allow shippers to proper shipping name while others UNCOE recognized that not all prepare their international shipments in would continue to use the current preparations containing 10% accordance with the new ICAO, IMDG chemical name; consequently, a nitroglycerin behave the same. Code and HMR provisions. RSPA is also shipping paper description, package Therefore, the UNCOE adopted UN 3319 authorizing a delayed mandatory markings and emergency response with a provision for each competent compliance with the new requirements, information may not match. This authority to authorize, either by until October 1, 1998. This delay is commenter recommended that approval or exemption, a preparation comparable to the transition provisions differences in proper shipping names consisting of not more than 10% provided in the final rule under Docket resulting from mixed use of the original nitroglycerin as a Division 4.1 material HM–215A and offers a sufficient phase- and alternative proper shipping name based on test results. This provision is in period to implement new provisions on markings, emergency response consistent with the existing provisions and deplete current stocks of shipping information and shipping papers be of § 173.124(a)(1)(ii)(B) for desensitized papers, labels, placards, and containers authorized indefinitely, as long as the explosive substances which require affected by the new requirements. In same UN or NA identification number authorization, either by approval or addition, paragraph (d)(2) permits appears on the shipping paper, exemption, by the AAHMS. RSPA intermixing of old and new hazard emergency response information, and believes that a 10% nitroglycerin communication requirements until package markings. RSPA does not agree. preparation that will detonate in a fire October 1, 1998. The HMT contains numerous entries should be considered a forbidden Part 172 providing an alternative proper material according to § 173.21(h). If the shipping name. It is RSPA’s opinion preparation is or may be explosive Section 172.101 that to offer various mix and match according to § 173.54(a), it is forbidden provisions for such entries is A new paragraph (c)(14) is added to for transport unless examined and impracticable and could result in greater allow isomers of materials listed in the approved under the provisions of confusion. Hazardous Materials Table (HMT) § 173.56. Depending on test results, the Certain Class 1 entries assigned NA same preparation may be approved which meet the same hazard class, numbers for domestic transportation are subsidiary risk and packing group to be under § 173.56 as a Division 4.1 removed. These include Explosive pest material. RSPA does not believe the identified using the listed shipping control devices and Propellant description. One commenter suggested incorporation of UN 3319 with a lengthy explosives (both liquid and solid). transition period for shippers to obtain adding a provision to exclude isomers Domestic exceptions for these listed specifically in the HMT. RSPA an approval or exemption, where explosives are incorporated into the appropriate, would seriously threaten agrees and is revising this paragraph to explosive packing instructions, where reflect the commenter’s suggestion. the production of nitroglycerin applicable. pharmaceutical treatments in the United A new paragraph (c)(15) is adopted to RSPA proposed a new entry and States. allow hydrates of inorganic substances special provision for a nitroglycerin New entries are added for compressed to be described using the proper mixture containing more than 2 percent gases and liquefied gases which are shipping name for the equivalent but not more than 10 percent toxic and also meet flammable, anhydrous material. In this final rule, nitroglycerin. The special provision sets corrosive, or oxidizing criteria. RSPA is clarifying the proposed forth a requirement that the Associate Packaging authorizations for the regulatory text to indicate that the Administrator for Hazardous Materials current entry ‘‘Gas, refrigerated liquid’’ hydrate must meet the same hazard Safety (AAHMS) must specifically are revised to reference the packaging class or division, subsidiary risk(s) and authorize the nitroglycerin mixture as a provisions for cryogenic liquids. In packing group of the equivalent Division 4.1 material, as well as approve addition, two new entries ‘‘Gas, anhydrous material, unless the hydrate the assigned packing group and refrigerated liquid, flammable, n.o.s.’’ is specifically identified in the Table. packaging method before the material and ‘‘Gas, refrigerated liquid, oxidizing, Paragraph (f) is revised to may be transported as a Division 4.1 n.o.s.’’ are added. One commenter acknowledge that Division 6.2 materials material. A chemical manufacturer and supported the proposal to change Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24693 packaging authorizations for ‘‘Gas, or ‘‘solution’’ relative to clarifying in the mixture is inconsistent. Although refrigerated liquid’’ to reference certain existing shipping names. These the UN Recommendations prescribe a packagings for cryogenic liquids, but amendments were adopted by the subsidiary 5.1 risk label without any believed that packaging exceptions UNCOE, in part, to more effectively distinctions, RSPA agrees with these provided in § 173.320 should be communicate the threat posed by commenters. Therefore, a new Special authorized for ‘‘Gas, refrigerated liquid, certain materials in their different Provision 77 is added to limit the n.o.s.’’ and ‘‘Gas, refrigerated liquid, physical states, e.g., pressurized requirement for this subsidiary risk oxidizing, n.o.s.’’ The commenter materials that may be transported as a label to mixtures having an oxygen claimed that this section should apply liquid or as a gas. The description concentration greater than 23.5% for if the components of the mixture are modifications were supported by several domestic transportation. In addition, exclusively various combinations of large industry groups at the time the RSPA intends to bring this atmospheric gases and/or helium in UNCOE was considering the inconsistency to the attention of the UN cryogenic liquid form. RSPA agrees and amendments. Committee of Experts. is adding an exception in Column (8A) RSPA recognizes that revising proper RSPA is adjusting quantity limits for for these two entries. shipping names to include or exclude certain materials identified as poisonous Several entries, such as Phenyl these four modifiers to the key words by inhalation when transported by isocyanate and Phosphorous trichloride, identifying the hazardous materials passenger or cargo aircraft or passenger are amended by revising the primary poses problems that makes compliance railcar. Many of these changes are hazard class in Column (3) and/or difficult in the one-year period provided consistent with current quantity limits Packing Group in Column (5). For some in § 172.101(l)(1)(ii). Those difficulties prescribed in the ICAO Technical entries, such a change in hazard class or and the associated additional costs of Instructions. Certain other materials are packing group also results in a compliance were highlighted in forbidden for transportation by aircraft corresponding removal of the ‘‘+’’ in comments provided by several shippers or passenger railcar because they have Column (1). and carriers of industrial gases. In been identified as meeting the criteria In Column (2) of the HMT, several consideration of those comments, RSPA for poisonous by inhalation and proper shipping names are listed in is providing an exception in assigned Hazard Zone A for liquids and Roman type, indicating that they are § 172.101(l)(3) that obviates the need for Hazard Zones A and B for gases. authorized proper shipping names. shippers and carriers to make special Other changes to the HMT include: (1) However, they are not listed as proper arrangements to remark bulk or non- Creating separate entries for ‘‘Ammonia, shipping names under the UN bulk packagings used in the anhydrous’’ and ‘‘Ammonia solutions’’; Recommendations, the ICAO Technical transportation of the affected hazardous (2) adding ‘‘First aid kits’’ as an Instructions, or the IMDG Code. For materials within one year following the alternative proper shipping name for the consistency with the international effective date of this rule. Rather, when entry ‘‘Chemical kits’’ if the first aid kits regulations, RSPA is revising a number the proper shipping name of a contain hazardous materials; (3) of proper shipping names, including hazardous material is modified only by combining entries for ‘‘Chlorite ‘‘Aircraft evacuation slides’’, from the addition or omission of the word solution’’ and ‘‘Hypochlorite solutions’’; Roman type to italics to indicate that ‘‘compressed,’’ ‘‘inhibited,’’ ‘‘ liquefied’’ (4) removing ‘‘Methyl alcohol’’ as an they are no longer authorized proper or ‘‘solution,’’ its packaging may be authorized proper shipping name for shipping names. marked with the previously prescribed ‘‘Methanol’’ but retaining it in italics as Certain entries, such as proper shipping name for that material a cross reference; (5) adding a Class 3 Diphenylmethane-4,4’-diisocyanate and for a period of five years following the subsidiary risk in Column (6) for several Methyl benzoate (which do not meet effective date of this rule. The extended entries; and (6) creating a new entry for toxicity criteria for a Division 6.1 compliance period is intended to allow ‘‘Aerosols (engine starting fluid)’’ to Packing Group III material) are removed. re-marking to be accomplished in indicate that these aerosols are These commodities were deleted from association with the periodic five-year prohibited on both passenger and cargo the List of Dangerous Goods in the ninth retest required for most bulk packagings. only aircraft. revised edition of the UN To minimize the effects of other RSPA is not incorporating various Recommendations. amendments, RSPA is incorporating an entries suggested by commenters that The packing group designation for extended transition period comparable were not proposed in the NPRM. As ‘‘Mercury, contained in manufactured to that provided in Docket HM–215A. noted previously, these suggestions are articles’’ is revised from Packing Group This will allow industry time to deplete beyond the scope of the proposed I to Packing Group III for consistency current stocks of pre-printed shipping changes in this rule and should be with the entry for ‘‘Mercury’’ and the papers, labels and packagings affected subject to notice and comment. ICAO Technical Instructions. by the new shipping names and to To maintain consistency with the UN implement the changes within their Appendix B to § 172.101 Recommendations, various proper respective companies, including RSPA proposed to add, remove or shipping names are amended by the providing any necessary training to revise a number of entries in the HMR’s addition or removal of the word employees. List of Marine Pollutants. These changes ‘‘compressed’’, ‘‘inhibited’’, ‘‘liquefied’’ Two commenters pointed out a are based on Amendment 27 (to the or ‘‘solution’’. Several commenters conflict in the proposed addition of a extent not already incorporated in HM– indicated that although they generally Division 5.1 subsidiary risk label for the 215A) and Amendment 28 of the IMDG support the international harmonization entry ‘‘Carbon dioxide and oxygen Code. Currently, Appendix B contains a effort and overall intent to maintain mixtures’’. RSPA has stated previously duplicate entry for ‘‘Maneb or Maneb consistency between the HMR, the UN that this subsidiary risk should be preparations’’; however, one entry has Recommendations, the IMDG Code, and recognized only when a mixture supplemental information in Roman the ICAO Technical Instructions, they contains a concentration of oxygen type, while the supplemental did not understand the basis for the greater than 23.5%, requiring a information in the other entry is shown addition or deletion of the words subsidiary risk label for this entry in italics. RSPA proposed to remove the ‘‘compressed,’’ ‘‘inhibited,’’ ‘‘ liquefied’’ without regard to the amount of oxygen entry listed in all Roman type. One 24694 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations commenter indicated that the other In addition to revising the proper response information on the shipping entry should be retained for consistency shipping name ‘‘Aluminum smelting by- paper, and use of Division 4.3 labels and with the IMDG Code. The commenter is products or Aluminum remelting by- placards. correct; RSPA is retaining the entry products’’ (formerly Aluminum The list of generic proper shipping ‘‘Maneb or Maneb preparations with not processing by-products), a new special names which require inclusion of a less than 60 per cent maneb.’’ In provision B115 is assigned to this entry technical name in paragraph (k)(3) is addition, several commenters suggested to permit certain non-specification bulk amended by adding several entries for various other revisions to the list and packagings for these products. hydrocarbon gases, hydrocarbon gas RSPA has amended the list accordingly. Commenters representing the aluminum mixtures, and compressed, liquefied or industry responded favorably to this refrigerated gases which have a Section 172.102 proposal. A commenter suggested two subsidiary hazard of oxidizer or A new special provision 15 is added modifications—one to add a new special flammability. In addition, RSPA is as proposed to prescribe quantity limits provision applicable to both non-bulk adding the entry for ‘‘Organometallic and packaging for chemical kits and first and bulk packaging to include certain compound, water reactive, flammable, aid kits. Other special provisions are materials which exhibit corrosivity at n.o.s.’’ which was inadvertently omitted added to authorize reclassification for PG II and III levels and the other to in a previous rulemaking action. certain commodities and to provide allow both special provisions to apply As discussed previously in §§ 171.11, exceptions based on testing, to ‘‘magnesium granules.’’ RSPA is 171.12 and 171.12a, RSPA is adding the concentrations, or stabilization for adding a new Special Provision 128 and word ‘‘Toxic’’ and the phrase ‘‘Toxic- materials such as Maneb, aqueous revising § 172.101 Table entries for UN Inhalation Hazard’’ in paragraph (m)(3) solutions of inorganic solid nitrates, and 3096 and UN 3131 (Packing Groups II as an alternative to ‘‘Poison’’. RSPA Ferrocerium. and III) to allow aluminum smelting by- proposed the addition of a new RSPA proposed to assign Special products and aluminum remelting by- paragraph (m)(4) to provide an Provision 30 to the international entry products which are described by a exception from the requirement to for ‘‘Sulfur’’ to indicate that this generic proper shipping name because indicate on a shipping paper that a material is not subject to the HMR when they meet the criteria for both Division material is toxic if the toxicity of the transported in a non-bulk packaging or 4.3 and Class 8, to be packaged in material is based solely on corrosive if formed in a specific shape. The accordance with Special Provision destruction of tissue rather than Sulphur Institute strongly supported B115. However, RSPA is not expanding systemic poisoning. One commenter this change and recommended this provision to include non-bulk believed this exception should not rewording Special Provision 30 by packagings, nor will Magnesium apply to materials poisonous by removing the phrase ‘‘when transported granules be assigned B115. In the inhalation, which require additional domestically’’. RSPA agrees and this NPRM, RSPA proposed a special shipping paper information to special provision is revised accordingly. provision for aluminum by-products communicate the presence of a fatal One commenter suggested RSPA which would eliminate the need for inhalation hazard. The commenter revise Special Provision 47 to DOT Exemption DOT–E–11602. RSPA believed the proposal was ill conceived incorporate a special provision adopted does not believe it appropriate at this and not beneficial to safety. After in the ICAO Technical Instructions time to adopt, without public notice and further consideration, RSPA believes which allows small packagings comment, new provisions which go consisting of sealed packets containing that this proposed exception may not be beyond the relief authorized in DOT–E– appropriate for any material meeting less than 10 ml of a Packing Group II or 11602 and proposed in the NPRM. III flammable liquid absorbed onto a toxicity criteria, not just a toxic by Special Provision N50, which inhalation hazard material. Therefore, solid material to be excepted from the provides an exception from Class 9 HMR if no free liquid is present in the proposed paragraph (m)(4) is not labeling for marine pollutants that are adopted in this final rule. packet. The commenter believed this not hazardous substances or hazardous provision is consistent with a previous wastes, is removed. A corresponding Part 173 letter of opinion RSPA issued change is made in Column 7 of the HMT Section 173.3 concerning alcohol wipes and should be to remove Special Provision N50 for the adopted as an ‘‘A’’ special provision, at entries ‘‘Environmentally hazardous Paragraph (c)(3) is amended to a minimum, for consistency with ICAO. substance, liquid (or solid) n.o.s.’’ authorize the word ‘‘SALVAGE’’ as an RSPA agrees and is incorporating this alternative marking for salvage drums. exception into Special Provision 47 to Section 172.203 In addition, a new paragraph (c)(7) is apply to all modes of transport. RSPA is removing the requirement in added to allow the use of salvage RSPA proposed to add a new special paragraph (j) that the words ‘‘Dangerous packagings which have been certified provision A25 to authorize polyester When Wet’’ be annotated on shipping and marked to UN standards. RSPA is resin kits in certain quantities to be papers. As discussed previously, RSPA not adopting other marking packaged in non-specification believes that the ‘‘Dangerous When requirements specified in the UN packagings for transportation by aircraft. Wet’’ hazard is adequately Recommendations such as: (1) Adding One commenter suggested removing this communicated through an indication of the letter ‘‘T’’ in the package special provision, as well as Special the Division 4.3 hazard class as part of specification markings following the Provision 40 (which currently is the basic description on shipping package identification code (e.g. 1A2T/ assigned to polyester resin kits), and papers. Commenters uniformly Y300/...); (2) annotating the words incorporating all packaging provisions supported this proposal and stated that ‘‘SALVAGE PACKAGING’’ after the for polyester resin kits in § 173.152. the change was compatible with basic description on the shipping After further consideration, RSPA agrees international standards and that the papers; and (3) adopting salvage and is adding specific packaging ‘‘Dangerous When Wet’’ hazard is packaging performance tests requiring provisions in § 173.152 applicable to all clearly communicated through salvage packagings to be tested at the modes of transport for polyester resin indication of Division 4.3 as part of the Packing Group II level using liquid as kits. basic shipping description, emergency the test medium. It is RSPA’s view that Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24695 additional costs incurred by such of pertinent technical justification (e.g., methods eliminating the requirement for marking and performance testing data indicating forces experienced the competent authority to approve the requirements are not justified because during transport of portable tanks as a packaging for these explosives. salvage packaging provisions currently result of cargo surge). A commenter asked RSPA to revise a prescribed in the HMR are adequate. provision for jet perforating guns in Two commenters addressed proposed Section 173.34 proposed Packing Instruction US1 to changes to this section and both Because of a printing error, in the allow a higher total explosives content supported RSPA’s decision to retain table in paragraph (e)(18)(i), for DOT 8 per tool pallet, based on a current current salvage packaging provisions. or 8AL cylinders used to transport exemption authorizing this higher For example, the Steel Shipping acetylene, under ‘‘Porous filler quantity of explosives. RSPA agrees and Container Institute maintained that it requalification,’’ the year ‘‘2001’’ is is revising US1 to authorize up to 90.8 could not support complete corrected to read ‘‘2011’. kg (200 pounds) total explosive contents harmonization with international Section 173.60 per pallet. salvage packaging standards until it has Another commenter, the Sporting been clearly determined that incidents As proposed, amendments to this Arms and Ammunition Manufacturers’ of failure in salvage packagings meeting section are consistent with the UN Institute (SAAMI), recommended the UN standards are less than those Recommendations, are largely editorial several changes to the proposed meeting current HMR requirements. and serve to streamline and consolidate revisions. First, SAAMI believed the general requirements for packaging elimination of inner packaging Section 173.21 explosives while eliminating redundant requirements for ‘‘Cartridges, small The last sentence of paragraph (f) is and unnecessary requirements. These arms’’ (UN0012) is inconsistent with amended to correctly reference the UN amendments are intended to more § 173.60 (b)(3) and (b)(5). RSPA does not Manual of Tests and Criteria. clearly convey general packaging agree. Only when metal outer requirements applicable to packaging Section 173.32c packagings are used for UN0012, would explosives for transportation and do not § 173.60(b)(3) require a means of Currently an IM portable tank or its impose new requirements. prevention from contact with the compartment having a volume greater RSPA received one comment from a cartridges. This means could be padding than 5000 liters must have a minimum company specializing in explosives or partitions and not necessarily an filling density of 80%. RSPA proposed regulatory compliance. This commenter inner packaging. These cartridges have to increase the minimum tank or recommended adding a reference to their explosives substances enclosed in compartment size to 7500 liters, § 173.24(e) at the end of § 173.60(b)(8) an outer casing and do not require consistent with international standards. and dropping proposed (b)(8) because separation according to § 173.60(b)(3). One commenter claimed that RSPA’s (b)(9) addresses compatibility. RSPA RSPA believes the recessed primer well proposal did not go far enough and does not agree. Section 173.60(b)(8) design of most cartridges for weapons indicated that a filling restriction on specifically addresses loose explosive effectively protects the article from portable tanks used solely for domestic substances or the explosives substance accidental actuation. Shippers should highway transport is unjustified and of a uncased or partly cased article add protection for articles that present precludes shippers from transporting which may present a sifting hazard from an actuation hazard according to relatively small quantities of hazardous the package. However, RSPA believes it § 173.60(b)(5), but that protection can be materials in portable tanks. The may be useful to add the explanatory offered by means other than requiring commenter believed that a filling reference to § 173.24(e) at the end of an inner packaging. restriction of less than 80% for IM § 173.60(b)(9). Secondly, SAAMI claimed that portable tanks or compartments should ‘‘Small arms ammunition, ORM–D’’ Section 173.62 not apply to transport by highway. This would require more stringent packaging commenter also stated that the purpose RSPA proposed new explosives under § 173.63(b)(2) than ‘‘Cartridges, of the ‘‘80% rule’’ was to preclude packaging methods in the Explosives small arms’’ classed as Division 1.4S hydraulic surge that could make Table which were developed by the and packaged in accordance with adequate securing of portable tanks UNCOE, based on comments received Packing Instruction 130. RSPA believes aboard vessels difficult and potentially from the Department of Defense and that more stringent packaging dangerous, but that surge is not a safety explosive industry representatives, and requirements for ORM–D materials concern in highway transport. on competent authority approvals and (which are excepted from most shipping RSPA disagrees that surge is not a exemptions issued to shippers of paper, marking, labeling and placarding safety concern in highway transport of explosives. These new methods are provisions of the HMR) is appropriate. IM portable tanks. Portable tanks, when significantly more flexible than the Furthermore, cartridges for weapons mounted on a vehicle chassis, may have methods currently prescribed in the must be clearly identified, marked and a higher center of gravity as compared Explosives Table and incorporate a labeled as Division 1.4S explosive to standard cargo tank trucks. The broader range of options for authorized articles. effects of liquid movement and its inner, intermediate and outer SAAMI also claimed that packaging destabilizing effect at high speed and packagings. In several instances, inner requirements for ‘‘Cases, cartridge, during abrupt turning can contribute to and intermediate packagings are no empty with primer’’ (UN0055) are more roll-over. This effect is most longer required. Explosives Packing stringent than for ‘‘Cartridges, small predominant when ullage is greater than Instructions are consistent with those arms’’ (UN0012). RSPA believes the 20%. Furthermore, it is RSPA’s opinion adopted in the ICAO Technical inner packaging requirement for that information supplied by this Instructions. In addition, many UN0055, primed cartridge cases, empty commenter does not provide sufficient explosives (particularly those shipped in Packing Instruction 136 is incentive for RSPA to expand relief under not otherwise specified (n.o.s.) appropriate. These cases have an beyond that proposed in the NPRM. entries) which currently require exposed explosive substance coated or RSPA may consider this matter further competent authority packaging approval deposited on the primer which could in future rulemaking action on the basis are now assigned to specific packing loosen and sift out of the outer 24696 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations packaging without the inner packaging to the UN burning rate test method, is edition of the UN Recommendations. requirement. less than 45 seconds or the rate of Incorporating specific criteria for liquid RSPA does not agree with SAAMI’s burning is more than 2.2 mm/s. Powders oxidizers provides a more precise means contention that the wording in Packing of metal or metal alloys are classified in for shippers to classify these products Instruction 133, regarding the Division 4.1 when they can be ignited and eliminates ambiguity involved in authorization of trays as inner and the reaction spreads over the whole classifying these materials by analogy. packagings for certain explosives, is length of the sample in 10 minutes or confusing. RSPA believes that listing less. Section 173.128 UN identification numbers for which Readily combustible solids are In paragraph (c)(3) the reference to the the use of trays as inner packagings is assigned to Packing Group II if the UN Manual of Tests and Criteria is prohibited is clearer because nearly 50 burning time is less than 45 seconds and revised to reflect its correct title. percent fewer numbers are listed. the flame passes the wetted zone. Paragraph (e) is amended to update the Finally, SAAMI recommended that Packing Group II is assigned to powders reference to Figure 11.1 (Classification for ‘‘Primers, cap type’’ (UN0044), D9 of metal or metal alloys if the zone of and Flowchart Scheme for Organic and D11 limitations assigned to current reaction spreads over the whole length Peroxides). Packing Method E–142 should be of the sample in five minutes or less. Section 173.132 reinstated in Packing Instruction 133. Packing Group III is assigned if the RSPA does not agree. The burning time is less than 45 seconds and A new paragraph (b)(3)(iii) is added to harmonization of the HMR to the wetted zone stops the flame clarify when solid and liquid materials international performance-oriented propagation for at least four minutes. are required to be tested for acute packaging requirements and with Packing Group III is assigned to metal toxicity by inhalation. One commenter general packaging instructions for powders if the reaction spreads over the recommended that RSPA remove the explosives has resulted in the successful whole length of the sample in more than second sentence in paragraph (b)(3) elimination of many explosive quantity five minutes but not more than ten because proposed (b)(3)(iii) not only limitations per package. As a result, minutes. addresses this issue but is more specific. shipper compliance has become easier In paragraph (c), Packing Group II and RSPA does not agree. While there is to achieve without increased risk to the III assignment criteria for self-heating some overlap, current (b)(3) provides public. materials is revised to more accurately more details of testing and new account for the volume of material being (b)(3)(iii) is more specific as to when Section 173.120 transported. For instance, certain self- tests must be run. Paragraphs (a)(3) and (b)(3) are heating materials which are packaged Current paragraph (c) is redesignated revised to include a reference to ASTM and transported in volumes less than 3 as paragraph (d), and a new paragraph D 4206 and a new paragraph (c)(1)(i)(C) cubic meters or in quantities less than (c) is added to authorize three methods is added to reference test method ASTM 450 liters are not subject to the for use in classifying and assigning D 3828. requirements of the HMR. packing groups to mixtures of materials In paragraph (d), the packing group possessing oral and dermal toxicity Section 173.124 assignment criteria is revised for characteristics. One commenter pointed Amendments to the test methods for consistency with the UN out that the formula in paragraph (c) is flammable solids, pyrophoric materials, Recommendations. These amendments missing a ‘‘+’’ between the second and self heating substances and water do not significantly affect the packing third fractions and also is missing a note reactive materials are adopted as group assignment criteria, but are purely found in international standards. In this proposed. The Self-Reactive Materials editorial to clarify the meaning of final rule, RSPA is inserting the ‘‘+’’ Table is updated to include seven new ‘‘spontaneous ignition.’’ between the second and third fractions. substances, consistent with the UN RSPA intentionally did not propose the Section 173.127 Recommendations. In the ninth revised additional note referenced by this edition of the UN Recommendations, RSPA is revising the definition for commenter because the note provides Figure 14.2 (Flow Chart for Self- solid oxidizers and adding a new optional information rather than Reactive Substances) was amended. definition, test and criteria for liquid imposing a regulatory requirement. Paragraph (a)(2)(iv) of that chart is used oxidizers. Liquid oxidizers would not be However, for consistency with to determine the generic type for a self- classified by analogy as currently international standards and reactive material. required in the HMR. The references to convenience of the reader, RSPA is Appendix F (which is removed in this Section 173.125 adding the note at the end of paragraph final rule) are replaced by a reference to (c). The criteria for classification and the UN Manual of Tests and Criteria. packing group assignment for readily Paragraph (b)(1) is revised to include Section 173.136 combustible materials of Division 4.1 is a statement indicating that the material A new paragraph (c) is added to amended for consistency with the UN must be tested in the concentration clarify that skin corrosion test data Recommendations. A reference to offered for transport. The criteria for developed prior to September 30, 1995, Appendix E (which is removed in this packing group assignment is revised to would continue to be valid. This final rule) is replaced by references to specify the ratios of solid oxidizing revision is based on a statement in the the UN Manual of Tests and Criteria. material and cellulose used in assessing preamble to the HM–215A final rule In paragraph (b), the UN burning rate the burning characteristics for (December 29, 1994; 59 FR 67400) that test and criteria for classification is comparison with the burning RSPA would not require retesting of incorporated. The classification criteria characteristics of potassium bromate, materials classified under the previous for readily combustible materials is potassium perchlorate or potassium test method in Appendix A of Part 173. amended to require powdered, granular persulphate and cellulose mixtures. and pasty materials to be classified in Paragraph (b)(2) incorporates packing Section 173.137 Division 4.1 when the burning time for group assignment criteria for liquid Paragraph (b) is revised to clarify that, one or more of the test runs, according oxidizers adopted in the ninth revised when determining whether a material Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24697 meets Class 8 Packing Group II, the be waterproof (i.e., lifesaving equipment Paragraph (c)(2), which prohibits IBCs material cannot meet Class 8 Packing designed to function in water). and bulk packagings unless authorized Group I . One commenter indicated that his through an approval, is removed. The Packing Method Table for Generic Section 173.152 company’s batteries would not pass all the tests specified in the UN Tests and Types in paragraph (c)(3) is removed Limited quantity provisions are added Criteria for lithium batteries. RSPA because the information is specifically in paragraph (b)(4)(i) for polyester resin believes the regulations as adopted listed in the Organic Peroxides Table, kits for transport by all modes. provide an adequate alternative for and paragraph (c)(4) is redesignated Section 173.162 lithium battery manufacturers. Under paragraph (c)(3). § 173.185 (i), manufacturers who Paragraph (d) is revised to consolidate A new sentence is added at the end experience difficulty in meeting the UN two tables specifying packagings for of the paragraph to provide an exception Tests and Criteria for lithium batteries liquid and solid organic peroxides and from the HMR for small quantities of may apply for an approval provided self-reactive materials into one table for gallium contained in manufactured they can demonstrate an equivalent both liquids and solids. articles or apparatuses. level of safety. RSPA is authorizing bottom outlets Section 173.166 for organic peroxides in bulk packagings Sections 173.201–173.203 and by removing the prohibition in the last This section is revised to remove all 173.211—173.213 sentence of paragraph (e)(2) and references to ‘‘seat-belt modules’’, Aluminum jerricans, 3B1 or 3B2, are removing paragraph (e)(3)(i)(B). consistent with changes in the UN Paragraph (e)(3)(i)(C) is redesignated Recommendations. Packaging added as authorized packagings in each of these sections. paragraph (e)(3)(i)(B). provisions in paragraph (e) are revised Paragraph (e)(5) is revised to to add drums, jerricans, and plastic Section 173.220 authorize the transport of stabilized boxes to the array of authorized Consistent with proposed changes in peroxyacetic acid, type F (containing packagings. In addition to non- not more than 17 percent peroxyacetic specification containers currently § 176.905 for wet batteries transported by vessel, paragraph (c)(1) is amended acid) in type 31A IBCs. A similar authorized for transporting air bags proposal made by the United States has within a controlled distribution system, to remove the reference to § 176.905 and to state that a motor vehicle or been approved by the UN Committee of RSPA is also specifically authorizing Experts for incorporation into the tenth dedicated handling devices. mechanical equipment which is electrically powered is not subject to the revised edition of the UN Section 173.185 HMR. Recommendations. This section is revised for consistency Section 173.224 Section 173.226 with changes adopted in the ninth Paragraph (c)(1) is amended to add revised edition of the UN In paragraph (b), the Self-Reactive Materials Table is amended by adding aluminum jerricans as an authorized Recommendations and in the ICAO packaging. Technical Instructions. seven new entries. The Packing Method Currently there are different quantity Table for Generic Types in paragraph Section 173.315 limitations in the HMR for determining (c)(3) is removed because the When the hazard class and division whether lithium cells and batteries may information is specifically listed in the assigned to ‘‘Methylamine, anhydrous’’ be designated as items of Class 9 on the Self-Reactive Materials Table, and was changed from Division 2.3 basis of whether they meet the tests and paragraph (c)(4) is redesignated (poisonous gas) to Division 2.1 criteria provided in the UN Manual of paragraph (c)(3). (flammable gas), RSPA failed to correct Tests and Criteria. These limitations Section 173.225 the § 173.315 table entry for this also apply to lithium cells and batteries material by removing Notes 22 and 24. contained in equipment. The limitations Paragraph (b) explains column The table entry is being corrected in this are based on whether the cells or headings in the Organic Peroxide table. final rule. batteries will be transported on Specifically, paragraph (b)(2) describes passenger or cargo aircraft. Consistent the information comprised in the Sections 173.316 and 173.318 with the ICAO Technical Instructions, column entitled ‘‘ID Number.’’ The RSPA proposed the addition of a RSPA is adopting an authorization to word ‘‘Exempt’’ occasionally appears in requirement for mixtures of cryogenic allow cells containing not more than 12 place of an identification number, but is liquids, where charging requirements grams of lithium or lithium alloy, and not defined in § 173.225. In this final are not specifically prescribed, to be batteries containing not more than 500 rule, paragraph (b)(2) is amended by shipped in packagings approved by the grams of lithium or lithium alloy, to be adding a statement to clarify that the Associate Administrator for Hazardous designated as Class 9 when transported word ‘‘Exempt,’’ if it appears in the Materials Safety. A commenter by passenger or cargo aircraft. This also Organic Peroxide Table, means that the expressed confusion as to whether this applies to lithium cells and batteries material is not regulated as an organic proposal would eliminate the need for contained in equipment under specified peroxide. DOT Exemption DOT–E–10001. RSPA is conditions. In paragraph (b)(4)(ii), the use of type revising the proposed provisions in RSPA is also expanding the types of B diluents for desensitization of organic paragraphs (d) and (f)(4) of §§ 173.316 packagings authorized for transporting peroxides is authorized for all organic and 173.318, respectively, to clarify that cells and batteries by aircraft to include peroxides provided that the boiling an approval, rather than an exemption, an array of boxes, drums and jerricans. point is at least 60 °C (140 °F) greater is needed. Additionally, RSPA is eliminating the than the SADT of the organic peroxide requirement for equipment containing in a 50 kg package. Paragraph (b)(6) is Appendix E and Appendix F lithium cells and batteries to be revised to indicate that lower control As proposed, the guidelines for packaged in waterproof outer packaging temperatures are required when IBCs classification and packing group if the equipment itself is constructed to and bulk packagings are used. assignment for Classes 4 and 5 are 24698 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations removed. RSPA believes the UN Manual by vessel, it proposed modifying the Part 178 of Tests and Criteria is a more vessel carriage provisions to allow Section 178.511 appropriate reference for these test battery cables to remain connected in methods. The NPRM stated that by transport and allow vehicles transported This section is amended to adopt removing Appendix E and F, RSPA will on roll-on roll-off ships to be requirements for aluminum jerricans decrease the number of amendments to transported without being subject to the consistent with the UN the HMR necessary for consistency with HMR. Additionally, revised transport Recommendations. Packaging codes 3B1 the UN Manual and will reduce the provisions for vehicles fueled with and 3B2 are added. Paragraph (b) is number of pages in the HMR. One compressed gas and for certain battery- amended to incorporate construction commenter objected to this proposal, powered vehicles were proposed to requirements for aluminum jerricans claiming potential difficulty and provide clarity. consistent with the UN expense in obtaining copies of the most One commenter suggested that RSPA Recommendations. current version of the UN Test Manual. remove this section from the HMR and Section 178.703 RSPA does not agree. A copy of the provide total relief for the transport of In paragraph (b)(6), requirements for current test manual is part of the HM– mechanical equipment powered by marking inner receptacles of 31HZ2 215B public record maintained by internal combustion engine by vessel. composite IBCs are added. All inner RSPA’s Dockets Unit. Upon request to RSPA believes that total relief would receptacles must be marked with the the RSPA Dockets Unit (202–366–5046), not be in the best interest of safety and code number designating the RSPA will reproduce and provide that certain precautions which intermediate bulk container design type, pertinent pages from the most current minimize the potential for hazardous the name or symbol of the manufacturer, UN Test Manual. materials incidents involving internal combustion-powered vehicles and the date of manufacture and the country Part 175 equipment are warranted. authorizing the allocation of the mark. In addition, where the outer casing of a Section 175.10 Another commenter recommended that the motor vehicle carriage 31HZ2 IBC could be dismantled, each of Paragraph (a)(22) is revised to allow requirements in this section be adopted the detachable parts must be marked mercury thermometers (in addition to in the IMDG Code to alleviate the safety with the month and year of manufacture mercury barometers) to be carried in and practical problems that could arise and the name or symbol of the carry-on baggage by a representative of with the deregulation of motor vehicles manufacturer. a government weather bureau or similar in Amendment 28 of the Code. Work at Section 178.707 official agency, provided the individual the International Maritime Organization advises the aircraft operator of its to amend the IMDG Code is beyond the In paragraph (c)(2), a new requirement presence in the baggage. scope of this rulemaking. The is added to indicate that the outer packaging of 31HZ2 composite IBCs Part 176 commenter also noted that to require the fuel tank to be no more than one-fourth must enclose the inner receptacles on Section 176.78 full is somewhat arbitrary and can be all sides. In paragraph (c)(3) a new requirement is added to indicate that Paragraph (k), which pertains to eliminated with an inspection for leaks inner receptacles of 31HZ2 composite stowage of power-operated industrial prior to loading. RSPA does not agree. IBCs must consist of at least three plies trucks on board a vessel, is revised to The purpose of the quarter tank of film. In paragraph (c)(6), a new correspond to proposed revisions in requirement is to limit the amount of requirement is added to indicate that § 176.905. flammable vapors which would collect in an enclosed space such as a freight IBCs of type 31HZ2 must be limited to Section 176.84 container should a fuel leak occur. a capacity of not more than 1250 liters. A new code 17 is added to prescribe Although fuel tanks sizes vary, RSPA Section 178.815 segregation for a compressed or believes that limiting the fuel present in In paragraph (c)(3), the words ‘‘which liquefied gas which is toxic, flammable a vehicle’s tank is a valuable safety bear the stacking load’’ are added to and corrosive. measure necessary to alleviate the clarify that rigid plastic IBCs and hazard of an undetected leak during composite IBCs with plastic outer Section 176.905 long ocean voyages. Therefore, the packagings must be tested for 28 days at RSPA is revising requirements for proposed requirement will remain ° ° transporting motor vehicles or unchanged. Finally, this commenter 40 C (104 F) when the plastic outer mechanical equipment powered by noted that paragraph (f) requires a fire packagings bear the stacking load. IBCs internal combustion engines by vessel to extinguishing system capable of alerting with plastic outer packagings that are take account of recent changes which personnel on the bridge of a ship, which designed with metal corner posts to bear the stacking load are not required to be have occurred in the IMDG Code and in should apply instead to the smoke or ° ° response to comments received to the fire detection system discussed in tested for 28 days at 40 C (104 F), but NPRM and during public outreach paragraph (g). RSPA agrees and is must be subjected to the stacking test for meetings. In Amendment 27 of the revising this provision accordingly. 24 hours. Code, the proper shipping name Several provisions are added to IV. Rulemaking Analyses and Notices ‘‘Engines, Internal Combustion’’, incorporate transport safety measures UN3166, was added in order to regulate included in recently issued motor A. Executive Order 12866 and DOT motor vehicles and other equipment vehicle exemptions that now allow Regulatory Policies and Procedures powered by internal combustion transport of motor vehicles with This final rule is not considered a engines. However, this proper shipping batteries connected. These provisions significant regulatory action under name was removed and these materials include a requirement for an inspection section 3(f) of Executive Order 12866 were deregulated in Amendment 28 of of the vehicle’s battery and associated and, therefore, was not reviewed by the the IMDG Code. equipment prior to loading and Office of Management and Budget. The Although RSPA did not propose total requiring the removal of a vehicle’s rule is not considered a significant rule relief for the transport of motor vehicles ignition key. under the Regulatory Policies and Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24699

Procedures of the Department of covered subjects DOT must determine E. Regulation Identifier Number (RIN) Transportation [44 FR 11034]. and publish in the Federal Register the A regulation identifier number (RIN) The economic impact of this final rule effective date of Federal preemption. is assigned to each regulatory action is expected to result in only minimal The effective date may not be earlier listed in the Unified Agenda of Federal costs to certain persons subject to the than the 90th day following the date of Regulations. The Regulatory Information HMR and may result in modest cost issuance of the final rule and not later Service Center publishes the Unified savings to a small number of persons than two years after the date of issuance. Agenda in April and October of each subject to the HMR and to the agency. RSPA has determined that the effective year. The RIN number contained in the Most of the revised requirements date of Federal preemption for these heading of this document can be used adopted in this rulemaking received requirements will be [insert date 180 to cross-reference this action with the industry-association support before the days after issuance of final rule] under Unified Agenda. United Nations Committee of Experts on this docket. Thus, RSPA lacks discretion the Transport of Dangerous Goods. Of in this area, and preparation of a List of Subjects the comments received in this docket, federalism assessment is not warranted. 49 CFR Part 171 few dealt with increased costs of compliance. Nevertheless, RSPA C. Regulatory Flexibility Act Exports, Hazardous materials believes it adequately addressed the transportation, Hazardous waste, This final rule incorporates changes Imports, Incorporation by reference, concerns of commenters focused on adopted in the ninth revised edition of increased costs of compliance through Reporting and recordkeeping the UN Recommendations, the 1997–98 requirements. its adoption of a five-year extended ICAO Technical Instructions, and compliance period pertaining to Amendment 28 to the IMDG Code. It 49 CFR Part 172 package marking requirements. Because applies to offerors and carriers of Hazardous materials transportation, of the minimal economic impact of this hazardous materials and facilitates the Hazardous waste, Labels, Markings, rule, preparation of a regulatory impact transportation of hazardous materials in Packaging and containers, Reporting analysis or a regulatory evaluation is not international commerce by providing and recordkeeping requirements. warranted. consistency with international 49 CFR Part 173 B. Executive Order 12612 requirements. Hazardous materials transportation, This final rule has been analyzed in This final rule will affect small Packaging and containers, Radioactive accordance with the principles and business entities that ship or transport materials, Reporting and recordkeeping criteria contained in Executive Order hazardous materials, but any adverse requirements, Uranium. 12612 (‘‘Federalism’’). Federal economic impact should be minimal. hazardous materials transportation law, Certain costs incurred through changes 49 CFR Part 175 49 U.S.C. 5701–5127, contains an to hazard communication and Air carriers, Hazardous materials express preemption provision (49 U.S.C. classification requirements will be transportation, Radioactive materials, 5125(b)) that preempts State, local, and minimized through a lengthy optional Reporting and recordkeeping Indian tribe requirements on certain compliance period, which will allow a requirements. covered subjects. Covered subjects are: sufficient phase-in period to implement (1) The designation, description, and new provisions and deplete current 49 CFR Part 176 classification of hazardous material; inventory affected by the new Hazardous materials transportation, (2) The packing, repacking, handling, requirements. If changes already Maritime carriers, Radioactive materials, labeling, marking, and placarding of incorporated in international standards Reporting and recordkeeping hazardous material; are not adopted in this final rule, U.S. requirements. (3) The preparation, execution, and companies, including numerous small use of shipping documents related to entities competing in foreign markets, 49 CFR Part 178 hazardous material and requirements will be at an economic disadvantage by Hazardous materials transportation, related to the number, contents, and being forced to comply with a dual Motor vehicles safety, Packaging and placement of those documents; system of regulation. containers, Reporting and recordkeeping (4) The written notification, requirements. recording, and reporting of the Based on readily available information concerning the size and In consideration of the foregoing, 49 unintentional release in transportation CFR Chapter I is amended as follows: of hazardous material; or nature of entities likely affected by this final rule, I certify this rule will not (5) The design, manufacturing, PART 171ÐGENERAL INFORMATION, have a significant economic impact on fabricating, marking, maintenance, REGULATIONS, AND DEFINITIONS reconditioning, repairing, or testing of a a substantial number of small entities packaging or container represented, under criteria of the Regulatory 1. The authority citation for part 171 marked, certified, or sold as qualified Flexibility Act. continues to read as follows: for use in transporting hazardous D. Paperwork Reduction Act Authority: 49 U.S.C. 5101–5127; 49 CFR material. 1.53. This final rule addresses covered The requirements for information 2. In the § 171.7(a)(3) Table, two new subjects under items (1), (2), (3), and (5) collection have been approved by the entries are added in numerical order above and, if adopted as final, would Office of Management and Budget under the entry for American Society for preempt State, local, or Indian tribe (OMB) under OMB control numbers Testing and Materials and the last entry requirements not meeting the 2137–0034 for shipping papers and under the entry for United Nations is ‘‘substantively the same’’ standard. 2137–0557 for approvals. Under the revised, to read as follows: Federal hazardous materials Paperwork Reduction Act of 1995, no transportation law provides at person is required to respond to a § 171.7 Reference material. § 5125(b)(2) that if DOT issues a collection of information unless it (a) Matter incorporated by reference. regulation concerning any of the displays a valid OMB control number. *** 24700 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

(3) Table of material incorporated by reference. * * *

Source and name of material 49 CFR reference

******* American Society for Testing and Materials

******* ASTM D 3828±93, Standard Test Methods for Flash Point by Small Scale Closed Tester ...... 173.120. ASTM D 4206±96 Standard Test Method for Sustained Burning of Liquid Mixtures Using the Small Scale Open- 173.120. Cup Apparatus.

******* United Nations

******* UN Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, Second Revised Edi- 173.21, 173.56 173.57, tion, 1995. 173.124 173.128, 173.166 173.185.

* * * * * packaging or article and is itself to read ‘‘ ‘Toxic Inhalation Hazard’ or enclosed in an outer packaging. ‘Poison Inhalation Hazard’ ’’. § 171.7 [Amended] * * * * * 7. In § 171.12, a new paragraph (b)(17) 3. In addition, in § 171.7, in the table is added to read as follows: in paragraph (a)(3), the following SADT means self-accelerated changes are made: decomposition temperature. See § 171.12 Import and export shipments. § 173.21(f) of this subchapter. a. In the entry ASTM D 93–90, the * * * * * wording ‘‘D 93–90’’ is revised to read ‘‘D Salvage packaging means a special (b) * * * 93–94’’. packaging conforming to § 173.3 of this (17) An aerosol must meet the b. In the entry ASTM D 3278–89, the subchapter into which damaged, definition for ‘‘Aerosol’’ in § 171.8. wording ‘‘D 3278–89’’ is revised to read defective or leaking hazardous materials * * * * * ‘‘D 3278–95’’. packages, or hazardous materials that c. In the entry ASTM G 31–72, the have spilled or leaked, are placed for § 171.12 [Amended] wording ‘‘(Reapproved 1990)’’ is revised purposes of transport for recovery or 8. In addition, in § 171.12, the to read ‘‘(Reapproved 1995)’. disposal. following changes are made: d. Under Transport Canada, the entry * * * * * a. In paragraph (b)(8)(i), the wording ‘‘Transportation of Dangerous Goods 5. In § 171.11, paragraph (d)(4) is ‘‘ ‘Poison-Inhalation Hazard’ ’’ is revised Regulations, 1 July 1985’’ is amended by revised and a new paragraph (d)(14) is to read ‘‘ ‘Toxic Inhalation Hazard’ or revising the reference ‘‘and SOR/94–264 added, to read as follows: ‘Poison Inhalation Hazard’ ’’. (English edition)’’ at the end of the entry b. Paragraph (b)(13) is removed and to read ‘‘, SOR/94–264 (English edition), § 171.11 Use of ICAO Technical reserved. SOR/95–241, and SOR/95–547’’. Instructions. e. Under United Nations, for the entry 9. In § 171.12a, a new paragraph * * * * * (b)(16) is added to read as follows: ‘‘UN Recommendations on the (d) * * * Transport of Dangerous Goods, Eighth (4) When a hazardous material that is § 171.12a Canadian shipments and Revised Edition (1993)’’ the wording regulated by this subchapter for packagings. ‘‘Eighth Revised Edition (1993)’’ is transportation by highway is * * * * * revised to read ‘‘Ninth Revised Edition transported by motor vehicle on a (b) * * * (1995)’’. public highway under the provisions of (16) An aerosol must meet the 4. In § 171.8, the following definitions this section, the following requirements definition for ‘‘Aerosol’’ in § 171.8. are added in the appropriate apply: alphabetical order to read as follows: § 171.12a [Amended] (i) The motor vehicle must be § 171.8 Definitions and abbreviations. placarded in accordance with subpart F 10. In addition, in § 171.12a, the of part 172 of this subchapter; and following changes are made: * * * * * a. In paragraph (b)(5)(i), the wording Aerosol means any non-refillable (ii) The shipping paper must include ‘‘ ‘Poison-Inhalation Hazard’ ’’ is revised metal receptacle containing a gas an indication that the shipment is being to read ‘‘ ‘Toxic Inhalation Hazard’ or compressed, liquefied or dissolved made under the provisions of this ‘Poison Inhalation Hazard’ ’’. under pressure, the sole purpose of section or must include the letters b. Paragraph (b)(12) is removed and which is to expel a nonpoisonous (other ‘‘ICAO.’’ reserved. than a Division 6.1 Packing Group III * * * * * 11. Section 171.14 is amended by material) liquid, paste, or powder and (14) An aerosol must meet the adding a new paragraph (d) to read as fitted with a self-closing release device definition for ‘‘Aerosol’’ in § 171.8. follows: allowing the contents to be ejected by the gas. § 171.11 [Amended] § 171.14 Transitional provisions for * * * * * 6. In addition, in § 171.11, in implementing requirements based on the Intermediate packaging means a paragraph (d)(9)(i), the wording UN Recommendations. packaging which encloses an inner ‘‘ ‘Poison-Inhalation Hazard’ ’’ is revised * * * * * Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24701

(d) A rule published in the Federal is marked and labeled under the new (15) Hydrates of inorganic substances Register on May 6, 1997, effective shipping description; may be identified using the proper October 1, 1997, resulted in revisions to (ii) If either shipping names or shipping name for the equivalent this subchapter. During the transition identification numbers are identical, a anhydrous substance if the hydrate period provided in paragraph (d)(1) of shipping paper may display the new meets the same hazard class or division, this section, a person may elect to shipping description even if the package subsidiary risk(s) and packing group, comply with either the applicable is marked and labeled under the old unless the hydrate is specifically requirements of this subchapter in effect shipping description; and identified in the Table. on September 30, 1997, or the (iii) Either old or new placards may be * * * * * requirements of this subchapter in the used regardless of whether old or new May 6, 1997 final rule, in effect on shipping descriptions and package (l) * * * October 1, 1997. markings are used. (3) The proper shipping name of a (1) Transition date. On October 1, hazardous material changed in the May 1998, all applicable regulatory PART 172ÐHAZARDOUS MATERIALS 6, 1997 final rule, in effect on October requirements adopted in the May 6, TABLE, SPECIAL PROVISIONS, 1, 1997, only by the addition or 1997 final rule in effect on October 1, HAZARDOUS MATERIALS omission of the word ‘‘compressed,’’ 1997 must be met. COMMUNICATIONS, EMERGENCY ‘‘inhibited,’’ ‘‘liquefied’’ or ‘‘solution’’ (2) Intermixing old and new RESPONSE INFORMATION, AND may continue to be used to comply with requirements. Prior to the transition TRAINING REQUIREMENTS package marking requirements, until date in paragraph (d)(1) of this section, 12. The authority citation for part 172 January 1, 2003. it is recommended that the hazard continues to read as follows: * * * * * communication requirements be consistent where practicable, i.e., Authority: 49 U.S.C. 5101–5127; 49 CFR § 172.101 [Amended] marking, labeling, placarding, and 1.53. 14. In addition, in § 172.101, in shipping paper descriptions should 13. In § 172.101, new paragraphs paragraph (f), in the second sentence, conform to either the old requirements (c)(14), (c)(15), and (l)(3) are added to the wording ‘‘Classes 2 and 7 materials of this subchapter in effect on read as follows: September 30, 1997, or new and ORM–D materials’’ is revised to requirements of this subchapter in the § 172.101 Purpose and use of hazardous read ‘‘Class 2, Class 7, Division 6.2 May 6, 1997 rule, in effect on October materials table. (other than regulated medical wastes), 1, 1997, without intermixing of * * * * * and ORM–D materials’’. communication elements. However, (c) * * * 15. In § 172.101, the Hazardous intermixing is permitted, during the (14) A proper shipping name that Materials Table is amended by applicable transition period, for describes all isomers of a material may removing, adding, or revising, in packaging, hazard communication, and be used to identify any isomer of that appropriate alphabetical sequence, the handling provisions, as follows: material if the isomer meets criteria for following entries to read as follows: (i) If either shipping names or the same hazard class or division, identification numbers are identical, a subsidiary risk(s) and packing group, § 172.101 Purpose and use of hazardous shipping paper may display the old unless the isomer is specifically materials table. shipping description even if the package identified in the Table. * * * * * 24702 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations (10B) Other (10) Vessel stowage (10A) Location (9B) craft only Cargo air- (9) Quantity limitations (9A) aircraft/rail Passenger Bulk (8C) *) * (8) (8B) 173. * Non-bulk Packaging (§ ABLE T (8A) Exceptions ATERIALS (7) M Special provisions AZARDOUS (6) Label codes 172.101ÐH § (5) PG ...... (4) bers tion num- Identifica- NA0350 (3) ****************************************** ******* ******* vision Hazard ...... class or di- ...... Ammonia Ammonia

relative relative ...... or or (2) ...... shipping names liquefied by-products (both en- tries) nitropropane-1,3-diol liquefied solutions, solutions, density less than 0.880 at 15 degrees C in water, with more than 50 percent am- monia density less than 0.880 at 15 degrees C in water, with more than 50 percent am- monia ygen mixtures Hazardous materials descriptions and proper Ammonia, anhydrous, Boosters with detonator Aluminum processing n-Amylene 2-Bromo-2- Butoxyl n-Butyl bromide [REMOVE] Ammonia, anhydrous, Butylpropionate Carbon dioxide and ox- (1) Symbols I ...... D ...... D ...... Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24703 ...... NA0006 NA0412 ******* ************** ********************* ******* ******* ******* ******* ******* ************** ...... - . ′ ......

...... with with with . . must be ...... diisocyanate entries) Propylene dichloride (both entries) n.o.s devices classified and labelled according to the hazard class of the constitutent(s) and must meet the requirements of spe- cial provision 15 in 172.102(c)(1)) more than 5 percent but less than 16 per- cent available chlo- rine not less than 16 per- cent available chlo- rine with flammable gas monobutyl ether devices flammable liquid Diphenylmethane-4,4 Engine starting fluid, Chlorite solution Chlorite solution Coating solution (both Dibromobenzene Diethylaminoethanol Furfural Gas, refrigerated liquid, Explosive pest control Ethylene glycol Explosive pest control Firelighters, solid Chemical kits ( Dichloropropane, see 24704 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations (10B) Other (10) Vessel stowage (10A) Location (9B) craft only Cargo air- (9) Quantity limitations (9A) aircraft/rail Passenger Bulk (8C) *) * (8) (8B) 173. * Non-bulk Packaging (§ ÐContinued (8A) Exceptions ABLE T (7) Special provisions ATERIALS M (6) AZARDOUS Label codes (5) PG 172.101ÐH § (4) bers tion num- Identifica- ******* (3) ******* ************** ******* ******* ******* ******* ******* ******* ******* vision Hazard ...... class or di- ...... (2) . or . shipping names wetted liquids, n.o.s. (all three entries) tetraphosphate, liquid (PG I and III) tetraphosphate, solid (PG I and III) with more than 5 per- cent but less than 16 percent available chlorine with 16 percent or more available chlo- rine Nitromannite, wetted with not less than 40 percent water, by mass or mixture of al- cohol and water ganic, n.o.s Hazardous materials descriptions and proper Hypochlorite solutions Mannitol hexanitrate, Methyl benzoate Methyl vinyl ketone Halogenated irritating Hexaethyl Nitrosoguanidine Hexaethyl tert-Octyl mercaptan Hypochlorite solutions Pentan-2,4-dione Percarbonates, inor- (1) Symbols Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24705 40, 48, 85 A ...... B ...... 30 L Forbidden ...... 1 L Forbidden ...... 243 None ...... None 201 ...... 306 150 ...... T30 N82 B42, T7, ...... 2.1 ... I ...... 3 ...... NA0474 NA0477 UN1950 UN1133 ...... ******* **************************** **************************** ******* ******* ************** ******* ******* ...... 2.1 3 ...... )...... )

with 70 constant

explosive ......

R1113 containing a

engine starting each not ex- explosive ). . . ) (

R503 ate of isophoronediisocyan- ate, solution, ( liquid liquid chlorotrifluorometh- ane mixture ( inhibited, matic nitro-deriva- tives, matic nitro-deriva- tives, n.o.s. in dough, sheet or extruded rope form boiling mixture percent, by mass flammable liquid n.o.s. ( fluid ceeding 1 L capacity Triisocyanatoisocyanur- Propellant, explosive, Propellant explosive, Propylene dichloride Trifluoromethane and Tributylamine Trifluorochloroethylene, [ADD:] Adhesives, Potassium salts of aro- Plastic molding material Selenium powder Sodium salts of aro- Sodium percarbonate Aerosols, flammable, 24706 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations (10B) Other 40, 57 85, 103 85, 103 28, 36 40, 57 40, 57 40, 57 40 12, 25, 40 56, 68, 106 (10) Vessel stowage (10A) Location ...... B ...... A ...... D ...... B ...... E ...... D ...... D ...... C ...... D ...... B ...... B ...... (9B) craft only Cargo air- 25 kg 100 kg 50 kg 15 kg 25 kg 25 kg 25 kg 60L 50 kg 220 L 30 L (9) Quantity limitations ...... (9A) ...... aircraft/rail Passenger Forbidden Forbidden Forbidden Forbidden 25 kg 15 kg 1 kg 5L 60 L 25 kg 2.5L ...... Bulk (8C) 314, 315 314, 315 314, 315 241 242 None 314, 315 242 242 None 241 *) * ...... (8) (8B) 173. * Non-bulk Packaging 304 304 213 211 304 212 203 213 304 202 203 (§ ...... ÐContinued ...... (8A) Exceptions None None None None None None 150 151 None 150 152 ABLE T ...... (7) ...... B115 A19, A20, N41 B115 T8 Special provisions B106, 23,A8, B106, B1,T1 13 46 T1 13 A2, N41, ATERIALS M (6) ...... 4 ...... 4 ...... AZARDOUS Label codes ...... 4.3 4.1 2.3, 8 2.3, 8 2.2 4.3 4.1 2.2 5.1 (5) PG 172.101ÐH ...... 3 ...... 3 ...... § III II III III II III ... I ...... (4) bers tion num- Identifica- UN3317 UN3318 UN1005 UN3170 UN3318 UN1914 UN3241 UN1126 UN1005 UN2429 (3) ...... ******* ******* ******* ************** ******* ******* ******* vision ******* Hazard class or di- 4.1 2.2 2.3 2.3 4.3 4.1 2.2 5.1 ......

rel- rel- ...... 3 ...... 3 ...... Aluminum

or . . (2) . shipping names Dinitrophenol, wetted remelting by-products products nitropropane-1,3-diol with not less than 20 percent water by mass ative density less than 0.880 at 15 de- grees C in water, with more than 50 percent ammonia ative density less than 0.880 at 15 de- grees C in water, with more than 50 percent ammonia ous solution Hazardous materials ...... descriptions and proper Ammonia solution, Ammonia, anhydrous Ammonia solution, 2-Amino-4,6- Aluminum smelting by- Butyl propionates 2-Bromo-2- Ammonia, anhydrous 1-Bromobutane Calcium chlorate aque- [ADD] 1- (1)

Dn-Butyl bromide, see Bromobut- ane Symbols I ...... I ...... D ...... D ...... Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24707 26 40 26 40 40 40 . . . . . D ...... D ...... D ...... 17, 40 D ...... 17, 40 17, 40 17, 40 40, 89, 90 ...... A ...... A ...... A ...... B ...... E ...... B ...... B ...... Forbidden 60 L Forbidden Forbidden 30 L 60 L 10 kg 30 L D ...... 150 kg Forbidden 220 L D ...... D ...... D ...... D ...... Forbidden Forbidden Forbidden 5 L 5 L Forbidden Forbidden 1 L 60 L 10 kg 1 L Forbidden Forbidden Forbidden Forbidden 75 kg ...... 245 314, 315 314, 315 242 241 Forbidden 314, 315 243 242 None Forbidden Forbidden Forbidden Forbidden 314, 315 242 ...... 192 302, 305 302, 305 202 203 302, 305 201 203 None 314, 315 245 314, 315 314, 315 244 304 202 ...... None None None None 150 150 None 154 192 302, 305 306 150 154 302, 305 302, 305 192 ...... B2, N34, T8 B2, N34, T8 B1,T7,T30 A3,A6, A7, None None T42 T7,T30 A3,A6, A7, 15 None None None 77 ...... 2 ...... 1 ...... 3 ...... 4 ...... 2.3, 8 2.3, 8 2.3, 8 1 ...... 2 ...... 2.3, 8 3 ...... 4 ...... 1 ...... 2.2, 5.1 ...... 3 ...... 8 ...... 3 ...... 8 ...... 2.3, 2.1, 8 2.3, 2.1, 8 III III 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 5.1, 8 II II ...... I ...... 3 ...... 9 ...... UN3305 UN3305 UN3304 UN3304 UN3304 UN3305 UN3305 UN3306 UN3304 UN1139 UN1908 UN3316 UN1014 ...... ******* ******* ******* ******* ******* 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 3 ...... 9 ...... 2.2 . . . . ).

Inha- Inha- Inha- Inha-

in- ...... 8 ...... First

or . . . . .

containing .

Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- ). ygen mixtures, com- pressed aid kits ( corrosive, n.o.s. flammable, corrosive, n.o.s. corrosive, n.o.s. flammable, corrosive, n.o.s. corrosive, n.o.s. flammable, corrosive, n.o.s. flammable, corrosive, n.o.s. oxdizing, corrosive, n.o.s. hazardous materials cludes surface treat- ments or coatings used for industrial or other purposes such as vehicle undercoat- ing, drum or barrel lining lation Hazard Zone A lation Hazard Zone B corrosive, n.o.s. lation Hazard Zone C lation Hazard Zone D ard Zone A ard Zone B ard Zone C ard Zone D ard Zone A ...... Coating solution ( Carbon dioxide and ox- Compressed gas, toxic, Chlorite solution Compressed gas, toxic, Chemical kits Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, I ...... I ...... I ...... I ...... 1 ...... I ...... I ...... I ...... I ...... 24708 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations (10B) Other 40. 25 . . . (10) Vessel stowage (10A) . . . . Location 40 40 40 40 40, 89, 90 40, 89, 90 40, 89, 90 .... B ...... A ...... A ...... A ...... B ...... B ...... A ...... A ...... D ...... (9B) 15 kg craft only Cargo air- 100 kg 100 kg D ...... D ...... D ...... D ...... 60 L D ...... D ...... D ...... 60 L 30 L 60 L 2.5 L 2.5 L (9) Quantity ...... limitations ...... (9A) 1 kg aircraft/rail Passenger 25 kg Forbidden Forbidden Forbidden Forbidden 5 L 25 kg Forbidden Forbidden Forbidden 5 L 1 L 5 L 0.5 L 0.5 L ...... Bulk (8C) None None Forbidden Forbidden Forbidden Forbidden 242 None Forbidden Forbidden Forbidden 243 243 243 243 243 *) ...... * ...... (8) (8B) ...... 304 173. * Non-bulk Packaging 314, 315 314, 315 314, 315 245 62 202 213 314, 315 314, 315 314, 315 202 202 202 201 201 (§ ...... ÐContinued ...... (8A) 306 Exceptions 192 302, 305 63(f), 63(g) 150 None 302, 305 302, 305 302, 305 302, 305 302, 305 None None None None None ABLE T ...... (7) ...... T26 T42 Special provisions None None 104 N36,T1 A1, A19 None None None None None T15 B2,T15, T8 A7, B10, 11, B10 ATERIALS M (6) ...... AZARDOUS ...... Label codes ...... 2.1 1.4S 3 ...... 4 ...... 4.1 2 ...... 6.1, 3 8,3 6.1 .... 3 ...... 4 ...... 1 ...... 2 ...... (5) PG 172.101ÐH ...... 3 ...... § 2.3, 5.1, 8 2.3, 5.1, 8 2.3, 5.1 2.3, 5.1 II II III 2.3, 5.1, 8 2.3, 5.1 2.3, 5.1 II II II ...... I ...... 8 ...... I ...... 8 ...... (4) bers tion num- Identifica- UN3306 UN3306 UN0500 UN1279 UN2623 UN3306 UN3303 UN3303 UN3303 UN3303 UN2037 UN1199 UN2686 UN3302 UN1903 UN2801 ...... ******* ******* ******* ******* ******* ******* ******* ******* (3) ...... vision Hazard class or di- 2.3 2.3 2.3 2.3 2.3 2.3 2.3 1.4S 2.1 4.1 6.1 8 ...... 6.1 8 ...... 8 ...... 3 ......

Inha- Inha- Inha- Inha- . with

(flam- for blast- ...... (2) .

Inhalation Haz- Inhalation Haz- Inhalation Haz- . . shipping names oxidizing, corrosive, n.o.s. oxidizing, n.o.s. oxidizing, n.o.s. oxidizing, n.o.s. oxidizing, n.o.s. oxidizing, corrosive, n.o.s. oxidizing, corrosive, n.o.s. non- electric acrylate rosive, n.o.s ard Zone B ard Zone C ard Zone D lation Hazard Zone A lation Hazard Zone B lation Hazard Zone C lation Hazard Zone D ing n.o.s. or Dye inter- mediates, liquid, cor- rosive, n.o.s. flammable liquid mable) without a re- lease device,non-re- fillable Hazardous materials descriptions and proper Compressed gas, toxic, 1,2-Dichloropropane Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, Furaldehydes Compressed gas, toxic, Compressed gas, toxic, Compressed gas, toxic, Detonator assemblies, 2-Diethylaminoethanol Gas cartridges, 2-Dimethylaminoethyl Disinfectant, liquid, cor- Dyes, liquid, corrosive, Firelighters, solid (1) Symbols I ...... I ...... I ...... Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24709 40 17, 40 17, 40 17, 40 40, 89, 90 40, 89, 90 40 40 17, 40 40, 89, 90 40, 89, 90 40 40 26 26 D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... B ...... B ...... Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden 500 kg Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden 30 L 60 L ...... Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden 50 kg Forbidden 1 L 5 L ...... 318 245 314, 315 314, 315 245 314, 315 245 314, 315 314, 315 314, 315 314, 315 314, 315 314, 315 318 318 242 241 ...... 304 304 192 304 192 304 316 304 304 304 192 304 304 316 316 202 203 ...... 320 None 320 None None None None None None None None None None None None 154 154 . . B15, N34, T7 T7 A7, B2, B104, N34, ...... 3 ...... 4 ...... 1 ...... 2 ...... 1 ...... 2 ...... 3 ...... 4 ...... 3 ...... 4 ...... 1 ...... 2 ...... 2.2 2.1 2.2, 5.1 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 5.1, 8 2.3, 2.1, 8 2.3, 8 2.3, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 8 2.3, 8 ...... 8 ...... 8 ...... II III ...... UN3158 UN3312 UN3311 UN3309 UN3309 UN3310 UN3310 UN3308 UN3308 UN3309 UN3309 UN3310 UN3310 UN3308 UN3308 UN1791 ******* ******* ...... ******* ******* 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.2 2.1 2.2 ...... 8 ......

. Inha- Inha- Inha- Inha- (cryo- ......

(cryogenic liq- Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- Inhalation Haz- . oxidizing, corrosive, n.o.s. flammable, n.o.s. oxidizing, n.o.s. n.o.s. flammable, corrosive, n.o.s. flammable, corrosive, n.o.s. oxidizing, corrosive, n.o.s. oxidizing, corrosive, n.o.s. corrosive, n.o.s. corrosive, n.o.s. flammable, corrosive, n.o.s. oxidizing, corrosive, n.o.s. corrosive, n.o.s. flammable, corrosive, n.o.s. (cryogenic liquid) uid) genic liquid) corrosive, n.o.s. lation Hazard Zone A lation Hazard Zone B lation Hazard Zone C lation Hazard Zone D ard Zone A ard Zone B ard Zone C ard Zone D ard Zone A ard Zone B ard Zone C ard Zone D Liquefied gas, toxic, Gas, refrigerated liquid, Gas, refrigerated liquid, Gas, refrigerated liquid, Liquefied gas toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Hypochlorite solutions Liquefied gas, toxic, I ...... I ...... I ...... I ...... I ...... I ...... I ...... I ...... I ...... I ...... I ...... I ...... 24710 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations (10B) Other 106 40 56, 58, 69, 40 40 40 1E, 5E 40, 102 40 (10) Vessel stowage (10A) Location D ...... D ...... D ...... D ...... B ...... D ...... B ...... C ...... E ...... D ...... C ...... (9B) craft only Cargo air- Forbidden 100 kg Forbidden Forbidden 2.5 L 0.5 kg Forbidden 50 kg Forbidden Forbidden Forbidden (9) Quantity limitations ...... (9A) aircraft/rail Passenger Forbidden Forbidden Forbidden Forbidden Forbidden 25 kg Forbidden Forbidden 15 kg Forbidden Forbidden ...... Bulk (8C) 245 314, 315 314, 315 243 None 241 314, 315 None 241 244 244 *) * ...... (8) (8B) ...... 173. * Non-bulk Packaging 192 304 304 201 None 304 213 212 62 227 226 (§ ...... ÐContinued (8A) Exceptions None None None None None None None None None None None ABLE . T ...... (7) B32, B74, T38, T43, T45 B14, B30, B72, T38, T43,T44 Special provisions 127, A2 118 None B101 121 2, B9, B14, 1, 25, B9, ATERIALS M (6) ...... 1 ...... 2 ...... 3 ...... 4 ...... AZARDOUS Label codes ...... 2.3, 5.1 2.3, 5.1 2.3, 5.1 4.1 5.1 2.3, 5.1 4.2 1.1D 4.2 6.1, 3 6.1, 3, 8 (5) PG 172.101ÐH ...... § II II III ...... I ...... I ...... I ...... (4) bers tion num- Identifica- UN3307 UN3307 UN3307 UN3319 UN3139 UN0133 UN3307 UN3313 UN3023 UN1251 ...... (3) ...... ******* ******* ******* ******* ******* ******* vision Hazard class or di- 5.1 1.1D 2.3 2.3 2.3 2.3 4.1 4.2 6.1 6.1 ......

Inha- Inha- Inha- Inha- . . . (2)

or . shipping names oxidizing, n.o.s. Nitromannite, wetted oxidizing, n.o.s heating oxidizing, n.o.s. wetted oxidizing, n.o.s. lation Hazard Zone A lation Hazard Zone B lation Hazard Zone C lation Hazard Zone D with not less than 40 percent water, or mix- ture of alcohol and water, by mass stabilized with more than 2 per- cent but not more than 10 percent nitro- glycerin, by mass, desensitized Hazardous materials ...... descriptions and proper Liquefied gas, toxic, Oxidizing liquid, n.o.s Liquefied gas, toxic, Organic pigments, self- Liquefied gas, toxic, Mannitol hexanitrate, Liquefied gas, toxic, 2-Methyl-2-heptanethiol Methyl vinyl ketone, Nitroglycerin mixture (1) Symbols Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24711 106 106 26 85, 87 56, 58, 69, 106 56, 58, 69, 56, 58, 69, ...... A ...... A ...... A ...... E ...... B ...... A ...... E ...... E ...... B ...... B ...... E ...... 30 L 30 l 200 kg 30 L 30 L 60 L 30 L 30 L 30 L 30 L 220 L ...... 1 L 1 L 100 kg 5 L 1 L 1 L 1 L 2.5 L 2.5 L 2.5 L 60 L ...... None 242 241 243 243 243 243 241 241 241 242 ...... 202 203 201 201 201 213 201 203 203 203 203 ...... 154 154 150 150 150 155 150 152 152 152 150 ...... T8 T7 T31 B2, N34, B2, N34, T14 B52, T8, T8, T31 T8 T8, T31 32 A2, T8 A2, T8 B1, T1 ...... 5.1 5.1 5.1 3, 6.1 ...... 8 ...... 9 ...... 8 ...... II III III III III III III ... I ...... 3 ...... I ...... 3 ...... I ...... 3 ...... I ...... 3 ...... UN1108 UN3320 UN1263 UN1866 UN3211 UN1263 UN3314 UN2427 UN2428 UN2310 ...... ******* ******* ******* ******* ******* ******* ******* ******* ******* ******* ...... 8 ...... 3 ...... 3 ...... 5.1 3 ...... 9 ...... 5.1 5.1 ) 3 ...... 3 ......

flam-

. with not .

in dough, .

n-amylene ......

including paint, aqueous solution, n.o.s aqueous solution and sodium hydrox- ide solution, ous solution lacquer, enamel, stain, shellac solu- tions, varnish, polish, liquid filler, and lacquer base including paint thinning, drying, re- moving, or reducing compound compound sheet or extruded rope form evolving flammable vapor mable more than 12 percent sodium borohydride and not more than 40 percent sodium hy- droxide by mass Perchlorates, inorganic, Potassium chlorate, Paint [ADD] [ADD] Resin solution, Sodium borohydride Sodium chlorate, aque- Pentane-2,4-dione Paint related material Plastic molding [ADD] 1-Pentene ( 24712 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations (10B) Other 40 20, 40, 95 20, 40, 95 20, 40, 95 (10) Vessel stowage (10A) Location D ...... D ...... D ...... A ...... D ...... A ...... D ...... (9B) craft only Cargo air- 60 L Forbidden Forbidden Forbidden 30 L Forbidden Forbidden (9) Quantity limitations ...... (9A) aircraft/rail Passenger 5 L Forbidden Forbidden Forbidden 1 L Forbidden Forbidden ...... Bulk (8C) 243 314, 315 244 244 243 244 244 *) * ...... (8) (8B) 173. * Non-bulk Packaging 304 202 227 227 201 227 227 (§ ...... ÐContinued (8A) Exceptions None None None None None None None ABLE . . . . T ...... (7) B32, B74, N12, N32, N34, T38, T43, T45 B14,B32, B74,B77, T38, T43, T45 B32, B74, T38, T43, T45 B32, B74, B77, N33, N34, T38, T43, T45 Special provisions B110, T14 3,B14 2, B9, B14, 2,B9, T42 2, B9, B14, 2, B9, B14, ATERIALS M (6) ...... AZARDOUS ...... Label codes ...... 6.1 2.3, 2.1 6.1,3,8 6.1, 3 6.1, 3 6.1,3 6.1,3 (5) PG 172.101ÐH ...... § II ...... I ...... I ...... I ...... I ...... I ...... (4) bers tion num- Identifica- UN2542 UN1082 UN1695 UN2488 UN2295 UN2477 UN2487 (3) ...... ******* ******* ************** ******* ******* ******* ******* vision Hazard ...... class or di- 6.1 2.3 6.1 6.1 6.1 6.1 6.1 ...... (2) . . shipping names inhibited bilized Hazardous materials descriptions and proper Tributylamine Trifluorochloroethylene, [REVISE:] Chloroacetone, sta- Cyclohexyl isocyanate Methyl chloroacetate Methyl isothiocyanate Phenyl isocyanate (1) Symbols Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24713 40 40 C ...... B ...... Forbidden 30 L ...... Forbidden 1 L ...... 244 243 ...... 227 202 ...... None None . .. B15, B32, B74, B77, N34, T38, T43, T45 2, B9, B14, B100, T8 ...... 6.1, 8 6.1, 3, 8 ...... II ... I ...... UN1809 UN3073 ...... ******* ******* ******* 6.1 6.1 Phosphorus trichloride Vinylpyridines, inhibited 24714 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

§ 172.101 [Amended] 16–1. In Column (2), the following 16. In addition, in the § 172.101 hazardous materials descriptions and Hazardous Materials Table, the proper shipping names are revised as following changes are made: follows:

Current column (2) entry Revise to read:

Air bag inflators or Air bag modules or Seat-belt pre-tensioners or Seat- Air bag inflators or Air bag modules or Seat-belt pretensioners. belt modules. Aircraft evacuation slides, see Life saving appliances etc...... Aircraft evacuation slides, see Life saving appliances etc. Aircraft survival kits, see Life saving appliances etc...... Aircraft survival kits, see Life saving appliances etc. Alcohols, toxic, n.o.s ...... Alcohols, flammable, toxic, n.o.s Aldehydes, toxic, n.o.s ...... Aldehydes, flammable, toxic, n.o.s. Amyl methyl ketone ...... n-Amyl methyl ketone. Arsenic compounds, liquid, n.o.s. including arsenates n.o.s.; arsenites, Arsenic compounds, liquid, n.o.s. inorganic, including arsenates, n.o.s.; n.o.s.; arsenic sulfides, n.o.s.; and organic compounds of arsenic, arsenites, n.o.s.; arsenic sulfides, n.o.s.; and organic compounds of n.o.s. arsenic, n.o.s. Arsenic compounds, solid, n.o.s. including arsenates, n.o.s.; arsenites, Arsenic compounds, solid, n.o.s. inorganic, including arsenates, n.o.s.; n.o.s.; arsenic sulfides, n.o.s; and organic compounds of arsenic, arsenites, n.o.s.; arsenic sulfides, n.o.s.; and organic compounds of n.o.s.. arsenic, n.o.s. Barium selenate, see Selenates or Selenites ...... Barium selenate, see Selenates or Selenites. Barium selenite, see Selenates or Selenites ...... Barium selenite, see Selenates or Selenites. Battery-powered vehicle or Battery-powered equipment wet battery ...... Battery-powered vehicle or Battery-powered equipment. Boron trifluoride ...... Boron trifluoride, compressed. Bromotrifluoromethane, R13B1 ...... Bromotrifluoromethane or Refrigerant gas, R 13B1. Butane or Butane mixtures see also Petroleum gases, liquefied ...... Butane see also Petroleum gases, liquefied. n-Butyl methacrylate ...... n-Butyl methacrylate, inhibited. Butylacrylate ...... Butyl acrylates, inhibited. Calcium selenate, see Selenates or Selenites ...... Calcium selenate, see Selenates or Selenites. Carbon monoxide ...... Carbon monoxide, compressed. Carbon monoxide and hydrogen mixture ...... Carbon monoxide and hydrogen mixture, compressed. Carbonyl fluoride ...... Carbonyl fluoride, compressed. Cartridges, safety, blank, see Cartridges for weapons, blank (UN 0014) Cartridges, safety, blank, see Cartridges for weapons, blank (UN 0014). Cartridges, safety, see Cartridges for weapons, other than blank or Cartridges, safety, see Cartridges for weapons, other than blank or Cartridges, power device (UN 0323). Cartridges, power device (UN 0323). 1-Chloro-1,1-difluoroethanes, R142b ...... 1-Chloro-1,1-difluoroethane or Refrigerant gas R142b. 1-Chloro-1,2,2,2-tetrafluoroethane, R124 ...... 1-Chloro-1,2,2,2-tetrafluoroethane or Refrigerant gas R 124. 1-Chloro-2,2,2-trifluoroethane, R133a ...... 1-Chloro-2,2,2-trifluoroethane or Refrigerant gas R 133a. Chlorodifluorobromomethane, R12B1 ...... Chlorodifluorobromomethane or Refrigerant gas R 12B1. Chlorodifluoromethane and chloropentafluoroethane mixture with fixed Chlorodifluoromethane and chloropentafluoroethane mixture or Refrig- boiling point, with approximately 49 percent chlorodifluoromethane, erant gas R 502 with fixed boiling point, with approximately 49 per- R502. cent chlorodifluoromethane. Chlorodifluoromethane, R22 ...... Chlorodifluoromethane or Refrigerant gas R 22. Chloropentafluoroethane, R115 ...... Chloropentafluoroethane or Refrigerant gas R 115. Chlorotrifluoromethane and trifluoromethane azeotropic mixture with Chlorotrifluoromethane and trifluoromethane azeotropic mixture or Re- approximately 60 percent chlorotrifluoromethane, R503. frigerant gas R 503 with approximately 60 percent chlorotrifluoromethane. Chlorotrifluoromethane, R13 ...... Chlorotrifluoromethane or Refrigerant gas R13. Coal gas ...... Coal gas, compressed. Copper selenate, see Selenates or Selenites ...... Copper selenate, see Selenates or Selenites. Copper selenite, see Selenates or Selenites ...... Copper selenite, see Selenates or Selenites. Cyanogen, liquefied ...... Cyanogen. Cyclopropane, liquefied ...... Cyclopropane. Deuterium ...... Deuterium, compressed. Diborane ...... Diborane, compressed. Dichlorodifluoromethane and difluoroethane azeotropic mixture with ap- Dichlorodifluoromethane and difluoroethane azeotropic mixture or Re- proximately 74 percent dichlorodifluoromethane, R500. frigerant gas R 500 with approximately 74 percent dichlorodifluoro- methane. Dichlorodifluoromethane, R12 ...... Dichlorodifluoromethane or Refrigerant gas R 12. Dichloroethylene ...... 1,2-Dichloroethylene. Dichlorofluoromethane, R21 ...... Dichlorofluoromethane or Refrigerant gas R 21. Dichlorotetrafluoroethane, R114 ...... 1,2-Dichloro-1,1,2,2-Tetrafluoroethane or Refrigerant gas R 114. 1,1-Difluoroethane, R152a ...... 1,1-Difluoroethane or Refrigerant gas R 152a. 1,1-Difluoroethylene, R1132a ...... 1,1-Difluoroethylene or Refrigerant gas R 1132a. Difluoromethane ...... Difluoromethane or Refrigerant gas R 32. Dimethylaminoethyl methacrylate ...... 2-Dimethylaminoethyl methacrylate. Dinitrogen tetroxide, liquefied ...... Dinitrogen tetroxide. Dipropyl ether ...... Di-n-propyl ether. Disodium trioxosilicate, pentahydrate ...... Disodium trioxosilicate. Ethane, compressed ...... Ethane. Ethyl fluoride ...... Ethyl fluoride or Refrigerant gas R 161. Ethylene, acetylene and propylene in mixtures, refrigerated liquid with Ethylene, acetylene and propylene mixture, refrigerated liquid with at at least 71.5 percent ethylene with not more than 22.5 percent acety- least 71.5 percent ethylene with not more than 22.5 percent acety- lene and not more than 6 percent propylene. lene and not more than 6 percent propylene. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24715

Current column (2) entry Revise to read:

Flammable gas in lighters, see Lighters or lighter refills, containing Flammable gas in lighters, see Lighters or Lighter refills, cigarettes, flammable gas. containing flammable gas. Fuse, instantaneous, non-detonating or Quickmatch ...... Fuse, non-detonating (instantaneous or quickmatch). Heptafluoropropane ...... Heptafluoropropane or Refrigerant gas R 227. Hexafluoroethane, R1116 ...... Hexafluoroethane, compressed or Refrigerant gas R 116. Hexafluoropropylene, R1216 ...... Hexafluoropropylene, compressed or Refrigerant gas R 1216. Hydriotic acid, solution ...... Hydriotic acid. Hydrobromic acid solution, with more than 49 percent hydrobromic acid Hydrobromic acid, with more than 49 percent hydrobromic acid (PG II (PG II and III). and III). Hydrobromic acid solution, with not more than 49 percent hydrobromic Hydrobromic acid, with not more than 49 percent hydrobromic acid acid (PG II and III). (PG II and III). Hydrocarbon gases, compressed, n.o.s. or Hydrocarbon gases mix- Hydrocarbon gas mixture, compressed, n.o.s. tures, compressed, n.o.s. Hydrocarbon gases, liquefied, n.o.s. or Hydrocarbon gases mixtures, Hydrocarbon gas mixture, liquefied, n.o.s. liquefied, n.o.s. Hydrochloric acid, solution ...... Hydrochloric acid. Hydrofluoric acid solution, with more than 60 percent strength ...... Hydrofluoric acid, with more than 60 percent strength. Hydrofluoric acid solution, with not more than 60 percent strength ...... Hydrofluoric acid, with not more than 60 percent strength. Hydrogen sulfide, liquefied ...... Hydrogen sulfide. Isobutane or Isobutane mixtures see also Petroleum gases, liquefied ... Isobutane see also Petroleum gases, liquefied. Isobutyl acrylate ...... Isobutyl acrylate, inhibited. Isobutyl methacrylate ...... Isobutyl methacrylate, inhibited. Isopentane, see Pentane ...... Isopentane, see Pentane. Jet thrust unit (Jato), see Rocket motors ...... Jet thrust unit (Jato), see Rocket motors. Magnesium bisulfite solution, see Bisulfites, aqueous solutions, n.o.s ... Magnesium bisulfite solution, see Bisulfites, aqueous solutions, n.o.s. Mercury iodide ...... Mercury iodide, solid. Methacrylaldehyde ...... Methacrylaldehyde, inhibited. Methanol or Methyl alcohol (both entries) ...... Methanol (both entries). Methyl alcohol, see Methanol ...... Methyl alcohol see Methanol. Methyl chloride ...... Methyl chloride or Refrigerant gas R 40. Methyl fluoride ...... Methyl fluoride or Refrigerant gas R 41. Methylmorpholine ...... 4-Methylmorpholine or n-methylmorpholine. Nitric oxide ...... Nitric oxide, compressed. Nitrogen dioxide, liquefied see Dinitrogen tetroxide, liquefied ...... Nitrogen dioxide see Dinitrogen tetroxide. Nitrogen trifluoride (both entries) ...... Nitrogen trifluoride, compressed. Nitrous oxide, compressed ...... Nitrous oxide. 2,5-Norbornadiene or Dicycloheptadiene ...... 2,5-Norbornadiene or Bicyclo[2,2,1]hepta-2,5-diene, inhibited. Octafluorobut-2-ene ...... Octafluorobut-2-ene or Refrigerant gas R 1318. Octafluorocyclobutane, RC318 ...... Octafluorocyclobutane or Refrigerant gas R C318. Octafluoropropane, R218 ...... Octafluoropropane or Refrigerant gas R 218. Oil gas ...... Oil gas, compressed. Oxygen difluoride ...... Oxygen difluoride, compressed. Pentafluoroethane ...... Pentafluoroethane or Refrigerant gas R 125. Perfluoroethyl vinyl ether ...... Perfluoro(ethyl vinyl ether). Perfluoromethyl vinyl ether ...... Perfluoro(methyl vinyl ether). Phosphorus pentafluoride ...... Phosphorus pentafluoride, compressed. Polyalkylamines, n.o.s., see Amines, etc ...... Polyalkylamines, n.o.s., see Amines, etc. Potassium bisulfite solution, see Bisulfites, inorganic, aqueous solu- Potassium bisulfite solution, see Bisulfites, inorganic, aqueous solu- tions, n.o.s. tions, n.o.s. Potassium selenate, see Selenates or Selenites ...... Potassium selenate, see Selenates or Selenites. Potassium selenite, see Selenates or Selenites ...... Potassium selenite, see Selenates or Selenites. Propane or Propane mixtures see also Petroleum gases, liquefied ...... Propane see also Petroleum gases, liquefied. Rare gases and nitrogen mixtures ...... Rare gases and nitrogen mixtures, compressed. Rare gases and oxygen mixtures ...... Rare gases and oxygen mixtures, compressed. Rare gases, mixtures ...... Rare gases mixtures, compressed. Receptacles, small, containing gas flammable, without release device, Receptacles, small, containing gas (gas cartridges) flammable, without not refillable and not exceeding 1 L capacity. release device, not refillable and not exceeding 1 L capacity. Receptacles, small, containing gas non-flammable, without release de- Receptacles, small, containing gas (gas cartridges) nonflammable, vice, not refillable and not exceeding 1 L capacity. without release device, not refillable and not exceeding 1 L capacity. Refrigerating machines, containing non-flammable, non-toxic, liquefied Refrigerating machines, containing non-flammable, non-toxic, liquefied gas or ammonia solutions (UN2073). gas or ammonia solution (UN2672). Silane ...... Silane, compressed. Silicon tetrafluoride ...... Silicon tetrafluoride, compressed. Sodium hydrogendifluoride ...... Sodium hydrogendifluoride, solid. Steel swarf, see Ferrous metal borings, etc ...... Steel swarf, see Ferrous metal borings, etc. Sulfur dioxide, liquefied ...... Sulfur dioxide. Sulfur trioxide, inhibited ...... Sulfur trioxide, inhibited or Sulfur trioxide, stabilized. 1,1,1,2-Tetrafluoroethane ...... 1,1,1,2-Tetrafluoroethane or Refrigerant gas R 134a. Tetrafluoromethane, R14 ...... Tetrafluoromethane, compressed or Refrigerant gas R 14. Toluene sulfonic acid, see Alkyl, or Aryl sulfonic acid etc ...... Toluene sulfonic acid, see Alkyl, or Aryl sulfonic acid etc. Trifluoroethane, compressed, R143 ...... 1,1,1-Trifluoroethane, compressed or Refrigerant gas R 143a. Trifluoromethane ...... Trifluoromethane or Refrigerant gas R 23. Vinyl toluene, inhibited, mixed isomers ...... Vinyltoluenes, inhibited. Vinyltrichlorosilane ...... Vinyltrichlorosilane, inhibited. 24716 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

Current column (2) entry Revise to read:

Xenon ...... Xenon, compressed. Zinc bisulfite solution, see Bisulfites, inorganic aqueous solutions, n.o.s Zinc bisulfite solution, see Bisulfites, aqueous solutions, n.o.s. Zinc selenate, see Selenates or Selenites ...... Zinc selenate, see Selenates or Selenites. Zinc selenite, see Selenates or Selenites ...... Zinc selenite, see Selenates or Selenites.

16–2. For the entry ‘‘Mercury contained in manufactured articles’’, in Column (5), the PG designation ‘‘I’’ is revised to read ‘‘III’’. 16–3. For the following entries, Column (6) is revised as follows:

Revise to Column (2) entry Column (6) entry read:

Allyl isothiocyanate, stabilized ...... 6.1 ...... 6.1, 3 Bromoacetone ...... 6.1 ...... 6.1, 3 n-Butyl chloroformate ...... 6.1, 8 ...... 6.1, 8, 3 Cyclobutyl chloroformate ...... 6.1, 8 ...... 6.1, 8, 3 Epibromohydrin ...... 6.1 ...... 6.1, 3 Epichlorohydrin ...... 6.1 ...... 6.1, 3 Ethyl bromoacetate ...... 6.1 ...... 6.1, 3 Ethyl chloroacetate ...... 6.1 ...... 6.1, 3 Isocyanatobenzotrifluorides ...... 6.1 ...... 6.1, 3 Propylene chlorohydrin ...... 6.1 ...... 6.1, 3 Trifluoroacetyl chloride ...... 2.3 ...... 2.3, 8

16–4. For the following entries, Column (7) is revised as follows:

Column (2) entry Column (7) entry Revise to read:

Alkali metal alcoholates, self-heating, corrosive, n.o.s. (PG II and III) ...... 64 Alkaline earth metal alcoholates, n.o.s. (PG II and III) ...... 65 Benzaldehyde ...... T1 Corrosive liquids, toxic, n.o.s. (PG I) ...... A7, B10 ...... A7, B10, T18, T27 Corrosive liquids, toxic, n.o.s. (PG II) ...... B3 ...... B3, T18, T26 Corrosive liquids, toxic, n.o.s. (PG III) ...... T8 Corrosive solids, n.o.s. (PG II and III) ...... 128 Corrosive solids, water-reactive, n.o.s. (PG II) ...... B105 ...... 128, B105 Environmentally hazardous substances, liquid, n.o.s ...... 8, N50, T1 ...... 8, T1 Environmentally hazardous substances, solid, n.o.s ...... 8, N50, B54 ...... 8, B54 Explosive, blasting, type C ...... 123 Ferrocerium ...... A19 ...... 59, A19 Isosorbide-5-mononitrate ...... 66 Maneb or Maneb preparations with not less than 60 percent maneb ...... A1, A19, B105 ...... 57, A1, A19, B105 Methacrylic acid, inhibited ...... T8 ...... T8, T47 Nitrates, inorganic, aqueous solution, n.o.s. (PG II and III) ...... T8 ...... 58, T8 Nitroglycerin, desensitized with not less than 40 percent non-volatile water insoluble ...... 125 phlegmatizer, by mass. Organophosphorus pesticides, liquid, flammable, toxic, flash point less than 23 degrees C (PG ...... T42 I). Organophosphorus pesticides, liquid, flammable, toxic, flash point less than 23 degrees C (PG ...... T18 II). Oxidizing liquid, n.o.s. (PG II and III) ...... A2 ...... 127, A2 Pentaerythrite tetranitrate or Pentaerythritol tetranitrate, or PETN, with not less than 7 percent ...... 120 wax by mass. Pentaerythrite tetranitrate, wetted or Pentaerythritol tetranitrate, wetted or PETN, wetted with ...... 121 not less than 25 percent water, by mass, or Pentaerythrite tetranitrate, or Pentaerythritol tetranitrate or PETN, desensitized with not less than 15 percent phlegmatizer by mass. Polyester resin kit ...... 40 ...... None Sulfur (UN1350) ...... A1, N20, T1 ...... 30, A1, N20, T1 Urea nitrate dry or wetted with less than 20 percent water, by mass ...... 119 Water-reactive solid, corrosive, n.o.s. (PG II) ...... B101, B106 ...... 128, B101, B106 Water-reactive solid, corrosive, n.o.s. (PG III) ...... B105, B106 ...... 128, B105, B106

16–5. For the following entries, Columns (8A), (8B), or (8C) are revised as follows:

Column (2) entry Column (8A) entry Revise to read:

Polyester resin kit ...... None 152 Sulfur (UN1350) ...... 151 None Column (8B) entry Revise to read: Sulfur (UN1350) ...... 213 None Column (8C) entry Revise to read: Metal catalyst, dry (PG II) ...... None 242 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24717

Column (2) entry Column (8A) entry Revise to read:

Metal catalyst, dry (PG III) ...... None 241

16–6. For the following entries, Column (9A) is revised as follows:

Column (9A) Revise to Column (2) entry entry read:

Cyclohexyl isocyanate ...... 5 L ...... Forbidden. Divinyl ether, inhibited ...... 5 L ...... 1 L. Potassium ...... 1 kg ...... Forbidden. Potassium, metal alloys ...... 1 kg ...... Forbidden. Sodium ...... 1 kg ...... Forbidden.

16–7. For the following entries, Column (9B) is revised as follows:

Column (9B) Revise to Column (2) entry entry read:

Cyclohexyl isocyanate ...... 60 L ...... Forbidden. Ethyl isocyanate ...... 30 L ...... Forbidden. Ethylene oxide and carbon dioxide mixture with more than 87 percent ethylene oxide ...... 75 kg ...... 25 kg. Hexafluoroacetone ...... 25 kg ...... Forbidden. Isobutyl isocyanate ...... 60 L ...... Forbidden. Isopropyl isocyanate ...... 30 L ...... Forbidden. Methoxymethyl isocyanate ...... 30 L ...... Forbidden. Oil gas ...... 150 kg ...... 25 kg. Silicon tetrafluoride ...... 25 kg ...... Forbidden. Sulfur tetrafluoride ...... 25 kg ...... Forbidden. Toxic liquids, oxidizing, n.o.s. Inhalation hazard, Packing Group I, Zone A ...... 2.5 L ...... Forbidden.

16–8. In Column (10A), for the entry S.M.P Marine pollutant S.M.P Marine pollutant ‘‘Battery-powered vehicle or Battery- (1) (2) (1) (2) powered equipment wet battery’’, the ‘‘A’’ is removed. Dimethyl disulphide. normal-Octaldehyde. 17. In Appendix B to § 172.101, the Dimethylhydrazine, symmetrical. 1-Octanol. Dimethylhydrazine, unsymmet- List of Marine Pollutants is amended by Phenylcyclohexane. rical. Propionaldehyde. adding the following materials in Dipentene. Tallow nitrile. appropriate alphabetical order: 2,4-Di-tert-butylphenol. Tetrabromoethane. Appendix B to § 172.101—List of 2,6-Di-tert-butylphenol. Tetrachloroethylene. Diphenyl ether/biphenyl phenyl Marine Pollutants 4-Thiapentanal. ether mixtures. Triphenylphosphate. * * * * * Diphenyl/diphenyl ether (mix- 1-Undecanol. tures). normal-Valeraldehyde. S.M.P Marine pollutant EPTC (ISO). (1) (2) 2-Ethylhexaldehyde ***** 2-Ethylbutyraldehyde [ADD:] Furathiocarb (ISO). PP ...... normal-Heptyl aldehyde. § 172.101, Appendix B [Amended] ***** 2,4-Hexadiene aldehyde. 18. In addition, in Appendix B to Acetaldehyde. normal-Hexaldehyde. § 172.101, the List of Marine Pollutants Alkyl (C10±C21) sulphonic acid Hydrogen cyanide solution in al- is amended as follows: ester of phenol. cohol, with not more than 45% a. The entry ‘‘Azenphos-methyl’’ is Anisole. hydrogen cyanide. removed. Azinphos-methyl. Hydrogen cyanide, stabilized with b. For the entry ‘‘Chlorinated paraffins Benzaldehyde. less than 3% water. N,N-Bis (2-hydroxyethyl) oleamide Hydrogen cyanide, stabilized with (C10–C13)’’, the designation ‘‘PP’’ is (LOA). less than 3% water and ab- added in Column (1). Bromobenzene. sorbed in a porous inert mate- c. The entry ‘‘Mononitrobenzene Butanedione. rial. (nitro benzene)’’ is removed. Butyl mercaptans. Iron sponge, spent. d. The entry ‘‘1,1,2,2- N-tert-butyl-N-cyclopropyl-6- Isooctanol. Tetrabromoethane’’ is removed. methylthio-1,3,5-triazine-2,4- Isodecaldehyde. e. The entry ‘‘1,1,2,2- diamine. Isodecanol. Tetrachloroethylene’’ is removed. Butyraldehyde. Isononanol. f. The designation ‘‘PP’’ is added in Camphor oil. Isotetramethylbenzene. column (1) for the following materials: Coconitrile. Isovaleraldehyde. PP ...... Cymenes (o-;m-;p-). Mancozeb (ISO). Copper chloride solution normal-Decaldehyde. 2-Methylbutyraldehyde. Cupric sulfate normal-Decanol. Nitrobenzene. Esfenvalerate 1,3-Dibromobenzene. 1-Nonanal. Fenbutatin oxide Di-normal-butyl ketone. 1-Nonanol. 1,3-Hexachlorobutadiene 24718 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

Quizalofop added at the beginning of Special are not subject to the requirements of this Quizalofop-p-ethyl Provision 102, Special Provisions 57, subchapter. Tetrachlorovinfos 58, 59, 64, 65, 66, 74, 77, 118, 119, 120, * * * * * Tetraethyl lead, liquid 121, 123, 125, 127 and 128 are added; 43. * * * Packagings should be so Tricresyl phosphate with more than 3 in paragraph (c)(3), the first sentence of constructed that explosion is not possible by per cent ortho isomer Special Provision B5 is revised and reason of increased internal pressure. g. The following entries are removed: Special Provision B115 is added; in * * * * * paragraph (c)(5) Special Provision N50 47. * * * Small inner packagings Acetylene dibromide consisting of sealed packets containing less Arsenates, liquid, n.o.s. is removed; and in paragraph (c)(7)(ii), than 10 ml of a Class 3 liquid in Packing Arsenates, solid, n.o.s. Special Provision T47 is added, to read Group II or III absorbed onto a solid material Arsenic bromide as follows: are not subject to this subchapter provided there is no free liquid in the packet. Arsenic chloride § 172.102 Special provisions. Arsenical pesticides liquid, toxic, * * * * * * * * * * flammable, n.o.s. 57. Maneb or Maneb preparations Biphenyl phenyl ether and diphenyl (c) * * * stabilized against self-heating need not be oxide, mixtures (1) * * * classified in Division 4.2 when it can be demonstrated by testing that a volume of 1 1-Butanethiol * * * * * m3 of substance does not self-ignite and that Carbon bisulphide 15. Chemical kits and first aid kits are the temperature at the center of the sample Chlorobenzylchlorides boxes, cases, etc., containing small amounts does not exceed 200 °C, when the sample is alpha-Chloropropylene of various compatible dangerous goods maintained at a temperature of not less than 1-Chloropropylene which are used for medical, analytical, or 75 °C ± 2 °C for a period of 24 hours, in 2-Chloropropylene testing purposes and for which exceptions accordance with procedures set forth for Chromyl chloride are provided in this subchapter. For testing self-heating materials in the UN Copper arsentate transportation by aircraft, any hazardous Manual of Tests and Criteria. materials forbidden in passenger aircraft may 58. Aqueous solutions of Division 5.1 1,2-Dibromethene not be included in these kits. Inner inorganic solid nitrate substances are 1,2-Dibromoethane packagings may not exceed 250 mL for considered as not meeting the criteria of o-Dichlorobenzene liquids or 250 g for solids and must be Division 5.1 if the concentration of the p-Dichlorobenzene protected from other materials in the kit. The substances in solution at the minimum Dichloroether total quantity of hazardous materials in any temperature encountered in transport is not Dichloroethyl oxide one kit may not exceed either 1 L or 1 kg. greater than 80% of the saturation limit. Dimethylarsinic acid The packing group assigned to the kit as a 59. Ferrocerium, stabilized against whole must be the most stringent packing corrosion, with a minimum iron content of Ethylene chloride 10 percent is not subject to the requirements Ethylene dichloride group assigned to any individual substance contained in the kit. Kits must be packed in of this subchapter. Ethylidene dichloride wooden boxes (4C1, 4C2), plywood boxes 64. The group of alkali metals includes Hydrogen cyanide, anhydrous, (4D), reconstituted wood boxes (4F), lithium, sodium, potassium, rubidium, and stabilized fiberboard boxes (4G) or plastic boxes (4H1, caesium. Hydrogen cyanide, anhydrous, 4H2); these packagings must meet the 65. The group of alkaline earth metals stabilized absorbed in a porous inert requirements appropriate to the packing includes magnesium, calcium, strontium, material group assigned to the kit as a whole. The and barium. 66. Formulations of these substances Isopropyltoluene total quantity of hazardous materials in any one package may not exceed either 10 L or containing not less than 30 percent non- Maneb or Maneb preparations with not volatile, non-flammable phlegmatizer are not 10 kg. Kits which are carried on board less than 60% maneb subject to this subchapter. transport vehicles for first-aid or operating Mercuric sulphide purposes are not subject to the requirements * * * * * Mercury iodide, solution of this subchapter. 74. During transport, this material must be Metaarsenic acid protected from direct sunshine and stored or * * * * * 3-Methylpyridine kept in a cool and well-ventilated place, 23. * * * Quantities of not more than 500 away from all sources of heat. Methylchloroform g per package with not less than 10 percent Methylene bromide 77. For domestic transportation, a Division water by mass may also be classed in 5.1 subsidiary risk label is required only if a Methylene dibromide Division 4.1, provided a negative test result carbon dioxide and oxygen mixture contains Naptha, coal tar is obtained when tested in accordance with more than 23.5% oxygen. Nitrates, inorganic, n.o.s. test series 6(c) of the UN Manual of Tests and Criteria. * * * * * Nitrites, inorganic, n.o.s. 102. The ends of the detonating cord Potassium dihydrogen arsenate * * * * * must be tied fast so that the explosive 30. Sulfur is not subject to the Propenyl chloride (cis-; trans-) cannot escape. * ** Propylene dichloride requirements of this subchapter if Propylidene dichloride transported in a non-bulk packaging or if * * * * * 118. This substance may not be transported Sodium metaarsenite formed to a specific shape (e.g., prills, granules, pellets, pastilles, or flakes). under the provisions of Division 4.1 unless Sodium orthoarsenate specifically authorized by the Associate Strontium orthoarsenite * * * * * Administrator for Hazardous Materials Turpentine substitute 32. Polymeric beads and molding Safety. compounds may be made from polystyrene, White arsenic 119. This substance, when in quantities of poly(methyl methacrylate) or other polymeric not more than 11.5 kg (25.3 pounds), with 19. In § 172.102, in paragraph (c)(1), material. Special Provisions 40 and 45 are not less than 10 percent water, by mass, also * * * * * removed, Special Provisions 15, 30 and may be classed in Division 4.1, provided a 38. * * * If the SADT of the technically negative test result is obtained when tested 32 are revised, the last sentence of pure substance is higher than 75 °C, the in accordance with test series 6(c) of the UN Special Provision 38 is revised, a technically pure substance and formulations Manual of Tests and Criteria. sentence is added at the end of Special derived from it are not self-reactive materials 120. The phlegmatized substance must be Provisions 23, 43 and 47, a sentence is and, if not meeting any other hazard class, significantly less sensitive than dry PETN. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24719

121. This substance, when containing less is revised to read ‘‘OP6’’ each place it packaging must be marked ‘‘SALVAGE’’ alcohol, water or phlegmatizer than appears. or ‘‘SALVAGE DRUM’’. specified, may not be transported unless 21. In § 172.203, paragraph (j) is * * * * * approved by the Associate Administrator for removed and reserved and paragraph Hazardous Materials Safety. (7) A salvage packaging marked ‘‘T’’ 123. Any explosives, blasting, type C (k)(3) is amended by adding 14 new in accordance with applicable containing chlorates must be segregated from entries in appropriate alphabetical order provisions in the UN Recommendations explosives containing ammonium nitrate or to the list of proper shipping names, to may be used. other ammonium salts. read as follows: 125. Lactose or glucose or similar materials § 173.3 [Amended] may be used as a phlegmatizer provided that § 172.203 Additional description 25. In addition, in § 173.3, in the substance contains not less than 90%, by requirements. paragraph (c)(1), at the beginning of the mass, of phlegmatizer. These mixtures may * * * * * paragraph, the wording ‘‘The drum’’ is be classified in Division 4.1 when tested in (k) * * * revised to read ‘‘Except as provided in accordance with test series 6(c) of the UN (3) * * * paragraph (c)(7) of this section, the Manual of Tests and Criteria and approved by the Associate Administrator for Hazardous Compressed gas, toxic, corrosive, n.o.s. drum’’. Materials Safety. Testing must be conducted Compressed gas, toxic, flammable, corrosive, 26. In § 173.21, the last sentence in on at least three packages as prepared for n.o.s. paragraph (f) introductory text is revised transport. Mixtures containing at least 90%, Compressed gas, toxic, oxidizing, corrosive, to read as follows: by mass, of phlegmatizer are not subject to n.o.s. the requirements of this subchapter. Packages Compressed gas, toxic, oxidizing, n.o.s. § 173.21 Forbidden materials and containing mixtures with not less than 98% * * * * * packages. by mass, of phlegmatizer need not bear a Gas, refrigerated liquid, flammable, n.o.s. * * * * * POISON subsidiary risk label. Gas, refrigerated liquid, oxidizing, n.o.s. (f) * * * The SADT may be 127. Mixtures containing oxidizing and * * * * * determined by any of the test methods organic materials transported under this Hydrocarbon gases, compressed, n.o.s. described in Part II of the UN Manual entry may not meet the definition and criteria Hydrocarbon gases, liquefied, n.o.s. of Tests and Criteria. of a Class 1 material. (See § 173.50 of this Hydrogen gases mixtures, compressed, n.o.s. * * * * * subchapter.) Hydrocarbon gases mixtures, liquefied, n.o.s. 128. Notwithstanding the provisions of § 173.32c [Amended] § 172.101(c)(12), an aluminum smelting by- * * * * * product or aluminum remelting by-product Liquefied gas, toxic, corrosive, n.o.s. 27. In § 173.32c, in paragraph (j), the described under this entry, in Packing Group Liquefied gas, toxic, flammable, corrosive, wording ‘‘5,000 liters (1,900 gallons)’’ is II or III, may be packaged in accordance with n.o.s. revised to read ‘‘7,500 L’’. Special Provision B115 of this section. Liquefied gas, toxic, oxidizing, corrosive, n.o.s. § 173.34 [Amended] 27a. * * * * * Liquefied gas, toxic, oxidizing, n.o.s. (3) * * * In § 173.34, in the table in paragraph * * * * * (e)(18)(i), under the column heading * * * * * Organometallic compound, water reactive, ‘‘Porous filler requalification’’, under B5. Only ammonium nitrate solutions with flammable, n.o.s. 35 percent or less water that will remain ‘‘Initial’’, the year ‘‘2001’’ is revised to completely in solution under all conditions * * * * * read ‘‘2011’’. of transport at a maximum lading 28. Section 173.60 is revised to read § 172.203 [Amended] temperature of 116°C (240°F) are authorized as follows: for transport in the following bulk 22. In addition, in § 172.203, in packagings: MC 307, MC 312, DOT 407 and paragraph (m)(3), in the first sentence, § 173.60 General packaging requirements DOT 412 cargo tanks with at least 172 kPa the wording ‘‘or ‘Toxic-Inhalation for explosives. (25 psig) design pressure. * * * Hazard’ ’’ is added immediately (a) Unless otherwise provided in this * * * * * following ‘‘ ‘Poison-Inhalation Hazard’ ’’; subpart and in § 173.7(a), packaging B115. Rail cars, highway trailers, roll-on/ and in the second sentence the wording used for Class 1 (explosives) materials roll-off bins, or other non-specification bulk ‘‘ ‘Poison’ ’’ is revised to read ‘‘ ‘Poison’ must meet Packing Group II packagings are authorized. Packagings must or ‘Toxic’ ’’. requirements. Each packaging used for be sift-proof, prevent liquid water from an explosive must be capable of meeting reaching the hazardous material, and be PART 173ÐSHIPPERSÐGENERAL the test requirements of subpart M of provided with sufficient venting to preclude REQUIREMENTS FOR SHIPMENTS part 178 of this subchapter, at the dangerous accumulation of flammable, AND PACKAGINGS specified level of performance, and the corrosive, or toxic gaseous emissions such as applicable general packaging methane, hydrogen, and ammonia. The 23. The authority citation for part 173 requirements of paragraph (b) of this material must be loaded dry. continues to read as follows: section. * * * * * Authority: 49 U.S.C. 5101–5127; 49 CFR (b) The general requirements for (7) * * * 1.53. (ii) * * * packaging of explosives are as follows: T47. Temperature must be maintained 24. In § 173.3, paragraph (c)(3) is (1) Nails, staples, and other closure between 18°C (64.4°F) and 40°C (104°F) revised and a new paragraph (c)(7) is devices, made of metal, having no when carried in tanks. Tanks containing added, to read as follows: protective covering may not penetrate to solidified methyacrylic acid may not be the inside of the outer packaging unless reheated during transport. § 173.3 Packaging and exceptions. the inner packaging adequately protects * * * * * * * * * * the explosive against contact with the (c) * * * metal. § 172.102 [Amended] (3) Each salvage packaging must be (2) The closure device of containers 20. In addition, in § 172.102, in marked with the proper shipping name for liquid explosives must provide paragraph (c)(1), in special provisions of the hazardous material inside the double protection against leakage, such 38 and 46, in the first sentence of each packaging and the name and address of as a screw cap secured in place with special provision, the wording ‘‘OP6B’’ the consignee. In addition, the tape. 24720 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

(3) Inner packagings, fittings, and (11) Plastic packagings may not be EXPLOSIVES TABLE cushioning materials, and the placing of able to generate or accumulate sufficient explosive substances or articles in static electricity to cause the packaged ID# PI packages, must be such that the explosive substances or articles to explosive substance is prevented from initiate, ignite or inadvertently function. UN0004 ...... 112 becoming loose in the outer packaging UN0005 ...... 130 Metal packagings must be compatible UN0006 ...... 130 during transportation. Metallic with the explosive substance they UN0007 ...... 130 components of articles must be contain. UN0009 ...... 130 prevented from making contact with (12) Explosive substances may not be UN0010 ...... 130 metal packagings. Articles containing UN0012 ...... 130 packed in inner or outer packagings explosive substances not enclosed in an UN0014 ...... 130 outer casing must be separated from where the differences in internal and UN0015 ...... 130 each other in order to prevent friction external pressures, due to thermal or UN0016 ...... 130 and impact. Padding, trays, partitioning other effects, could cause an explosion UN0018 ...... 130 in the inner or outer packaging, molded or rupture of the package. UN0019 ...... 130 UN0020 ...... 101 plastics or receptacles may be used for (13) Packagings for water soluble UN0021 ...... 101 this purpose. substances must be water resistant. UN0027 ...... 113 (4) When the packaging includes Packagings for desensitized or UN0028 ...... 113 water that could freeze during phlegmatized substances must be closed UN0029 ...... 131 transportation, a sufficient amount of to prevent changes in concentration UN0030 ...... 131 anti-freeze, such as denatured ethyl during transport. When containing less UN0033 ...... 130 alcohol, must be added to the water to alcohol, water, or phlegmatizer than UN0034 ...... 130 prevent freezing. If the anti-freeze UN0035 ...... 130 specified in its proper shipping UN0037 ...... 130 creates a fire hazard, it may not be used. description, the substance is a When a percentage of water in the UN0038 ...... 130 ‘‘forbidden’’ material. UN0039 ...... 130 substance is specified, the combined 29. Section 173.62 is revised to read UN0042 ...... 132 weight of water and anti-freeze may be UN0043 ...... 133 substituted. as follows: UN0044 ...... 133 (5) If an article is fitted with its own § 173.62 Specific packaging requirements UN0048 ...... 130 means of ignition or initiation, it must for explosives. UN0049 ...... 135 be effectively protected from accidental UN0050 ...... 135 actuation during normal conditions of (a) Except as provided in paragraph UN0054 ...... 135 transportation. (e) of this section, when the § 172.101 UN0055 ...... 136 (6) The entry of explosive substances Table specifies that an explosive must UN0056 ...... 130 UN0059 ...... 137 into the recesses of double-seamed be packaged in accordance with this UN0060 ...... 132 metal packagings must be prevented. section, only non-bulk packagings UN0065 ...... 139 (7) The closure device of a metal which conform to the provisions of UN0066 ...... 140 drum must include a suitable gasket; if paragraphs (b), (c) and (d) of this section UN0070 ...... 134 the closure device includes metal-to- and the applicable requirements in UN0072 ...... 112(a) metal screw-threads, the ingress of §§ 173.60 and 173.61 may be used UN0073 ...... 133 explosive substances into the threading unless otherwise approved by the UN0074 ...... 110(a) or 110(b) must be prevented. UN0075 ...... 115 Associate Administrator. Intermediate UN0076 ...... 112 (8) Whenever loose explosive bulk packagings may be used for substances or the explosive substance of UN0077 ...... 114(a) or 114(b) explosives assigned to Packing UN0078 ...... 112 an uncased or partly cased article may Instruction 117 in paragraph (b) of this UN0079 ...... 112(b) or 112(c) come into contact with the inner surface section. Intermediate bulk packagings UN0081 ...... 116 of metal packagings (1A2, 1B2, 4A, 4B must conform with the requirements of UN0082 ...... 116 or 117 and metal receptacles), the metal this subchapter. UN0083 ...... 116 packaging should be provided with an UN0084 ...... 116 inner liner or coating. (b) Explosives Table. The Explosives UN0092 ...... 135 (9) Packagings must be made of Table specifies the Packing Instructions UN0093 ...... 135 materials compatible with, and assigned to each explosive. Explosives UN0094 ...... 113 impermeable to, the explosives are identified in the first column in UN0099 ...... 134 contained in the package, so that neither numerical sequence by their UN0101 ...... 140 UN0102 ...... 139 interaction between the explosives and identification number (ID #), which is listed in column 4 of the § 172.101 UN0103 ...... 140 the packaging materials, nor leakage, UN0104 ...... 139 causes the explosive to become unsafe Table, of this subchapter. The second UN0105 ...... 140 in transportation, or the hazard division column of the Explosives Table UN0106 ...... 141 or compatibility group to change (see specifies the Packing Instruction (PI) UN0107 ...... 141 § 173.24(e)(2)). which must be used for packaging the UN0110 ...... 141 (10) An explosive article containing explosive. The Explosives Packing UN0113 ...... 110(a) or 110(b) an electrical means of initiation that is Method Table in paragraph (c) of this UN0114 ...... 110(a) or 110(b) sensitive to external electromagnetic section defines the methods of UN0118 ...... 112 packaging. The Packing Instructions are UN0121 ...... 142 radiation, must have its means of UN0124 ...... US1 initiation effectively protected from identified using a 3 digit designation. UN0129 ...... 110(a) or 110(b) electromagnetic radiation sources (for The Packing Instruction prefixed by the UN0130 ...... 110(a) or 110(b) example, radar or radio transmitters) letters ‘‘US’’ is particular to the United UN0131 ...... 142 through either design of the packaging States and not found in applicable UN0132 ...... 114(b) or of the article, or both. international regulations. UN0133 ...... 112(a) Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24721

EXPLOSIVES TABLEÐContinued EXPLOSIVES TABLEÐContinued EXPLOSIVES TABLEÐContinued

ID# PI ID# PI ID# PI

UN0135 ...... 110(a) or 110(b) UN0266 ...... 112 UN0350 ...... 101 UN0136 ...... 130 UN0267 ...... 131 UN0351 ...... 101 UN0137 ...... 130 UN0268 ...... 133 UN0352 ...... 101 UN0138 ...... 130 UN0271 ...... 143 UN0353 ...... 101 UN0143 ...... 115 UN0272 ...... 143 UN0354 ...... 101 UN0144 ...... 115 UN0275 ...... 134 UN0355 ...... 101 UN0146 ...... 112 UN0276 ...... 134 UN0356 ...... 101 UN0147 ...... 112(b) UN0277 ...... 134 UN0357 ...... 101 UN0150 ...... 112(a) or 112(b) UN0278 ...... 134 UN0358 ...... 101 UN0151 ...... 112 UN0279 ...... 130 UN0359 ...... 101 UN0153 ...... 112(b) or 112(c) UN0280 ...... 130 UN0360 ...... 131 UN0154 ...... 112 UN0281 ...... 130 UN0361 ...... 131 UN0155 ...... 112(b) or 112(c) UN0282 ...... 112 UN0362 ...... 130 UN0159 ...... 111 UN0283 ...... 132 UN0363 ...... 130 UN0160 ...... 114(b) UN0284 ...... 141 UN0364 ...... 133 UN0161 ...... 114(b) UN0285 ...... 141 UN0365 ...... 133 UN0167 ...... 130 UN0286 ...... 130 UN0366 ...... 133 UN0168 ...... 130 UN0287 ...... 130 UN0367 ...... 141 UN0169 ...... 130 UN0288 ...... 138 UN0368 ...... 141 UN0171 ...... 130 UN0289 ...... 139 UN0369 ...... 130 UN0173 ...... 134 UN0290 ...... 139 UN0370 ...... 130 UN0174 ...... 134 UN0291 ...... 130 UN0371 ...... 130 UN0180 ...... 130 UN0292 ...... 141 UN0372 ...... 141 UN0181 ...... 130 UN0293 ...... 141 UN0373 ...... 135 UN0182 ...... 130 UN0294 ...... 130 UN0374 ...... 134 UN0183 ...... 130 UN0295 ...... 130 UN0375 ...... 134 UN0186 ...... 130 UN0296 ...... 134 UN0376 ...... 133 UN0190 ...... 101 UN0297 ...... 130 UN0377 ...... 133 UN0191 ...... 135 UN0299 ...... 130 UN0378 ...... 133 UN0192 ...... 135 UN0300 ...... 130 UN0379 ...... 136 UN0193 ...... 135 UN0301 ...... 130 UN0380 ...... 101 UN0194 ...... 135 UN0303 ...... 130 UN0381 ...... 134 UN0195 ...... 135 UN0305 ...... 113 UN0382 ...... 101 UN0196 ...... 135 UN0306 ...... 133 UN0383 ...... 101 UN0197 ...... 135 UN0312 ...... 135 UN0384 ...... 101 UN0204 ...... 134 UN0313 ...... 135 UN0385 ...... 112(b) or 112(c) UN0207 ...... 112(b) or 112(c) UN0314 ...... 142 UN0386 ...... 112(b) or 112(c) UN0208 ...... 112(b) or 112(c) UN0315 ...... 142 UN0387 ...... 112(b) or 112(c) UN0209 ...... 112 UN0316 ...... 141 UN0388 ...... 112(b) or 112(c) UN0212 ...... 133 UN0317 ...... 141 UN0389 ...... 112(b) or 112(c) UN0213 ...... 112(b) or 112(c) UN0318 ...... 141 UN0390 ...... 112(b) or 112(c) UN0214 ...... 112 UN0319 ...... 133 UN0391 ...... 112(a) UN0215 ...... 112 UN0320 ...... 133 UN0392 ...... 112(b) or 112(c) UN0216 ...... 112(b) or 112(c) UN0321 ...... 130 UN0393 ...... 112(b) UN0217 ...... 112(b) or 112(c) UN0322 ...... 101 UN0394 ...... 112(a) UN0218 ...... 112(b) or 112(c) UN0323 ...... 134 UN0395 ...... 101 UN0219 ...... 112 UN0324 ...... 130 UN0396 ...... 101 UN0220 ...... 112 UN0325 ...... 142 UN0397 ...... 101 UN0221 ...... 130 UN0326 ...... 130 UN0398 ...... 101 UN0222 ...... 112(b) or 112(c) UN0327 ...... 130 UN0399 ...... 101 UN0224 ...... 110(a) or 110(b) UN0328 ...... 130 UN0400 ...... 101 UN0225 ...... 133 UN0329 ...... 130 UN0401 ...... 112 UN0226 ...... 112(a) UN0330 ...... 130 UN0402 ...... 112(b) or 112(c) UN0234 ...... 114(a) or 114(b) UN0331 ...... 116 or 117 UN0403 ...... 135 UN0235 ...... 114(a) or 114(b) UN0332 ...... 116 or 117 UN0404 ...... 135 UN0236 ...... 114(a) or 114(b) UN0333 ...... 135 UN0405 ...... 135 UN0237 ...... 138 UN0334 ...... 135 UN0406 ...... 114(b) UN0238 ...... 130 UN0335 ...... 135 UN0407 ...... 114(b) UN0240 ...... 130 UN0336 ...... 135 UN0408 ...... 141 UN0241 ...... 116 or 117 UN0337 ...... 135 UN0409 ...... 141 UN0242 ...... 130 UN0338 ...... 130 UN0410 ...... 141 UN0243 ...... 130 UN0339 ...... 130 UN0411 ...... 112(b) or 112(c) UN0244 ...... 130 UN0340 ...... 112(a) or 112(b) UN0412 ...... 130 UN0245 ...... 130 UN0341 ...... 112(b) UN0413 ...... 130 UN0246 ...... 130 UN0342 ...... 114(a) UN0414 ...... 130 UN0247 ...... 101 UN0343 ...... 111 UN0415 ...... 143 UN0248 ...... 144 UN0344 ...... 130 UN0417 ...... 130 UN0249 ...... 144 UN0345 ...... 130 UN0418 ...... 135 UN0250 ...... 101 UN0346 ...... 130 UN0419 ...... 135 UN0254 ...... 130 UN0347 ...... 130 UN0420 ...... 135 UN0255 ...... 131 UN0348 ...... 130 UN0421 ...... 135 UN0257 ...... 141 UN0349 ...... 101 UN0424 ...... 130 24722 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

EXPLOSIVES TABLEÐContinued EXPLOSIVES TABLEÐContinued (c) Explosives Packing Instruction Table. Explosives must be packaged in ID# PI ID# PI accordance with the following table:

UN0425 ...... 130 UN0466 ...... 101 (1) The first column lists, in UN0426 ...... 130 UN0467 ...... 101 alphanumeric sequence, the packing UN0427 ...... 130 UN0468 ...... 101 methods prescribed for explosives in the UN0428 ...... 135 UN0469 ...... 101 Explosives Table of paragraph (b) of this UN0429 ...... 135 UN0470 ...... 101 section. UN0430 ...... 135 UN0471 ...... 101 UN0431 ...... 135 UN0472 ...... 101 (2) The second column specifies the UN0432 ...... 135 UN0473 ...... 101 inner packagings that are required. If UN0433 ...... 111 UN0474 ...... 101 inner packagings are not required, a UN0434 ...... 130 UN0475 ...... 101 notation of ‘‘Not necessary’’ appears in UN0435 ...... 130 UN0476 ...... 101 the column. The term ‘‘Not necessary’’ UN0436 ...... 130 UN0477 ...... 101 UN0437 ...... 130 means that a suitable inner packaging UN0478 ...... 101 may be used but is not required. UN0438 ...... 130 UN0479 ...... 101 UN0439 ...... 137 UN0480 ...... 101 (3) The third column specifies the UN0440 ...... 137 UN0481 ...... 101 intermediate packagings that are UN0441 ...... 137 UN0482 ...... 101 required. If intermediate packagings are UN0442 ...... 137 UN0483 ...... 112(b) or 112(c) not required, a notation of ‘‘Not UN0443 ...... 137 UN0484 ...... 112(b) or 112(c) UN0444 ...... 137 UN0486 ...... 101 necessary’’ appears in the column. The UN0445 ...... 137 UN0487 ...... 135 term ‘‘Not necessary’’ means that a UN0446 ...... 136 UN0488 ...... 130 suitable intermediate packaging may be UN0447 ...... 136 UN0489 ...... 112(b) or 112(c) used but is not required. UN0448 ...... 114(b) UN0490 ...... 112(b) or 112(c) (4) The fourth column specifies the UN0449 ...... 101 UN0491 ...... 143 UN0450 ...... 101 UN0492 ...... 135 outer packagings which are required. If UN0451 ...... 130 UN0493 ...... 135 inner packagings and/or intermediate UN0452 ...... 141 UN0494 ...... US1 packagings are specified in the second UN0453 ...... 130 UN0495 ...... 115 and third columns, then the packaging UN0454 ...... 142 UN0496 ...... 112(b) or 112(c) specified in the fourth column must be UN0455 ...... 131 UN0497 ...... 115 used as the outer packaging of a UN0456 ...... 131 UN0498 ...... 114(b) UN0457 ...... 130 combination packaging; otherwise it UN0499 ...... 114(b) may be used as a single packaging. UN0458 ...... 130 UN0500 ...... 131 UN0459 ...... 130 NA0124 ...... US1 (5) Packing Instruction 101 may be UN0460 ...... 130 NA0276 ...... 134 used for any explosive substance or UN0461 ...... 101 NA0323 ...... 134 UN0462 ...... 101 article if an equivalent level of safety is NA0337 ...... 135 shown to be maintained subject to the UN0463 ...... 101 NA0349 ...... 133 UN0464 ...... 101 NA0494 ...... US1 approval of the Associate Administrator UN0465 ...... 101 for Hazardous Materials Safety.

TABLE OF PACKING METHODS

Packing instruction Inner packagings Intermediate packagings Outer packagings

101 ...... This Packing Instruction may be used as an alternative to a specifically assigned pack- ing method with the approval of the Associate Administrator for Hazardous Materials Safety prior to transportation. When this packing instruction is used, the following must be marked on the shipping documents: ``Packaging approved by the competent authority of the United States of America (USA)''. PARTICULAR PACKING REQUIREMENTS OR EX- CEPTIONS: 1. Samples of new or existing explosive substances or articles may be transported as directed by the Associate Administrator for Hazardous Materials Safety for purposes including: testing, classifica- tion, research and development, quality control, or as a commercial sample. Explosive samples which are wetted or desensitized must be limited to 25 kg. Explosive samples which are not wetted or desensitized must be limited to 10 kg in small packages as specified by the Associate Adminis- trator for Hazardous Materials Safety 110(a) ...... Bags ...... Bags ...... Drums. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24723

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- plastics plastics steel, removable head CEPTIONS: textile, plastic coated or textile, plastic coated or (1A2). 1. The Intermediate packagings must be filled with lined lined plastics, removable head water saturated material such as an anti-freeze rubber rubber (1H2) solution or wetted cushioning textile, rubberized textile, rubberized 2. Outer packagings must be filled with water satu- textile Receptacles rated material such as an anti-freeze solution or plastics wetted cushioning. Outer packagings must be metal constructed and sealed to prevent evaporation of the wetting solution, except when 0224 is being carried dry 110(b) ...... Bags ...... Dividing partitions ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- rubber, conductive metal natural wood, sift-proof CEPTIONS plastics, conductive wood wall (4C2). For UN 0074, 0113, 0114, 0129, 0130, 0135 and Receptacles ...... plastics plywood (4D). 0224, the following conditions must be satisfied: metal fibreboard reconstituted wood (4F). a. inner packagings must not contain more than wood 50 g of explosive substance (quantity cor- rubber, conductive responding to dry substance); plastics, conductive b. each inner packaging must be separated from other inner packagings by dividing partitions; and c. the outer packaging must not be partitioned with more than 25 compartments 111 ...... Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- paper, waterproofed steel (4A). CEPTIONS: plastics aluminium (4B). For UN 0159, inner packagings are not required textile, rubberized natural wood, ordinary when metal (1A2 or 1B2) or plastics (1H2) drums Sheets ...... (4C1). are used as outer packagings plastics natural wood, sift proof textile, rubberized (4C2). plywood (4D). reconstituted wood (4F). fibreboard (4G). plastics, expanded (4H1). plastics, solid (4H2). Drums ...... steel, removable head (1A2). aluminum, removable head (1B2). plywood (1D). fibreboard (1G). plastics, removable head (1H2). 112(a) This packing instruction applies to wetted sol- Bags ...... Bags ...... Boxes. ids. PARTICULAR PACKING REQUIREMENTS OR EX- paper, multiwall, water plastics ...... steel (4A). CEPTIONS: resistant textile, plastic coated or aluminium (4B). 1. For UN Nos. 0004, 0076, 0078, 0154, 0219 and plastics lined. natural wood, ordinary 0394, packagings must be lead free textile Receptacles ...... (4C1). 2. Intermediate packagings are not required if textile, rubberized metal natural wood, sift proof leakproof drums are used as the outer packaging woven plastics plastics (4C2). 3. For UN 0072 and UN 0226, intermediate Receptacles ...... plywood (4D). packagings are not required metal reconstituted wood (4F). plastics fibreboard (4G). plastics, expanded (4H1). plastics, solid (4H2). Drums steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). 112(b) This packing instruction applies to dry solids Bags ...... Bags (for UN 0150 only) .... Bags. other than powders. 24724 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- paper, Kraft plastics woven plastics sift-proof CEPTIONS: paper, multiwall, water textile, plastic coated or (5H2/3). 1. For UN 0004, 0076, 0078, 0154, 0216, 0219 and resistant. lined. plastics, film (5H4). 0386, packagings must be lead free plastics textile, sift-proof (5L2). 2. For UN 0209, bags, sift-proof (5H2) are rec- textile textile, water resistant ommended for flake or prilled TNT in the dry state textile, rubberized plas- (5L3). and a maximum net mass of 30 kg. tics. paper, multiwall, water 3. For UN 0222 and UN 0223, inner packagings are woven plastics resistant (5M2). not required Boxes steel (4A). aluminium (4B). natural wood, ordinary (4C1). natural wood, sift proof (4C2). plywood (4D) reconstituted wood (4F). fibreboard (4G). plastics, expanded (4H1). plastics, solid (4H2). Drums steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). 112(c) This packing instruction applies to solid dry Bags ...... Bags ...... Boxes. powders. PARTICULAR PACKING REQUIREMENTS OR EX- paper, multiwall, water paper, multiwall, water steel (4A). CEPTIONS: resistant. resistant with inner lin- natural wood, 1. For UN 0004, 0076, 0078, 0154, 0216, 0219 and plastics ing. ordinary (4C1). 0386, packagings must be lead free woven plastics plastics natural wood, 2. For UN 0209, bags, sift-proof (5H2) are rec- Receptacles ...... Receptacles ...... sift proof (4C2). ommended for flake or prilled TNT in the dry fibreboard metal plywood (4D). state. Bags must not exceed a maximum net metal plastics reconstituted wood (4F). mass of 30 kg. plastics fibreboard (4G). 3. Inner packagings are not required if drums are wood plastics, solid (4H2). used as the outer packaging. Drums. 4. At least one of the packagings must be sift-proof steel, removable head (1A2) aluminium, removable head (1B2) . fibre (1G). 113 ...... Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- paper CEPTIONS: plastics steel (4A). 1. For UN 0094 and UN 0305, no more than 50 g of textile, rubberized natural wood, ordinary substance must be packed in an inner packaging Receptacles ...... (4C1). 2. For UN 0027, inner packagings are not nec- fibreboard natural wood, sift-proof essary when drums are used as the outer pack- metal walls (4C2). aging plastics plywood (4D). 3. At least one of the packagings must be sift- proof wood reconstituted wood (4F). 4. Sheets must only be used for UN 0028 Sheets ...... fibreboard (4G). paper, kraft plastics, solid (4H2). paper, waxed Drums steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). 114(a) This packing instruction applies to wetted sol- Bags ...... Bags ...... Boxes. ids. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24725

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- CEPTIONS: plastics. plastics. steel (4A). 1. For UN 0077, 0234, 0235 and 0236, packagings textile textile, plastic coated or natural wood, ordinary must be lead free woven plastics lined (4C1). 2. For UN 0342, inner packagings are not required Receptacles ...... Receptacles ...... natural wood, sift proof when metal (1A2 or 1B2) or plastics (1H2) drums metal metal walls (4C2). are used as outer packagings plastics plastics plywood (4D). 3. Intermediate packagings are not required if reconstituted wood (4F). leakproof removable head drums are used as the fibreboard (4G). outer packaging plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). plywood (1D). fibre (1G). plastics, removable head (1H2). 114(b) This packing instruction applies to dry solids Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- . natural wood, ordinary CEPTIONS: paper, kraft. (4C1). 1. For UN 0077, 0132, 0234, 0235 and 0236, plastics natural wood, sift proof packagings must be lead free textile, sift-proof walls (4C2). 2. For UN 0160 and UN 0161, when metal drums woven plastics, sift-proof plywood (4D). (1A2 or 1B2) are used as the outer packaging, Receptacles ...... reconstituted wood (4F). metal packagings must be so constructed that the fibreboard fibreboard (4G). risk of explosion, by reason of increased internal metal Drums. pressure from internal or external causes is pre- paper steel, removable head vented plastics (1A2).. 3. For UN 0160 and UN 0161, inner packagings are woven plastics, sift-proof aluminium, removable not required if drums are used as the outer pack- head (1B2). aging plywood (1D). fibre (1G). plastics, removable head (1H2). 115 ...... Receptacles ...... Bags ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- metal plastics in metal recep- natural wood, ordinary CEPTIONS: plastics tacles (4C1). 1. For liquid explosives, inner packagings must be Drums ...... natural wood, sift proof surrounded with non-combustible absorbent cush- metal walls (4C2). ioning material in sufficient quantity to absorb the plywood (4D). entire liquid content. Metal receptacles should be reconstituted wood (4F). cushioned from each other. The net mass of ex- fibreboard (4G). plosive per package may not exceed 30 kg when Drums. boxes are used as outer packaging. The net vol- steel, removable head ume of explosive in each package other than (1A2). boxes must not exceed 120 litres aluminium, removable 2. For UN 0075, 0143, 0495 and 0497 when boxes head (1B2). are used as the outer packaging, inner plywood (1D). packagings must have taped screw cap closures fibre (1G). and be not more than 5 litres capacity each. A Specification MC±200 con- composite packaging consisting of a plastic re- tainers may be used for ceptacle in a metal drum (6HA1) may be used in transport by motor vehi- lieu of combination packagings. Liquid substances cle. must not freeze at temperatures above ¥15°C (+5°F) 3. For UN 0144, intermediate packagings are not necessary. Receptacles 116 ...... Bags ...... Not necessary ...... Bags. 24726 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- paper, water and oil woven plastics (5H1/2/3). CEPTIONS: resistant paper, mulitwall, water 1. For UN 0082, 0241, 0331 and 0332, inner plastics resistant (5M2). packagings are not necessary if leakproof remov- texitile, plasic coated or plastics, film (5H4). able head drums are used as the outer packaging lined textile, sift-proof (5L2). 2. For UN 0082, 0241, 0331 and 0332, inner woven plasics, sift-proof textile, water resistant packagings are not required when the explosive is Receptacles ...... (5L3). contained in a material impervious to liquid fibreboard, water resist- Boxes. 3. For UN 0081, inner packagings are not required ant. steel (4A). when contained in rigid plastic which is imper- metal aluminium (4B). vious to nitric esters plastics wood, natural, ordinary 4. For UN 0331, inner packagings are not required wood, sift-proof (4C1). when bags (5H2), (5H3) or (5H4) are used as Sheets ...... natural wood, sift proof outer packagings paper, water resistant walls (4C2). 5. Bags (5H2 or 5H3) must be used only for UN paper, waxed plywood (4D). 0082, 0241, 0331 and 0332 plastics reconstituted wood (4F). 6. For UN 0081, bags must not be used as outer fibreboard (4G). packagings plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). Jerricans. steel, removable head (3A2). plastics, removable head (3H2). 117 ...... Not necessary ...... Not necessary ...... IBCs. PARTICULAR PACKING REQUIREMENTS OR EX- metal (11A), (11B), CEPTIONS: (11N), (21A), (21B), 1. This packing instruction may only be used for ex- (21N), (31A), (31B), plosives of 0082 when they are mixtures of am- (31N). monium nitrate or other inorganic nitrates with flexible (13H2), (13H3), other combustible substances which are not ex- (13H4), (13L2), (13L3), plosive ingredients. Such explosives must not (13L4), (13M2). contain nitroglycerin, similar liquid organic ni- rigid plastics (11H1), trates, liquid or solid nitrocarbons, or chlorates. (11H2), (21H1), 2. This packing instruction may only be used for ex- (21H2), (31H1), plosives of UN 0241 which consist of water as an (31H2). essential ingredient and high proportions of am- composite (11HZ1), monium nitrate or other oxidizers, some or all of (11HZ2), (21HZ1), which are in solution. The other constituents may (21HZ2), (31HZ1), include hydrocarbons or aluminium powder, but (31HZ2). must not include nitro-derivatives such as trinitro- toluene. 3. Metal IBCs must not be used for UN 0082 and 0241. 4. Flexible IBCs may only be used for solids. 130 ...... Not necessary ...... No necessary ...... Boxes. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24727

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- steel (4A). CEPTIONS: aluminium (4B). 1. The following applies to UN 0006, 0009, 0010, wood natural, ordinary 0015, 0016, 0018, 0019, 0034, 0035, 0038, 0039, (4C1). 0048, 0056, 0137, 0138, 0168, 0169, 0171, 0181, natural wood, sift proof 0182, 0183, 0186, 0221, 0238, 0243, 0244, 0245, walls (4C2). 0246, 0254, 0280, 0281, 0286, 0287, 0297, 0299, plywood (4D). 0300, 0301, 0303, 0321, 0328, 0329, 0344, 0345 reconstituted wood (4F). 0346, 0347, 0362, 0363, 0370, 0412, 0424, 0425, fibreboard (4G). 0434, 0435, 0436, 0437, 0438, 0451, 0459 and plastics, expanded (4H1). 0488. Large and robust explosives articles, nor- plastics, solid (4H2). mally intended for military use, without their Drums. means of initiation or with their means of initiation steel, removable head containing at least two effective protective fea- (1A2). tures, may be carried unpackaged. When such ar- aluminium, removable ticles have propelling charges or are self-pro- head (1B2). pelled, their ignition systems must be protected fibre (1G). against stimuli encountered during normal condi- plastics, removable head tions of transport. A negative result in Test Series (1H2). 4 on an unpackaged article indicates that the arti- cle can be considered for transport unpackaged. Such unpackaged articles may be fixed to cradles or contained in crates or other suitable handling devices. 131 ...... Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- paper steel (4A). CEPTIONS: plastics aluminium (4B). 1. For UN 0029, 0267 and 0455, bags and reels Receptacles wood, natural, ordinary may not be used as inner packagings fibreboard (4C1). 2. For UN 0030, 0255 and 0456, inner packagings metal natural wood, sift proof are not required when detonators are packed in plastics walls (4C2). pasteboard tubes, or when their leg wires are wood plywood (4D). wound on spools with the caps either placed in- Reels reconstituted wood (4F). side the spool or securely taped to the wire on fibreboard (4G). the spool, so as to restrict freedom of movement Drums. of the caps and to protect them from impact steel, removable head forces (1A2). 3. For UN 0360, 0361 and 0500, detonators are not aluminium, removable required to be attached to the safety fuse, metal- head (1B2). clad mild detonating cord, detonating cord, or fibre (1G). shock tube. Inner packagings are not required if plastics, removable head the packing configuration restricts freedom of (1H2). movement of the caps and protects them from im- pact forces 132(a) ...... Not necessary ...... Not necessary ...... Boxes. steel (4A). aluminium (4B). wood, natural, ordinary (4C1). wood, natural, sift proof walls (4C2). plywood (4D). reconstituted wood (4F). fibreboard (4G). plastics, solid (4H2). 132(b) ...... Receptacles ...... Not necessary ...... Boxes. fibreboard steel (4A). metal aluminium (4B). plastics wood, natural, ordinary Sheets (4C1). paper wood, natural, sift proof plastics walls (4C2). plywood (4D). reconstituted wood (4F). fibreboard (4G). plastics, solid (4H2). 133 ...... Receptables ...... Receptables ...... Boxes. 24728 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- fibreboard ...... fibreboard steel (4A). CEPTIONS: metal ...... metal aluminium (4B). 1. For UN 0043, 0212, 0225, 0268 and 0306 trays plastics ...... plastics wood, natural, ordinary are not authorized as inner packagings wood ...... wood (4C1). 2. Intermediate packagings are only required when Trays, fitted with dividing ... wood, natural, sift proof trays are used as inner packagings partitions ...... walls (4C2). fibreboard plywood (4D). plastics reconstituted wood (4F). wood fibreboard (4G). plastics, solid (4H2). 134 ...... Bags ...... Not necessary ...... Boxes. water resistant steel (4A). Receptacles aluminium (4B). fibreboard wood, natural, ordinary metal (4C1). plastics wood, natural, sift proof wood walls (4C2). Sheets plywood (4D). fibreboard, corrugated reconstituted wood (4F). Tubes fibreboard (4G). fibreboard plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). 135 ...... Bags ...... Not necessary ...... Boxes. paper steel (4A). plastics aluminium (4B). Receptacles wood, natural, ordinary fibreboard (4C1). metal wood, natural, sift proof plastics walls (4C2). wood plywood (4D). Sheets reconstituted wood (4F). paper fibreboard (4G). plastics plastics, expanded (4H1). plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). 136 ...... Bags...... Not necessary ...... Boxes. plastics steel (4A). textile aluminium (4B) Boxes. wood, natural, ordinary fibreboard (4C1). plastics wood, natural, sift proof wood walls (4C2). Dividing partitions in the plywood (4D). outer packagings ...... reconstituted wood (4F). fibreboard (4G). plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). 137 ...... Bags ...... Not necessary ...... Boxes. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24729

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIREMENTS OR EX- plastics steel (4A). CEPTIONS: Boxes ...... aluminium (4B). For UN 0059, 0439, 0440 and 0441, when the fibreboard wood, natural, ordinary shaped charges are packed singly, the conical Tubes ...... (4C1). cavity must face downwards and the package fibreboard wood, natural, sift proof marked ``THIS SIDE UP''. When the shaped metal walls (4C2). charges are packed in pairs, the conical cavities plastics plywood (4D). must face inwards to minimize the jetting effect in Dividing partitions in the reconstituted wood (4F). the event of accidental initiation outer packagings. fibreboard (4G). 138 ...... Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- plastics steel (4A). CEPTIONS: aluminium (4B). If the ends of the articles are sealed, inner wood, natural, ordinary packagings are not necessary (4C1). wood, natural, sift proof walls (4C2). plywood (4D). reconstituted wood (4F). fibreboard (4G). plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). 139 ...... Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- plastics steel (4A). CEPTIONS: Receptacles ...... aluminium (4B). 1. For UN 0065, 0102, 0104, 0289 and 0290, the fibreboard wood, natural, ordinary ends of the detonating cord must be sealed, for metal (4C1). example, by a plug firmly fixed so that the explo- plastics wood, natural, sift proof sive cannot escape. The ends of CORD DETO- wood walls (4C2). NATING flexible must be fastened securely Reels ...... plywood (4D). 2. For UN 0065 and UN 0289, inner packagings are Sheets ...... reconstituted wood (4F). not required when they are fastened securely in paper fibreboard (4G). coils plastics plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). plywood (1D). fibre (1G). plastics, removable head (1H2). 140 ...... Bags ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- plastics steel (4A). CEPTIONS: Reels ...... aluminium (4B). 1. If the ends of UN 0105 are sealed, no inner Sheets ...... wood, natural, ordinary packagings are required paper, kraft (4C1). 2. For UN 0101, the packaging must be sift-proof plastics wood, natural, sift proof except when the fuse is covered by a paper tube walls (4C2). and both ends of the tube are covered with re- plywood (4D). movable caps reconstituted wood (4F). 3. For UN 0101, steel or aluminium boxes or drums fibreboard (4G). must not be used plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). 24730 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

141 ...... Receptacles ...... Not necessary ...... Boxes. fibreboard steel (4A). metal aluminium (4B). plastics wood, natural, ordinary wood (4C1). Trays, fitted with dividing wood, natural, sift proof partitions. walls (4C2). plastics plywood (4D). wood reconstituted wood (4F). Dividing partitions in the fibreboard (4G). outer packagings. plastics, solid (4H2). Drums. steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). 142 ...... Bags ...... Not necessary ...... Boxes. paper steel (4A). plastics aluminium (4B). Receptacles ...... wood, natural, ordinary fibreboard (4C1). metal wood, natural, sift proof plastics walls (4C2). wood plywood (4D). Sheets ...... reconstituted wood (4F). paper fibreboard (4G). Trays, fitted with dividing plastics, solid (4H2). partitions. Drums. plastics steel, removable head (1A2). aluminium, removable head (1B2). fibre (1G). plastics, removable head (1H2). 143 ...... Bag ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- paper, kraft ...... steel (4A). CEPTIONS: plastics aluminum (4B). 1. For UN 0271, 0272, 0415 and 0491 when metal textile wood, natural, ordinary packagings are used, metal packagings must be textile, rubberized (4C1). so constructed that the risk of explosion, by rea- Receptacles ...... wood, natural, sift proof son of increase in internal pressure from internal fibreboard walls (4C2). or external causes is prevented metal plywood (4D). 2. Composite packagings (6HH2) (plastic receptacle plastics reconstituted wood (4F). with outer solid box) may be used in lieu of com- Trays, fitted with dividing fibreboard (4G). bination packagings partitions. plastics, solid (4H2). plastics Drums. wood steel, removable head (1A2). aluminium, removable head (1B2). plywood (1D). fibre (1G). plastics, removable head (1H2). 144 ...... Receptacles ...... Not necessary ...... Boxes. PARTICULAR PACKING REQUIREMENTS OR EX- fibreboard steel (4A). CEPTIONS: metal aluminum (4B). For UN 0248 and UN 0249, packagings must be plastics wood, natural, ordinary protected against the ingress of water. When Dividing partitions in the (4C1) with metal liner. CONTRIVANCES, WATER ACTIVATED are outer packagings. plywood (4D) with metal transported unpackaged, they must be provided liner. with at least two independent protective features reconstituted wood (4F) which prevent the ingress of water with metal liner. plastics, expanded (4H1). US 1 1. A jet perforating gun, charged, oil well may be transported under the following conditions: Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24731

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

a. Initiation devices carried on the same motor vehicle or offshore supply vessel must be segregated; each kind from every other kind, and from any gun, tool or other supplies, unless approved in accordance with § 173.56. Segregated initiation devices must be carried in a con- tainer having individual pockets for each such device or in a fully enclosed steel container lined with a non-sparking material. No more than two segregated initiation devices per gun may be carried on the same motor vehicle. b. Each shaped charge affixed to the gun may not contain more than 112 g (4 ounces) of explosives. c. Each shaped charge if not completely enclosed in glass or metal, must be fully protected by a metal cover after installation in the gun. d. A jet perforating gun classed as 1.1D or 1.4D may be transported by highway by private or contract carriers engaged in oil well operations. (i) A motor vehicle transporting a gun must have specially built racks or carrying cases designed and constructed so that the gun is securely held in place during transportation and is not subject to damage by contact, one to the other or any other article or material carried in the vehicle; and (ii) The assembled gun packed on the vehicle may not extend beyond the body of the motor vehicle. e. A jet perforating gun classed as 1.4D may be transported by a private offshore supply vessel only when the gun is carried in a motor vehi- cle as specified in paragraph (d) of this packing method or on offshore well tool pallets provided that: (i) All the conditions specified in paragraphs (a), (b), and (c) of this packing method are met; (ii) The total explosive contents do not exceed 90.8 kg (200 pounds) per tool pallet; (iii) Each cargo vessel compartment may contain up to 90.8 kg (200 pounds) of explosive content if the segregation requirements in § 176.83(b)(3) of this subchapter are met; and (iv) When more than one vehicle or tool pallet is stowed ``on deck'' a minimum horizontal separation of 3 m (9.8 feet) must be provided.

(d) Class 1 (explosive) materials § 173.124 [Amended] can be ignited and the reaction spreads owned by the Department of Defense 31. In § 173.124, the following over the whole length of the sample in and packaged prior to January 1, 1990, changes are made: 10 minutes or less. in accordance with the requirements of a. In paragraph (a)(1) introductory (2) Packing group criteria for readily this subchapter in effect at that time, are text, the word ‘‘Wetted’’ is revised to combustible materials of Division 4.1 excepted from the requirements of part read ‘‘Desensitized’’. are assigned as follows: 178 of this subchapter provided the b. In paragraph (a)(2)(i)(D)(2) the (i) For readily combustible solids packagings have maintained their words ‘‘for a 50 kg package’’ is added (other than metal powders), Packing integrity and the explosive material is after the words ‘‘greater than 75°C ° Group II if the burning time is less than declared as government-owned goods (167 F)’’. 45 seconds and the flame passes the c. In paragraphs (a)(3)(ii) and (iii), the packaged prior to January 1, 1990. wetted zone. Packing Group II must be wording ‘‘paragraph 2.c.(2) of appendix 30. In § 173.120, paragraph (a)(3) is assigned to powders of metal or metal E to this part’’ is revised to read ‘‘UN revised, the last sentence in paragraph alloys if the zone of reaction spreads Manual of Tests and Criteria’’ each (b)(3) is revised, the word ‘‘or’’ is over the whole length of the sample in place it appears. removed at the end of paragraph d. In paragraph (b)(1), the wording 5 minutes or less. (c)(1)(i)(A), the period at the end of ‘‘paragraph 3.a.(1) or 3.a.(2), as (ii) For readily combustible solids paragraph (c)(1)(i)(B) is removed and ‘‘; appropriate, of appendix E to this part’’ (other than metal powders), Packing or’’ is added in its place, and a new is revised to read ‘‘the UN Manual of Group III must be assigned if the paragraph (c)(1)(i)(C) is added, to read Tests and Criteria’’. burning rate time is less than 45 seconds as follows: e. In paragraph (b)(2), the wording and the wetted zone stops the flame propagation for at least 4 minutes. § 173.120 Class 3ÐDefinitions. ‘‘paragraph 3.b.(1) of appendix E to this part’’ is revised to read ‘‘UN Manual of Packing Group III must be assigned to (a) * * * Tests and Criteria’’. metal powders if the reaction spreads (3) Any liquid with a flash point f. In paragraph (c), the wording over the whole length of the sample in greater than 35°C (95°F) which does not ‘‘paragraph 4 of appendix E to this part’’ more than 5 minutes but not more than sustain combustion according to ASTM is revised to read ‘‘UN Manual of Tests 10 minutes. 4206 or the procedure in Appendix H of and Criteria’’. (c) * * * this part. 32. In § 173.125, paragraphs (b), (2) * * * * * * * * (c)(2)(i), (c)(2)(ii), and (d)(1) through (i) Packing Group II, if the material (b) * * * (d)(3) are revised to read as follows: gives a positive test result when tested with a 25 mm cube size sample at (3) * * * Either the test method § 173.125 Class 4ÐAssignment of packing ° specified in ASTM 4206 or the group. 140 C; or procedure in Appendix H of this part * * * * * (ii) Packing Group III, if— may be used to determine if a material (b) Packing group criteria for readily (A) A positive test result is obtained sustains combustion when heated under combustible materials of Division 4.1 in a test using a 100 mm sample cube test conditions and exposed to an are as follows: at 140°C and a negative test result is external source of flame. (1) Powdered, granular or pasty obtained in a test using a 25 mm sample ° (c) * * * materials must be classified in Division cube at 140 C and the substance is transported in packagings with a (1) * * * 4.1 when the time of burning of one or more of the test runs, in accordance volume of more than 3 cubic meters; or (i) * * * with the UN Manual of Tests and (B) A positive test result is obtained (C) Standard Test Methods for Flash Criteria, is less than 45 seconds or the in a test using a 100 mm sample cube Point by Small Scale Closed Tester, rate of burning is more than 2.2 mm/s. at 120°C and a negative result is (ASTM D 3828). Powders of metals or metal alloys must obtained in a test using a 25 mm sample * * * * * be classified in Division 4.1 when they cube at 140°C and the substance is 24732 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations transported in packagings with a the mean burning time of a 3:2 (b) * * * volume of more than 450 liters; or potassium bromate/cellulose mixture. (3) * * * (C) A positive result is obtained in a (ii) Packing Group II, for any material (iii) A solid substance should be test using a 100 mm sample cube at which, in either concentration tested, tested if at least 10 percent of its total 100°C and a negative result is obtained exhibits a mean burning time less than mass is likely to be dust in a respirable in a test using a 25 mm sample cube at or equal to the mean burning time of a range, e.g. the aerodynamic diameter of 140°C and the substance is transported 2:3 potassium bromate/cellulose that particle-fraction is 10 microns or in packagings with a volume of less than mixture and the criteria for Packing less. A liquid substance should be tested 450 liters. Group I are not met. if a mist is likely to be generated in a (d) * * * (iii) Packing Group III for any material leakage of the transport containment. In (1) Packing Group I, if the material which, in either concentration tested, carrying out the test both for solid and reacts vigorously with water at ambient exhibits a mean burning time less than liquid substances, more than 90% (by temperatures and demonstrates a or equal to the mean burning time of a mass) of a specimen prepared for tendency for the gas produced to ignite 3:7 potassium bromate/cellulose inhalation toxicity testing must be in the spontaneously, or which reacts readily mixture and the criteria for Packing respirable range as defined in this with water at ambient temperatures Group I and II are not met. paragraph (b)(3)(iii). such that the rate of evolution of (2) The packing group of a Division (c) For purposes of classifying and flammable gases is equal or greater than 5.1 material which is a liquid shall be assigning packing groups to mixtures 10 liters per kilogram of material over assigned using the following criteria: possessing oral or dermal toxicity any one minute; (i) Packing Group I for: hazards according to the criteria in (2) Packing Group II, if the material (A) Any material which § 173.133(a)(1), it is necessary to reacts readily with water at ambient spontaneously ignites when mixed with determine the acute LD50 of the mixture. temperatures such that the maximum cellulose in a 1:1 ratio; or If a mixture contains more than one rate of evolution of flammable gases is (B) Any material which exhibits a active constituent, one of the following equal to or greater than 20 liters per mean pressure rise time less than the methods may be used to determine the kilogram of material per hour, and pressure rise time of a 1:1 perchloric oral or dermal LD50 of the mixture: which does not meet the criteria for acid (50 percent)/cellulose mixture. (1) Obtain reliable acute oral and Packing Group I; or (ii) Packing Group II, any material dermal toxicity data on the actual which exhibits a mean pressure rise (3) Packing Group III, if the material mixture to be transported; time less than or equal to the pressure reacts slowly with water at ambient (2) If reliable, accurate data is not rise time of a 1:1 aqueous sodium temperatures such that the maximum available, classify the formulation chlorate solution (40 percent)/cellulose rate of evolution of flammable gases is according to the most hazardous mixture and the criteria for Packing greater than 1 liter per kilogram of constituent of the mixture as if that Group I are not met. material per hour, and which does not constituent were present in the same (iii) Packing Group III, any material meet the criteria for Packing Group I or concentration as the total concentration which exhibits a mean pressure rise II. of all active constituents; or time less than or equal to the pressure (3) If reliable, accurate data is not 33. Section 173.127 is revised to read rise time of a 1:1 nitric acid (65 available, apply the formula: as follows: percent)/cellulose mixture and the § 173.127 Class 5, Division 5.1ÐDefinition criteria for Packing Group I and II are CA+ +CB +CZ = 100 and assignment of packing groups. not met. TA TB TTZM (a) Definition. For the purpose of this § 173.128 [Amended] where: subchapter, oxidizer (Division 5.1) 34. In § 173.128, the following means a material that may, generally by C = the % concentration of constituent changes are made: yielding oxygen, cause or enhance the A, B ... Z in the mixture; a. In paragraph (c)(3), the wording combustion of other materials. T = the oral LD50 values of constituent ‘‘United Nations Recommendations on A, B ... Z; (1) A solid material is classed as a the Transport of Dangerous Goods, Tests TM = the oral LD50 value of the mixture. Division 5.1 material if, when tested in and Criteria, part III’’ would be revised accordance with the UN Manual of Note to formula in paragraph (c)(3): This to read ‘‘UN Manual of Tests and Tests and Criteria, its mean burning formula also may be used for dermal Criteria’. time is less than or equal to the burning toxicities provided that this information is b. In paragraph (e), the wording available on the same species for all time of a 3:7 potassium bromate/ ‘‘Figure 11.1 (Classification and Flow constituents. The use of this formula does not cellulose mixture. Chart Scheme for Organic Peroxides) take into account any potentiation or (2) A liquid material is classed as a from the UN Recommendations, Tests protective phenomena. Division 5.1 material if, when tested in and Criteria, part III’’ would be revised * * * * * accordance with the UN Manual of to read ‘‘Figure 20.1(a) (Classification 36. In § 173.136, a new paragraph (c) Tests and Criteria, it spontaneously and Flow Chart Scheme for Organic is added to read as follows: ignites or its mean time for a pressure Peroxides) from the UN Manual of Tests § 173.136 Class 8ÐDefinitions rise from 690 kPa to 2070 kPa gauge is and Criteria’’. less then the time of a 1:1 nitric acid (65 35. In § 173.132, a new paragraph * * * * * percent)/cellulose mixture. (b)(3)(iii) is added, paragraph (c) is (c) Skin corrosion test data produced (b) Assignment of packing groups. (1) redesignated as paragraph (d), and a no later than September 30, 1995, using The packing group of a Division 5.1 new paragraph (c) is added, to read as the procedures of Part 173, Appendix A, material which is a solid shall be follows: in effect on September 30, 1995 (see 49 assigned using the following criteria: CFR Part 173, Appendix A, revised as of (i) Packing Group I, for any material § 173.132 Class 6, Division 6.1Ð October 1, 1994) for appropriate which, in either concentration tested, Definitions. exposure times may be used for exhibits a mean burning time less than * * * * * classification and assignment of packing Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24733 group for Class 8 materials corrosive to (4) Reusable high strength plastic or subchapter if they meet the following skin. metal containers or dedicated handling requirements: devices are authorized for shipment of (1) Each cell with a liquid cathode § 173.137 [Amended] air bag inflators, air bag modules, and may contain no more than 0.5 g of 37. In § 173.137, the following seat-belt pretensioners from a lithium or lithium alloy, and each cell changes are made: manufacturing facility to the assembly with a solid cathode may contain no a. In paragraph (b), the wording facility, subject to the following more than 1.0 g lithium or lithium alloy; ‘‘other than those meeting Packing conditions: (2) Each battery with a liquid cathode Group I criteria’’ is added immediately (i) The gross weight of the container may contain an aggregate quantity of no following the word ‘‘Materials’’. or handling device may not exceed 1000 more than 1.0 g lithium or lithium alloy, b. In paragraph (c)(2), at the end of the kg (2205 pounds). The container or and each battery with a solid cathode paragraph, the wording ‘‘(Reapproved handling device structure must provide may contain an aggregate quantity of no 1990)’’ is revised to read ‘‘(Reapproved adequate support to allow them to be more than 2.0 g of lithium or lithium 1995)’’. stacked at least three high with no alloy; 38. In § 173.152, a new paragraph damage to the containers or devices. (3) Each cell or battery containing a (b)(4) is added to read as follows: (ii) If not completely enclosed by liquid cathode must be hermetically § 173.152 Exceptions for Division 5.1 design, the container or handling device sealed; (oxidizers) and Division 5.2 (organic must be covered with plastic, (4) Cells and batteries must be packed peroxides). fiberboard, or metal. The covering must in such a way so as to prevent short be secured to the container by banding * * * * * circuits and must be packed in strong (b) * * * or other comparable methods. packagings, except when installed in (iii) Internal dunnage must be (4) For polyester resin kits consisting equipment; and sufficient to prevent movement of the of a base material component (Class 3, (5) If a liquid cathode battery contains devices within the container. Packing Group II or III) and an activator more than 0.5 g of lithium or lithium component (Type C, D, E, or F organic * * * * * alloy or a solid cathode battery contains peroxide which does not require § 173.166 [Amended] more than 1.0 g lithium or lithium alloy, temperature control)— 41. In addition, in § 173.166, the it may not contain a liquid or gas that (i) the organic peroxide component following changes are made: is a hazardous material according to this must be packed in inner packagings not a. The last sentence in paragraph (a) subchapter unless the liquid or gas, if over 125 ml (4.22 ounces) net capacity is removed. free, would be completely absorbed or each for liquids or 500 g (17.64 ounces) b. In paragraph (b) introductory text, neutralized by other materials in the net capacity each for solids; the wording ‘‘air bag inflator, air bag battery. (ii) The flammable liquid component module, seat-belt pre-tensioner or seat- (c) Cells and batteries also are not must be packed in inner packagings not belt module’’ is revised to read ‘‘air bag subject to this subchapter if they meet over 1.0 L (0.3 gallons) net capacity each inflator, air bag module, or seat-belt pre- the following requirements: for Packing Group II liquids or 5.0 L (1.3 tensioner’’. (1) Each cell contains not more than gallons) net capacity each for Packing c. In paragraph (b)(2), the wording 5 g of lithium or lithium alloy; Group III liquids; and ‘‘Tests and Criteria, Second Edition, (2) Each battery contains not more (iii) The flammable liquid component 1990’’ is revised to read ‘‘Manual of than 25 g of lithium or lithium alloy; and the organic peroxide component Tests and Criteria, second revised (3) Each cell or battery is of the type may be packed in the same strong outer edition, 1995’’. proven to be non-dangerous by testing packaging provided they will not d. In paragraph (b)(4), the wording ‘‘or in accordance with tests in the UN interact dangerously in the event of seat-belt’’ and the wording ‘‘or seat-belt Manual of Tests and Criteria, such leakage. pre-tensioner’’ are removed. testing must be carried out on each type * * * * * e. In paragraph (c), in the last prior to the initial transport of that type; 39. In § 173.162, a sentence is added sentence, the wording ‘‘or pre- and at the end of the section to read as tensioner’’ is removed. (4) Cells and batteries are designed or follows: f. In paragraph (d)(1), the wording packed in such a way as to prevent short ‘‘An air bag or seat-belt module’’ is § 173.162 Gallium. circuits under conditions normally revised to read ‘‘An air bag module or encountered in transportation. ** * Manufactured articles or seat-belt pretensioner’’. (d) Cells and batteries and equipment apparatuses, each containing not more g. In paragraph (d)(2), the wording ‘‘or containing cells and batteries which than 100 mg (0.0035 ounce) of gallium seat-belt’’ and the wording ‘‘or pre- were first transported prior to January 1, and packaged so that the quantity of tensioner’’ are removed. 1995, and were assigned to Class 9 on h. In paragraph (f), in the first gallium per package does not exceed 1 the basis of the requirements of this sentence, the wording ‘‘or handling g (0.35 ounce) are not subject to the subchapter in effect on October 1, 1993, device’’ is added immediately following requirements of this subchapter. may continue to be transported in 40. In § 173.166, the section heading ‘‘each package’’. accordance with the applicable and paragraph (e) are revised to read as 42. Section 173.185 is revised to read requirements in effect on October 1, follows: as follows: 1993. § 173.166 Air bag inflators, air bag § 173.185 Lithium batteries and cells. (e) Cells and batteries may be modules and seat-belt pretensioners. (a) Except as otherwise provided in transported as items of Class 9 if they * * * * * this subpart, a lithium cell or battery is meet the requirements in paragraphs (e) Packagings. The following authorized for transportation only if it (e)(1) through (e)(9) of this section: packagings are authorized: conforms to the provisions of this (1) Cells must not contain more than (1) 1A2, 1B2, 1G or 1H2 drums. section. 12 g of lithium or lithium alloy. (2) 3A2 or 3H2 jerricans. (b) Exceptions. Cells and batteries are (2) Batteries must not contain more (3) 4C1, 4C2, 4D, 4F, 4G or 4H2 boxes. not subject to the requirements of this than 500 g of lithium or lithium alloy. 24734 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

(3) Each cell and battery must be batteries and cells meet all the containing not more than 12 g of lithium equipped with an effective means of requirements of paragraph (e) of this or lithium alloy and batteries containing preventing external short circuits. section and are packaged as follows: not more than 500 g of lithium or (4) Each cell and battery must (1) Equipment containing cells and lithium alloy may be offered for incorporate a safety venting device or be batteries must be packed in a strong transportation or transported by designed in a manner that will preclude outer packaging that is waterproof or is highway only as items of Class 9. a violent rupture under conditions made waterproof through the use of a Packaging must conform with paragraph normally incident to transportation. liner unless the equipment is made (e)(8) of this section with not more than (5) Batteries containing cells or series waterproof by nature of its construction. 100 cells per package. of cells connected in parallel must be The equipment must be secured within equipped with diodes to prevent reverse the outer packaging and be packed as to §§ 173.201, 173.202, 173.203, 173.211, current flow. effectively prevent movement, short 173.212, 173.213 [Amended] (6) Cells and batteries must be packed circuits, and accidental operation 42a. In addition to the amendments in strong inner packagings containing during transport; and set forth above, part 173 is amended by not more than 500 g of lithium or (2) Cells and batteries packed with adding the wording ‘‘Aluminum lithium alloy per inner packaging. equipment must be packed in inner jerrican: 3B1 or 3B2’’ immediately (7) Cells and batteries must be packed packagings conforming to paragraph following ‘‘Plastic jerrican: 3H1 or 3H2’’ in inner packagings in such a manner as (e)(8) of this section in such a manner each place it appears in the following to effectively prevent short circuits and as to effectively prevent movement and sections: to prevent movement which could lead short circuits. The quantity of lithium a. Section 173.201 (b) and (c) to short circuits. contained in any piece of equipment b. Section 173.202 (b) and (c) (8) Cells and batteries must be must not exceed 12 g per cell and 500 packaged in packagings conforming to g per battery. Not more than 5 kg of cells c. Section 173.203 (b) and (c) the requirements of part 178 of this and batteries may be packed with each d. Section 173.211 (b) and (c) subchapter at the Packing Group II item of equipment. e. Section 173.212 (b) and (c) performance level: Inner packagings (h) Cells and batteries, for disposal, f. Section 173.213 (b) and (c) must be packed within metal boxes (4A may be offered for transportation or 43. In § 173.220, paragraph (c)(1) is or 4B), wooden boxes (4C1, 4C2, 4D,or transported to a permitted storage revised to read as follows: 4F), fiberboard boxes (4G), solid plastic facility and disposal site by motor boxes (4H2), fiber drums (1G), metal vehicle when they meet the following § 173.220 Internal combustion engines, drums (1A2 or 1B2), plywood drums requirements: self-propelled vehicles, and mechanical (1D), plastic jerricans (3H2), or metal (1) Cells, when new, may not contain equipment containing internal combustion jerricans (3A2 or 3B2). more than 12 g and batteries may not engines or wet batteries. (9) Each cell or battery must be of the contain more than 500 g of lithium or * * * * * type proven to meet the criteria of Class lithium alloy; (c) * * * 9 by testing in accordance with tests in (2) Be equipped with an effective (1) For transportation by vessel, the the UN Manual of Tests and Criteria. means of preventing external short provisions of this subchapter do not (10) Except as provided in paragraph circuits; and (h) of this section, cells or batteries may (3) Be packed in a strong outer apply to a motor vehicle or mechanical not be offered for transportation or packaging conforming to the equipment which is electrically transported if any cell has been requirements of §§ 173.24 and 173.24a. powered by a wet electric storage discharged to the extent that the open The packaging need not conform to battery. circuit voltage is less than two volts or performance requirements of part 178 of * * * * * is less than 2⁄3 of the voltage of the fully this subchapter. 44. In § 173.224, the table at the end charged cell, whichever is less. (i) Cells and batteries and equipment of paragraph (b) is revised to read as (f) Equipment containing or packed containing or packed with cells and follows: with cells and batteries meeting the batteries which do not comply with the requirements of paragraph (b) or (c) of provisions of this section may be § 173.224 Packaging and control and emergency temperatures for self-reactive this section is excepted from all other transported only if they are approved by materials. requirements of this subchapter. the Associate Administrator for (g) Equipment containing or packed Hazardous Materials Safety. * * * * * with cells and batteries may be (j) For testing purposes, when not (b) * * * transported as items of Class 9 if the contained in equipment, cells * * * * *

SELF-REACTIVE SUBSTANCES

Control Emer- Self-reactive substance Identifica- Concentra- Packing tempera- gency tem- Notes tion No. tionÐ(%) method tureÐ(°C) perature

(1) (2) (3) (4) (5) (6) (7)

Azodicarbonamide formulation type B, temperature controlled .... 3232 <100 ...... OP5 ...... 1 Azodicarbonamide formulation type C ...... 3224 <100 ...... OP6 ...... Azodicarbonamide formulation type C, temperature controlled ... 3234 <100 ...... OP6 ...... 1 Azodicarbonamide formulation type D ...... 3226 <100 ...... OP7 ...... Azodicarbonamide formulation type D, temperature controlled ... 3236 <100 ...... OP7 ...... 1 2,2′-Azodi(2,4-dimethyl-4-methoxyvaleronitrile) ...... 3236 100 ...... OP7 ×5 ...... +5 ...... 2,2′-Azodi(2,4-dimethylvaleronitrile) ...... 3236 100 ...... OP7 +10 ...... +15 ...... 2,2′-Azodi(ethyl 2-methylpropionate) ...... 3235 100 ...... OP7 +20 ...... +25 ...... 1,1-Azodi(hexahydrobenzonitrile) ...... 3226 100 ...... OP7 ...... Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24735

SELF-REACTIVE SUBSTANCESÐContinued

Control Emer- Self-reactive substance Identifica- Concentra- Packing tempera- gency tem- Notes tion No. tionÐ(%) method tureÐ(°C) perature

(1) (2) (3) (4) (5) (6) (7)

2,2-Azodi(isobutyronitrile) ...... 3234 100 ...... OP6 +40 ...... +45 ...... 2,2-Azodi(2-methylbutyronitrile) ...... 3236 100 ...... OP7 +35 ...... +40 ...... Benzene-1,3-disulphohydrazide, as a paste ...... 3226 52 ...... OP7 ...... Benzene sulphohydrazide ...... 3226 100 ...... OP7 ...... 4-(Benzyl(ethyl)amino)-3-ethoxybenzenediazonium zinc chloride 3226 100 ...... OP7 ...... 4-(Benzyl(methyl)amino)-3-ethoxybenzenediazonium zinc chlo- 3236 100 ...... OP7 +40 ...... +45 ...... ride. 3-Chloro-4-diethylaminobenzenediazonium zinc chloride ...... 3226 100 ...... OP7 ...... 2-Diazo-1-Naphthol-4-sulphochloride ...... 3222 100 ...... OP5 ...... 2-Diazo-1-Naphthol-5-sulphochloride ...... 3222 100 ...... OP5 ...... 2,5-Diethoxy-4-morpholinobenzenediazonium zinc chloride ...... 3236 67±100 .... OP7 +35 ...... +40 ...... 2,5-Diethoxy-4-morpholinobenzenediazonium zinc chloride ...... 3236 66 ...... OP7 +40 ...... +45 ...... 2,5-Diethoxy-4-morpholinobenzenediazonium tetrafluoroborate .. 3236 100 ...... OP7 +30 ...... +35 ...... 2,5-Diethoxy-4-(phenylsulphonyl)benzenediazonium zinc chlo- 3236 67 ...... OP7 +40 ...... +45 ...... ride. Diethylene glycol bis(allyl carbonate) + 3237 ≥88+≤12 .. OP8 ¥10 ...... 0 ...... Diisopropylperoxydicarbonate. 2,5-Dimethoxy-4-(4-methylphenylsulphony)benzenediazonium 3236 79 ...... OP7 +40 ...... +45 ...... zinc chloride. 4-Dimethylamino-6-(2-dimethylaminoethoxy)toluene-2-diazonium 3236 100 ...... OP7 +40 ...... +45 ...... zinc chloride. N,N'-Dinitroso-N, N′-dimethyl-terephthalamide, as a paste ...... 3224 72 ...... OP6 ...... N,N′-Dinitrosopentamethylenetetramine ...... 3224 82 ...... OP6 ...... 2 Diphenyloxide-4,4'-disulphohydrazide ...... 3226 100 ...... OP7 ...... 4-Dipropylaminobenzenediazonium zinc chloride ...... 3226 100 ...... OP7 ...... 2-(N,N-Ethoxycarbonylphenylamino)-3-methoxy-4-(N-methyl-N- 3236 63±92 ...... OP7 +40 ...... +45 ...... cyclohexylamino)benzenediazonium zinc chloride. 2-(N,N-Ethoxycarbonylphenylamino)-3-methoxy-4-(N-methyl-N- 3236 62 ...... OP7 +35 ...... +40 ...... cyclohexylamino)benzenediazonium zinc chloride. N-Formyl-2-(nitromethylene)-1,3-perhydrothiazine ...... 3236 100 ...... OP7 +45 ...... +50 ...... 2-(2-Hydroxyethoxy)-1-(pyrrolidin-1-yl)benzene-4-diazonium zinc 3236 100 ...... OP7 +45 ...... +50 ...... chloride. 3-(2-Hydroxyethoxy)-4-(pyrrolidin-1-yl)benzenediazonium zinc 3236 100 ...... OP7 +40 ...... +45 ...... chloride. 2-(N,N-Methylaminoethylcarbonyl)-4-(3,4-dimethyl- 3236 96 ...... OP7 +45 ...... +50 ...... phenylsulphonyl)benzene diazonium zinc chloride. 4-Methylbenzenesulphonylhydrazide ...... 3226 100 ...... OP7 ...... 3-Methyl-4-(pyrrolidin-1-yl)benzenediazonium tetrafluoroborate .. 3234 95 ...... OP6 +45 ...... +50 ...... 4-Nitrosophenol ...... 3236 100 ...... OP7 +35 ...... +40 ...... Self-reactive liquid, sample ...... 3223 ...... OP2 ...... 3 Self-reactive liquid, sample, temperature control ...... 3233 ...... OP2 ...... 3 Self-reactive solid, sample ...... 3224 ...... OP2 ...... 3 Self-reactive solid, sample, temperature control ...... 3234 ...... OP2 ...... 3 Sodium 2-diazo-1-naphthol-4-sulphonate ...... 3226 100 ...... OP7 ...... Sodium 2-diazo-1-naphthol-5-sulphonate ...... 3226 100 ...... OP7 ...... Tetramine palladium (II) nitrate ...... 3234 100 ...... OP6 +30 ...... +35 ......

NOTES: 1. The emergency and control temperatures must be determined in accordance with § 173.21(f). 2. With a compatible diluent having a boiling point of not less than 150 C. 3. Samples may only be offered for transportation under the provisions of paragraph(c)(4) of this section.

* * * * * for a liquid or a solid, respectively’’ is (2) ID number. * * * The word revised to read ‘‘OP2’’. ‘‘EXEMPT’’ appearing in the column § 173.224 [Amended] 46. In § 173.225, paragraph (b)(2) is denotes that the material is not 45. In addition, in § 173.224, the amended by adding a second sentence, regulated as an organic peroxide. following changes are made: and paragraph (b)(4)(ii), paragraph * * * * * a. Paragraph (c)(3) is removed. (b)(6), the Organic Peroxides Table at (4) * * * b. Paragraph (c)(4) is redesignated as the end of paragraph (b), paragraphs (d) (ii) The required mass percent of paragraph (c)(3). and (e)(5) are revised, to read as follows: ‘‘Diluent type B’’ is specified in Column c. In the first sentence in paragraph § 173.225 Packaging requirements and 4b. A diluent type B is an organic liquid (c)(1), the reference ‘‘(c)(4)’’ is revised to other provisions for organic peroxides. which is compatible with the organic read ‘‘(c)(3)’’. peroxide and which has a boiling point, d. In newly designated paragraph * * * * * at atmospheric pressure, of less than (c)(3)(ii), the wording ‘‘OP2A or OP2B, (b) * * * 150°C (302°F) but at least 60°C (140°F), 24736 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations and a flash point greater than 5°C (41°F). (6) Packing method. Column 6 requirements of paragraph (e) of this Type B diluents may be used for specifies the highest packing method section, lower control temperatures than desensitizing all organic peroxides (largest packaging capacity) authorized those specified for non-bulk packagings provided that the boiling point is at for the organic peroxide. Lower are required. The Table of Packing least 60°C (140°F) above the SADT of numbered packing methods (smaller Methods in paragraph (d) of this section the peroxide in a 50 kg (110 lbs) packaging capacities) are also defines the non-bulk packing methods. package. A type A diluent may be used authorized. For example, if OP3 is * * * * * to replace a type B diluent in equal specified, then OP2 and OP1 are also concentration. authorized. When an IBC or bulk * * * * * packaging is authorized and meets the

ORGANIC PEROXIDE TABLE

Diluent (mass %) Tempera- Con- ture(°C) Technical name ID num- centration Water Packing Notes ber (mass %) ABI (mass %) method Con- Emer- trol gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

Acetyl acetone peroxide ...... UN3105 ≤42 ...... ≥48 ...... ≥8 ...... OP7 ...... 2 Acetyl acetone peroxide [as a paste] ...... UN3106 ≤32 ...... OP7 ...... 21 Acetyl benzoyl peroxide ...... UN3105 ≤45 ...... ≥55 ...... OP7 Acetyl cyclohexanesulfonyl peroxide ...... UN3112 ≤82 ...... ≥12 ...... OP4 ...... ¥10 0 Acetyl cyclohexanesulfonyl peroxide ...... UN3115 ≤32 ...... ≥68 ...... OP7 ...... ¥10 0 tert-Amyl hydroperoxide ...... UN3107 ≤88 ...... ≥6 ...... ≥6 ...... OP8 tert-Amyl peroxyacetate ...... UN3107 ≤62 ...... ≥38 ...... OP8 tert-Amyl peroxybenzoate ...... UN3105 ≤96 ...... ≥4 ...... OP7 tert-Amyl peroxy-2-ethylhexanoate ...... UN3115 ≤100 ...... OP7 ...... +20 +25 tert-Amyl peroxy-2-ethylhexyl carbonate .... UN3105 ≤100 ...... OP7 tert-Amyl peroxyneodecanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ...... 0 ..... +10 tert-Amyl peroxypivalate ...... UN3113 ≤77 ...... ≥23 ...... OP5 ...... +10 +15 tert-Amylperoxy-3,5,5-trimethylhexanoate .. UN3101 ≤100 ...... OP5 tert-Butyl cumyl peroxide ...... UN3105 ±42¥100 ...... OP7 ...... 1, 9 tert-Butyl cumyl peroxide ...... UN3106 ≤42 ...... ≥58 ...... OP7 ...... 1, 9 n-Butyl-4,4-di-(tert- butylperoxy)valerate ..... UN3103 >52¥100 ...... OP5 n-Butyl-4,4-di-(tert- butylperoxy)valerate ..... UN3106 ≤52 ...... ≥48 ...... OP7 n-Butyl-4,4-di-(tert- butylperoxy)valerate ..... UN3108 ≤42 ...... ≥58 ...... OP8 tert-Butyl hydroperoxide ...... UN3103 >79¥90 ...... ≥10 ...... OP5 ...... 13 tert-Butyl hydroperoxide ...... UN3105 ≤80 ...... ≥20 ...... OP7 ...... 4, 13 tert-Butyl hydroperoxide ...... UN3107 ≤79 ...... >14 ...... OP8 ...... 13, 16 tert-Butyl hydroperoxide ...... UN3109 ≤72 ...... ≥28 ...... OP8 ...... 7, 13 tert-Butyl hydroperoxide [and] Di- tert- UN3103 <82+>9 ...... ≥7 ...... OP5 ...... 13 butylperoxide. tert-Butyl monoperoxymaleate ...... UN3102 >52¥100 ...... OP5 tert-Butyl monoperoxymaleate ...... UN3103 ≤52 ...... ≥48 ...... OP6 tert-Butyl monoperoxymaleate ...... UN3108 ≤52 ...... ≥48 ...... OP8 tert-Butyl monoperoxymaleate [as a paste] UN 3108 ≥52 ...... OP8 ...... tert-Butyl monoperoxymaleate [as a paste] UN 3110 ≥42 ...... OP8 ...... 7 tert-Butyl monoperoxyphthalate ...... UN 3102 ≤100 ...... OP5 ...... tert-Butyl peroxyacetate ...... UN 3101 >52±77 .. ≥23 ...... OP5 ...... tert-Butyl peroxyacetate ...... UN 3103 >32±52 .. ≥48 ...... OP6 ...... tert-Butyl peroxyacetate ...... UN 3109 ≥32 ...... ≥68 ...... OP8 ...... 10 tert-Butyl peroxyacetate ...... UN 3119 ≥32 ...... ≥68 ...... Bulk ...... +30 +35 7 tert-Butyl peroxyacetate ...... UN 3109 ≥22 ...... ≥78 ...... OP8 ...... 14 tert-Butyl peroxybenzoate ...... UN 3103 >77±100 ≥23 ...... OP5 tert-Butyl peroxybenzoate ...... UN 3105 >52±77 .. ≥23 ...... OP7 ...... 1 tert-Butyl peroxybenzoate ...... UN 3106 ≥52 ...... ≥48 ...... OP7 tert-Butyl peroxybutyl fumarate ...... UN 3105 ≥52 ...... ≥48 ...... OP7 ...... tert-Butyl peroxycrotonate ...... UN 3105 ≥77 ...... ≥23 ...... OP7 ...... tert-Butyl peroxydiethylacetate ...... UN 3113 ≤100 ...... OP5 ...... +20 +25 tert-Butyl peroxydiethylacetate [and] tert- UN 3105 ≥33+≥33 ≥33 ...... OP7 ...... Butyl peroxybenzoate. tert-Butyl peroxy-2-ethylhexanoate ...... UN 3113 >52±100 ...... OP6 ...... +20 +25 tert-Butyl peroxy-2-ethylhexanoate ...... UN 3117 ≥52 ...... ≥48 ...... OP8 ...... +30 +35 tert-Butyl peroxy-2-ethylhexanoate ...... UN 3118 ≥52 ...... ≥48 ...... OP8 ...... +20 +25 tert-Butyl peroxy-2-ethylhexanoate ...... UN 3119 ≥32 ...... ≥68 ...... OP8 ...... +40 +45 tert-Butyl peroxy-2-ethylhexanoate ...... UN 3119 ≥32 ...... ≥68 ...... 1BC ...... +30 +35 .. 10 tert-Butyl peroxy-2-ethylhexanoate ...... UN 3119 ≤32 ...... ≥68 ...... Bulk ...... +10 +15 .. 14 tert-Butyl peroxy-2-ethylhexanoate [and] UN 3115 ≥31+≥36 ...... ≥33 ...... OP7 ...... +35 +40 2,2-di-(tert-Butylperoxy)butane. tert-Butyl peroxy-2-ethylhexanoate [and] UN 3106 ≥12+≥14 ≥14 ...... ≥60 ...... OP7 ...... 2,2-di-(tert-Butylperoxy)butane. tert-Butyl peroxy-2- ethylhexylcarbonate .... UN 3105 ≥100 ...... OP7 ...... tert-Butyl peroxyisobutyrate ...... UN 3111 >52±77 ...... ≥23 ...... OP5 ...... +15 +20 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24737

ORGANIC PEROXIDE TABLEÐContinued

Diluent (mass %) Tempera- Con- ture(°C) Technical name ID num- centration Water Packing Notes ber (mass %) ABI (mass %) method Con- Emer- trol gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8) tert-Butyl peroxyisobutyrate ...... UN 3115 ≥52 ...... ≥48 ...... OP7 ...... +15 +20 tert-Butylperoxy isopropylcarbonate ...... UN 3103 ≥77 ...... ≥23 ...... OP5 ...... 1-(2-. tert-Butylperoxy isopropyl)-3- UN 3105 ≥77 ...... ≥23 ...... OP7 ...... isopropenylbenzene. 1-(2-. tert-Butylperoxy isopropyl)-3- UN 3108 ≥42 ...... ≥58 ...... OP8 ...... isopropenylbenzene. tert-Butyl peroxy-2-methylbenzoate ...... UN3103 ≤100 ...... OP5 ...... tert-Butyl peroxyneodecanoate ...... UN3115 >77±100 ...... OP7 ...... ¥5 .. +5 tert-Butyl peroxyneodecanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ...... 0 ..... +10 tert-Butyl peroxyneodecanoate [as a stable UN3117 ≤42 ...... OP8 ...... 0 ..... +10 dispersion in water]. tert-Butyl peroxyneodecanoate [as a stable UN3118 ≤42 ...... OP8 ...... 0 ..... +10 dispersion in water (frozen)]. tert-Butyl peroxyneoheptanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ...... +10 +15 3-tert-Butylperoxy-3-phenylphthalide ...... UN3106 ≤100 ...... OP7 ...... tert-Butyl peroxypivalate ...... UN3113 >67±77 .. ≥23 ...... OP5 ...... 0 ..... +10 tert-Butyl peroxypivalate ...... UN3115 ≤67 ...... ≥33 ...... OP7 ...... 0 ..... +10 tert-Butyl peroxypivalate ...... UN3119 ≤27 ...... ≥73 ...... OP8 ...... +30 +35 tert-Butyl peroxypivalate ...... UN3119 ≤27 ...... ≥73 ...... IBC ...... +10 +15 .. 10 tert-Butyl peroxypivalate ...... UN3119 ≤27 ...... ≥73 ...... Bulk ...... ¥5 .. +5 .... 14 tert-Butylperoxy stearylcarbonate ...... UN3106 ≤100 ...... OP7 ...... tert-Butyl peroxy-3,5,5-trimethylhexanoate UN3105 >32±100 ...... OP7 ...... tert-Butyl peroxy-3,5,5-trimethylhexanoate UN3109 ≤32 ...... ≥68 ...... OP8 ...... 10 tert-Butyl peroxy-3,5,5-trimethylhexanoate UN3119 ≤32 ...... ≥68 ...... Bulk ...... +35 +40 .. 14 3-Chloroperoxybenzoic acid ...... UN3102 >57±86 ...... ≥14 ...... OP1 ...... 3-Chloroperoxybenzoic acid ...... UN3106 ≤77 ...... ≥6 ... ≥17 ...... OP7 ...... 3-Chloroperoxybenzoic acid ...... UN3106 ≤57 ...... ≥3 ... ≥40 ...... OP7 ...... Cumyl hydroperoxide ...... UN3107 >90±98 .. ≤10 ...... OP8 ...... 13 Cumyl hydroperoxide ...... UN3109 ≥90 ...... ≥10 ...... OP8 ...... 7, 13, 15 Cumyl peroxyneodecanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ...... ¥10 0 Cumyl peroxyneodecanoate [as a stable UN3119 ≤52 ...... OP8 ...... ¥10 0 dispersion in water]. Cumyl peroxyneoheptanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ...... 0 ..... +10 Cumyl peroxypivalate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ...... ¥5 .. +5 Cyclohexanone peroxide(s) ...... UN3104 ≤91 ...... ≥9 ...... OP6 ...... 13 Cyclohexanone peroxide(s) ...... UN3105 ≤72 ...... ≥28 ...... OP7 ...... 5 Cyclohexanone peroxide(s) [as a paste] .... UN3106 ≤72 ...... OP7 ...... 5, 21 Cyclohexanone peroxide(s) ...... Exempt .. ≤32 ...... ≥68 ...... Exempt. Diacetone alcohol peroxides ...... UN3115 ≤57 ...... ≥26 ...... ≥8 ...... OP7 ...... +40 +45 .. 5 Diacetyl peroxide ...... UN3115 ≤27 ...... ≥73 ...... OP7 ...... +20 +25 .. 8,13 Di-tert-amyl peroxide ...... UN3107 ≤100 ...... OP8 1,1-Di-(tert-amylperoxy)cyclohexane UN3103 ≤82 ...... ≥18 ...... OP6 Dibenzoyl peroxide ...... UN3102 >51±100 ...... ≤48 OP2 ...... 3 Dibenzoyl peroxide ...... UN3102 >77±94 ...... ≥6 OP4 ...... 3 Dibenzoyl peroxide ...... UN3104 ≤77 ...... ≥23 OP6 Dibenzoyl peroxide UN3106 ≤62 ...... ≥28 ≥10 OP7 Dibenzoyl peroxide [as a paste] ...... UN3106 >52±62 ...... OP7 ...... 21 Dibenzoyl peroxide [as a paste] ...... UN3108 ≤56.5 ...... ≥15 OP8 Dibenzoyl peroxide UN3106 >35±52 ...... ≥48 OP7 Dibenzoyl peroxide [as a paste] UN3108 ≤52 ...... OP8 ...... 21 Dibenzoyl peroxide [as a paste] ...... Exempt .. ≤50 ...... ≥14 ...... ≥18 Exempt Dibenzoyl peroxide UN3107 >36±42 .. ≥18 ...... ≤40 OP8 Dibenzoyl peroxide ...... UN3107 >36±42 .. ≥58 ...... OP8 Dibenzoyl peroxide [as a stable dispersion UN3109 ≤42 ...... OP8 ...... 10 in water]. Dibenzoyl peroxide ...... Exempt .. ≤35 ...... ≥65 Exempt Dibenzyl peroxydicarbonate UN3112 ≤87 ...... ≥13 ...... OP5 ...... +25 +30 Di-(4-tert- UN3114 ≤100 ...... OP6 ...... +30 +35 butylcyclohexyl)peroxydicarbonate. Di-(4-tert- UN3119 ≤42 ...... OP8 ...... +30 +35 .. 10 butylcyclohexyl)peroxydicarbonate [as a stable dispersion in water]. Di-tert-butyl peroxide ...... UN3107 >32±100 ...... OP8 Di-tert-butyl peroxide ...... UN3109 ≤52 ...... ≥48 ...... OP8 ...... 7, 24 24738 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

ORGANIC PEROXIDE TABLEÐContinued

Diluent (mass %) Tempera- Con- ture(°C) Technical name ID num- centration Water Packing Notes ber (mass %) ABI (mass %) method Con- Emer- trol gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

Di-tert-butyl peroxyazelate ...... UN3105 ≤52 ...... ≥48 ...... OP7 2,2-Di-(tert-butylperoxy)butane UN3103 ≤52 ...... ≥48 ...... OP6 1,1-Di-(tert-butylperoxy)cyclohexane UN3101 >80±100 ...... OP5 1,1-Di-(tert-butylperoxy)cyclohexane UN3103 >52±80 .. ≤20 ...... OP5 1,1-Di-(tert-butylperoxy)cyclohexane UN3105 ≤52 ...... ≥48 ...... OP7 1,1-Di-(tert-butylperoxy)cyclohexane UN3106 ≤42 ...... ≥13 ...... ≥45 OP7 1,1-Di-(tert-butylperoxy)cyclohexane UN3109 ≤42 ...... ≥58 ...... OP8 ...... 10 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3107 ≤27 ...... ≥36 ...... OP8 ...... 22 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3109 ≤25 ...... ≥25 ≥50 ...... OP8 ...... 7 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3109 ≤13 ...... ≥13 ≥74 OP8 ...... 7. Di-n-butyl peroxydicarbonate ...... UN3115 >27±52 ...... ≥48 ...... OP7 ...... ¥15 5. Di-n-butyl peroxydicarbonate [as a stable UN3118 ≤42 ...... OP8 ...... ¥15 ¥5 ... dispersion in water (frozen)]. Di-n-butyl peroxydicarbonate ...... UN3117 ≤27 ...... ≥73 ...... OP8 ...... ¥10 0 ...... Di-sec-butyl peroxydicarbonate ...... UN3113 >52±100 ...... OP4 ...... ¥20 ¥10 6 Di-sec-butyl peroxydicarbonate ...... UN3115 ≤52 ...... ≥48 ...... OP7 ...... ¥15 ¥5 ... Di-(2-tert-butylperoxyisopropyl)benzene(s) UN3106 >42±100 ...... ≤57 ...... OP7 ...... 1, 9 Di-(2-tert-butylperoxyisopropyl)benzene(s) Exempt .. ≤42 ...... ≥58 Exempt Di-(tert-butylperoxy)phthalate UN3105 >42±52 .. ≥48 ...... OP7 Di-(tert-butylperoxy)phthalate [as a paste] .. UN3106 ≤52 ...... OP7 ...... 21 Di-(tert-butylperoxy)phthalate ...... UN3107 ≤42 ...... ≥58 ...... OP8 2,2-Di-(tert-butylperoxy)propane UN3105 ≤52 ...... ≥48 ...... OP7 2,2-Di-(tert-butylperoxy)propane UN3106 ≤42 ...... ≥13 ...... ≥45 OP7 1,1-Di-(tert-butylperoxy)-3,5,5- UN3101 >90±100 ...... OP5 trimethylcyclohexane 1,1-Di-(tert-butylperoxy)-3,5,5- UN3103 >57±90 .. ≥10 ...... OP5 trimethylcyclohexane 1,1-Di-(tert-butylperoxy)-3,5,5- UN3106 ≤57 ...... ≥43 OP7 trimethylcyclohexane 1,1-Di-(tert-butylperoxy)-3,5,5- UN3107 ≤57 ...... ≥43 ...... OP8 trimethylcyclohexane 1,1-Di-(tert-butylperoxy)-3,5,5- UN3107 ≤32 ...... ≥26 ≥42 ...... OP8 trimethylcyclohexane Dicetyl peroxydicarbonate UN3116 ≤100 ...... OP7 ...... +30 +35 Dicetyl peroxydicarbonate [as a stable dis- UN3119 ≤42 ...... OP8 ...... +30 +35 .. 10 persion in water]. Di-4-chlorobenzoyl peroxide ...... UN3102 ≤77 ...... ≥23 OP5 Di-4-chlorobenzoyl peroxide [as a paste] UN3106 ≤52 ...... OP7 ...... 21 Di-4-chlorobenzoyl peroxide ...... Exempt .. ≤32 ...... ≥68 Exempt Dicumyl peroxide UN3109 >52±100 ...... ≤48 ...... OP8 ...... 7, 9, 11 Dicumyl peroxide ...... UN3110 >52±100 ...... ≤48 ...... OP8 ...... 7, 9, 11 Dicumyl peroxide ...... Exempt .. ≤52 ...... ≥48 ...... Exempt Dicumyl peroxide ...... Exempt .. ≤52 ...... ≥48 ...... Exempt ...... Dicyclohexyl peroxydicarbonate ...... UN3112 >91±100 ...... OP3 ...... +5 ... +10 Dicyclohexyl peroxydicarbonate ...... UN3114 ≤91 ...... ≥9 ...... OP5 ...... +5 ... +10 .. Didecanoyl peroxide ...... UN3114 ≤100 ...... OP6 ...... +30 +35 2,2-Di-(4,4-di(tert- UN3106 ≤42 ...... ≥58 ...... OP7 ...... butylperoxy)cyclohexyl)propane. 2,2-Di-(4,4-di(tert- UN3107 ≤25 ...... ≥75 ...... OP8 ...... butylperoxy)cyclohexyl)propane. Di-2,4-dichlorobenzoyl peroxide ...... UN3102 ≤77 ...... ≥23 ...... OP5 ...... Di-2,4-dichlorobenzoyl peroxide [as a paste UN3106 ≤52 ...... OP7 ...... with silicone oil]. Di-(2-ethylhexyl) peroxydicarbonate ...... UN3113 >77±100 ...... OP5 ...... ¥20 ¥10 Di-(2-ethylhexyl) peroxydicarbonate ...... UN3115 ≤77 ...... OP7 ...... ¥15 ¥5 Di-(2-ethylhexyl) peroxydicarbonate [as a UN3119 ≤52 ...... OP8 ...... ¥15 ¥5 stable dispersion in water]. Di-(2-ethylhexyl) peroxydicarbonate [as a UN3118 ≤42 ...... OP8 ...... ¥15 ¥5 stable dispersion in water (frozen)]. Diethyl peroxydicarbonate ...... UN3115 ≤27 ...... ≥73 ...... OP7 ...... >10 0 ...... 2,2-Dihydroperoxypropane ...... UN3102 ≤27 ...... ≥73 OP5 Di-(1-hydroxycyclohexyl)peroxide ...... UN3106 ≤100 ...... OP7 Diisobutyryl peroxide ...... UN3111 >32±52 ...... ≥48 ...... OP5 ...... ¥20 ¥10 Diisobutyryl peroxide ...... UN3115 ≤32 ...... ≥68 ...... OP7 ...... ¥20 ¥10. Diisopropylbenzene dihydroperoxide ...... UN3106 ≤82 ...... ≥5 ...... ≥5 ...... OP7 ...... 17 Diisopropyl peroxydicarbonate ...... UN3112 >52±100 ...... OP2 ...... ¥15 ¥5 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24739

ORGANIC PEROXIDE TABLEÐContinued

Diluent (mass %) Tempera- Con- ture(°C) Technical name ID num- centration Water Packing Notes ber (mass %) ABI (mass %) method Con- Emer- trol gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

Diisopropyl peroxydicarbonate ...... UN3115 ≤52 ...... ≥48 ...... OP7 ...... ¥10 0 Diisotridecyl peroxydicarbonate ...... UN3115 ≤100 ...... OP7 ¥10 0 Dilauroyl peroxide ...... UN3106 ≤100 ...... OP7 Dilauroyl peroxide [as a stable dispersion UN3109 ≤42 ...... OP8 ...... 10 in water]. Di-(2-methylbenzoyl)peroxide ...... UN3112 ≤87 ...... ≥13 ...... OP5 ...... +30 +35 .. Di-(4-methylbenzoyl)peroxide [as a paste UN3106 ≤52 ...... OP7 with silicone oil]. 2,5-Dimethyl-2,5-di- UN3102 >82±100 ...... OP5 (benzoylperoxy)hexane. 2,5-Dimethyl-2,5-di- UN3104 ≤82 ...... ≥18 ...... OP5 (benzoylperoxy)hexane. 2,5-Dimethyl-2,5-di-(benzoylperoxy)hexane UN3106 ≤82 ...... ≥18 ...... OP7 2,5-Dimethyl-2,5-di-(tert- UN3105 >52±100 ...... OP7 butylperoxy)hexane. 2,5-Dimethyl-2,5-di-(tert- UN3101 >87±100 ...... OP5 butylperoxy)hexyne-3. 2,5-Dimethyl-2,5-di-(tert- UN3103 >52±86 ...... OP5 butylperoxy)hexyne-3. 2,5-Dimethyl-2,5-di-(tert- UN3106 ≤52 ...... ≥48 ...... OP7 butylperoxy)hexane. 2,5-Dimethyl-2,5-di-(tert- UN3109 ≤52 ...... ≥48 ...... OP8 ...... 7 butylperoxy)hexane. 2,5-Dimethyl-2,5-di-(tert- UN3106 ≤52 ...... ≥48 ...... OP7 butylperoxy)hexyne-3. 2,5-Dimethyl-2,5-di-(tert- UN3108 ≤47 ...... OP8 butylperoxy)hexane [as a paste]. 2,5-Dimethyl-2,5-di-(2- UN3115 ≤100 ...... OP7 ...... +20 +25 ethylhexanoylperoxy)hexane. 2,5-Dimethyl-2,5-dihydroperoxyhexane ...... UN3104 ≤82 ...... ≥18 ...... OP6 2,5-Dimethyl-2,5-di-(3,5,5- UN3105 ≤77 ...... ≥23 ...... OP7 trimethylhexanoylperoxy)hexane. 1,1-Dimethyl-3- UN3117 ≤52 ...... ≥48 ...... OP8 ...... +0 ... +10 .. hydroxybutylperoxyneoheptanoate. Dimyristyl peroxydicarbonate ...... UN3116 ≤100 ...... OP7 ...... +20 +25 .. Dimyristyl peroxydicarbonate [as a stable UN3119 ≤42 ...... OP8 ...... +20 +25 dispersion in water]. Dimyristyl peroxydicarbonate [as a stable UN3119 ≤42 ...... IBC ...... +15 +25 .. 10 dispersion in water]. Di-(2-neodecanoylperoxyisopropyl)benzene UN3115 ≤52 ...... ≥48 ...... OP7 ...... ¥10 0 Di-n-nonanoyl peroxide ...... UN3116 ≤100 ...... OP7 ...... 0 ..... +10 Di-n-octanoyl peroxide ...... UN3114 ≤100 ...... OP5 ...... +10 +15 Diperoxy azelaic acid ...... UN3116 ≤27 ...... ≥73 ...... OP7 ...... +35 +40 Diperoxy dodecane diacid ...... UN3116 >13±42 ...... ≥58 ...... OP7 ...... +40 +45 Diperoxy dodecane diacid ...... Exempt .. ≤13 ...... ≥87 Exempt ...... Di-(2-phenoxyethyl)peroxydicarbonate ...... UN3102 >85±100 ...... OP5 Di-(2-phenoxyethyl)peroxydicarbonate ...... UN3106 ≤85 ...... ≥15 ...... OP7 Dipropionyl peroxide ...... UN3117 ≤27 ...... ≥73 ...... OP8 ...... +15 +20 Di-n-propyl peroxydicarbonate ...... UN3113 ≤100 ...... OP4 ...... -25 .. -15 ... Distearyl peroxydicarbonate ...... UN3106 ≤87 ...... ≥13 ...... OP7 Disuccinic acid peroxide ...... UN3102 >72±100 ...... OP4 ...... 18 Disuccinic acid peroxide ...... UN3116 ≤72 ...... ≥28 ...... OP7 ...... +10 +15 Di-(3,5,5-trimethyl-1,2-dioxolanyl- UN3116 ≤52 ...... OP7 ...... +30 +35 .. 21 3)peroxide [as a paste]. Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3115 >38±82 .. ≥18 ...... OP7 ...... 0 ..... +10 Di-(3,5,5-trimethylhexanoyl)peroxide [as a UN3117 ≤52 ...... OP8 ...... +10 +15 stable dispersion in water]. Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3119 ≤38 ...... ≥62 ...... OP8 ...... +20 +25 Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3119 ≤38 ...... ≥62 ...... IBC ...... +10 +15 .. 10 Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3119 ≤38 ...... ≥62 ...... Bulk ...... ¥10 0 ...... 14 Ethyl 3,3-di-(tert- amylperoxy)butyrate ...... UN3105 ≤67 ...... ≥33 ...... OP7 Ethyl 3,3-di-(tert- butylperoxy)butyrate ...... UN3103 >77 - 100 ...... OP5 Ethyl 3,3-di-(tert- butylperoxy)butyrate ...... UN3105 ≤77 ...... ≥23 ...... OP7 Ethyl 3,3-di-(tert- butylperoxy)butyrate ...... UN3106 ≤52 ...... ≥48 ...... OP7 3,3,6,6,9,9-Hexamethyl-1,2,4,5- UN3102 >52 - 100 ...... OP4 tetraoxacyclononane. 24740 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

ORGANIC PEROXIDE TABLEÐContinued

Diluent (mass %) Tempera- Con- ture(°C) Technical name ID num- centration Water Packing Notes ber (mass %) ABI (mass %) method Con- Emer- trol gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

3,3,6,6,9,9-Hexamethyl-1,2,4,5- UN3105 ≤52 ...... ≥48 ...... OP7 tetraoxacyclononane. 3,3,6,6,9,9-Hexamethyl-1,2,4,5- UN3106 ≤52 ...... ≥48 ...... OP7 tetraoxacyclononane. Isopropyl sec-butyl peroxydicarbonate + di- UN3111 ≤52 + ...... OP5 ...... ¥20 ¥10 sec-butyl peroxydicarbonate + di-iso- ≤28 + propyl peroxydicarbonate. ≤22. Isopropylcumyl hydroperoxide ...... UN3109 ≤72 ...... ≥28 ...... OP8 ...... 7, 13 p-Menthyl hydroperoxide ...... UN3105 > 72 - ...... OP7 ...... 13 100. p-Menthyl hydroperoxide ...... UN3109 ≤72 ...... ≥28 ...... OP8 ...... 7,25 Methylcyclohexanone peroxide(s) ...... UN3115 ≤67 ...... ≥33 ...... OP7 ...... +35 +40 Methyl ethyl ketone peroxide(s) ...... UN3101 ≤52 ...... ≥48 ...... OP5 ...... 5, 13 Methyl ethyl ketone peroxide(s) ...... UN3105 ≤45 ...... ≥55 ...... OP7 ...... 5 Methyl ethyl ketone peroxide(s) ...... UN3107 ≤40 ...... ≥60 ...... OP8 ...... 5 Methyl isobutyl ketone peroxide(s) ...... UN3105 ≤62 ...... ≥19 ...... OP7 ...... 5, 23 Organic peroxide, liquid, sample ...... UN3103 ...... OP2 ...... 12 Organic peroxide, liquid, sample, tempera- UN3113 ...... OP2 ...... 12 ture controlled. Organic peroxide, solid, sample ...... UN3104 ...... OP2 ...... 12 Organic peroxide, solid, sample, tempera- UN3114 ...... OP2 ...... 12 ture controlled. Peracetic acid with not more than 20% hy- Exempt ≤6 ...... ≥60 ...... Exempt ...... drogen peroxide. Peracetic acid with not more than 26% hy- UN3109 ≤17 ...... ≥27 ...... OP8 ...... 10, 13 drogen peroxide. Peracetic acid with 7% hydrogen peroxide UN3107 ≤36 ...... ≥15 ...... OP8 ...... 13 Peroxyacetic acid, type D, stabilized ...... UN3105 ≤43 ...... OP7 ...... 13, 20. Peroxyacetic acid, type E, stabilized ...... UN3107 ≤43 ...... OP8 ...... 13, 20 Peroxyacetic acid, type F, stabilized ...... UN3109 ≤43 ...... OP8 ...... 13, 20 Pinanyl hydroperoxide ...... UN3105 ≥56±100 ...... OP7 ...... 13 Pinanyl hydroperoxide ...... UN3109 <56 ...... >44 ...... OP8 ...... 7 Tetrahydronaphthyl hydroperoxide ...... UN3106 ≤100 ...... OP7 ...... 1,1,3,3-Tetramethylbutyl hydroperoxide ...... UN3105 ≤100 ...... OP7 ...... 1,1,3,3-Tetramethylbutylperoxy-2- UN3115 ≤100 ...... OP7 +20 +25 .. ethylhexanoate. 2,4,4-Trimethylpentyl-2- UN3115 ≤72 ...... ≥28 ...... OP7 ¥5 .. +5 .... peroxyneodecanoate. 2,4,4-Trimethylpentyl-2- UN3119 ≤52 ...... OP8 ¥5 .. +5 .... peroxyneodecanoate [as a stable disper- sion in water]. 2,4,4-Trimethylpentyl-2-peroxy UN3115 ≤37 ...... ≥63 ...... OP7 ¥10 0 ...... phenoxyacetate.

NOTES: 1. For domestic shipments, OP8 is authorized. 2. Available oxygen must be <4.7 percent. 3. For concentrations <80 percent OP5 is allowed. For concentrations of at least 80 percent but <85 percent, OP4 is allowed. For concentra- tions of at least 85 percent, maximum package size is OP2. 4. The diluent may be replaced by di-tert-butyl peroxide. 5. Available oxygen must be ≤9 percent. 6. For domestic shipments, OP5 is authorized. 7. This material may be transported in intermediate bulk containers and bulk packagings under the provisions of paragraph (e) of this section. 8. Only non-metallic packagings are authorized. 9. For domestic shipments, this material may be transported in bulk packagings under the provisions of paragraph (e)(3)(ii) of this section. 10. This material may be transported in intermediate bulk containers under the provisions of paragraph (e) of this section. 11. Up to 2000 kg per container authorized. 12. Samples may only be offered for transportation under the provisions of paragraph (c)(4) of this section. 13. ``Corrosive'' subsidiary risk label is required. 14. This material may be transported in bulk packagings under the provisions of paragraph (e) of this section. 15. No ``Corrosive'' subsidiary risk label is required for concentrations below 80%. 16. With <6% di-tert-butyl peroxide. 17. With ≥8% 1-isopropylhydroperoxy-4-isopropylhydroxybenzene. 18. Addition of water to this organic peroxide will decrease its thermal stability. 19. [Reserved] 20. Mixtures with hydrogen peroxide, water and acid(s). 21. With diluent type A, with or without water. 22. With >36 percent, by mass, ethylbenzene. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24741

23. With >19 percent, by mass, methyl isobutyl ketone. 24. Diluent type b with boiling point >100 C. 25. No ``Corrosive'' subsidiary risk label is required for concentrations below 56%.

* * * * * (i) Drums: 1A1, 1A2, 1B1, 1B2, 1D, and outer packagings of combination or (d) Packing Method Table. Packagings 1G, 1H1, 1H2; composite packagings) are used only for for organic peroxides and self-reactive (ii) Jerricans: 3A1, 3A2, 3B1, 3B2, packing methods OP7 and OP8. substances are listed in the Maximum 3H1, 3H2; (iii) Boxes: 4C1, 4C2, 4D, 4F, 4G, 4H1, (3) In combination packagings, glass Quantity per Packing Method Table. 4H2, 4A, 4B; or receptacles are used only as inner The packing methods are designated (iv) Composite packagings with a packagings with a maximum content of OP1 to OP8. The quantities specified for plastic inner receptacle: 6HA1, 6HA2, 0.5 kg or 0.5 liter. each packing method represent the 6HB1, 6HB2, 6HC, 6HD1, 6HD2, 6HG1, (4) The maximum quantity per maximum that is authorized. 6HG2, 6HH1, 6HH2. packaging or package for Packing (1) The following types of packagings (2) Metal packaging (including inner Methods OP1–OP8 must be as follows: are authorized: packagings of combination packagings

MAXIMUM QUANTITY PER PACKAGING/PACKAGE FOR PACKING METHODS OP1 TO OP8

Packing method Maximum quantity OP1 OP21 OP3 OP41 OP5 OP6 OP7 OP8

Solids and combination packagings (liquid and solid) (kg) ...... 0.5 0.5/10 5 5/25 25 50 50 2200 Liquids (L) ...... 0.5 ...... 5 ...... 30 60 60 3225 1 If two values are given, the first applies to the maximum net mass per inner packaging and the second to the maximum net mass of the com- plete package. 2 60 kg for jerricans and 100 kg for boxes. 3 60 L for jerricans.

(e) * * * § 173.315 [Amended] Appendix E—[Removed and Reserved] (5) Intermediate bulk containers. 49. In § 173.315, in the paragraph (a) 52. Appendix E to Part 173 is Intermediate bulk containers that are table, for the entry ‘‘Methylamine, removed and reserved. tested at the Packing Group II anhydrous’’, the following changes are performance level in accordance with made: Appendix F—[Removed and Reserved] subpart O of part 178 of this subchapter a. In Column 4, the punctuation and 53–54. Appendix F to Part 173 is are authorized as follows: wording ‘‘; See Note 24.’’ is removed removed and reserved. (i) Composite: 31HA1; and a period is added in its place. b. In Column 5, the wording ‘‘See (ii) Rigid plastic: 31H1; and PART 175ÐCARRIAGE BY AIRCRAFT Note 22.’’ is removed. (iii) Metal: 31A. 50. In § 173.316, a new paragraph (d) 55. The authority citation for part 175 § 173.225 [Amended] is added to read as follows: continues to read as follows: 47. In addition, in § 173.225, the § 173.316 Cryogenic liquids in cylinders. Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. following changes are made: * * * * * a. Paragraphs (c)(2) and (c)(3) are (d) Mixtures of cryogenic liquid. § 175.10 [Amended] removed. Where charging requirements are not 56. In § 175.10, in paragraph (a)(22), b. Paragraphs (c)(4) and (c)(5) are specifically prescribed in paragraph (c) the wording ‘‘or thermometer’’ is added redesignated as paragraphs (c)(2) and of this section, the cryogenic liquid immediately following ‘‘barometer’’ (c)(3). must be shipped in packagings and each place it appears. c. In the first sentence in paragraph under conditions approved by the PART 176ÐCARRIAGE BY VESSEL (c)(1), the reference ‘‘(c)(4)’’ is revised to Associate Administrator for Hazardous read ‘‘(c)(2)’’. Materials Safety. 51. In § 173.318, a new paragraph 57. The authority citation for part 176 d. In newly designated paragraph (f)(4) is added to read as follows: continues to read as follows: (c)(2)(ii), the wording ‘‘OP2A or OP2B, Authority: 49 U.S.C. 5101–5127; 49 CFR for a liquid or a solid, respectively’’ is § 173.318 Cryogenic liquids in cargo 1.53. revised to read ‘‘OP2’’. tanks. 58.In § 176.78, paragraph (k) is e. In paragraph (e)(2), the last * * * * * revised to read as follows: sentence is removed. (f) * * * f. Paragraph (e)(3)(i)(B) is removed (4) Mixtures of cryogenic liquid. § 176.78 Use of power-operated industrial trucks on board vessels. and paragraph (e)(3)(i)(C) is Where charging requirements are not redesignated as paragraph (e)(3)(i)(B). specifically prescribed in this paragraph * * * * * (f), the cryogenic liquid must be shipped (k) Stowage of power-operated § 173.226 [Amended] in packagings and under conditions industrial trucks on board a vessel. 48. In § 173.226, in paragraph (c)(1), approved by the Associate Trucks stowed on board a vessel must the entry ‘‘Aluminum jerrican: 3B2’’ is Administrator for Hazardous Materials meet vessel stowage requirements in added immediately following ‘‘Plastic Safety. § 176.905. jerrican: 3H2’’. * * * * * * * * * * 24742 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

59. In § 176.84, in the paragraph (b) mechanical equipment is stowed aboard the vessel is registered to be specially table, a new entry for code 17, currently a vessel. suited for vehicles. See 46 CFR 70.10– reserved, is added in numerical order to (b) All equipment used for handling 44 and 90.10–38 for U.S. vessels; read as follows: vehicles or mechanical equipment must (4) The motor vehicle or mechanical be designed so that the fuel tank and equipment is electrically powered by § 176.84 Other requirements for stowage fuel system of the vehicle or mechanical wet electric storage batteries; or and segregation for cargo vessels and (5) The motor vehicle or mechanical passenger vessels. equipment are protected from stress that might cause rupture or other damage equipment is equipped with liquefied * * * * * incident to handling. petroleum gas or other compressed gas (b) * * * (c) Two hand-held, portable, dry fuel tanks, the tanks are completely chemical fire extinguishers of at least emptied of liquid and the positive Code Provisions 4.5 kg (10 pounds) capacity each must pressure in the tank does not exceed 2 be separately located in an accessible bar (29 psi), the line from the fuel tank ***** location in each hold or compartment in to the regulator and the regulator itself 17 ...... Segregation same as for flam- which any motor vehicle or mechanical is drained of all trace of (liquid) gas, and mable gases but ``away from'' equipment is stowed. the fuel shut-off valve is closed. dangerous when wet. (d) ‘‘NO SMOKING’’ signs must be (j) Except as provided in § 173.220(f) conspicuously posted at each access of this subchapter, the provisions of this ***** opening to the hold or compartment. subchapter do not apply to items of (e) Each portable electrical light, equipment such as fire extinguishers, * * * * * including a flashlight, used in the compressed gas accumulators, airbag 60. Section 176.905 is revised to read stowage area must be an approved, inflators and the like which are installed as follows: explosion-proof type. All electrical in the motor vehicle or mechanical § 176.905 Motor vehicles or mechanical connections for any portable light must equipment if they are necessary for the equipment powered by internal combustion be made to outlets outside the space in operation of the vehicle or equipment, engines. which any vehicle or mechanical or for the safety of its operator or (a) A motor vehicle or any equipment is stowed. passengers. mechanized equipment powered by an (f) Each hold or compartment must be PART 178ÐSPECIFICATIONS FOR internal combustion engine is subject to ventilated and fitted with an overhead PACKAGINGS the following requirements when water sprinkler system or fixed fire carried as cargo on a vessel: extinguishing system. 61. The authority citation for part 178 (1) Before being loaded on a vessel, (g) Each hold or compartment must be continues to read as follows: equipped with a smoke or fire detection each motor vehicle or mechanical Authority: 49 U.S.C. 5101–5127; 49 CFR equipment must be inspected for fuel system capable of alerting personnel on 1.53. leaks and identifiable faults in the the bridge. electrical system that could result in (h) All electrical equipment in the 62. In § 178.511, the section heading, short circuit or other unintended hold or compartment other than fixed paragraph (a), paragraph (b) electrical source of ignition. A motor explosion-proof lighting must be introductory text, and paragraph (b)(1) vehicle or mechanical equipment disconnected from its power source at a are revised, paragraphs (b)(2) through showing any signs of leakage or location outside the hold or (b)(6) are redesignated as paragraphs electrical fault may not be transported. compartment during the handling and (b)(3) through (b)(7) and a new (2) The fuel tank of a motor vehicle transportation of any vehicle or paragraph (b)(2) is added, to read as or mechanical equipment powered by mechanical equipment. Where the follows: liquid fuel may not be more than one- disconnecting means is a switch or § 178.511 Standards for aluminum and fourth full. circuit breaker, it must be locked in the steel jerricans. (3) Whenever possible, each vehicle open position until all vehicles have (a) The following are identification or mechanical equipment must be been removed. codes for aluminum and steel jerricans: stowed to allow for its inspection during (i) Exceptions. A motor vehicle or (1) 3A1 for a non-removable head transit. mechanical equipment is excepted from steel jerrican; (4) Motor vehicles or mechanical the requirements of this subchapter if (2) 3A2 for a removable head steel equipment may be refueled when the following requirements are met: jerrican; necessary in the hold of a vessel in (1) The motor vehicle or mechanical (3) 3B1 for a non-removable head accordance with § 176.78. equipment has an internal combustion aluminum jerrican; and (5) When a motor vehicle or engine using liquid fuel that has a (4) 3B2 for a removable head mechanical equipment with fuel in its flashpoint less than 38 °C (100°F), the aluminum jerrican. tanks is stowed in a closed freight fuel tank is empty, and the engine is run (b) Construction requirements for container, a warning, displayed on a until it stalls for lack of fuel; aluminum and steel jerricans are as contrasting background and readily (2) The motor vehicle or mechanical follows: legible from a distance of 8 meters (26 equipment has an internal combustion (1) For steel jerricans the body and feet), must be affixed to the access doors engine using liquid fuel that has a heads must be constructed of steel sheet to read as follows: flashpoint of 38 °C (100 °F) or higher, of suitable type and adequate thickness the fuel tank contains 418 liters (110 in relation to the capacity of the jerrican WARNING–MAY CONTAIN gallons) of fuel or less, and there are no and its intended use. Minimum EXPLOSIVE MIXTURES WITH AIR— fuel leaks in any portion of the fuel thickness and marking requirements in KEEP IGNITION SOURCES AWAY system; §§ 173.28(b)(4) and 178.503(a)(9) of this WHEN OPENING (3) The motor vehicle or mechanical subchapter apply to jerricans intended (6) A motor vehicle or mechanical equipment is stowed in a hold or for reuse. equipment’s ignition key may not be in compartment designated by the (2) For aluminum jerricans the body the ignition while the vehicle or administration of the country in which and heads must be constructed of Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24743 aluminum at least 99% pure or of an allocation of the mark as specified in (3) * * * The inner receptacle of aluminum base alloy. Material must be paragraph (a) of this section; 31HZ2 composite intermediate bulk of a type and of adequate thickness in (ii) Where the outer casing of a containers must consist of at least three relation to the capacity of the jerrican composite intermediate bulk container plies of film. and to its intended use. can be dismantled, each of the * * * * * * * * * * detachable parts must be marked with (6) Intermediate IBCs of type 31HZ2 63. In § 178.703, a new paragraph the month and year of manufacture and must be limited to a capacity of not (b)(6) is added to read as follows: the name or symbol of the manufacturer. more than 1,250 liters. 64. In § 178.707, in paragraphs (c)(2) § 178.703 Marking of intermediate bulk and (c)(3) introductory text, a new § 178.815 [Amended] containers. sentence is added at the end of each 65. In § 178.815, in paragraph (c)(3), * * * * * paragraph, and a new paragraph (c)(6) is the wording ‘‘which bear the stacking (b) * * * added, to read as follows: load’’ is added immediately following (6) For each composite intermediate ‘‘and 31HH2)’’. bulk container, the inner receptacle § 178.707 Standards for composite must be marked with at least the intermediate bulk containers. Issued in Washington, DC on April 17, following information: * * * * * 1997 under authority delegated in 49 CFR (i) The code number designating the (c) * * * Part 1. intermediate bulk container design type, (2) * * * The outer packaging of Kelley S. Coyner, the name and address or symbol of the 31HZ2 composite intermediate bulk Deputy Administrator. manufacturer, the date of manufacture containers must enclose the inner [FR Doc. 97–10481 Filed 5–5–97; 8:45 am] and the country authorizing the receptacles on all sides. BILLING CODE 4910±60±P federal register May 6,1997 Tuesday Final Rule Analysis andRegulatoryImpactAnalysis; Karnal BuntRegulatoryFlexibility 1996 CropSeason;FinalRule Karnal Bunt;Compensationforthe1995± 7 CFRPart301 Service Animal andPlantHealthInspection Agriculture Department of Part III 24745 24746 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

DEPARTMENT OF AGRICULTURE In an interim rule effective on June where quarantine and emergency 27, 1996, and published in the Federal actions cause losses over and above Animal and Plant Health Inspection Register on July 5, 1996 (61 FR 35102– those that would result from the normal Service 35107, Docket No. 96–016–7), we operation of market forces. Payment of amended the regulations to provide compensation would reflect the 7 CFR Part 301 compensation for certain growers and incremental burdens of complying with handlers, owners of grain storage regulatory requirements insofar as [Docket No. 96±016±17] facilities, and flour millers in order to market forces would not otherwise RIN 0579±AA83 mitigate losses and expenses incurred impose similar or analogous costs. because of actions taken by the Second, compensation may be Karnal Bunt; Compensation for the Secretary to prevent the spread of appropriate where parties undertake 1995±1996 Crop Season Karnal bunt (§ 301.89–12, redesignated actions that confer significant benefits as § 301.89–14 in a final rule published on others. Under this principle, AGENCY: Animal and Plant Health on October 4, 1996 (61 FR 52189–52213, payment of compensation would be Inspection Service, USDA. Docket No. 96–016–14)). intended to overcome the usual ACTION: Final rule. We solicited comments concerning disincentives to produce such benefits. the interim rule for 60 days ending Third, compensation may be SUMMARY: We are adopting as a final September 3, 1996. We received 15 appropriate where a small number of rule, with changes, an interim rule that comments by that date. They were from parties necessarily bears a amended the regulations to provide wheat growers, handlers, harvesters, disproportionate share of the burden of compensation for certain growers and railroad companies, seed producers, a providing such benefits. This principle handlers, owners of grain storage member of Congress, and a State rests on the widely shared belief that facilities, and flour millers in order to department of agriculture. We have burden-sharing is a fundamental mitigate losses and expenses incurred carefully considered all of the principle of equity. because of Karnal bunt in the 1995– comments we received. The comments Individual decisions regarding what 1996 crop season. In this final rule, we generally supported the interim rule specific losses to compensate and how are adding compensation provisions for offering compensation to certain groups much compensation to offer in each handlers of wheat that was tested and affected by the Karnal bunt quarantine case were made in line with the above found negative for Karnal bunt, handlers and emergency actions. However, all the basic principles which describe the and growers with wheat inventories for comments recommended additions or goals of compensation. A top equity past crop seasons, and participants in revisions to the compensation priority was compensation for costs of the National Karnal Bunt Survey whose provisions. Each of these plowing down fields, and for wheat and wheat or grain storage facility is found recommendations is discussed below by other articles the Agency ordered positive for Karnal bunt. The payment topic. destroyed or prohibited movement. of compensation is necessary in order to The Karnal bunt regulations that were Compensation amounts took into reduce the economic impact of the initially established were necessarily account the need to mitigate real losses Karnal bunt quarantine on affected broad due to the lack of data available caused by the regulations, so that wheat growers and other individuals, at the time as to the extent of the regulated parties would not have a and to help obtain cooperation from infestation. The discovery of Karnal strong economic incentive to avoid affected individuals in Karnal bunt bunt and subsequent quarantine and compliance. At the same time, amounts eradication efforts. emergency actions occurred after were not set at a high enough rate to EFFECTIVE DATE: April 30, 1997. production and marketing decisions had establish a ‘‘bounty’’ that would been made. Producers and other affected FOR FURTHER INFORMATION CONTACT: Mr. encourage fraudulent claims or behavior individuals had little time or ability to Mike Stefan, Operations Officer, that would result in increases in avoid the unexpected costs or pass those Domestic and Emergency Operations, contaminated wheat or other articles costs on to others in the marketing PPQ, APHIS, 4700 River Road Unit 134, eligible for compensation. chain. The impact was particularly The interim rule establishing Riverdale, MD 20737–1236, (301) 734– severe on the wheat industry in the compensation for the Karnal bunt 8247. regulated area because much of the crop program provided compensation in the SUPPLEMENTARY INFORMATION: is grown under contract at specified 1995–1996 crop season for the plow- Background amounts and prices. down of infected fields in New Mexico In order to alleviate some of these and Texas; the loss in value of Karnal bunt is a fungal disease of hardships and to ensure full and nonpropagative wheat grown in the wheat (Triticum aestivum), durum effective compliance with the Karnal regulated area (this was provided for wheat (Triticum durum), and triticale bunt regulatory program, compensation producers and handlers); (Triticum aestivum X Secale cereale), a to mitigate certain losses was offered to decontamination of grain storage hybrid of wheat and rye. In the absence producers and other affected parties in facilities; and the cost of heat-treating of measures taken by the U.S. a regulated area. The payment of millfeed made from wheat produced in Department of Agriculture (USDA) to compensation is in recognition of the the quarantined area. Several prevent its spread, the establishment of fact that while benefits from regulation commenters requested compensation for Karnal bunt in the United States would accrue to a large portion of the wheat costs that were not provided for in the have significant consequences with industry outside the regulated areas, the interim rule. These comments are regard to the export of wheat to regulatory burden falls predominantly discussed below. international markets. Karnal bunt is on a small segment of the affected wheat The interim rule provided caused by the smut fungus Tilletia industry within the regulated area. compensation for handlers who sell indica (Mitra) Mundkur and is spread The Agency has identified three nonpropagative wheat only if the wheat by spores. The regulations regarding principles for deciding whether to is positive for Karnal bunt, and under Karnal bunt are set forth in 7 CFR provide compensation. First, the following circumstances: (1) 301.89–1 through 301.89–14. compensation may be appropriate Handlers who honor contracts by paying Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24747 the grower full contract price on compensation under this new The estimated market prices used to nonpropagative wheat grown in the circumstance, we are requiring that, in calculate compensation for handlers quarantined area that was tested by the addition to the documents already who honored their contracts on negative Animal and Plant Health Inspection required for handlers (see § 301.89– wheat will be determined in the same Service (APHIS) and found positive for 14(b)(4)), handlers who had contracted manner. However, if the salvage value is Karnal bunt; or (2) handlers who to sell the wheat at a price determined used in the calculation, the rate of purchase contracted or noncontracted in the contract before March 1, 1996, compensation will be different than the nonpropagative wheat grown in the must submit to FSA a copy of the rate that has been paid to other handlers quarantined area that was tested by contract the handler has for the sale of under the interim rule, because the APHIS and found negative for Karnal the wheat. salvage value appropriate for negative bunt prior to purchase but that was Handlers who honored contracts on wheat will be used in the calculation. tested by APHIS and found positive for negative wheat will be eligible for Compensation payments will be issued Karnal bunt after purchase. As compensation using the same by the Farm Service Agency (FSA). explained in the interim rule, we calculation provided in the interim rule One commenter requested that we expected that handlers who purchase for growers of negative wheat not grown provide compensation for lost income negative wheat that continues to test under contract—the estimated market due to the quarantine on wheat straw. negative after purchase would not price for the relevant class of wheat Many growers sell wheat straw to experience a loss in value for the wheat (meaning type of wheat, such as durum supplement their wheat grain income. compared to the price they paid for it. or hard red winter) minus the higher of Straw is sold for use at places such as Some commenters, however, said that either the salvage value or the actual racetracks, highway shoulders, feed handlers who purchased negative- price received by the handler (see yards, and parks for erosion control and testing wheat after the Karnal bunt § 301.89–14(b)(1)(iii)). We explained in to minimize muddy conditions. Wheat quarantine was imposed, but purchased the interim rule that the estimated straw is listed in the Karnal bunt it for the price that was contracted market price is intended to represent regulations as a regulated article and is before Karnal bunt was discovered (in what the market price would have been prohibited from being moved outside of Arizona in March 1996), did experience if there were no quarantine for Karnal the regulated area. This has prevented a loss in value of the wheat compared bunt, and will be calculated by APHIS many wheat straw producers from to the price they paid for it. Even though for each class of wheat, taking into shipping their 1995–1996 crop season straw to the intended markets. Some the wheat was negative for Karnal bunt, account the prices offered by relevant handlers had to sell it for a lower price wheat straw was sold to alternative terminal markets (animal feed, milling, than anticipated because the wheat was markets within the regulated area for a or export) for the period between May from the quarantined area. Some lower price; other wheat straw was not 1 and June 30, 1996, with adjustments handlers adjusted their purchase price able to be sold. for transportation and other handling to account for the loss in value; others We are considering what, if any, costs. honored the prices agreed on in their compensation should be provided for contracts prior to March 1996. For the 1995–1996 crop season, lost income due to the restrictions that Commenters said that handlers who estimated market prices were calculated have been placed on the movement of honored their contracts on negative for durum wheat and hard red winter 1995–1996 crop season wheat straw. We wheat by paying the price that was wheat. The estimated market prices for will publish any proposed agreed on before the discovery of Karnal durum wheat were calculated based on compensation for wheat straw bunt in March 1996, should be the following: the daily closing cash producers in a future edition of the compensated. prices for choice milling durum wheat Federal Register. We believe that compensating these traded on the Minneapolis Grain The interim rule did not provide handlers would be consistent with our Exchange during the period of May 1 to compensation for any losses concerning compensation to other individuals who June 30, 1996, adjusted to account for wheat grown outside the area regulated experience a loss in value of their wheat the handling and transportation charges for Karnal bunt. APHIS is conducting a because of the regulations for Karnal incurred in getting the wheat from the National Karnal Bunt Survey to bunt. Therefore, we are amending the regulated area in California and Arizona demonstrate to our trading partners that regulations at § 301.89–14(b) to provide to the central market in Minneapolis. areas producing wheat for export are compensation to handlers under the These adjustments were based on the free of the disease. APHIS is receiving following additional circumstance: average difference between the voluntary cooperation from many grain Except as explained below, handlers Minneapolis cash price and the cash storage facilities in wheat producing who honored contracts by paying the prices within the regulated area for areas both within and outside the States grower or another handler full contract 1995. Estimated market prices for hard in which the Secretary of Agriculture price on nonpropagative wheat grown in red winter wheat were calculated in a has declared an extraordinary the regulated area that was tested by similar manner, based on the daily emergency. APHIS and found negative for Karnal closing futures prices for the July hard Some commenters asked that we bunt if a price was determined in the red winter wheat contract traded on the clarify what compensation we plan to contract before March 1, 1996. The Kansas City Board of Trade during the offer to participants in the National exception to this compensation period of May 1 to June 30, 1996, Karnal Bunt Survey who are found to eligibility is handlers who had adjusted to account for the handling and have positive grain or whose grain contracted to sell the wheat (for transportation charges incurred in storage facility outside of the regulated example, to another handler, a mill, or getting the wheat from a central point in area is found to have Karnal bunt. We a foreign country) at a price determined the regulated area to the market in have every intention of making sure that in the contract before March 1, 1996, Kansas City. These adjustments were all participants in the survey whose and who received the full contract price. based on the average difference between wheat or grain storage facilities are Such handlers would not have the Kansas City futures price and the found to be positive for Karnal bunt will experienced any loss in value of their cash prices within the regulated area for be compensated for the loss in value of wheat due to Karnal bunt. To claim 1995. their wheat and for the costs for part of 24748 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations decontaminating their grain storage described in § 301.89–14(b)(3)). The sanitizing railcars prior to loading; facilities. estimated market price will be declines in transporter operations due to The declarations of extraordinary calculated by APHIS for each class of delays caused by the Karnal bunt emergency authorize the Secretary of wheat, taking into account the prices regulations; extra labor to clean and Agriculture to take emergency action in offered by relevant terminal markets disinfect combines; loss in customers those States with regard to Karnal bunt, (animal feed, milling, or export) for the for harvesters due to delays in waiting and authorize the Secretary to period between October 1 and for field test results; loss in wheat compensate growers and other persons November 30, 1996, with adjustments income and soil nutrients due to a 5- in those States for economic losses for transportation and other handling year quarantine on wheat production; incurred by them as a result of those costs. However, compensation will not and loan interest on funds borrowed to emergency actions. USDA is not exceed $2.50 per bushel under any see producers through delays in selling authorized to pay compensation to circumstances. Compensation payments 1996 wheat. Commenters also requested individuals who are not in States for for loss in value of wheat will be issued several other changes to the which an extraordinary emergency has by FSA. To claim compensation, the compensation provisions in the interim been declared. If a grain storage facility owner of the facility must submit to the rule. Two commenters requested that participating in the National Survey in local FSA office a copy of the we lower the $3.60 minimum salvage one of the States for which an Emergency Action Notification under value because they do not believe it extraordinary emergency has been which the facility is or was quarantined. adequately reflects the costs to handlers declared tests positive for Karnal bunt, The owner must also submit to the FSA of freight charges and railcar cleaning. USDA will regulate the facility under an office verification as to the actual (not One commenter said that the maximum Emergency Action Notification (PPQ estimated) weight of the wheat (such as $20,000 per premises compensation for Form 523), and will compensate the a copy of the limited permit under decontamination of grain storage owner of the grain storage facility for the which the wheat was moved to a mill facilities is inadequate. Another loss in value of the wheat and for up to or a copy of the bill of lading for the commenter said that the same 50 percent of the direct cost of wheat, if the actual weight appears on compensation offered to flour millers for decontaminating the facility (not to those documents, or other verification). heat-treating millfeed should be exceed $20,000) on a one time only The owner of the facility will also be available to all producers, grain basis for wheat harvested in 1996, if the compensated for the direct cost of handlers, and millers regardless of facility is required to be decontamination at the same rate whether or not the wheat originated in decontaminated. In the event that a provided by the interim rule for the quarantined area. grain storage facility participating in the decontamination of grain storage We have considered all of these National Survey that is in a State not facilities (a maximum of $20,000 per comments very carefully, but we are not covered by a declaration of facility, paid on a one time only basis making any changes to the extraordinary emergency should test for wheat harvested in 1996). compensation regulations in response to positive for Karnal bunt, the State may Compensation payments for these comments. We recognize that the offer to compensate the owner of the decontamination of grain storage compensations we have offered do not facility for the loss in value of the facilities will be issued by APHIS. fully account for every loss or expense positive wheat and for the cost of A few commenters requested due to the Karnal bunt quarantine and decontamination. If the State is compensation for damage to harvesting emergency actions. However, we believe unwilling or unable to offer equipment caused by disinfection in the compensation provisions in this compensation at a level equal to that accordance with the Karnal bunt final rule do significantly mitigate losses offered by USDA, USDA will consider, regulations. We are still considering and expenses due to the actions taken after consultation with the State what compensation would be to control Karnal bunt. We are Department of Agriculture, declaring an appropriate for grain harvesters and are continuing to consider the effects of the extraordinary emergency in that State. continuing to gather information to help Karnal bunt quarantine and emergency USDA could then compensate the us make that determination. If we actions on all affected individuals. If we owner of the facility. determine to take regulatory action to make any further determinations as to We completed the National Survey for compensate grain harvesters, we will additional compensations, we will the 1995–1996 crop season in the fall of publish proposed compensation publish another document in the 1996. In this final rule, we are adding regulations in a future edition of the Federal Register. a new paragraph § 301.89–14(f) to the Federal Register. 1995–1996 crop season compensation Commenters also requested Miscellaneous Changes regulations stating that if a grain storage compensation for loss in value of 1995– We are making a number of facility participating in the National 1996 crop season seed. We stated in the miscellaneous changes to the interim Karnal Bunt Survey tests positive for interim rule that we do intend to rule. Many of these changes are Karnal bunt, the facility will be compensate seed producers for the loss necessary to clarify the intent of the regulated under an Emergency Action in value of their seed. That intention has regulations and to deal with Notification (PPQ Form 523), and the not changed, and we plan to publish circumstances identified during owner may be required to proposed compensation regulations for implementation of the interim rule. decontaminate the facility to remove the seed producers in a future edition of the The compensation regulations quarantine. If a Declaration of Federal Register. established by the interim rule were Extraordinary Emergency has been Several commenters requested that we intended to apply to the 1995–1996 crop declared in the State in which the grain add compensation provisions to cover season. Therefore, we are revising the storage facility is located, the owner of numerous circumstances other than heading and introductory text for the the facility will be compensated for the those provided for in the interim rule compensation regulations in this rule to loss in value of the wheat. and those discussed previously in this make it clear that they apply only to the Compensation will equal the estimated document. These include requested 1995–1996 crop season. For the same market price for the relevant class of compensation for demurrage charges on reason, we are revising § 301.89–14(d) to wheat minus the salvage value (as railcars; the cost of cleaning and clarify that compensation for Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24749 decontamination of grain storage set at harvest were based on what At the time that Karnal bunt was facilities under this rule will be made market prices would have been without discovered in Arizona in March 1996, on a one time only basis for each the presence of Karnal bunt. This some handlers and growers in the covered crop year wheat. situation warranted calculating regulated area had wheat inventories on This final rule will add a requirement compensation using the higher of either hand from past crop seasons. These to § 301.89–14 that all claims for the contract price or the estimated inventories became subject to the same compensation for the 1995–1996 crop market price. This procedure for restrictions as 1995–1996 crop season season must be made by May 31, 1997. calculating compensation would not wheat from the regulated area, and In addition, we are adding a provision unfairly disadvantage growers whose handlers and growers with such that the Administrator may extend this contract prices set at harvest reflected inventories experienced a loss in value deadline upon request in specific cases the loss-in-value of wheat due to the of that wheat. For this reason, we are when unusual and unforeseen Karnal bunt regulations. Contract prices revising § 301.89–14(b)(2) to clarify that circumstances occur which prevent or settled after August 1996 may have handlers and growers in the regulated hinder a claimant from requesting reflected the compensation offered by area are eligible to be compensated for compensation on or before May 31, APHIS, and would not have been 1995–1996 crop season wheat and for 1997. consistent with the original intent of the wheat inventories in their possession The term ‘‘contract price’’ is used contract that the price be determined at that were unsold as of March 1, 1996. several times in § 301.89–14. In some harvest. For these reasons, we are We are revising the provision in cases, the contract price is a changing the compensation calculations § 301.89–14(c) of the regulations for determining factor in the amount of for growers who sell nonpropagative growers and handlers who do not sell compensation received by a claimant. wheat to accommodate three their wheat. The interim rule stated that Some contracts provide for adjustments circumstances, as follows: compensation will only be paid to in the contract price contingent on grain If the wheat was grown under contract growers and handlers on wheat that is quality or other factors. To ensure that and a price was determined in the not sold if the wheat has been buried in growers or handlers are not paid contract before March 1, 1996, a sanitary landfill. In implementing the compensation for quality issues not compensation will equal the contracted regulations, APHIS has approved sites related to Karnal bunt, and to clarify price minus the higher of either the for burying wheat other than a sanitary what we intended to mean by the term salvage value or the actual price landfill. These sites were determined to ‘‘contract price,’’ we are adding a received by the grower. If the wheat was be acceptable because they were in areas definition to § 301.89–1 of the grown under contract and a price was where burying the wheat would not regulations, to read as follows: determined in the contract on or after pose a risk of spreading Karnal bunt (for Contract price. The net price after March 1, 1996, and on or before August example, the desert). To accommodate adjustment for any premiums or 1, 1996, compensation will equal the these situations, we are amending discounts stated in the contract. higher of either the contract price or the paragraph (c) to state that unsold wheat Paragraph (b)(1) of § 301.89–14 estimated market price minus the higher must be buried in a landfill or other site contains compensation calculations for of either the salvage value or the actual that has been approved by APHIS. To growers who sell nonpropagative wheat; price received by the grower. If the claim compensation, the interim rule one for wheat grown under contract, wheat was not grown under contract or required that a grower or handler must and one for wheat not grown under the price was determined in the contract submit verification of how much wheat contract. In implementing the interim after August 1, 1996, compensation will was buried, in the form of a receipt from rule, it became apparent that different equal the estimated market price for the the landfill. We are adding that the calculations were needed to account for relevant class of wheat minus the higher verification may also be in the form of other contracting circumstances. For of either the salvage value or the actual a document signed by an APHIS example, not all contracted wheat had a price received by the grower. inspector. price in the contract prior to the We are also revising the requirements The interim rule stated at § 301.89– discovery of Karnal bunt in March 1996. for growers and handlers for claiming 14(d) that compensation for Therefore, even though the wheat was compensation to ensure that growers decontamination of grain storage contracted prior to the discovery of and handlers supply all the information facilities will not exceed $20,000 per Karnal bunt, the price eventually agreed necessary to determine the amount of premises. The term premises has proven on may have reflected the loss-in-value compensation for which they are to be confusing to both affected entities of wheat due to Karnal bunt. eligible. In addition to the and inspectors in determining the Contracts without prices set before documentation already required by amount of compensation for which an March 1996 normally stipulated that the § 301.89–14(b), growers will have to owner is eligible. We believe the term price was to be determined at harvest. submit a copy of the receipt for the final ‘‘facility’’ would be more clear. To The 1996 harvest began in April 1996 sale of the wheat, showing the intended clarify our intent, we are revising and was not complete in all regulated use for which the wheat was sold, total paragraph (d) to state that compensation areas until August 1996. Compensation bushels sold, and the total amount paid will not exceed $20,000 per grain regulations were not in effect until June to the grower by the handler. Handlers storage facility. We are also removing 27, 1996 (see Docket No. 96–016–7, will have to submit a copy of the receipt the definition of premises from published in the Federal Register on for the purchase of the wheat from the § 301.89–1 of the regulations and adding July 5, 1996), mid-way through the 1996 grower, showing the total bushels a definition for grain storage facility, to harvest, and claims for compensation purchased and the amount the handler mean ‘‘That part of a grain handling could not be processed for several more paid to the grower, and a copy of the operation or unit of a grain handling weeks. Because growers and handlers receipt for the final sale of the wheat, operation, consisting of structures, did not know what compensation showing the intended use for which the conveyances, and equipment that APHIS would offer, some contract wheat was sold. Both growers and receive, unload, and store grain, and prices set at harvest reflected the loss- handlers must submit a copy of the that is able to operate as an independent in-value of wheat due to the Karnal bunt Karnal bunt certificate issued by APHIS unit from other units of the grain regulations, while some contract prices that shows Karnal bunt test results. handling operation. A grain handling 24750 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations operation may be one grain storage area as a regulated area. When this compliance with section 6, subsections facility or may be comprised of many occurs, an inspector provides written (3)(B)(ii) and (3)(C), of Executive Order grain storage facilities on a single notice of this action to the owner or 12866 impracticable. We also stated that premises.’’ person responsible for the management we would complete the required cost- We are revising the provisions at of the area, in the form of an Emergency benefit analysis for those rules as soon § 301.89–14(e) by which flour millers Action Notification. Areas temporarily as possible and make the information must claim compensation. The interim regulated under an Emergency Action available to the public. Elsewhere in the rule provided that, to claim Notification will not necessarily be ‘‘Rules’’ section of this issue of the compensation, flour millers must listed in the regulations as ‘‘regulated Federal Register, we are publishing a submit verification that the millfeed was areas,’’ but are subject to the same companion docket (Docket No. 96–016– heat-treated, in the form of a copy of the restrictions (and potential losses or 20) to this final rule that includes a limited permit under which the wheat expenses) as areas that are listed in the Regulatory Impact Analysis that was moved to a treatment facility. regulations. analyzes the costs and benefits of the However, some flour millers have Therefore, based on the rationale set interim rules and the final rule we have purchased their own heat treating forth in the interim rule and in this already published, as well as those of equipment and do not need to move the document, we are adopting the the provisions of this final rule. wheat under a limited permit to a provisions of the interim rule as a final On April 3, 1997, we published in the treatment facility. To accommodate this, rule, with the changes discussed in this Federal Register a Regulatory Flexibility we are stating that verification of document. Analysis for the interim rules and the treatment may also be provided in the This final rule also affirms the final rule we have already published form of a copy of PPQ Form 700, which information contained in the interim regarding the Karnal bunt quarantine includes a certification of processing, rule concerning Executive Orders 12372 and regulations (62 FR 15809–15819, signed by the inspector who monitors and 12988. Docket No. 96–016–18). the mill. In accordance with 5 USC 604, we Effective Date We are adding sentences to § 301.89– have performed a Final Regulatory 14(a), (b)(4), and (c), concerning growers Pursuant to the administrative Flexibility Analysis regarding the and handlers, to clarify that these procedure provisions in 5 U.S.C. 553, impact of this final rule on small compensation payments will be issued we find good cause for making this rule entities, and are publishing that analysis by FSA. We are also adding sentences effective less than 30 days after in a companion docket (Docket No. 96– to § 301.89–14(d) and (e), concerning publication in the Federal Register. 016–20) to this final rule elsewhere in grain storage facilities and flour millers, This rule provides compensation to the ‘‘Rules’’ section of this issue of the to clarify that these compensation individuals who were and are required Federal Register. payments will be issued by APHIS. to take emergency actions to eliminate Small Business Regulatory Enforcement The interim rule requires certain the spread of Karnal bunt or who Fairness Act of 1996 (Pub. L. 104–121, claimants to file three forms: ASCS experience economic losses because of USC 801–808) Form 574, ASCS Form 578, and FCI the quarantine for Karnal bunt. Form 73. The correct names for ASCS Immediate action is necessary to This rule has been designated by the Form 574 and ASCS Form 578 are FSA compensate these losses and expenses. Administrator, Office of Information Form 574 and FSA Form 578, Therefore, the Administrator of the and Regulatory Affairs, Office of respectively. We are making this change Animal and Plant Health Inspection Management and Budget, as a major rule in this final rule. Service has determined that this rule under the Small Business Regulatory A final rule published in the Federal should be effective upon signature. Enforcement Fairness Act of 1996 (Act). Register on October 4, 1996, and The Administrator of the Animal and effective on November 4, 1996 (61 FR Executive Order 12866 and Regulatory Plant Health Inspection Service has 52189–52213, Docket No. 96–016–14), Flexibility Act determined, however, that there is good established ‘‘regulated areas’’ to replace This rule has been reviewed under cause for making this rule effective less the areas previously called ‘‘quarantined Executive Order 12866. This rule has than 60 days after submission of the rule areas.’’ To reflect this change, we are been determined to be economically to each House of Congress and to the removing the term ‘‘quarantined area’’ significant for purposes of Executive Comptroller General because a delay in each time it appears in § 301.89–14 and Order 12866 and, therefore, has been the implementation of this rule would replacing it with the term ‘‘regulated reviewed by the Office of Management be contrary to the public interest. This area.’’ and Budget. final rule adds handlers of negative Further, the interim rule provided This action makes final with certain grain, handlers with past crop season that growers and handlers will be changes an interim rule that amended wheat inventories, and participants in compensated for wheat ‘‘grown in the the regulations to provide compensation the National Karnal Bunt Survey to the quarantined area.’’ In addition to for certain growers and handlers, list of individuals eligible for changing the term to ‘‘regulated area,’’ owners of grain storage facilities, and compensation. It is necessary to make we would add a provision that growers flour millers in order to mitigate losses this rule effective upon publication in and handlers in States where the and expenses incurred in the 1995–1996 the Federal Register in order that these Secretary has declared an extraordinary crop season because of the Karnal bunt individuals can be compensated for emergency would also be compensated quarantine and emergency actions. The economic losses and expenses in the for wheat grown in an area for which an quarantine and regulations for Karnal 1995–1996 crop season resulting from Emergency Action Notification (PPQ bunt were established by a series of the quarantine and emergency actions Form 523) has been issued by an interim rules and a final rule published taken by the Department because of inspector, in accordance with § 301.89– in the Federal Register on October 4, Karnal bunt. Section 808 of the Act 3(d) of the regulations. Section 301.89– 1996. The interim rules and the final provides that rules which would be 3(d) of the regulations allows the rule were published on an emergency exempted from the notice and comment Administrator or an inspector to basis. We stated in those rules that the provisions of the Administrative temporarily designate any nonregulated emergency situation made timely Procedure Act may be excepted from Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24751 section 801(a)(1)(A), and the delay in are added in alphabetical order to read in value of their wheat due to the Karnal the effective date for major rules under as follows: bunt regulations, as follows: section 801(a)(3). Such rules may be (1) Growers who sell nonpropagative made effective as the agency § 301.89±1 Definitions. wheat. Growers are eligible to be promulgating the rule determines. A 60- * * * * * compensated for nonpropagative 1995– day or longer delay of the effective date Contract price. The net price after 1996 crop season wheat and for for this final rule would clearly be adjustment for any premiums or nonpropagative wheat inventories in contrary to the public interest, since it discounts stated in the contract. their possession that were unsold as of would delay compensation for affected * * * * * March 1, 1996, as described in handlers and National Survey Grain storage facility. That part of a paragraphs (b)(1)(i), (b)(1)(ii), and participants. grain handling operation or unit of a (b)(1)(iii) of this section. However, grain handling operation, consisting of compensation will not exceed $2.50 per Paperwork Reduction Act structures, conveyances, and equipment bushel under any circumstances. In accordance with section 3507(d) of that receive, unload, and store grain, (i) If the wheat was grown under the Paperwork Reduction Act of 1995 and that is able to operate as an contract and a price was determined in (44 U.S.C. 3501 et seq.), the information independent unit from other units of the the contract before March 1, 1996, collection or recordkeeping grain handling operation. A grain compensation will equal the contracted requirements included in this final rule handling operation may be one grain price minus the higher of either the have been submitted for approval to the storage facility or may be comprised of salvage value, as described in paragraph Office of Management and Budget many grain storage facilities on a single (b)(3) of this section, or the actual price (OMB). When OMB notifies us of its premises. received by the grower. decision, we will publish a document in * * * * * (ii) If the wheat was grown under the Federal Register providing notice of 3. Section 301.89–14 is revised to read contract and a price was determined in the assigned OMB control numbers or, as set forth below. the contract on or after March 1, 1996, if approval is denied, providing notice and on or before August 1, 1996, § 301.89±14 Compensation for the 1995± compensation will equal the higher of of what action we plan to take. 1996 crop season. The information collection or either the contract price or the estimated recordkeeping requirements included in The following individuals are eligible market price for the relevant class of the interim rule that preceded this final to receive compensation from the wheat (meaning type of wheat, such as rule were approved by OMB. However, United States Department of Agriculture durum or hard red winter) minus the this final rule contains an information (USDA) for the 1995–1996 crop season higher of either the salvage value, as collection requirement that was not to mitigate losses or expenses incurred described in paragraph (b)(3) of this included in the interim rule. because of the Karnal bunt regulations section, or the actual price received by Specifically, this final rule requires a and emergency actions, as follows: the grower. The estimated market price (a) Growers who have destroyed crops. claimant to make a request in order to will be calculated by APHIS for each Growers in New Mexico and Texas who be granted an extension of the deadline class of wheat, taking into account the have destroyed crops of wheat pursuant for filing compensation claims. prices offered by relevant terminal Estimate of burden: Public reporting to an Emergency Action Notification markets (animal feed, milling, or export) burden for this collection of information (PPQ Form 523) issued by an inspector for the period between May 1 and June is estimated to average .166 hours per are eligible to be compensated at the 30, 1996, with adjustments for response. rate of $300 per acre of destroyed crop. transportation and other handling costs. Respondents: 10. Compensation payments will be issued (iii) If the wheat was not grown under Estimated number of responses per by the Farm Service Agency (FSA). To contract or a price was determined in respondent: 1. claim compensation, the grower must the contract after August 1, 1996, Estimated total annual burden on complete and submit to a local FSA compensation will equal the estimated respondents: 2 hours. county office whichever of the following market price for the relevant class of three forms are applicable, as wheat (meaning type of wheat, such as List of Subjects in 7 CFR Part 301 determined by FSA: FSA Form 574, durum or hard red winter) minus the Agricultural commodities, Plant FSA Form 578, and FCI Form 73. The higher of either the salvage value, as diseases and pests, Quarantine, forms will be furnished by FSA. Claims described in paragraph (b)(3) of this Reporting and recordkeeping for compensation must be received by section, or the actual price received by requirements, Transportation. FSA on or before May 31, 1997. The the grower. The estimated market price Accordingly, the interim rule Administrator may extend this deadline, will be calculated by APHIS for each amending 7 CFR part 301 which was upon request in specific cases, when class of wheat, taking into account the published at 61 FR 35102–35107 on July unusual and unforeseen circumstances prices offered by relevant terminal 5, 1996, is adopted as a final rule with occur which prevent or hinder a markets (animal feed, milling, or export) the following changes: claimant from requesting compensation for the period between May 1 and June on or before May 31, 1997. 30, 1996, with adjustments for PART 301ÐDOMESTIC QUARANTINE (b) Growers and handlers who sell transportation and other handling costs. NOTICES nonpropagative wheat. Growers and (2) Handlers who sell nonpropagative handlers in a State where the Secretary wheat. Handlers are eligible to be 1. The authority citation for part 301 has declared an extraordinary compensated for nonpropagative 1995– continues to read as follows: emergency, and who sell 1996 crop season wheat and for Authority: 7 USC 150bb, 150dd, 150ee, nonpropagative wheat grown in the nonpropagative wheat inventories in 150ff, 161, 162, and 164–167; 7 CFR 2.22, regulated area or in an area for which their possession that were unsold as of 2.80, and 371.2(c). an Emergency Action Notification (PPQ March 1, 1996, only under the 2. In § 301.89–1, the definition for Form 523) has been issued in circumstances described in paragraphs Premises is removed and definitions for accordance with § 301.89–3(d), are (b)(2)(i), (b)(2)(ii), and (b)(2)(iii) of this Contract price and Grain storage facility eligible to be compensated for the loss section. Compensation for the 24752 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations circumstances in paragraphs (b)(2)(i) red winter) for the period between May (c) Nonpropagative wheat that is not and (b)(2)(ii) will equal the estimated 1 and June 30, 1996; or, $3.60 per sold. If a grower or handler of market price for the relevant class of bushel. nonpropagative wheat grown in the wheat (meaning type of wheat, such as (iii) If the wheat is negative for Karnal regulated area in a State where the durum or hard red winter) minus the bunt and is sold for any use, salvage Secretary has declared an extraordinary salvage value, as described in paragraph value equals whichever is higher of the emergency is not able to or elects not to (b)(3) of this section. Compensation for following: the average price paid in the sell their wheat, they will be eligible to the circumstance in paragraph (b)(2)(iii) region of the regulated area where the receive compensation at the rate of will equal the estimated market price for wheat is sold for the relevant class of $2.50 per bushel. Compensation will the relevant class of wheat (meaning wheat (meaning type of wheat, such as only be paid if the grower or handler type of wheat, such as durum or hard durum or hard red winter) for the period has destroyed the wheat by burying it in red winter) minus the higher of either between May 1 and June 30, 1996; or, a sanitary landfill or other site that has the salvage value, as described in $3.60 per bushel. been approved by APHIS. paragraph (b)(3) of this section, or the (4) To claim compensation. Compensation claims will be issued by actual price received by the handler. Compensation payments will be issued the Farm Service Agency (FSA). To The estimated market price will be by the Farm Service Agency (FSA). claim compensation, the grower or calculated by APHIS for each class of Claims for compensation must be handler must complete and submit to wheat, taking into account the prices received by FSA on or before May 31, the local FSA county office whichever offered by relevant terminal markets 1997. The Administrator may extend of the following three forms are (animal feed, milling, or export) for the this deadline, upon request in specific applicable, as determined by FSA: FSA period between May 1 and June 30, cases, when unusual and unforeseen Form 574, FSA Form 578, and FCI Form 1996, with adjustments for circumstances occur which prevent or 73. In addition, the grower or handler transportation and other handling costs. hinder a claimant from requesting must submit verification of how much However, compensation will not exceed compensation on or before May 31, wheat was buried, in the form of a $2.50 per bushel under any 1997. To claim compensation, a grower receipt from the sanitary landfill or circumstances. or handler must complete and submit to verification signed by an APHIS (i) Handlers who honor contracts by the local FSA county office the inspector. Claims for compensation paying the grower full contract price on following documents: must be received by FSA on or before wheat grown for nonpropagative (i) Both growers and handlers. A May 31, 1997. The Administrator may purposes in the regulated area that was grower or handler must submit extend this deadline, upon request in tested by APHIS and found positive for whichever of the following three forms specific cases, when unusual and Karnal bunt; unforeseen circumstances occur which (ii) Handlers who purchase contracted are applicable, as determined by FSA: prevent or hinder a claimant from or noncontracted wheat grown for FSA Form 574, FSA Form 578, and FCI requesting compensation on or before nonpropagative purposes in the Form 73. A grower or a handler must May 31, 1997. regulated area that was tested by APHIS also submit a copy of the receipt for the and found negative for Karnal bunt prior final sale of the wheat, showing the (d) Decontamination of grain storage to purchase but that was tested by intended use for which the wheat was facilities. Owners of grain storage APHIS and found positive for Karnal sold, and a copy of the Karnal bunt facilities that are in States where the bunt after purchase; or certificate issued by APHIS that shows Secretary has declared an extraordinary (iii) Except as explained in this the Karnal bunt test results. emergency, and who have paragraph, handlers who honor (ii) Growers. In addition to the decontaminated their grain storage contracts by paying the grower or documents required in paragraph facilities pursuant to an Emergency another handler full contract price on (b)(4)(i), growers must submit a copy of Action Notification (PPQ Form 523) nonpropagative wheat grown in the the contract the grower has for the issued by an inspector, are eligible to be regulated area that was tested by APHIS wheat, if the wheat was under contract; compensated, on a one time only basis and found negative for Karnal bunt if a and a copy of the receipt for the final for each facility and each covered crop price was determined in the contract sale of the wheat, showing the intended year wheat, for up to 50 percent of the before March 1, 1996. Handlers who had use for which the wheat was sold, total cost of decontamination. However, contracted to sell the wheat at a price bushels sold, and the total amount paid compensation will not exceed $20,000 determined in the contract before March to the grower by the handler. per grain storage facility (as defined in 1, 1996, and who received the full (iii) Handlers. In addition to the § 301.89–1). General clean-up, repair, contract price, are not eligible for documents required in paragraph and refurbishment costs are excluded compensation. (b)(4)(i), handlers must submit a copy of from compensation. Compensation (3) Salvage value. Salvage values will the contract the handler had with the payments will be issued by APHIS. To be as follows: grower for the wheat, if the wheat was claim compensation, the owner of the (i) If the wheat is positive for Karnal under contract; a copy of the receipt for grain storage facility must submit to an bunt and is sold for use as animal feed, the purchase of the wheat from the inspector records demonstrating that salvage value equals $6.00 per grower or handler, showing the total decontamination was performed on all hundredweight or $3.60 per bushel for bushels purchased and the amount the structures, conveyances, or materials all classes of wheat. handler paid for the wheat; and a copy ordered to be decontaminated by the (ii) If the wheat is positive for Karnal of the receipt for the final sale of the Emergency Action Notification on the bunt and is sold for a use other than wheat, showing the intended use for facility. The records must include a animal feed, salvage value equals which the wheat was sold. Handlers copy of the Emergency Action whichever is higher of the following: the who had contracted to sell the wheat at Notification, contracts with individuals average price paid in the region of the a price determined in the contract or companies hired to perform the regulated area where the wheat is sold before March 1, 1996, must submit a decontamination, receipts for for the relevant class of wheat (meaning copy of the contract for the sale of the equipment and materials purchased to type of wheat, such as durum or hard wheat. perform the decontamination, time Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24753 sheets for employees of the grain storage owner of the grain storage facility will Done in Washington, DC, this 30th day of facility who performed activities be eligible for compensation as follows: April 1997. connected to the decontamination, and (1) Loss in value of positive wheat. Donald W. Luchsinger, any other documentation that helps The owner of the grain storage facility Acting Administrator, Animal and Plant show the cost to the owner and that will be compensated for the loss in Health Inspection Service. decontamination has been completed. value of positive wheat. Compensation [FR Doc. 97–11719 Filed 5–1–97; 11:27 am] Claims for compensation must be will equal the estimated market price for BILLING CODE 3410±34±P received by APHIS on or before May 31, the relevant class of wheat minus the 1997. The Administrator may extend salvage value, as described in paragraph this deadline, upon request in specific (b)(3) of this section. The estimated DEPARTMENT OF AGRICULTURE cases, when unusual and unforeseen market price will be calculated by circumstances occur which prevent or APHIS for each class of wheat, taking Animal and Plant Health Inspection hinder a claimant from requesting into account the prices offered by Service compensation on or before May 31, relevant terminal markets (animal feed, 7 CFR Part 301 1997. milling, or export) for the period (e) Flour millers. Flour millers who, in between October 1 and November 30, [Docket No. 96±016±20] accordance with a compliance 1996, with adjustments for RIN 0579±AA83 agreement with APHIS, heat-treat transportation and other handling costs. millfeed made from wheat produced in However, compensation will not exceed Karnal Bunt Regulatory Flexibility regulated areas that require such $2.50 per bushel under any Analysis and Regulatory Impact treatment are eligible to be compensated circumstances. Compensation payments Analysis at the rate of $35.00 per short ton of for loss in value of wheat will be issued millfeed. The amount of millfeed by the Farm Service Agency (FSA). To AGENCY: Animal and Plant Health compensated will be calculated by claim compensation, the owner of the Inspection Service, USDA. multiplying the weight of wheat from facility must submit to the local FSA ACTION: Final rule; regulatory flexibility the regulated area received by the miller office a copy of the Emergency Action analysis and regulatory impact analysis. by 25 percent (the average percent of Notification under which the facility is millfeed derived from a short ton of or was quarantined and verification as SUMMARY: We are publishing in this grain). Compensation payments will be to the actual (not estimated) weight of document the regulatory flexibility issued by APHIS. To claim the wheat (such as a copy of the limited analysis prepared for a final rule, which compensation, the miller must submit to permit under which the wheat was is published elsewhere in this issue of an inspector verification as to the actual moved to a mill or a copy of the bill of the Federal Register, that adopts, with (not estimated) weight of the wheat lading for the wheat, if the actual weight changes, an interim rule that provided (such as a copy of the limited permit appears on those documents, or other compensation for certain growers and under which the wheat was moved to verification). Claims for compensation handlers, owners of grain storage the mill or a copy of the bill of lading must be received by FSA on or before facilities, and flour millers in order to for the wheat, if the actual weight May 31, 1997. The Administrator may mitigate losses and expenses incurred appears on those documents, or other extend this deadline, upon request in because of Karnal bunt in the 1995– verification). Flour millers must also specific cases, when unusual and 1996 crop season. The final rule also submit verification that the millfeed was unforeseen circumstances occur which adds compensation provisions for heat treated (such as a copy of the prevent or hinder a claimant from handlers of wheat that was tested and limited permit under which the wheat requesting compensation on or before found negative for Karnal bunt, for was moved to a treatment facility and a May 31, 1997. handlers and growers with wheat copy of the bill of lading accompanying (2) Decontamination of grain storage inventories for past crop seasons, and that movement; or a copy of PPQ Form facilities. The owner of the facility will for participants in the National Karnal 700 (which includes certification of be compensated on a one time only Bunt Survey whose wheat or grain processing) signed by the inspector who basis for each grain storage facility and storage facility is found positive for monitors the mill). Claims for each covered crop year wheat for the Karnal bunt. We are also publishing in compensation must be received by direct costs of decontamination of the this document a regulatory impact APHIS on or before May 31, 1997. The facility at the same rate described under analysis for the interim rules and final Administrator may extend this deadline, paragraph (d) of this section (up to 50 rules that established the Karnal bunt upon request in specific cases, when per cent of the direct costs of quarantine, regulations, and unusual and unforeseen circumstances decontamination, not to exceed $20,000 compensation provisions, including a occur which prevent or hinder a per grain storage facility). Compensation final rule on compensation published claimant from requesting compensation payments for decontamination of grain elsewhere in this issue of the Federal on or before May 31, 1997. storage facilities will be issued by Register. (f) National Karnal Bunt Survey APHIS, and claims for compensation FOR FURTHER INFORMATION CONTACT: Mr. participants. If a grain storage facility must be submitted in accordance with Mike Stefan, Operations Officer, participating in the National Karnal the provisions in paragraph (d) of this Domestic and Emergency Operations, Bunt Survey tests positive for Karnal section. Claims for compensation must PPQ, APHIS, 4700 River Road Unit 134, bunt spores, the facility will be be received by APHIS on or before May Riverdale, MD 20737–1236, (301) 734– regulated and may be ordered 31, 1997. The Administrator may extend 8247. decontaminated pursuant to an this deadline, upon request in specific SUPPLEMENTARY INFORMATION: Karnal Emergency Action Notification (PPQ cases, when unusual and unforeseen bunt is a fungal disease of wheat Form 523) issued by an inspector. If a circumstances occur which prevent or (Triticum aestivum), durum wheat Declaration of Extraordinary Emergency hinder a claimant from requesting (Triticum durum), and triticale has been declared for the State in which compensation on or before May 31, (Triticum aestivum X Secale cereale), a the grain storage facility is located, the 1997. hybrid of wheat and rye. Karnal bunt is 24754 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations caused by the smut fungus Tilletia published, as well as those of the Federal Register on April 25, 1996, indica (Mitra) Mundkur and is spread provisions in Docket No. 96–016–17. APHIS also regulated portions of by spores. The establishment of Karnal I. Introduction California because of Karnal bunt (61 FR bunt in the United States would have II. Need for Regulation 18233–18235, Docket No. 96–016–5). In significant consequences with regard to III. Benefits of the Federal Quarantine an interim rule effective on June 27, the export of wheat to international Program 1996, and published in the Federal markets. The regulations regarding IV. Impact on the Affected Industry of Karnal Register on July 5, 1996 (61 FR 35107– Karnal bunt are set forth in 7 CFR Bunt and Regulatory Actions 35109, Docket No. 96–016–6), we 301.89–1 through 301.89–14. V. Federal Compensation to Mitigate Losses removed certain areas in Arizona, New On October 4, 1996, we published in VI. Conditions for Wheat Production and Mexico, and Texas from the list of areas the Federal Register (61 FR 52189– Utilization in a Regulated Area for the 1996–97 Crop Year regulated because of Karnal bunt. That 52213, Docket No. 96–016–14) a final VII. Consideration of Alternatives to the Rule list was amended in a technical rule that amended a series of interim VIII. Regulatory Flexibility Analysis— amendment effective on July 9, 1996, rules establishing a program to control Impacts on Small Entities Within the and published in the Federal Register and eradicate Karnal bunt in the United Regulated Area on July 15, 1996 (61 FR 36812–36813, States, and also made final a proposed IX. Summary and Conclusions Docket No. 96–016–8). In an interim rule establishing criteria for levels of I. Introduction rule effective June 27, 1996, and risk for areas with regard to Karnal bunt published in the Federal Register on and criteria for seed planting and In accordance with Executive Order July 5, 1996 (61 FR 35102–35107, movement of regulated articles based on 12866, this analysis examines the Docket No. 96–016–7), we amended the those risk levels. Elsewhere in this issue economic impacts, including costs and regulations to provide compensation for of the Federal Register we are benefits of the Karnal bunt regulations certain growers and handlers, owners of publishing a companion docket (Docket published to date, including Docket No. grain storage facilities, and flour millers No. 96–016–17) to this document, in 96–016–17. Additionally, in accordance in order to mitigate losses and expenses order to adopt as a final rule, with with the Regulatory Flexibility Act (5 incurred because of actions taken by the changes, an interim rule that amended U.S.C. 601 et seq.), we have conducted Secretary to prevent the spread of the Karnal bunt regulations to provide an analysis of the economic impact, Karnal bunt. compensation for certain growers and costs, and benefits the provisions of In a proposed rule published in the handlers, owners of grain storage Docket No. 96–016–17 will have on Federal Register on August 2, 1996 (61 facilities, and flour millers in order to small entities. That analysis is set forth FR 40354–40361, Docket No. 96–016– mitigate losses and expenses incurred below under the heading ‘‘VIII. 10), we proposed to amend the because of Karnal bunt in the 1995– Regulatory Flexibility Analysis— regulations to establish criteria for levels Impacts on Small Entities Within the 1996 crop season. Additionally, the of risk for areas with regard to Karnal Regulated Area.’’ final rule adds compensation provisions bunt and for the movement of regulated On March 8, 1996, Karnal bunt was for handlers of wheat that was tested articles based on those risk levels, and detected in Arizona during a seed and found negative 1 to establish criteria for seed planting. A for Karnal bunt, for certification inspection done by the handlers and growers with wheat rule finalizing these provisions was Arizona Department of Agriculture. On published in the Federal Register on inventories for past crop seasons, and March 20, 1996, the Secretary of for participants in the National Karnal October 4, 1996 (61 FR 52189–52213, Agriculture signed a ‘‘Declaration of Docket No. 96–016–14). In Docket No. Bunt Survey whose wheat or grain Extraordinary Emergency’’ authorizing storage facility is found positive 1 for 96–106–17, published elsewhere in this the Secretary to take emergency action issue of the Federal Register, we make Karnal bunt. under 7 U.S.C. 150dd with regard to On April 3, 1997, we published in the final the interim rule on compensation Karnal bunt within the States of Federal Register a regulatory flexibility published in the Federal Register on Arizona, New Mexico, and Texas. In an analysis (62 FR 15809–15819, Docket July 5, 1996, and establish interim rule effective on March 25, No. 96–016–18) for the interim rules compensation provisions for handlers of 1996, and published in the Federal and the October 4, 1996, final rule that wheat that was tested and found Register on March 28, 1996 (61 FR established the Karnal bunt quarantine negative for Karnal bunt, for handlers 13649–13655, Docket No. 96–016–3), and regulations. In this document, we and growers with wheat inventories for the Animal and Plant Health Inspection are publishing a Final Regulatory past crop seasons, and for participants Service (APHIS) established the Karnal Flexibility Analysis for Docket No. 96– in the National Karnal Bunt Survey bunt regulations (7 CFR 301.89–1 016–17. Additionally, in this document, whose wheat or grain storage facility is through 301.89–11), and quarantined all we are publishing a Regulatory Impact found positive for Karnal bunt. of Arizona and portions of New Mexico Analysis that analyzes the costs and and Texas because of Karnal bunt. The II. Need for Regulation benefits of the Karnal bunt interim rules regulations define regulated articles and Karnal bunt is a fungal disease of and final rule we have already restrict the movement of these regulated wheat (Triticum aestivum), durum articles from the quarantined areas. wheat (Triticum durum), and triticale 1 Throughout this document, in discussing tests for Karnal bunt, ‘‘found negative’’ means that no After the regulations were established, (Triticum aestivum X Secale cereale). Karnal bunt spores were found, and ‘‘found Karnal bunt was detected in seed lots Upon detection of Karnal bunt in positive’’ means that Karnal bunt spores were that were either planted or stored in Arizona, the imposition of Federal found. This applies whether the tests involved were California. On April 12, 1996, the quarantine and emergency actions was a of propagative wheat or nonpropagative wheat, in fields, conveyances, or grain storage facilities. Secretary of Agriculture signed a necessary, short-run, measure taken to On May 1, 1997, we published an interim rule in ‘‘Declaration of Extraordinary prevent the interstate spread of the the Federal Register (Docket No. 96–016–19, 62 FR Emergency’’ authorizing the Secretary to disease to other wheat producing areas 23620–23628) that established a new standard for take emergency action under 7 U.S.C. in the country. The intent of the defining regulated areas for Karnal bunt based on finding bunted wheat kernels rather than just 150dd with regard to Karnal bunt within quarantine was to immediately contain spores. That change does not affect any of the California. In an interim rule effective the disease in the outbreak area, so that activities analyzed in this document. on April 19, 1996, and published in the eradication could be eventually Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24755 achieved. In dealing with a new disease regulatory actions that are imposed on imports from countries where Karnal outbreak, eradication is a reasonable each category are based on the level of bunt is known to occur.2 Eliminating the first objective as long as national risk. quarantine currently in place would disease-prevalence data indicate that Subsequent sections of this analysis jeopardize trade with those countries. eradication remains a viable option. The are structured as follows: Section III Benefits of Federal quarantine, establishment of Karnal bunt in the addresses the benefits of regulation to therefore, can be regarded largely as the United States would have significant provide a perspective against which the avoided losses to the export market. economic ramifications on the U.S. regulatory policies were formed. Section A 50-percent reduction in U.S. wheat wheat export market, given that IV addresses the impact on the affected exports would likely reduce U.S. wheat approximately 50 percent of exports are industry of the disease and subsequent prices by 30 percent, and lower net to countries that maintain restrictions quarantine actions. Section V analyzes sector income by $2.7 billion. This against wheat imports from countries compensation the Agency expects to estimate takes into account the where Karnal bunt is known to occur. pay to partially mitigate losses caused dampening effect on domestic wheat The benefits of the regulatory program by Agency actions. Section VI provides prices, as wheat for export is diverted can thus be viewed as the avoidance of a projection of the impact in the into the domestic consumption market, potential losses to the wheat export regulated areas based on risk categories animal feed outlets, and ending stocks. market in the absence of regulation. The for wheat planting in 1996–97. Other economic significance of the wheat alternatives to the rule are discussed in The reduction in U.S. wheat exports, industry required swift and coordinated section VII. The wheat industry within however, would likely be less than 50 action, which in this case was most the regulated area is composed largely percent. First, not all countries that have efficiently achieved under Federal of small entities that can be classified as restrictions against Karnal bunt would, coordination. small according to definitions in practice, strictly prohibit wheat Wheat intended for domestic established by the Small Business imports from the United States. (Italy processing and export is often blended Administration (SBA). Thus, the and Germany currently import wheat at elevators to establish lots of uniform impacts discussed throughout this from countries where Karnal bunt is quality. Except for those occasions analysis are directly applicable to small known to occur despite European Union where a specific producer’s wheat is entities. As required by the Regulatory regulations to the contrary). Second, processed separately under contract to a Flexibility Act, the characteristics of while some markets would be captured miller, the elevator’s supply of wheat and impacts on small entities within the by exports from countries that are free usually consists of a mix of many regulated areas are examined in section of Karnal bunt, U.S. wheat exports to varieties from many producers and VIII. A summary of the analysis is countries that have no restrictions areas. For this reason, Federal oversight provided in section IX. against Karnal bunt would likely is needed to safeguard against cross- increase. Lastly, substitution across contamination and to instill confidence III. Benefits of the Federal Quarantine domestic markets could provide added from both domestic and foreign buyers. Program flexibility in meeting export demands. Thus, it is conceivable that, without The disease Karnal bunt causes In the long run, the effects could be Federal intervention, individual States production losses to wheat in the form minimal depending on whether the and importing countries would place of yield reduction due to the infestation market were to treat Karnal bunt as a their own, perhaps more severe, of kernels, and reduction in the quality quality issue and develop discounts for restrictions on wheat shipments. of grain. Roughly 4 percent of wheat Karnal bunt. As additional information from fields in Arizona, and 0.04 and 14 It is estimated that the impact of sampling and testing became available percent of fields in Imperial and Karnal bunt on exports, because of in subsequent months following the Riverside counties in California, substitution effects, would likely result outbreak, the Agency was able to ease respectively, were found to be infected in a 10-percent reduction in U.S. wheat the quarantine in order to minimize with Karnal bunt. exports. A decrease of 10-percent in disruption to affected entities. Those The most economically significant exports would cause a 22-cent per changes, which were detailed in the impact of the disease, however, is bushel drop in the wheat prices and a October 4, 1996, final rule, established inarguably its effect on the export drop in wheat sector income of over various risk categories for wheat market. This is because about half of $500 million. The effects of decreases in planting for the 1996–97 crop, relieving U.S. wheat exports are to countries that wheat exports of various percentages are unnecessary restrictions as the maintain restrictions against wheat presented in Table 1.

TABLE 1.ÐEFFECT OF A DECREASE IN WHEAT EXPORTS DUE TO KARNAL BUNT, 1997/98 CROP YEAR

Reduction in exports Item Unit 0% 10% 25% 50%

Exports ...... mil. bu. 1,200 1,080 900 600 Total use ...... mil. bu. 2,462 2,394 2,295 2,138 Price ...... $/bu ..... 3.85 3.63 3.29 2.68 Value of production ...... mil. dol. 9,543 8,898 8,146 6,637 Gross income 1 ...... mil. dol. 11,358 10,813 9,961 8,580 Variable expenses ...... mil. dol. 4,823,823 4,823 4,823

Net income ...... mil. dol. 6,536 5,990 5,138 3,758 1 Includes market transition payments.

2 About 1.2 billion bushels of wheat are exported from the U.S. annually, at a value of $4 billion. 24756 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

The 1996 Federal quarantine and The 1995–96 Karnal bunt regulations regulated areas. Other contaminated emergency actions served to contain primarily affect persons or entities that articles must be cleaned and sanitized Karnal bunt in the initial outbreak area produce wheat in a regulated area and/ before such movement. Millfeed must of the Southwest United States. The or move certain articles associated with be treated to render inactive any disease Federal program provided assurances to wheat out of a regulated area. These causal agent before its addition into wheat importing countries that wheat articles are subject to certain regulatory animal feed. Grain that tests negative from uninfected areas were monitored actions to minimize the risk of may move under limited permit to for Karnal bunt under the National spreading the causal agent of the disease approved mills. Commercial seed Survey program, by sampling and to other uninfected areas. Regulated intended for planting is prohibited testing of all wheat fields in the United articles include: movement outside the regulated areas. States. Countries that are willing to 1. Farm machinery and equipment Wheat seed to be planted within the accept wheat from the affected areas are used to produce wheat; regulated areas must be sampled and also assured that grain originating from 2. Conveyances from field to handler, those areas are tested negative twice for such as farm trucks and wagons; tested for Karnal bunt, and, for seed the disease. Through these means, the 3. Grain elevators, equipment and originating in a regulated area, treated Federal Karnal bunt program served to structures at facilities that store and prior to planting. Wheat growers in New maintain and preserve the economic handle grain; Mexico and Texas whose wheat fields viability of the U.S. wheat export. 4. Conveyances from handler to other were planted with contaminated seed marketing channels, such as railroad were ordered to destroy their crops. IV. Impact on the Affected Industry of cars; Karnal Bunt and Regulatory Actions These requirements have resulted in 5. Plant and plant parts, such as grain additional costs and claims of losses to The wheat industry within the for milling, grain for seed, and straw; affected individuals. Wheat producers regulated area is largely composed of 6. Flour and milling byproducts; and handlers had loss in market value businesses who can be considered as 7. Manure from animals fed wheat/ of their grain; seed companies and ‘‘small’’ according to guidelines wheat byproducts from quarantine area; researchers have had similar losses, established by the Small Business 8. Used sacks; Administration (SBA). The 9. Seed-conditioning equipment; including lost royalties due to the characteristics of these firms as well as 10. Byproducts of seed cleaning; disruption in the development of seed other small affected entities are 11. Soil-moving equipment; varietals. Other costs were for cleaning provided in detail in section VIII, the 12. Root crops with soil; and disinfecting equipment and Regulatory Flexibility analysis of 13. Soil. facilities, and damages to machinery impacts on small entities. The following As part of the Karnal bunt program, caused by required treatment. Some of discussion on impacts is directly grain that tests positive for Karnal bunt these losses are presented in Table 2. applicable to these entities. is prohibited from moving out of the

TABLE 2.ÐIMPACT OF KARNAL BUNT QUARANTINE ACTIONS

Types of impacts due to Action Regulated affected Numbers KB and quarantine ac- article entities affected tions

Plow-down & Seed Plot destruction ... • Fields planted with in- • Certain producers in • 4100 acres • Loss in value of fected seed at pre- Texas and New Mex- • 73 producers wheat crop destroyed. boot stage ico Cleaning/Disinfection ...... • Tools and Farm • Wheat producers in • 145 growers • cost of cleaning. Equipment RA • Harvesters • Farmer owned and • 389 combines • cost of cleaning. custom combines • Grain Trucks • Grain haulers from • 976 trucks • cost of cleaning. field to grain elevators • Grain storage and • Grain handling firms • 17 elevators • cost of cleaning. loadout facilities • Harvesters • Combine harvester • 36 to 40 combines • Excess wear and tear owners on equipment. • Harvesters • Combines involved in • 5 to 10 combines • Down-time on har- pre-harvest sampling vesters due to field testing. • Harvesters • Custom combine • 5 companies • Loss of income due to companies termination of con- tracts outside the RA. • Railcars • Grain handling firms • 10,880 cars (511 for • cost of cleaning. positive grain) Restriction on Use or Marketings ...... • KB-postive milling • Producers • 145 growers • Loss in value of KB- wheat • Grain handling firms • 6 handlers positive wheat. • KB-negative milling • Producers in RA • 664 producers • Loss in value of KB- wheat • Handlers in RA • 26.7 million bushels negative wheat in RA. • Millfeed • Millers, millfeed proc- • 108 mills • Millers reluctance to essors • 45,644 tons mill KB-negative wheat from RA. • Movement restrictions • Seed producers, re- • 15 producers • Loss in premiums on wheat seed searchers, and com- • 9 research firms • Loss in market value panies • 20 seed marketers • Loss in royalties. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24757

TABLE 2.ÐIMPACT OF KARNAL BUNT QUARANTINE ACTIONSÐContinued

Types of impacts due to Action Regulated affected Numbers KB and quarantine ac- article entities affected tions

• Straw, Manure, • Straw producers and • 25 growers • Loss in income Millfeed Handlers-Users of • 3 contractors • Increased cost of pro- Straw • 1 straw user, making duction. • Livestock producers of straw mats for ero- using wheat or straw sion control produced in the RA • 7 millers in 5 States • Flour millers • 2 millfeed processors • Millfeed processors/ users • Moratorium on wheat • Producers with KB- • 109 growers • Loss in income from production on KB- positive properties • 13,674 acres wheat. positive fields • Soil on root crops • Vegetable producers • Unknown number • Increased cost of pro- grown on infected on KB-positive prop- duction. properties erties • Used seed sacks • Seed research and • 9 research firms • Increased cost of pro- • Seed-conditioning marketing companies • 20 seed marketers duction. equipment • Byproducts of seed RAÐRegulated Area.

Estimated losses in value to the quarantine areas represent a small average cleaning cost of each facility is affected wheat industry in the fraction of the losses for negative testing estimated at $16,750, for a total cleaning Southwest are discussed below. The grain, as leftover inventories are less cost of $268,000 incurred to facility major identified categories of losses than 5 percent of the annual production owners. include: (1–2 million bushels). 3. Loss in Value of Wheat Testing Plow-down of infected fields in New 1. Order to Plow Down Fields Planted Positive for Karnal Bunt. Wheat testing Mexico and Texas; with Infected Seed at Pre-Boot Stage. positive for Karnal bunt (either by pre- Loss in value of wheat testing positive Most of the acreage ordered to be harvest sample or by testing at the for Karnal bunt for producers and plowed down in April 1996 was farm elevator site) was required to go into handlers; production acreage located in four sealed storage. This movement of wheat Loss in value of wheat testing counties in New Mexico (Dona Ana, out of the regulated area was restricted negative for Karnal bunt for producers Hidalgo, Luna, and Sierra) and in two (exiting only with a limited permit) and and handlers; counties in Texas (El Paso and most went into local animal feed uses Cost of millfeed treatment; Hudspeth). This acreage amounted to after treatment that rendered ineffective Cleaning and disinfecting of grain approximately 4,100 acres. Other any Karnal bunt spore. This involved a storage facilities; affected acreage were small seed heat-roll-flaking process commonly in Loss in product value to handlers and experimental plots in Washington, use for small grains for feed formulas in growers with wheat inventories for past California, and South Dakota that California. Infected wheat lost value as crop seasons; totaled perhaps 50 acres in all. it was diverted from its original Loss in product value to participants Many affected growers were able to purposes to the animal feed markets in the National Karnal Bunt Survey plant immediately with vegetables and where it had to compete against lower- whose wheat or grain storage facility is recover some losses by farming priced feed grains. Similar discounts found positive for Karnal bunt; alternative crops on affected land. would have likely existed in the absence Loss in value of wheat seed and straw; Fertilizer carry-over on destroyed wheat of regulatory actions.3 and fields was possible for crops grown on Eight percent of wheat production in Losses Related to Cleaning and affected fields. The impact on farm the regulated area was found to be KB- Disinfecting Combine Harvesters and income that could have been derived positive. This level of production Other Losses. from wheat, however, is uncertain, as it amounted to 2.32 million bushels of These areas of economic loss are is unclear what the market returns to wheat taking a loss on average of $1.80 discussed below. Please note that losses wheat grown on known affected fields per bushel, with an estimated total loss have not been identified for participants would have been if the plow-down in value of positive wheat to producers in the National Survey, because Karnal order had not occurred. and handlers of $4.2 million. bunt has not been discovered outside 2. Cost of Sanitizing Grain Storage. 4. Loss in Value of Wheat Testing the original outbreak area of the The purpose of this requirement was to Negative for Karnal Bunt. At harvest, Southwest. Also, losses to handlers and destroy spores and thereby reduce the many wheat buyers refused to honor growers with wheat inventories for past likelihood of cross-contamination of purchase contracts with producers for crop harvest are included in the grain storage facilities that came into discussion of loss in value of negative contact with infected kernals or spores. 3Price discounts on both KB-positive and negative testing grain. The sanitization of facilities involves wheat could have been greater in the absence of With regard to wheat inventories for primarily fumigation with methyl regulatory action. While this may justify the regulatory action taken, the more convincing past crop harvest, historical data and bromide. Records of APHIS surveys in evidence is the large benefits of regulations to the field staff observations suggest that pre- the regulated area indicate that 16 greater part of the U.S. wheat industry outside of 1996 produced wheat inventories in the facilities were subject to cleaning. The the regulated area. 24758 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations their grain, most of which had been were to be treated in order to render their wheat grain income. Straw is sold tested negative for Karnal bunt by pre- inactive any presence of Karnal bunt for use at places such as racetracks, harvest sample. These contracts had spores. For whole wheat kernels, this highway shoulders, feed yards, and been agreed upon before the discovery normally means that wheat undergo a parks for erosion control and to of the disease and the declaration of heating-rolling-and-flaking process. minimize muddy conditions. Wheat quarantine. Also, wheat millers inside Similar procedures, except for flaking, straw is listed in Karnal bunt and outside the regulated areas became were assumed to be required in treating regulations as a regulated article and is reluctant to buy wheat from grain millfeed. prohibited from being moved outside of handlers due to the increased cost of Many animal feed manufacturers the regulated areas. This has prevented handling wheat from the regulated commonly heat and treat ingredients in many wheat straw producers from areas. Prices for wheat produced within their feed products. The treatment shipping their 1995–96 crop season the regulated areas, therefore, dropped requirements would not add any straw to the intended markets. Some regardless of its disease status. additional costs for them. For others, wheat straw was sold to alternative A total of approximately 26 million that restriction would place an markets within the regulated areas for a bushels of KB-negative wheat produced additional processing cost of around $35 lower price; other wheat straw was not in the quarantine areas apparently per ton to their operation. Based on able to be sold. These losses are suffered price losses. Ninety-two requests for compensation from millers estimated at about $200,000. percent of the quantity produced for in Minnesota, Missouri, Oregon, 8. Losses Related to Cleaning and domestic milling (approximately 13 Wisconsin, and Virginia who are Disinfecting Combine Harvesters and million bushels), plus the diverted processing KB-negative wheat produced Other Losses. A number of costs have quantity of KB-negative wheat that was in a regulated area, we estimate the been claimed by about 220 combine originally intended to be exported (6 additional cost of mill feed treatment in harvesters operating within the million bushels) could have response to the Karnal bunt quarantine regulated areas, and those who travel experienced a price reduction. A to total $1.6 million. outside of the regulated areas to harvest portion of the remaining 7 million 6. Loss in Value of Seed. Under the crops. These losses are related to the bushels intended for export that could 1996 quarantine and emergency actions, cleaning and disinfecting requirements not be sold at contract price could also wheat seed produced in the regulated of combine harvesters, which experience a similar loss. We estimate areas was prohibited from sale outside particularly affected custom harvesters that negative grain would suffer an of the regulated areas. Wheat seed who contracted with the Agency to do average price drop of $1.10 per bushel. intended for planting within the pre-harvest sampling for Karnal bunt. Thus, total losses due to the decline in regulated areas must be sampled and These losses involved: (1) Excess market value of KB-negative wheat held tested for Karnal bunt, and for seed damage to machines caused by by producers and handlers could total originating in a regulated area, treated treatment protocols; (2) cleaning and $28 million. This amount would be prior to planting. These restrictions are disinfecting costs; (3) down time and reduced by the amount of grain sold on estimated to have a significant impact extra operational costs associated with contract which received full contract on the seed industry, largely due to the testing of samples and treatment price. Producers would not have high value that is commanded by protocols; and (4) loss of business as realized any losses on such production. propagative seed. Seed companies wheat producers inside and outside the Handlers may have incurred the full contract with growers to produce seed regulated areas switched to custom drop in value of their wheat sales wheat at about 30 to 50 cents per bushel harvesters that were not associated with depending on their previous contract premium over non-propagative wheat. the 1996 wheat harvest in the regulated prices. Given that information on This premium reflects the added areas. The most serious of these claims contracts of individual producers and precautions in production to ensure that can be directly attributed to the handlers is unknown, it is estimated seed integrity and cleanliness. These regulations involves the excess wear that $28 million is the potential companies were affected by the decline and tear due to the subsequent corrosion maximum amount of economic loss due in market value resulting from the on combines that underwent extensive to a drop in value of uninfected wheat inability to move seed out of the cleaning and disinfecting treatments grown in the regulated area. However, regulated areas. It is estimated that 1.5 according to protocol. The loss in value the actual amount of grain that would million bushels of wheat seed sustained of these combines is estimated at $2 experience a loss in value is expected to loss in value of between $5 and 6 million. be lower. million. Seed developers, who earn Other economic losses that have been 5. Cost of Millfeed Treatment. returns on their investment in research claimed by affected individuals in the Millfeed is a byproduct of wheat milling and development of wheat varieties, regulated areas but that are difficult to (the outer husk of the wheat kernel and also claim potential long-term losses in quantify include additional handling, other byproducts from milling). royalties; by receiving plant variety storage, and finance charges incurred by Approximately 25 percent of the raw protection (or patent rights), seed handlers of nonpropagative wheat and wheat going into milling comes out as developers then obtain royalties on various other claims by producers and millfeed, while the remaining 75 future sales of wheat that are developed handlers in the regulated areas such as percent is converted into flour. The sale and sold for propagative purposes. cleaning and disinfecting railcars and of this milling byproduct contributes Other economic losses suffered by the trucks and buying wheat from alternate around 10 percent towards their gross seed industry, but are difficult to sources to fulfill contracts that income from milling. With the higher quantify, include additional handling, originally stipulated wheat produced likelihood of Karnal bunt being present storage, and finance costs on seed that from the regulated area. The Agency in the millfeed rather than the flour, could no longer be sold outside the continues to gather information for restrictions were placed on the regulated areas and costs to relocate quantifying costs to seed producers and movement of millfeed produced from wheat breeding operations outside of others impacted by Karnal bunt or the wheat grown in the regulated areas. the regulated areas. Agency programs to limit it. These restrictions stated that millfeed, 7. Loss in Value of Straw. Many In sum, the quarantine and regulatory before their addition into animal feeds, growers sell wheat straw to supplement measures in the southwestern United Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24759

States were necessary to protect the $35–40 per ton, and prompted many TABLE 3.ÐESTIMATED LOSS IN VALUE wheat industry from a $500 million loss contracts with grain producers and DUE TO KARNAL BUNT REGULA- in net sector income due to a drop in handlers to be canceled. TIONS, 1995±96 CROP YEARÐCon- wheat export. The Southwest produces It is reasonable to expect, however, tinued 3 percent of the U.S. wheat supply and that in the absence of regulation some its share of those losses would have portion of the losses would have [In million dollars] been $15 million, if the export losses resulted as the market responded to the Estimated were evenly distributed across the disease. A number of importers refused Action loss in country. It is likely that although the to honor purchase contracts with value export losses would become evenly handlers for negative-testing grain. This distributed over time, the Southwest is due in part to the perceived risk of the 5. Millfeed treatment of KB-neg- would suffer higher proportionate losses product, and also due to the increased ative grain ...... 1.6 the first year since in the absence of a costs of taking precautionary measures 6. Loss in value of seed ...... 6.0 quarantine it would be perceived as the in handling grain from the infected 7. Loss in value of straw ...... 0.2 areas. Some decline in the value of 8. Loss related to cleaning and focus of a spreading infestation. disinfecting of combine har- The impact of Karnal bunt and the uninfected wheat within the regulated vesters ...... 2.0 subsequent quarantine actions on area would have likely occurred upon market value within the regulated area, discovery of Karnal bunt, even if Total ...... 44.0 as estimated in this analysis, should not quarantine actions were not invoked. exceed $44 million (Table 3). As The actual share of losses that is directly 1 $28 million is the potential maximum amount of loss in value of uninfected wheat. discussed in Section V below, $39 attributable to the presence of the million in compensation has been made disease itself is difficult to quantify. V. Federal Compensation To Mitigate available through budget apportionment Based upon the quantifiable losses Losses to mitigate these losses. calculated in this analysis, it is The Karnal bunt quarantine that was While certain losses described above estimated that roughly 12 percent of the initially established was necessarily are clearly linked to the quarantine and $44 million in losses (those associated broad due to the lack of data available emergency actions, it is likely that primarily with the plow-down, cleaning at the time as to the extent of the individuals suffering these losses and disinfecting of storage facilities and infestation. The discovery of Karnal alternatively would have shared the combine harvesters, and treating bunt and subsequent quarantine and projected $500 million in export losses millfeed) were incurred due to emergency actions occurred after which would have occurred in the regulatory actions and requirements. production and marketing decisions had absence of a quarantine. The costs The remaining 88 percent of the losses been made. Producers and other affected incurred in destroying immature wheat (composed of loss in value of negative- individuals had little time or ability to fields in New Mexico and Texas are testing grain, seed and straw, and avoid the unexpected costs or pass those more clearly associated with complying positive-tested wheat) occurred in the with regulatory directives. It is unlikely regulated area as the market costs on to others in the marketing that producers who planted with concentrated its restrictions to those chain. The impact was particularly suspect wheat seed would have plowed areas identified as having Karnal bunt. severe on the wheat industry in the under their fields without the order, Based upon the export experience of affected area because much of the crop because unless producers surveyed their this past year, it is estimated that 25 is grown under contract at specified fields or tested their grain the disease percent of the wheat intended for export amounts and prices. may not have become evident until was diverted to other markets because In order to alleviate some of these several years in the future. The cleaning countries refused to import wheat from hardships and to ensure full and and disinfecting protocols for grain the regulated area, despite APHIS’’ effective compliance with the storage facilities and farm equipment, assurances the wheat had twice tested quarantine program, compensation to which resulted in additional operating negative for Karnal bunt. These losses mitigate certain losses was offered to expenses, can also be linked to would have occurred if no regulations producers and other affected parties in regulatory requirements. had been put into place and arguably a regulated area. The payment of Regulatory requirements to sanitize more exports would have been diverted compensation is in recognition of the railcars and treat millfeed caused many to other markets in the absence of fact that while benefits from regulation domestic mills to drop contracts with regulation. accrue to a large portion of the wheat producers and handlers of grain from industry outside the regulated areas, the the affected areas, resulting in a decline TABLE 3.ÐESTIMATED LOSS IN VALUE regulatory burden falls predominantly in wheat prices within the regulated DUE TO KARNAL BUNT REGULA- on a small segment of the affected wheat industry within the regulated area. areas. In the absence of the regulatory TIONS, 1995±96 CROP YEAR requirement on millfeed, domestic For the 1996 wheat crop, $39 million wheat millers would have likely [In million dollars] in compensation funding, including purchased negative-testing grain from pending compensation actions, has been Estimated the infected areas. Although some Action loss in made available to USDA through budget millers were reluctant, the high quality value apportionment. of the durum wheat produced within The Agency has identified three this area, coupled with a regulatory 1. Plowdown of NM and TX principles for deciding whether to program that required testing, would fields planted with infected provide compensation. First, have helped counter their reluctance. seed ...... $1.2 compensation may be appropriate 2. KB-positive grain diverted to However, in addition to requiring animal feed market ...... 4.2 where quarantine and emergency testing the regulations required that 3. KB-negative grain that expe- actions cause losses over and above millfeed be treated and railcars rience loss in value ...... 1 28.0 those that would result from the normal sanitized, which increased the costs of 4. Cost of sanitizing storage fa- operation of market forces. Payment of milling wheat from the regulated area by cilities ...... 0.3 compensation would reflect the 24760 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations incremental burdens of complying with These areas of compensation are full contract price, compensation for regulatory requirements insofar as discussed below. Please note that loss in value of wheat testing negative market forces would not otherwise compensation has not been necessary for Karnal bunt is made based on the impose similar or analogous costs. for participants in the National Survey, difference between the contracted price Second, compensation may be because Karnal bunt has not been and the higher of the actual price appropriate where parties undertake discovered outside the original outbreak received by the producer or the salvage actions that confer significant benefits area of the Southwest. Also, losses to value. (Salvage value was to equal on others. Under this principle, handlers and growers with wheat whichever price was higher of the payment of compensation would be inventories for past crop harvest are following: The average price paid in the intended to overcome the usual included in the discussion of loss in region of the regulated area where the disincentives to produce such benefits. value of negative testing grain. wheat was sold for the period between Third, compensation may be To offset for costs related to the plow- May 1 and June 30, 1996; or $3.60 per appropriate where a small number of down, compensation was offered to 74 bushel.) parties necessarily bears a producers to cover the $25 per acre Compensation for growers of disproportionate share of the burden of plowing cost plus the $275 per acre in nonpropagative wheat not grown under providing such benefits. This principle average cost of production expenses (up contract is based on the difference rests on the widely shared belief that until the time the crop was destroyed). between the estimated market price for burden-sharing is a fundamental In total, these producers received the relevant class of wheat and the principle of equity. compensation of $1.02 million to cover higher of the actual price received or its The Agency compensation plan for operating costs incurred for growing salvage value. (Salvage value was to be Karnal bunt proceeds from these three wheat. the same as above for contracted wheat.) principles. Individual decisions Compensation is committed to owners The estimated market price is what the regarding what specific losses to of contaminated grain storage facilities market price would have been if there compensate and how much on a one-time only basis for up to 50 were no quarantine for Karnal bunt, and compensation to offer in each case were percent of the cost of decontamination, is calculated for each class of wheat, made in line with the above basic not to exceed $20,000. Total cost of taking into account the prices offered by principles which describe the goals of compensation, as of March 14, 1997, is relevant terminal markets (animal feed, compensation. A top equity priority was estimated at $134,000, with an average milling, or export) for the period compensation per facility of $8,375. compensation for costs of plowing down between May 1 and June 30, 1996, with The total compensation expected to fields, and for wheat and other articles adjustments for transportation and other be paid for the loss of value of both KB handling costs. The compensation the Agency ordered destroyed or positive wheat and KB negative wheat prohibited movement. Compensation formula for negative grain would from the regulated areas is suggest an average price drop of $1.10 amounts took into account the need to approximately $25 million. mitigate real losses caused by the per bushel. Compensation paid as of March 14, In order to encourage wheat regulations, so that regulated parties 1997, is estimated at $12,409,000. The marketings from the regulated areas and would not have a strong economic categories of wheat eligible for reassure millers that they would not incentive to avoid compliance. At the compensation are discussed below. incur any additional costs in handling same time, amounts were not set at a Program guidelines limited maximum uninfected wheat from a regulated area, high enough rate to establish a ‘‘bounty’’ compensation rates for KB positive a $35 per ton cost offset for heat that would encourage fraudulent claims wheat to $2.50 per bushel; producers treatment was offered to millers using or behavior that would result in were asked to establish financial losses KB-negative wheat produced in a increases in contaminated wheat or by calculating the difference between regulated area. As of March 14, 1997, other articles eligible for compensation. their contract price and actual prices 108 requests have been made from The compensation committed to date received (if production was pre- millers in Minnesota, Missouri, Oregon, for the 1995–96 crop year, as published contracted) or the difference between Wisconsin, and Virginia for a total of as an interim rule in the Federal the estimated market value in May-June $1.7 million. Register on July 5, 1996, and adopted in 1996 and their actual prices received (if It should be noted that, as stated in a final rule published in this issue of the production was not pre-contracted). the interim rule of July 5, 1996, the Federal Register, included Handlers were limited by the same Agency is developing a compensation compensation for: maximum compensation amount, but plan for the loss in value of 1995–96 • Plow-down of infected fields in determination of financial loss was crop season seed. This plan will be New Mexico and Texas; based on the difference between their published in a future edition of the • Loss in value of wheat testing wheat purchase price and a $3.60 per Federal Register. Compensation for loss positive for Karnal bunt for producers bushel salvage value. They may have in income due to the restrictions placed and handlers; had additional costs to sort and treat on movement of straw and damaged • Loss in value of wheat testing their KB-positive wheat (after finding custom harvesters will also be negative for Karnal bunt for producers their KB-negative wheat was, in fact, addressed in a future edition of the and handlers; KB-positive). Moreover, many handlers Federal Register. • Cost of millfeed treatment; were reluctant to accept wheat from Compensation payments for loss in • Cleaning and disinfecting of grain affected areas. This expedited procedure value, while not accounting for every storage facilities; was offered to handlers in order to loss or expense due to the disease or • Compensation for handlers and reduce administrative and regulation, limited the adverse impact growers with wheat inventories for past recordkeeping costs by not addressing on wheat sector income of affected crop seasons; their losses on a contract-by-contract individuals within the regulated areas. • Compensation for participants in basis. It provided assistance that The final amount of compensation for the National Karnal Bunt Survey whose avoided a market collapse. grain testing negative and for millfeed wheat or grain storage facility is found For those growers who grew wheat treatment will depend on the marketing positive for Karnal bunt. under contract but who did not receive distribution of the 1996 wheat crop and Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24761 will be proportionately lower the greater differences between being designated a preharvest samples tested positive; (2) a the amount of wheat that is exported. restricted area and a surveillance area. field planted with known contaminated VI. Conditions for Wheat Production First, grain from a restricted area that seed in 1995; or (3) any other field and Utilization in a Regulated Area for tests negative for Karnal bunt may move within the restricted area. In a the 1996–97 Crop Year under a limited permit from the surveillance area, each field will be regulated area to designated facilities designated as (1) a field planted with Based upon survey data identifying under safeguard and sanitation known contaminated seed in 1995; or the location of fields that have tested conditions; grain from a surveillance (2) any other field in the surveillance positive, the regulations in effect during area that tests negative for Karnal bunt area. In a restricted area, in fields in the 1996 harvest were modified in 1997 may move under a certificate to any which preharvest samples tested for some areas within the initial destination without restriction. positive, no Karnal bunt host crops may quarantine. The final rule published on Additionally, millfeed from grain October 4, 1996, set forth criteria by be planted in the 1996–97 crop season. produced in a restricted area is required which fields in regulated areas would be The same prohibition applies to fields to be treated, whereas millfeed from classified into two risk classes in the in both restricted areas and surveillance grain produced in a surveillance area is 1996–97 crop year. The effects of being areas which were planted with known not required to be treated. classified in a particular category are contaminated seed in 1995. Also, as outlined in Table 4. Each restricted and surveillance area noted above, millfeed from grain from a In each regulated area, all or a portion is further divided into individual fields field in the ‘‘any other field’’ category in of that regulated area is designated as within the respective areas. Each field a restricted area must be treated; either being a restricted area or a within a restricted area will fall into one millfeed from a surveillance area need surveillance area. There are two of three categories: (1) A field in which not be treated.

TABLE 4.ÐCONDITIONS FOR WHEAT PRODUCTION AND UTILIZATION IN A REGULATED AREA

Decontamina- Disposition of Definition Host planting Seed tion Millfeed Survey grain

Restricted Area Category: 1 ...... Fields in which No host plant- N/A ...... Equipment N/A ...... N/A ...... N/A. preharvest ing in 1996± movement samples test- 97 crop sea- outside regu- ed positive. son. lated area: cleaned and sanitized. Movement within: no re- strictions. 2 ...... Fields planted No host plant- N/A ...... Equipment N/A ...... N/A ...... N/A. with known ing in 1996± movement contaminated 97 crop sea- outside regu- seed in 1995. son. lated area: cleaned and sanitized. Movement within: no re- strictions. 3 ...... All other fields No restrictions Tested and, if Equipment Required, un- Double tested: Movement of within re- from regu- movement less destina- Sampled in grain testing stricted area. lated area, outside regu- tion State field at har- positive re- treated prior lated area: controls dis- vest; com- stricted; grain to planting cleaned and position posite sam- testing nega- only within sanitized. /movement. ple prior to tive may regulated Movement movement. move under area. within: no re- limited permit strictions. to designated facilities under safe- guard and sanitation conditions. Surveillance Area: 4 ...... Fields planted No host plant- N/A ...... Equipment N/A ...... N/A ...... N/A. with known ing in 1996± movement contaminated 97 crop sea- outside regu- seed in 1995. son. lated area: cleaned and sanitized. Movement within: no re- strictions. 24762 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations

TABLE 4.ÐCONDITIONS FOR WHEAT PRODUCTION AND UTILIZATION IN A REGULATED AREAÐContinued

Decontamina- Disposition of Definition Host planting Seed tion Millfeed Survey grain

5 ...... All other fields No restrictions Tested and, if Equipment Not required .... Double tested: Movement of located in de- from regu- movement Sampled in grain testing finable area lated area, outside regu- field at har- positive re- where no treated prior lated area: vest; com- stricted; grain fields in risk to planting cleaned and posite sam- testing nega- level 1 are only within sanitized. ple prior to tive may located. regulated Movement movement. move under area. within: no re- certificate. strictions. Safeguard and sanita- tion of rail- cars not re- quired.

The number of wheat acres that is previous years largely due to factors Arizona, an average of 24 percent in the estimated to fall into the various risk affecting the wheat industry as a whole three affected counties of California, and categories in the 1996–97 crop season is (in particular, the projected decline in 20 percent each in New Mexico and presented in Table 5. The amount of export demand for U.S. wheat). Wheat Texas. wheat acres in the regulated area is acres are estimated to decline by 36 estimated to be greatly reduced from the percent in the regulated areas of

TABLE 5.ÐPROJECTED 1997 REGULATED WHEAT ACREAGE, BY RISK CATEGORIES 1

California Risk category Arizona Imperial Bard/ New Mexico Texas Total acres Valley Winterhaven Blythe

Acres

Restricted Area ...... 9,200 ...... 40 450 3,239 494 13,423 Surveillance Area ...... 105,800 90,000 3,960 4,050 4,128 3,906 211,844

Total 1997 Regulated Area ...... 115,000 90,000 4,000 4,500 7,367 4,400 225,267

1996 Regulated Area ...... 180,000 106,592 8,909 14,000 9,209 5,494 324,204 1 Estimates obtained from the Karnal Bunt Task Force, Arizona.

Overall, the impact of the Karnal bunt Approximately 10,000 acres in risk from Arizona indicate that, except for restrictions is likely to be lessened for categories 1 and 4 are prohibited from barley, the historical net returns many growers and other individuals, as planting wheat. The value of wheat obtained from wheat production are a large portion of the regulated acres production that could have been actually lower than the net returns for falls into the less restrictive surveillance harvested from these fields, calculated all other crops.5 at an average price for durum wheat category. Additionally, an interim rule It should be noted that changes in the before the disease outbreak of $5.50 per published in the Federal Register on compensation plan to remunerate for May 1, 1997 (Docket No. 96–016–19, 62 bushel, would have been less than $6 million.4 The impact on growers with certain losses are being developed and FR 23620–23628), established a new will be published in a future edition of standard for defining regulated areas for fields in these categories, however, is the Federal Register. Information Karnal bunt based on finding bunted uncertain. While the restrictions deny received through public comments and wheat kernals rather than just spores. income that could be earned from other forums is invaluable in refining That interim rule substantially reduced wheat, they do not preclude the regulatory policies regarding Karnal the size of the harvested wheat area planting of other non-host crops, such bunt. With no prior experience in regulated for Karnal bunt, in addition to as barley, alfalfa, cotton, and vegetables. the market-based decline in wheat acres In many of the infected areas, especially regulating the disease, the improvement in the regulated areas above. Wheat on irrigated operations, wheat is either of the Karnal bunt program requires double-cropped or grown on rotation production can still occur on fields in ongoing input from the public. This with other non-host crops. The impact the regulated areas (in restricted process will enable the Agency to better on producers in these risk categories category 3), on land which was not protect the wheat growing areas of the would therefore be minimized with previously planted with wheat in 1996. United States, while causing the least rotation. Barley would likely be grown Growers who choose to plant wheat in possible disruption to the affected areas. on these fields: county crop budget data these areas are minimally restricted by regulations as grain that tests negative 4 The estimate is based on an average yield of 100 for Karnal bunt can move under limited bushels per acre for durum wheat produced in the 5 Other rotational crops include alfalfa hay, sudan permit to designated facilities. desert Southwest. hay, upland and pima cotton, safflower, and lettuce. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24763

VII. Consideration of Alternatives to the the affected area, and outside the the demand for seed is reduced. State Rule regulated area, would have been more and county departments of agriculture A number of alternatives to the negatively impacted. Therefore, it is also could also have experienced increased quarantine were considered by the conceivable that Federal intervention to financial burdens as regulatory Agency in controlling the disease prevent the spread of KB beyond the responsibilities related to Karnal bunt outbreak. One alternative was to limit regulated areas and to identify the KB surveillance and protocol monitoring the scope of the 1996 quarantine by status of acres within the regulated areas increased on the local level. The regulating only fields that tested may have had a salutary effect on the magnitude of these effects, however, are positive for Karnal bunt. This option market and a beneficial impact on prices not quantifiable. The information below was rejected for the following reasons. both within and outside the regulated describes the number of firms affected Karnal bunt was originally detected in areas. and provides insight into the impact on When the treatment protocols for many certified wheat seed lots produced small entities due to Federal regulated articles were established, few in Arizona, as well as in some grain in regulations. options to the requirements were made storage from a previous harvest. The Number of Producers and Acreage in available to affected wheat growers, information available to the Agency Regulated Area (RA): There were 5,657 handlers, and combine owners. These indicated that seed from the infected farms in the counties of the RA as specific protocols were based on the 6 lots were planted widely in parts of reported in 1992 with 1,501,089 acres. best scientific information available on 1 Arizona and California, and in a few About ⁄3 of the reported total acreage disease management in other countries counties in Texas and New Mexico. was irrigated. There were 598 wheat affected by Karnal bunt. Furthermore, This infected seed could not be traced growers in the counties of the RA: 236 the decision to require millfeed in California (out of 2,236 wheat to specific fields because the process of treatment, as with other treatment seed certification in Arizona allows seed growers in the State); 310 in Arizona; 40 requirements, was based on risk in New Mexico (out of 892 in the State); from different fields to be commingled assessments that were conducted to in making a seed lot. Because Karnal and 12 in Texas (out of 14,877 in the determine the acceptable level of risk of State). Total wheat acreage reported in bunt spores can remain viable in soil for the various modes of transportation of as long as 4 to 5 years, and because these counties in 1992 was 176,753 the disease. Compensation is thus being acres producing 13.3 million bushels. wheat is planted in rotation in the considered to offset unanticipated losses Southwest, the actual infestation would Wheat acreage represented less than 12 and damages caused by the regulatory percent of total farm acreage. not be apparent until fields came into requirements. rotation with wheat. Moreover, the Characteristics of Producers in the detection of Karnal bunt spores in some VIII. Regulatory Flexibility Analysis— RA: Similar cotton and vegetable grain in storage from the 1993 harvest Impacts on Small Entities Within the production data suggest that the primary indicated that the disease had been Regulated Area source of income in these areas is derived from cotton and vegetable present for at least several years. Given The Regulatory Flexibility Act that there is currently no feasible soil production. Cotton acreage in the requires that agencies assess the impact counties of the RA was reported at test, the disease, in this situation, could of regulations on small businesses, only be detected as wheat is planted. 496,284 acres on 1,301 farms in 1992. organizations, and governments. A Vegetables grown for harvest was The unknown extent of the infestation majority of the firms in the affected area reported on 509 farms with 202,694 in Arizona and California necessitated can be classified as small based on acres. The acreage and number of broader control actions than those criteria established by the Small producers growing wheat, cotton, and offered by quarantining infected fields. Business Administration (SBA). Much other crops vary from year to year In New Mexico and Texas, where wheat of the analysis on impacts discussed in depending on rotations, price and acreage planted with suspect seed was the previous sections are therefore weather expectations, and other factors. limited and the wheat crop was applicable to these firms. Unless Wheat is often a rotation crop in cotton immature, regulatory actions were otherwise noted, the SBA’s and vegetable crop production directed at plow-down of those fields. characterization of a small business for providing a more stable income while Another alternative available to the the categories of interest in this analysis Agency would be not to quarantine. is a firm that employs at most 500 ‘‘resting the soil’’ and providing weed This alternative was rejected as it could employees, or has sales of $5 million or control. Common rotations call for not be justified given the risk of spread less. The SBA defines a ‘‘small’’ wheat wheat in one year in three. Data for the of Karnal bunt to uninfected areas and producer as having sales of less than Pacific region indicate that the previous the potential for significant losses in the crop on 57 percent of the wheat acres $500,000. 7 wheat export market. The quarantine In addition to private businesses that in 1989 had crops other than wheat. actions to prevent disease spread serve produce and handle grain in the Forty-percent had wheat, while 2 to instill domestic and foreign consumer regulated area, there were a number of percent had corn and 1 percent had confidence in the integrity of U.S. other parties, such as governmental and sorghum as the previous crop. wheat. The 1995–96 Karnal bunt quasi-governmental entities and Of the total 598 wheat farms in the program provided pre-harvest sampling industry organizations, that were also counties of the RA, 577 (or 96.5 percent) of all wheat fields; compensation for affected by the quarantine. For example, were growing wheat on irrigated fields. losses as a result of Agency actions; and farm organizations that represented Of the 598 wheat producers in the RA, remuneration to offset part of the producer interests were impacted by the 86 percent of producers harvested 499 additional costs in handling and treating reduced activity due to a change in farm acres or less of wheat. These 514 wheat wheat produced in the regulated area receipts. Local governments may also producers are assumed to be classified (through a millfeed cost offset and a have experienced a change in the in the SBA business classification as cost-share facility clean-up program business activity level, and thus tax 6 Source: 1992 Census of Agriculture. with grain handlers). Without Federal receipts, due to lower farmer spending. 7 Source: Economic Research Service, intervention, it is conceivable that farm Seed certification boards are expected to Characteristics and Production Costs of U.S. Wheat income of wheat producers both within see lower levels of seed certification as Farms, 1989, October, 1993. 24764 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations being ‘‘small entities.’’ It is assumed that specialize in acquiring seed production Arizona (22.3 million bushels), the other 84 growers are excluded from from the RA for export. Probably 3 to 4 California (98.04 million bushels), New this business classification. Wheat seed wheat dealers have over 80 percent Mexico (15.63 million bushels); and growers in the RA typically lack on-farm of the seed business in the RA. These Texas (840.2 million bushels). The SBA storage. firms were affected by quarantine defines a small grain elevator as one that Acreage Affected: By 1995/96, the actions, i.e. by the restriction on selling employs fewer than 100 employees. It is amount of planted wheat acreage in the or transferring seed out of the RA. Some estimated that nearly all of the elevators counties of interest had increased; the of these firms derive their income from in the regulated areas can be classified total number of growers in the RA was other enterprises such as vegetable as ‘‘small.’’ reported at 882 growers (455 in Arizona, production, rather than solely from Wheat Millers: The number of wheat 354 in California, 72 in New Mexico, wheat production and marketing. The millers for the four States are 9: and 1 in Texas), with wheat acreage number of firms that can be classified as California (12, with 1 processing totaling over 300,000 acres. ‘‘small’’ cannot be determined due to durum); Arizona (2, with 1 processing Approximately 145 growers were found the proprietary nature of sales records. durum); New Mexico (none); Texas (7, to have grown KB-positive wheat, and Seed Wheat Research Firms: Seed with 1 processing rye). There were 24 73 growers were issued plow-down wheat research firms take the risk and millers in and around the RA that orders. As a percentage of the total in have the expertise to develop new entered into limited permits with the four States of the RA, quarantine wheat varieties for future use. Many APHIS: 2 in Arizona, 1 in New Mexico, actions affected less than 3.3 percent of develop a relationship with a seed and 21 in California. Limited permit producers, 3.75 percent of wheat wheat dealer (who is then called an data indicate that millers in the acreage, but almost 8 percent of wheat ‘‘associate’’) to market the developers’ following States were also affected: production. specific varieties. Seed wheat research Minnesota, Oregon, Virginia, Missouri, Based on the SBA’s size definition, 86 firms use seed production in the RA as and Wisconsin. The size of these percent of producers (514 out of 598) are a basis for seed to be used in climates operations could not be estimated in assumed to be classified within the similar to the RA, e.g. the terms of their SBA classification as small business category. Thus, the major Mediterranean, or use production in the ‘‘small’’ or ‘‘large’’ businesses. However, part of any impact from Karnal bunt or RA as seed increases’’ to be used in these firms are likely to be classified as Karnal bunt regulations is assumed to Northern climates the following spring. a ‘‘small’’ business. fall on these individuals. There are approximately 5 to 9 Prepared Feed Manufacturers: The Harvesters: Harvesting equipment is commercial seed wheat research firms number of animal feed manufacturers expensive and specialized for many engaged in the RA, with perhaps 3 to 4 and/or millfeed processors in the agricultural crops. With a cost of over major firms conducting over 70 percent Riverside-San Bernardino primary $130,000 for a new combine and only a of research activity. Also, there are metropolitan statistical area (PMSA) is limited time of use, many wheat small firms in the RA that specialize in 15, and there are 11 in Arizona.10 Only growers in the regulated area depend on ‘‘seed increases’’ for varieties being 12 of these 26 establishments employed custom operators or ‘‘custom cutters’’ to developed by universities, private over 20 employees. The Riverside-San harvest their wheat crop. It is estimated companies, and foreign countries. The Bernardino PMSA data indicates that that about 390 combines were needed to number of firms that can be classified as the 15 establishments in that area harvest the 1995/96 wheat crop in the ‘‘small’’ according to SBA standards collectively employed a total of 600 regulated area, with much of it being cannot be determined due to the workers with a $20.5 million payroll (8 supplied by custom cutters. There were proprietary nature of sales records. establishments of the 15 employed more probably 20 to 30 firms engaged in this Custom Haulers: There are than 20 employees). Based on these business activity (not including approximately 130 to 140 individuals in data, it is estimated that these larger individuals who may have done some the RA that haul grain from fields firms employ about 62 workers on custom cutting of neighboring directly after harvest to storage and average and smaller firms had 15 properties). All firms are assumed to be load-out locations (referred to as grain workers per firm. Similar data for classified in the SBA classification as handlers). Some of these individuals Arizona show that 4 of the 11 being a ‘‘small business.’’ It is assumed also haul farm machinery from field to establishments in that State employed that only a few of these firms, namely field to prepare or harvest wheat and more than 20 employees. Given these those that were subjected to extensive other crops. The number of firms that scant data and SBA’s definition of a cleaning and disinfection if they had can be categorized as a ‘‘small business’’ ‘‘small business’’ in this group (SIC harvested many KB-positive fields, is unknown. 2048)—i.e., an establishment with fewer suffered losses to their machinery as a Grain Handlers: Grain handlers store than 500 employees—it is assumed that result of quarantine actions. Additional and unload nonpropagative wheat all firms fall in SBA’s ‘‘small’’ business losses occurred because some harvesters received from growers. Wheat is category. were not allowed to bring their received by trucks, pickups, and farm Feedlots: It is estimated that about 24 equipment to certain States. tractors pulling either grain buggies or feedlots in the RA (presumably feeding Wheat Seed Dealers: Wheat seed farm wagons. Ownership of the wheat is beef cattle) were affected by the dealers sell seed to growers to produce usually transferred from the grower to regulations. They were found in Arizona their crop for milling. They also the grain handler. It is estimated that (16), New Mexico (3), and California (5). SBA’s definition of a ‘‘small business’’ represent seed wheat research firms in there are 92 such assembly sites in the in this group (SIC 0211) is an that they sell wheat seed that is grown RA (50 in Arizona, 33 in California, 8 establishment with sales less than $1.5 to be used as seed for the next growing in New Mexico, and 1 in Texas). Off- season or for export. This wheat seed is farm storage capacities are only called private variety seed as it was 9 See footnote 8. available on a State-wide basis 8: developed by a private firm and has a 10 Source: U.S. Department of Commerce, Economics and Statistics Administration, Bureau, plant variety protection ‘‘patent’’ on that 8 Source: Grain and Milling Annual 1996. Off- Bureau of Census, various State reports on variety. There are approximately 25 to farm capacities may also reflect storage capacities California and Arizona, Manufacturers—Geographic 30 seed marketing firms in the RA; some of millers. Area Series, 1992. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Rules and Regulations 24765 million. No sales data on these firms outbreak such as Karnal bunt is As of April 4, 1997, $39 million in were available, so it is not possible to necessarily broad due to the lack of compensation funding has been made estimate the number of firms that do not information on the extent of the available to USDA through budget fall in SBA’s small business category. outbreak. These actions, enacted after apportionment. While not accounting Based on the above information, we production and marketing decisions for every loss or expense due to the have concluded that the majority of the were in place, undoubtedly had an disease or regulation, compensation for impact of Karnal bunt and subsequent adverse impact on growers and other loss in value lessened the adverse regulations falls on small businesses. It affected individuals; many were likely impact on wheat sector income within is conceivable, however, that without unable to recover unexpected costs. The the regulated areas. Federal intervention, individual States loss in market value due to the As more information is obtained on and importing countries would place quarantine is estimated at $44 million. disease prevalence, the number of their own, perhaps more severe, The majority of affected individuals and regulated acres are reduced and restrictions on wheat shipments from firms can be classified as ‘‘small’’ based restrictions for the 1996–97 crop season the regulated areas. The 1996 Karnal on criteria established by the Small are modified to be commensurate with bunt program provided pre-harvest Business Administration. the level of risk. The impact on those sampling of fields and other measures to In order to reduce the economic that are affected by regulation would ensure the quality of wheat from the impact of the quarantine on affected also likely be reduced; unlike in 1996, regulated areas. The use of limited wheat growers and other individuals, permits for uninfected wheat further the 1997 restrictions on wheat planting compensation was provided to mitigate are known in advance and can, facilitated the marketing flow of wheat, certain losses and expenses. The thereby enabling the wheat industry therefore, be taken into account when payment of compensation is in cropping decisions are made. within the regulated areas to be recognition of the fact that while a large Wheat acreage in the regulated areas preserved. portion of the benefits of regulation is projected to decline from 1995–96 accrue to others outside the regulated IX. Summary and Conclusions levels, largely due to decreased demand area, the regulatory burden falls The imposition of quarantine and for U.S. wheat exports. Less than 5 disproportionately on a small segment emergency actions against Karnal bunt percent of the acres in the regulated of the industry. Indeed, it could be was a necessary, short-run measure areas is prohibited from planting wheat. argued that without compensation, the taken to prevent the artificial spread of The impact on farm income due to this regulatory actions would not have been the disease to other wheat-producing prohibition is uncertain, as wheat is economically justified, as the costs of areas in the United States. The normally rotated with other crops. disease control that are borne now could establishment of Karnal bunt would Overall, the impact of the Karnal bunt have a greater weight than benefits that have had serious adverse impact on the restrictions on wheat production in the are received in the future. wheat export market, as over half of U.S. regulated areas is likely to be small, as wheat exports are to countries that Based upon our analysis, we have wheat can still be grown on ample, maintain restrictions against imports concluded that our quarantine measures available land that was not planted with from countries where Karnal bunt is were appropriate and justifiable when wheat in 1996. known to occur. In the absence of compared with the magnitude of the regulatory action, it is conceivable that benefits achieved. Even a 10-percent Done in Washington, DC, this 30th day of farm income both within and outside reduction in wheat exports would have April 1997. the regulated areas could have been a significant effect on wheat sector Donald W. Luchsinger, further jeopardized. income. It is estimated that a 10-percent Acting Administrator, Animal and Plant Given the regulatory objective of decrease in U.S. wheat exports would Health Inspection Service. disease eradication, the quarantine cause a decline in wheat sector income [FR Doc. 97–11718 Filed 5–1–97; 11:27 am] measures to control a new disease of over $500 million. BILLING CODE 3410±34±P federal register May 6,1997 Tuesday Year 1997;Notices Applications forNewAwardsFiscal Activities GrantsProgram;andInviting (Validation Competition);Federal to InstitutionsofHigherEducation Communities NationalProgramsÐGrants Safe andDrug-FreeSchools Education Department of Part IV 24767 24768 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

DEPARTMENT OF EDUCATION evaluated rigorously. Only recently have goals and objectives linked to the data been collected about the incidence identified needs; use prevention Safe and Drug-Free Schools and of violence and crime on college approaches that research or evaluation Communities National ProgramsÐ campuses. Little information is available has shown to be effective in preventing Grants to Institutions of Higher about the effectiveness of violence or reducing violent behavior or the Education (Validation Competition) prevention programs on college illegal use of alcohol and other drugs; campuses. AGENCY: Department of Education and use evaluation results as part of a The results of these validated projects continuous improvement process to ACTION: Notice of final priorities and may be used by the Secretary of correct approaches that are not working selection criteria for fiscal year 1997. Education to identify and disseminate to and strengthen approaches that are SUMMARY: The Secretary announces final IHEs successful programs that prevent working. priorities and selection criteria for fiscal violent behavior and illegal use of Applicants should show the ability to year (FY) 1997 under the Safe and Drug- alcohol and other drugs by college start their campus-community program Free Schools and Communities (SDFSC) students. Applicants should be prepared soon after receiving federal funding in National Programs Grants to Institutions to provide statistics and information on order to maximize the time available to of Higher Education (IHEs) Validation crimes occurring on campus, especially show impact within the grant period of Competition. The Secretary takes this liquor law violations, drug abuse two years. Projects supported through action to focus Federal financial violations, and weapons possession, as this competition should be designed to assistance on an identified national required under current law. demonstrate and document significant need. The priorities are intended to Under previously funded priorities reductions in alcohol and other drug use increase knowledge about effective under this program, Federal funds have and violence at colleges and universities programs by validating model strategies, supported the development and over the grant period. Because of the policies, and activities to prevent implementation of a wide range of need for a sound evaluation plan, violent behavior and the illegal use of prevention activities. The priorities applicants are advised to obtain outside alcohol and other drugs by college supported in this year’s competition expert consultation prior to submitting students. To achieve this goal, the will focus on the validation of two applications. Department will fund projects designed promising, research-based approaches For additional information or data to work in partnership with that have yet to be tested rigorously in about college drug prevention programs, neighborhood campus-communities to the campus-community. Research policies, strategies, and activities, correct students’ normative beliefs about shows that students who perceive a contact the Department of Education’s their peers’ illegal use of alcohol and permissive campus alcohol use Higher Education Center for Alcohol other drugs or limit access and environment tend to drink more heavily and Other Drug Prevention. The Center than they would otherwise based on availability of illegal alcohol and other is a national resource for training and their personal attitudes (Perkins, drugs in the campus-community. technical assistance to postsecondary Wechsler, Journal of Drug Issues, Vol. EFFECTIVE DATE: These priorities take institutions. The Center can be 26 No.4, pp. 961–974, 1996). Also, effect June 5, 1997. contacted at 1–800–676–1730 or considerable research at the community through its web site at www.edc.org/ FOR FURTHER INFORMATION CONTACT: Safe level shows that access to and hec/ and Drug-Free Schools Program, U.S. availability of alcohol strongly influence Department of Education, 600 the rate of alcohol problems within a Note: This notice of final priorities does Independence Ave., SW, Room 604 given population among both moderate not solicit applications. A notice inviting Portals, Washington, DC. 20202–6123. and heavy drinkers (Gruenewald, applications under this competition is Telephone: (202) 260–3954. Individuals Millar, and Roeper, Alcohol Health and published in a separate notice in this issue of the Federal Register. who use a telecommunication device for Research World, Vol. 20, No. 4, pp. 244– the deaf (TDD) may call the Federal 245, 1996). Research also shows that Applications for this competition Information Relay Service (FIRS) at 1– there is a correlation between heavy must be received at the address 800–877–8339 between 8 am and 8 pm, alcohol consumption and violence. specified in the notice inviting Eastern time, Monday through Friday. Binge drinkers were more likely than applications for this competition no SUPPLEMENTARY INFORMATION: Despite their non-binging counterparts to later than 4:30 p.m. on the deadline progress, enabled in part by a significant encounter actual physical violence, date in the notice inviting application. ongoing commitment of Federal experience forced sexual touching, and Applications received after that time financial resources to support programs endure unwanted sexual intercourse. will not be eligible for funding. designed to prevent college students’ (Presley, Meilman, Cashin, and Postmarked dates will not be accepted. illegal use of alcohol and other drugs, Leichliter, in press) In making awards under this program, recent national data reflect high rates of IHEs need to reassess the alcohol, the Secretary may take into use by college students, resulting in other drug, and violence prevention consideration the geographic negative consequences, including programs they are currently conducting distribution and diversity of activities violence on campus. Little research has and modify or replace programs that fail addressed by the projects, in addition to been conducted on prevention programs to show a measurable impact on the rank order of applications. in higher education, resulting in a lack reducing alcohol, other drug use, and Contingent upon the availability of of useful information to guide violence with programs that are funds, the Secretary may make prevention professionals in the design effective or promising. To promote additional awards in fiscal year 1998 and implementation of effective effective prevention programming, the from the rank-ordered list of unfunded programs on college campuses. While Department of Education encourages applicants from this competition. information about promising alcohol IHEs to: design programs based on an and other drug prevention programs and assessment of objective data (such as Absolute Priorities strategies is gradually becoming more needs assessments, student-use surveys, Under 34 CFR 75.105(c)(3) and the available, most programs still are assessments of students’ dispositions Safe and Drug-Free Schools and neither based on solid research nor toward drug use); develop measurable Communities Act of 1994, the Secretary Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24769 gives an absolute preference to in reducing student drug use and (B) The extent to which the design for applications that meet one or both of the violent behavior; implementing and evaluating the following priorities. The Secretary funds (c) use a campus-community coalition proposed project will result in under this competition only to plan and implement the project; and information to guide possible applications that meet one or both of (d) at the request of the Secretary, replication of project activities or these absolute priorities: Absolute coordinate with any report being strategies, including information about Priority #1—Correcting Misperceptions prepared under section 204(a)(4)(B) of the effectiveness of the approach or of Student Alcohol and Other Drug Use the Student Right-to-Know and Campus strategies employed by the project. (5 by Students Attending Institutions of Security Act on policies, procedures points) Higher Education and practices which have proven (C) The quality of the proposed Under this priority, applicants must effective in the reduction of campus demonstration design and procedures propose projects that develop, crime. for documenting project activities and implement, and validate approaches to Selection Criteria results. (5 points) prevent violent behavior and the illegal (D) The extent to which the design of use of alcohol and other drugs by (a) (1) The Secretary uses the the proposed project reflects up-to-date students attending institutions of higher following selection criteria to evaluate knowledge from research and effective education by correcting misperceptions applications for new grants under this practice. (5 points) of student alcohol and drug use norms. competition. (4) Quality of the management plan. Projects must: (2) The maximum score for all of (20 points) (a) Correct the misperceptions among these criteria is 100 points. (i) The Secretary considers the quality the campus-community population (3) The maximum score for each of the management plan for the (including college students, faculty, criterion or factor under that criterion is proposed project. administrators, and parents) about indicated in parentheses. (ii) In determining the quality of the levels of student campus alcohol and (b) The criteria.— management plan for the proposed (1) Need for project. (10 points) drug use, student alcohol and drug use project, the Secretary considers the (i) The Secretary considers the need norms, and the consequences of student following factors: for the proposed project. alcohol and drug use; (ii) In determining the need for the (A) The adequacy of the management (b) implement a rigorous evaluation of proposed project, the Secretary plan to achieve the objectives of the the project, using outcome-based considers the magnitude or severity of proposed project on time and within performance indicators, that documents the problem to be addressed by the budget, including clearly defined strategies used and measures the proposed project. responsibilities, timeliness, and effectiveness of the program or strategy (2) Significance. (25 points) milestones for accomplishing project in reducing student drug use and (i) The Secretary considers the tasks. (4 points) violent behavior; significance of the proposed project. (B) The adequacy of procedures for (c) use a campus-community coalition (ii) In determining the significance of ensuring feedback and continuous to plan and implement the project; and the proposed project, the Secretary improvement in the operation of the (d) at the request of the Secretary, considers the following factors: proposed project. (8 points) coordinate with any report being (A) The potential contribution of the (C) How the applicant will ensure that prepared under section 204(a)(4)(B) of proposed project to the development a diversity of perspectives are brought to the Student Right-to-Know and Campus and advancement of theory, knowledge, bear in the operation of the proposed Security Act on policies, procedures and practices in the field of study. (5 project, including those of students, and practices which have proven points) faculty, parents, the business effective in the reduction of campus (B) The extent to which the proposed community, a variety of disciplinary crime. project involves the development or and professional fields, recipients or # demonstration of promising new beneficiaries of services, or others, as Absolute Priority 2—Limiting Student appropriate. (8 points) Access to and Availability of Alcohol strategies that build on, or are alternatives to, existing strategies. (10 (5) Quality of the project evaluation. and Other Drugs at Institutions of (25 points) Higher Education points) (C) The likelihood that the proposed (i) The Secretary considers the quality Under this priority, applicants must project will result in system change or of the evaluation to be conducted of the propose projects that develop, improvement. (5 points) proposed project. implement, and validate approaches to (D) The potential replicability of the (ii) In determining the quality of the prevent violent behavior and the illegal proposed project or strategies, evaluation, the Secretary considers the use of alcohol and other drugs by including, as appropriate, the potential following factors: students attending institutions of higher for implementation in a variety of (A) The extent to which the methods education by limiting student access to settings. (5 points) of evaluation are thorough, feasible, and and availability of alcohol and other (3) Quality of the project design. (20 appropriate to the goals, objectives and drugs. Projects must: points) outcomes of the proposed project. (5 (a) Establish or expand, and enforce (i) The Secretary considers the quality points) policies that limit student access to, and of the design of the proposed project. (B) The extent to which the methods availability of, alcohol and other drugs (ii) In determining the quality of the of evaluation include the use of in the campus-community for college design of the proposed project, the objective performance measures that are students; Secretary considers the following clearly related to the intended outcomes (b) implement a rigorous evaluation of factors: of the project and will produce the project, using outcome-based (A) The extent to which the goals, quantitative and qualitative data to the performance indicators, that documents objectives, and outcomes to be achieved extent possible. (10 points) strategies used and measures the by the proposed project are clearly (C) The extent to which the evaluation effectiveness of the program or strategy specified and measurable. (5 points) will provide guidance about effective 24770 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices strategies suitable for replication or technological collection techniques or (Catalog of Federal Domestic Assistance testing in other settings. (10 points) other forms of information technology; Number 84.184H Safe and Drug-Free Schools e.g., permitting electronic submission of and Communities Act National Programs— Paperwork Reduction Act of 1995 responses. Grants to Institutions of Higher Education) The selection criteria for this program OMB is required to make a decision Gerald N. Tirozzi, contain information collection concerning the information collection Assistant Secretary for Elementary and requirements. As required by the requirements between 30 and 60 days Secondary Education. Paperwork Reduction Act of 1995 (44 after publication in the Federal [FR Doc. 97–11769 Filed 5–5–97; 8:45 am] USC 3504(h)), the Department of Register. Therefore, a comment to OMB BILLING CODE 4000±01±P Education will submit a copy of this is best assured of having its full effect notice to the Office of Management and if OMB receives it within 30 days of Budget (OMB) for its review. publication of this notice. DEPARTMENT OF EDUCATION Collection of Information: Safe and Drug-Free Schools and Communities Intergovernmental Review Safe and Drug-Free Schools and National Programs—Grants to This program is subject to the Communities National ProgramsÐ Institutions of Higher Education requirements of Executive Order 12372 Federal Activities Grants Program Validation Competition. and the regulations in 34 CFR part 79. AGENCY: Department of Education. These selection criteria will affect the The objective of the Executive Order is ACTION: Notice of final priorities and following types of entities eligible to to foster an intergovernmental selection criteria for fiscal year 1997. apply for a grant under this program: partnership and a strengthened institutions of higher education, and federalism by relying on processes SUMMARY: The Secretary announces final consortia thereof. The Department developed by State and local priorities and selection criteria for fiscal needs, and will use, the information governments for coordination and year 1997 under the Safe and Drug-Free related to the selection criteria for this review of proposed Federal financial Schools and Communities National program to enable the Secretary to assistance. Programs Federal Activities Grants determine which applicants would most In accordance with the order, this Program. The Secretary takes this action likely develop, implement, and validate document is intended to provide early to focus Federal financial assistance on successful model projects for notification of the Department’s specific identified needs to improve programs to demonstration throughout the nation. plans and actions for this program. prevent drug use and violence among Annual public reporting and record- youth. Waiver of Proposed Rulemaking keeping burden for this collection of EFFECTIVE DATE: These priorities and information is estimated to average 32 In accordance with the selection criteria take effect June 5, hours per response for 100 respondents, Administrative Procedure Act (5 U.S.C. 1997. including the time for reviewing 553), it is the practice of the Department DEADLINE FOR RECEIPT OF APPLICATIONS: instructions, searching existing data to offer interested parties the Applications for these competitions sources, gathering and maintaining the opportunity to comment on proposed must be received at the address data needed, and completing and rules. Ordinarily, this practice would specified in the application package for reviewing the collection of information. have applied to the rules in this notice. these competitions no later than 4:30 Organizations and individuals However, the Secretary waives p.m. on the deadline date in the notice desiring to submit comments on the rulemaking under section 553(b)(B) of inviting applications. Applications information collection requirements the Administrative Procedure Act. This received after that time will not be should direct them to the Office of section provides that rulemaking is not eligible for funding. Postmarked dates Information and Regulatory Affairs, required when the agency for good will not be accepted. OMB, Room 10235, New Executive cause finds that notice and public FOR FURTHER INFORMATION CONTACT: For Office Building, Washington, D.C. procedure are impracticable, further information about the two 20503; Attention: Desk Officer for U.S. unnecessary, or contrary to the public priorities under the Safe and Drug-Free Department of Education. interest. The Secretary believes that, in Schools and Communities National The Department considers comments order to make timely grant awards using by the public on this proposed Programs Federal Activities Grants Fiscal Year (FY) 1997 funds, public Program, contact the U.S. Department of collection of information in— comment on those rules is • Evaluating whether the proposed Education, Safe and Drug-Free Schools impracticable. Congress did not provide collection of information is necessary Program, 600 Independence Ave., SW, FY 1997 funds for SDFSC National for the proper performance of the Washington, DC 20202–6123. Program until March 1997. The functions of the Department, including Telephone: (202) 260–3954. FAX (202) Secretary must make new awards no whether the information will have 260–7767. Internet: http// later than September 30, 1997, and l practical utility; www.Bryan [email protected]. recipients should be able to implement • Evaluating the accuracy of the Individuals who use a projects as early as possible in the 1997– Department’s estimate of the burden of telecommunications device for the deaf 98 school year. the proposed collection of information, (TDD) may call the Federal Information including the validity of the Therefore, in order to give applicants Relay Service at 1–800–877–8339 (in the methodology and assumptions used; enough time to prepare their Washington, DC 202 area code, • Enhancing the quality, usefulness, applications and the Department telephone 708–9300) between 8 am and and clarity of the information to be sufficient time to conduct the lengthy 8 pm, Eastern time, Monday through collected; and review process in this notice, it is now Friday. • Minimizing the burden of the impracticable to receive public SUPPLEMENTARY INFORMATION: This collection of information on those who comments and still allow FY 1997 notice contains two final priorities and are to respond, including through the awards to be made by September 30, related selection criteria under the Safe use of appropriate automated, 1997. and Drug-Free Schools and electronic, mechanical, or other Program Authority: 20 U.S.C. 7132. Communities National Programs Federal Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24771

Activities Grant Program. The purpose and clearly demonstrates the program’s (A) The extent to which the proposed of the program is to prevent the illegal effectiveness as of the date of this project involves the development or use of drugs and violence among, and notice. demonstration of promising new promote safety and discipline for, For purposes of this competition, strategies that build on, or are students at all educational levels from fidelity of implementation means alternatives to, existing strategies. (15 preschool through the postsecondary implementing the program in the same points) level. manner as the program was (B) The potential replicability of the Note: Contingent upon the availability of implemented when it was proven to be proposed project or strategies, funds, the Secretary may make additional effective in preventing or reducing drug including, as appropriate, the potential awards in fiscal year 1998 from the rank- use, or violent behavior, or both, for implementation in a variety of ordered list of unfunded applicants from inclusive of all components of the settings. (10 points) these competitions. In making awards under program or strategy that the developer (C) The importance or magnitude of these grant competitions, the Secretary may and evaluator consider to be key, the results or outcomes likely to be take into consideration the geographic unique, and necessary features. These attained by the proposed project. (5 distribution and diversity of activities components may include, but need not points) addressed by the projects, in addition to the be limited to, the use of specified (2) Quality of the project design. (20 rank order of applications. materials, teaching techniques, and points) Absolute Priorities approaches; involvement of specified (i) The Secretary considers the quality Under 34 CFR 75.105(c)(3) and the persons or stakeholders with particular of the design of the proposed project. (ii) In determining the quality of the Safe and Drug-Free Schools and functions or roles; and performing design of the proposed project, the Communities Act of 1994, the Secretary specified activities according to a Secretary considers the following gives an absolute preference to specified sequence or schedule. factors: applications that meet one of the Additional Information (A) The extent to which the goals, following priorities. The Secretary will objectives, and outcomes to be achieved fund under these competitions only This priority supports the by the proposed project are clearly those applications that meet one of implementation of drug and violence specified and measurable. (3 points) these absolute priorities: prevention programs and strategies that are data-driven—that is, are based on (B) The extent to which the design for Absolute Priority 1 and Selection analysis of objective data about implementing and evaluating the Criteria—Replication of Effective problems that need to be addressed, proposed project will result in Programs or Strategies to Prevent Youth have measurable goals and objectives, information to guide possible Drug Use, Violent Behavior, or Both and use prevention approaches that replication of project activities or (CFDA # 84.184F) research has demonstrated to be strategies, including information about the effectiveness of the approach or Absolute Priority 1 effective in preventing or reducing drug use, violent behavior, or both. strategies employed by the project. (7 Under this priority, applicants must Examples of some drug prevention points) propose projects that— programs that have been proven (C) The extent to which the design of (1) Will replicate, with fidelity, a effective may be found in Preventing the proposed project reflects up-to-date program or strategy that has Drug Use Among Children and knowledge from research and effective demonstrated sustained reductions in Adolescents published by the National practice. (10 points) youth drug use, violent behavior, or Institute on Drug Abuse. The document (3) Adequacy of resources. (20 points) both, over at least a two-year period; is available from the National (i) The Secretary considers the (2) Are clearly responsive to Clearinghouse for Alcohol and Drug adequacy of resources for the proposed identified needs of the student Information (NCADI), PO Box 2345, project. population that will be served; and Rockville, MD 20874–2345; 1–800–729– (ii) In determining the adequacy of (3) Will include a rigorous evaluation 6686. Examples of some approaches to resources for the proposed project, the of the project that focuses on violence prevention are contained in Secretary considers the following measurement and analysis of behavior abstracts of programs evaluated by the factors: change among students as a direct result Centers for Disease Control. The (A) The extent to which the costs are of the program. abstracts are available from the National reasonable in relation to the objectives, Programs or strategies eligible for Clearinghouse for Alcohol and Drug design, and potential significance of the replication under this competition are Information. proposed project. (5 points) those that (1) Have been evaluated and (B) The extent to which the costs are found effective in research studies Selection Criteria reasonable in relation to the number of funded by the National Institute on Drug The Secretary uses the following persons to be served and to the Abuse or another Federal agency, or (2) selection criteria to evaluate anticipated results and benefits. (5 have findings demonstrating applications for new grants under this points) effectiveness published in a peer- competition. (C) The potential for the incorporation reviewed journal of national The maximum score for all of these of project purposes, activities, or distribution. Locally developed criteria is 100 points. benefits into the ongoing program of the programs are also eligible for replication The maximum score for each criterion agency or organization at the end of if they have been tested within a single or factor under that criterion is Federal funding. (10 points) population (cohort) of students over at indicated in parentheses. (4) Quality of the management plan. least a two-year period and have (1) Significance. (30 points) (5 points) demonstrated measurable reductions in (i) The Secretary considers the (i) The Secretary considers the quality student drug use, violent behavior, or significance of the proposed project. of the management plan for the both. Applicants proposing a locally (ii) In determining the significance of proposed project. developed project must provide the proposed project, the Secretary (ii) In determining the quality of the evaluation data that is well documented considers the following factors: management plan for the proposed 24772 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices project, the Secretary considers the been coordinated with and will not (B) The likelihood that the proposed adequacy of the management plan to duplicate data collection efforts being project will result in system change or achieve the objectives of the proposed implemented by other State or local improvement. project on time and within budget, agencies. (C) The extent to which the proposed including clearly defined project is likely to build local capacity Additional Information responsibilities, timelines, and to provide, improve, or expand services milestones for accomplishing project This priority supports development that address the needs of the target tasks. (5 points) and improvement of the capacity of population. (5) Quality of the project evaluation. State and local educational agencies to (3) Quality of the project design. (25 (25 points) collect and use objective data to make points) (i) The Secretary considers the quality informed decisions about drug and (i) The Secretary considers the quality of the evaluation to be conducted of the violence prevention programming in of the design of the proposed project. proposed project. schools. The Secretary expects that (ii) In determining the quality of the (ii) In determining the quality of the projects funded under this priority will design of the proposed project, the evaluation, the Secretary considers the emphasize the collection and use of Secretary considers the following following factors: outcomes measures, such as reduced factors: (A) The extent to which the methods rates of drug use and violence, rather (A) The extent to which the goals, of evaluation are thorough, feasible, and than relying solely on process measures objectives, and outcomes to be achieved appropriate to the goals, objectives and that simply describe the implementation by the proposed project are clearly outcomes of the proposed project. (5 of a program or participants’ levels of specified and measurable. points) satisfaction with the activity. State and (B) The extent to which the proposed (B) The extent to which the methods local educational agencies are expected project is designed to build capacity and of evaluation include the use of to use the data to develop baseline yield results that will extend beyond the objective performance measures that are information about the nature and extent period of Federal financial assistance. clearly related to the intended outcomes of the drug and violence problems in (C) The extent to which the proposed of the project and will produce their schools; to use SDFSCA State project will be coordinated with similar quantitative and qualitative data to the Grant and other funds to design and or related efforts, and with other extent possible. (10 points) implement appropriate programs and appropriate community, State and (C) The extent to which the evaluation activities to address those problems; and Federal resources. will provide guidance about effective to assess the success of those programs (4) Adequacy of resources. (15 points) strategies suitable for replication or and activities following (i) The Secretary considers the testing in other settings. (10 points) implementation. adequacy of resources for the proposed Absolute Priority 2 and Selection project. Criteria—State and Local Educational Selection Criteria (ii) In determining the adequacy of Agency Drug and Violence Prevention The Secretary uses the following resources for the proposed project, the Data Collection (CFDA #84.184Γ) criteria to evaluate proposals submitted Secretary considers the following under this priority. factors: Absolute Priority 2 The maximum score for all of the (A) The extent to which the costs are Under this priority, applicants must criteria in this section is 100 points. reasonable in relation to the objectives, design, and potential significance of the propose projects that— The maximum score for each criterion proposed project. (1) Develop, improve, expand, or is indicated in parentheses with the (B) The potential for the incorporation enhance the collection of data related to criterion. of project purposes, activities, or youth drug use and violence; and (1) Need for project. (15 points) (2) Develop and implement processes benefits into the ongoing program of the (i) The Secretary considers the need that ensure that high-quality data is agency or organization at the end of for the proposed project. used to assess needs, select Federal funding. (ii) In determining the need for the interventions, and assess success of (5) Quality of the management plan. proposed project, the Secretary drug and violence prevention activities (10 points) considers the following factors: funded under the SDFSCA State Grants (i) The Secretary considers the quality (A) The magnitude of the need for the Program. Projects may be state-wide in of the management plan for the services to be provided or the activities scope or limited to an individual local proposed project. to be carried out by the proposed educational agency with a student (ii) In determining the quality of the project. enrollment that exceeds 30,000. management plan for the proposed To be considered for funding under (B) The extent to which specific gaps project, the Secretary considers the this competition, a project must or weaknesses in services, adequacy of the management plan to include— infrastructure, or opportunities have achieve the objectives of the proposed (1) Concrete plans, with timelines, been identified and will be addressed by project on time and within budget, that detail how the results of new or the proposed project, including the including clearly defined improved data collection efforts will be nature and magnitude of those gaps or responsibilities, timelines, and incorporated into State and local weaknesses. milestones for accomplishing project educational agency efforts to inform (2) Significance. (25 points) tasks. policy, assess needs, select (i) The Secretary considers the (6) Quality of the project evaluation. interventions, and assess success of significance of the proposed project. (10 points) drug and violence prevention efforts; (ii) In determining the significance of (i) The Secretary considers the quality (2) Outcomes-based performance the proposed project, the Secretary of the evaluation to be conducted of the indicators that will be used to judge the considers the following factors: proposed project. success of the project; and (A) The significance of the problem or (ii) In determining the quality of the (3) A description of how efforts issue to be addressed by the proposed evaluation, the Secretary considers the proposed as part of the project have project. extent to which the methods of Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices 24773 evaluation will provide performance • Enhancing the quality, usefulness, partnership and a strengthened feedback and permit periodic and clarity of the information to be federalism by relying on processes assessment of progress toward achieving collected; and developed by State and local intended outcomes. • Minimizing the burden of the governments for coordination and collection of information on those who review of proposed Federal financial Paperwork Reduction Act of 1995 are to respond, including through the assistance. The selection criteria for this program use of appropriate automated, In accordance with the order, this contain information collection electronic, mechanical, or other document is intended to provide early requirements. As required by the technological collection techniques or notification of the Department’s specific Paperwork Reduction Act of 1995 (44 other forms of information technology; plans and actions for this program. U.S.C. 3504(h)), the Department of e.g., permitting electronic submission of Education will submit a copy of this responses. Note: This notice of final priorities and notice to the Office of Management and OMB is required to make a decision selection criteria does not solicit applications. A notice inviting applications Budget (OMB) for its review. concerning the information collection under these competitions is published Collection of Information: Safe and requirements between 30 and 60 days elsewhere in this issue of the Federal Drug-Free Schools and Communities after publication of this document in the Register. National Programs—Federal Activities Federal Register. Therefore, a comment Program Authority: 20 U.S.C. 7131. Grants Program to OMB is best assured of having its full These selection criteria will affect the (Catalog of Federal Domestic Assistance effect if OMB receives it within 30 days Number 84.184F and 84.184G Safe and Drug- following types of entities eligible to of publication of this notice. Free Schools and Communities Act National apply for a grant under this program: Waiver of Proposed Rulemaking Programs—Federal Activities Grants State and local educational agencies, Program) institutions or higher education, other In accordance with the Dated: May 1, 1997. nonprofit agencies, organizations, and Administrative Procedure Act (5 U.S.C. Gerald N. Tirozzi, institutions; and any combinations of 553), it is the practice of the Department these types of entities. The Department to offer interested parties the Assistant Secretary for Elementary and Secondary Education. needs, and will use, the information opportunity to comment on proposed related to the selection criteria for this rules. Ordinarily, this practice would [FR Doc. 97–11771 Filed 5–5–97; 8:45 am] program to enable the Secretary to have applied to the rules in this notice. BILLING CODE 4000±01±P determine which applicants would most However, the Secretary waives rulemaking under section 553(b)(B) of likely develop, implement, and validate DEPARTMENT OF EDUCATION successful model projects for the Administrative Procedure Act. This demonstration throughout the Nation. section provides that rulemaking is not Annual public reporting and record- required when the agency for good [CFDA Nos.: 84.184F, 84.184G, 84.184H] keeping burden for this collection of cause finds that notice and public Office of Elementary and Secondary information is estimated to average 20 procedure are impracticable, EducationÐSafe and Drug-Free hours per response for 300 respondents, unnecessary, or contrary to the public Schools and Communities National including the time for reviewing interest. The Secretary believes that, in Programs; Combined Notice Inviting instructions, searching existing data order to make timely grant awards using Applications for New Awards for Fiscal sources, gathering and maintaining the Fiscal Year (FY) 1997 funds, public Year 1997 data needed, and completing and comment on these rules is reviewing the collection of information. impracticable. Congress did not provide Summary: The Secretary invites Organizations and individuals authority to use FY 1997 funds for Safe applications for new awards for fiscal desiring to submit comments on the and Drug-Free Schools and year (FY) 1997 under three direct grant information collection requirements Communities National Programs until competitions supported by Safe and should direct them to the Office of March 1997. The Secretary must make Drug-Free Schools and Communities Information and Regulatory Affairs, new awards no later than September 30, Act (SDFSCA) National Programs. 1997, and recipients should be able to OMB, Room 10235, New Executive Purpose of Program: The National implement projects as early as possible Office Building, Washington, D.C. Programs portion of the SDFSCA in the 1997–98 school year. Therefore, 20503; Attention: Desk Officer for U.S. supports the development of innovative in order to give applicants enough time Department of Education. programs that (1) demonstrate effective The Department considers comments to prepare their applications and the new methods of ensuring safe and drug- by the public on this proposed Department sufficient time to conduct free schools, colleges, and communities, collection of information in— the lengthy review process in this and (2) provide models or proven • Evaluating whether the proposed notice, it is now impracticable to receive effective practices that will assist collection of information is necessary public comments and still allow FY schools and communities around the for the proper performance of the 1997 awards to be made by September Nation to improve their programs functions of the Department, including 30, 1997. whether the information will have funded under the State Grants portion of practical utility; Intergovernmental Review the SDFSCA. • Evaluating the accuracy of the This program is subject to the Applications Available: June 13, 1997. Department’s estimate of the burden of requirements of Executive Order 12372 Deadline for Receipt of Applications: the proposed collection of information, and the regulations in 34 CFR Part 79. August 1, 1997. including the validity of the The objective of the Executive Order is Deadline for Intergovernmental methodology and assumptions used; to foster an intergovernmental Review: September 1, 1997.

Fiscal Information: 24774 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Notices

Estimated av- Estimated Estimated CFDA number and name Estimated range of erage size of number of available Project Period awards awards awards funds

84.184F Replication of Effective Programs $250,000 to $450,000 $350,000 6 $2,000,000 Up to 36 months or Strategies to Prevent Youth Drug Use, Violent Behavior, or Both. 84.184G State and Local Educational 400,000 to 600,000 ... 500,000 10 5,000,000 Up to 24 months Agency Drug and Violence Prevention Data Collection. 84.184H Drug and Violence Prevention 150,000 to 300,000 ... 265,000 5 1,325,000 28 months Programs in Higher Education: Validation Competition. Note: Range of awards, average size of awards, number of awards and available funding in this notice are estimates only. The Department is not bound by any estimates in this notice. Funding estimates for competitions 84.184F and 84.184G represent the first year of the project period only. Funding for the second and third years of projects under competitions 84.184F and 84.184G is subject both to the availability of future years' funds and the approval of continuation (see 34 CFR 75.253). Estimates for competition 84.184H represent funding for both the first and second years of the project period. Projects funded under competition 84.184H will not be subject to approval of continuation or to the availability of future years' funds.

Applicable Regulations Absolute Priority #2—State and Local Program, 600 Independence Avenue, Educational Agency Drug and Violence SW, Suite 604 Portals, Washington, DC (a) The Education Department General Prevention Data Collection (CFDA 20202–6123. Telephone: (202) 260– Administrative Regulations (EDGAR) in #84.184G) 3954. By facsimile (202) 260–7767. 34 CFR parts 74, 75, 77, 79, 80, 81, 82, Eligible Applicants Internet: http:// 85, 86 [email protected]. State and local educational agencies, (Note: The regulations in 34 CFR part 86 Individuals who use a institutions of higher education, other apply to institutions of higher education telecommunications device for the deaf nonprofit agencies, organizations, and only); (b) 34 CFR parts 98 and 99; and (c) the (TDD) may call the Federal Information institutions; and any combination of notices of final priorities and selection Relay Service at 1–800–877–8339 these types of entities. criteria, as published elsewhere in this issue between 8 a.m. and 8 p.m., Eastern time, of the Federal Register apply to these Program Authority: 20 U.S.C. 7131. Monday through Friday. competitions. Drug and Violence Prevention Information about the Department’s Federal Activities Grants Program Programs in Higher Education: funding opportunities, including copies Competitions (CFDA #84.184F and Validation Competition (CFDA of application notices for discretionary # #84.184G) 84.184H) grant competitions, can be viewed on # the Department’s electronic bulletin Absolute Priority #1—Replication of Absolute Priority 1—Correcting Misperceptions of Student Alcohol and board (ED Board), telephone (202) 260– Effective Programs or Strategies to Other Drug Use by Students Attending 9950; on the Internet Gopher Service (at Prevent Youth Drug Use, Violent gopher://gcs.ed.gov); or on the World # Institutions of Higher Education Behavior, or Both (CFDA 84.184F) Wide Web (at http://gcs.ed.gov). Absolute Priority #2—Limiting Student Eligible Applicants However, the official application notice Access to and Availability of Alcohol for a discretionary grant competition is and Other Drugs at Institutions of State and local educational agencies, the notice published in the Federal Higher Education institutions of higher education, other Register. nonprofit agencies, organizations, and Eligible Applicants Dated: May 1, 1997. institutions; and any combination of Institutions of higher education, or Gerald N. Tirozzi, these types of entities. consortia thereof. Assistant Secretary for Elementary and Program Authority: 20 U.S.C. 7131. Program Authority: 20 U.S.C. 7132. Secondary Education. For Applications or Information [FR Doc. 97–11770 Filed 5–5–97; 8:45 am] Contact: Safe and Drug-Free Schools BILLING CODE 4000±01±P federal register May 6,1997 Tuesday Rule Produced byForeignRefiners;Proposed Baseline RequirementsforGasoline Regulation onFuelsandFuelAdditives; 40 CFRPart80 Protection Agency Environmental Part V 24775 24776 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION ADDRESSES: To request a hearing or to the user will be required to answer some AGENCY find out if and where a hearing is being basic informational questions for held, please call Karen Smith at (202) registration purposes. After completing 40 CFR Part 80 233–9674. Send comments to Public the registration process, proceed Docket A–97–26 at the address below. It through the following series of menus: [FRL±5821±5] is also requested that two duplicate (T) GATEWAY TO TTN TECHNICAL copies of comments be sent to the AREAS (Bulletin Boards) RIN 2060±AH48 person listed in the FOR FURTHER (M) OMS INFORMATION CONTACT section of this (K) Rulemaking and Reporting Regulation of Fuels and Fuel document. Materials relevant to this (3) Fuels Additives: Baseline Requirements for NPRM are contained in Public Dockets (9) Reformulated gasoline Gasoline Produced by Foreign A–91–02 and A–92–12, A–94–25 and A list of ZIP files will be shown, all Refiners A–96–33 located at Room M–1500, of which are related to the reformulated AGENCY: Environmental Protection Waterside Mall (ground floor), U.S. gasoline rulemaking process. The Agency. Environmental Protection Agency, 401 individual foreign refinery baseline M Street S.W., Washington, DC 20460. proposed rule is identified by the title: ACTION: Notice of proposed rulemaking. The docket may be inspected from 8 ‘‘FORBASE.ZIP.’’ To download this file, SUMMARY: This proposed rule would a.m. until 5:30 p.m. Monday through type the instructions below and transfer revise the requirements for imported Friday. A reasonable fee may be charged according to the appropriate software on gasoline. The Agency is proposing that by EPA for copying docket materials. your computer: ownload, a foreign refiner could choose to FOR FURTHER INFORMATION CONTACT:

rotocol, xamine, ew, ist, petition EPA to establish an individual Karen Smith, Fuels and Energy or elp Selection or to exit: D baseline reflecting the quality and Division, U.S. EPA (6406J), 401 M FORBASE.ZIP quantity of gasoline produced at a Street, SW., Washington, DC 20460, You will be given a list of transfer foreign refinery in 1990 that was Telephone: (202) 233–9674. protocols from which you must choose shipped to the United States. The SUPPLEMENTARY INFORMATION: Regulated one that matches with the terminal foreign refiner would be required to entities. Entities potentially regulated by software on your own computer. Then meet the same requirements relating to this action are those foreign refiners and go into your own software and tell it to the establishment and use of individual importers which produce, import or receive the file using the same protocol. refinery baselines as are met by distribute gasoline for sale in the United Programs and instructions for de- domestic refiners. Additional States. Regulated categories and entities archiving compressed files can be found requirements are also being proposed to include: via ystems Utilities from the top address issues that are unique to menu, under rchivers/de-archivers. Examples of regulated enti- refiners and refineries located outside Category I. Background the United States, related to tracking the ties A. Current Requirements for Imported movement of gasoline from the refinery Industry ...... Foreign Refiners, Importers. to the United States border, monitoring Gasoline compliance with the requirements that This table is not intended to be On December 15, 1993, EPA issued apply to parties outside the United exhaustive, but rather provides a guide the final regulations that establish States, and imposition of appropriate for readers regarding entities potentially requirements for reformulated gasoline sanctions for violations. EPA is also regulated by this action. This table lists (RFG) and conventional gasoline (CG) proposing that it would monitor the the types of entities that EPA is now (together the Gasoline Rule), as quality of imported gasoline, and if it aware could potentially be regulated by prescribed by section 211(k) of the exceeded a specified benchmark, EPA this action. Other types of entities not Clean Air Act (the Act). See 59 FR 7716 would apply appropriate remedial listed in the table could also be (February 16, 1994). Under the Gasoline action. EPA is proposing that the regulated. To determine whether your Rule, compliance by refiners and baseline for gasoline imported from company or facility may potentially be importers with the CG requirements and refiners without an individual baseline regulated by this action, you should certain RFG requirements is measured would be adjusted to remedy the carefully examine the applicability against baselines that are intended to exceedance. criteria of Part 80, Subpart D, of title 40 reflect a refinery or importer’s 1990 EPA believes the proposed of the Code of Federal Regulations. If gasoline quality. Domestic refiners are rulemaking would be consistent with you have questions regarding the required to establish individual refinery the Agency’s commitment to fully applicability of this action to a baselines of the quality and quantity of protect public health and the particular entity, consult the person the gasoline produced at each refinery environment, and with the U.S. listed in the preceding FOR FURTHER in 1990. Domestic refinery baselines are commitment to ensure that the INFORMATION CONTACT section. calculated using, in hierarchical order regulation is consistent with the Copies of this proposed rule are based on the availability of data, 1990 obligations of the United States under available on the Internet at gasoline test data (Method 1), 1990 the World Trade Organization. www.epa.gov., and also on the OAQPS blendstock test data (Method 2), or post- DATES: The Agency will hold a public Technology Transfer Network Bulletin 1990 blendstock and/or gasoline test hearing on today’s proposal if one is Board System (TTNBBS). The TTNBBS data (Method 3). Under the Gasoline requested by May 13, 1997. If a public can be accessed with a dial-in phone Rule domestic blenders of gasoline and hearing is held, it will take place on line and a high-speed modem (PH# 919– importers of foreign-produced gasoline May 20, 1997. If a public hearing is held 541–5742). The parity of your modem are treated differently than domestic on today’s proposal, comments must be should be set to none, the data bits to refiners in that they are required to received by June 19, 1997. If a hearing 8, and the stop bits to 1. Either a 1200, establish baselines of the quality and is not held, comments must be received 2400, 9600, or 14400 baud modem quantity of gasoline they produced or by June 5, 1997. should be used. When first signing on, imported in 1990 using Method 1 data, Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24777 if available. However, almost all 15, 1993, however, it was not fully General Agreement on Tariffs and Trade blenders and importers lack the actual satisfied that the baseline-setting 1994 (GATT) and that the United States 1990 test data necessary to establish a scheme applicable to importers and had not shown that the GATT’s health, baseline using Method 1 data. As a foreign refiners was the optimum environment, or conservation result, blenders and importers are solution and continued to consider the exceptions applied. The WTO Appellate assigned the statutory baseline, a issue. Body, reviewing the U.S. arguments baseline established by EPA in 1993 to regarding the GATT conservation B. May 1994 Proposal approximate average gasoline quality in exception, recognized that the United the United States in 1990,1 with the In May 1994, EPA proposed to amend States had legitimate concerns, but consequence that almost all gasoline the Gasoline Rule to define criteria and concluded the rule did not satisfy all the produced at foreign refineries is procedures by which foreign refiners requirements for this exception. The evaluated using the statutory baseline.2 would be allowed to establish Appellate Body based this conclusion The baseline-setting scheme is specified individual refinery baselines that on its views that (1) the United States in 40 CFR 80.91 through 80.93, and is reflected the properties and volume of had not adequately explored options discussed in the Preamble to the final the gasoline that was produced at a available to deal with its concerns, in rule at 59 FR 7791 (February 16, 1994). foreign refinery in 1990 and exported particular international cooperative In preparing the Gasoline Rule, EPA for use within the United States. Under arrangements and (2) the United States focused on three major issues regarding this proposal, if a foreign refiner made had been concerned about the costs of the use of individual baselines for the requisite showing through a petition the various regulatory options to foreign refiners in the RFG and CG process EPA would establish an domestic refiners but not to foreign programs. EPA’s overriding individual foreign refinery baseline. refiners. The Appellate Body consideration was the ultimate U.S. importers of RFG produced at the recommended that the United States environmental consequences of the foreign refinery would have used the bring EPA’s regulations into conformity baseline-setting scheme. The three individual foreign refinery baseline with WTO obligations, leaving the issues that EPA focused on were: (1) values to demonstrate compliance with United States to determine how it The technical difficulty of using the limited number of RFG requirements would comply. baseline-setting Methods 2 and 3 to that are based on individual baselines. On June 19, 1996 after the accurately predict the quality of the Importers would not have been allowed Administration had consulted with subset of a foreign refinery’s gasoline to use individual foreign refinery Congress, the United States advised the that was exported to the U.S. in 1990; baselines for the CG requirements. WTO that the United States intended to (2) the ability of the Agency to Foreign refinery baselines would have meet U.S. obligations with respect to the adequately verify and enforce the use of been used only during the period 1995 results of the WTO dispute settlement individual foreign refinery baselines, through 1997 3 and only up to a volume proceedings, that the EPA had initiated including problems identifying the of gasoline each year that equaled the an open process to examine any and all refinery of origin of imported gasoline foreign refinery’s 1990 baseline volume. options for compliance, and that a key and enforcing gasoline content The proposal also included detailed criterion in evaluating options would be requirements against a foreign refiner; enforcement and verification fully protecting public health and the and (3) the risk of adverse procedures. environment. On June 28, 1996, EPA environmental effects from providing Subsequent to the May 1994 proposal, issued an invitation for public comment refiners or importers with options in Congress included limitations on EPA’s in the Federal Register (61 FR 33703), establishing baselines. appropriations related to the May 1994 seeking input and suggestions from all In developing the Gasoline Rule, EPA proposal. Based on this EPA did not interested parties. The comment period considered but did not go forward with conclude the rulemaking process. closed on September 26, 1996. allowing foreign refiners the option of C. The WTO Dispute Settlement D. Invitation for Public Comment petitioning EPA to establish individual Proceeding The invitation for public comment baselines using Methods 1, 2, and 3, or was an attempt to identify any and all defaulting to the statutory baseline. In 1995, the governments of Venezuela and Brazil initiated dispute options available to the Agency to meet EPA’s reasons for not adopting the U.S. international obligations in option at that time are discussed at 59 settlement proceedings before the World Trade Organization (WTO), challenging response to the WTO decision. EPA’s FR 7785–88 (February 16, 1994). When goal was to identify all feasible options EPA issued the final rule on December as discriminatory the different treatment applied by the Gasoline Rule to that are consistent with EPA’s commitment to fully protect public 1 The statutory baseline is calculated pursuant to imported gasoline and that produced by section 211(k)(10)(B) of the Act which specifies the U.S. refiners. Among other defenses, the health and the environment, and at the properties of summertime statutory baseline United States argued that the rule was same time are consistent with the gasoline, and instructs the EPA to establish the obligations of the United States under average properties of 1990 wintertime gasoline. The justified by the difficulties associated with implementing and enforcing the WTO. Gasoline Rule specifies the properties of 1990 Specifically, EPA invited comment wintertime gasoline in § 80.45(b)(2), and the individual baseline requirements with on: (1) How to accurately establish a combined summer and winter, or annual, statutory respect to foreign refiners and by the baseline gasoline properties in § 80.91(c)(5). reliable and verifiable individual environmental risk resulting from Importers are required to meet various baseline for a foreign refinery; (2) how providing foreign refiners the choice of conventional gasoline requirements by comparing EPA could adequately monitor the annual average quality of the gasoline they employing individual baselines. The compliance with and enforce any import against the statutory baseline. An individual initial dispute settlement panel baseline requirements; (3) how EPA batch of imported conventional gasoline is not reviewing the matter found the subject to any requirements, only the annual could effectively determine the refinery regulation discriminatory under the average of gasoline imported by the importer. of origin of imported gasoline, so as to Foreign refiners are not subject to the requirements of the current Gasoline Rule. 3 Individual refinery baselines are used to set determine the appropriate baseline to 2 Only one importer had the Method 1 data certain content requirements for RFG only through apply to the imported gasoline; (4) the necessary to establish an individual baseline. 1997. See 40 CFR 80.41. potential environmental impacts from 24778 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules implementing any suggested options; as domestic refiners, and commented obligations of the United States under and (5) a method by which EPA could that EPA’s gaming concern has no merit the WTO. Comments submitted to EPA better quantify or characterize potential particularly if all foreign refiners during and after the public comment environmental impacts of any options establish individual refinery baselines. period, and EPA’s prior investigations proposed. EPA also requested that A European refiner urged EPA to on this issue, identified two broad commenters provide information and allow foreign refineries to establish approaches for consideration involving analysis on the public health, individual baselines if they have the individual baselines for foreign environmental and economic impact necessary supporting data. refineries.4 Independent gasoline marketers in the associated with any option presented. One approach would require the use U.S. strongly urged quick compliance EPA received sixteen comments from of individual baselines (IB) by foreign with the WTO decision to increase various interested parties during the refiners. It would be mandatory, not competition in the gasoline market. comment period. optional. Under this approach, EPA State and local air management districts Many comments stated that EPA’s would apply basically the same asked EPA to commit to adopt measures action on the WTO dispute could requirements that apply to domestic that would protect public health and the impact the requirements only for CG refiners to foreign refiners. and not for RFG, because beginning in environment. January 1998, individual baselines cease EPA received additional comments This approach would require foreign having any relevance for RFG from representatives of independent refiners who market gasoline to the U.S. requirements, and it would be difficult refiners and representatives of to submit petitions to establish an to implement any rule change before independent importers and blenders individual refinery baseline, using the January 1998. following the close of the comment same methods and procedures currently Comments by domestic refiners and period. The independent refiners in the regulations. Once an IB was certain domestic refiner associations suggested that foreign refiners should be assigned for a refinery, that IB would be highlighted four major concerns: required to establish individual used in developing a volume weighted baselines and should not be allowed to compliance baseline. Under one (1) The necessity for adequate compliance, approach, the foreign refiner would audit, and enforcement requirements. The default to the statutory baseline. Foreign comments questioned EPA’s ability to refiners that do not establish an meet the exhaust toxics and NOx establish reliable and verifiable baselines, individual baseline should be excluded requirements for CG exported to the and to effectively monitor compliance by from the U.S. market. Foreign refiners U.S. by that foreign refinery, in the same foreign refiners with requirements and should be subject to the full range of manner as domestic refiners. Under an enforce violations that are documented. compliance and enforcement measures alternative approach the domestic (2) The technical difficulties associated necessary to secure compliance by importer would establish a volume with establishing a foreign refinery’s baseline foreign parties. Importers should no weighted compliance baseline reflecting that would reflect the quality only of the longer be allowed to use the statutory the quantity and IBs of gasoline subset of the refinery’s gasoline that was exported to the U.S. in 1990, because the baseline, but would have to use the imported from various foreign quality of this subset may differ from the individual baseline applicable to the refineries, and the domestic importer refinery’s overall average gasoline quality. gasoline they imported, to avoid gaming would meet the applicable CG (3) The possibility that the quality of by foreign refiners with clean individual requirements. In either case, the use of imported gasoline would decline if foreign baselines. a foreign refinery IB would be subject to refiners are given the option of establishing Independent importers and blenders a volume cap, as for domestic refiners. individual refinery baselines because foreign suggested that all market participants Foreign refiners would be subject to refiners whose 1990 gasoline was dirtier than that are similarly situated should be audits and inspections to verify the IB the statutory baseline would have an treated in the same manner, that it is incentive to seek an individual baseline, and to verify the quantity and quality of whereas refineries whose 1990 gasoline was important to preserve the ability of gasoline sent to the U.S. from that cleaner than the statutory baseline would not independent importers to reblend and foreign refinery. have such an incentive. This concern, reclassify imported CG as RFG, that the Significant additional requirements according to some commenters, should be use of individual baselines should not would also need to be imposed on avoided by requiring all foreign refiners to restrict the ability to import other gasoline imported under a foreign establish individual refinery baselines. This gasoline under the importer’s statutory refiner’s IB. For domestic refiners, scenario is often called ‘‘gaming’’. baselines, that liability for the use of an (4) The U.S. does not impose requirements almost all gasoline is produced for the individual baseline should fall on the U.S. market and the very small volume on gasoline produced at a foreign refinery foreign refiner not the importer, and that that is not exported to the U.S. Domestic that is exported can be readily tracked refiners must produce clean gasoline for RFG mandatory use of individual baselines and subtracted from the domestic areas without degrading the CG sold by foreign refiners should not be refiner’s compliance calculations. The elsewhere in the United States, essentially imposed as it would limit gasoline domestic refiner then bases its CG controlling all gasoline produced at a supplies coming to the United States. compliance calculations on the quality domestic refinery. Foreign refiners have the E. Requiring Individual Baselines for and quantity of finished gasoline when flexibility to produce clean gasoline for the it leaves the refinery. At that point it has U.S. market by disposing of dirty Foreign Refiners entered the U.S. gasoline market, and components in gasoline sold into markets In preparing this proposal EPA there is no need to track the gasoline or outside the U.S., according to the comments. attempted to identify any and all One domestic refiner proposed that a options available to the Agency to meet 4 The discussion in the preamble will focus on single national baseline replace U.S. international obligations in imports of CG, as compared to imports of RFG. individual baselines for conventional response to the WTO decision. EPA’s After January 1, 1998, individual baselines have no gasoline. goal was to identify all feasible options application in the RFG program. For CG, however, Venezuelan and Brazilian refiners that are consistent with EPA’s individual baselines will continue to be used in setting the compliance requirement for all CG. The affirmed their ability to accurately commitment to fully protect public application of the proposal to RFG prior to January establish reliable and verifiable health and the environment, and at the 1, 1998 is discussed separately in this notice at individual baselines in the same manner same time are consistent with the section II.F. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24779 to segregate it from gasoline produced not clear that all foreign refiners would After evaluating this approach, EPA by another refinery. have the information necessary to has decided to not propose it. While it For a foreign refiner, only a portion of establish an accurate IB for gasoline sent appears generally neutral in requiring the refinery’s total production is likely to the U.S. in 1990. individual baselines for both domestic to be sent to the U.S., ranging from a The Department of Energy (DOE) has and foreign refiners, upon full very small percentage to a significant advised EPA that this approach could consideration this approach presents too minority of production. The gasoline seriously affect the supply and price of great a risk of adverse effects on gasoline also may travel through a long and gasoline in the U.S. market. Currently supply and prices. EPA also has complicated distribution system from gasoline is imported into the U.S. questions as to its environmental the point it leaves the refinery gate to market from a free moving and fungible neutrality. The Agency is instead the point it enters the U.S. market. distribution system for imported proposing the optional use of individual However the IB for a specific foreign gasoline. The volume of imported baselines, with specific provisions for refinery would properly apply only to gasoline, while small compared to the monitoring gasoline quality and gasoline produced at that foreign total U.S. gasoline supply, can have a remedying any adverse environmental refinery, and would not apply to significant impact on gasoline prices. effects. gasoline produced at a different foreign Imported gasoline tends to moderate refinery. price increases by increasing the sources II. Description of Proposal Several facts would therefore need to of gasoline to meet U.S. demand, A. Introduction be clearly established to properly apply whether in response to a trend of a foreign refinery’s IB to a batch of increasing demand over time, or a short Today’s proposed approach involves imported gasoline. First, the refinery term supply problem based on local or the use of optional IBs for foreign that produced the specific batch of temporary changes in domestic supply refiners. Specific regulatory provisions imported gasoline must be identified. or demand. would be implemented to ensure that Second, it must be demonstrated that The approach outlined above would the optional use of an IB would not lead this batch of gasoline has not been significantly change the way gasoline is to adverse environmental impacts. This mixed with gasoline produced by a imported to the U.S. market, greatly would involve monitoring the average different foreign refinery with a increasing the complexity and making it quality of imported gasoline, and if a different IB, from the point it left the more likely that gasoline could not be specified benchmark is exceeded, refinery-of-origin to the point it entered quickly and readily diverted to the U.S. remedial action would be taken. The the U.S. market. Third, the total amount market to meet demand. This would remedial action proposed is that the of CG and RFG produced by the foreign make it more likely that imported requirements for imported gasoline refinery and sent to the U.S. market gasoline would not play the same role would be made more stringent. This must be determined, to establish when that it currently does in moderating would ensure the environmental the volume cap is exceeded. As with price increases. The long term supply neutrality of this approach. domestic refiners, it would also be implications are harder to predict. Under this approach, the procedures important to track blendstocks produced The increase in complexity from this and methods for setting an IB, as well and sent to the U.S. from a foreign approach is based on the need to ensure as the tracking, segregation and other refinery, so a foreign refiner could not that the right IB is applied to a batch of compliance related provisions described avoid a stringent IB by shipping imported gasoline, that an IB is only below would all apply. However, they blendstocks instead of finished gasoline. used up to the applicable volume cap, would only apply where a foreign Tracking and segregation requirements and that parties do not circumvent the refiner chose to apply for an IB. would need to be adopted to implement appropriate IB by shifting gasoline or Under this approach, the volume of this. blendstocks through other parties. gasoline that could be imported under A certain amount of gasoline is Modifying the tracking and monitoring the IB for a foreign refinery would be imported from fungible gasoline restrictions described above to try and limited in the same manner as for supplies, where the refinery of origin is resolve the supply concerns would domestic refiners, relative to a refinery’s not known. This occurred in 1990, and increase the risk of adverse 1990 baseline volume. Since the foreign would be expected to continue to occur environmental effect from this refiner sought an IB in order to in the future. It would be reasonable to approach. specifically produce gasoline for the allow the practice to continue, and EPA is also concerned that this U.S. market, the tracking and gasoline imported from such sources approach might produce incentives that segregation requirements noted above would continue to be subject to the would tend to reduce the average should not have a significant impact on statutory baseline (SB). However a quality of imported CG. For example, the ready availability of gasoline for mechanism would need to be imposed gasoline from refiners with cleaner IBs import. The current requirements for so that this supply of fungible gasoline would be measured against a more imported gasoline would continue to could not be used as a way to avoid a stringent baseline than under the apply for all of the other gasoline more stringent IB. current rules, while gasoline from imported into the U.S. DOE does not Under this approach, EPA would refiners with dirtier IBs would be believe this approach has the potential need to establish IBs for all foreign measured against a less stringent to adversely impact gasoline supply and refineries, most of which sent only a baseline than under the current rules. prices. small volume of gasoline to the U.S. in Additional costs would be associated There is however some concern about 1990. The methods used to set IBs for with segregation, tracking, and other the possible environmental impact of domestic refiners could still be used to requirements described above. To the such an approach. A foreign refiner may establish the quality and quantity of extent these changes put refiners with seek an IB only if it would be less gasoline sent to the U.S. by a foreign clean IBs at an economic disadvantage stringent than the SB. Gasoline refiner in 1990. Given the large number compared to refiners with either the SB produced by this foreign refiner would of foreign refineries involved and the or an IB dirtier than the SB, it could then be measured against this less potential for widely varying technical potentially push the supply of gasoline stringent IB. Other imported gasoline and other ability to establish IBs, it is away from refiners with clean IBs. would be measured against the SB. As 24780 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules compared to the situation in 1990, there EPA would monitor the quality of EPA is proposing that foreign refiners would be the potential for the quality of imported gasoline based on the annual that elect to develop individual refinery imported gasoline to degrade from an compliance reports filed by importers baselines would also follow these emissions perspective. and foreign refiners producing gasoline procedures. Additionally, EPA is The size and amount of this impact, that is exported to the U.S. Each year proposing that foreign refiners would however, is difficult to quantify. It EPA would evaluate the volume use these procedures to determine the would depend on the number of foreign weighted annual average quality of the quality and quantity of gasoline they refiners that received an IB, the specific three prior years and compare it to the produced in 1990 that was exported to emissions levels of the IBs assigned, and benchmark. If the average quality of the U.S. Specifically, in today’s the volume of gasoline included in the imported gasoline exceeded the proposed regulations, EPA has included IB.5 It would also depend on the source benchmark, NOx requirements for requirements that baseline submittals and amount of CG and RFG imported gasoline imported from refiners without for foreign refineries would have to into the U.S. in a specific year. It is also an IB (currently set at the SB) would include information that would estimate hard to quantify to what extent, if any, increase in stringency the following year the refinery’s overall 1990 gasoline foreign refiners who produced gasoline by an amount equivalent to the quantity and quality, and the quantity in 1990 that was cleaner that the SB exceedance. This would occur each time and quality of the subset of the would ship gasoline that is dirtier than the annual monitoring indicated that the refinery’s gasoline that was exported to what they shipped in 1990. These benchmark was exceeded. If the amount the United States in 1990. Under § 80.92 circumstances, as well as the existence of an exceedance either increased or baseline petitions would have to be of a volume cap on the use of IB’s, and decreased, the amount of the remedy supported by the report of an EPA- the large variation in the total levels of would be correspondingly adjusted. If approved baseline auditor. CG and RFG imports each year make it the annual monitoring showed that i. Required Information. The difficult to assess in advance the risk of imported gasoline did not exceed the requirements for establishing individual an adverse environmental impact. benchmark, the compliance foreign refinery baselines would be EPA is proposing to address the requirements would be reduced to the basically the same as the baseline potential environmental concerns with SB for the following year. The more establishment requirements for this approach by (1) establishing a stringent requirement would apply to all domestic refineries. EPA is proposing benchmark for the quality of imported imported gasoline except for gasoline additional requirements for foreign gasoline that would reasonably identify produced by foreign refiners with an IB. refineries that address the unique when the factors identified above have circumstances associated with led to an adverse environmental impact, EPA’s proposed approach meets the establishing the quality and quantity (2) monitoring imported gasoline to goals announced in the Invitation for only of gasoline sent to the U.S. in 1990. determine whether the benchmark has Public Comment, and avoids the The procedures for developing been exceeded, and (3) if an exceedance potential supply, price and individual refinery baselines, set forth of the benchmark occurs, imposing a environmental consequences of the in §§ 80.90 through 80.93, are remedy that compensates for the alternative approaches considered by highlighted below and discussed with adverse environmental impact.6 EPA. respect to foreign refineries. Comments As discussed below, the proposed B. Requirements for Foreign Refiners are requested on EPA’s extension of the benchmark for imported gasoline with Individual Refinery Baselines baseline development procedures to quality would be the volume-weighted foreign refineries, especially where average of the IBs for domestic refiners. 1. Establish Refinery Baselines modifications have been proposed to As discussed below, EPA is proposing a account for the unique circumstances Under this proposal, a foreign refiner benchmark for exhaust NOX set at the associated with foreign refinery would have the option of submitting an volume weighted average for domestic baselines. baselines. No benchmark would be set individual refinery baseline petition to • A foreign refinery’s individual at this time for toxics, as there does not EPA. The refinery baseline would reflect baseline (i.e., quality and quantity appear to be the same potential for the quality and quantity of gasoline information) would be calculated using, environmental degradation that there produced at the foreign refinery in 1990 in hierarchical order based on the could be for NOx. that was exported to the U.S. availability of data, 1990 gasoline test The procedures for establishing data (Method 1), 1990 blendstock test 5 To date, only a limited number of foreign individual refinery baselines are listed data (Method 2), or post-1990 refineries have indicated an interest in establishing in §§ 80.90 through 80.93. These an IB. However, under the proposal any foreign blendstock and/or gasoline test data refiner could apply for an IB. procedures were used by domestic (Method 3) for its total 1990 gasoline 6 EPA has adopted an analogous approach in the refiners to predict their overall gasoline production in the same manner required RFG program. Domestic refiners may chose to meet quantity and quality for 1990. The of domestic refiners. Foreign refineries certain RFG requirements on average, instead of procedures require the use of data from meeting the RFG per-gallon requirements. However have the additional requirement of a refiner who chooses the averaging requirements 1990 gasoline or gasoline blendstocks using these methods to determine the must implement a compliance survey for the where available. If this data is not quality and quantity of the subset of covered areas involved. In a compliance survey the available, post-1990 gasoline must be gasoline exported to the United States in emissions quality of the retail gasoline in a covered sampled and tested. The refiner must area is tested, and the average gasoline quality is 1990. compared to a preestablished benchmark. If the then compare its 1990 and post-1990 • All data collected beginning in 1990 average quality falls short of the benchmark, the refinery operations, and identify all and through the last date of any data compliance requirements for RFG used in that changes in operations that could cause collection under § 80.91(d)(1)(I)(B) must covered area are increased in stringency by a specified amount. Surveys are conducted each year, the 1990 and post 1990 fuel parameters be used in the development of both the and the requirements are increased in stringency to differ in quality or volume. The overall refinery baseline and the each time the area fails an annual compliance refiner must then adjust the post-1990 baseline of the gasoline exported to the survey. The stringency of the requirements can be data to account for these differences, U.S. in 1990. reduced if the area does not fail a compliance • survey for a specified number of years. See 40 CFR thereby deriving the quality and volume Baseline petitions would have to be 80.41, 80.68. of the gasoline produced in 1990. submitted in the same manner as is Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24781 required of domestic refiners under records or facilities used to generate 2. Compliance with CG Exhaust Toxics § 80.93, except that EPA is proposing data submitted to the Agency prior to and NOX Requirements that baseline petitions would have to be acting on a baseline submission or EPA is proposing that foreign refiners submitted before January 1, 2002. This petition. who obtain individual foreign refinery would allow for the collection of both After conducting its review of the data baselines would have to meet the summer and winter data and the and analysis in a baseline submission, exhaust toxics and NOX emissions preparation of a baseline petition EPA would assign an individual performance requirements for CG subsequent to June 1, 2000, the produced at the foreign refinery that is scheduled date EPA would announce baseline that represents the quality and exported to the United States. In the average quality of imported gasoline quantity of gasoline exported to the U.S. addition, foreign refiners with an for the first monitoring period of 1998 in 1990. EPA will consider all individual refinery baseline would be and 1999. EPA would require the same information submitted and the analysis required to meet all requirements used type and quality of information and performed by the refiner and the to demonstrate compliance with the CG level of accuracy in establishing a baseline auditor in assigning a foreign performance requirements. These are baseline no matter when a foreign refinery baseline. EPA expects the the same requirements that apply to refiner applies for a baseline. Comments refiner’s submission to consider all domestic refiners, and include the are requested on the appropriateness of relevant factors in determining the following: this deadline. quality and quantity of the subset of • • EPA is also proposing that in order To register with EPA, § 80.103. gasoline sent to the U.S. in 1990. This • To designate each batch of CG or for a refinery to receive an approved would include consideration of the baseline, the refinery would have to RFG, § 80.65(d). grades of gasoline sent to the U.S., the • To determine the volume and commit to give EPA’s auditors full season for which the gasoline was access to the foreign refinery to conduct properties of each CG batch through produced, the types of crude oil and sampling and testing, § 80.101(I). announced and unannounced blendstocks used, the effect of fuel • inspections and audits related to the To determine the volume of each requirements in the U.S. in 1990, and RFG batch in order to complete the CG baseline development and submission. any other factors that would affect how EPA baseline audits could occur at any compliance baseline calculation in the quality and quantity of a refinery’s time after a baseline petition has been § 80.101(f). U.S. market gasoline might vary from • submitted, either before or after EPA To prepare product transfer approves a refinery baseline. other gasoline produced at that refinery. documents for RFG and CG, §§ 80.77 • Under § 80.93(b)(1)(I) foreign EPA believes individual refinery and 80.106. • refiners would have to provide any baselines can be established for foreign To keep certain records for five additional information requested by years, §§ 80.74 and 80.104. refineries for which individual baselines • EPA to support a baseline submittal or are sought to the same degree of To submit reports to EPA on each petition, as is true for domestic refiners. confidence as the baselines established batch of RFG and CG, on the volume of • Under § 80.93(c) a separate baseline for domestic refineries, through use of RFG, and on the annual average quality of CG, §§ 80.75 and 80.105. would be established for each foreign all available data, and the ability to use • To comply with an annual cap on refinery. However, as is the case of U.S. current data and operating conditions to the volume of specified blendstocks that refiners a foreign refiner could petition estimate 1990 gasoline quality and are transferred to others and used to EPA for a single refinery baseline for quantity. two closely integrated facilities under produce gasoline for the U.S., § 80.102. § 80.91(e)(1). In addition, as is the case The baseline approval process is an • To have an independent audit for U.S. refiners a foreign refiner who iterative one, beginning with the performed of refinery operations each operates more than one refinery with submission of the baseline or a baseline year to review certain activities related individual baselines would be able to petition. EPA, any EPA contractors, to the RFG and CG requirements, aggregate the baselines of some or all of representatives of the foreign refinery §§ 80.125 through 80.130. However, the its refineries under § 80.101(h). knowledgeable of the refinery’s baseline audit procedures for RFG would be • EPA is proposing that all development, and the refinery’s baseline limited to the procedures that evaluate documentation included in a baseline auditor will all be closely involved the quantity of RFG, and audits would submission or petition would have to be throughout. EPA expects that its not be required to include procedures in the English language or include an questions regarding the baseline intended to verify information about English language translation. submission or petition will receive RFG that is unrelated to the compliance EPA requests comments on any quick and adequate response from the baseline calculation, such as RFG aspects of the baseline development refinery’s representatives. To this end, quality or VOC-control designations. • regulations, §§ 80.90 through 80.93, EPA believes it would be useful to have To not combine CG with RFG and relative to the development of foreign an English-speaking foreign refinery classify the mixture as RFG, refinery baselines, particularly representative knowledgeable about the § 80.78(a)(10). concerning any unique aspects of baseline development of the refinery as Certain adjustments to these developing or verifying foreign refinery the main contact. provisions are specified in the proposed baselines for a refinery’s total 1990 regulations to apply them to foreign gasoline production and for the subset EPA would not assign an individual refiners. of gasoline exported to the U.S. in 1990. refinery baseline where an individual EPA believes that foreign refiners ii. EPA Action on Baseline refinery baseline submission is with individual baselines should be able Submissions. As for the domestic refiner significantly incomplete, or inadequate to meet these requirements as do baseline approval process, EPA would to establish an accurate baseline, and domestic refiners, and EPA would subject foreign refinery baseline the refiner fails to cure the defect after intend to monitor compliance with, and submissions to an in-depth analysis and a request for more information. In such enforce violations of these requirements review. EPA would also reserve the a case the refinery would not receive an with regard to foreign refiners just as for right to inspect, audit and review all individual baseline. domestic refiners. 24782 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

Under § 80.101(f) a compliance baseline is called ‘‘Foreign Refiner the destination of FRGAS after the baseline for exhaust toxics and NOX Gasoline,’’ or ‘‘FRGAS,’’ in this gasoline has left the foreign refinery and compliance is calculated for each proposal. has entered the distribution system. calendar year averaging period based on All foreign refiners with individual Under the current regulations, such a refinery’s 1990 baseline volume and refinery baselines would be required to gasoline could at any time be sent to the baseline exhaust toxics and NOX values, submit annual reports to EPA that U.S. market, including after it has left and the total gasoline volume (CG and demonstrate the average exhaust toxics the foreign refinery. Gasoline currently RFG 7) produced at the refinery during and NOX emissions for CG FRGAS may be taken from a fungible the averaging period.8 As a result, a meets the refinery’s compliance baseline distribution system and sent to the U.S., foreign refiner with an individual for the averaging period. as long as the importer’s annual average refinery baseline would be required to Additional requirements, described meets their compliance baseline. This establish the volume of U.S. market below, would allow EPA to monitor that would not be possible for FRGAS under gasoline that is RFG in order to calculate the specific barrels of gasoline identified the requirements discussed above. the refinery’s compliance baseline for by the foreign refiner as U.S. market Unless a foreign refiner designates the exhaust toxics and NOX CG gasoline actually is delivered for use in FRGAS at the point of production, it requirements.9 the United States, and to conduct would not meet the requirements Therefore, a foreign refiner with an enforcement audits and inspections of described above for export of FRGAS to individual refinery baseline would be foreign refinery operations. the U.S. required to designate each batch of U.S. Under today’s proposal, CG FRGAS EPA requests comment on whether market gasoline as CG or RFG, to would be treated basically under the foreign refiners with individual establish the volume and properties of same rules as gasoline produced for the baselines should be allowed to divert to U.S. market batches that are designated U.S. market at a domestic refinery. The non-U.S. markets gasoline shipments as CG, and to establish the volume of CG FRGAS would be subject to the same that originally were intended for the U.S. market batches that are designated CG requirements as the CG produced by U.S. market where the foreign refiner as RFG. The CG and RFG produced at domestic refiners. Starting in 1998 a can demonstrate the gasoline in fact was refinery’s annual average CG exhaust a foreign refinery with an individual not imported into the U.S., and if so, the toxics and NOX emissions could not type of showing that should be required. 7 The compliance baseline equation at § 80.101(f) exceed its individual baseline for these EPA also requests comment on requires a refiner to include the volumes of all fuel characteristics. In order to evaluate whether a foreign refiner with an gasoline used in the U.S., including CG, RFG, RFG compliance, however, CG FRGAS would individual refinery baseline should be blendstock for oxygenate blending (RBOB), and need to be designated as such at the given the option of classifying CG as California gasoline under § 80.81. Thus, a foreign point of production, and would need to refiner would be required to include each of these FRGAS or as non-FRGAS. If this option products in the compliance baseline calculations, be tracked to determine that it in fact is were allowed a foreign refiner could and to meet the refinery of origin tracking exported to the U.S. have two categories of CG: CG that is requirements that are described below. However, In order to determine compliance classified as FRGAS, and CG that is not for ease of discussion this preamble will with the CG requirements for FRGAS, classified as FRGAS. collectively refer to all non-CG products as RFG. the quality and quantity of each batch 8 Under § 80.101(f) compliance baselines are In the case of CG that is classified as calculated for a refinery each calendar year using of CG must be determined. The volume FRGAS the foreign refiner would an equation that caps use of individual refinery of RFG FRGAS also would have to be include the gasoline in the refinery CG baselines based on the refinery’s total gasoline determined, because the compliance compliance calculations, and would production (RFG and CG) during an averaging baseline applicable to a refinery meet the refinery tracking requirements, period, as compared to the refinery’s 1990 baseline volume. Thus, where a foreign refinery’s volume of depends on the total volume of gasoline described below. CG that is not gasoline for the U.S. (CG and RFG) during an produced at a refinery for the U.S. classified as FRGAS would be excluded averaging period is equal to or less than the market, including both CG and RFG. To from the refinery CG compliance refinery’s 1990 baseline volume, the refinery’s determine the quality and/or quantity of calculations, and the refiner would not compliance baseline emission values for CG for the averaging period would be the refinery’s 1990 this gasoline, a foreign refiner would be required to meet the refinery tracking baseline emission values. However, where a have to designate FRGAS when it is requirements. refinery’s gasoline volume during an averaging produced. It also is important that However, the foreign refiner would period exceeds the refinery’s 1990 baseline volume, gasoline used in a foreign refinery’s continue to be required to include all the refinery’s compliance baseline emission values for the averaging period would move in the compliance calculation all be RFG produced in compliance baseline direction of the statutory baseline emission values. designated as FRGAS and actually calculations and to meet the refinery In the case of foreign refiners, these calculations imported into the U.S. tracking requirements for all RFG, i.e., would use only the volumes of gasoline that were EPA expects foreign refiners would be all RFG would have to be classified as exported to the U.S. in 1990 and during the averaging period. able to determine how much FRGAS FRGAS. This distinction between RFG Section 80.101(b) requires use of compliance they intend to produce, and would be and CG is necessary in order to prevent baselines only for the simple model requirements able to institute reasonable distribution adverse environmental effects. As in the that apply before 1998. However, in another and marketing changes to implement case of domestic refiners, all RFG must rulemaking EPA will be proposing to require use of the proposed requirements. A foreign be included in a refinery’s compliance compliance baselines for the complex model requirements that apply beginning in 1998, and refiner of FRGAS would need to baseline calculation because a larger EPA believes any change to the compliance baseline monitor the gasoline quality to ensure it RFG volume results in a larger volume provision will be final before 1998. As a result, this meets the CG requirements, and this of CG that is subject to the statutory foreign refiner proposal assumes that compliance gasoline normally would be subject to baseline. In contrast, there is no adverse baselines will be required for exhaust toxics and NOX compliance. In any case, the same provision emissions requirements that are environmental effect if a refiner would apply to both domestic and foreign refiners. different from those in other markets. classifies CG as non-FRGAS, because 9 EPA is proposing that if a foreign refiner begins The additional requirements proposed the non-FRGAS CG would be subject to using an individual refinery baseline on a date today all flow from this and could be the statutory baseline by default. other than on January 1, the compliance baseline calculation for the initial year would use a reduced implemented in a reasonable fashion. Under the option of allowing foreign baseline volume to reflect the portion of the year However, a major change could occur refiners to elect to classify CG as the individual refinery baseline is in use. in a foreign refiner’s ability to change FRGAS, the U.S. importer would meet Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24783 the tracking requirements, described locations other than those controlled by leaves the U.S. port of entry, and below, only for the CG batches that are the foreign refiner, and in countries foreign-produced gasoline then could be identified as FRGAS. EPA would be able other than those where the foreign fungibly mixed in the same manner as to monitor foreign refinery compliance refinery is located. EPA would have to gasoline produced at domestic by comparing the volume of each rely on assertions and records of third refineries. refinery’s gasoline identified as FRGAS party owners or custodians that gasoline ii. Foreign Refiner Certification of as reported by U.S. importers, with the imported into the U.S. as FRGAS FRGAS. EPA is proposing that foreign volume reported by the foreign refiner. contains only FRGAS. EPA is concerned refiners of FRGAS would be required to that it would be unable to routinely Requirements for Tracking Refinery of prepare a certification, signed by an conduct the types of inspections and Origin appropriate foreign refiner official, for audits of these third parties that would FRGAS when it is loaded onto a ship for The proposed requirements be necessary to ensure that non-FRGAS concerning CG FRGAS are premised on transport to the U.S. This certification is not mixed with FRGAS, and that would identify the gasoline as being foreign refiners accurately identifying FRGAS is not diverted to non-U.S. the gasoline (both CG and RFG) that is FRGAS, the foreign refinery where the markets. FRGAS was produced, the volume and exported to the U.S. There is the The factors giving rise to these properties of the FRGAS being potential for adverse environmental concerns are not present in the case of transported, and a declaration that CG results if a foreign refiner includes in gasoline produced at domestic U.S. FRGAS is being included in the CG CG compliance calculations gasoline refineries, because there is little that is not exported to the U.S. In question of which gasoline produced at exhaust toxics and NOx compliance addition, there is environmental risk if domestic refineries is used in the U.S. calculations for the foreign refinery. The a foreign refiner fails to include in CG Gasoline produced at U.S. refineries is volume and properties of CG, and the compliance calculations gasoline that is sampled and tested before leaving the volume of RFG, contained in each ship exported to the U.S. refinery, and almost all then compartment would have to be For this reason EPA is proposing immediately enters U.S. commerce. separately identified. requirements to ensure that gasoline is Gasoline to be exported from the U.S. The foreign refiner certification would properly identified as FRGAS at the U.S. normally is identified at the time of have to be supported by an inspection port of entry, and that all gasoline production, and always is identified by an independent, EPA-approved third designated as FRGAS by a foreign when actually leaving the U.S. As a party such as an independent refiner is in fact delivered to the U.S. result, and in contrast to the situation laboratory. The independent party These proposed requirements also for foreign refineries, EPA can enforce would review documents that reflect the would give U.S. importers the the requirements for CG produced at transportation and storage of the FRGAS information necessary to demonstrate domestic refineries based on refinery in question from the point of production that imported CG is in fact FRGAS in gate testing and reporting, with no need at the foreign refinery to the point of order to exclude the gasoline from the to track the gasoline after leaving the ship loading. The inspector thus would importer’s CG compliance calculations. refinery. confirm the refinery of origin and that EPA would be provided the information EPA is proposing that the FRGAS there was no fungible mixing of the necessary to monitor compliance by produced at each foreign refinery must FRGAS with any gasoline produced at foreign producers of FRGAS. remain physically segregated from the any other refinery. The independent Test results at the U.S. port of entry, FRGAS produced at other foreign party also would be required to confirm in the absence of additional refineries, from the foreign refinery to the volume and properties of the CG information, are inadequate to the U.S. port of entry. As a result of this FRGAS, and the volume of RFG FRGAS, distinguish between gasoline that is requirement, when a foreign refiner loaded onto the ship, through FRGAS, and other gasoline. In addition, loads FRGAS onto a ship for transport inspection of the ship prior to loading, without additional requirements EPA to the U.S. the foreign refiner must and measurement and sampling of the would have scant ability to know if all know the gasoline is exclusively FRGAS gasoline contained in each ship the gasoline included in a foreign that is being included in the refinery compartment subsequent to loading. refiner’s CG compliance calculations in compliance calculations, or compliance The independent party would prepare fact was delivered to the U.S. baseline calculations in the case of RFG. a report on these inspections that would The requirements proposed today to This segregation requirement would become a part of the foreign refiner’s address this issue involve segregation of not prohibit a foreign refiner from certification. EPA is proposing that the FRGAS produced at each foreign combining batches of CG FRGAS, or independent party also would submit an refinery; documentation prepared by the combining batches of RFG FRGAS, that inspection report to EPA. foreign refiner certifying that FRGAS is are produced at a single refinery into being included in the foreign refinery’s larger volumes for shipment. In iii. U.S. Importer Receipt of FRGAS. A compliance calculations; sampling and addition, EPA is proposing that the U.S. importer would classify imported testing at the load port and the port of FRGAS produced at multiple refineries CG as FRGAS if the gasoline is entry; independent attest engagements that have been aggregated under accompanied by a foreign refiner by the foreign refiner to verify the § 80.101(h) could be combined, because certification that is properly supported volumes claimed by the foreign refiner; aggregated refineries must be operated by an independent party’s report. In and determinations by an independent by the same refiner. addition, the volume and properties of party of the volume, quality and refinery EPA requests comment on whether a the CG measured by the U.S. importer of origin of FRGAS loaded onto a ship. foreign refiner with more than one at the U.S. port of entry would be i. Segregation of FRGAS. In the refinery should be allowed to mix compared with the load port volume absence of restrictions, FRGAS from FRGAS produced at its different and property measurements, and this multiple foreign refineries could be refineries prior to shipment to the U.S. comparison would have to indicate that stored, transported, combined and Under today’s proposal there is no the FRGAS loaded onto the ship was not recombined, and sold and resold, by need to track gasoline produced at mixed with other gasoline or otherwise parties other than the foreign refiner in foreign refineries after the gasoline changed en route to the U.S. The same 24784 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules would apply for RFG FRGAS, but only the foreign refinery, whether the FRGAS determinations of refinery of origin at the volume would be reviewed. 10 is CG or RFG, the volume and properties the loading port would have to be The proposed regulations include of CG FRGAS, and the volume of RFG performed by an independent party. The criteria for comparing the load port and FRGAS. proposed criteria for independence port of entry testing. The test results iv. Attest Engagement Requirements. would be the same criteria that apply for would have to agree, for each relevant Under today’s proposal foreign refiners the independent sampling and testing Complex Model parameter, within the of FRGAS would be required to meet the requirement for domestic refiners and limits used for comparing domestic independent attest engagement importers, and that are specified at refiner and independent laboratory test requirements in §§ 80.125 through § 80.65(f)(2)(ii). In addition, EPA is results in § 80.65(e). EPA also is 80.130, the same as domestic refiners, proposing that persons performing this proposing that the two volume although the attest requirements for RFG work would have to be EPA approved. determinations, corrected for are limited to those related to the EPA approval would be based on the temperature and density, would have to volume of RFG produced at a foreign ability to perform the required work as agree within one percent. EPA believes refinery.11 EPA is proposing additional demonstrated through a petition this level of volume correlation is attest requirements that relate to the process. appropriate because it is well within the FRGAS requirements. These attest EPA also is proposing that level of correlation normally expected requirements would supplement the independent parties would have to in commercial transactions. EPA requirements regarding an independent agree to allow EPA inspections and understands that protests normally are party determination of the refinery that audits relative to their work under the initiated if ship volume determinations produced FRGAS loaded onto a ship. Gasoline Rule for the foreign refiner that in commercial dealings differ by 0.5%. The focus of the attest requirements are similar to the commitments required EPA requests comment on the would be on the foreign refinery by foreign refiners, described below. proposed requirements for comparing operations while the independent 4. Measures Related to Monitoring load port and port of entry testing, and party’s primary focus would be on the Compliance and Enforcement on any other approach for these transportation and storage of gasoline i. Introduction. EPA believes the comparisons that would be preferable to from the refinery to the point of ship proposed requirements for foreign those proposed. In particular, EPA loading. refiners with individual refinery requests comment on whether load port Under the proposed procedures, the baselines must be subject to strong and port of entry testing could rely on auditor would be required to confirm measures for monitoring compliance a subset of the properties listed in the overall production for the refinery in and enforcing violations. However, § 80.65, and whether the test-to-test question, and that the gasoline claimed there are a number of unique problems differences allowed in § 80.65 are more to be RFG and CG FRGAS was part of associated with monitoring compliance or less stringent than necessary. that overall production. The attester and enforcing requirements for parties Importers would be required to would confirm the transfer of FRGAS and transactions that occur overseas. include in their CG compliance from the refinery to ships and would EPA is proposing a range of provisions calculations any imported CG for which identify the ships. In addition, the designed to address these concerns in a the importer does not obtain a certificate auditor would use commercial by the foreign refiner supported by a comprehensive manner. These publications that list vessel sailings to provisions are intended to promote report prepared by an independent third confirm that ships used to transport party. EPA’s ability to monitor compliance FRGAS traveled to the U.S. with the requirements related to foreign In the case of CG for which the EPA is proposing that the attest importer obtains a properly supported refinery baselines, to conduct requirements would be fulfilled either enforcement actions when violations of foreign refiner certificate, but where the by auditors who are independent under volume and/or parameter results from these requirements are found, and to § 80.65(f)(2)(ii), and who either are U.S. impose sanctions that would constitute the load port and port of entry do not certified public accountants (CPA’s) or meet the correlation requirements, the a deterrent to future violations. who are approved by EPA. EPA The purpose of the proposed gasoline nevertheless would be approval would be based on the ability imported as FRGAS. However, the provisions is to assure EPA’s to perform the required work as compliance and enforcement activities foreign refiner would have to adjust its demonstrated through a petition CG compliance calculations to reflect with regard to foreign refiners will be on process. the same footing as domestic refiners, in the exhaust toxics and NOX emissions of Independent auditors would have to the FRGAS as tested at the U.S. port of order to assure achievement of the agree to allow EPA inspections and environmental objectives of the gasoline entry if these emissions results, in grams audits relative to their work under the per mile, are higher than at the load programs. Gasoline Rule for the foreign refiner in ii. Inspections and audits. EPA would port, and based on the larger of the two a manner similar to the commitments intend to inspect and audit foreign volume measurements if the volumes do required by foreign refiners, described refineries with individual baselines and not properly correlate. If the parameter below. other facilities located overseas to results correlate but the volumes do not, v. Requirements for Third Parties. determine compliance with the foreign refiner would have to adjust EPA is proposing that FRGAS sampling, requirements related to establishing a its CG compliance calculations to reflect testing, volume determinations and baseline, identifying refineries or origin, the volume measured at the U.S. port of and other requirements proposed today. entry. 11 ‘‘Attest engagement’’ is a term of art used by Foreign refiner inspections and audits EPA is proposing that U.S. importers auditors to describe the conduct of specified audit would be like domestic refiner would report to EPA on each batch of procedures—the auditor attests to the conduct and results of the specified audit, or attest, procedures inspections and audits with regard to FRGAS imported, that would identify completed during the attest engagement. The types of facilities visited, types of requirements in §§ 80.125 through 80.130 consist of 10 However, an importer of RFG is required under specified attest procedures dealing with the information reviewed, and types of § 80.65 to determine the volume and properties of Gasoline Rule and instructions for the conduct of persons who conduct the inspections imported RFG. these procedures. and audits. In addition, the inspections Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24785 and audits would be both announced refiner, third parties, and auditors Code. This waiver of sovereign and unannounced, as with domestic would have to agree to supply immunity also will apply to any inspections and audits. documents requested by an EPA employee or agent of a refinery owned Inspections and audits would be inspector or auditor, and to make or operated by the foreign government. conducted at foreign refineries with available for interview, within a Where a foreign refiner failed to abide individual baselines, at laboratories reasonable time, any employee by the terms of the foreign refiner where the foreign refineries’ gasoline is identified by EPA. The foreign refiner agreement, or a foreign government tested, at offices of pipelines, terminals would have to agree to supply English failed to allow entry for the purpose of and other third parties who had title or language translations of documents EPA inspections and audits, EPA could custody to gasoline between its requested during an audit, and to withdraw or suspend the refiner’s production and arrival in the U.S., and supply English language translators individual refinery baseline. at offices of independent third parties and/or interpreters to assist the EPA iii. Civil and criminal enforcement and independent auditors who have employees and contractors. The cost of actions. A foreign refiner with an tested the refineries’ gasoline or audited supplying the English language individual refinery baseline who the refineries’ operations under EPA translations, translators and interpreters submits false documents to EPA or who requirements. The inspections and would have to be borne by the foreign fails to meet other requirements would audits would be conducted by EPA refiner. be subject to civil, and in certain cases employees and by contractors to EPA. The foreign refiner agreement would criminal, enforcement, and EPA is Refinery baseline audits would have to be signed by the president or proposing requirements that would include reviews of records that were owner of the foreign refiner, and in the facilitate prosecution of such violations. used to prepare baseline petitions, case of independent third parties and These requirements would consist of including refinery production, testing auditors by the president or owner of certain waivers and agreements by the and shipment records that are relevant these companies. foreign refiner that would be included to baseline establishment, reviews of The foreign refiner would have to in the agreement submitted to EPA, independent baseline auditor work agree that authorized representatives of discussed above. papers, and interviews with refinery EPA would be allowed to enter the EPA is proposing that each foreign employees and others with knowledge relevant facilities for the purpose of refiner seeking an individual refinery about these records. inspecting and auditing foreign baseline would be required to identify Inspections and audits for compliance refineries that export gasoline to the an agent for service in the U.S. and with requirements such as those related U.S., and facilities where gasoline agree that service on this agent to identifying the source refinery for exported to the U.S. are analyzed. These constitutes service on the foreign refiner gasoline exported to the U.S. would inspections could be for the following and its employees. EPA also is focus on the sampling and testing purposes: proposing that the agent for service requirement, and on gasoline • The inspection of gasoline must be located in the District of movements from the foreign refinery to production facilities; Columbia. the foreign load port. Sampling and • The collection of gasoline samples; EPA is proposing that foreign refiners testing would be evaluated by reviewing • The inspection of records related to would have to agree that the forum for sampling and testing records, observing gasoline production, sale, transfers, civil enforcement actions would be samples being collected and analyzed, transport, storage, and sampling and governed by Clean Air Act (CAA) by interviewing persons involved in testing; and section 205. CAA section 205(b) sampling and testing, and by collecting • The taking of testimony or specifies that the venue for district court gasoline samples for analysis by EPA. statements of persons. actions is either the district where the Source refinery assertions would be The foreign refiner and third party violation occurred or where the audited by reviewing records related to commitments also would specify that defendant resides or in the gasoline production, storage and EPA representatives would not be Administrator’s principal place of transport at all locations from the subject to civil liability that would business. However, EPA believes that foreign refinery to the foreign load port, result from any actions by the EPA the U.S. district court for the District of and by interviewing persons at these representatives within the scope of their Columbia would be the appropriate locations. In addition, EPA would audit and inspection work, including court for violations related to the review the work papers of the any findings or conclusions regarding requirements proposed today that are independent third party, and the compliance or noncompliance by the committed by defendants who reside independent auditor, who verify the foreign refiner with requirements that outside the U.S. Administrative source refinery identification, and are the subject of the audits and assessment of civil penalties is allowed would interview these individuals. inspections. under CAA section 205(c) where the EPA is proposing that foreign refiners The refiner agreement also would penalty amount does not exceed would have to agree to allow full and include a limited waiver of sovereign $200,000, or where the EPA complete access to EPA employees and immunity with regard to refineries that Administrator and the Attorney General contractors to conduct inspections and are state owned, and with regard to any jointly determine that a case involving audits as a condition to establishment of employees of state owned refineries. a larger penalty is appropriate for a baseline, and would have to use This waiver of sovereign immunity administrative penalty assessment. independent third parties and would include both civil and criminal EPA is proposing that foreign refiners independent auditors who agree to give liability, and would be limited to of FRGAS would have to agree that civil EPA full and complete access as well. violations of Clean Air Act section and criminal enforcement actions would The agreements would have to specify 211(k) and the regulations promulgated use the same U.S. civil and criminal that EPA inspections and audits may be thereunder at 40 CFR Part 80, subparts substantive and procedural laws that either announced or unannounced, and D, E and F, and other relevant laws and apply in enforcement actions against may be conducted by any authorized regulations including but not limited to domestic refiners. representative of EPA, including EPA Clean Air Act sections 113, 114, 211 (c) iv. Sanctions for civil and criminal employees and contractors. The foreign and (d), and Title 18 United States violations. The sanctions for civil and 24786 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules criminal violations committed by administrative or judicial judgments performance, determined under the foreign refiners with individual refinery against the foreign refiner, provided Complex Model. baselines or employees of such foreign EPA agrees in advance as to the third Under the current rules, the annual refiners would include the sanctions party and the nature of the surety report is due by the last day of February specified in the Clean Air Act. Under agreement. following the end of the annual CAA section 211(d) the penalty for civil As with domestic refiners, any averaging period. An attest engagement violations of the RFG and conventional violation of a regulatory requirement by report is due by May 30th. The gasoline requirements is up to $25,000 a foreign refiner could result in the importer’s report must include the total per day of violation plus the amount of imposition of penalties. For foreign gallons of CG imported, the annual economic benefit or savings resulting refiners with individual refinery average compliance baseline, and the from the violation. Injunctive authority baselines the assessment of a penalty annual average for the gasoline is included under section 211(d)(2) as also could result in the forfeiture of a imported that calendar year. The well. CAA section 113(c) specifies that bond to satisfy the penalty. This would, importer must also include the volume, the criminal penalty for first violations for example, include a failure to allow grade and qualities for each batch of of knowingly making false statements or EPA inspections and audits; failure to imported gasoline. reports is a fine pursuant to title 18 of submit required audit reports prepared Under today’s proposal, importers the U.S. Code, or imprisonment for up by an independent auditor; or failure to would continue to submit the reports to 5 years, or both. The period of properly identify the source refinery for described above for CG produced by maximum imprisonment and the FRGAS. foreign refiners without an IB. For maximum fine are doubled for repeat EPA is proposing that if a foreign gasoline produced by a foreign refiner convictions. refiner with an individual refinery with an IB, both the importer and the EPA is proposing that foreign refiners baseline fails to meet the requirements foreign refiner would submit reports to seeking an individual refinery baseline proposed today, including those that EPA. In combination these reports would be required to post a bond with apply to all refiners under the current would contain all of the information the U.S. Treasury that would be regulations, and/or the additional submitted for gasoline produced by available to satisfy any civil penalty or requirements that would apply only to refiners without an IB. criminal fine that is imposed against the foreign refiners, then EPA could These annual reports submitted by refiner or its employees. The amount of administratively withdraw or suspend importers and foreign refiners would this bond would be $0.01 per gallon of its individual refinery baseline. provide EPA with batch by batch conventional gasoline exported by the EPA is proposing that withdrawal or information for all CG imported during refiner to the U.S. per year, based on the suspension of an individual refinery that year. From these, EPA could determine the volume weighted average maximum annual volume of baseline could be imposed for all of the quality for all imported CG. This would conventional gasoline exports during refineries operated by a foreign refiner, be a simple and straightforward way to the most recent five year period during or for a subset of a foreign refiner’s monitor imported gasoline quality. which the foreign refiner exported refineries where appropriate. EPA Additional sampling and testing by EPA conventional gasoline to the U.S. using would impose this sanction in a would be duplicative, as the importer an individual refinery baseline. particular case only after evaluating the must sample and test each batch of However, the initial bond amount circumstances and exercising its imported gasoline. 40 CFR 80.101(I). would be based on the volume of discretion based on factors such as conventional gasoline produced at a egregiousness, willfulness and prior 3. An Appropriate Benchmark foreign refinery that was exported to the violations. The withdrawal or U.S. during the year immediately The purpose of the benchmark is to suspension could be imposed for a reasonably determine when allowing preceding the year the baseline petition limited time. is submitted.12 The foreign refiner foreign refiners the option to use an IB would be required to submit with its C. Baseline Adjustment for Imported or to not use an IB has caused baseline petition a bond to reflect this Gasoline that is Not FRGAS degradation of the quality of imported volume, and to include with its baseline gasoline from 1990 quality of imported 1. Introduction petition information necessary to gasoline. accurately establish the conventional Allowing foreign refiners to choose Ideally, EPA would use the volume gasoline volume for the preceding year. whether to establish an IB creates a weighted average of the quality of The foreign refiner then each year potential for adverse environmental gasoline sent to the U.S. by foreign would take into account in its bond impact. This would be addressed by refineries in 1990. EPA does not have amount calculation the conventional monitoring the quality of imported this information, but does have gasoline volume for an additional year gasoline, comparing it to a benchmark, information on the volume weighted until there is a five year history, at and taking remedial action if the average baselines for domestic which time the conventional gasoline benchmark is exceeded. The details of refineries. This average accounts for volume review would include only the this proposal are described below. approximately 95% of the U.S. gasoline most recent five years. market in 1990, and reflects a wide 2. Monitoring As an alternative to posting the bond diversity in types and kinds of with the U.S. Treasury, a foreign refiner Under the current regulations, refineries. There is no available data could meet the bond requirement by importers submit an annual report indicating that gasoline imported from obtaining a bond in the proper amount concerning the quality of the CG they foreign refineries was not consistent from a third party surety agent that import. See 40 CFR 80.105. Importers with this average, and absent evidence would be payable to satisfy U.S. submit an annual report after the end of to the contrary it is not unreasonable to the calendar year, comparing the quality assume that average foreign gasoline 12 A foreign refinery’s 1990 baseline volume of the gasoline they imported against the quality in 1990 was generally equivalent would not be appropriate for setting the bond applicable annual average requirements. to domestic gasoline quality. Also it amount, because in 1990 the Gasoline Rule was not in effect, so there was no gasoline identified as Starting in 1998, these requirements are would not be reasonable to measure conventional or RFG. for exhaust toxics and NOX emission overall quality for gasoline produced by Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24787 foreign refiners using stricter criteria action may not be needed for exhaust EPA also invites comment on whether than that applied to domestic refiners, toxics. Instead, EPA would monitor the there should be some minimum level of in the absence of evidence indicating average quality of imported gasoline for an exceedance above the benchmark otherwise. exhaust toxics as it would for NOX, and before remedial action is taken. Such a The benchmark should be set at a if an adverse trend were to occur EPA level would need to be set at a point point such that an exceedance of the would develop a benchmark and where the benefits from taking a benchmark reasonably indicates that the remedial provisions analogous to that remedial action are de minimis, given average quality of imported gasoline has proposed for NOX. the likelihood that the next year’s degraded from 1990 levels because of At the start of the program, EPA is comparison to the benchmark would in the option provided to foreign refiners proposing that the volume weighted all likelihood show whether or not there in using or not using an IB. Many average for 1998 and 1999 be compared is a clear exceedance of the benchmark, additional factors also affect the average to the benchmark, and then the average and any appropriate action would be quality of imported gasoline. For for 1998, 1999 and 2000, to start the taken at that point. example, there is a wide variety in the three year rolling average. A one year level of imports from year to year. The 5. Imported Gasoline Subject to the average for 1998 alone would not by Remedial Action source and volume of imports from itself appear adequate to detect a multi- specific countries and refineries also year trend, while a two year average A foreign refiner using an IB would varies significantly from year to year. would be more effective in this regard. follow the same procedures as a Despite general trends in amount and The effects of imports in 1998 would be domestic refiner—the quality of its CG source of imported gasoline, there still be fully accounted for, in the two would be measured against the IB of the remains a lot of year to year variability. year average including 1999. Since an IB refiner that produced it. Foreign refiners A change in average gasoline quality might start to be used in 1997, EPA also without an IB would have chosen to during any particular year therefore is proposing to include with the 1998 have their gasoline measured against the might indicate the effects of allowing imports all gasoline imported in 1997 SB instead of an IB, and reasonably the option for IBs, or it might reflect the after the date any gasoline subject to an could be expected to include refiners unique circumstances of that year, IB is imported in 1997. whose IB would have been more which may well change the next year. EPA invites comment on an stringent than the SB. It is the use of IBs Since the existence of an exceedance alternative involving comparing the by some refiners, and the degradation of the benchmark is designed to detect 1998 average to the benchmark, then the below 1990 quality in CG produced by foreign refiners without an IB, that a multi-year trend, EPA is proposing 1998 and 1999 combined average, and causes the average CG quality to be that a three year average be compared then the three year average starting with adversely affected when other refiners against the benchmark. This would be a 1998, 1999 and 2000. rolling average; e.g. the average for years are at their IB. Since the foreign refiner 1 through 3 would be compared to the 4. Remedial Action Upon an with an IB would be acting no benchmark one year, the next year the Exceedance differently than domestic refiners with average for years 2 through 4 would be If a volume weighted three year an IB, it is appropriate to only apply the compared, and so on. annual average for imported CG exceeds remedial action to CG imported from EPA is proposing to set a benchmark refiners without an IB. the benchmark for NOX then EPA would for exhaust NOX at the volume weighted take remedial action. Under the D. Requirements for U.S. Importers baseline average for domestic refiners. 13 proposal, the remedial action would be This would be 1465 mg/mile for NOX. Under today’s proposal U.S. importers For toxics, the evidence to date tends an adjustment applied to the would be required to meet exhaust compliance baseline for CG not to show there would not likely be an toxics and NOX requirements for all adverse impact from allowing the option included in the CG compliance imported CG that is not designated as to use IBs. In 1995, the volume weighted calculations of a foreign refiner with an FRGAS, and would exclude from annual average of imported gasoline for IB. EPA is proposing an adjustment to importer CG compliance calculations all exhaust toxics was 86.64 mg/mile. This the baseline that would equal the CG that is designated as FRGAS. A was cleaner than both the statutory amount of the exceedance of the mechanism is proposed by which U.S. baseline (104.5 mg/mile) and the benchmark. importers would demonstrate that volume weighted average for domestic This would be reevaluated each year imported CG is FRGAS. The baseline baselines (97.34 mg/mile).14 In addition, by comparing the average for the three that would apply to U.S. importers one foreign refiner that is a major prior years to the benchmark. If there would be the statutory baseline or any supplier to the U.S. market has were no exceedance, then a prior adjusted baseline as discussed in submitted detailed information to EPA adjustment would be terminated. If section II.C above. EPA is not proposing on their expected IB, and the there were an exceedance, then a new to change the current requirement that information submitted by the foreign adjustment would be imposed that U.S. importers meet all requirements for refiner to date indicates that their IB for equals the amount of the current imported RFG. exhaust toxics would be cleaner than exceedance. For example, if the three EPA also is requesting comment on an the SB.15 EPA believes the present year annual average exceeded the NOX option where U.S. importers would circumstances may not lead to a risk of benchmark by 5 mg/mile, then the meet the exhaust toxics and NOX adverse environmental impact, and a compliance baseline for NOX would be requirements for CG produced at a benchmark and provisions for remedial adjusted by 5 mg/mile. If there were no foreign refinery with an individual exceedance in the next years refinery baseline using the foreign 13 This value applies under the Phase 2 Complex comparison, then the adjustment would refinery’s baseline, taking into account Model. be dropped.16 14 In 1995 the volume weighted average for NOX NOX. This would also apply if EPA were to for imported gasoline was 1415.9 mg/mile, while 16 For the initial years of the program, EPA is compare 1998 separately to the benchmark. The 1% the SB was 1461 mg/mile, and the volume weighted proposing that an exceedance for 1998 and 1999 cap is designed to avoid imposing an unnecessarily average for domestic baselines was 1465 mg/mile. lead to a remedial adjustment that equals the stringent adjustment that could result from the 15 See 59 FR 22809 (May 3, 1994). exceedance, but no more than 1% of the SB for absence of data from a complete three year cycle. 24788 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules the volume cap on use of the foreign does not have an individual refinery possible if importers could convert CG refinery’s individual baseline. baseline. FRGAS into RFG. 1. Imported CG FRGAS EPA believes U.S. importers can 2. Imported CG That Is Not FRGAS easily protect themselves against this Imported CG FRGAS would be type of liability. EPA would publish on U.S. importers would meet all current excluded from the U.S. importer’s CG the RFG computer bulletin board the requirements for imported CG that is not compliance calculations. This would identity of foreign refineries that have FRGAS, including requirements for prevent the double counting that would been assigned individual baselines, that annual average exhaust toxics and NOX. result if FRGAS were included in the could be used by importers to identify However, the baseline used by CG compliance calculations of both the legitimate foreign refiners of FRGAS. importers would be the baseline foreign refiner and the U.S. importer. Importers can avoid relying on false described in section II.C of this However, the U.S. importer would certificates by selecting reliable business preamble. In the case of CG that is not determine the quality and quantity of partners, or by contacting the foreign FRGAS, importers would have no CG FRGAS at the U.S. port of entry, refiner to ensure the authenticity of the requirements related to tracking the which the importer would report to the certificate for any particular FRGAS refinery of origin. In addition, importers foreign refiner and to EPA in order to be batch. would be able to use the current GTAB compared with the foreign load port The U.S. importer would use an procedures to reblend or reclassify testing. independent laboratory to determine imported CG that is not FRGAS. A U.S. importer would classify an information about each CG FRGAS 3. Imported RFG imported CG batch as FRGAS if the batch. The batch quality and quantity gasoline is accompanied by a would be determined through sampling U.S. importers would include all certification prepared by the foreign and testing prior to off loading the ship, imported RFG in the importers’ RFG refiner that identifies the gasoline as that could be compared with the quality compliance calculations as is currently FRGAS to be included in the foreign and quantity determined at the load port required, including imported RFG refinery CG compliance calculations, after the ship was loaded. The FRGAS and imported RFG that is not and a report on the FRGAS batch independent lab also would use the FRGAS. However, in the case of prepared by an independent third party. product transfer documents to imported RFG FRGAS the importer These procedures are described in determine the identity of the foreign would have to meet additional greater detail in section II.B.3 of this refinery where the FRGAS was requirements related to tracking the preamble. In this way the U.S. importer produced. The importer would submit a refinery of origin. The importer would would act like a domestic distributor report to the foreign refiner and to EPA have an independent laboratory and would not be responsible for containing the batch information. determine the volume of each RFG meeting the exhaust toxics and NO X U.S. importers would not be able to FRGAS batch, and report this volume to requirements for CG. The U.S. importer classify CG FRGAS as ‘‘gasoline treated the foreign refiner and to EPA to be would not be responsible for whether as blendstock,’’ (GTAB), because to do compared with the load port volume. the foreign refiner meets the annual so would result in the same CG being The volume of RFG produced at a exhaust toxics and NOX requirements included in two compliance foreign refinery with an individual for CG, including whether the foreign calculations.17 In addition, U.S. baseline is used to calculate the refiner properly calculates the refinery’s importers could not use GTAB refinery’s CG compliance baseline, compliance baseline each year. procedures to convert FRGAS that is CG which constitutes a volume cap on use However, the U.S. importer would be into RFG, for the same reason that of an individual refinery baseline. responsible for ensuring the foreign domestic regulated parties are not U.S. importers would be able to use refiner certification was in fact prepared allowed to convert CG into RFG. by the foreign refiner named on the GTAB procedures for imported RFG that Conversion of CG into RFG is prohibited is both FRGAS and non-FRGAS, certificate, and that the foreign refinery because of concern such conversions has been assigned an individual refinery because foreign refiners would not have could result in degradation of the CG included the RFG in RFG compliance baseline by EPA. If a CG FRGAS gasoline pool. For example, in the certification was not prepared by the calculations. As a result, an importer absence of this constraint a refiner could could use GTAB procedures to blend named foreign refiner, for example if it produce very clean CG that in fact meets is a forgery, the U.S. importer would be additional blendstocks with RFG or to the RFG requirements, include this reclassify RFG as CG. required to include the CG in the gasoline the refiner’s CG compliance importer’s CG compliance calculations. calculations to offset other dirty CG, and 4. Alternative Option of U.S. Importer Similarly, if the certificate then convert this gasoline into RFG. The Accounting for FRGAS accompanying a batch of CG FRGAS effect of this form of gaming would be names a foreign refinery that has not degradation in the average quality of the EPA requests comment on an been assigned an individual baseline, refiner’s CG. This same effect would be alternative option where U.S. importers, the U.S. importer would be required to and not foreign refiners, would meet the include the CG in the importer’s CG 17 EPA has issued guidance under the current exhaust toxics and NOx requirements for compliance calculations. It is necessary regulations that allows importers to classify CG produced at foreign refineries with to make U.S. importers responsible for imported gasoline as blendstock, called GTAB, that an individual baseline. The importer accounting for imported CG in these the importer must use to produce gasoline at a would use the baseline that applies to refinery operated by the importer-company. The situations, because otherwise EPA purpose of the GTAB procedures is to enable the foreign refiner for this gasoline. This would be unable to enforce the CG importers to conduct remedial blending of imported alternative would require the foreign requirements. EPA would have great gasoline, or to reclassify gasoline with regard to refiner to specify the baseline values difficulty enforcing requirements with RFG or CG, before imported gasoline is introduced that apply to each CG batch, based on into U.S. commerce. This puts importers on a more regard to a foreign party who may have equal footing with refiners, who are able to reblend the volume of CG and RFG produced at created fraudulent FRGAS certification or reclassify gasoline prior to shipping gasoline the foreign refinery for the U.S. market documents, or a foreign refiner who from the refinery. each year as compared to the refinery’s Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24789 baseline volume.18 In addition, the U.S. the recalculation results in a violation of less stringent than the baseline values importer and foreign refiner would be the exhaust toxics and NOx ultimately approved by EPA, the required to track the refinery of origin requirements the importer would be refiner’s compliance with the CG for the CG produced at foreign refineries liable for the violation. Similarly, if the exhaust toxics and NOx requirements with individual baselines using foreign refinery for imported CG is will nevertheless be measured relative procedures similar to those described in improperly identified and the U.S. to the approved baseline values. If this section II.B.3 of this preamble. importer uses the improper baseline evaluation results in a violation of the Under this alternative U.S. importers values, the U.S. importer would be CG requirements, the foreign refiner will would calculate an annual compliance required to recalculate its compliance be held liable. baseline for exhaust toxics and NOx, baseline using the proper baseline based on the volume-weighted baselines values, and would be liable for any F. Requirements for RFG Before 1998 of all CG imported during the year—the resulting penalties. The focus of this proposal is on the assigned baseline values for CG requirements for CG, because the CG E. Early Use of Individual Foreign produced at foreign refineries with requirements rely on refinery baselines Refinery Baselines individual baselines, and the statutory both now and in the future. The RFG baseline for other CG. EPA is proposing that a foreign refiner requirements for sulfur, T–90 and olefin Under this alternative foreign refiners who submits a petition for an individual content also rely on individual refinery with individual refinery baselines, and refinery baseline could begin using the baselines, but only until the Complex U.S. importers, would be required to individual baseline prior to EPA Model applies beginning in January, track movements of blendstock approval of the baseline petition, 1998. EPA believes an approach similar produced at foreign refineries with provided EPA makes a preliminary to that proposed for CG could be used individual baselines, to ensure the finding the baseline petition is to allow foreign refiners to use foreign refiner abides by the blendstock complete, and the foreign refiner also individual refinery baselines for these transfer requirements specified in has completed certain requirements RFG requirements until January, 1998. § 80.102. However, under § 80.102 proposed today. However, any gasoline However, the comments received during blendstock tracking is required only of imported under a requested IB would be the comment period indicated that there refiners with a baseline parameter that subject to the actual IB assigned by EPA. is little if any interest in this matter is more stringent than the statutory EPA would conduct a completeness given that the complex model will apply baseline for that parameter. As a result, evaluation as the first step in baseline in the very near future. blendstock tracking would be required review process, and would notify a EPA requests comment on whether for any foreign refinery with an foreign refiner of the results of the the provisions for this rule should individual baseline value for either completeness review on request. include the provisions necessary to However, the initial completeness exhaust toxics or NOx that is more allow use of foreign refinery baselines review would not bar EPA from stringent than the statutory baseline for the RFG requirements, and whether requiring a foreign refiner to submit values for exhaust toxics or NOx. any foreign refiner believes it would be additional information later in the U.S. importers would be allowed to able to take advantage of these baseline review process. use the GTAB procedures for CG requirements if they were promulgated. produced at a foreign refinery with an The additional requirements a foreign individual baseline under this refiner would have to complete in order III. Public Participation to use an individual baseline early are alternative, because the foreign refiner EPA believes these proposed related to ensuring EPA’s ability to would not have included the gasoline in requirements would be consistent with monitor and enforce compliance by the refinery CG compliance calculations. In the Agency’s commitment to fully foreign refiner with all applicable this way, imported CG could be protect public health and the requirements during the early use reblended or reclassified as RFG. Like environment, and with the U.S. period. The particular requirements that under current GTAB procedures the commitment to ensure that the Gasoline baseline applicable to each imported CG would have to be met are: (1) The commitments regarding EPA Rule is consistent with the obligations batch, i.e., the baseline assigned by the of the U.S. under the WTO. EPA invites foreign refiner, would be carried over to inspections and the forum for enforcement actions, and (2) the comment on all aspects of today’s notice the importer-company’s refinery for that and also seeks comment on whether or batch. requirements related to bond posting. If these conditions are met, the foreign not the proposal meets the goal stated Under this alternative, the U.S. above. EPA invites comment on the importer would be responsible for using refiner could begin classifying CG and RFG as FRGAS, and could use the need for the proposed provisions, the the proper baseline for each imported environmental impact of the provisions, CG batch. If a foreign refiner assigns an individual refinery baseline to demonstrate compliance with the CG and the costs for all parties, foreign and improper baseline to a batch and the domestic, who would be affected by the U.S. importer uses the improper parameter and emissions 19 proposed changes to the Gasoline Rule. baseline values, the U.S. importer requirements. However, EPA is proposing that a foreign refiner would The Agency invites any alternative would be required to recalculate its CG approaches to regulating imported compliance using the proper baseline. be required to meet the CG requirements for FRGAS using the refinery baseline gasoline that would achieve the same This recalculation would be necessary goal. regardless of when the improper values that ultimately are approved by baseline values are discovered, and if EPA. Thus, if a foreign refiner elects to IV. Administrative Designation and use an individual refinery baseline Regulatory Analysis 18 For example, foreign refiners could be required early, and uses baseline values that are to assign the individual refinery baseline to CG A. Executive Order 12866 batches that are produced at a foreign refinery each 19 During 1997, under § 80.101(b)(1) the CG Under Executive Order 12866, (58 FR year before the refinery’s total volume of U.S. requirements are for sulfur, T–90, olefins and market gasoline (RFG plus CG) equals the refinery’s exhaust benzene emissions. Beginning in 1998 the 51735 (October 4, 1993)) the Agency baseline volume, and to assign the adjusted CG requirements are for exhaust toxics and NOx must determine whether the regulatory statutory baseline to subsequent CG batches. emissions. action is ‘‘significant’’ and therefore 24790 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules subject to Office of Management and foreign refineries. Other importers recognizes the need for recordkeeping, Budget (OMB) review and the would continue to meet the CG reporting and sampling/testing requirements of the Executive Order. requirements using the statutory requirements for enforcement of this The Order defines ‘‘significant baseline or an adjusted baseline. This program. Because of the complex nature regulatory action’’ as one that is likely would not, however, have a significant of the gasoline rule, EPA cannot to result in a rule that may: impact on the importer, as the importer determine compliance merely by taking (1) Have an annual effect on the would continue to only import gasoline samples of gasoline at various facilities. economy of $100 million or more or that allows it to meet the annual average For purposes of this document, EPA adversely affect in a material way the requirements, and such gasoline would expects that at most approximately three economy, a sector of the economy, continue to be available from the foreign foreign refiners will petition the agency productivity, competition, jobs, the refineries. The provision generally annually.20 The EPA estimates that environment, public health or safety, or corresponds with existing requirements. approximately 66 batches of CG would State, local, or tribal governments or This proposal would continue the be imported into the United States communities; requirement that importers be annually subject to an individual (2) Create a serious inconsistency or responsible for sampling and testing for baseline. These batches of CG must be otherwise interfere with an action taken foreign gasoline imported into the U.S. sampled and tested by an independent or planned by another Agency; Importers will be responsible for this laboratory making the total cost burden (3) Materially alter the budgetary activity at the port of entry in the U.S. shared by the independent importers impact of entitlement, grants, user fees, Importers would rely on the foreign approximately $24,000 a year. The or loan programs or the rights and refiners and the independent party’s to collection of information has an obligations of recipients thereof; or establish refinery of origin. Importers estimated recordkeeping and reporting (4) Raise novel legal or policy issues can accomplish this by making private burden averaging 4.1 hours per arising out of legal mandates, the arrangements with the importing foreign respondent, or a total estimated burden President’s priorities, or the principles refiner and the independent party. The of 812 hours shared by all respondents set forth in the Executive Order. Agency believes that, in general, annually. This estimate includes time Pursuant to the terms of Executive exercising good business practices with for reviewing instructions, searching Order 12866, it has been determined reputable foreign refiners would tend to existing data sources, gathering and that this rule is a ‘‘significant regulatory eliminate any impact on the importer. maintaining the data needed, and action,’’ as such, this action was The impact of today’s proposal would completing and reviewing the collection submitted to OMB for review. Changes therefore either not increase an of information. made in response to OMB suggestions or importers cost, or would do so only Burden means the total time, effort, or recommendations will be documented marginally. financial resources expended by persons in the public record. The issue of baselines for imported to generate, maintain, retain, or disclose B. Regulatory Flexibility Act gasoline is discussed generally in or provide information to or for a section VII–C of the Regulatory Impact The Regulatory Flexibility Act (RFA) Federal agency. This includes the time Analysis that was prepared to support needed to review instructions; develop, general requires an agency to conduct a the Final Rule for gasoline. A copy of regulatory flexibility analysis of any rule acquire, install, and utilize technology this document may be found in the RFG and systems for the purposes of subject to notice and comment docket, number A–92–12, at the location rulemaking requirements unless the collecting, validating, and verifying identified in the ADDRESSES section of information, processing and agency certifies that the rule will not this document. have a significant economic impact on maintaining information, and disclosing Therefore, I certify that this action and providing information; adjust the a substantial number of small entities. will not have a significant economic Small entities include small businesses, existing ways to comply with any impact on a substantial number of small previously applicable instructions and small not-for-profit enterprises, and entities. small governmental jurisdictions. This requirements; train personnel to be able proposed rule would not have a C. The Paperwork Reduction Act to respond to a collection of significant impact on a substantial The information collection information; search data sources; number of small entities because only a requirements in this proposed rule has complete and review the collection of limited number of domestic entities been submitted for approval to the information, and transmit or otherwise would be affected by this proposal and Office of Management and Budget disclose the information. would be small entities. In addition, (OMB) under the Paperwork Reduction An Agency may not conduct or today’s proposal would not significantly Act, 44 U.S.C. 3501 et seq. An sponsor, and a person is not required to change the requirements applicable to Information Collection Request (ICR) respond to a collection of information importers of gasoline produced by document has been prepared by EPA unless it displays a currently valid OMB foreign refineries. (ICR No. 1591.08) and a copy may be control number. The OMB control Of the entire population of importers obtained from Sandy Farmer, Regulatory numbers for EPA’s regulations are listed currently reporting to the EPA, Information Division; U.S. in 40 CFR Part 9 and 48 CFR Chapter somewhat less than 100 importers that Environmental Protection Agency 15. would be subject to today’s proposed (2136); 401 M St., S.W.; Washington, DC The Agency requests comments on rule are small entities. Under 40 CFR. 20460 or by calling (202) 260–2740. the need for this information, the 80.65 and 80.101 the requirements for This proposal would allow foreign accuracy of the provided burden imported CG must currently be met by refiners to establish individual baselines estimates, and any suggested methods the importer. The current requirements to demonstrate compliance with the for minimizing respondent burden, are based on the statutory baseline Agency’s gasoline rule. The information including through the use of automated while today’s proposed rule would collected would enable EPA to evaluate 20 To date, only a limited number of foreign require either foreign refiners or imported gasoline in a manner similar refiners have indicated an interest in establishing importers to meet the CG requirements to gasoline produced at domestic an IB. However, under the proposal any foreign using the baselines of the various refineries. Section 211(k) specifically refiner could apply for an IB. Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24791 collection techniques. Send comments small governments on compliance with properties of gasoline produced in 1990 on the ICR to the Director, Regulatory the regulatory requirements. that was imported into the United Information Division; U.S. Today’s rule contains no Federal States. Environmental Protection Agency mandates (under the regulatory (3) A baseline petition shall establish (2136); 401 M St., S.W.; Washington, DC provisions of Title II of the UMRA) for the volume of conventional gasoline 20460; and to the Office of Information State, local, or tribal governments or the produced at a foreign refinery and and Regulatory Affairs, Office of private sector. exported to the United States during the calendar year immediately preceding Management and Budget, 725 17th St., V. Statutory Authority N.W., Washington, DC 20503, marked the year the baseline petition is ‘‘Attention: Desk Officer for EPA.’’ The statutory authority for the rules submitted. Include the ICR number in any proposed today is granted to EPA by (4) In making determinations for correspondence. Since OMB is required sections 114, 211 (c) and (k), and 301 of foreign refinery baselines EPA will to make a decision concerning the ICR the Clean Air Act, as amended, 42 consider all information supplied by a between 30 and 60 days after May 6, U.S.C. 7414, 7545 (c) and (k), and 7601. foreign refiner, and in addition may rely 1997, a comment to OMB is best assured List of Subjects in 40 CFR Part 80 on any and all appropriate assumptions of having its full effect if OMB receives necessary to make such a determination. Environmental protection, Air (5) Where a foreign refiner submits a it by June 5, 1997. The final rule will pollution control, Fuel additives, petition that is incomplete or respond to any OMB or public Gasoline, Motor vehicle pollution, inadequate to establish an accurate comments on the information collection Penalties, Reporting and recordkeeping baseline, and the refiner fails to cure request. requirements. this defect after a request for more D. Unfunded Mandates Reform Act Dated: April 29, 1997. information, then EPA shall not assign Carol M. Browner, an individual refinery baseline. Title II of the Unfunded Mandates Administrator. (6) Baseline petitions under this Reform Act of 1995 (UMRA), Public paragraph (b) must be submitted before Law 104–4, establishes requirements for 40 CFR Part 80 is proposed to be amended as follows: January 1, 2002. Federal agencies to assess the effects of (c) General requirements for foreign their regulatory actions on State, local, PART 80ÐREGULATIONS OF FUELS refiners with individual refinery and tribal governments and the private AND FUEL ADDITIVES baselines. Any foreign refiner of a sector. Under section 202 of the UMRA, refinery that has been assigned an EPA generally must prepare a written 1. The authority citation for part 80 individual baseline under paragraph (b) statement, including a cost-benefit continues to read as follows: of this section shall designate all analysis, for proposed and final rules Authority: Sections 114, 211 and 301(a) of gasoline produced at the foreign refinery with ‘‘Federal mandates’’ that may the Clean Air Act, as amended (42 U.S.C. that is exported to the United States as result in expenditures to State, local, 7414, 7545 and 7601(a)). FRGAS. and tribal governments, in the aggregate, 2. Section 80.94 is proposed to be (1)(i) In the case of conventional or to the private sector, of $100 million added to subpart E to read as follows: gasoline FRGAS the foreign refiner shall or more in any one year. Before meet all requirements that apply to promulgating an EPA rule for which a § 80.94 Requirements for gasoline refiners under subparts D, E and F of written statement is needed, section 205 produced at foreign refineries. this part. of the UMRA generally requires EPA to (a) Definitions. (1) A foreign refinery (ii) If the foreign refinery baseline is identify and consider a reasonable means a refinery that is located outside assigned, or a foreign refiner begins number of regulatory alternatives and the United States, the Commonwealth of early use of a refinery baseline under adopt the least costly, most cost- Puerto Rico, the Virgin Islands, Guam, paragraph (q) of this section, on a date effective or least burdensome alternative American Samoa, and the other than January 1, the compliance that achieves the objectives of the rule. Commonwealth of the Northern Mariana baseline for the initial year shall be The provisions of section 205 do not Islands (collectively referred to in this calculated under § 80.101(f) using an apply when they are inconsistent with section as ‘‘the United States’’). adjusted baseline volume, as follows: (2) A foreign refiner means a refiner applicable law. Moreover, section 205 AV1990=(D/365)xV1990 of a foreign refinery. allows EPA to adopt an alternative other (3) FRGAS means gasoline produced where: AV1990=Adjusted 1990 baseline volume; than the least costly, most cost-effective at a foreign refinery that has been or least burdensome alternative if the D=Number of days remaining in the year assigned an individual refinery baseline, beginning with the day the foreign Administrator publishes with the final and that is included in the foreign rule an explanation why that alternative refinery baseline is approved or the day refinery’s conventional gasoline the foreign refiner begins early use of a was not adopted. Before EPA establishes compliance calculations, or compliance refinery baseline; any regulatory requirements that may baseline calculations. V1990 = Foreign refinery’s 1990 baseline significantly or uniquely affect small (b) Baseline establishment. Any volume. governments, including tribal foreign refiner may submit to EPA a (2) In the case of reformulated governments, it must have developed petition for an individual refinery gasoline and RBOB FRGAS, the foreign under section 203 of the UMRA a small baseline, under §§ 80.90 through 80.93, refiner shall meet the following government agency plan. The plan must for any foreign refinery that produced requirements: provide for notifying potentially gasoline in 1990 that was exported to (i) The designation requirements in affected small governments, enabling the United States. § 80.65(d)(1); officials of affected small governments (1) The provisions for baselines as (ii) The recordkeeping requirements to have meaningful and timely input in specified in §§ 80.90 through 80.93 shall in §§ 80.74(a), (b)(1) and (b)(3); the development of EPA regulatory apply to a foreign refinery, except where (iii) The reporting requirements in proposals with significant Federal provided otherwise in this section. §§ 80.75(a), (m), and (n); intergovernmental mandates, and (2) The baseline for a foreign refinery (iv) The registration requirements in informing, educating, and advising shall reflect only the volume and § 80.76; 24792 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

(v) The product transfer document subject to the segregation restrictions in at any other refinery, and a description requirements in §§ 80.77 (a) through (f), § 80.78(a), FRGAS may be combined of the gasoline’s movement and storage and (j); with other FRGAS produced at the same between production at the source (vi) The prohibition in §§ 80.78(a)(10), refinery or at other refineries that are refinery and ship loading. (b) and (c); and aggregated under § 80.101(h); and (4) A third person my be used to meet (vii) The independent audit (iii) Any subsequent transfers of the requirements in this paragraph (f) requirements in §§ 80.125 through custody or title to FRGAS must include only if: 80.127, 80.128 (a) through (c), and (g) these restrictions; and (i) The person is approved in advance through (i), and § 80.130. (2) Commercial penalties for any by EPA, based on a demonstration of (d) Designation, product transfer violations of the FRGAS requirements ability to perform the procedures documents, and foreign refiner that are sufficiently large to ensure required in this paragraph (f); certification. (1) Any foreign refiner of a compliance with the requirements. (ii) The person is independent under foreign refinery that has been assigned (f) Load port independent sampling, the criteria specified in § 80.65(f)(2)(iii); an individual baseline shall designate testing and refinery identification. (1) and each batch of FRGAS as such at the time On each occasion FRGAS is loaded onto (iii) The person signs a commitment the gasoline is produced, in addition to a vessel for transport to the United that contains the provisions specified in the designations required in § 80.65(d). States a foreign refiner shall have an paragraph (i) of this section with regard (2) On each occasion when any independent third party: to activities, facilities and documents person transfers custody or title to any (i) Inspect the vessel prior to loading; relevant to compliance with the FRGAS prior to its being imported into (ii) Collect a representative sample of requirements of this paragraph (f). the United States, the following the FRGAS subsequent to loading on the (g) Comparison of load port and port information shall be included as part of vessel and prior to departure of the of entry testing. (1) Any foreign refiner the product transfer document vessel from the port serving the foreign of CG FRGAS shall compare the results information in §§ 80.77 and 106: refinery; from the load port testing under (i) Identification of the gasoline as (iii) Analyze the sample for each paragraph (f)(1) of this section, with the FRGAS; and property specified in § 80.65(e)(1) using port of entry testing as reported under (ii) The name and EPA refinery the methodologies specified in § 80.46; paragraph (n)(4) of this section, and if registration number of the refinery (iv) Determine the volume of FRGAS the port of entry results differ by more where the FRGAS was produced. loaded onto the vessel; than the amounts allowed under (3) On each occasion when FRGAS is (v) Review original documents that § 80.65(e)(1) the foreign refiner shall loaded onto a vessel or other reflect movement and storage of the adjust the foreign refinery’s compliance transportation mode for transport to the FRGAS from the refinery to the load calculations under § 80.101(g) to reflect United States, the foreign refiner shall port, and from this review determine: the port of entry results. prepare a certification for each batch of (A) The refinery at which the FRGAS (2) The foreign refiner shall compare the FRGAS that meet the following was produced; and the volume from the load port testing requirements: (B) That the FRGAS remained with the volume from the port of entry (i) The certification shall include the segregated from: testing, and if these results, corrected for following information: (1) Non-FRGAS; or temperature and density, differ by 1% (A) The identification of the gasoline (2) Other FRGAS produced at a or more the foreign refiner shall: as FRGAS; different refinery, except that FRGAS (B) The volume of FRGAS being (i) In the case of reformulated gasoline may be combined with other FRGAS transported, in gallons; or RBOB FRGAS, adjust the foreign (C) In the case of conventional produced at refineries that are refinery’s compliance baseline gasoline FRGAS, the exhaust toxics and aggregated under § 80.101(h); calculations under § 80.101(f) to reflect (vi) Obtain the EPA-assigned NOx emissions performance in mg/mile; the port of entry volume; and (D) A declaration that the FRGAS is registration number of the foreign (ii) In the case of conventional being included in the compliance refinery; gasoline FRGAS adjust the foreign calculations under § 80.101(g) for the (vii) Determine the name and country refinery’s compliance calculations refinery that produced the FRGAS; and of registration of the ship used to under § 80.101(g) to reflect the port of (E) The name and EPA registration transport the FRGAS to the United entry volume, using the properties as number of the refinery that produced States; and determined at the foreign refinery. the FRGAS; (viii) Determine the date and time the (h) Attest requirements. The following (ii) The certification shall be signed ship departs the port serving the foreign additional procedures shall be carried by the president or owner of the foreign refinery. out by any foreign refiner of FRGAS as refiner company, or by that person’s (2) The requirements of paragraph part of the attest engagement for each immediate designee, with a declaration (f)(1) of this section must be met foreign refinery under subpart F of this as to the truth and accuracy of the separately for each quantity of FRGAS part: certification; and that is not homogenous with regards to (1) Obtain separate listings of all (iii) The certification shall be made properties specified in § 80.65(e)(1). tenders of reformulated and part of the product transfer documents (3) The independent third party shall conventional gasoline FRGAS that is for the FRGAS. submit a report to the Administrator loaded onto ships for transport to the (e) Contracts for sale or transfer. Any containing the information required United States. Agree the total volume of foreign refiner shall include as part of under paragraph (f)(1) of this section, tenders from the listings to the gasoline each contract for sale or transfer of any within thirty days following the date of inventory reconciliation analysis in FRGAS: the independent laboratory’s inspection. § 80.128(b), and to the volumes (1) The following requirements: This report shall include a description determined by the independent (i) Delivery of the FRGAS is restricted of the method used to determine the laboratory under paragraph (f)(1)(iv) of to the United States; identity of the refinery at which the this section. (ii) The FRGAS may not be combined gasoline was produced, that the gasoline (2) Report as a finding the name and with any other gasoline, except that, was not mixed with gasoline produced country of registration of each ship, and Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24793 the volumes of FRGAS loaded onto each procedures required in §§ 80.125 (vi) Inspections and audits by EPA ship, identified in paragraph (h)(1) of through 80.130 and this paragraph (h); may include taking samples of gasoline this section. and or blendstock, and interviewing (3) Select a sample from the list of (iii) Sign a commitment that contains employees. ships identified in paragraph (h)(1) of the provisions specified in paragraph (i) (vii) Any employee of the foreign this section, in accordance with the of this section with regard to activities refiner will be made available for guidelines in § 80.127, and for each ship and documents relevant to compliance interview by the EPA inspector or selected perform the following: with the requirements of §§ 80.125 auditor, on request, within a reasonable (i) Obtain the report of the through 80.130 and this paragraph (h). time period. independent laboratory, under (i) Foreign refiner commitments. Any (viii) English language translations of paragraph (f)(3) of this section, and of foreign refiner shall commit to and any documents will be provided to an the United States importer under comply with the provisions contained EPA inspector or auditor, on request, paragraph (n)(4) of this section. in this paragraph (i) as a condition to within 10 working days. (A) Agree the information in these being assigned an individual refinery (ix) English language interpreters will reports with regard to ship baseline. be provided to accompany EPA identification, gasoline volumes and test (1) Any United States Environmental inspectors and auditors, on request. results. Protection Agency inspector or auditor (2) An agent for service of process (B) Identify, and report as a finding, will be given full, complete and located in the District of Columbia will each occasion the load port and port of immediate access to conduct be named, and service on this agent entry emissions and/or volume results inspections and audits of the foreign constitutes service on the foreign refiner differ by more than the amounts refinery. or any employee of the foreign refiner. allowed in paragraph (g) of this section, (i) Inspections and audits may be (3) The forum for any civil or criminal and determine whether the foreign either announced in advance by EPA, or enforcement action related to the refiner adjusted its refinery calculations unannounced. provisions of this section for violations as required in paragraph (g) of this (ii) Access will be provided to any of the Clean Air Act or regulations section. location where: promulgated thereunder shall be (ii) Obtain copies of the contracts for (A) Gasoline is produced; governed by the Clean Air Act, sale and transfer of the FRGAS, and (B) Documents related to refinery including the EPA administrative forum determine whether the contract operations are kept; where allowed under the Clean Air Act. (C) Gasoline or blendstock samples provisions required in paragraph (e) of (4) United States substantive and are tested or stored; and this section are included. procedural laws apply to any civil or (D) FRGAS is stored or transported (iii) Obtain a commercial document of criminal enforcement action against the between the foreign refinery and the general circulation that lists vessel foreign refiner or any employee of the United States, including storage tanks, arrivals and departures, and that foreign refiner related to the provisions ships and pipelines. of this section. includes the port and date of departure (iii) Inspections and audits may be by of the ship, and the port of entry and (5) The foreign refiner, or its agents or EPA employees or contractors to EPA. employees, will not seek to detain or to date of arrival of the ship. Agree the (iv) Any documents requested that are impose civil or criminal remedies ship’s departure and arrival locations related to matters covered by against EPA inspectors or auditors, and dates from the independent inspections and audits will be provided whether EPA employees or EPA laboratory and United States importer to an EPA inspector or auditor on contractors, for actions performed reports to the information contained in request. the commercial document. (v) Inspections and audits by EPA within the scope of EPA employment (iv) Obtain the documents used by the may include review and copying of any related to the provisions of this section. independent laboratory to determine documents related to: (6) In the case of foreign refineries transportation and storage of the FRGAS (A) Refinery baseline establishment, that are owned or operated by a foreign from the refinery to the load port, under including the quantity and quality, and government, the foreign refiner will paragraph (f)(1)(v) of this section. transfers of title or custody, of any waive sovereign immunity with regard Obtain tank activity records for any gasoline or blendstocks, whether to prosecution by the United States of storage tank where the FRGAS is stored, FRGAS or non-FRGAS, produced at the civil and criminal violations of Clean and pipeline activity records for any foreign refinery during the period Air Act section 211(k) and the pipeline used to transport the FRGAS, January 1, 1990 through the date of the regulations promulgated thereunder at prior to being loaded onto the ship. Use refinery baseline petition or through the subparts D, E and F of this part and these records to determine whether the date of the inspection or audit if no other relevant laws and regulations FRGAS was produced at the refinery baseline petition has been submitted, including but not limited to Clean Air that is the subject of the attest and any work papers related to refinery Act sections 113, 114, 211(c) and (d), engagement, and whether the FRGAS baseline establishment; and Title 18 United States Code. This was mixed with any non-FRGAS (B) The quality and quantity of waiver of sovereign immunity also will gasoline or any FRGAS produced at a FRGAS; apply to any employee or agent of a different refinery. (C) Transfers of title or custody to refinery owned or operated by the (4) In order to complete the FRGAS; foreign government. requirements of this paragraph (h) an (D) Sampling and testing of FRGAS; (7) The commitment required by this auditor shall: (E) Worked performed or reports paragraph (i) shall be signed by the (i) Be independent under the criteria prepared by independent laboratories or owner or president of the foreign refiner specified in § 80.65(f)(2)(iii); by independent auditors under the business. In the case of foreign refineries (ii) Be licensed as a Certified Public requirements of this section, including that are state owned or operated, the Accountant in the United States and a work papers; and commitment shall be signed by an citizen of the United States, or be (F) Reports prepared for submission to official of the government at the cabinet approved in advance by EPA based on EPA, and any work papers related to secretary level or higher who has a demonstration of ability to perform the such reports. responsibility for the foreign refinery. 24794 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules

(8) In any case where FRGAS (k) Blendstock tracking. For purposes and prior to off loading any gasoline produced at a foreign refinery is stored of blendstock tracking by any foreign from the ship; and or transported by another company refiner under § 80.102 by a foreign (B) Analyze the sample for each between the refinery and the ship that refiner with an individual refinery property specified in § 80.65(e)(1) using transports the FRGAS to the United baseline, the foreign refiner may the methodologies specified in § 80.46. States, the foreign refiner shall obtain exclude from the calculations required (4) Any importer shall submit a report from each such other company a in § 80.102(d) the volume of applicable to the Administrator, and to the foreign commitment that meets the blendstocks for which the foreign refiner, containing the information requirements specified in paragraphs refiner has sufficient evidence in the determined under paragraph (n)(3) of (i)(1) through (7) of this section, and form of documentation that the this section, within thirty days these commitments shall be included in blendstocks were used to produce following the date any ship transporting the foreign refiner’s baseline petition. gasoline used outside the United States. FRGAS arrives at the United States port (j) Bond posting. Any foreign refiner (l) English language reports. Any of entry. shall meet the requirements of this report or other document submitted to (5)(i) Any United States importer shall paragraph (j) as a condition to being EPA by any foreign refiner shall be in meet the requirements specified for assigned an individual refinery baseline. English language, or shall include an conventional gasoline in § 80.101 for (1) The foreign refiner shall post a English language translation. any imported conventional gasoline that bond of the amount calculated using the (m) Prohibitions. No person may is not classified as FRGAS under following equation: combine FRGAS produced at a foreign paragraph (n)(2) of this section. Bond = G x $ 0.01 refinery with any non-FRGAS produced (ii) The baseline applicable to a at that foreign refinery, or with any United States importer who has not where: gasoline or blendstock produced at any been assigned an individual importer Bond = amount of the bond in U.S. dollars; G = the largest volume of conventional other refinery, prior to the FRGAS being baseline under § 80.91(b)(4) shall be the gasoline produced at the foreign refinery imported into the United States. baseline specified in paragraph (o) of and exported to the United States, in (n) United States importer this section. gallons, during the most recent of the requirements. Any United States (o) Importer baseline. (1) Each following calendar years up to a importer shall meet the following calendar year starting in 2000, the maximum of five calendar years: the requirements: Administrator shall calculate the calendar year immediately preceding the (1) Each batch of imported gasoline volume-weighted average for exhaust date the baseline petition is submitted, shall be classified by the importer as NOx under the Phase II Complex Model the calendar year the baseline petition is being FRGAS, or as not being FRGAS. for conventional gasoline imported into submitted, and each succeeding calendar year. (2) Gasoline shall be classified as the United States during the prior three FRGAS where the product transfer calendar years, except as provided (2) Bonds shall be posted by: documents include a foreign refiner otherwise in this paragraph (o). The (i) Paying the amount of the bond to FRGAS certification for the gasoline, as calculation shall be based on the reports the Treasurer of the United States; or required in paragraph (d)(3) of this submitted under this section and (ii) Obtaining a bond in the proper section, that was prepared by the foreign § 80.105. The calculation shall consider: amount from a third party surety agent refiner of the FRGAS and that is (i) Imported conventional gasoline that would be payable to satisfy U.S. supported by a report of an inspection that is not classified as FRGAS, and administrative or judicial judgments of the gasoline at the foreign load port included in the conventional gasoline against the foreign refiner, provided prepared by an independent third party compliance calculations of U.S. EPA agrees in advance as to the third as required in paragraph (f) of this importers for each year; and party and the nature of the surety section. (ii) Imported conventional gasoline agreement. (3) For each gasoline batch classified that is classified as FRGAS, and (3) If the bond amount for a foreign as FRGAS, any United States importer included in the conventional gasoline refinery increases the foreign refiner shall perform the following procedures: compliance calculations of a foreign shall increase the bond to cover the (i) In the case of both reformulated refiner for each year. shortfall within 90 days of the date the and conventional gasoline FRGAS, have (2) In 2000 the calculation shall be for bond amount changes. If the bond an independent laboratory: the 1998 and 1999 averaging periods. amount decreases, the foreign refiner (A) Determine the batch volume; The calculation in 2000 shall also may reduce the amount of the bond (B) Use the foreign refiner’s FRGAS include all conventional gasoline beginning 90 days after the date the certification to determine the name and classified as FRGAS and included in the bond amount changes. EPA-assigned registration number of the conventional gasoline compliance (4) Bonds posted under this paragraph foreign refinery that produced the calculations of a foreign refiner for 1997, (j) shall be used to satisfy: FRGAS; and all conventional gasoline batches (i) Any judgment against the foreign (C) Determine the name and country that are imported during 1997 beginning refiner or against any employee or agent of registration of the ship used to on the date the first batch of FRGAS of the foreign refiner for violation of the transport the FRGAS to the United arrives at a United States port of entry. Clean Air Act or regulations States; and (3)(i) The Administrator shall promulgated thereunder; (D) Determine the date and time the determine whether the volume- (ii) Any judgment against any other ship arrives at the United States port of weighted average calculated in party for a violation that is caused by entry. paragraph (o)(1) and (2) of this section the foreign refiner. (ii) In the case of conventional is greater than the following value: (5) On any occasion a foreign refiner gasoline FRGAS, have an independent Exhaust NOX-1465 mg/mile. bond is used to satisfy any judgment, laboratory: (ii) If the volume-weighted average for the foreign refiner shall increase the (A) Collect a representative sample of exhaust NOX is greater than 1465 mg/ bond to cover the amount used within the gasoline subsequent to the ship’s mile, the Administrator shall calculate 90 days of the date the bond is used. arrival at the United States port of entry an adjusted baseline for the exhaust Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Proposed Rules 24795

NOX according to the following it shall be effective upon publication of (iii) The foreign refiner has made the equation: the notice. A baseline shall remain in commitments required in paragraph (i) ABi = Bi—(MYAi—Bi) effect until the effective date of a of this section; where: subsequent change to the baseline (iv) The persons who will meet the ABi = Adjusted baseline; pursuant to this paragraph (o). independent third party and I = Exhaust NOX; (p) Withdrawal or suspension of a independent attest requirements for the Bi = Value in paragraph (o)(3)(i) of this foreign refinery’s baseline EPA may foreign refinery have made the section; withdraw or suspend a baseline that has commitments required in paragraphs MYAi = Multi-year average. been assigned to a foreign refinery (f)(4)(iii) and (h)(4)(iii) of this section; (4)(i) Notwithstanding the provisions where: and of § 80.91(b)(4)(iii), the baseline exhaust (1) A foreign refiner fails to meet any (v) The foreign refiner has met the NOX emissions values applicable to any requirement of this section; bond requirements of paragraph (j) of United States importer who has not (2) A foreign government fails to this section. allow EPA inspections as provided in been assigned an individual importer (2) In any case where a foreign refiner paragraph (i)(1) of this section; or baseline under § 80.91(b)(4) shall be the uses an individual refinery baseline (3) A foreign refiner fails to pay a civil more stringent of the statutory baseline before final approval under paragraph or criminal penalty that is not satisfied value for exhaust NOX under (q)(1) of this section, and the foreign using the foreign refiner bond specified § 80.91(c)(5), or the adjusted baseline refinery baseline values that ultimately in paragraph (j) of this section. value for exhaust NOx calculated under are approved by EPA are more stringent (q) Early use of a foreign refinery paragraph (o)(3) of this section. than the early baseline values used by (ii) On or before June 1 of each baseline. (1) A foreign refiner may begin the foreign refiner, the foreign refiner calendar year, the Administrator shall using an individual refinery baseline shall recalculate its compliance, ab publish a notice in the Federal Register before EPA has approved the baseline, initio, using the baseline values providing the baseline that applies to provided that: approved by EPA, and the foreign importers under this paragraph (o). If (i) A baseline petition has been refiner shall be liable for any resulting the baseline is an adjusted baseline, it submitted as required in paragraph (b) violation of the conventional gasoline shall be effective for any conventional of this section; requirements. gasoline imported beginning 60 days (ii) EPA has made a provisional following the publication of the notice. finding that the baseline petition is [FR Doc. 97–11629 Filed 5–5–97; 8:45 am] If the baseline is the statutory baseline, complete; BILLING CODE 6560±50±P i

Reader Aids Federal Register Vol. 62, No. 87 Tuesday, May 6, 1997

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 3 CFR 14 CFR For additional information 523±5227 Proclamations: 39 ...... 23640, 23642, 24009, Presidential Documents 6996...... 24555 24013, 24014, 24015, 24017, Executive orders and proclamations 523±5227 6997...... 24557 24019, 24021, 24022, 24325, The United States Government Manual 523±5227 Administrative Orders: 24567, 24568, 24570 Presidential Determinations: 71 ...... 23643, 23644, 23646, No. 97±21 of April 24, 23647, 34648, 23649, 23651, Other Services 1997 ...... 23939 23652, 23653, 23654, 23655, Electronic and on-line services (voice) 523±4534 23656, 24024 Privacy Act Compilation 523±3187 5 CFR 97...... 24025 TDD for the hearing impaired 523±5229 3801...... 23941 187...... 24286, 24552 Proposed Rules: 7 CFR 11...... 24288 ELECTRONIC BULLETIN BOARD 29...... 24559 21...... 24288 Free Electronic Bulletin Board service for Public Law numbers, 226...... 23613 25...... 24288 Federal Register finding aids, and list of documents on public 301 ...... 23620, 23943, 24746, 39...... 23695, 23697 inspection. 202±275±0920 24753 71...... 23699 340...... 23628, 23945 FAX-ON-DEMAND 454...... 23628 16 CFR You may access our Fax-On-Demand service. You only need a fax 457...... 23628 Proposed Rules: machine and there is no charge for the service except for long 1493...... 24560 1015...... 24614 distance telephone charges the user may incur. The list of 1494...... 24560 documents on public inspection and the daily Federal Register’s 1755...... 23958 17 CFR Proposed Rules: table of contents are available using this service. The document 1...... 24026 numbers are 7050-Public Inspection list and 7051-Table of 401...... 23675 416...... 23680 15...... 24026 Contents list. The public inspection list will be updated 16...... 24026 immediately for documents filed on an emergency basis. 425...... 23685 437...... 23690 17...... 24026 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 457 ...... 23675, 23680, 23685, 230...... 24572 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 23690 Proposed Rules: public inspection may be viewed and copied in our office located 1137...... 24610 230...... 24160 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 239...... 24160 telephone number is: 301±713±6905 8 CFR 270...... 24160, 24161 292...... 23634 274...... 24160 FEDERAL REGISTER PAGES AND DATES, MAY 9 CFR 19 CFR 23613±23938...... 1 92...... 23635 Proposed Rules: 23939±24324...... 2 304...... 23639 111...... 24374 24325±24558...... 5 308...... 23639 163...... 24374 24559±24796...... 6 310...... 23639 327...... 23639 20 CFR 381...... 23639 416...... 23639 429...... 24328 417...... 23639 21 CFR Proposed Rules: 3...... 24611 Proposed Rules: Ch.I ...... 24619 10 CFR 1308...... 24620 Proposed Rules: 435...... 24164 22 CFR 41 (3 documents) ...... 24331, 11CFR 24332, 24334 Proposed Rules: 100...... 24367 24 CFR 104...... 24367 5...... 24334 109...... 24367 110...... 24367 573...... 24573 950...... 24334 12 CFR 3280...... 24337 617...... 24562 3282...... 24337 13 CFR 26 CFR 121...... 24325 1...... 23657 ii Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Reader Aids

27 CFR 38 CFR Proposed Rules: 48 CFR 62...... 23736 Proposed Rules: Proposed Rules: 1831...... 24345 9...... 24622 3...... 23724 Proposed Rules: 45 CFR 17...... 23731 32...... 23740 28 CFR 1626...... 24054, 24159 52...... 23740 0...... 23657 39 CFR 252...... 23741 45...... 23941 111...... 24340 46 CFR 29 CFR 108...... 23894 49 CFR 40 CFR 110...... 23894 Proposed Rules: 1...... 23661 52 ...... 24035, 24036, 24341, 111...... 23894 4231...... 23700 8...... 23661 24574 112...... 23894 10...... 23666 81 ...... 24036, 24038, 24552 113...... 23894 30 CFR 107...... 24055 180...... 24040, 24045 161...... 23894 Proposed Rules: 171...... 24690 244...... 24051 251...... 23705 Proposed Rules: 172...... 24690 372...... 23834 2...... 23705 253...... 24375 173...... 24690 31...... 23705 Proposed Rules: 175...... 24690 71...... 23705 31 CFR 52 ...... 24060, 24380, 24632 176...... 24690 91...... 23705 351...... 24280 60...... 24212 178...... 24690 63...... 24212 107...... 23705 Proposed Rules: 190...... 24055 80...... 24776 115...... 23705 356...... 24375 Proposed Rules: 81...... 24065 126...... 23705 1121...... 23742 32 CFR 180...... 24065 175...... 23705 176...... 23705 1150...... 23742 706...... 23658 260...... 24212 261...... 24212 189...... 23705 33 CFR 264...... 24212 50 CFR 117...... 24338 265...... 24212 47 CFR 222...... 24345 165...... 23659, 24339 266...... 24212 0...... 24054 227...... 24345, 24588 334...... 24034 270...... 24212 1...... 24576 600...... 23667 271...... 24212 Proposed Rules: 2...... 24576 622...... 23671 64...... 24583, 24585 660...... 24355 96...... 23705 41 CFR 100...... 24377 68...... 24587 670...... 24058 110...... 24378 Proposed Rules: 73...... 24055 679...... 24058 101±47...... 24383 101...... 24576 Proposed Rules: 36 CFR Proposed Rules: 17 ...... 24387, 24388, 24632 Proposed Rules: 44 CFR 2...... 24383 600...... 23744 7...... 24624 64...... 24343 25...... 24073 648...... 24073 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Reader Aids iii

REMINDERS AGRICULTURE Antidumping and Pipeline Customer Coalition The items in this list were DEPARTMENT countervailing duties, and Interstate Natural Gas editorially compiled as an aid Federal Crop Insurance conformance and Federal Association of America; to Federal Register users. Corporation regulatory review; interstate natural gas Inclusion or exclusion from Crop insurance regulations: comments due by 5-12- pipelines services; this list has no legal Safflower seed; comments 97; published 4-23-97 expedited complaint significance. due by 5-12-97; published COMMERCE DEPARTMENT procedures; comments 4-11-97 National Oceanic and due by 5-16-97; published 4-28-97 AGRICULTURE Atmospheric Administration RULES GOING INTO DEPARTMENT Fishery conservation and ENVIRONMENTAL EFFECT MAY 6, 1997 Farm Service Agency management: PROTECTION AGENCY Federal Agriculture Atlantic highly migratory Air pollution; standards of species fisheriesÐ ENVIRONMENTAL Improvement and Reform performance for new PROTECTION AGENCY Act of 1996; implementation: Atlantic bluefin tuna; stationary sources: comments due by 5-16- Phosphate fertilizer industry; Air quality implementation Delinquent account servicing 97; published 4-21-97 granular triple plans; approval and provisions; comments due Highly migratory species superphosphate storage promulgation; various by 5-13-97; published 3-5- advisory panels facilities; comments due States: 97 establishment; by 5-15-97; published 4- AGRICULTURE Oregon; published 3-7-97 combination of Atlantic 15-97 DEPARTMENT Air quality implementation shark, swordfish, and Air programs: √ √ Food Safety and Inspection plans; A approval and tunas fishery management Ambient air quality promulgation; various Service plans; comments due by Meat and poultry inspection: surveillance; ozone States; air quality planning 5-15-97; published 4-4-97 monitoring season Cooked roast beef products; purposes; designation of Northeastern United States modification for sorbitol use; comments areas: fisheriesÐ Connecticut, Maine, due by 5-13-97; published Oregon; published 3-7-97 Summer flounder, scup, Massachusetts, New 3-14-97 Hazardous waste program and Black Sea bass; Hampshire, Rhode Island, authorizations: AGRICULTURE comments due by 5-14- and Vermont; comments DEPARTMENT 97; published 4-15-97 Nevada; published 3-7-97 due by 5-16-97; published Grain Inspection, Packers Marine mammals: 4-16-97 SECURITIES AND and Stockyards Commercial fishing EXCHANGE COMMISSION Air quality implementation Administration authorizationsÐ plans; approval and Securities: Packers and Stockyard Act: Take reduction plan and promulgation; various Securities Exchange Act of Poultry grower contracts, emergency regulations; States: hearings; comments 1933; prepared by or on scales, weighing; California; comments due by due by 5-15-97; behalf of the issuer for comments due by 5-12- 5-14-97; published 4-14- published 4-24-97 purposes of Section 18 of 97; published 2-10-97 97 Incidental takingÐ the Act; published 5-6-97 AGRICULTURE New Jersey; comments due North Atlantic right whale, DEPARTMENT by 5-12-97; published 4- etc.; take reduction Rural Business-Cooperative 11-97 COMMENTS DUE NEXT plan; comments due by Service WEEK 5-15-97; published 4-7- Ohio; comments due by 5- Federal Agriculture 97 16-97; published 4-16-97 Improvement and Reform AGRICULTURE Subsistence takingÐ Tennessee; comments due Act of 1996; implementation: DEPARTMENT Northern fur seals; by 5-14-97; published 4- Delinquent account servicing harvest estimates; 14-97 Agricultural Marketing provisions; comments due Service comments due by 5-12- Vermont; comments due by by 5-13-97; published 3-5- 97; published 4-11-97 5-12-97; published 4-10- Potatoes (Irish) grown inÐ 97 CONSUMER PRODUCT 97 Washington; comments due AGRICULTURE SAFETY COMMISSION Virginia; comments due by by 5-14-97; published 4- DEPARTMENT 5-13-97; published 4-29- 14-97 Poison prevention packaging: Rural Housing Service Household products 97 Raisins produced from grapes Federal Agriculture containing petroleum Air quality implementation grown in California; Improvement and Reform distillates and other plans; √A√approval and comments due by 5-14-97; Act of 1996; implementation: hydrocarbons; comments promulgation; various published 4-14-97 Delinquent account servicing due by 5-12-97; published States; air quality planning AGRICULTURE provisions; comments due 2-26-97 purposes; designation of DEPARTMENT by 5-13-97; published 3-5- DEFENSE DEPARTMENT areas: Animal and Plant Health 97 Acquisition regulations: Indiana; comments due by Inspection Service AGRICULTURE Duty-free entry of supplies; 5-13-97; published 3-14- Poultry improvement: DEPARTMENT guidance clarification; 97 National Poultry Rural Utilities Service comments due by 5-12- Air quality planning purposes; Improvement Plan and Rural development: 97; published 3-11-97 designation of areas: auxiliary provisionsÐ Distance learning and ENERGY DEPARTMENT Maine; comments due by 5- New program telemedicine loan and Nuclear waste repositories; 16-97; published 4-16-97 classifications and new grant program; comments site recommendations; Solid wastes: or modified sampling due by 5-16-97; published general guidelines; Recovered materials and testing procedures 4-16-97 comments due by 5-16-97; advisory notice; for participants and COMMERCE DEPARTMENT published 4-29-97 availability; comments due participating flocks; International Trade ENERGY DEPARTMENT by 5-14-97; published 4- establishment; Administration Federal Energy Regulatory 14-97 comments due by 5-12- Uruguay Round Agreements Commission Water programs and sewage 97; published 3-11-97 Act (URAA): Rulemaking petitions: sludge: iv Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Reader Aids

State sewage sludge establishment; Federal credit unions bylaws Domestic passenger management programs; comments due by 5-12- and Federal credit union manifest information; streamlining; comments 97; published 3-12-97 standard bylaw comments due by 5-12- due by 5-12-97; published HOUSING AND URBAN amendments; revision; 97; published 3-13-97 3-11-97 DEVELOPMENT comments due by 5-12- 97; published 3-13-97 TRANSPORTATION FEDERAL DEPARTMENT DEPARTMENT COMMUNICATIONS Community development block Interpretive rulings and COMMISSION grants: policy statements; Federal Aviation Practice and procedure: State program income revision; comments due Administration by 5-12-97; published 3- Pole attachmentsÐ requirements and Airworthiness directives: miscellaneous 13-97 Cable operators; amendments; reporting NORTHEAST DAIRY Airbus Industrie; comments maximum just and and recordkeeping COMPACT COMMISSION due by 5-12-97; published reasonable rates utilities requirements; comments Over-order price regulations: 4-1-97 charge; comments due due by 5-12-97; published by 5-12-97; published Compact over-order price Boeing; comments due by 3-11-97 4-14-97 regulation for Connecticut, 5-12-97; published 3-13- Maine, Massachusetts, 97 Radio stations; table of INTERIOR DEPARTMENT New Hampshire, Rhode assignments: Fish and Wildlife Service Jetstream; comments due Island, and Vermont; Endangered and threatened by 5-15-97; published 4-4- Tennessee; comments due comments due by 5-12- species: 97 by 5-12-97; published 3- 97; published 4-28-97 26-97 Flat-tailed horned lizard; comments due by 5-12- PENSION BENEFIT New Piper Aircraft, Inc.; Television broadcasting: 97; published 3-5-97 GUARANTY CORPORATION comments due by 5-16- Cable television systemsÐ 97; published 2-19-97 Migratory bird hunting: Single-employer plans: Navigation devices; Migratory bird harvest Termination regulations; Pilatus Britten-Norman Ltd.; commercial availability; information program; amendments; comments comments due by 5-12- comments due by 5-16- participating States; due by 5-13-97; published 97; published 3-6-97 97; published 3-5-97 3-14-97 comments due by 5-13- Class D airspace; comments Television stations; table of 97; published 3-14-97 TRANSPORTATION due by 5-15-97; published assignments: NATIONAL AERONAUTICS DEPARTMENT 4-9-97 Pennsylvania; comments AND SPACE Coast Guard due by 5-12-97; published ADMINISTRATION Drawbridge operations: Class E airspace; comments due by 5-15-97; published 3-25-97 Acquisition regulations: Massachusetts; comments 4-21-97 FEDERAL TRADE Protests to agency; due by 5-12-97; published COMMISSION comments due by 5-12- 4-11-97 TRANSPORTATION Trade regulation rules: 97; published 3-11-97 Regattas and marine parades: DEPARTMENT Telecommunications Act of NATIONAL CREDIT UNION Laughlin Aquamoto Sports Federal Highway 1996Ð ADMINISTRATION Challenge and Expo; Administration 900-number rules; pay- Credit unions: comments due by 5-12- Motor carrier safety standards: per-call services Credit union service 97; published 3-26-97 advertising and organizations; comments TRANSPORTATION Federal regulatory review; operation and billing due by 5-12-97; published DEPARTMENT comments due by 5-12- dispute procedures 3-13-97 Economic regulations: 97; published 3-27-97 Federal Register / Vol. 62, No. 87 / Tuesday, May 6, 1997 / Reader Aids v

FEDERAL REGISTER WORKSHOP THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT FOR: Any person who uses the Federal Register and Code of Federal Regulations. WHO: Sponsored by the Office of the Federal Register. WHAT: Free public briefings (approximately 3 hours) to present: 1. The regulatory process, with a focus on the Federal Register system and the public’s role in the development of regulations. 2. The relationship between the Federal Register and Code of Federal Regulations. 3. The important elements of typical Federal Register documents. 4. An introduction to the finding aids of the FR/CFR system. WHY: To provide the public with access to information necessary to research Federal agency regulations which directly affect them. There will be no discussion of specific agency regulations.

Long Beach, CA WHEN: May 20, 1997 at 9:00 am to 12:00 noon WHERE: Glenn M. Anderson Federal Building 501 W. Ocean Blvd. Conference Room 3470 Long Beach, CA 90802

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