Pages 10185±10410 Vol. 62 3±6±97 No. 44 federal register March 6,1997 Thursday Office (GPO). Access Regulations (CFR) Free, easy,onlineaccesstoselected The released concurrently. that theonlineandprintedversionsof until acompletesetisavailable.GPOtakingstepsso incrementally throughoutcalendaryears1996and1997 GPO Access services andaccessmethods,seepageIIorcontactthe For additionalinformationon http://www.access.gpo.gov/nara/cfr service astheybecomeavailable. New titlesand/orvolumeswillbeaddedtothisonline Committee oftheFederalRegister. official onlineeditionsauthorizedbytheAdministrative announcement ontheinsidecoverofthisissue For informationonbriefingsinWashington,DC,see Briefings onhowtousetheFederalRegister ★ ★ CFR Code ofFederalRegulations , aserviceoftheUnitedStatesGovernmentPrinting Email: [email protected] Phone: toll-free:1-888-293-6498 and User SupportTeamvia: Federal Register CFR Now AvailableOnline GPO Access volumes isnowavailablevia (Selected Volumes) titles willbeaddedto via GPO Access on GPO Access Code ofFederal CFR GPO Access products, , arethe will be GPO 1 II Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997

SUBSCRIPTIONS AND COPIES PUBLIC Subscriptions: Paper or fiche 202–512–1800 Assistance with public subscriptions 512–1806

FEDERAL REGISTER Published daily, Monday through Friday, General online information 202–512–1530 (not published on Saturdays, Sundays, or on official holidays), 1–888–293–6498 by the Office of the Federal Register, National Archives and Single copies/back copies: Records Administration, Washington, DC 20408, under the Federal Paper or fiche 512–1800 Register Act (49 Stat. 500, as amended; 44 U.S.C. Ch. 15) and Assistance with public single copies 512–1803 the regulations of the Administrative Committee of the Federal Register (1 CFR Ch. I). Distribution is made only by the FEDERAL AGENCIES Superintendent of Documents, U.S. Government Printing Office, Subscriptions: Washington, DC 20402. Paper or fiche 523–5243 Assistance with Federal agency subscriptions 523–5243 The Federal Register provides a uniform system for making available to the public regulations and legal notices issued by For other telephone numbers, see the Reader Aids section at the end of Federal agencies. These include Presidential proclamations and this issue. Executive Orders and Federal agency documents having general applicability and legal effect, documents required to be published by act of Congress and other Federal agency documents of public interest. Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless NOW AVAILABLE ONLINE earlier filing is requested by the issuing agency. The January 1997 Office of the Federal Register Document The seal of the National Archives and Records Administration Drafting Handbook authenticates this issue of the Federal Register as the official serial publication established under the Federal Register Act. 44 U.S.C. Free, easy, online access to the newly revised January 1997 1507 provides that the contents of the Federal Register shall be Office of the Federal Register Document Drafting Handbook judicially noticed. (DDH) is now available at: The Federal Register is published in paper, 24x microfiche and http://www.nara.gov/nara/fedreg/ddh/ddhout.html as an online database through GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal This handbook helps Federal agencies to prepare documents Register on GPO Access is issued under the authority of the for publication in the Federal Register. Administrative Committee of the Federal Register as the official For additional information on access, contact the Office of legal equivalent of the paper and microfiche editions. The online the Federal Register’s Technical Support Staff. database is updated by 6 a.m. each day the Federal Register is published. The database includes both text and graphics from Phone: 202–523–3447 Volume 59, Number 1 (January 2, 1994) forward. Free public E-mail: [email protected] access is available on a Wide Area Information Server (WAIS) through the Internet and via asynchronous dial-in. Internet users can access the database by using the World Wide Web; the Superintendent of Documents home page address is http:// www.access.gpo.gov/suldocs/, by using local WAIS client software, or by telnet to swais.access.gpo.gov, then login as guest, FEDERAL REGISTER WORKSHOP (no password required). Dial-in users should use communications software and modem to call (202) 512–1661; type swais, then login THE FEDERAL REGISTER: WHAT IT IS AND as guest (no password required). For general information about HOW TO USE IT GPO Access, contact the GPO Access User Support Team by sending Internet e-mail to [email protected]; by faxing to (202) FOR: Any person who uses the Federal Register and Code of Federal 512–1262; or by calling toll free 1–888–293–6498 or (202) 512– Regulations. 1530 between 7 a.m. and 5 p.m. Eastern time, Monday–Friday, WHO: Sponsored by the Office of the Federal Register. except for Federal holidays. WHAT: Free public briefings (approximately 3 hours) to present: 1. The regulatory process, with a focus on the Federal Register The annual subscription price for the Federal Register paper system and the public’s role in the development of edition is $555, or $607 for a combined Federal Register, Federal regulations. Register Index and List of CFR Sections Affected (LSA) 2. The relationship between the Federal Register and Code subscription; the microfiche edition of the Federal Register of Federal Regulations. including the Federal Register Index and LSA is $220. Six month 3. The important elements of typical Federal Register subscriptions are available for one-half the annual rate. The charge documents. for individual copies in paper form is $8.00 for each issue, or 4. An introduction to the finding aids of the FR/CFR system. $8.00 for each group of pages as actually bound; or $1.50 for WHY: To provide the public with access to information necessary to each issue in microfiche form. All prices include regular domestic research Federal agency regulations which directly affect them. postage and handling. International customers please add 25% for There will be no discussion of specific agency regulations. foreign handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA or MasterCard. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. WASHINGTON, DC There are no restrictions on the republication of material appearing WHEN: March 18, 1997 at 9:00 am in the Federal Register. WHERE: Office of the Federal Register Conference Room How To Cite This Publication: Use the volume number and the page number. Example: 60 FR 12345. 800 North Capitol Street, NW Washington, DC (3 blocks north of Union Station Metro) RESERVATIONS: 202–523–4538

2 III

Contents Federal Register Vol. 62, No. 44

Thursday, March 6, 1997

Agency for Health Care Policy and Research Children and Families Administration NOTICES NOTICES Meetings: Agency information collection activities: Health Care Policy and Research Special Emphasis Panel, Submission for OMB review; comment request, 10284– 10277–10278 10285

Agriculture Department Commerce Department See Animal and Plant Health Inspection Service See Census Bureau See Food and Consumer Service See Economic Development Administration See Forest Service See National Oceanic and Atmospheric Administration NOTICES NOTICES Agency information collection activities: Agency information collection activities: Proposed collection; comment request, 10253 Submission for OMB review; comment request, 10255– 10256 Animal and Plant Health Inspection Service RULES Corporation for National and Community Service Interstate transportation of animals and animal products NOTICES (quarantine): Meetings; Sunshine Act, 10259 Brucellosis in cattle and bison— State and area classifications, 10192–10193 Defense Department See Army Department Arctic Research Commission See Engineers Corps NOTICES See Navy Department Meetings, 10254–10255 NOTICES Meetings: Military Health Care Advisory Committee, 10259 Army Department See Engineers Corps Economic Development Administration NOTICES Patent licenses; non-exclusive, exclusive, or partially NOTICES exclusive: Trade adjustment assistance eligibility determination Chemotherapeutic treatment of bacterial infections, etc., petitions: 10260 Centurion International, Inc., et al., 10257–10258 Vaccines against diseases caused by enteropathogenic organisms using antigens encapsulated within Education Department biodegradable-biocompatible microspheres, etc., RULES 10260 Direct grant programs; EDGAR criteria, etc., 10398–10406

Arts and Humanities, National Foundation Energy Department See National Foundation on the Arts and the Humanities See Federal Energy Regulatory Commission See Hearings and Appeals Office, Energy Department Assassination Records Review Board Engineers Corps NOTICES NOTICES Meetings; Sunshine Act, 10255 Base realignment and closure: Surplus Federal property— Broadcasting Board of Governors Recreation Center No. 2; Fayetteville, NC, 10260–10261 NOTICES Patent licenses; non-exclusive, exclusive, or partially Meetings; Sunshine Act, 10255 exclusive: Concrete armor unit to protect coastal and hydraulic Census Bureau structures and shorelines, 10261 NOTICES Agency information collection activities: Environmental Protection Agency Proposed collection; comment request, 10256–10257 NOTICES Meetings: Centers for Disease Control and Prevention Acute Exposure Guideline Levels for Hazardous NOTICES Substances National Advisory Committee, 10270 Grants and cooperative agreements; availability, etc.: State capacity projects for assessing and preventing Equal Employment Opportunity Commission secondary conditions associated with disability, etc., NOTICES 10278–10284 Meetings; Sunshine Act, 10270 IV Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Contents

Executive Office of the President Federal Railroad Administration See Presidential Documents PROPOSED RULES See Trade Representative, Office of United States Railroad safety; passenger train emergency preparedness plans Public hearings, 10248 Federal Aviation Administration RULES Federal Reserve System Airworthiness directives: RULES AlliedSignal Inc., 10201–10202 Truth in lending (Regulation Z): IFR altitudes, 10202–10204 Official staff commentary; update, 10193–10199 PROPOSED RULES NOTICES Airworthiness directives: Banks and bank holding companies: Aviat Aircraft, Inc., 10236–10237 Change in bank control, 10270–10271 Gulfstream Aerospace Corp., 10224–10233, 10237–10239 Formations, acquisitions, and mergers, 10271 Pilatus Britten-Norman Ltd., 10233–10236, 10240–10242 NOTICES Federal Trade Commission Meetings: NOTICES Aviation Rulemaking Advisory Committee, 10305 Consumer information privacy; public workshop, 10271– 10276 Federal Communications Commission RULES Food and Consumer Service Common carrier services: RULES Telecommunications Act of 1996; implementation— Child nutrition programs: Accounting safeguards; correction, 10220–10221, National school lunch, school breakfast, summer food 10220–10222 service, and child and adult care food programs; In-region, interstate, domestic interLATA services by meat alternates, 10187–10192 Bell Operating companies; non-accounting safeguards, etc.; correction, 10220–10221 Food and Drug Administration Radio stations; table of assignments: RULES Virgin Islands, 10222 Animal drugs, feeds, and related products: New drug applications— Gentamicin topical spray, 10220 Federal Deposit Insurance Corporation Sarafloxacin hydrochloride, 10219–10220 RULES PROPOSED RULES FDIC-insured State nonmember banks; disclosure of Chlorofluorocarbon propellants in self-pressurized financial and other information, 10199–10201 containers; current usage determined to be no longer essential, 10242–10247 NOTICES Federal Election Commission GRAS or prior-sanctioned ingredients: NOTICES Cerestar Holding Co. B.V. et al., 10285 Meetings; Sunshine Act, 10270 Forest Service Federal Energy Regulatory Commission NOTICES RULES Environmental statements; availability, etc.: Natural Gas Policy Act: Nez Perce National Forest, ID, 10253–10254 Pipeline service obligations and self-implementing Meetings: transportation, etc.; natural gas industry Yakima Province Advisory Committee, 10254 restructuring; order on remand, 10204–10219 NOTICES General Services Administration Electric rate and corporate regulation filings: NOTICES Illinois Power Co. et al., 10263–10266 Environmental statements; availability, etc.: Hydroelectric applications, 10266 District of Columbia; vehicle restrictions near selected Meetings: federally-occupied buildings, 10276–10277 Natural gas industry; issues and priorities, 10266–10268 Applications, hearings, determinations, etc.: Government Printing Office Columbia Gas Transmission Corp. et al., 10261 NOTICES Kern River Gas Transmission Co., 10261–10262 Meetings: Midwestern Gas Transmission Co., 10262 Depository Library Council, 10277 Tennessee Gas Pipeline Co., 10262 Viking Gas Transmission Co., 10263 Health and Human Services Department Williston Basin Interstate Pipeline Co., 10263 See Agency for Health Care Policy and Research See Centers for Disease Control and Prevention See Children and Families Administration Federal Highway Administration See Food and Drug Administration NOTICES See Health Care Financing Administration Environmental statements; notice of intent: See Health Resources and Services Administration Douglas County, KS, 10305–10306 See Substance Abuse and Mental Health Services Orange County et al., FL, 10306–10307 Administration Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Contents V

NOTICES Oil and gas leases: Meetings: New Mexico, 10290 Vital and Health Statistics National Committee, 10277 Realty actions; sales, leases, etc.: New Mexico, 10290–10291 Health Care Financing Administration Recreation management restrictions, etc.: NOTICES Imperial Sand Dunes Recreation Area, CA; camping and Agency information collection activities: parking safety rules, 10291 Submission for OMB review; comment request, 10285– Survey plat filings: 10286 Colorado, 10291 Meetings: Idaho, 10291 Practicing Physicians Advisory Council, 10286 Minerals Management Service Health Resources and Services Administration PROPOSED RULES NOTICES Royalty management: Grants and cooperative agreements; availability, etc.: Natural gas from Indian leases; valuation; meeting, Maternal and child health services— 10247–10248 Healthy Start Initiative-Phase II; correction, 10286– 10287 National Archives and Records Administration Hearings and Appeals Office, Energy Department NOTICES NOTICES Meetings: Decisions and orders, 10268–10270 National Industrial Security Program Policy Advisory Committee, 10293 Housing and Urban Development Department PROPOSED RULES National Communications System Public and Indian housing: NOTICES Native American Housing Assistance and Self- Meetings: Determination Negotiated Rulemaking Committee; National Security Telecommunications Advisory meetings, 10247 Committee, 10293

Immigration and Naturalization Service National Foundation on the Arts and the Humanities RULES NOTICES Immigration: Agency information collection activities: Inspection and expedited removal of aliens; detention Submission for OMB review; comment request, 10293– and removal of aliens; conduct of removal 10294 proceedings; asylum procedures; Federal regulatory review, 10312–10395 National Oceanic and Atmospheric Administration RULES Interior Department Fishery conservation and management: See Land Management Bureau Alaska; fisheries of Exclusive Economic Zone— See Minerals Management Service Pacific cod, 10222–10223 PROPOSED RULES Internal Revenue Service Magnuson-Stevens Fishery Conservation and Management NOTICES Act; implementation: Agency information collection activities: Limited access permits; central title and lien registry, Proposed collection; comment request, 10309–10310 10249–10252 Taxable substances, imported: NOTICES Diglycidyl ether of bisphenol-A, 10310 Permits: Marine mammals, 10258–10259 International Trade Commission NOTICES Navy Department Import investigations: Steelwire rod from— NOTICES Inventions, Government-owned; availability for licensing, Canada et al., 10292 10261 Transport vehicle tires, 10292–10293 Meetings: Justice Department Chief of Naval Operations Executive Panel, 10261 See Immigration and Naturalization Service Nuclear Regulatory Commission Land Management Bureau NOTICES NOTICES Meetings: Agency information collection activities: Fabrication of mixed oxide fuel; industry presentations, Submission for OMB review; comment request, 10288– 10296 10289 Applications, hearings, determinations, etc.: Coal leases, exploration licenses, etc.: Southern Nuclear Operating Co., Inc., 10294–10296 Montana, 10289–10290 Environmental statements; availability, etc.: Office of United States Trade Representative Denton-Rawhide Mine Expansion Project, NV, 10290 See Trade Representative, Office of United States VI Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Contents

Presidential Documents Surface Transportation Board EXECUTIVE ORDERS NOTICES Committees; establishment, renewal, termination, etc.: Railroad operation, acquisition, construction, etc.: Capital Budgeting, Commission to Study; establishment Burlington Northern & Santa Fe Railway Co., 10308 (EO 13037), 10185–10186 Railroad services abandonment: ADMINISTRATIVE ORDERS CSX Transportation, Inc., 10308–10309 Iran emergency; continuation (Notice of March 5, 1997), 10409 Trade Representative, Office of United States NOTICES Public Health Service Meetings: See Agency for Health Care Policy and Research Industry Functional Advisory Committee, 10305 See Centers for Disease Control and Prevention See Food and Drug Administration Transportation Department See Health Resources and Services Administration See Federal Aviation Administration See Substance Abuse and Mental Health Services See Federal Highway Administration Administration See Federal Railroad Administration See Research and Special Programs Administration See Surface Transportation Board Railroad Retirement Board NOTICES Treasury Department Agency information collection activities: See Internal Revenue Service Submission for OMB review; comment request, 10296– 10297 Supplemental annuity program; determination of quarterly rate of excise tax, 10297 Separate Parts In This Issue Part II Research and Special Programs Administration Department of Justice, Immigration and Naturalization NOTICES Service, 10312–10395 Pipeline safety; waiver petitions: Northern Eclipse, Inc., 10307–10308 Part III Department of Education, 10398–10406 Securities and Exchange Commission NOTICES Part IV Meetings; Sunshine Act, 10303 The President, 10409 Self-regulatory organizations; proposed rule changes: American Stock Exchange, Inc., 10303–10305 Applications, hearings, determinations, etc.: Reader Aids Capital Southwest Corp. et al., 10297–10299 Additional information, including a list of public laws, Conestoga Family of Funds, 10299–10300 telephone numbers, reminders, and finding aids, appears in Hampton Utilities Trust, 10301 the Reader Aids section at the end of this issue. Public utility holding company filings, 10301–10303

Substance Abuse and Mental Health Services Electronic Bulletin Board Administration Free Electronic Bulletin Board service for Public Law NOTICES numbers, Federal Register finding aids, and a list of Federal agency urine drug testing; certified laboratories documents on public inspection is available on 202–275– meeting minimum standards, list, 10287–10288 1538 or 275–0920. Federal Register / Vol. 62, No. 44 / Thursday, March 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.

3 CFR 24 CFR Executive Orders: Proposed Rules: 13037...... 10185 Ch. I ...... 10247 Administrative Orders: 30 CFR Notice of March 5, Proposed Rules: 1997 ...... 10185 202...... 10247 7 CFR 206...... 10247 210...... 10187 34 CFR 220...... 10187 75...... 10398 225...... 10187 206...... 10398 226...... 10187 231...... 10398 8 CFR 235...... 10398 1...... 10312 369...... 10398 3...... 10312 371...... 10398 103...... 10312 373...... 10398 204...... 10312 375...... 10398 207...... 10312 376...... 10398 208...... 10312 378...... 10398 209...... 10312 380...... 10398 211...... 10312 381...... 10398 212...... 10312 385...... 10398 213...... 10312 386...... 10398 214...... 10312 387...... 10398 216...... 10312 388...... 10398 217...... 10312 389...... 10398 221...... 10312 390...... 10398 223...... 10312 396...... 10398 232...... 10312 610...... 10398 233...... 10312 612...... 10398 234...... 10312 630...... 10398 235...... 10312 47 CFR 236...... 10312 32...... 10220 237...... 10312 53 (2 documents) ...... 10220, 238...... 10312 10221 239...... 10312 73...... 10222 240...... 10312 241...... 10312 49 CFR 242...... 10312 Proposed Rules: 243...... 10312 223...... 10248 244...... 10312 239...... 10248 245...... 10312 246...... 10312 50 CFR 248...... 10312 679...... 10222 249...... 10312 Proposed Rules: 251...... 10312 600...... 10249 252...... 10312 253...... 10312 274a...... 10312 286...... 10312 287...... 10312 299...... 10312 316...... 10312 318...... 10312 329...... 10312 9 CFR 78...... 10192 12 CFR 226...... 10193 350...... 10199 14 CFR 39...... 10201 95...... 10202 Proposed Rules: 39 (8 documents) ...... 10224, 10226, 10228, 10231, 10233, 10236, 10237, 10240 18 CFR 284...... 10204 21 CFR 522...... 10219 524...... 10220 Proposed Rules: 2...... 10242 10185

Federal Register Presidential Documents Vol. 62, No. 44

Thursday, March 6, 1997

Title 3— Executive Order 13037 of March 3, 1997

The President Commission To Study Capital Budgeting

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Advisory Commit- tee Act, as amended (5 U.S.C. App.), it is hereby ordered as follows: Section 1. Establishment. There is established the Commission to Study Capital Budgeting (‘‘Commission’’). The Commission shall be bipartisan and shall be composed of 11 members appointed by the President. The members of the Commission shall be chosen from among individuals with expertise in public and private finance, government officials, and leaders in the labor and business communities. The President shall designate two co-chairs from among the members of the Commission. Sec. 2. Functions. The Commission shall report on the following: (a) Capital budgeting practices in other countries, in State and local govern- ments in this country, and in the private sector; the differences and similarities in their capital budgeting concepts and processes; and the perti- nence of their capital budgeting practices for budget decisionmaking and accounting for actual budget outcomes by the Federal Government; (b) The appropriate definition of capital for Federal budgeting, including: use of capital for the Federal Government itself or the economy at large; ownership by the Federal Government or some other entity; defense and nondefense capital; physical capital and intangible or human capital; distinc- tions among investments in and for current, future, and retired workers; distinctions between capital to increase productivity and capital to enhance the quality of life; and existing definitions of capital for budgeting; (c) The role of depreciation in capital budgeting, and the concept and measurement of depreciation for purposes of a Federal capital budget; and (d) The effect of a Federal capital budget on budgetary choices between capital and noncapital means of achieving public objectives; implications for macroeconomic stability; and potential mechanisms for budgetary dis- cipline. Sec. 3. Report. The Commission shall adopt its report through majority vote of its full membership. The Commission shall report to the National Economic Council by March 15, 1998, or within 1 year from its first meeting. Sec. 4. Administration. (a) Members of the Commission shall serve without compensation for their work on the Commission. While engaged in the work of the Commission, members appointed from among private citizens of the United States may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701–5707). 10186 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Presidential Documents

(b) The Department of the Treasury shall provide the Commission with funding and administrative support. The Commission may have a paid staff, including detailees from Federal agencies. The Secretary of the Treasury shall perform the functions of the President under the Federal Advisory Committee Act, as amended (5 U.S.C. App.), except that of reporting to the Congress, in accordance with the guidelines and procedures established by the Administrator of General Services. Sec. 5. General Provisions. The Commission shall terminate 30 days after submitting its report. œ–

THE WHITE HOUSE, March 3, 1997. [FR Doc. 97–5728 Filed 3–5–97; 8:45 am] Billing code 3195–01–P 10187

Rules and Regulations Federal Register Vol. 62, No. 44

Thursday, March 6, 1997

This section of the FEDERAL REGISTER Alexandria, Virginia 22302; by administrative procedures are set forth contains regulatory documents having general telephone (703) 305–2620. under the following regulations: (1) applicability and legal effect, most of which School food authority appeals of State SUPPLEMENTARY INFORMATION: are keyed to and codified in the Code of agency findings as a result of an Federal Regulations, which is published under Executive Order 12866 administrative review must follow State 50 titles pursuant to 44 U.S.C. 1510. This final rule has been determined to agency hearing procedures as The Code of Federal Regulations is sold by be not significant for purposes of established pursuant to 7 CFR 210.18(q) the Superintendent of Documents. Prices of Executive Order 12866 and, therefore, and 220.14(e); (2) school food authority new books are listed in the first FEDERAL has not been reviewed by the Office of appeals of FCS findings as a result of an REGISTER issue of each week. Management and Budget. administrative review must follow FCS hearing procedures as established Regulatory Flexibility Act pursuant to 7 CFR 210.30(d)(3) and DEPARTMENT OF AGRICULTURE This final rule has been reviewed 220.14(g); and (3) State agency appeals of State Administrative Expense fund Food and Consumer Service with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 sanctions (7 CFR 235.11(b)) must follow 7 CFR Parts 210, 220, 225 and 226 through 612). The Administrator of the the FCS Administrative Review Process Food and Consumer Service (FCS) has as established pursuant to 7 CFR RIN 0584±AC15 certified that this rule will not have a 235.11(f). In the SFSP, (1) Program significant economic impact on a sponsors and food service management National School Lunch Program, substantial number of small entities. companies must follow State agency School Breakfast Program, Summer This rule provides greater flexibility to hearing procedures issued pursuant to 7 Food Service Program for Children and schools, institutions and homes CFR 225.13; and (2) disputes involving Child and Adult Care Food Program: participating in the NSLP, SBP, CACFP procurement by State agencies and Meat Alternates Used in the Child and SFSP rather than imposing more sponsors must follow administrative Nutrition Programs restrictive requirements upon them. The appeal procedures to the extent required overall types and frequency of service of by 7 CFR 225.17 and 7 CFR part 3015. AGENCY: Food and Consumer Service, foods used in the meals served in these In the CACFP, (1) institution appeal USDA. programs will not be significantly procedures are set forth in 7 CFR ACTION: Final Rule. affected by this rule, and thus, this rule 226.6(k); and (2) disputes involving procurement by State agencies and SUMMARY: The Food and Consumer will not have a significant economic impact. institutions must follow administrative Service of the Department of Agriculture appeal procedures to the extent required (Department) is amending the Catalog of Federal Assistance by 7 CFR 226.22 and 7 CFR part 3015. regulations governing the meal pattern The NSLP, SBP, SFSP and CACFP are requirements for the National School Information Collection listed in the Catalog of Federal Domestic Lunch Program (NSLP), the School Assistance under Nos. 10.555, 10.553, This final rule does not contain Breakfast Program (SBP), the Child and 10.559 and 10.558, respectively, and are reporting and recordkeeping Adult Care Food Program (CACFP) and subject to the provisions of Executive requirements subject to approval by the the Summer Food Service Program for Order 12372, which requires Office of Management and Budget Children (SFSP) to allow yogurt to be intergovernmental consultation with (OMB) under the Paperwork Reduction credited as a meat alternate for all State and local officials. (7 CFR part Act of 1995. The programs being meals. Formerly, yogurt could be 3015, subpart V and final rule-related amended are approved by OMB under credited as a meat alternate only for the notice at 48 (FR) 29112, June 24, 1983.) the following control numbers: NSLP, supplement (snack) meal patterns of the 0584–0006; SBP, 0584–0012; SFSP, Child Nutrition Programs. Under this Executive Order 12988 0584–0280; and CACFP, 0584–0055. final rule, four ounces of yogurt satisfies This final rule has been reviewed Background one ounce of the meat/meat alternate under Executive Order 12988, Civil requirement for breakfasts, lunches and Justice Reform. This final rule is On July 5, 1996, the Department suppers served under any of the Child intended to have preemptive effect with published a proposed rule to authorize Nutrition Programs. This final rule respect to any State or local laws, the crediting of yogurt as a meat/meat responds to numerous regulations or policies which conflict alternate for all meals served under the recommendations for additional meat with its provisions or which would NSLP, SBP, CACFP and SFSP (61 FR alternates and provides local food otherwise impede its full 35152–35157). Under this proposal, service operations with greater implementation. This final rule is not local food services would have the flexibility in planning and preparing intended to have retroactive effect option of offering yogurt as a meat meals using lowfat meat alternates. unless so specified in the EFFECTIVE alternate with four ounces of yogurt EFFECTIVE DATE: April 7, 1997. DATE section of this preamble. Prior to equaling one ounce of meat. The FOR FURTHER INFORMATION CONTACT: Mr. any judicial challenge to the provisions Department proposed the four-to-one Robert M. Eadie, Chief, Policy and of this final rule or the application of ratio of yogurt to meat in order to allow Program Development Branch, Child the provisions, all applicable adequate levels of iron and niacin to Nutrition Division, Food and Consumer administrative procedures must be continue being provided. The proposal Service, USDA, 3101 Park Center Drive, exhausted. In the NSLP and SBP, the also stipulated that the crediting change 10188 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations would apply only to commercially options. Schools may elect to use The remainder of this preamble prepared products which meet the Nutrient Standard Menu Planning, discusses these issues. definition and standard of identity for under which they conduct a nutrient Elimination of Meat Products yogurt as established by the Food and analysis of the foods being prepared and Drug Administration (FDA) for yogurt, make adjustments as needed. A second The Department emphasizes that the low fat yogurt and nonfat yogurt. (See option is a variant of Nutrient Standard proposed rule was not intended as an 21 CFR 131.200, 131.203 and 131.206.) Menu Planning called Assisted Nutrient endorsement of yogurt at the expense of The proposal would not apply to the Standard Menu Planning, under which meat products or other meat alternates. yogurt found on or in noncommercial the analysis and subsequent On the contrary, the proposal simply and/or nonstandardized yogurt development of recipes and menus are provides local food services with an products, such as frozen yogurt, conducted by an outside party. In additional option for meeting a variety homemade yogurt, yogurt flavored addition, there are two food-based menu of the needs and tastes of children. In products, yogurt bars, yogurt covered planning systems from which to choose: fact, the Department does not envision fruits and/or nuts or similar products. The traditional meal pattern, consisting any significant reduction in meat Finally, as a practical matter, the of the same component and quantity offerings given the traditional Department noted that the proposed requirements that were in effect on July popularity of meat products. Moreover, regulation would apply only to meals 1, 1995, and the enhanced meal pattern, it should be noted that even when planned and prepared using a food- that is based on the traditional pattern yogurt is served, it would not based menu planning system, because but has increased amounts of fruits/ necessarily replace meat entirely. For schools planning and preparing meals vegetables and grains/breads. example, a school might serve a four ounce portion of yogurt in combination on the basis of nutrient analysis do not Because local planners using nutrient with a half sandwich, a cup of soup or have to observe specific component/ analysis do not have to satisfy specific salad containing a one ounce or quantity requirements and, therefore, component/quantity requirements or equivalent portion of meat/meat are not subject to crediting meet crediting standards, they are able alternate. Finally, some children who requirements. For a complete discussion to select various lowfat and nonfat could benefit from this rule would not of the background to the proposed rule sources of protein for their meals. To consume meat even if there were no and the issues surrounding its provide planners using food-based alternative, because they are vegetarians provisions, interested parties should systems with similar flexibility, State or otherwise are not permitted to eat refer to the preamble of the proposal. agencies and local food service The Department issued the proposed certain kinds of meat. For these reasons, professionals requested the Department rule as part of the School Meals the Department does not believe that the to reevaluate the use of yogurt as a Initiative for Healthy Children, a meat industry will be adversely affected meat/meat alternate for these menu comprehensive, integrated plan to by providing local food services with planning systems. They also requested provide school children with varied, the option of serving yogurt. the Department to extend this nutritious, healthful and appealing consideration to the CACFP and the Inappropriate Substitution meals. As the first step in the School SFSP. Based on this reevaluation, the Meals Initiative for Healthy Children, The purpose of the meat/meat Department issued the July 5, 1996, the Department published a final rule alternate component in food-based proposed rule. on June 13, 1995, which established menu planning systems is to ensure that updated nutrition requirements for During the official comment period, an adequate source of protein is school lunches and breakfasts and which ended on September 3, 1996, the available as part of the meal. This provided local food service Department received 2077 comments. specific requirement is not necessary in professionals with unprecedented The following groups generated the meal planning systems based on flexibility to plan and prepare meals greatest number of responses: general nutrient analysis because protein is one using a menu planning system that best public (857), local food service of the nutrients automatically measured meets their needs (60 FR 31188). personnel (528), other local agency as the meal is planned. However, the Beginning July 1, 1996, schools are personnel (534) and industry (90). Over Department has long recognized that required to serve lunches that, over a 1900 of the comments supported the some non-meat products can provide week’s time, provide one-third of the proposal, generally on the grounds that the protein and other nutrients normally Recommended Dietary Allowances it would provide greater flexibility for supplied by meat. Nuts and seeds as (RDA) for key nutrients and one-third of local food services to reduce fat content. well as cheese/cheese alternates have the calories needed by children of Some commenters also noted that the been available as meat alternates for different ages. School breakfasts must crediting of yogurt would enhance the years. The Department also notes that provide one-fourth of the RDA for key ability of local planners to meet the yogurt is already credited as a meat nutrients and calories. In addition, nutrition needs of children who are alternate for snacks in the Child school meals must comply with the lactose intolerant or who are Nutrition Programs. Finally, allowing recommendations of the Dietary vegetarians. Commenters who yogurt as a meat alternate would enable Guidelines for Americans, including the disapproved of the proposed rule local food services to better serve limitations on calories from fat (no more essentially raised three objections. First, children who, for religious or other than 30 percent of total calories) and they voiced concern that the reasons, are unable to eat meat. saturated fat (less than 10 percent of Department was attempting to eliminate total calories). The only exceptions to meat products from meals served under Inadequacy of Certain Key Nutrients these standards are for schools that have the Child Nutrition Programs. Second, A number of commenters were been authorized by the State agency to they maintained that it would be concerned that yogurt is inherently low delay implementation for not more than inappropriate to use a dairy product as in two key nutrients—iron and niacin— two years. a substitute for meat. Third, they noted generally provided by the meat/meat To achieve compliance with these that yogurt is inherently low in iron and alternate component. The Department requirements, school meal planners may niacin, both of which are generally recognizes this shortcoming and shares select one of four menu planning provided by the meat/meat alternate. commenters’ concern for the nutritional Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10189 adequacy of meals served to children. products which do not contain active Reporting and Recordkeeping The nutritional contributions of yogurt live bacteria cultures from the definition requirements. were carefully considered when the and standard of identity of yogurt. It 7 CFR Part 226 Department proposed to credit yogurt at should also be noted that any the ratio of four ounces of yogurt to one amendments to the FDA definition and Day care, Food assistance programs, ounce of meat. The Department notes, standard of identity for yogurt will be Grant programs—health, infants and however, that children will continue to automatically implemented in the Child children, Surplus agricultural obtain key nutrients from a variety of Nutrition Programs by virtue of the commodities. foods. For example, when averaged over cross reference in this regulation to the a week, other foods such as lean meats, FDA regulations. Moreover, the Accordingly, the Department is beans, eggs and grains will be able to Department will make any other amending 7 CFR part 210, 220, 225 and supplement the nutrients available in amendments as necessary. Finally, this 226 as follows: yogurt. Moreover, meal planners can final rule makes a technical change to PART 210ÐNATIONAL SCHOOL also serve yogurt in combination with the proposed rule to change the phrase LUNCH PROGRAM other foods. For example, as noted ‘‘standard of identity’’ to read above, a local meal planner could offer ‘‘definition and standard of identity.’’ 1. The authority citation for part 210 children four ounces of yogurt along Conclusion continues to read as follows: with a half sandwich, a cup of soup or salad. Finally, in response to requests For the reasons described above, the Authority: 42 U.S.C. 1751–1760, 1779. from the school food service and Department is adopting the July 5, 1996, 2. In § 210.2 a definition for Yogurt is proposal without change. The nutrition advocacy communities, the added in alphabetical order to read as Department emphasizes, however, that Department intends to provide guidance follows: material to assist local meal planners. it is aware that many of the yogurt products that could satisfy the § 210.2 Definitions. Definition and Standard of Identity regulatory requirements as the meat/ * * * * * In the proposed rule, the Department meat alternate component of the meal Yogurt means commercially prepared stipulated that, to be credited, a yogurt are actually more like dessert items. The coagulated milk products obtained by product would have to meet the Department continues to expect that the fermentation of specific bacteria, standard of identity for yogurt schools and institutions will exercise that meet milk fat or milk solid established by the FDA. However, the good judgment in selecting yogurt current definition and standard of products for their meals. The requirements and to which flavoring identity includes yogurt products that Department also notes that this crediting foods or ingredients may be added. contain no live bacteria cultures because policy does not extend to These products are covered by the Food the extremely high temperatures at noncommercial and/or nonstandardized and Drug Administration’s Definition which the products are processed to yogurt products, such as frozen yogurt, and Standard of Identity for yogurt, remove the tartness kill the bacteria. In homemade yogurt, yogurt flavored lowfat yogurt, and nonfat yogurt, 21 response, the National Yogurt products, yogurt bars, yogurt covering CFR 131.200, 21 CFR 131.203, and 21 Association has petitioned to FDA to on fruit and/or nuts and similar CFR 131.206, respectively. have yogurt products without live and products. 3. In § 210.10: active cultures excluded from the List of Subjects a. The meat or meat alternate section definition and standard of identity of in the first column of the table in yogurt. A large number of comments 7 CFR Part 210 paragraph (k)(2) is amended by adding recommended that the Department Children, Commodity School a new entry for yogurt after the entry for follow the Association’s Program, Food assistance programs, ‘‘Peanut butter or other nut or seed recommendation and stipulate in the Grants programs-social programs, butters’’; final rule that only yogurt containing National School Lunch Program, b. New paragraph (k)(3)(iii) is added; live and active bacterial cultures be Nutrition, Reporting and recordkeeping credited in the Child Nutrition c. Paragraph (n)(3)(iv) is amended by requirements, Surplus agricultural removing the words ‘‘in the snack only’’ Programs. commodities. The Department appreciates from the first sentence of footnote 4 in commenters’ position on this issue. 7 CFR Part 220 the ‘‘Meal Supplement Chart for Children’’. However, the FDA is the Federal agency Children, Food assistance programs, responsible for making decisions about Grants programs-social programs, The additions read as follows: product definitions and standards of Nutrition, Reporting and recordkeeping § 210.10 Nutrition standards for lunches identity, and it would be inappropriate requirements, School Breakfast Program. and menu planning methods. for the Department to anticipate whether or not the FDA will adopt the 7 CFR Part 225 * * * * * recommendation of the National Yogurt Food assistance programs, Grant (k) Food-based menu planning. *** Association’s petition to exclude programs—health, infants and children, (2) Minimum quantities. ***

Minimum quantities required for Option for grades Meal component Ages 1±2 Preschool Grades K±6 Grades 7±12 K±3

******* Meat or Meat Alternate (quan- tity of the edible portion as served). * ** 10190 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Minimum quantities required for Option for grades Meal component Ages 1±2 Preschool Grades K±6 Grades 7±12 K±3

Yogurt, plain or flavored, un- 4 oz. or 1¤2 cup ...... 6 oz. or 3¤4 cup ...... 8 oz. or 1 cup ...... 8 oz. or 1 cup ...... 6 oz. or 3¤4 cup. sweetened or sweetened.

*******

* * * * * of yogurt fulfills the equivalent of one c. paragraph (j)(3) is amended by (3) * * * ounce of the meat/meat alternate removing the words ‘‘in the snack only’’ (iii) Yogurt may be used to meet all or requirement in the meal pattern. from the first sentence of footnote 4 in part of the meat/meat alternate * * * * * the ‘‘Meal Supplement Chart for requirement. Yogurt served may be Children.’’ either plain or flavored, unsweetened or 4. In § 210.10a: sweetened. Noncommercial and/or a. the meat or meat alternate section The additions read as follows: nonstandardized yogurt products, such in the first column of the table in paragraph (c) is amended by adding a § 210.10a Lunch components and as frozen yogurt, homemade yogurt, quantities for the meal pattern. yogurt flavored products, yogurt bars, new entry for yogurt after the entry for yogurt covered fruit and/or nuts or ‘‘Peanut butter or other nut or seed * * * * * similar products shall not be credited. butters’’; (c) Minimum required lunch Four ounces (weight) or 1⁄2 cup (volume) b. new paragraph (d)(2)(iii) is added; quantities. * **

SCHOOL LUNCH PATTERN-PER LUNCH MINIMUMS

Minimum quantities Recommended quantities: group V, Group I, age 1±2, Group II, age 3±4 Group III, age 5±8 Group IV, age 9 12 years and older Food components and food items (preschool) (preschool) (K±3) and older (4±12) (7±12)

******* Meat or Meat Alternate (quantity of the edible portion as served): *** Yogurt, plain or flavored, unsweet- 4 oz. or 1¤2 cup ..... 6 oz. or 3¤4 cup ..... 6 oz. or 3¤4 cup ..... 8 oz. or 1 cup ...... 12 oz. or 11¤2. ened or sweetened..

*******

(d) Lunch components. *** PART 220ÐSCHOOL BREAKFAST These products are covered by the Food (2) Meat or meat alternate. *** PROGRAM and Drug Administration’s Definition and Standard of Identity for yogurt, (iii) Yogurt may be used to meet all or 1. The authority citation for part 220 lowfat yogurt, and nonfat yogurt, 21 part of the meat/meat alternate continues to read as follows: CFR 131.200, 21 CFR 131.203, and 21 requirement. Yogurt served may be Authority: 42 U.S.C. 1773, 1779, unless CFR 131.206, respectively. either plain or flavored, unsweetened or otherwise noted. 3. In § 220.8, the meat or meat sweetened. Noncommercial and/or 2. In § 220.2 a new paragraph (bb) is alternates section in the first column of nonstandardized yogurt products, such added to read as follows: the table in paragraph (g)(2) is amended as frozen yogurt, homemade yogurt, by adding a new entry for yogurt after yogurt flavored products, yogurt bars, § 220.2 Definitions the entry for ‘‘Nut and/or seeds’’ to read yogurt covered fruit and/or nuts or * * * * * as follows: similar products shall not be credited. (bb) Yogurt means commercially Four ounces (weight) or 1⁄2 cup (volume) prepared coagulated milk products § 220.8 Nutrition standards for breakfast of yogurt fulfills the equivalent of one obtained by the fermentation of specific and menu planning alternatives. ounce of the meat/meat alternate bacteria, that meet milk fat or milk solid * * * * * requirement in the meal pattern. requirements and to which flavoring (g) Food-based menu planning. * ** * * * * * foods or ingredients may be added. (2) Minimum quantities. * **

Minimum quantities required for Option for grades Meal component Ages 1±2 Preschool Grades K±12 7±12

******* Meat or Meat Alternates: * ** Yogurt, plain or flavored, unsweetened or sweet- 2 oz. or 1¤4 cup ...... 2 oz. or 1¤4 cup ...... 4 oz. or 1¤2 cup ...... 4 oz. or 1¤2 cup ened. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10191

* * * * * the entry for ‘‘Nuts and/or seeds’’ to § 220.8a Breakfast components and 4. In § 220.8a, the meat or meat read as follows: quantities for the meal pattern. alternates section in the first column of (a) (1) Food components. * ** the table in paragraph (a)(2) is amended (2) Minimum required breakfast by adding a new entry for yogurt after quantities. * **

SCHOOL BREAKFAST PATTERN [Required minimum serving sizes]

Food components/items Ages 1 and 2 Ages 3, 4, and 5 Grades K±12

******* Meat/Meat Alternates: * ** Yogurt, plain or flavored, unsweetened or sweetened ...... 2 oz. or 1¤4 cup ...... 2 oz. or 1¤4 cup ...... 4 oz. or 1¤2 cup.

* * * * * a. the Meat and Meat Alternates yogurt after the entry for ‘‘Peanuts or (Optional) section of the table in soynuts or tree nuts or seed’’. PART 225ÐSUMMER FOOD SERVICE paragraph (d)(1) is amended by adding The additions read as follows: PROGRAM a new entry for yogurt after the entry for 1. The authority citation for Part 225 ‘‘Peanut butter or an equivalent quantity § 225.16 Meal service requirements. continues to read as follows: of any combination of meat/meat * * * * * Authority: Secs. 9, 13 and 14, National alternate’’; (d) Meal patterns. *** School Lunch Act, as amended (42 U.S.C. b. the Meat and Meat Alternates BREAKFAST 1758, 1761 and 1762a). section of the table in paragraph (d)(2) 2. In § 225.16: is amended by adding a new entry for (1) * * *

Food components Minimum amount

******* Meat and Meat Alternates (Optional) * * * or Yogurt, plain or flavored, unsweetened or sweetened ...... 4 oz. or 1¤2 cup.

* * * * * LUNCH OR SUPPER (2) * * *

Food components Minimum amount

Meat and Meat Alternates * * * or Yogurt, plain or flavored, unsweetened or sweetened ...... 8 oz. or 1 cup.

*******

* * * * * yogurt after the entries for ‘‘Peanuts or nonstandardized yogurt products, such soynuts or tree nuts or seeds’’; as frozen yogurt, homemade yogurt, PART 226ÐCHILD AND ADULT CARE c. paragraph (d)(1) is amended by yogurt flavored products, yogurt bars, FOOD PROGRAM adding a semicolon and the words ‘‘or yogurt covered fruit and/or nuts or similar products shall not be credited. 1. The authority citation for Part 226 4 oz of yogurt;’’ after the words ‘‘peanut Four ounces (weight) or 1⁄2 cup (volume) continues to read as follows: butter’’. The additions read as follows: of yogurt fulfills the equivalent of one Authority: Secs. 9, 11, 14, 16, and 17, ounce of the meat/meat alternate National School Lunch Act, as amended (42 § 226.20 Requirements for meals. requirement in the meal pattern. U.S.C. 1758, 1759a, 1762a, 1765 and 1766). (a) * * * * * * * * 2. In § 226.20: (2) * * * (c) Meal patterns for children age one a. new paragraph (a)(2)(ii)(C) is added; (ii) * * * through 12 and adult participants. b. the Meat and Meat Alternates (C) Yogurt may be used to meet all or *** section in the first column of the tables part of the meat/meat alternate LUNCH in paragraphs (c)(2) and (c)(3) are requirement. Yogurt served may be amended by adding a new entry for either plain or flavored, unsweetened or (2) * * * sweetened. Noncommercial and/or 10192 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Food components Age 1 and 2 Age 3 through 5 Age 6 through 12 1 Adult participants

******* Meat and Meat Alternates * * * or Yogurt, plain or flavored, unsweetened or sweet- 4 oz. or 1¤2 cup ...... 6 oz. or 3¤4 cup ...... 8 oz. or 1 cup ...... 8 oz. or 1 cup. ened.

******* 1 The text is unchanged.

* * * * * (3) * * * SUPPER

Children ages 1 and Children ages 3 Children ages 6 Food components 2 through 5 through 12 Adult participants

******* Meat and Meat Alternates * * * or. Yogurt, plain or flavored, unsweetened or sweet- 4 oz. or 1¤2 cup ...... 6 oz. or 3¤4 cup ...... 8 oz. or 1 cup ...... 8 oz. or 1 cup. ened.

*******

* * * * * received may be inspected at USDA, Restrictions on moving cattle interstate Dated: February 28, 1997. room 1141, South Building, 14th Street become less stringent as a State William E. Ludwig, and Independence Avenue, SW., approaches or achieves Class Free Administrator, Food and Consumer Service. Washington, DC, between 8 a.m. and status. [FR Doc. 97–5537 Filed 3–5–97; 8:45 am] 4:30 p.m., Monday through Friday, The standards for the different classifications of States or areas entail BILLING CODE 3410±30±P except holidays. Persons wishing to inspect comments are requested to call (1) maintaining a cattle herd infection ahead on (202) 690–2817 to facilitate rate not to exceed a stated level during Animal and Plant Health Inspection entry into the comment reading room. 12 consecutive months; (2) tracing back Service FOR FURTHER INFORMATION CONTACT: Dr. to the farm of origin and successfully Michael J. Gilsdorf, Senior Staff closing a stated percent of all brucellosis 9 CFR Part 78 Veterinarian, National Animal Health reactors found in the course of Market Cattle Identification (MCI) testing; (3) [Docket No. 97±009±1] Programs, VS, APHIS, Suite 3B08, 4700 River Road Unit 36, Riverdale, MD maintaining a surveillance system that Brucellosis in Cattle; State and Area 20737–1231, (301) 734–7708; or e-mail: includes testing of dairy herds, Classifications; Tennessee [email protected]. participation of all recognized slaughtering establishments in the MCI AGENCY: Animal and Plant Health SUPPLEMENTARY INFORMATION: program, identification and monitoring Inspection Service, USDA. Background of herds at high risk of infection ACTION: Interim rule and request for (including herds adjacent to infected comments. Brucellosis is a contagious disease herds and herds from which infected affecting animals and humans, caused animals have been sold or received), SUMMARY: We are amending the by bacteria of the genus Brucella. and having an individual herd plan in brucellosis regulations concerning the The brucellosis regulations, contained effect within a stated number of days interstate movement of cattle by in 9 CFR part 78 (referred to below as after the herd owner is notified of the changing the classification of Tennessee the regulations), provide a system for finding of brucellosis in a herd he or she from Class A to Class Free. We have classifying States or portions of States owns; and (4) maintaining minimum determined that Tennessee meets the according to the rate of Brucella procedural standards for administering standards for Class Free status. This infection present, and the general the program. action relieves certain restrictions on effectiveness of a brucellosis control and Before the effective date of this the interstate movement of cattle from eradication program. The classifications interim rule, Tennessee was classified Tennessee. are Class Free, Class A, Class B, and as a Class A State. DATES: Interim rule effective February Class C. States or areas that do not meet To attain and maintain Class Free 28, 1997. Consideration will be given the minimum standards for Class C are status, a State or area must (1) remain only to comments received on or before required to be placed under Federal free from field strain Brucella abortus May 5, 1997. quarantine. infection for 12 consecutive months or ADDRESSES: Please send an original and The brucellosis Class Free longer; (2) trace back at least 90 percent three copies of your comments to classification is based on a finding of no of all brucellosis reactors found in the Docket No. 97–009–1, Regulatory known brucellosis in cattle for the 12 course of MCI testing to the farm of Analysis and Development, PPD, months preceding classification as Class origin; (3) successfully close at least 95 APHIS, Suite 3C03, 4700 River Road Free. The Class C classification is for percent of the MCI reactor cases traced Unit 118, Riverdale, MD 20737–1238. States or areas with the highest rate of to the farm of origin during the 12 Please state that your comments refer to brucellosis. Class B and Class A fall consecutive month period immediately Docket No. 97–009–1. Comments between these two extremes. prior to the most recent anniversary of Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10193 the date the State or area was classified There are an estimated 66,000 cattle § 78.41 [Amended] Class Free; and (4) have a specified herds in Tennessee that would be 2. In § 78.41, paragraph (a) is surveillance system, as described above, affected by this rule. All of these are amended by adding ‘‘Tennessee,’’ including an approved individual herd owned by small entities. Test-eligible immediately after ‘‘South Carolina,’. plan in effect within 15 days of locating cattle offered for sale interstate from 3. In § 78.41, paragraph (b) is the source herd or recipient herd. other than certified-free herds must amended by removing ‘‘Tennessee’’. After reviewing the brucellosis have a negative test under present Class program records for Tennessee, we have Done in Washington, DC, this 28th day of A status regulations, but not under February 1997. concluded that this State meets the regulations concerning Class Free status. Terry L. Medley, standards for Class Free status. If such testing were distributed equally Therefore, we are removing Tennessee Administrator, Animal and Plant Health among all herds affected by this rule, Inspection Service. from the list of Class A States in Class Free status would save [FR Doc. 97–5519 Filed 3–5–97; 8:45 am] § 78.41(b) and adding it to the list of approximately $5 to $10 per head. BILLING CODE 3410±34±P Class Free States in § 78.41(a). This Therefore, we believe that changing action relieves certain restrictions on the brucellosis status of Tennessee will moving cattle interstate from Tennessee. not have a significant economic impact FEDERAL RESERVE SYSTEM Immediate Action on the small entities affected by this The Administrator of the Animal and interim rule. 12 CFR Part 226 Under these circumstances, the Plant Health Inspection Service has [Regulation Z; Docket No. R±0942] determined that there is good cause for Administrator of the Animal and Plant publishing this interim rule without Health Inspection Service has Truth in Lending prior opportunity for public comment. determined that this action will not Immediate action is warranted to have a significant economic impact on AGENCY: Board of Governors of the remove unnecessary restrictions on the a substantial number of small entities. Federal Reserve System. interstate movement of cattle from Executive Order 12372 ACTION: Final rule; official staff Tennessee. interpretation. Because prior notice and other public This program/activity is listed in the procedures with respect to this action Catalog of Federal Domestic Assistance SUMMARY: The Board is publishing are impracticable and contrary to the under No. 10.025 and is subject to revisions to the official staff public interest under these conditions, Executive Order 12372, which requires commentary to Regulation Z (Truth in we find good cause under 5 U.S.C. 553 intergovernmental consultation with Lending). The commentary applies and to make it effective upon signature. We State and local officials. (See 7 CFR part interprets the requirements of will consider comments that are 3015, subpart V.) Regulation Z. The update provides received within 60 days of publication guidance on issues relating to the Executive Order 12988 of this rule in the Federal Register. treatment of certain fees paid in After the comment period closes, we This rule has been reviewed under connection with mortgage loans. It will publish another document in the Executive Order 12988, Civil Justice addresses new tolerances for accuracy Federal Register. It will include a Reform. This rule: (1) Preempts all State in disclosing the amount of the finance discussion of any comments we receive and local laws and regulations that are charge and other affected cost and any amendments we are making to in conflict with this rule; (2) has no disclosures. In addition, the update the rule as a result of the comments. retroactive effect; and (3) does not discusses issues such as the treatment of require administrative proceedings debt cancellation agreements and a Executive Order 12866 and Regulatory creditor’s duties if providing periodic Flexibility Act before parties may file suit in court challenging this rule. statements via electronic means. This rule has been reviewed under DATES: This rule is effective February Executive Order 12866. For this action, Paperwork Reduction Act 28, 1997. Compliance is optional until the Office of Management and Budget This document contains no October 1, 1997. has waived its review process required information collection or recordkeeping FOR FURTHER INFORMATION CONTACT: Jane by Executive Order 12866. requirements under the Paperwork E. Ahrens or James A. Michaels, Senior Cattle moved interstate are moved for Reduction Act of 1995 (44 U.S.C. 3501 Attorneys, or Sheilah A. Goodman or slaughter, for use as breeding stock, or et seq.). Manley Williams, Staff Attorneys, for feeding. Changing the brucellosis Division of Consumer and Community status of Tennessee from Class A to List of Subjects in 9 CFR Part 78 Affairs, Board of Governors of the Class Free will promote economic Federal Reserve System, at (202) 452– growth by reducing certain testing and Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and 3667 or 452–2412; for users of other requirements governing the Telecommunications Device for the Deaf interstate movement of cattle from this recordkeeping requirements, Transportation. (TDD) only, contact Dorothea Thompson State. Testing requirements for cattle at (202) 452–3544. moved interstate for immediate Accordingly, 9 CFR part 78 is slaughter or to quarantined feedlots are amended as follows: SUPPLEMENTARY INFORMATION: not affected by this change. Cattle from I. Background certified brucellosis-free herds moving PART 78ÐBRUCELLOSIS interstate are not affected by this The purpose of the Truth in Lending change. 1. The authority citation for part 78 Act (TILA; 15 U.S.C. 1601 et seq.) is to The groups affected by this action will continues to read as follows: promote the informed use of consumer be herd owners in Tennessee, as well as Authority: 21 U.S.C. 111–114a-1, 114g, credit by requiring disclosures about its buyers and importers of cattle from this 115, 117, 120, 121, 123–126, 134b, and 134f; terms and cost. The act requires State. 7 CFR 2.22, 2.80, and 371.2(d). creditors to disclose the cost of credit as 10194 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations a dollar amount (the finance charge) and II. Commentary Revisions applies to consumer credit transactions as an annual percentage rate (the APR). secured by real property or a dwelling. Supplement I—Official Staff The Board believes this interpretation Uniformity in creditors’ disclosures is Interpretations intended to assist consumers in carries out the purposes of the 1995 comparison shopping. The TILA Subpart A—General Amendments, and simplifies requires additional disclosures for loans Section 226.4—Finance Charge compliance by using existing definitions secured by a consumer’s home and in the regulation rather than adding a 4(a) Definition permits consumers to rescind certain new one. transactions that involve their principal 4(a)(1) Charges by Third Parties Comment 4(a)(3)–3, redesignated from the proposal and revised for clarity, dwelling. The act is implemented by the Comment 4(a)(1)–1 illustrates the addresses the treatment of Board’s Regulation Z (12 CFR Part 226). general rule that amounts charged by a compensation paid by the creditor to a The Board’s official staff commentary third party are included in the finance mortgage broker. (12 CFR Part 226 (Supp. I)) interprets charge if the creditor requires the use of the regulation, and provides guidance to a third party, even if the consumer may 4(c) Charges Excluded From the Finance creditors in applying the regulation to choose the service provider. Charge specific transactions. The commentary Comment 4(a)(1)–2 addresses the Paragraph 4(c)(5) is updated periodically to address treatment of annuity premiums Comment 4(c)(5)–2, adopted significant questions that arise; it is a associated with some reverse mortgages. substantially as proposed, addresses the substitute for individual staff The proposal treated the cost of the treatment of finance charges paid by a interpretations. premiums as a finance charge when the purchase of an annuity is effectively noncreditor seller on a consumer’s In November, the Board published required incident to the credit. behalf before loan closing; it clarifies proposed amendments to the Commenters expressed concern about that disclosures should reflect the commentary to Regulation Z (61 FR uncertainties that could result from payment if the consumer is not legally 60223, November 27, 1996). The Board such a test; the ‘‘effectively required’’ bound to the creditor for the amount received about 30 comments. Most of standard has been deleted for clarity. paid. the comments were from financial 4(a)(2) Special Rule; Closing Agent 4(d) Insurance and Debt Cancellation institutions, mortgage lenders, Coverage insurance providers, and other creditors Charges (or their representatives); about a half Comment 4(a)(2)–1 is revised and a 4(d)(3) Voluntary Debt Cancellation dozen were from consumer new comment 4(a)(2)–2 is added to Fees representatives and lawyers. Overall, address commenters requests for further The comments are adopted as commenters generally supported the guidance about the treatment of charges proposed, with minor revisions for proposed amendments. Views were by third-party closing agents when the clarity. Several commenters, including a mixed on a few comments, and some creditor requires the use of a closing credit insurance provider, disagreed commenters expressed concerns about agent. Comment 4(a)(2)–2 provides with the Board’s interpretation of issues not addressed in the proposal. examples of the types of fees charged by section 226.4(d)(3), which in their view Except as discussed below, the a closing agent that may be excluded is not consistent with the TILA. These commentary is being adopted as from the finance charge, even though commenters objected to the proposed the creditor requires the use of a closing proposed; some technical suggestions or comments on the same grounds. agent. Comment 4(d)(3)–2 clarifies that concerns raised by commenters are although debt cancellation coverage and addressed. Compliance is optional until 4(a)(3) Special Rule; Mortgage Broker credit insurance are treated similarly for Fees October 1, 1997, the effective date for purposes of cost disclosures under the mandatory compliance. Two comments addressing the TILA, state law governs whether a The revisions mainly incorporate treatment of mortgage broker fees were creditor may represent that debt guidance given in the supplementary proposed. These comments are adopted cancellation coverage is insurance. A information that accompanied with some modification for clarity, and provider of credit insurance commented September 1996 amendments to a third comment is added. Under the that creditors should be permitted to Regulation Z implementing the Truth in 1995 Amendments, mortgage broker fees disclose debt cancellation fees as Lending Act Amendments of 1995 (Pub. paid by the borrower are finance charges insurance premiums only if the L. 104–29, 109 Stat. 271). The unless otherwise excluded. Comment coverage is regulated by the state as rulemaking clarified the treatment of 4(a)(3)–1 clarifies that mortgage brokers insurance. Regulation Z does not fees typically associated with real fees may be excluded from the finance provide a definition of insurance for estate-related lending, and revised charge if the fee would be excluded purposes of the TILA, and under when charged by the creditor. To tolerances for finance charge § 226.2(b)(3) the term’s meaning is illustrate the rule, the comment calculations for loans secured by real determined by state law—which may or discusses certain application fees as an estate or dwellings (61 FR 49237, may not take account of the extent to example of fees charged by mortgage September 19, 1996). It also addressed which the particular product is brokers that could be excluded from the regulated by the state. Consequently, the the treatment of fees charged in finance charge. comments are adopted substantially as connection with debt cancellation New comment 4(a)(3)–2 addresses the proposed. agreements. scope of the special rule for mortgage broker fees. Commenters requested that 4(e) Certain Security Interest Charges the scope be clarified; some suggested Section 226.4(e) excludes certain defining the term ‘‘mortgage broker.’’ security interest charges paid to public Instead, the Board has clarified that the officials from the finance charge if the special rule for mortgage broker fees amounts are itemized and disclosed. A Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10195 new § 226.4(e)(3) was added to Section 226.18—Content of Disclosures omitted from the finance charge entirely implement a provision in the 1995 18(c) Itemization of Amount Financed or if it was understated, without regard Amendments which excludes from the to the dollar amount involved. Under finance charge taxes levied on security Comment 18(c)–4 is adopted that interpretation, any finance charge instruments or on documents substantially as proposed. Some understatement traceable to a evidencing indebtedness that must be commenters expressed concern that this misstatement of a mortgage broker fee paid to record the security instrument. comment imposed additional disclosure would allow rescission of a loan in Comments 4(e)–1 (adopted substantially requirements. This is not the case. The foreclosure; the $35 finance charge as proposed) and –2 are revised to comment is meant to streamline tolerance in § 226.23(h)(2) would not disclosure requirements for transactions reflect the recent amendment to apply. Several commenters objected to that are also covered by Real Estate § 226.4(e)(3). this interpretation and expressed the Settlement Procedures Act (RESPA) by view that the $35 finance charge Subpart B—Open-end Credit allowing—not requiring—creditors to tolerance should also apply to the substitute the good faith estimate or the rescission rights granted under Section 226.5—General Disclosure HUD–1 settlement statement for the § 226.23(h)(1)(i). They believed that the Requirements itemization of the amount financed. $35 tolerance in § 226.23(h)(2) provides Guidance is added regarding the format 5(b) Time of Disclosures the applicable rule for determining requirements for these disclosures. whether a mortgage broker fee has been 5(b)(2) Periodic Statements A proposed revision to comment included ‘‘in accordance with the laws Paragraph 5(b)(2)(ii) 18(c)(1)(iv)–2 responded to a proposal by the Department of Housing and and regulations in effect’’ at the time the An addition to comment 5(b)(2)(ii)–3 Urban Development (HUD) to change loan was consummated. They noted that is made to clarify that periodic the way that the amount collected at otherwise, creditors would be liable for statements may be provided closing for escrow items is reflected on inadvertent and technical errors—for electronically, for example, via home the HUD–1 for RESPA purposes (61 FR example, if a mortgage broker fee was banking systems. Commenters generally 46511, September 3, 1996). The Board is rounded down from fractional to whole supported the proposal and encouraged withdrawing the proposed revision dollar amounts. The commenters argued the Board to provide further guidance given that HUD has not yet taken final that this would be inconsistent with the on how to adapt current rules to the way action on its proposal. purpose of the 1995 Amendments as a electronic disclosures may be used. A whole, which was to reduce lender Section 226.22—Determination of the review is now underway that will seek liability for small technical errors. Annual Percentage Rate to adapt current rules under the Board’s Upon further analysis and after Truth in Lending and other consumer 22(a) Accuracy of the Annual consideration of the comments received, protection regulations to the way Percentage Rate a narrower interpretation of electronic disclosures may be provided Paragraphs 22(a)(4) and 22(a)(5) § 226.23(h)(1)(i) has been adopted. The and retained, responding to Board believes that this narrower Section 226.22(a)(4) and 22(a)(5) technological developments in the way interpretation is consistent with the provide APR tolerances for mortgage financial service transactions are intent of section 125(i) of the TILA. The loans when the finance charge has been conducted via electronic means. $35 tolerance in § 226.23(h)(2) reduces misstated but is considered accurate. creditors’ potential liability by replacing Subpart C—Closed-end Credit The comments provide specific examples of these tolerances. Minor the $10 tolerance that applied before the Section 226.17—General Disclosure revisions have been made for clarity. 1995 Amendments became effective. Requirements Accordingly, comment 23(h)(1)(i)–1 Section 226.23—Right of Rescission clarifies that for loans in foreclosure, a 17(c) Basis of Disclosures and Use of right of rescission exists under Estimates 23(h) Special rules for foreclosures § 226.23(h)(1)(i) only if the entire Paragraph 17(c)(2)(ii) Paragraph 23(h)(1)(i) mortgage broker fee has been omitted Section 226.23(h), which implements from the finance charge. If the amount Comment 17(c)(2)(ii)–1 addresses the section 125(i) of the TILA, contains of a mortgage broker fee is misstated, the new rule applicable to the disclosure of special rescission rules that apply after consumer’s right to rescind is based on per-diem interest charges. Under the a foreclosure action has been initiated. the rule in § 226.23(h)(2). A new rule, the disclosure of any numerical Section 226.23(h)(1) allows a consumer comment 23(h)(2)-1 has been added to amount affected by the per-diem interest to rescind a loan in foreclosure if a clarify that the $35 tolerance is based on charge is considered accurate if it is mortgage broker fee that should have the total finance charge and not its based on the information known to the been included in the finance charge component charges. creditor at the time the disclosure is under the laws in effect at prepared, whether or not the disclosure consummation was not included. Subpart E—Special Rules for Certain of per-diem interest is accurate when it Section 226.23(h)(2) contains a separate Home Mortgage Transactions is received by the consumer. The finance charge tolerance of $35 for loans Section 226.31—General Rules comment clarifies that, in such cases, in foreclosure; such loans may be the resulting finance charge is rescinded if the finance charge was 31(d) Basis of Disclosures and Use of considered accurate without regard to understated by more than $35. Estimates the tolerance for errors under Comment 23(h)(1)(i)–1 is intended to 31(d)(3) Per-diem Interest § 226.18(d)(1). In response to requests clarify the relationship between these for guidance, the comment clarifies that two provisions. Several commenters noted that a disclosures may be considered accurate As proposed, the comment comment to paragraph 31(d)(3) like the under this rule without regard to interpreted § 226.23(h)(1) to allow comment to 17(c)(2)(ii) would be useful; whether they were labeled as estimates. rescission if a mortgage broker fee was a conforming comment has been added. 10196 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Section 33—Requirements for Reverse The additions and revisions read as by the consumer, such as points or closing Mortgages follows: costs, to fund their payment to the broker. Compensation paid by a creditor to a 33(a) Definition * * * * * mortgage broker under an agreement is not Paragraph 33(a)(2) Subpart A—General included as a separate component of a * * * * * consumer’s total finance charge (although Comment 33(a)(2)–2, which addresses this compensation may be reflected in the reverse mortgages, is adopted § 226.4—Finance Charge finance charge if it comes from amounts paid substantively as proposed. 4(a) Definition. by the consumer to the creditor that are finance charges, such as points and interest). List of Subjects in 12 CFR Part 226 * * * * * 4(b) Examples of finance charges. 4(a)(1) Charges by third parties. Advertising, Banks, banking, 1. Choosing the provider of a required * * * * * Consumer protection, Credit, Federal service. An example of a third-party charge 4(b)(10) Debt cancellation fees. 1. Definition. Debt cancellation coverage Reserve System, Mortgages, Reporting included in the finance charge is the cost of required mortgage insurance, even if the provides for payment or satisfaction of all or and recordkeeping requirements, Truth part of a debt when a specified event occurs. in lending. consumer is allowed to choose the insurer. 2. Annuities associated with reverse The term includes guaranteed automobile For the reasons set forth in the mortgages. Some creditors offer annuities in protection or ‘‘GAP’’ agreements, which pay preamble, the Board amends 12 CFR connection with a reverse mortgage or satisfy the remaining debt after property Part 226 as follows: transaction. The amount of the premium is a insurance benefits are exhausted. finance charge if the creditor requires the 4(c) Charges excluded from the finance PART 226ÐTRUTH IN LENDING purchase of the annuity incident to the charge. (REGULATION Z) credit. Examples include the following: * * * * * i. The credit documents reflect the Paragraph 4(c)(5). 1. The authority citation for part 226 purchase of an annuity from a specific * * * * * continues to read as follows: provider or providers. 2. Other seller-paid amounts. Mortgage ii. The creditor assesses an additional insurance premiums and other finance Authority: 12 U.S.C. 3806; 15 U.S.C. 1604 charge on consumers who do not purchase an and 1637(c)(5). charges are sometimes paid at or before annuity from a specific provider. consummation or settlement on the 2. In Supplement I to Part 226, under iii. The annuity is intended to replace in borrower’s behalf by a noncreditor seller. The Introduction, the last sentence in whole or in part the creditor’s payments to creditor should treat the payment made by paragraph 5. is revised to read as the consumer either immediately or at some the seller as seller’s points and exclude it future date. follows: from the finance charge if, based on the 4(a)(2) Special rule; closing agent charges. seller’s payment, the consumer is not legally 1. General. This rule applies to charges by Supplement I—Official Staff bound to the creditor for the charge. A a third party serving as the closing agent for Interpretations creditor who gives disclosures before the the particular loan. An example of a closing payment has been made should base them on Introduction agent charge included in the finance charge the best information reasonably available. is a courier fee where the creditor requires * * * * * * * * * * 5. Comment designations. *** the use of a courier. 4(d) Insurance and debt cancellation Comments to the appendices may be cited, 2. Required closing agent. If the creditor coverage. for example, as Comment app. A–1. requires the use of a closing agent, fees charged by the closing agent are included in * * * * * * * * * * the finance charge only if the creditor 4(d)(3) Voluntary debt cancellation fees. 3. Supplement I to Part 226, under requires the particular service, requires the 1. General. Fees charged for the specialized § 226.2—Definitions and Rules of imposition of the charge, or retains a portion form of debt cancellation agreement known Construction, paragraph 2(a)(25) is of the charge. Fees charged by a third-party as guaranteed automobile protection (‘‘GAP’’) amended by removing the last two closing agent may be otherwise excluded agreements must be disclosed according to sentences of the second paragraph of from the finance charge under § 226.4. For § 226.4(d)(3) rather than according to paragraph 6. example, a fee that would be paid in a § 226.4(d)(2) for property insurance. comparable cash transaction may be 4. In Supplement I to Part 226, under 2. Disclosures. Creditors can comply with excluded under § 226.4(a); a lump-sum fee § 226.4(d)(3) by providing a disclosure that § 226.4—Finance Charge, the following for real-estate closing costs may be excluded refers to debt cancellation coverage whether amendments are made: under § 226.4(c)(7). or not the coverage is considered insurance. a. Under 4(a) Definition., paragraphs 4(a)(3) Special rule; mortgage broker fees. Creditors may use the model credit insurance 3. and 4. are removed and paragraphs 5. 1. General. A fee charged by a mortgage disclosures only if the debt cancellation through 7. are redesignated as broker is excluded from the finance charge if coverage constitutes insurance under state paragraphs 3. through 5., respectively, it is the type of fee that is also excluded law. and new paragraphs 4(a)(1), 4 (a)(2), and when charged by the creditor. For example, 4(e) Certain security interest charges. to exclude an application fee from the 4(a)(3) are added after the end of the text 1. Examples. finance charge under § 226.4(c)(1), a i. Excludable charges. Sums must be of 4(a); mortgage broker must charge the fee to all actually paid to public officials to be b. Under 4(b) Examples of finance applicants for credit, whether or not credit is excluded from the finance charge under charges., a new paragraph 4(b)(10) is extended. § 226.4(e) (1) and (3). Examples are charges added; 2. Coverage. This rule applies to or other fees required for filing or recording c. Under 4(c) Charges excluded from charges paid by consumers to a security agreements, mortgages, continuation the finance charge., under paragraph mortgage broker in connection with a statements, termination statements, and 4(c)(5)., paragraph 2. is revised; consumer credit transaction secured by similar documents, as well as intangible real property or a dwelling. property or other taxes even when the d. Under 4(d), the heading is revised, charges or fees are imposed by the state and a new paragraph 4(d)(3) is added; 3. Compensation by lender. The rule requires all mortgage broker fees to be solely on the creditor and charged to the and included in the finance charge. Creditors consumer (if the tax must be paid to record e. Under 4(e) Certain security interest sometimes compensate mortgage brokers a security interest). (See comment 4(a)–5 charges., paragraphs 1.i. and 2. are under a separate arrangement with those regarding the treatment of taxes, generally.) revised. parties. Creditors may draw on amounts paid * * * * * Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10197

2. Itemization. The various charges disclosures are also considered accurate, 7. In Supplement I to Part 226, under described in § 226.4(e) (1) and (3) may be even if the disclosures are not labeled as § 226.18—Content of Disclosures, the totaled and disclosed as an aggregate sum, or estimates. For example, if the amount of per- following amendments are made: they may be itemized by the specific fees and diem interest used to prepare disclosures is a. Under 18(c) Itemization of amount taxes imposed. If an aggregate sum is less than the amount of per-diem interest disclosed, a general term such as security charged at consummation, and as a result the financed., paragraph 4. is revised; interest fees or filing fees may be used. finance charge is understated by $200, the b. Under 18(d) Finance charge., a new * * * * * disclosed finance charge is considered paragraph 18(d)(2) is added; and 5. In Supplement I to Part 226, under accurate even though the understatement is c. 18(n) is amended by revising the § 226.5—General Disclosure not within the $100 tolerance of heading and adding a new paragraph 2. § 226.18(d)(1), and the finance charge was Requirements, under Paragraph The additions and revisions read as not labeled as an estimate. In this example, follows: 5(b)(2)(ii)., paragraph 3. is revised to if in addition to the understatement related read as follows: to the per-diem interest, a $90 fee is * * * * * * * * * * incorrectly omitted from the finance charge, § 226.18—Content of Disclosures causing it to be understated by a total of Subpart B—Open-End Credit $290, the finance charge is considered * * * * * 18(c) Itemization of amount financed. § 226.5—General Disclosure Requirements accurate because the $90 fee is within the * * * * * * * * * * tolerance in § 226.18(d)(1). * * * * * 4. RESPA transactions. The Real Estate 5(b) Time of disclosures. Settlement Procedures Act (RESPA) requires 17(f) Early disclosures. * * * * * creditors to provide a good faith estimate of 1. Change in rate or other terms. 5(b)(2) Periodic statements. closing costs and a settlement statement Redisclosure is required for changes that listing the amounts paid by the consumer. * * * * * occur between the time disclosures are made Transactions subject to RESPA are exempt Paragraph 5(b)(2)(ii). and consummation if the annual percentage from the requirements of § 226.18(c) if the * * * * * rate in the consummated transaction exceeds creditor complies with RESPA’s 3. Calling for periodic statements. The the limits prescribed in this section, even if requirements for a good faith estimate and creditor may permit consumers to call for the initial disclosures would be considered settlement statement. The itemization of the their periodic statements, but may not accurate under the tolerances in §§ 226.18(d) amount financed need not be given, even require them to do so. If the consumer wishes or 226.22(a). To illustrate: though the content and timing of the good to pick up the statement and the plan has a i. General. A. If disclosures are made in a faith estimate and settlement statement under free-ride period, the statement (including a regular transaction on July 1, the transaction RESPA differ from the requirements of statement provided by electronic means) is consummated on July 15, and the actual §§ 226.18(c) and 226.19(a)(2). If a creditor must be made available in accordance with annual percentage rate varies by more than chooses to substitute RESPA’s settlement 1 the 14-day rule. ⁄8 of 1 percentage point from the disclosed statement for the itemization when * * * * * annual percentage rate, the creditor must redisclosure is required under § 226.19(a)(2), 6. In Supplement I to Part 226, under either redisclose the changed terms or the statement must be delivered to the § 226.17—General Disclosure furnish a complete set of new disclosures consumer at or prior to consummation. The before consummation. Redisclosure is Requirements, the following disclosures required by §§ 226.18(c) and required even if the disclosures made on July 226.19(a)(2) may appear on the same page or amendments are made: 1 are based on estimates and marked as such. a. Under 17(c) Basis of disclosures on the same document as the good faith B. In a regular transaction, if early estimate or the settlement statement, so long and use of estimates., text is added disclosures are marked as estimates and the as the requirements of § 226.17(a) are met. under paragraph 17(c)(2)(ii); and disclosed annual percentage rate is within 1⁄8 * * * * * b. Under 17(f) Early disclosures., of 1 percentage point of the rate at 18(d) Finance charge. paragraphs 1. introductory text, 1.i., the consummation, the creditor need not last sentence of 1.ii. and 1.iii. are redisclose the changed terms (including the * * * * * revised and a heading is added to annual percentage rate). 18(d)(2) Other credit. 1. Tolerance. When a finance charge error paragraph 1.ii; and a new paragraph ii. Nonmortgage loan. * * * (See § 226.18(d)(2) of this part.) results in a misstatement of the amount 17(f)(2) is added preceding 17(g). iii. Mortgage loan. At the time TILA financed, or some other dollar amount for The additions and revisions read as disclosures are prepared in July, the loan which the regulation provides no specific follows: closing is scheduled for July 31 and the tolerance, the misstated disclosure does not * * * * * creditor does not plan to collect per-diem violate the act or the regulation if the finance interest at consummation. Consummation charge error is within the permissible Subpart C—Closed-End Credit actually occurs on August 5, and per-diem tolerance under this paragraph. § 226.17—General Disclosure Requirements interest for the remainder of August is * * * * * * * * * * collected as a prepaid finance charge. 18(n) Insurance and debt cancellation. Assuming there were no other changes 17(c) Basis of disclosures and use of * * * * * requiring redisclosure, the creditor may rely estimates. 2. Debt cancellation. Creditors may use the on the disclosures prepared in July that were model credit insurance disclosures only if * * * * * accurate when they were prepared. However, Paragraph 17(c)(2)(ii). the debt cancellation coverage constitutes if the creditor prepares new disclosures in insurance under state law. Otherwise, they 1. Per-diem interest. This paragraph August that will be provided at applies to any numerical amount (such as the may provide a parallel disclosure that refers consummation, the new disclosures must to debt cancellation coverage. finance charge, annual percentage rate, or take into account the amount of the per-diem payment amount) that is affected by the interest known to the creditor at that time. * * * * * amount of the per-diem interest charge that 8. In Supplement I to Part 226, under * * * * * will be collected at consummation. If the § 226.19—Certain Residential Mortgage amount of per-diem interest used in Paragraph 17(f)(2). 1. Irregular transactions. For purposes of and Variable-Rate Transactions, under preparing the disclosures for consummation 19(a)(2) Redisclosure required., the first is based on the information known to the this paragraph, a transaction is deemed to be creditor at the time the disclosure document ‘‘irregular’’ according to the definition in sentence of paragraph 1. is revised to is prepared, the disclosures are considered footnote 46 of § 226.22(a)(3). read as follows: accurate under this rule, and affected * * * * * * * * * * 10198 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

§ 226.19—Certain Residential Mortgage and 23(h) Special Rules for Foreclosures. 32(b) Definitions. Variable-Rate Transactions 1. Rescission. Section 226.23(h) applies Paragraph 32(b)(1)(i). * * * * * only to transactions that are subject to 1. General. Section 226.32(b)(1)(i) includes Paragraph 19(a)(2) Redisclosure required. rescission under § 226.23(a)(1). in the total ‘‘points and fees’’ items defined 1. Conditions for redisclosure. Creditors Paragraph 23(h)(1)(i). as finance charges under §§ 226.4(a) and 226.(4)(b). Items excluded from the finance must make new disclosures if the annual 1. Mortgage broker fees. A consumer may charge under other provisions of § 226.4 are percentage rate at consummation differs from rescind a loan in foreclosure if a mortgage not included in the total ‘‘points and fees’’ the estimate originally disclosed by more broker fee that should have been included in the finance charge was omitted, without under paragraph 32(b)(1)(i), but may be than 1⁄8 of 1 percentage point in regular regard to the dollar amount involved. If the included in ‘‘points and fees’’ under transactions or 1⁄4 of 1 percentage point in amount of the mortgage broker fee is paragraphs 32(b)(1)(ii) and 32(b)(1)(iii). irregular transactions, as defined in footnote Interest, including per-diem interest, is 46 of § 226.22(a)(3). * * * included but misstated the rule in § 226.23(h)(2) applies. excluded from ‘‘points and fees’’ under * * * * * 23(h)(2) Tolerance for disclosures. § 226.32(b)(1). 9. In Supplement I to Part 226, 1. General. This section is based on the * * * * * § 226.22—Determination of the Annual accuracy of the total finance charge rather 32(c) Disclosures. Percentage Rate, is amended by adding than its component charges. * * * * * new paragraphs 22(a)(4) and 22(a)(5) to * * * * * Paragraph 32(c)(3) Regular payment. read as follows: 11. In Supplement I to Part 226, under * * * * * * * * * * § 226.31—General Rules, the following 2. Balloon payments. If a loan with a term of five years or more provides for a balloon § 226.22—Determination of the Annual amendments are made: payment, the balloon payment must be Percentage Rate a. Under Paragraph 31(c)(1) paragraph 1. is redesignated as paragraph 1. under disclosed. For a loan with a term of less than 22(a) Accuracy of the annual percentage Paragraph 31(c)., and paragraph 2., five years, a balloon payment is prohibited. rate. under Paragraph 31 (c)(1) is * * * * * * * * * * redesignated as paragraph 1; and 13. In Supplement I to Part 226, under 22(a)(4) Mortgage loans. b. Under 31(d), a new paragraph § 226.33—Requirements for Reverse 1. Example. If a creditor improperly omits 31(d)(3), is added. Mortgages, under Paragraph 33(a)(2), in a $75 fee from the finance charge on a regular paragraph 2., the third and fourth transaction, the understated finance charge is The revisions and additions read as considered accurate under § 226.18(d)(1), and follows: sentences are revised and a new the annual percentage rate corresponding to * * * * * sentence is added at the end of the paragraph to read as follows: that understated finance charge also is Subpart E—Special Rules for Certain Home considered accurate even if it falls outside Mortgage Transactions * * * * * the tolerance of 1⁄8 of 1 percentage point provided under § 226.22(a)(2). Because a $75 § 226.31—General Rules § 226.33—Requirements for Reverse Mortgages error was made, an annual percentage rate * * * * * corresponding to a $100 understatement of 31(d) Basis of disclosures and use of 33(a) Definition. the finance charge would not be considered estimates. * * * * * accurate. Paragraph 33(a)(2). 22(a)(5) Additional tolerance for mortgage * * * * * loans. 31(d)(3) Per-diem interest. * * * * * 2. Definite term or maturity date. * * * An 1. Example. This paragraph contains an 1. Per-diem interest. This paragraph obligation may state a definite maturity date additional tolerance for a disclosed annual applies to the disclosure of any numerical or term of repayment and still meet the percentage rate that is incorrect but is closer amount (such as the finance charge, annual definition of a reverse-mortgage transaction if to the actual annual percentage rate than the percentage rate, or payment amount) that is the maturity date or term of repayment used rate that would be considered accurate under affected by the amount of the per-diem would not operate to cause maturity prior to the tolerance in § 226.22(a)(4). To illustrate: interest charge that will be collected at consummation. If the amount of per-diem the occurrence of any of the maturity events in an irregular transaction subject to a 1⁄4 of recognized in the regulation. For example, 1 percentage point tolerance, if the actual interest used in preparing the disclosures for consummation is based on the information some reverse mortgage programs specify that annual percentage rate is 9.00 percent and a the final maturity date is the borrower’s $75 omission from the finance charge known to the creditor at the time the disclosure document is prepared, the 150th birthday; other programs include a corresponds to a rate of 8.50 percent that is shorter term but provide that the term is considered accurate under § 226.22(a)(4), a disclosures are considered accurate under this rule, and affected disclosures are also automatically extended for consecutive disclosed APR of 8.65 percent is within the periods if none of the other maturity events tolerance in § 226.22(a)(5). In this example of considered accurate, even if the disclosures were not labeled as estimates. (See comment has yet occurred. These programs would be an understated finance charge, a disclosed permissible. annual percentage rate below 8.50 or above 17(c)(2)(ii)–1 generally.) 9.25 percent will not be considered accurate. * * * * * * * * * * 12. In Supplement I to Part 226, under 14. In Supplement I to Part 226, under * * * * * Appendices G and H—Open-End and 10. In Supplement I to Part 226, § 226.32—Requirements for Certain Closed-End Model Forms and Clauses, a § 226.23—Right of Rescission is Closed-End Home Mortgages, the new paragraph 2. is added to read as amended by adding new 23(g) and 23(h) following amendments are made: follows: preceding the References to read as a. Under Paragraph 32(b)(1)(i)., follows: paragraph 1. is revised; and * * * * * b. Under Paragraph 32(c)(3)., a new * * * * * Appendices G and H—Open-End and Closed- paragraph 2. is added. End Model Forms and Clauses § 226.23—Right of Rescission The revisions and additions read as * * * * * * * * * * follows: 2. Debt cancellation coverage. This 23(g) Tolerances for accuracy. * * * * * regulation does not authorize creditors to 23(g)(2) One percent tolerance. characterize debt cancellation fees as 1. New advance. The phrase ‘‘new § 226.32—Requirements for Certain Closed- insurance premiums for purposes of this advance’’ has the same meaning as in End Home Mortgages regulation. Creditors may provide a comment 23(f)–4. * * * * * disclosure that refers to debt cancellation Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10199 coverage whether or not the coverage is Division of Supervision, (202) 898– § 350.5(a) is revised to refer simply to considered insurance. Creditors may use the 8905; or Sandra Comenetz, Counsel, part 335 rather than to specific model credit insurance disclosures only if Legal Division, (202) 898–3582, FDIC, subsections of this regulation. the debt cancellation coverage constitutes 550 17th Street N.W., Washington, DC insurance under state law. The Federal Deposit Insurance 20429. * * * * * Corporation Improvement Act of 1991 15. In Supplement I to Part 226, under SUPPLEMENTARY INFORMATION: added section 36 to the Federal Deposit Insurance Act. Section 36 and its Appendix H—Closed-End Model Forms Background and Clauses, a new sentence is added to implementing regulation, 12 CFR part the end of paragraph 11. to read as The FDIC is conducting a systematic 363, require all insured depository follows: review of its regulations and written institutions with $500 million or more policies. Section 303(a) of the CDRI (12 * * * * * in total assets at the beginning of their U.S.C. 4803(a)) requires each federal fiscal year to have an annual audit of Appendix H—Closed-End Model Forms and banking agency to streamline and their financial statements performed by Clauses modify its regulations and written an independent public accountant. The * * * * * policies in order to improve efficiency, audited financial statements are part of 11. Models H–8 and H–9. * * * The prior reduce unnecessary costs, and eliminate an annual report that institutions version of model form H–9 is substantially unwarranted constraints on credit similar to the current version and creditors subject to section 36 must prepare and may continue to use it, as appropriate. availability. Section 303(a) also requires submit to the FDIC. A new paragraph (d) Creditors are encouraged, however, to use the each federal agency to remove is added to § 350.5 permitting the use of current version when reordering or reprinting inconsistencies and outmoded and these annual reports as annual forms. duplicative requirements from its disclosure statements in certain * * * * * regulations and written policies. Part situations. By order of the Board of Governors of the 350 contains outdated and unnecessary In addition, several other wording Federal Reserve System, acting through the language that needs to be revised or changes have been made to improve the Secretary of the Board under delegated removed. clarity of the regulations. authority, February 28, 1997. Part 350 was adopted by the FDIC Jennifer J. Johnson, Board of Directors on December 17, Public Comment Waiver and Effective Deputy Secretary of the Board. 1987, and published on December 31, Date [FR Doc. 97–5447 Filed 3–5–97; 8:45 am] 1987, 52 FR 49379, effective February 1, This regulation is being issued as a BILLING CODE 6210±01±P 1988. The Rule requires FDIC- supervised banks and branches of final rule. The Administrative foreign banks to prepare, and make Procedure Act, 5 U.S.C. 551 et seq. available on request, annual disclosure (APA) requires that general notice of a FEDERAL DEPOSIT INSURANCE proposed rulemaking be published in CORPORATION statements consisting of: (1) Required financial data comparable to specified the Federal Register. 5 U.S.C. 553(b). However, the revision of part 350 is 12 CFR Part 350 schedules in Call Reports filed for the previous two year-ends; (2) information exempt from the Federal Register RIN 3064±AB98 that the FDIC may require of particular publication requirement pursuant to subsection 553(b)(B). This section of the Disclosure of Financial and Other organizations; and (3) other optional information. The annual disclosure APA creates a publication exemption Information by FDIC-Insured State ‘‘when the agency for good cause finds Nonmember Banks statement must be prepared by March 31 of the following year, or the fifth day ** * that notice and public procedure AGENCY: Federal Deposit Insurance after an organization’s annual report thereon are impracticable, unnecessary, Corporation (FDIC or Corporation). covering the year is sent to or contrary to the public interest.’’ 5 ACTION: Final rule. shareholders, whichever occurs first. In U.S.C. 553(b)(B). The revisions to part place of Call Report data, a bank may 350 are minor and technical; therefore SUMMARY: As part of the FDIC’s use audited financial statements or the notice and public comment systematic review of its regulations and reports prepared pursuant to other requirements of section 553(b) are written policies under section 303(a) of regulations by the bank or a parent one- unnecessary. Id. In addition, the APA the Riegle Community Development and bank holding company. provides that the required publication of Regulatory Improvement Act of 1994 a substantive rule in the Federal (CDRI), the FDIC is revising its Discussion Register shall be made not less than 30 regulation entitled ‘‘Disclosure of The contents of the annual disclosure days before its effective date. 5 U.S.C. Financial and Other Information by statement listed in § 350.4(a)(1)(iv) and 553(d). Part 350 would be exempt from FDIC-Insured State Nonmember Banks’’ (v) refer in part to schedules in the Call this requirement also for good cause. (the Rule). The revision removes Report for FDIC-supervised savings The amendments are of such a nature references to the obsolete savings bank banks. The FDIC eliminated the separate that the public does not need a delayed Call Report. It also permits the annual savings bank Call Report in 1989. period of time to conform or adjust to report required by the Corporation’s Therefore, these outdated references are them. 5 U.S.C. 553(d)(3). regulation on annual independent being deleted. Paperwork Reduction Act audits and reporting requirements to be The FDIC has proposed amending 12 used as the annual disclosure statement CFR part 335 by incorporating by No collection of information pursuant in certain circumstances, and updates reference the rules and regulations to section 3504(h) of the Paperwork and clarifies certain other references in promulgated by the Securities and Reduction Act (44 U.S.C. 3501 et seq.) the Rule. Exchange Commission under the is required by the amendments. EFFECTIVE DATE: April 7, 1997. Securities Exchange Act of 1934 rather Therefore, no information has been FOR FURTHER INFORMATION CONTACT: than having its own detailed rules and submitted to the Office of Management Doris L. Marsh, Examination Specialist, regulations. (61 FR 33696) Therefore, and Budget for review. 10200 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Regulatory Flexibility Act 3. Section 350.4 is revised to read as the information contained therein: Because the revisions to part 350 are follows: ‘‘This statement has not been reviewed, published in final form without a notice or confirmed for accuracy or relevance, § 350.4 Contents of annual disclosure by the Federal Deposit Insurance of proposed rulemaking, no regulatory statement. flexibility analysis is required. Corporation.’’ (a) Financial reports. The annual 4. Section 350.5 is revised to read as Small Business Regulatory Enforcement disclosure statement for any year shall follows: Fairness Act reflect a fair presentation of the bank’s financial condition at the end of that § 350.5 Alternative annual disclosure The Small Business Regulatory statements. Enforcement Fairness Act of 1996 year and the preceding year and, except (SBREFA) (Pub. L. 104–121) provides for state-licensed branches of foreign The requirements of § 350.4(a) may be generally for Congressional review of banks, the results of operations for each satisfied: (a) In the case of a bank having a final agency rules. The reporting such year. The annual disclosure class of securities registered pursuant to requirement is triggered when agencies statement may, at the option of bank section 12 of the Securities Exchange issue a final rule as defined by the management, consist of the bank’s entire Act of 1934, by the bank’s annual report Administrative Procedure Act (APA) at Call Report, or applicable portions to security holders for meetings at 5 U.S.C. 551. Because the FDIC is thereof, for the relevant dates and which directors are to be elected or the issuing a final rule as defined by the periods. At a minimum, the statement bank’s annual report (see 12 CFR part APA, the FDIC will file the reports must contain information comparable to 335); required by SBREFA. that provided in the following Call The Office of Management and Budget Report schedules: (b) In the case of a bank with has determined that the revision of part (1) For insured state-chartered independently audited financial 350 does not constitute a ‘‘major rule’’ organizations that are not members of statements, by copies of the audited as defined by SBREFA. the Federal Reserve System: financial statements and the certificate (i) Schedule RC (Balance Sheet); or report of the independent accountant List of Subjects in 12 CFR Part 350 (ii) Schedule RC-N (Past Due and to the extent that such statements Accounting, Banks, banking, Nonaccrual, Loans, Leases, and Other contain information comparable to that Reporting and recordkeeping Assets—column A covering financial specified in § 350.4(a); and requirements. instruments past due 30 through 89 (c) In the case of a bank subsidiary of For the reasons set forth in the days and still accruing and a one-bank holding company, by an preamble, the Board of Directors of the Memorandum item 1 need not be annual report of the one-bank holding FDIC hereby amends part 350 of chapter included); company prepared in conformity with III of title 12 of the Code of Federal (iii) Schedule RI (Income Statement); the regulations of the Securities and Regulations as follows: (iv) Schedule RI-A (Changes in Equity Exchange Commission or by sections in Capital); and the holding company’s consolidated PART 350ÐDISCLOSURE OF (v) Schedule RI-B, Part II (Changes in financial statements on Form FR Y–9C FINANCIAL AND OTHER Allowance for Loan and Lease Losses). pursuant to Regulation Y of the Federal INFORMATION BY FDIC-INSURED (2) For insured state-licensed Reserve Board (12 CFR part 225) that are STATE NONMEMBER BANKS branches of foreign banks: comparable to the Call Report schedules (i) Schedule RAL (Assets and enumerated in § 350.4(a)(1), provided 1. The authority citation for part 350 Liabilities); that in either case not less than 95 continues to read as follows: (ii) Schedule E (Deposit Liabilities percent of the holding company’s Authority: 12 U.S.C. 1817(a)(1), 1819 and Credit Balances); and consolidated total assets and total ‘‘Seventh’’ and ‘‘Tenth’’. (iii) Schedule P (Other Borrowed liabilities are assets and liabilities of the 2. Section 350.3 is revised to read as Money). bank and the bank’s consolidated follows: (b) Other required information. The subsidiaries. annual disclosure statement shall (d) In the case of a bank covered by § 350.3 Requirement for annual disclosure include such other information as the 12 CFR part 363, by an annual report statement. FDIC may require of a particular bank. prepared pursuant to 12 CFR 363.4. (a) Contents. Each bank shall prepare This could include disclosure of However, if the annual report is for a as of December 31 and make available enforcement actions where the FDIC bank subsidiary of a holding company on request an annual disclosure deems it in the public interest to do so. which provides only the consolidated statement. The statement shall contain (c) Optional information. A bank may, financial statements of the holding information required by § 350.4(a) and at its option, provide additional company, this annual report may be (b) and may include other information information that bank management used to satisfy the requirements of this that bank management believes considers important to an evaluation of part only if it is the report of a one-bank appropriate, as provided in § 350.4(c). the overall condition of the bank. This holding company and provided that not (b) Availability. A bank shall make its information could include, but is not less than 95 percent of the holding annual disclosure statement available to limited to, a discussion of the financial company’s consolidated total assets and the public beginning not later than the data; information relating to mergers total liabilities are assets and liabilities following March 31 or, if the bank mails and acquisitions; the existence of and of the bank and the bank’s consolidated an annual report to its shareholders, facts relating to regulatory enforcement subsidiaries. beginning not later than five days after actions; business plans; and material 5. Section 350.6 is revised to read as the mailing of such reports, whichever changes in balance sheet and income follows: occurs first. A bank shall make a statement items. disclosure statement available (d) Disclaimer. The following legend § 350.6 Signature and attestation. continuously until the disclosure shall be included in every annual An authorized officer of the bank statement for the succeeding year disclosure statement to advise the shall sign the annual disclosure becomes available. public that the FDIC has not reviewed statement. The officer shall also attest to Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10201 the correctness of the information Box 29003, Phoenix, AZ 85038–9003; the AD on U.S. operators is estimated to contained in the statement if the telephone (602) 365–2493, fax (602) be $1,356,080. financial reports are not accompanied 365–5577. This information may be The regulations adopted herein will by a certificate or report of an examined at the Federal Aviation not have substantial direct effects on the independent accountant. Administration (FAA), New England States, on the relationship between the 6. Section 350.12 is revised to read as Region, Office of the Assistant Chief national government and the States, or follows: Counsel, 12 New England Executive on the distribution of power and Park, Burlington, MA; or at the Office of responsibilities among the various § 350.12 Disclosure required by applicable levels of government. Therefore, in banking or securities law or regulations. the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. accordance with Executive Order 12612, The requirements of this part are not FOR FURTHER INFORMATION CONTACT: it is determined that this final rule does intended to replace or waive any not have sufficient federalism disclosure required to be made under Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, implications to warrant the preparation applicable banking or securities law or of a Federalism Assessment. regulations. FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA For the reasons discussed above, I By order of the Board of Directors. 90712–4137; telephone (310) 627–5246; certify that this action (1) is not a Dated at Washington, D. C. this 4th day of fax (310) 627–5210. ‘‘significant regulatory action’’ under February, 1997. Executive Order 12866; (2) is not a SUPPLEMENTARY INFORMATION: A ‘‘significant rule’’ under DOT Federal Deposit Insurance Corporation. proposal to amend part 39 of the Federal Regulatory Policies and Procedures (44 Robert E. Feldman, Aviation Regulations (14 CFR part 39) to FR 11034, February 26, 1979); and (3) Deputy Executive Secretary. include an airworthiness directive (AD) will not have a significant economic [FR Doc. 97–5510 Filed 3–5–97; 8:45 am] that is applicable to AlliedSignal Inc. impact, positive or negative, on a BILLING CODE 6714±01±P TFE731 series turbofan engines was substantial number of small entities published in the Federal Register on under the criteria of the Regulatory July 10, 1996 (61 FR 36310). That action Flexibility Act. A final evaluation has proposed to require removing from DEPARTMENT OF TRANSPORTATION been prepared for this action and it is service first stage LPT seal plates, Part contained in the Rules Docket. A copy Federal Aviation Administration Number (P/N) 3073552–2 and P/N of it may be obtained from the Rules 3074053–1, prior to accumulating the Docket at the location provided under 14 CFR Part 39 new, reduced cyclic life limit of 3,700 the caption ADDRESSES. [Docket No. 96±ANE±08; Amendment 39± cycles since new (CSN), and 9926; AD 97±04±03] replacement with serviceable parts. The List of Subjects in 14 CFR Part 39 actions would be required to be RIN 2120±AA64 Air Transportation, Aircraft, Aviation accomplished in accordance with safety, Incorporation by reference, Airworthiness Directives; AlliedSignal AlliedSignal Inc. Service Bulletin (SB) Safety. Inc. TFE731 Series Turbofan Engines No. TFE731–72–3573, dated August 15, 1995. AlliedSignal Inc. SB No. TFE731– Adoption of the Amendment AGENCY: Federal Aviation 72–3001, Service Life Limits of Critical Accordingly, pursuant to the Administration, DOT. Life Limited Components, Revision 42, authority delegated to me by the ACTION: Final rule. dated July 17, 1995, incorporates the Administrator, the Federal Aviation new cyclic life limit of 3,700 CSN. Administration amends part 39 of the SUMMARY: This amendment adopts a Interested persons have been afforded Federal Aviation Regulations (14 CFR new airworthiness directive (AD), an opportunity to participate in the part 39) as follows: applicable to AlliedSignal Inc. TFE731 making of this amendment. No series turbofan engines, that requires comments were received on the PART 39ÐAIRWORTHINESS removal from service of certain first proposal or the FAA’s determination of DIRECTIVES stage low pressure turbine (LPT) seal the cost to the public. The FAA has 1. The authority citation for part 39 plates prior to accumulating the new, added a new paragraph (c) to clarify that continues to read as follows: reduced cyclic life limit, and operators may seek FAA-approval of replacement with serviceable LPT seal modifications to the new life limits only Authority: 49 USC 106(g), 40113, 44701. plates. This amendment is prompted by through the alternative method of § 39.13 [AMENDED] a report that the machined LPT seal compliance procedure described in the plate geometry did not meet the design AD. The FAA has determined that air 2. Section 39.13 is amended by intent due to drawing ambiguity. The safety and the public interest require the adding the following new airworthiness actions specified by this AD are adoption of the rule with this directive: intended to prevent fatigue cracking and change.The FAA has determined that 97–04–03 AlliedSignal Inc.: Amendment 39– subsequent uncontained failure of an this change will neither increase the 9926. Docket 96–ANE–08. LPT seal plate. economic burden on any operator nor Applicability: AlliedSignal Inc. Models DATES: Effective May 5, 1997. increase the scope of the AD. TFE731–2A, –3C and –3CR series turbofan The incorporation by reference of The FAA estimates that 268 engines engines, with first stage low pressure turbine certain publications listed in the installed on aircraft of U.S. registry will (LPT) seal plates, Part Number (P/N) 3073552–2 and P/N 3074053–1, installed on regulations is approved by the Director be affected by this AD, that it will take of the Federal Register as of May 5, but not limited to the following aircraft: approximately 1 work hour per engine Cessna Model 650 Citation III and Israel 1997. to accomplish the required actions, and Aircraft Industries Model 1125 Westwind ADDRESSES: The service information that the average labor rate is $60 per Astra aircraft. referenced in this AD may be obtained work hour. Required parts will cost Note 1: This airworthiness directive (AD) from AlliedSignal Aerospace, Attn: Data approximately $5,000 per engine. Based applies to each engine identified in the Distribution, M/S 64–3/2101–201, P.O. on these figures, the total cost impact of preceding applicability provision, regardless 10202 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations of whether it has been modified, altered, or may be inspected at the FAA, New England reasons and circumstances that create repaired in the area subject to the Region, Office of the Assistant Chief Counsel, the need for this amendment involve requirements of this AD. For engines that 12 New England Executive Park, Burlington, matters of flight safety and operational have been modified, altered, or repaired so MA; or at the Office of the Federal Register, efficiency in the National Airspace that the performance of the requirements of 800 North Capitol Street NW., suite 700, this AD is affected, the owner/operator must Washington, DC. System, are related to published request approval for an alternative method of (g) This amendment becomes effective on aeronautical charts that are essential to compliance in accordance with paragraph (d) May 5, 1997. the user, and provide for the safe and of this AD. The request should include an Issued in Burlington, Massachusetts, on efficient use of the navigable airspace. assessment of the effect of the modification, February 26, 1997. In addition, those various reasons or alteration, or repair on the unsafe condition James C. Jones, circumstances require making this addressed by this AD; and, if the unsafe amendment effective before the next condition has not been eliminated, the Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. scheduled charting and publication date request should include specific proposed of the flight information to assure its actions to address it. [FR Doc. 97–5512 Filed 3–5–97; 8:45 am] timely availability to the user. The Compliance: Required as indicated, unless BILLING CODE 4910±13±U effective date of this amendment reflects accomplished previously. To prevent fatigue cracking and subsequent those considerations. In view of the uncontained failure of a first stage LPT seal 14 CFR Part 95 close and immediate relationship plate, accomplish the following: between these regulatory changes and (a) Prior to accumulating 3,700 cycles since [Docket No. 28833; Amdt. No. 401] safety in air commerce, I find that notice new (CSN) on LPT seal plates, P/Ns and public procedure before adopting IFR Altitudes; Miscellaneous 3073552–2 and 3074053–1, remove from this amendment are impracticable and Amendments service these first LPT seal plates, and contrary to the public interest and that replace with serviceable parts, in accordance AGENCY: Federal Aviation good cause exists for making the with the Accomplishment Instructions of amendment effective in less than 30 AlliedSignal Inc. Service Bulletin (SB) No. Administration (FAA), DOT. TFE731–72–3573, dated August 15, 1995. ACTION: Final rule. days. The FAA has determined that this (b) This action establishes a new, reduced regulation only involves an established cyclic life limit of 3,700 CSN for first stage SUMMARY: This amendment adopts body of technical regulations for which LPT seal plates, P/N 3073552–2 and P/N miscellaneous amendments to the frequent and routine amendments are 3074053–1. required IFR (instrument flight rules) necessary to keep them operationally (c) Except as provided in paragraph (d) of altitudes and changeover points for current. this AD, no alternative replacement times certain Federal airways, jet routes, or It, therefore—(1) is not a ‘‘significant may be approved for LPT seal plates, P/N direct routes for which a minimum or 3073552–2 and 3074053–1. regulatory action’’ under Executive maximum en route authorized IFR Order 12866; (2) is not a ‘‘significant (d) An alternative method of compliance or altitude is prescribed. This regulatory adjustment of the compliance time that rule’’ under DOT Regulatory Policies provides an acceptable level of safety may be action is needed because of changes and Procedures (44 FR 11034; February used if approved by the Manager, Los occurring in the National Airspace 26, 1979); and (3) does not warrant Angeles Aircraft Certification Office. The System. These changes are designed to preparation of a regulatory evaluation as request should be forwarded through an provide for the safe and efficient use of the anticipated impact is so minimal. appropriate FAA Principal Maintenance the navigable airspace under instrument For the same reason, the FAA certifies Inspector, who may add comments and then conditions in the affected areas. send it to the Manager, Los Angeles Aircraft that his amendment will not have a EFFECTIVE DATE: 0901 UTC, March 27, Certification Office. significant economic impact on a 1997. Note 2: Information concerning the substantial number of small entities existence of approved alternative methods of FOR FURTHER INFORMATION CONTACT: under the criteria of the Regulatory compliance with this airworthiness directive, Paul J. Best, Flight Procedures Flexibility Act. Standards Branch (AFS–420), Technical if any, may be obtained from the Los Angeles List of Subjects in 14 CFR Part 95 Aircraft Certification Office. Programs Division, Flight Standards (e) Special flight permits may be issued in Service Federal Aviation Airspace, Navigation (air). accordance with sections 21.197 and 21.199 Administration, 800 Independence of the Federal Aviation Regulations (14 CFR Avenue, SW., Washington, D.C. 20591; Issued in Washington, D.C. on February 21, 1997. 21.197 and 21.199) to operate the aircraft to telephone: (202) 267–8277. Thomas C. Accardi, a location where the requirements of this AD SUPPLEMENTARY INFORMATION: This can be accomplished. amendment to part 95 of the Federal Director, Flight Standards Service. (f) The actions required by this AD shall be done in accordance with the following Aviation Regulations (14 CFR part 95) Adoption of the Amendment AlliedSignal Inc. SB: amends, suspends, or revokes IFR altitudes governing the operation of all Accordingly, pursuant to the Document No. Pages Date aircraft in flight over a specified route authority delegated to me by the or any portion of that route, as well as Administrator, part 95 of the Federal TFE731±72± 1±6 August 15, 1995 the changeover points (COPs) for Aviation Regulations (14 CFR part 95) is 3573. Federal airways, jet routes, or direct amended as follows effective at 0901 routes as prescribed in part 95. UTC, March 27, 1997. Total Pages: 6. 1. The authority citation for part 95 This incorporation by reference was The Rule continues to read as follows: approved by the Director of the Federal The specified IFR altitudes, when Register in accordance with 5 U.S.C. 552(a) Authority: 49 U.S.C. 106(g), 40103, 40106, and 1 CFR part 51. Copies may be obtained used in conjunction with the prescribed 40113, 40114, 40120, 44502, 44514, 44719, from AlliedSignal Aerospace, Attn: Data changeover points for those routes, 44721. Distribution, M/S 64–3/2101–201, P.O. Box ensure navigation aid coverage that is 29003, Phoenix, AZ 85038–9003; telephone adequate for safe flight operations and 2. Part 95 is amended to read as (602) 365–2493, fax (602) 365–5577. Copies free of frequency interference. The follows: Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10203

REVISIONS TO MINIMUM ENROUTE IFR ALTITUDES AND CHANGEOVER POINTS [Amendment 401 effective date, March 27, 1997]

From To MEA

§ 95.1001 Direct RoutesÐU.S. § 95.637 Blue Federal Airway 37 is Amended to Read in Part

Elephant, AK NDB ...... Sparl, AK FIX ...... *6000 *5100±MOCA

§ 95.1001 Direct RoutesÐU.S. is Amended to Delete

Dallas/Fort Worth, TX Vortax ...... Duncan, OK VOR/DME ...... *5000 *2600±MOCA VIA DFW VORTAC 275& SPS VORTAC 140 *3000±MOCA

§ 95.6050 VOR Federal Airway 50 is Amended To Read in Part

Pawnee City, NE VORTAC ...... St. Joseph, MO VORTAC ...... 4000

§ 95.6069 VOR Federal Airway 69 is amended to read in Part

Pine Bluff, AR VOR/DME ...... Billi, AR FIX ...... *2000 Billi, AR FIX *Hille, AR FIX ...... **6000 *6000±MRA **1500±MOCA Hille, AR FIX ...... Walnut Ridge, AR VORTAC ...... *4000 *3000±MOCA

§ 95.6153 VOR Federal Airway 153 is Amended to Read in Part

Lake Henry, PA VORTAC ...... Grows, NY FIX ...... *5000 *4200±MOCA Grows, NY FIX ...... Georgetown, NY VORTAC ...... *±6000 *3700±MOCA

§ 95.6210 VOR Federal Airway 210 is Amended to Read in Part

Rolls, OK FIX ...... *Waxey, OK FIX ...... **8400 *4400±MRA **3500±MOCA

§ 95.6223 VOR Federal Airway 223 is Amended to Read in Part

Haney, VA FIX ...... *Fluky, VA FIX ...... 2600 *1000±MRA

§ 95.6375 VOR Federal Airway 375 is amended to Read in Part

Gordonsville, VA VORTAC ...... *Haney, VA FIX ...... 2800 *7000±MRA Haney, VA FIX ...... Fluky, VA FIX ...... 2600 *1000±MRA

§ 95.6488 VOR Federal AIrway 488 is Amended to Read in Part

Akelt, AK FIX ...... Almot, AK FIX ...... *10000 *4000±MOCA

§ 95.6491 VOR Federal Airway 491 is amended to Read in Part

Rapid City, SD VORTAC ...... Dickinson, ND VORTAC ...... *8000 *5000±MOCA

§ 95.6507 VOR Federal Airway 507 is Amended to Read in Part

Waxey, OK FIX ...... Rolls, OK FIX ...... *8400 *3500±MOCA

From To MEA MAA

§ 95.7532 Jet Route No. 532 is Amended to Delete

Humboldt, MN VORTAC ...... U.S. Candian Border ...... 18000 45000 10204 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

§ 95.8003 VOR Federal Airways Changeover Points Airway Segment V±76 Is Amended to Delete

Changeover points From To Distance From

Lubbock, TX VORTAC ...... Big Spring, TX VORTAC ...... 71 Lubbock V±81 is Amended to Delete Lubbock, TX VORTAC ...... Midland, TX VORTAC ...... 71 Lubbock

[FR Doc. 97–5549 Filed 3–5–97; 8:45 am] all interested persons an opportunity to of the Commission’s Regulations and BILLING CODE 4910±13±M inspect or copy the contents of this Regulation of Natural Gas Pipelines After document during normal business hours Partial Wellhead Decontrol (Docket Nos. in the Public Reference Room, Room RM91–11–006 and RM 87–34–072; Order No. 636–C) DEPARTMENT OF ENERGY 2A, 888 First Street, N.E., Washington, DC 20426. Order on Remand Federal Energy Regulatory The Commission Issuance Posting Commission System (CIPS), an electronic bulletin Issued February 27, 1997. board service, provides access to the In United Distribution Companies v. 18 CFR Part 284 texts of formal documents issued by the FERC (UDC),1 the United States Court of Commission. CIPS is available at no Appeals for the District of Columbia [Docket Nos. RM91±11±006 and RM87±34± charge to the user and may be accessed 072; Order No. 636±C] Circuit upheld the Commission’s Order using a personal computer with a 2 modem by dialing 202–208–1397 if No. 636 ‘‘in its broad contours and in Pipeline Service Obligations and 3 dialing locally or 1–800–856–3920 if most of its specifics.’’ In so doing, the Revisions to Regulations Governing Court affirmed the Commission’s Self-Implementing Transportation dialing long distance. To access CIPS, set your communications software to restructuring of the natural gas industry, Under Part 284 and Regulation of but remanded six issues to the Natural Gas Pipelines After Partial 19200, 14400, 12000, 9600, 7200, 4800, Commission for further explanation or Wellhead Decontrol 2400, or 1200 bps, full duplex, no parity, 8 data bits and 1 stop bit. The consideration. This order complies with Issued February 27, 1997. full text of this order will be available the Court’s remand. AGENCY: Federal Energy Regulatory on CIPS in ASCII and WordPerfect 5.1 In light of the Court’s remand, the Commission. Energy. format. CIPS user assistance is available Commission has reexamined Order No. ACTION: Final rule; order on remand. at 202–208–2474. 636, and of necessity, the changes in the CIPS is also available on the Internet natural gas industry that have occurred SUMMARY: In United Distribution Cos. v. through the Fed World system. Telnet since restructuring. Based on software is required. To access CIPS via FERC, 88 F.3d 1105 (D.C. Cir. 1996), reconsideration of the remanded issues, the Internet, point your browser to the petitions for cert. filed, 65 U.S.L.W. the Commission reaffirms certain of its URL address: http://www.fedworld.gov 3531–32 (U.S. Jan. 27, 1997) (No. 96– previous rulings and reverses others. 1186, et al.) (UDC), the Court of Appeals and select the ‘‘Go to the FedWorld for the District of Columbia Circuit Telnet Site’’ button. When your Telnet I. Introduction affirmed the Commission’s restructuring software connects you, log on to the of the natural gas industry in the FedWorld system, scroll down and In Order No. 636 the Commission Commission’s Order No. 636. (Final rule select FedWorld by typing: 1 and at the required interstate pipelines to published at 57 FR 13267, April 16, command line and type: /go FERC. restructure their services in order to 1992). In UDC, the Court remanded six FedWorld may also be accessed by improve the competitive structure of the issues to the Commission for further Telnet at the address fedworld.gov. natural gas industry. The regulatory explanation or consideration. This order Finally, the complete text on diskette changes were designed ‘‘to ensure that complies with the Court’s remand. in WordPerfect format may be all shippers have meaningful access to purchased from the Commission’s copy the pipeline transportation grid so that FOR FURTHER INFORMATION CONTACT: contractor, La Dorn Systems willing buyers and sellers can meet in Richard Howe, Office of the General Corporation. La Dorn Systems Counsel, Federal Energy Regulatory Corporation is also located in the Public Commission, 888 First Street, N.E., Reference Room at 888 First Street, NE., Washington, DC 20426. 1 United Distrib. Cos. v. FERC, 88 F.3d 1105 (D.C. Washington, DC 20426, (202) 208– Cir. 1996), petitions for cert. filed, 65 U.S.L.W. 1274; Note: Appendix A, containing Tables 1 and 3531–32 (U.S. Jan. 27, 1997) (No. 96–1186, et al.) Mary Benge, Office of the General 2, and Appendix B, containing Tables 1 (UDC). Counsel, Federal Energy Regulatory through 5 are not being published in the 2 Pipeline Service Obligations and Revisions to Commission, 888 First Street, NE., Federal Register but are available from the Regulations Governing Self-Implementing Commission’s Public Reference Room. Transportation; and Regulation of Natural Gas Washington, DC 20426 (202) 208– Before Commissioners: Elizabeth Anne Pipelines After Partial Wellhead Decontrol, [Regs. 1214. Preambles Jan. 1991–June 1996] FERC Stats. & Regs. Moler, Chair; Vicky A. Bailey, James J. ¶ 30,939 (1992), order on reh’g, Order No. 636–A, SUPPLEMENTARY INFORMATION: Hoecker, William L. Massey, and Donald F. [Regs. Preambles Jan. 1991–June 1992] FERC Stats. Santa, Jr. & Regs. ¶ 30,950 (1992), order on reh’g, Order No. In addition to publishing the full text Pipeline Service Obligations and Revisions 636–B, 61 FERC ¶ 61,272 (1992), reh’g denied, 62 of this document in the Federal to Regulations to Regulations Governing Self- FERC ¶ 61,007 (1993). Register, the Commission also provides Implementing Transportation Under Part 284 3 UDC, 88 F.3d at 1191. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10205 a competitive, national market to the Commission’s restriction on the ten percent, as opposed to another transact the most efficient deals entitlement to no-notice transportation percentage or allocation method.22 possible.’’ 4 To achieve this goal, the service to those customers who received Finally, the Court remanded the Commission required pipelines to bundled firm-sales service on May 18, Commission’s decision to exempt restructure their services to separate the 1992.11 The Court found that the pipelines from sharing in GSR costs.23 transportation of gas from the sale of Commission had not adequately The Court required further explanation gas, and to change the design of their explained the ‘‘disadvantaging of former of why the Commission used ‘‘cost transportation rates. The Commission bundled firm-sales customers who spreading’’ and ‘‘value of service’’ also required pipelines to permit firm converted under Order No. 436.’’ 12 principles to allocate costs to the shippers to resell their capacity rights, Second, while the Court upheld the pipelines’ customers, but reverted to creating national procedures for trading basic right-of-first-refusal mechanism, traditional ‘‘cost causation’’ principles transmission capacity. The Commission with its matching conditions of rate and to justify exempting pipelines from adopted a new flexible delivery point contract term,13 it remanded as to the those costs.24 policy and took various other actions in Commission’s selection of a twenty-year Pipelines began implementing the order to promote the growth in market term-matching cap.14 Specifically, the requirements of Order No. 636 in 1993, centers. In addition, the Commission Court found that the Commission had and restructured services now have adopted policies to govern the not adequately explained how the been in effect for three heating seasons. pipelines’ recovery of transition costs twenty-year cap protects against Significant changes have occurred in the that would arise from the restructuring. pipelines’ market power, and the failure natural gas industry since the In UDC, the Court affirmed the major to explain why it looked at new- development of the record in the Order elements of the restructuring rule—the construction contracts in arriving at the No. 636 proceeding, many of which are unbundling of sales and transportation,5 twenty-year figure.15 a direct result of restructuring. Thus, the the use of an SFV rate design, the Third, the Court remanded the issue Commission’s actions on remand capacity release rules, the curtailment of SFV rate mitigation for further necessarily will reflect the insight provisions, the right-of-first refusal explanation of the requirement that gained from restructuring. mechanism, and the recovery of initial rate mitigation measures must be Since Order No. 636, substantial transition costs. Specifically, the Court applied on a customer-by-customer progress has been made toward realizing affirmed the Commission’s regulation of basis, and the phased-in measures must the Commission’s goal of opening up capacity release including restrictions be applied on a customer-class basis.16 the pipeline grid to form a national gas on non-pipeline releases,6 its ban on The Court found that the Commission market for gas sellers and gas purchasers buy/sell transactions,7 and its had not adequately justified its to meet in the most efficient manner. adjustments to pipelines’ rates, preference for customer-by-customer Today, there are 38 operating market including the authority to increase those mitigation over customer-class centers as compared to only six when rates under section 5 of the Natural Gas mitigation.17 The Court was particularly Order No. 636 issued.25 These market Act (NGA) in the circumstances concerned by arguments of the pipelines centers provide a variety of services that presented.8 The Court further held that that customer-by-customer mitigation increase the flexibility of the system and the Commission has jurisdiction over would increase the risks that a pipeline facilitate connections between gas the curtailment of third-party supplies.9 will fail to collect its costs.18 Fourth, the sellers and buyers. These services The Court remanded six aspects of the Court remanded the Commission’s commonly include wheeling, parking, rule for further explanation or deferral to individual restructuring loaning, and storage.26 In addition, consideration, although the Court proceedings the eligibility of small electronic trading of gas and capacity permitted the rule to stand as customers on downstream pipelines for rights, which did not exist at the time formulated pending the Commission’s a one-part small-customer rate.19 The of Order No. 636, is now offered at over final action on remand.10 First, the Court found that the Commission made 20 market centers and other transaction Court remanded the issue of no-notice an arbitrary distinction between former points throughout North America. transportation eligibility, particularly indirect small customers of an upstream Electronic trading systems enable pipeline who are now direct customers, buyers and sellers to discover the price 4 Order No. 636, [Regs. Preambles Jan. 1991—June and small customers who have always and availability of gas at transaction 1996] FERC Stats. & Regs. at 30,393. been direct customers of the same points, submit bids, complete legally 5 The mandatory unbundling remedy itself was upstream pipeline.20 binding transactions, and prearrange not challenged; however, appellants challenged Fifth, the Court found that the four peripheral aspects of the remedy which were capacity release transactions. addressed by the Court. First, the Court upheld the Commission had not adequately In addition to the information rule that customers must retain contractual firm- explained the requirement that provided by electronic trading services, transportation capacity for which the pipeline pipelines allocate ten percent of Gas electronic information services offer receives no other offer. Second, the Court deferred Supply Realignment (GSR) costs to capacity release and tariff information to individual proceedings the issue of pipelines’ 21 ability to modify storage contracts without NGA interruptible customers. The Court’s section 7(b) abandonment proceedings. Third, the principal concern was the lack of 22 Id. at 1187. Court declared moot the challenge to the justification for the allocation figure of 23 Id. at 1190. Commission’s rule that transportation-only 24 Id. at 1189. pipelines may not acquire capacity on other 11 Id. at 1137. 25 Energy Info. Agency, DOE, No. DOE–EIA– pipelines. Fourth, as discussed further in this order, 12 Id. 0560(96), Natural Gas Issues and Trends (Dec. the Court remanded for further consideration the 13 1996). Commission’s decision that only those customers Id. at 1139–40. 26 who received bundled firm-sales service on May 18, 14 Id. at 1141. Wheeling, offered at 33 market centers, is the 1992, are entitled to no-notice transportation 15 Id. transfer of gas from one interconnected pipeline to service. 16 Id. at 1174. another. Parking, offered at 29 market centers, is when the market center holds the shipper’s gas for 6 UDC, 88 F.3d at 1152–54. 17 Id. a short time for redelivery within approximately 15 7 18 Id. at 1157. Id. days. Loaning, offered at 20 market centers, is a 8 Id. at 1166. 19 Id. at 1175. short-term advance to a shipper by the market 9 Id. at 1148. 20 Id. at 1174–75. center operator which is repaid in kind by the 10 Id. at 1191. 21 Id. at 1188. shipper. Storage is offered at 16 market centers. 10206 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations aggregated from pipeline electronic pipeline grid is undergoing significant adopted uniform national business bulletin boards, gas futures pricing expansion in other regions also to access standards for interstate pipelines,38 and information,27 weather information, and new supply basins, and to create new the process of standardizing practices determination of least cost routing. Such paths from existing supply basins to for interstate transportation is a information was not widely available additional markets.32 As new supply continuing effort.39 Because of all these electronically before Order No. 636. basins and paths develop, issues changes in the industry, the Capacity release is also playing an associated with shippers’ Commission’s views on the issues increasingly significant role in relinquishment (‘‘turn-back’’) of remanded by the Court, of necessity, are permitting the reallocation of firm capacity along older pipeline routes different from the Commission’s views pipeline capacity to customers most from the traditional supply areas have in 1992 when it issued Order No. 636. desiring it. For example, in October arisen as firm contracts come up for In summary, on remand the 1996, the Commission estimates that renewal. The Commission has Commission has decided to modify its released capacity held by replacement addressed such capacity issues on no-notice policy, on a prospective basis, 33 shippers accounted for about 23 percent pipelines serving the Midwest and to the extent the prior policy restricts 34 of firm transportation contract demand, Southern California, and on other entitlement to no-notice service to any for a group of 30 pipelines for which pipelines serving traditional production particular group of customers. Further, 28 35 capacity release data was obtained. areas. It is possible that as other the Commission will reverse its Capacity release permits shippers to pipelines’ long-term contracts expire, selection of a twenty-year matching release the rights to transportation on additional capacity will become term for the right of first refusal and the segments of a pipeline they do not unsubscribed because shippers now instead adopt a five-year matching term. need, and to acquire firm rights in have more flexibility to choose different The Commission will reaffirm its suppliers and pipeline routes than they segments that connect to other supply decision to first require customer-by- had prior to restructuring. The areas, on a temporary or permanent customer mitigation of the effects of Commission and the industry have basis. Because of this ability to obtain SFV rate design. In addition, the sought creative ways to market excess firm transportation access to supply Commission will reaffirm its decision to capacity so that pipelines can recover regions throughout the North American establish the eligibility of customers of continent, shippers have less need to their costs.36 The Commission continues to refine downstream pipelines for the upstream renew contracts for firm capacity over pipeline’s one-part small-customer rate the entire length of the pipelines that its policies to reflect current circumstances. The Commission is on a case-by-case basis. The have traditionally served them from Commission will reverse the supply basins in the south and considering possible improvements in the capacity release rules, so that requirement that pipelines allocate ten southwestern parts of the United percent of GSR costs to interruptible States.29 pipeline capacity can be traded more efficiently.37 The Commission has also customers, and instead will require The construction and development of pipelines to propose the percentage of the pipeline grid that continues today their GSR costs their interruptible will increase this flexibility for construct a new 242-mile pipeline extending from Troy, Vermont, to Haverhill, Massachussets. In customers must bear in light of the shippers. In the Eastern region of the Docket Nos. CP96–178–000, CP96–809–000 and individual circumstances present on United States, construction has been CP96–810–000, Maritimes & Northeast Pipeline, each pipeline. Finally, the Commission undertaken to add pipeline capacity to LLC also propose to construct new pipeline will reaffirm its decision to exempt meet peak day demand along traditional facilities in Northern New England. 32 pipelines from sharing in GSR costs. 30 For example, Northern Border Pipeline pipeline paths, and to add paths to Company, in Docket No. CP95–194–000 and 31 new supply regions. The interstate Natural Gas Pipeline Company of America, in II. Eligibility Date for No-Notice Docket No. CP96–27–000, have proposed to Transportation 27 Since 1990, futures contracts have provided construct new pipeline facilities to bring Canadian information about expected prices each month for gas to the Chicago area. In Order No. 636, in connection with the next two years, and these prices are reported 33 Natural Gas Pipeline Co. of America, 73 FERC the conclusion that bundled, city-gate, daily. ¶ 61,050 (1995). firm sales service was contrary to 28 This estimate is derived from downloaded data 34 El Paso Natural Gas Co., 72 FERC ¶ 61,083 section 5 of the NGA, the Commission posted on pipelines’ electronic bulletin boards as (1995) (rejecting El Paso’s proposed ‘‘exit fee’’ to required by 18 CFR § 284.10(b). reallocate costs associated with turned-back required pipelines to provide a ‘‘no- 29 For example, in Tennessee Gas Pipeline Co., capacity); Transwestern Pipeline Co., 72 FERC notice’’ transportation service. Under Opinion No. 406, 76 FERC ¶ 61,022 at 61,127–29 ¶ 61,085 (1995) (approving a settlement including a no-notice transportation service, firm (1996), customers argued they should not be mechanism to share the costs and burdens shippers could receive delivery of gas compelled to pay for or hold firm rights to capacity associated with capacity relinquishment). in the production area when they only want 35 Tennessee Gas Pipeline Co., 77 FERC ¶ 61,083 on demand up to their firm entitlements capacity in the market area. See also at 61,358 (1996) (permitting rate design changes in on a daily basis, without incurring daily Transcontinental Gas Pipe Line Corp., Opinion No. a contested settlement based, in part, on scheduling and balancing penalties. The 405, 76 FERC ¶ 61,021 at 61,061 (1996) (discussing Tennessee’s concern that 70 percent of its firm purpose of no-notice service was to the significance of segmenting capacity). contracts would expire by the year 2000); enable firm shippers to meet 30 For example, in Docket No. CP96–153–000, Transcontinental Gas Pipe Line Corp., Opinion No. Southern Natural Gas Co. has applied for 405–A, 77 FERC ¶ 61,270 (1996) (deferring potential unexpected requirements such as authorization to expand its pipeline facilities by capacity turn-back issues until closer to the sudden changes in temperature. The 76,000 Mcf/day of capacity, primarily to serve expiration date of the contracts at issue). Commission required that pipelines existing customers wishing to increase their firm 36 Alternatives to Traditional Cost-of-Service offer no-notice service only to those contract quantities. See Southern Natural Gas Co., Ratemaking for Natural Gas Pipelines and 76 FERC ¶ 61,122 (1996). The Commission recently Regulation of Negotiated Transportation Services of authorized CNG Transmission Corp. to construct a Natural Gas Pipelines, Statement of Policy and 38 Standards for Business Practices of Interstate pipeline loop between two points in Schenectady Request for Comments, 74 FERC 61,076 (1996); Natural Gas Pipelines, Order No. 587, 61 FR 39053 Co., New York, to alleviate potential service NorAm Gas Transmission Co., 75 FERC ¶ 61,091 at (1996), III FERC Stats. & Regs. ¶ 31,038 (1996) (to interruptions to Niagara Mohawk Power Corp.’s 61,310 (1996). be codified at 18 CFR parts 161, 250, and 284). distribution system. CNG Transmission Corp., 74 37 Secondary Market Transactions on Interstate 39 Standards for Business Practices of Interstate FERC 61,073 (1996). Natural Gas Pipelines, 61 FR 41046 (1996), IV FERC Natural Gas Pipelines, 61 FR 58790 (1996), IV FERC 31 In Docket Nos. CP96–248–000 and CP96–249– Stats. & Regs. ¶ 32,520 (to be codified at 18 CFR part Stats. & Regs. ¶ 32,521 (to be codified at 18 CFR part 000, Portland Natural Gas Co. has proposed to 284) (proposed July 31, 1996). 284) (proposed Nov. 13, 1996). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10207 customers eligible for firm sales service widespread basis. Many pipelines had customers relied on the reliability of at the time of restructuring. indicated in their comments that they their transportation service. This is The Court remanded for further would not be able to provide no-notice because no-notice service was an explanation of this limitation on the no- transportation service.47 However, at a implicit part of bundled sales, but was notice service requirement.40 Section technical conference held on January not a part of unbundled transportation. 284.8(a)(4) of the regulations, adopted 22, 1992, pipelines made statements to During the period between Order Nos. by Order No. 636, requires pipelines the contrary. In Order No. 636, the 436 and 636, sales customers generally ‘‘that provided a firm sales service on Commission relied upon those later converted to transportation only to the May 18, 1992 [the effective date of assertions. Nevertheless, on rehearing of extent that they did not need the higher Order No. 636]’’ to offer the no-notice Order No. 636, rehearing petitions from quality of the transportation service service.41 The eligibility cut-off for no- pipelines such as Carnegie Natural Gas embedded within bundled sales notice service was established in Order Company (Carnegie) and CNG service.51 In many cases, sales No. 636-A, in which the Commission Transmission Corporation (CNG) customers converted some, but not all, held that pipelines were required to indicated there was still some of their sales contract demand. These offer no-notice transportation service uncertainty among pipelines whether customers relied on their retained ‘‘only to customers that were entitled to they would be able to provide reliable pipeline sales service to obtain gas receive a no-notice firm, city gate, sales no-notice service.48 In addition, during peak periods since sales service service on May 18, 1992.’’ 42 The pipelines asked the Commission to limit was equivalent to a no-notice service. Commission also strongly encouraged no-notice transportation service to Customers used their converted pipelines to make no-notice service existing sales customers at current transportation service as a base load available to their other customers on a delivery points with the option to service to obtain cheaper gas from non- non-discriminatory basis. extend the service on a pipeline suppliers throughout the On appeal, the Court addressed the nondiscriminatory basis where the year.52 The comments filed in the record issue of whether the Commission pipeline had adequate capacity and of Order No. 636 also indicated that should have required pipelines to offer delivery capacity.49 The rehearing non-converted, or partially-converted no-notice transportation service not requests of bundled sales customers also customers placed more reliance on the only to customers who remained sales reflected a continuing concern that reliability of the transportation service customers on May 18, 1992, but also to unbundled services could not replicate embedded within the bundled sales former bundled firm sales customers the quality of the bundled sales service.53 who had converted to open access services.50 The post-restructuring experience transportation before Order No. 636 In light of such uncertainty, the with no-notice service has been quite (conversion customers). The Court Commission decided to limit the varied, but the early concerns about the found the Commission had not requirement for pipelines to offer no- ability of pipelines to provide reliable adequately explained why the notice service to include only those no-notice service were not realized. conversion customers should not also customers who were then bundled sales Some pipelines had no bundled sales have a right to receive no-notice service. customers. It appeared to the customers when Order No. 636 took The Court held that the Commission’s Commission that bundled sales effect, and thus were not required to desire to begin the experiment with no- customers relied more heavily on the offer no-notice service as part of their notice service on a limited basis does reliability of the transportation service restructuring and did not do so. In the not explain or justify the disadvantaging embedded within the sales service they one restructuring proceeding 54 where of former sales customers who were receiving than the conversion customers who had converted to converted before Order No. 636.43 The transportation before Order No. 636 Court also held that, while conversion 47 For example, the Interstate Natural Gas indicated a desire for no-notice service, customers had no right to expect to Association of America (INGAA) took the position the pipeline offered them the service, receive no-notice service, neither did that the bundled, citygate firm sales service was essential to the providing of no-notice and but they ultimately refused it because customers who were still receiving instantaneous service. See also Initial Comments of they found it too expensive. bundled sales service on May 18, Texas Eastern Transmission Corp., Panhandle Some pipelines have, post- 1992.44 Finally, the Court held that the Eastern Pipe Line Co., Trunkline Gas Co., and restructuring, expanded their offering of Commission had not provided Algonquin Gas Transmission Company (PEC no-notice service. While Williams Pipeline Group) at 16–17. substantial evidence to support its 48 For example, Carnegie and CNG asserted that Natural Gas Company (Williams) assumption that bundled sales before unbundling, the pipeline’s system manager customers relied more heavily on could rely on storage, system supply gas, linepack, 51 Order No. 636, [Regs. Preambles Jan. 1991-June reliability of transportation service than and upstream pipeline deliveries. They argued that 1996] FERC Stats. & Regs. at 30,402. did conversion customers.45 The Court unbundling would deprive the system manager of 52 For example, Order No. 636 found that in 1991, the use of some or all of these resources and restrict 60 percent of peak day capacity on the major accordingly remanded the issue of no- the manager’s ability to operate the system in the pipelines that made bundled sales was still reserved notice transportation eligibility to the most efficient, system-wide manner. CNG for pipeline sales service. Order No. 636 also found: Commission for further explanation.46 Transmission Corp., Request for Rehearing at 32; While pipeline sales were less than 20 percent of At the time of Order No. 636, Carnegie Natural Gas Co., Request for Rehearing at total throughput on the major pipelines, during the 42–3. three day period of peak usage, pipeline sales were considerable uncertainty existed 49 INGAA, United Gas Pipe Line Co., ANR approximately 50 percent of total deliveries. The whether pipelines would be able to Pipeline Co., and Colorado Interstate Gas Co. seasonal nature of the pipeline sales indicates that perform no-notice service on a 50 The American Public Gas Association argued customers rely on pipeline sales during periods that firm sales service could not be replicated when capacity is most likely to be constrained. Order No. 636, [Reg. Preambles Jan. 1991-June 40 UDC, 88 F.3d at 1137. without assured access to firm storage service. Request for Rehearing at 12–20, citing initial 1996] FERC Stats. & Regs. at 30,400. 41 18 CFR 284.8(a)(4). comments of the Distributors Advocating 53 Id. at 30,403 n.68 (quoting reply comments of 42 Order No. 636-A, [Regs. Preambles Jan. 1991- Regulatory Reform at 74. Similarly, Citizens Gas & United Distribution Companies at 7: ‘‘The June 1996] FERC Stats. & Regs. at 30,573. Coke Utility complained that Order No. 636 did not remaining pipeline sales service is largely used to 43 UDC, 88 F.3d at 1137. discuss no-notice gas supplies, storage capacity provide swing service during the winter months 44 Id. allocation, or the use of flexible receipt points for and therefore cannot be converted absent 45 Id. meeting the needs of high priority customers. comparable transportation.’’). 46 Id. Request for Rehearing at 2–3. 54 Questar Pipeline Co., 64 FERC ¶ 61,157 (1993). 10208 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations originally refused a group of conversion not have the facilities and the capacity first refusal, including the matching customers’ requests for no-notice available to do so. The Commission’s term cap to apply on that pipeline. service,55 a number of the conversion open-access policy has always been that The Court found that the basic right customers eventually obtained no-notice interstate pipelines must offer open- of first refusal structure protects against service under new contracts with the access transportation to all shippers on pipeline market power,62 and the Court pipeline.56 More recently, Mid a nondiscriminatory basis, to the extent approved the concept of a contract term- Louisiana Gas Company (Mid capacity is available.60 The matching limitation ‘‘as a rational Louisiana) faced the loss of its no-notice nondiscriminatory access condition means of emulating a competitive customers to a lower-priced competing does not obligate pipelines to expand market for allocating firm transportation intrastate bundled service. In an effort to their capacity or acquire additional capacity.’’ 63 The Court, nevertheless, retain the customers, Mid Louisiana facilities to provide service. Thus, a judged inadequate the Commission’s proposed to reconfigure its no-notice pipeline offering no-notice explanations for selecting twenty years service to reduce costs and make its no- transportation service must do so only as an outer limit for an existing 57 notice service a more attractive option. to the extent the pipeline has capacity customer to bid before securing the Mid Louisiana also expanded its available (including the storage capacity continuation of its rights under an 64 offering of no-notice service to all firm that may be needed to perform no-notice expiring contract. Based upon the transportation customers, not just those service). arguments of LDCs, the Court found former sales customers previously inadequate the Commission’s eligible for no-notice service. The Commission believes that a explanation that the twenty-year term According to data published by the prospective change in policy based on balances between preventing market Interstate Natural Gas Association of current circumstances will satisfy the constraint and encouraging market America, no-notice service represented needs of all shippers who desire no- stability. The Court concluded that the 17 percent of total pipeline throughput notice service. This approach is Commission failed to explain why the in 1995, an increase from 15 percent the consistent with the fact that some twenty-year cap ‘‘adequately protects previous year.58 This increase in the pipelines, such as Mid Louisiana, against pipelines’ preexisting market volume of no-notice service provided is Williams, and Questar, have already power, which they enjoy by virtue of consistent with the pattern the shown a willingness to expand their no- natural-monopoly conditions;’’ 65 and Commission has observed in the notice service beyond the Commission’s why the ‘‘twenty-year cap will prevent industry. Some pipelines, such as Mid basic requirement. However, to the bidders on capacity-constrained Louisiana, Questar, and Williams, have extent there are shippers who desire no- pipelines from using long contract been providing no-notice service notice service and cannot obtain it for duration as a price surrogate to bid beyond the minimum requirements any reason, such cases are appropriately beyond the maximum approved rate, to directed by the Commission in Order resolved on an individual basis, rather the detriment of captive customers.’’ 66 No. 636-A. than in a generic rulemaking Further, the Court found that the The Commission cannot retroactively proceeding. Commission’s reliance on the fact that change Order No. 636’s limitation on twenty-year contracts have been the pipeline’s requirement to offer no- III. The Twenty-Year Contract Term traditional in cases involving new notice service since it is impossible to Order No. 636 authorized pregranted construction did not sufficiently explain change past service. However, given the the selection of a twenty-year term for varied experience with no-notice service abandonment of long-term firm transportation contracts, subject to a renewal contracts on existing since restructuring, and in light of the facilities.67 Accordingly, while the Court Court’s remand, the Commission will no right of first refusal for the existing shipper. Under the right of first refusal, held that the Commission had justified longer continue to limit the pipeline’s the right-of-first-refusal mechanism, the existing shipper can retain service no-notice service obligation to the with its twin matching conditions of by matching the rate and the term of pipeline’s bundled sales customers at rate and contract term, it remanded the service in a competing bid. The rate is the time of restructuring. twenty-year term cap for further The Commission intends no other capped by the pipeline’s maximum consideration.68 changes to the pipeline’s obligation to tariff rate, and the Commission capped The right-of-first-refusal mechanism provide no-notice service as provided in the term of service at twenty years. The was, and is, intended to protect existing section 284.8(4) of the Commission’s twenty-year term-matching cap was not regulations. If a pipeline offers no-notice set forth in the Order No. 636 62 UDC, 88 F.3d at 1140. service, the Commission will require it regulations themselves, but was 63 Id. to offer that service on a non- explained in the preamble and is part of 64 Id. at 1140–41. discriminatory basis to all customers each pipeline’s tariff. In Order No. 636, 65 Id. at 1140. who request it, under the the Commission indicated that pipelines 66 The Court dismissed other arguments against nondiscriminatory access provision in and customers could agree to a different the twenty-year term. In response to the claim that a contract term-matching requirement 59 61 § 284.8(b)(1). The Commission is cap. As part of the restructuring disadvantaged industrial customers because of the aware that since all pipelines were not obligations, pipelines were required to possible short useful life of a particular productive required during restructuring to offer include in their tariffs the rules and asset, the Court noted the industrial customers’ no-notice service, some pipelines may ready access to alternative fuels, and greater access procedures for exercising the right of than consumers served by LDCs. UDC, 88 F.3d at 1140. The Court also rejected the contention that 55 Williams Natural Gas Co., 65 FERC ¶ 61,221 60 Regulation of Natural Gas Pipelines After the twenty-year cap discriminated against industrial (1993), reh’g denied, FERC ¶ 61,315 (1994). Partial Wellhead Decontrol, Order No. 436, [Regs. customers in light of their shorter-term natural gas 56 Williams Natural Gas Co., 77 FERC ¶ 61,277 Preambles 1982–1985] FERC Stats. & Regs. ¶ 30,665 needs than other customers. The Court found that (1996). at 31,516–17 (1985). although the cap may affect different classes of 57 Mid Louisiana Gas Co., 76 FERC ¶ 61,212 61 In the restructuring proceedings of Alabama- customers differently, since all parties have an (1996). Tennessee Natural Gas Co., Mississippi River equal opportunity to bid for capacity, the cap did 58 Foster Natural Gas Report, No. 2098 (Sept. 9, Transmission Corp., Northern Natural Gas Co., and not violate NGA section 5. Id. at 1141 and n.47. 1996). Trunkline Gas Co., as a consequence, the pipeline 67 Id. at 1141. 59 18 CFR 284.8(b)(1). and its customers agreed to 10-year caps. 68 Id. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10209 customers and provide them with the The Commission can find no additional thus appears to be contract terms that right of continued service, while at the record evidence, not previously cited to are much shorter than twenty years. same time recognizing the role of market the Court, that would support a cap as On remand, the Commission intends forces in determining contract price and long as the twenty-year cap chosen in to select a cap to be generally applicable term. As the Commission held in Order Order No. 636. Due to changes in the to all pipelines. However, the current No. 636–A, when a contract has expired, Commission’s filing requirements data lead us to conclude that the term it is most efficient, within regulatory instituted after restructuring,74 pipelines must be significantly shorter than the restraints, for the capacity to go to the now must file, in an electronic format, twenty-year cap approved in Order No. bidder who values it the most, as an index of customers, which is updated 636. In addition, the Commission evidenced by its willingness to bid the quarterly and includes the contract recognizes that the selection of a highest price for the longest term.69 The term.75 The data that are now on file different cap on remand must be pipeline’s maximum tariff rate is one have enabled the Commission to supported by the record. In the Order regulatory restraint, as the bidding for determine average contract terms, both No. 636 rulemaking, as the Court price cannot go above that rate. The before and since the issuance of Order pointed out, ‘‘most of the commentators Commission set a cap on term-matching No. 636. For pre-Order No. 636 long- before the agency had proposed much in order to avoid shippers on term contracts, the average term was shorter-term caps, such as five years.’’ 80 constrained pipelines being forced into approximately 15 years.76 The data For example, Associated Gas contracts with pipelines for longer terms show that since Order No. 636, Distributors (AGD) argued on rehearing than they desired. pipelines have entered into of Order No. 636–A that a five-year cap The term-matching cap is relevant substantially shorter contracts than would provide ‘‘the most equitable mainly on capacity constrained before. Post-Order No. 636 long-term balance between the LDC’s needs to pipelines. However, term-matching also contracts had an average term of 9.2 retain some flexibility in its gas supply could become necessary in situations years for transportation, and 9.7 years portfolio and the pipeline’s concern for 81 where the contract path goes through for storage. For all currently effective financial stability.’’ Public Service constrained points. As the Court contracts (both pre- and post-Order No. Electric & Gas Company and New Jersey recognized, where capacity is not 636), the average term is 10.3 years for Natural Gas Company argued that a five- constrained, there is no need for an transportation and 10 years for storage. year cap would avoid unnecessary existing customer to match a competing Moreover, as shown in Appendix A, the retention of capacity by LDCs, which, bid, since the pipeline will have trend toward shorter contracts is given their general public utility sufficient capacity to serve both the continuing. About one quarter to one obligation to serve, ‘‘will err on the side existing customer and any new third of contracts with a term of one of retaining capacity they might not customer that desires service.70 While year or greater, entered into since Order need, rather than risking permanent loss 82 the Court approved the concept of a No. 636, have had terms of one to five of such capacity.’’ A number of other contract term-matching limitation, it 77 parties also argued in favor of a five-year years. However, nearly one half of 83 found the basis for the particular cap such contracts entered into since matching term. In addition, five years chosen lacking.71 January 1, 1995, have had terms of one is approximately the median length of In determining the maximum term to five years.78 long term contracts entered into since that an existing customer should be This information strongly suggests January 1, 1995. Based upon the record developed in required to match in order to retain its that since the issuance of Order No. 636, the Order No. 636 proceeding, and the capacity after its current contract few, if any, pipeline customers have expires, the Commission must weigh information available in the been willing, or required, to commit to Commission’s files, the Commission several factors. On the one hand, the cap twenty-year contracts for existing establishes the contract matching term should protect captive customers from capacity. In the only case to come before cap at five years. The five-year cap will having to match competing bids that the Commission to resolve a controversy avoid customers’ being locked into long- offer longer terms than the competing about the pipeline’s right-of-first-refusal term arrangements with pipelines that bidder would have bid ‘‘in a process, the customers were required to they do not really want, and will competitive market without pipelines’ commit to five-year terms in order to therefore be responsive to the Court’s natural monopoly.’’ 72 On the other 79 retain the capacity. The industry trend concerns. The five-year cap also has the hand, the Commission does not wish to advantage of being consistent with the constrain unnecessarily the ability of 74 Revisions to Uniform System of Accounts, current industry trend of short-term shippers who value the capacity the Forms, Statements, and Reporting Requirements for Natural Gas Cos., Order No. 581, [Regs. Preambles contracts, as indicated by the most to obtain it for terms of the desired 84 Jan. 1991–June 1996] FERC Stats. & Regs. ¶ 31,026 Commission’s newly-available data. length. The Court has recognized that (1995), reh’g, Order No. 581–A, [Regs. Preambles the Commission’s task in setting the Jan. 1, 1991–June 1996] FERC Stats. & Regs. ¶ 80 UDC, 88 F.3d at 1141. term-matching cap involves the 31,032 (1996). 81 Sept. 2, 1992 Request for Rehearing and selection of a ‘‘necessarily somewhat 75 18 CFR 284.106(c). Clarification at 13. arbitrary figure.’’ 73 76 Using the October 1, 1996 Index of Customers 82 Sept. 2, 1992 Request for Rehearing at 6. The Commission has reexamined the filings, the Commission calculated the average 83 E.g., Northern States Power Co. (Minnesota) lengths of long-term contracts (contracts with terms record of the Order No. 636 and Northern States Power Co. (Wisconsin), Sept. of more than one year) entered into before the April 1, 1992 Request for Rehearing at 4–6; New Jersey proceedings, as well as data concerning 8, 1992 issuance of Order No. 636, versus those Board of Regulatory Commissioners, Sept. 2, 1992 contract terms that have become entered into after that date. For pre-Order No. 636 Request for Rehearing at 2; New Jersey Natural Gas available since industry restructuring. contracts, the average contract term for Co., May 8, 1992 Request for Rehearing at 6; UGI transportation was 14.8 years, and for storage, the Utilities, Inc., Sept. 2, 1992 Request for Rehearing average term was 14.6 years. at 27; the Industrial Groups, Sept. 2, 1992 Request 69 Order No. 636–A, [Regs. Preambles Jan. 1991– 77 Appendix A, p. 1. for Rehearing at 18. June 1996] FERC Stats. & Regs. at 30,630. 78 Appendix A, p. 2. 84 The American Gas Association (AGA), INGAA, 70 UDC, 88 F.3d at 1140. 79 Williams Natural Gas Co., 69 FERC ¶ 61,166 and UDC have filed pleadings proposing different 71 Id. (1994), reh’g, 70 FERC ¶ 61,100 (1995), reh’g, 70 courses of action regarding the contract matching 72 Id. FERC ¶ 61,377 (1995), appeal pending sub nom. term. AGA urges the Commission either to 73 Id. at 1141 n.44. City of Chanute v. FERC, No. 95–1189 (D.C. Cir.). Continued 10210 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

The Commission will require all on the basis of peak demand (the ‘‘D– structured in accordance with the pipelines whose current tariffs contain 1’’ charge), and the other half were individual circumstances and needs of term caps longer than five years to allocated on the basis of annual usage each customer. Thus, while Order No. revise their tariffs consistent with the (the ‘‘D–2’’ charge). Under the SFV 636 provided for mitigation on the basis new maximum cap, regardless of method, however, a pipeline’s fixed of customer class as well as on a whether this issue is preserved in the costs are allocated among customers customer-by-customer basis, in fact, in individual restructuring proceedings. based on contract entitlement alone. As the individual proceedings, the The Commission will consider on a the Court recognized, the adoption of customer class approach was never case-by-case basis whether any relief is SFV would shift costs to low load-factor used. necessary in connection with contracts customers, in part by ‘‘measuring usage Another reason the Commission renewed since Order No. 636. The solely based on peak demand, rather preferred customer-by-customer Commission will entertain on a case-by- than annual usage.’’ 88 The Commission, mitigation was that the risks to the case basis requests to shorten a contract while finding that the impact of placing pipeline, that it would underrecover its term if a customer renewed a contract all of a pipeline’s fixed costs in the cost of service, could be examined and under the right-of-first-refusal process reservation charge would facilitate an minimized on a case-by-case basis in the since Order No. 636 and can show that efficient transportation market and individual restructuring proceedings. As it agreed to a longer term renewal support a competitive gas commodity a general matter, the customer-by- contract than it otherwise would have market, found it appropriate to customer mitigation was carried out by because of the twenty-year cap. minimize significant cost-shifting to using seasonal contract demands. 92 ‘‘maintain the status quo with respect to That method, as implemented by the IV. Customer-by-Customer v. Customer- the relative distribution of revenue Commission, did not make it more Class Mitigation responsibility.’’ 89 In explaining how to likely that the pipeline would fail to In order to mitigate the cost-shifting minimize cost shifts, the Commission recover its revenue requirement.93 It effects of SFV rate design, the held in Order No. 636–B that a simply uses seasonal measures to Commission required pipelines to phase ‘‘significant cost shift’’ test was to be reallocate costs in order to avoid in SFV rates for some customer classes applied to each customer.90 The significant shifts in revenue over a four-year period. However, the Commission further explained that its responsibility. Commission required pipelines to first goal was to maintain the status quo and Since the Commission directed, in seek to avoid significant cost shifts to not to provide the opportunity for some Order No. 636–B, that each customer’s individual customers (rather than customers ‘‘to make themselves better revenue responsibility could not change customer classes) by using alternative off at the expense of other customers.’’ 91 significantly with the use of SFV, the ratemaking techniques such as seasonal Instead, the Commission intended each rates would provide for the same contract demand. individual customer’s revenue revenue stream pre- and post-SFV. In The Court found that the Commission responsibility to stay substantially the the case of only one pipeline—Williston had not adequately explained its same. Basin Pipeline Company—has there preference for customer-by-customer The purpose of mitigation was, in a been any problem of the pipeline not mitigation over customer-class sense, to replicate the role the D–2 recovering its costs, and that grew out mitigation.85 The Court was especially component played under MFV rate of the unusual circumstances that concerned by the argument that the design. Under MFV rate design, the D– developed after restructuring.94 That ‘‘establishment of rates on a customer- 2s operated in essence on a customer- matter is now at issue in the pipeline’s by-customer basis increases the risks by-customer basis, since each customer pending rate case, which is in hearing that a pipeline will fail to collect its got a different D–2 based on its annual total costs during the period in which usage. The result was a lower allocation 92 Northwest Pipeline Corp., 63 FERC ¶ 61,130 86 (1993), order on reh’g 65 FERC ¶ 61,055 (1994); rates are in effect.’’ This issue was to low load factor customers within a Mississippi River Transmission Corp., 64 FERC remanded for the Commission to further class than high load factor customers in ¶ 61,299 (1993). examine the question of whether the the same class. This effect of D–2s was 93 The use of seasonal contract demands enables initial mitigation measures should be thus customer-specific. firm customers to lower their daily reservation implemented on the basis of customer Pipelines tend to have relatively few quantities for the off peak season and keep the higher quantity needed for the peak season. 87 customer classes, but those classes have class. 94 In Williston’s restructuring proceeding, the This issue arises because, under MFV, many members. As a result, customers Commission accepted Williston’s proposal to allow half of the fixed costs in the reservation within a single class have widely the one customer on its system requiring mitigation charge were allocated among customers varying load factors and other (Wyoming Gas) to shift to Williston’s one-part rate characteristics. Therefore, the schedule for small customers. As a consequence, Wyoming Gas pays Williston only when it eliminate the cap or to select a cap of no more than implementation of SFV, together with transports gas, including paying any GSR costs. three years. However, AGA does not provide any the elimination of the D–2 component Williston Basin Interstate Pipeline Co., 63 FERC basis for its argument that three years, as opposed ¶ 61,184 (1993). In May 1995, Wyoming Gas built to any other term shorter than twenty years, is the in MFV rate design, caused substantial cost shifts among customers within a 15-mile extension and connected its facilities with appropriate cap for the Commission to adopt. UDC Colorado Interstate Gas System, allowing it to supports AGA’s proposal and argues that the particular customer classes. Mitigation bypass Williston. As a result, Wyoming Gas has majority of ‘‘long-term’’ contracts now and in the by class does nothing to minimize those reduced its takes from Williston by 35 percent. foreseeable future will average four years or less. Williston recently asked the Commission to allow INGAA argues that the right-of-first refusal cost shifts. In the proceedings to implement each pipeline’s it to convert its existing one-part rate to a two-part requirement should only attach to contracts with rate, with a reservation charge, for Wyoming Gas. terms of at least ten years or longer, and that the restructuring, it became clear that the Williston has proposed an alternative method of Commission should reduce the matching term to customer-by-customer approach was mitigating the cost shift to Wyoming Gas. ten years. INGAA submits that this would preferable because mitigation could be Williston’s proposal, in Docket No. RP95–364, went correspond to the length of contract commonly into effect January 1, 1996, and is in hearing as part required for new construction, as well as to the of Williston’s general rate case. Williston Basin 88 needs of the market. Id. at 1170. Pipeline Co., 73 FERC ¶ 61,344 (1995), order on 85 UDC, 88 F.3d at 1174. 89 Order No. 636–B, 61 FERC at 62,014. reh’g, 74 FERC ¶ 61,144 (1996); Order on Motion 86 Id. (quoting Pipelines’ Brief at 27). 90 Id. at 62,016. Rates and Request for Stay, 74 FERC ¶ 61,081 87 Id. 91 Id. (1996). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10211 before an administrative law judge, and Commission’s indication in Order No. these customers often ‘‘lack the the issue will be addressed in that 636–B that the Commission would flexibility to construct storage and lack proceeding. In all other cases, the consider the need for such discounts on industrial load to balance their pipelines’ concerns about cost recovery a case-by-case basis, the Court agreed purchases,’’ 102 and because they serve never materialized. Therefore, it appears with appellants’ contention, that it is the distinct function of delivering gas that this issue has no continuing vitality ‘‘unfair and unreasonable to make them primarily to residential and light today. As a result, we see no need to demonstrate * * * a need [for a small commercial users.103 During the effect changes to the previous ruling. customer rate] in restructuring restructuring process, the Commission The issues presented in Williston’s case proceedings when that need has already intended for pipelines to retain the same can be addressed on a case-specific been presumed for other small imputed load factor for the small basis. customers.’’98 Thus, the Court remanded customer transportation rate that had the issue to the Commission for further previously been used to compute the V. Small-Customer Rates for Customers consideration of ‘‘whether or not the small customer sales rate.104 of Downstream Pipelines small customer benefits should be made Since a one-part, small-customer rate In Order No. 636, the Commission available to the former downstream is a subsidized rate, eligibility criteria assured small customers that they could small customers.’’ 99 for the small-customer class and the size continue to receive firm transportation The Commission’s ruling, that the of that class is always a contentious under a one-part volumetric rate issue would be considered on a issue in a pipeline rate case. Before computed at an imputed load factor, pipeline-by-pipeline basis, rather than restructuring, pipelines and their similar to the manner in which their in a generic rulemaking, did not customers usually arrived at the small- previous sales rates were determined. represent an unwillingness by the customer eligibility cutoff through The Commission thus required Commission to fully consider the needs negotiations. The class size and pipelines to offer a one-part small- of the former downstream small eligibility criteria therefore differ on customer transportation rate to those customers. One of the objectives of each pipeline. Changes to the eligibility customers that were eligible for a small- Order No. 636’s requirement that criteria for the small customer rate, customer sales rate on the effective date pipelines offer a subsidized, one-part particularly those that enlarge the size of restructuring.95 On rehearing of Order transportation rate to their former small of the class, upset the prior cost No. 636-A, the issue arose whether the sales customers was to maintain a status allocation among the customer classes. Commission should require upstream quo for that class of customers, subject Those customers who are not in the pipelines to offer their small-customer to a few changes in terms and small customer class experience a cost rate to the small customers of conditions adopted in the Rule.100 shift because they must pick up a downstream pipelines, who became Any changes in the size of the greater share of the pipeline’s costs. The direct customers of the upstream subsidized, small customer class on a determination of class size and pipeline as a result of unbundling. The pipeline necessarily affect the pipeline’s eligibility requires consideration of the Commission held in Order No. 636-B other customers. Under traditional cost- customer profile of each pipeline and that this issue should be raised in the based ratemaking, rates are generally the individual circumstances present on upstream pipeline’s restructuring designed to recover the pipeline’s each system, and ultimately is the result 101 proceeding, to ‘‘enable the parties to annual revenue requirement. Costs of pragmatic adjustments.105 consider the small customers’ need for are allocated to customer classes based Before Order No. 636, the pipelines such a service on the upstream pipeline on contract capacity entitlements and had a relatively stable group of and the impact of the additional small projected annual or seasonal volumes. customers. Order No. 636, however, customers on the rates charged to the Small customer rates, however, involve greatly expanded the number of upstream pipeline’s current customers an adjusted cost allocation to permit customers a pipeline would serve, and under the small customer schedule and them to pay less for their service than the cost-shifting effects of a significant 96 its customers paying a two-part rate.’’ they would if their rates were designed expansion of the class of customers The Court found that the Commission based on actual purchase levels. Small eligible for the rate were not known. made an arbitrary distinction between customers have historically been Circumstances vary widely throughout former indirect small customers of an charged rates derived from a higher- the pipeline industry. For example, the upstream pipeline and small customers than-actual, imputed load factor because upstream-most pipelines serving who were direct customers of the production areas, such as Texas and the upstream pipeline.97 Despite the 98 Id. at 1174. Gulf of Mexico, may serve ten or more 99 Id. at 1175. downstream pipelines. Therefore, 95 Section 284.14(b)(3)(iv) of the regulations 100 Order No. 636-B, 61 FERC at 62,019. adopted by Order No. 636 required pipelines to 101 The Commission’s traditional cost-based allowing all the small customers of all include in their restructuring compliance filings ratemaking is a five-step process. The first task is those downstream pipelines tariff provisions offering one-part small-customer to determine the pipeline’s overall cost of service. automatically to qualify for small rates for transportation, to the class of customers The second task is to functionalize the pipeline’s eligible for that pipeline’s small-customer sales rate costs by determining to which of the pipeline’s 102 on May 18, 1992. Section 284.14 contained operations or facilities the costs belong. The third Texas Eastern Transmission Corp., 30 FERC provisions governing the implementation of task is to categorize the costs assigned to each ¶ 61,144 at 61,288 (1985). pipeline restructuring and setting forth the contents function as fixed costs (which do not vary with the 103 Tennessee Gas Pipeline Co., 27 FERC ¶ 63,090 of pipeline compliance filings. In Order No. 581, volume of gas transported) or variable, and to at 65,375 (1984). the Commission deleted Section 284.14 from the classify those costs to the reservation and usage 104 Order No. 636–B, 61 FERC at 62,019. regulations because the regulation was no longer charges of the pipeline’s rates. The fourth step is to 105 See FPC v. Natural Gas Pipeline Co. of necessary following the completion of restructuring. allocate the costs classified to the reservation and America, 315 U.S. 575, 586 (1941) (holding that Revisions to the Uniform System of Accounts, usage charges among the pipeline’s various rate rate-making bodies are ‘‘free, within the ambit of Forms, Statements, and Reporting Requirements for zones and among the pipeline’s various classes of their statutory authority, to make the pragmatic Natural Gas Cos., Order No. 581, 60 FR 53019 jurisdictional services. The fifth step is to design adjustments which may be called for by particular (October 11, 1995), II FERC Stats. & Regs. ¶ 20,000 each service’s rates for billing purposes by circumstances.’’) See also Colorado Interstate Gas et seq. (regulatory text), III FERC Stats. & Regs computing unit rates for each service. The fifth step Co. v. FPC, 324 U.S. 581, 589 (1945) (‘‘Allocation ¶ 31,026 (1995) (preamble). is called rate design. See Order No. 636, [Regs. of costs is not a matter for the slide-rule. It involves 96 Order No. 636–B, 61 FERC at 62,020. Preambles Jan. 1991–June 1996] FERC Stats. & Regs. judgment on a myriad of facts. It is not an exact 97 UDC, 88 F.3d at 1174–75. at 30,431. science.’’). 10212 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations customer status on the upstream not have permitted the Commission to No. 636 arise from the same provisions pipeline could shift substantial costs to fully consider the needs of the small in producer-pipeline contracts that gave the relatively few existing non-pipeline customers and the impact of expanding rise to the take or pay problem direct customers of the upstream class size and eligibility on the other addressed in Order Nos. 500/528. pipeline. The Commission could not, customers. Therefore, based on further Another equally important similarity is through a generic ruling, be certain this consideration, the Commission reaffirms that in both Order Nos. 500/528 and in would not happen. its decision to determine, on a case-by- Order No. 636, the Commission was The circumstances of Tennessee Gas case basis, the eligibility of customers of attempting to fashion a mechanism to Pipeline Company (Tennessee) and its downstream pipelines for the upstream provide pipelines a means for three downstream pipelines illustrate pipeline’s small-customer rate. recovering prudently incurred gas some of the factors to be taken into supply costs. account with respect to the issues of VI. Pipelines’ Exemption From GSR There are, however, compelling Costs small customer class size and differences as well. In Order Nos. 500/ eligibility.106 During restructuring, small A. Summary of Commission Conclusion 528 the Commission was attempting to customers of three pipelines on Remand deal with the cost consequences of a downstream from Tennessee (East In UDC, the Court remanded to the failure in gas markets, resulting in a Tennessee, Alabama-Tennessee, and Commission the issue of the pipelines’ major suppression of demand for gas, Midwestern) became direct customers of recovery of prudently incurred GSR coupled with mandated monthly Tennessee, as well as the downstream costs. While the Court did not question increases in the wellhead ceiling prices pipelines. Tennessee originally the basic principle that recovery of such for gas. This market failure had its proposed to offer a one-part rate only to costs is appropriate, it did take issue origins in events that preceded the its direct small customers and those with the Commission’s decision to Commission’s open access initiatives in customers of downstream pipelines that provide pipelines the opportunity to Order No. 436 and persisted for a took service directly from Tennessee recover their prudently incurred costs in number of years thereafter.112 A number prior to restructuring. Tennessee a manner that differed from the of factors contributed to the proposed to continue using its pre- approach taken by the Commission in extraordinary circumstance in which existing eligibility cutoff of 10,000 Dth/ the Order Nos. 500/528 series pipelines were continuing to incur huge day for the one-part rate. Tennessee (hereinafter Order Nos. 500/528). contractual liabilities that could not be, added a different, two-part rate schedule Observing that the petitioners and were not being, recovered in rates. for its former small sales customers and challenging the Order No. 636 recovery As discussed below, Order No. 380 to other small customers of downstream mechanism noted ‘‘remarkable contributed significantly to the problem pipelines. Tennessee requested an similarities’’ between Order Nos. 436 by prohibiting the pipelines from eligibility cutoff of 5,300 Dth/day for the and 636, the Court stated that it including commodity costs in their two-part rate schedule because it was ‘‘[i]nitially, agreed with petitioners that minimum bills. Order No. 436 the highest criterion used in the tariffs the Commission’s stated rationale for exacerbated that problem, particularly 107 of Tennessee’s downstream pipelines. allocating take-or-pay costs to pipelines by giving customers the ability to The Commission found that the lack substantially applied in the context of convert from sales to transportation of a one-part rate for small former sales GSR costs as well.’’ 109 The Court found service without either providing an customers on Tennessee’s downstream that ‘‘Order No. 636 is based on appropriate transition cost recovery pipelines would lead to inequitable principles of cost spreading and value of mechanism so that departing parties results. The Commission thus required service that are, in turn, premised on the would bear some responsibility for the Tennessee to offer the one-part rate to notion that all aspects of the natural gas cost consequences associated with their those downstream customers otherwise industry must contribute to the departure or relieving the pipelines of eligible for small customer rates on the transition to an unbundled their service obligation. They were still downstream pipelines, and held that the marketplace.’’ 110 Accordingly, the Court obligated to provide service to their eligible level would be set at 5,300 Dth/ remanded the matter to the Commission customers when called upon but they day or less. The Commission analyzed for further consideration. In so doing, could not depend upon those customers the cost shifting effect of enlarging the the Court expressly ‘‘did not conclude to purchase gas on an ongoing basis.113 small-customer class and found that the that the Commission necessarily was However, the inability of pipelines to particular increase to the eligible class required to assign the pipelines recover their huge take-or-pay liabilities under consideration would affect only a responsibility for some portion of their was, at bottom, the direct result of small percentage of Tennessee’s daily GSR costs,’’ 111 but rather that the extraordinary market failures transportation contract demand.108 A Commission’s stated reasons did not overhanging the pipeline-customer sales generic determination concerning the rise to the level of reasoned relationship that had traditionally class of eligible customers simply would decisionmaking. provided the means by which pipelines The Commission readily recovered their prudently incurred 106 Customers of Tennessee’s downstream acknowledges that there are noteworthy pipelines include East Tennessee Customer Group costs. and Tennessee Valley, the petitioners on this issue similarities between the take-or-pay In the face of these extraordinary in UDC. problems underlying Order No. 436 and market conditions, the Commission 107 East Tennessee used a volumetric maximum of the Order Nos. 500/528 series and the adopted extraordinary measures. As 4,046 Dth/d; Midwestern Gas Co. used 5,233 Dth/ GSR recovery issues addressed by the d; and Alabama-Tennessee Natural Gas Co. used 2,564 Dth/d. East Tennessee Natural Gas Co., 63 Commission in Order No. 636. Those 112 Regulation of Natural Gas Pipelines after FERC ¶ 61,102 (1993); Midwestern Gas similarities include, as the Court Partial Wellhead Decontrol, Order No. 500–H, Transmission Co., 63 FERC ¶ 61,099 (1993); and observed, the fact that the GSR costs to [Regs. Preambles 1986–1990] FERC Stats. & Regs. ¶ Alabama-Tennessee Natural Gas Co., 63 FERC be recovered as transition costs in Order 30,867 at 31,509–14 (1989), aff’d in relevant part, ¶ 61,054 (1993). American Gas Ass’n v. FERC, 912 F.2d 1496 (D.C. 108 Tennessee Gas Pipeline Co., 65 FERC ¶ 61,224 Cir. 1990). at 62,064 (1993), appeal pending sub nom. East 109 88 F.3d at 1188. 113 Associated Gas Distributors v. FERC, 824 F.2d Tennessee Group v. FERC, (D.C. Cir. No. 93–1837 110 Id. at 1190. 981 (D.C. Cir. 1987), cert. denied, 485 U.S. 1006 filed Aug. 20, 1993). 111 Id. at 1188 (emphasis in original). (1988). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10213 discussed below, in Order Nos. 500/528 After carefully reviewing the Court’s of the GSR cost absorption issue does the Commission created a mechanism to concerns in UDC and the circumstances not affect the settled GSR proceedings. facilitate settlement of the take-or-pay surrounding the cost recovery issues in Regardless of the Commission’s decision liabilities, to free gas markets of the both Order Nos. 500/528 and Order No. on remand concerning absorption of burdens of a problem that experience 636, the Commission believes that it GSR costs, the GSR settlements and the demonstrated would not be resolved must reaffirm its conclusion in Order final and non-appealable orders will through traditional cost recovery No. 636 that pipelines should be remain binding on the subject pipelines mechanisms, with or without open permitted an opportunity to recover 100 and their customers.117 To the extent access transportation requirements. In per cent of prudently incurred GSR that pipelines have voluntarily elected that context, (and given the Court’s costs. As described below, the to enter into settlements that require decision in AGD requiring the Commission finds that the extraordinary absorption of some portion of the GRS Commission to address the take-or-pay market circumstances that gave rise to costs to avoid protracted litigation of problem as a condition to maintaining the requirement for pipeline absorption eligibility and prudence challenges, we open access transportation) the of gas supply costs in Order Nos. 500/ do not disturb that result. Commission’s overriding concern was to 528 were not present at the time of However, there has as yet been no restore order to the markets promptly by Order No. 636. In the absence of the settlement of the proceedings initiated encouraging settlements that could special circumstances that gave rise to by Tennessee to recover its GSR costs.118 move the industry past economic the justification for pipeline absorption There has also been no settlement of a stalemate. Of necessity, the as required in Order Nos. 500/528, and recent filing by NorAm Gas Commission’s objectives could only be in light of the fact that the regulatory Transmission Company (NorAm) and achieved by foregoing efforts to assign changes in Order No. 636 directly led to two recent filings by ANR Pipeline costs and ‘‘responsibility’’ among the the incurrence of GSR costs, the Company (ANR) to recover their GSR various industry participants through Commission reaffirms its conclusion in costs.119 Also, while the Commission conventional means. Order No. 636 that pipelines should be has approved a settlement concerning In those circumstances, and to permitted an opportunity to recover 100 Southern Natural Gas Company’s facilitate settlement, the Commission percent of costs that are determined to (Southern) recovery of GSR costs, found that because no one segment of be eligible gas supply realignment costs several of Southern’s customers were 114 120 the industry could be held accountable and are prudently incurred. severed from that settlement. In addition, the settlement approved by the for the complex circumstance leading to B. Scope of Commission’s Decision the take-or pay problem, it required all The Commission’s disposition of this industry participants, including whether Williams must absorb its GSR costs in matter on remand does not affect the excess of $50 million. On December 10, 1996, pipelines, to participate in the solution. resolution of GSR costs for most Williams filed an answer, arguing that its settlement provides for it to recover 100 percent of those costs, In exchange for a pipeline’s agreement pipelines. Since Order No. 636, the to absorb some part of its take-or-pay without regard to the outcome of appeals of Order Commission has approved settlements No. 636. In a separate order in the dockets in which costs, the pipeline was granted a between most pipelines and their Williams is seeking recovery of GSR costs in excess rebuttable presumption that its costs customers resolving all issues of $50 million, the Commission has upheld Williams’ interpretation of its settlement. Williams were prudently incurred, significantly concerning those pipelines’ recovery of reducing its risk that a further portion Natural Gas Co., 78 FERC ¶ 61,068 (1997). their GSR costs. In addition, in two GSR 117 /Similarly, after the court’s decision in of its costs would be disallowed as not proceedings, no party sought rehearing Associated Gas Distribs. v. FERC, 893 F.2d 348 prudently incurred. of the Commission’s acceptance of the (D.C. Cir. 1989) (AGD II), that the Order No. 500 In stark contrast to the circumstances pipeline’s GSR recovery proposal.115 method of allocating fixed take-or-pay charges surrounding Order Nos. 500/528, Order violated the filed rate doctrine, the Commission None of the GSR settlements contains a exempted from the Order No. 528 order on remand No. 636 was not issued in the context provision permitting the settlement to all pipelines whose recovery of take-or-pay costs of market conditions that precluded be reopened as to the absorption had been resolved either by settlement or by final pipelines from a meaningful issue.116 Therefore, the Court’s remand and non-appealable order. Order No. 528, 53 FERC opportunity to seek recovery of ¶ 61,163 at 61,594 (1990). 118 On January 28, 1997, the Administrative Law prudently incurred costs. While at the 114 The Court gave several examples of reasons Judge in Tennessee’s GSR proceedings (Docket Nos. time of Order No. 636 there were, of which might justify not requiring pipelines to RP93–151–000 et al.) required the participants to course, individual contracts that were absorb a share of their GSR costs. These were: (1) file a joint status report concerning their settlement priced higher than the prevailing market a finding that ‘‘unbundling under Order No. 636 negotiations by February 7, 1997. The status report benefits consumers so much more than it does the indicated that almost all parties have agreed to a prices for gas, this ‘‘market pipelines that the pipelines should bear few or no settlement in principle. On February 21, Tennessee circumstance’’ did not render pipeline GSR costs,’’ UDC, 88 F.3rd at 1189, (2) a finding reported to the ALJ that the parties expect to file gas supply costs unrecoverable. To the that ‘‘the pipelines’ contribution to the industry’s a settlement by February 28, or shortly thereafter. contrary, pipelines had the ability to transition has already been so disproportionately 119 /NorAm made its first filing to recover GSR large vis-a-vis consumers that they are entitled to costs on August 1, 1996, following the UDC seek recovery of costs incurred under be excused from further responsibility, Id., and (3) decision. The Commission accepted and suspended those contracts, so long as their sales a finding that requiring the pipeline segment of the the filing, subject to this order on remand. NorAm customers continued to purchase gas industry to absorb GSR costs would ‘‘raise Gas Transmission Co., 76 FERC ¶ 61,221 (1996). substantial concerns about its financial health,’’ Id. from them. The Commission has approved settlements of at 1189 n. 99. The pipeline industry is not in such ANR’s first three GSR proceedings. ANR Pipeline However, Order No. 636 effected precarious financial condition that absorption Co., 72 FERC ¶ 61,130 (1995); 74 FERC ¶ 61,267 significant regulatory changes, largely to would threaten its financial viability. However, the (1996). However, those settlements did not address the benefit of users of the transportation Commission does not believe that the Court ANR’s recovery of any subsequent GSR costs. On precluded the Commission from using the rationale October 31, 1996, ANR filed to recover additional system and purchasers of gas, that discussed below in this order. GSR costs in Docket No. RP97–47–000. ANR directly resulted in the inability of 115 Trunkline Gas Co., 72 FERC ¶ 61,265 (1995); Pipeline Co., 77 FERC ¶ 61,130 (1996). That pipelines to recover their gas supply Williston Basin Interstate Pipeline Co., 70 FERC proceeding has not yet been settled. In addition, on costs from their sales customers (who ¶ 61,009 (1995). January 31, 1997, ANR made another GSR filing in 116 On November 25, 1996, the Missouri Public Docket No. RP97–246–000. were allowed to convert to Service Commission (MoPSC) filed, in this 120 /Southern Natural Gas Co., 72 FERC ¶ 61,322 transportation customers by Order No. rulemaking docket, a motion asserting that at 62,329–30, 62,355–6 (1995), reh’g denied, 75 636). Williams’ GSR settlement left open the issue FERC ¶ 61,046 (1996). 10214 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Commission concerning the recovery of expenses incurred by pipelines as a required pipelines using that GSR costs by Panhandle Eastern Pipe result of the Commission’s own mechanism to absorb a share of the Line Company (Panhandle) does not regulatory actions. For that reason, as costs. resolve how it will recover any GSR the Court of Appeals pointed out in 121 D. The Treatment of Costs in Order costs which it may file in the future. Public Utilities Comm’n of Cal. v. FERC, Nos. 500/528 Therefore, since the recovery of GSR 988 F.2d 154, 166 (1993), the costs does remain an issue in some Commission, In order to understand the basis for the Commission’s different treatment of cases, the Commission must address the With the backing of this court, has been at issue remanded by the Court. The pains to permit pipelines to recover * ** Order No. 636 GSR costs and Order Nos. following describes in greater detail the [Order Nos. 500/528 take-or-pay costs] which 500/528 take-or-pay costs, it is basis for the Commission’s decision to have accumulated less through necessary first to review the reaffirm it’s decision in Order No. 636 mismanagement or miscalculation by the circumstances which led to the Order with respect to recovery of GSR costs. pipelines than through an otherwise Nos. 500/528 absorption requirement beneficial transition to competitive gas and the Commission’s reasons for that C. The Regulatory Framework markets. requirement. The Commission’s task in both Order As more fully discussed below, the 1. The Factual Context of Order Nos. Nos. 500/528 and Order No. 636 was to Order No. 636 GSR costs are the direct 500/528 determine a method for pipelines to result of the transition to unbundled recover their prudently incurred costs transportation service required by Order The industry’s take-or-pay crisis arising from the non-market responsive No. 636. In Order No. 636, the developed before the Commission take-or-pay contracts entered into Commission prohibited pipelines from initiated open access transportation in Order No. 436. The Commission made during the late 1970s and early 1980s. continuing their practice of bundling this finding in Order No. 500–H.126 The Take-or-pay costs are part of a pipeline’s sales of natural gas with transportation severe gas shortages of the 1970’s led to expenses. As the Court of Appeals held rights and required pipelines making enactment of the NGPA, which initiated in Mississippi Power Fuel Corp. v. unbundled sales to do so through a a phased decontrol of most new gas FPC,122 pipelines must be allowed an separate arm of the company. Order No. prices and established ceiling prices for opportunity to recover their prudently 636 gave pipeline sales customers an controlled gas, including incentive incurred expenses: immediate right to terminate gas prices for price-controlled new gas Expenses * * * are facts. They are to be purchases from the pipeline.124 In light higher than the ceiling prices previously ascertained, not created, by the regulatory of the substantial improvement in the established by the Commission under authorities. If properly incurred, they must quality of stand-alone transportation the NGA.127 To avoid future shortages, be allowed as part of the composition of service required by Order No. 636, pipelines then entered into long-term rates. Otherwise, the so-called allowance of almost all sales customers immediately a return upon investment, being an amount take-or-pay contracts at the high prices terminated their sales service during over and above expenses, would be a farce. made possible by the NGPA, and those restructuring, leading to the termination high prices stimulated producers to The Court of Appeals has recently of the pipelines’ merchant business. The greatly increase exploration and reiterated that holding, and emphasized Commission has developed standards drilling.128 All participants in the the Supreme Court’s longstanding for eligibility for GSR cost recovery natural gas industry expected both admonition that regulatory agencies designed to limit GSR costs solely to must recognize prudently incurred 125 demand and prices to continue those costs caused by Order No. 636. increasing indefinitely. expenses in establishing just and For that reason, the Commission has reasonable rates: However, by 1982 demand was given pipelines an opportunity to falling, due to a number of factors More than a half century ago, the Supreme recover the full amount of their GSR including unexpectedly strong Court admonished regulatory agencies to costs. competition from alternative fuels, the ‘‘give heed to all legitimate expenses that will However, as discussed below, the recession of the early 1980s, and be charges upon income during the term of massive take-or-pay settlement costs regulation.’’ warmer than normal weather. By 1983, addressed by Order Nos. 500/528— demand for natural gas was 17 percent Mountain States Telephone & unlike GSR costs—were not the direct Telegraph Co. v. FCC, 939 F.2d 1021, below its 1979 level. As a result, the result of the Commission’s regulatory supply of natural gas (i.e., current 1029 (D.C. Cir. 1991) (citing West Ohio actions. Rather, they arose from market Gas Co. v. Public Utilities Comm’n of deliverability from the nation’s gas conditions beginning in the early 1980s wells) exceeded demand for natural gas Ohio 294 U.S. 63, 74 (1935)). Of course, which would have rendered a portion of recovery may be denied if particular by 4 Tcf, or nearly 20 percent of total the costs unrecoverable, regardless of deliverability.129 This deliverability costs (1) are not used and useful in the Commission’s initiation of open performing the regulated service 123 or access transportation in Order No. 436. 126 Regulation of Natural Gas Pipelines after (2) have been imprudently incurred. In those unique circumstances, while Partial Wellhead Decontrol, Order No. 500–H, Consistent with the Supreme Court’s the Commission created a special [Regs. Preambles 1986–1990] FERC Stats. & Regs. admonishment that regulatory agencies recovery mechanism to permit the ¶ 30,867 (1989), aff’d in relevant part, American Gas recognize prudently incurred expenses, Ass’n v. FERC, 912 F.2d 1496 (D.C. Cir. 1990). pipelines to recover their take-or-pay 127 the Commission has a particular Id. at 31,509. settlement costs, the Commission also 128 Id. at 31,509–10. obligation not to ignore or disallow 129 As the Commission found in Order No. 500– 124 The Commission’s only requirement for H: 121 /Panhandle Eastern Pipe Line Co., 72 FERC pipelines to continue to offer to sell gas at cost- By 1982, demand for gas was falling. High natural ¶ 61,108 (1995). based rates was a requirement that they offer small gas prices, combined with decreasing oil prices, led 122 163 F.2d 433, 437 (D.C. Cir. 1947). customers such sales service for a one-year to increased fuel switching, particularly as 123 Tennessee Gas Pipeline Co. v. FERC, 606 F.2d transition period. Order No. 636–A, [Regs. customers who did not already have the necessary 1094, 1109 (D.C. Cir. 1979), cert denied, 445 U.S. Preambles Jan. 1991–June 1992] FERC Stats. & Regs. equipment to burn alternative fuels installed it. The 920, cert. denied, 447 U.S. 922 (1980) (‘‘current at 30,615. recession of the early 1980’s and warmer than ratepayers should bear only legitimate costs of 125 See Texas Eastern Transmission Co., 65 FERC normal weather further decreased demand. These providing service to them’’). ¶ 61,363 (1993). factors combined to create an excess of the supply Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10215 surplus persisted for the remainder of of supply over demand in the natural massive costs in their settlements with the 1980s. gas market which arose in the early producers. This unexpected change in market 1980s due to the convergence of a 2. The Policies of Order Nos. 500/528 conditions caused pipelines, as early as number of factors, many entirely 1982, to start incurring significant take- unrelated to the Commission’s exercise When the Commission first addressed or-pay liabilities under the take-or-pay of its regulatory responsibilities. As a the issue of how pipelines should contracts entered into with the result, even before Order No. 436 recover their take-or-pay settlement expectation of continued high demand. issued, the natural gas industry already costs in Order No. 500, it did so under By year-end 1983, nearly two years faced a massive problem in which the shadow of the pipelines’ vast before Order No. 436 issued, pipeline pipelines were contractually bound to outstanding take-or-pay exposure. As a take-or-pay exposure was $5.15 take or pay for high-priced gas which result, the fundamental premise of billion.130 However, despite the market conditions suppressed demand Order No. 500 was, as the Court deliverability surplus, both wellhead and prevented them from reselling at expressed it in KN Energy v. FERC, that gas prices and the gas costs reflected in prices which would recover their costs. ‘‘the extraordinary nature of this the pipelines’ rates continued to Simply put, at the time of Order No. problem requires the aid of the entire 139 increase. Similarly, the average 436, the market was requiring industry to solve it.’’ In order to residential cost of gas continued to substantial cost absorption entirely accomplish this result, Order No. 500 rise.131 These price increases at a time apart from any regulatory action of the established an equitable sharing of oversupply were primarily the result Commission. mechanism for pipelines to use in recovering their take-or-pay settlement of the inflexible supply arrangements The Commission and the industry had costs, as an alternative to recovery between producers, pipelines, LDCs, never previously faced a take-or-pay through their commodity sales rates.140 and consumers, under which most gas problem of this nature. In earlier times, Relying on ‘‘cost spreading’’ and ‘‘value users could obtain gas only through pipelines had made take-or-pay of service’’ principles, the Commission purchases from the pipeline. The payments to particular producers, and Commission’s first major action to permitted pipelines using the equitable the Commission had a policy of address those supply arrangements was sharing mechanism to allocate their permitting such payments to be the issuance of Order No. 380 132 on May take-or-pay settlement costs among all included in rate base and then 25, 1984, requiring pipelines to their customers. The Commission also recovered as a gas cost when the eliminate commodity costs from their required the pipelines to absorb a pipeline later took the gas under make- portion of their costs.141 minimum bills. 136 Take-or-pay exposure increased to up provisions in the contract. By The Court was of the view that Order $6.04 billion by year-end 1984.133 By the 1983, however, with their total take-or- Nos. 500/528 based the absorption end of 1985, just two months after Order pay exposure over $5 billion, the requirement on the ‘‘cost spreading’’ No. 436 issued and before any pipeline pipelines could not manage their take- and ‘‘value of service’’ principles.142 had accepted a blanket certificate under or-pay problems, and stopped honoring However, Order No. 528–A,143 where Order No. 436, pipelines had the bulk of their take-or-pay the Commission gave its fullest 137 outstanding take-or-pay liabilities of liabilities. They then sought justification for that absorption $9.34 billion.134 In 1986, as pipelines settlements with the producers to requirement, did not rely on either of were just beginning to implement open reform or terminate the uneconomic those principles to support the access transportation under Order No. take-or-pay contracts and to resolve absorption requirement. 144 Rather, 436, the pipelines’ outstanding outstanding take-or-pay liabilities. unresolved take-or-pay liabilities Because pipelines had never 139 968 F.2d 1295, 1301 (D.C. Cir. 1992). peaked at $10.7 billion.135 previously incurred significant take-or- 140 Order No. 500 also increased the pipelines’ In short, although Order No. 436 pay settlement costs, the Commission bargaining power to negotiate settlements with producers through the take-or-pay crediting exacerbated pipelines’ existing take-or- had no policy concerning whether and program. pay problems by making it easier for the how pipelines were to recover those 141 The Court in KN Energy upheld the pipelines’ traditional sales customers to costs. The Commission commenced Commission’s use of cost spreading in connection purchase from alternative suppliers, establishing such a policy in an April with the allocation of take-or-pay costs among a 138 pipeline’s open access customers. However, the Order No. 436 did not cause those 1985 policy statement, just six Court never reviewed the Order Nos. 500/528 problems. Rather, the pipelines’ take-or- months before Order No. 436. When requirement that pipelines absorb a share of the pay problems were caused by an excess Order No. 500 issued in August 1987, take-or-pay costs. AGA v. FERC, 888 F.2d 136, 152 few take-or-pay settlement costs had yet (D.C. Cir. 1989), holding the absorption requirement not ripe for review. Accord: AGA v. FERC, 912 F.2d of natural gas (i.e., current deliverability from the been included in pipelines’ rates. 1496 (D.C. Cir. 1990). nation’s gas wells) over the demand for natural gas. However, since the pipelines’ 142 The deliverability surplus persisted for the UDC, 88 F.3d at 1188. remainder of the 1980’s. In 1982 the deliverability outstanding take-or-pay liabilities were 143 Order No. 528–A, 54 FERC ¶ 61,095 (1991). surplus was about 1.5 Tcf, or 8.3 percent of total in the neighborhood of $10 billion, it 144 The Commission’s use of cost spreading and deliverability. By 1983, with the demand for natural was clear that pipelines would incur value of service principles to allocate take-or-pay gas 17 percent below its 1979 level, the costs among all the pipeline’s open access deliverability surplus was about 4 Tcf, or nearly 20 customers was, as the Court suggested in KN 136 percent of total deliverability. Regulatory Treatment of Payments Made in Energy, 968 F.2d at 1302, ‘‘only a minor departure’’ Lieu of Take-or-Pay Obligations, Regulations Id. at 31,510. from the traditional ratemaking principle that costs Preambles 1982–85 ¶ 30,637 at 31,301 (1985). 130 Id. should be allocated among customers based on cost 137 In Order No. 500–H, the Commission found causation. Ordinarily, the cost causation principle 131 The residential cost of gas rose from $5.17 in that, although pipelines incurred total take-or-pay is used to assign the pipeline’s cost-of-service 1982 to $6.12 in 1984. Id. exposure over the period January 1, 1983 through among customers. Its underlying premise is that 132 Elimination of Variable Costs from Certain June 30, 1987 of over $24 billion, they only made each customer should be responsible for the costs Natural Gas Pipeline Minimum Bill Provisions, take-or-pay payments totalling $.7 billion. Order its service causes the pipeline to incur. A necessary Order No. 380, [Regs. Preambles 1982–1985] FERC No. 500–H, Regulations Preambles 1986–1990 corollary is that the pipeline may, if the market Stats. Regs. ¶ 30,571 (1984). ¶ 30,867 at 31,514. permits, recover 100 percent of the costs it 133 Id. 138 Regulatory Treatment of Payments Made in prudently incurs to serve its customers. Otherwise, 134 Id. at 31,513. Lieu of Take-or-Pay Obligations, [Regs. Preambles the customers would not be responsible for all the 135 Id. 1982–85] Stats & Regs. ¶ 30,637 (1985). Continued 10216 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Order Nos. 500/528 consistently Following Order No. 500, pipelines Similarly, on March 10, 1992, less than recognized the Commission’s traditional made a massive effort to reform their a month before issuance of Order No. obligation to ‘‘provide a pipeline a supply contracts by negotiating with 636, ANR filed a settlement under reasonable opportunity to recover its producers settlements of thousands of which it would have continued a prudently incurred costs.’’ 145 However, take-or-pay contracts which either bundled sales service.153 Order No. 528–A reasoned that, because eliminated the uneconomic take-or-pay Order No. 636 upset this relatively the take-or-pay problem was caused provisions or terminated the contracts stable situation and created a new more by general market conditions than altogether.149 By the time Order No. 636 jeopardy for the recovery of pipeline gas by any regulatory action of the issued, pipelines had succeeded in supply costs. Order No. 636 prohibited Commission and the underlying take-or- reforming nearly all their supply pipelines from continuing their bundled pay contracts were no longer used and contracts at a total cost, in settlement sales service and resulted in the useful, it was appropriate to require the payments to producers, of nearly $10 termination of the pipelines’ merchant pipelines to share in the losses arising billion.150 For example, at the hearing in business. While Order No. 436 had only from those market conditions.146 Docket No. RP92–134–000 concerning required pipelines to permit their Southern’s Mississippi Canyon customers to convert from sales to E. The Treatment of Costs in Order No. construction costs, Southern provided 636 transportation service over a phased testimony that by 1987 it had succeeded five-year schedule,154 Order No. 636 The nature of the take-or-pay problem in renegotiating its supply arrangements gave pipeline sales customers an had changed dramatically by the time of such that it was no longer incurring immediate right to terminate their entire 151 Order No. 636. That difference in additional take-or-pay liabilities. sales service. Order No. 636 also circumstances accounts for the different Another reason that pipelines were required pipelines to substantially policies applied by the Commission in not incurring new take-or-pay liabilities improve the quality of their stand-alone Order No. 636. when Order No. 636 issued is that, after transportation service. As a result, the Order No. 436, unlike after Order No. 1. The Factual Context of Order No. 636 pipelines’ remaining sales customers 636, pipelines continued to perform a switched to transportation-only service, significant sales service. This was at By 1992, when Order No. 636 issued, with almost all of them immediately least in part because, as the Commission the world had changed, and the unique terminating their sales service during found in Order No. 636, open access circumstances out of which the Order restructuring. Nos. 500/528 absorption requirement transportation service under Order No. Order No. 636 also made it more arose no longer existed. Pipelines were 436 was not comparable to the difficult for pipelines to manage their no longer incurring substantial costs in transportation component of bundled take-or-pay contracts in several other connection with their take-or-pay sales service. As a result, through such ways. Unlike Order No. 436, Order No. contracts which they were unable to strategies as purchasing gas in the 636 required pipelines to give up most recover in sales rates, as they had been summer, storing it in their storage fields, of their storage capacity so that they when Order No. 436 issued. While some and then reselling it during periods of were less able to pursue such strategies of the uneconomic take-or-pay contracts peak demand and prices in the winter, as storing gas purchased in the summer, of the late ’70s and early ’80s remained at the time of Order No. 636 the when sales were too low to meet in effect and some pipelines were still pipelines could meet most of their minimum purchase obligations, for working to resolve some past take-or- minimum take requirements even in subsequent resale in the winter, when pay liabilities, there was no longer an their remaining high-priced contracts. sales levels were higher. In addition, industry-wide take-or-pay problem.147 Many pipelines expected to continue In contrast to the situation when providing such a sales service before Order No. 636, many of the Order No. 436 issued, at the time of indefinitely into the future. For pipelines that had the take-or-pay Order No. 636 most pipelines were no example, on the day before the June 30, contracts with producers had longer incurring new take-or-pay 1991 issuance of the Notice of Proposed downstream pipeline customers who liabilities, even under their few Rulemaking which led to Order No. 636, were continuing to purchase some gas. remaining old, unresolved contracts.148 Southern and some of its sales However, Order No. 636 required the customers filed a comprehensive downstream pipelines also to unbundle, costs their service causes the pipeline to incur. For settlement that would have assured a resulting in the loss of the downstream this reason the cost causation principle is not used continued sales service by Southern.152 pipelines as sales customers. to assign costs to the pipeline. Order Nos. 500/528 The pattern of pipeline filings with used cost spreading and value of service principles charged their customers. Therefore, the Commission simply to extend the chain of causation to assign the Commission to recover take-or-pay concluded that it would not be reasonable to related costs is consistent with the costs to a broader group of customers. KN Energy, require electric utilities to bear losses that, unlike 968 F.2d at 1302. the Order Nos. 500/528 take-or-pay costs, arise as conclusion that Order No. 636 reopened 145 Order No. 500–H, [Regs. Preambles 1986– a direct result of Congress’ and the Commission’s a take-or-pay problem that had been 1990] FERC Stats. & Regs. at 31,575. change in regulatory regime through FPA section largely resolved. As shown in Table 1 of 146 Order No. 528A, 54 FERC at 61,303–5 (1991). 211 and Order No. 888. See Recovery of Stranded Appendix B to this order, since Order 147 In late 1989, the Commission found in Order Costs by Public Utilities and Transmitting Utilities, No. 500–H that pipelines’ settlements with III FERC Stats. & Regs. ¶ 30,——at 31,——(Order No. 436, pipelines have filed to recover producers ‘‘have substantially resolved the existing No. 888–A) (1997). The Commission’s approach to a total of approximately $12.1 billion in take-or-pay liabilities of most pipelines, and all the Order No. 636 GSR costs is similar to its approach take-or-pay related costs, including pipelines have made significant progress in in Order No. 888 to stranded electric generation about $10.4 billion filed pursuant to resolving their problems.’’ Order No. 500–H, [Regs. costs. Preambles 1986–90] FERC Stats. & Regs. at 31,523. 149See Id. at 31,522–3 and 31,536. Order Nos. 500/528 and $1.7 billion The Commission also terminated the take-or-pay 150See Appendix B, Table 1. filed as Order No. 636 GSR costs. Fully crediting program effective December 31, 1990, on 151 Southern Natural Gas Co., 72 FERC ¶ 61,322 at 81.7 percent of the total $12.1 billion the ground that such a program no longer would be 62,358 (1995). amount was filed, pursuant to Order necessary. Id. at 31,529. 152However, during Southern’s Order No. 636 148 Similarly, when the Commission initiated restructuring proceeding, all its sales customers open access transmission in the electric industry in decided to take transportation only service and 153 ANR Pipeline Co., 59 FERC ¶ 61,347, reh’g, 60 Order No. 888, most electric utilities were Southern terminated its merchant function. Id. at FERC ¶ 61,145 (1992). recovering their electric generating costs in the rates 62,362–3. 154 18 CFR 284.11(d)(3). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10217

Nos. 500/528, before Order No. 636 those contracts could no longer included costs incurred in connection issued in April 1992. See Table 2. reasonably be analogized to a failed gas with upstream pipeline capacity and Since Order No. 636, pipelines have supply project, the analogy used to storage capacity that a pipeline no continued to make some filings to support the Order Nos. 500/528 longer needs because its sales service recover take-or-pay related costs under absorption requirement.156 As a result, terminated due to restructuring. In the Order Nos. 500/528. This is because the the Commission’s section 5 action in section 4 cases where recovery of these only costs eligible for recovery as Order Order No. 636 reopened a take-or-pay costs has been sought, the Commission No. 636 GSR costs are costs that are tied problem that had been largely resolved. has recognized that its action in Order to the restructuring required by Order The termination of the pipelines’ No. 636 rendered the costs no longer No. 636. However, as shown by Table 2, merchant business as a result of Order used and useful, and the Commission post-Order No. 636 filings to recover No. 636 created a situation in which the has accordingly permitted the full take-or-pay related costs pursuant to pipelines simply lacked an ability to amount of the eligible and prudently Order Nos. 500/528 represent only 4.2 manage and sell the natural gas supply incurred costs to be amortized as part of percent of the total take-or-pay related portfolio they had under contract. In the pipeline’s cost-of-service, although costs filed with the Commission since these circumstances, where the not included in rate base.158 In UDC, the Order No. 436. Table 3, showing costs Commission’s own regulatory action in Court approved this approach.159 The filed for recovery under Order Nos. 500/ Order No. 636 rendered the pipelines’ GSR costs have become stranded in an 528, by quarter, demonstrates supply contracts no longer used and identical manner, and therefore graphically the dramatic decline in such useful, the Commission believes that pipelines should be afforded the same costs before Order No. 636, and the pipelines should be allowed full opportunity for full recovery of their relative insignificance of such costs recovery of transition costs caused by prudently incurred GSR costs. thereafter. Commission action. Moreover, the fact that Order No. 636 That take-or-pay was no longer an Moreover, the Commission only led to the complete termination of most industry-wide problem at the time of permits 100 percent recovery of GSR pipelines’ merchant function, unlike the Order No. 636 is also suggested by the costs arising in connection with supply situation after Order No. 436, means fact that just two pipelines—Southern contracts which were part of an overall that the Commission cannot now take and Tennessee—account for gas supply portfolio that was the Order Nos. 500/528 approach of approximately 65 percent of all take-or- commensurate with the pipeline’s offering the pipelines the alternative of pay related costs filed with the merchant obligation—in other words seeking 100 percent recovery through Commission as Order No. 636 GSR contracts which were used and useful their sales commodity rates. Rather, the costs.155 Moreover, the sudden spike in when Order No. 636 issued. See Texas recovery mechanism provided by Order GSR costs filed with the Commission in Eastern Transmission Co., 65 FERC No. 636 is the only available mechanism late 1993, continuing to an extent in ¶ 61,363 (1993). Where the pipeline for recovering GSR costs. Therefore, if 1994, as pipelines were just cannot show that its costs satisfy the the Commission did not permit implementing their Order No. 636 eligibility standards developed in Texas pipelines to seek recovery of the full restructuring is consistent with a Eastern, the costs are only eligible for amount of their GSR costs through the conclusion that Order No. 636 reopened Order Nos. 500/528 recovery and a mechanism provided by Order No. 636, a take-or-pay problem that had been portion must be absorbed. Indeed, since the Commission would be denying largely resolved. See Tables 4 and 5. Order No. 636, pipelines have filed to recovery by regulatory decree, not 2. The Policies of Order No. 636 recover, pursuant to Order Nos. 500/ simply allowing market forces to 528, over $500 million in costs which prevent full recovery. Based on the changing nature of the they recognized were not caused by As the Commission has previously take-or-pay problem reviewed above, Order No. 636. Moreover, when parties found, Order No. 636 substantially the Commission holds that the rationale have questioned whether claimed GSR benefits all gas consumers. It is for that supporting the Order Nos. 500/528 costs meet the Texas Eastern standards, reason that the Commission required absorption requirement is not valid for the Commission has required pipelines that GSR costs be allocated among all the GSR costs caused by Order No. 636. to demonstrate their eligibility at a the pipelines’ customers. In an October The rationale used in Order Nos. 500/ hearing. Thus, through its GSR 22, 1996 petition for further proceedings 528 does not support a requirement that eligibility standards, the Commission on remand, the Pennsylvania Office of pipelines absorb a share of their Order ensures that the costs for which 100 Consumer Advocate (POCA) suggested No. 636 GSR costs. In the factual context percent recovery is permitted are in fact that Order No. 636 also benefitted faced by the Commission at the time of caused by the Commission’s regulatory pipelines by (1) allowing them to Order No. 636, the bedrock ratemaking actions in Order No. 636. terminate their relatively risky merchant principle, that pipelines must be given Eligible GSR costs are similar to other functions, while (2) retaining the an opportunity to recover the full stranded pipeline merchant costs which relatively stable transportation amount of their prudently incurred Order No. 636 rendered no longer used operations bolstered by the guarantee of costs, required the Commission to and useful and whose recovery the substantial fixed cost recovery under establish a different mechanism for Court approved in UDC, 88 F.3d at SFV rates. POCA asserts that in return pipelines to recover their Order No. 636 1178–80. Order No. 636 permitted for these benefits pipelines should be GSR costs. This is particularly so, pipelines to file under NGA section 4 to required to absorb a portion of their because these costs were caused by the recover 100 percent of costs ‘‘incurred transition costs. However, as discussed Commission’s regulatory actions. by pipelines in connection with their above, most pipelines were not When Order No. 636 issued, pipelines bundled sales services that cannot be incurring current financial losses in were generally taking gas under their directly allocated to customers of the connection with their merchant remaining take-or-pay contracts and no unbundled services.’’ 157 Those costs functions at the time of Order No. 636. longer accumulating significant additional take-or-pay obligations. Thus, 156 Order No. 528–A, 54 FERC at 61,304. 158 See Equitrans, Inc. 64 FERC ¶ 61,374 at 63,601 157 Order No. 636, [Regs. Preambles Jan. 1991-June (1993). 155 See Table 1. 1996] FERC Stats. & Regs. at 30,662. 159 UDC, 88 F.3d at 1178–80. 10218 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Yet the termination of those merchant reflected the preexisting effect of the much GSR costs should be allocated to functions caused a number of pipelines market, which would have required interruptible service remains open on to incur significant expenses, including absorption even without open access several pipeline systems. As discussed the costs of shedding the gas supplies transportation under Order No. 436. above, there has been no settlement they had contracted for to serve their However, the Commission’s resolving the recovery of GSR costs by sales customers. Therefore, the regulatory actions in Order No. 636 have Tennessee and NorAm. Also, the Commission does not see the pipelines’ caused the pipelines to incur the GSR settlements which the Commission has termination of their merchant functions costs and rendered the underlying gas approved in the GSR proceedings of as a ‘‘benefit’’ justifying the Commission supply contracts no longer used and several other pipelines do not resolve to require the pipelines to absorb a useful. In these circumstances, the interruptible allocation issue as to portion of the resulting expenses.160 traditional ratemaking principles all of those pipelines’ GSR costs. The This is particularly so, in light of the require the Commission to allow the Commission has interpreted the Supreme Court’s admonishment that pipelines an opportunity to recover the settlement of Williams’ recovery of GSR regulatory agencies must recognize full amount of the expenses caused by costs as leaving open the issue of what prudently incurred costs.161 That is an its actions. And the Commission has portion of Williams’ GSR costs in excess obligation the Commission takes been careful, through the eligibility of $50 million should be allocated to especially seriously when, as here, its standards developed in Texas Eastern, interruptible service.166 The own regulatory actions have caused the to limit Order No. 636 GSR recovery to interruptible allocation issue is also costs.162 the costs actually caused by the unresolved to the extent it affects the The Commission also does not believe Commission’s actions in Order No. 636. GSR costs which Southern may recover that the shift to an SFV rate design, for Accordingly, the Commission reaffirms from the customers which the the recovery of the pipelines’ Order No. 636’s holding that pipelines Commission severed from the transmission costs, is relevant to the may recover 100 percent of their GSR settlement of Southern’s GSR issue of the pipelines’ recovery of the costs. proceedings. Finally, the issue is costs of realigning their gas supplies VII. Recovery of GSR Costs From IT unresolved as to any GSR costs which which supported their merchant Customers ANR and Panhandle may seek to function. To the extent SFV alters the recover in the future.167 risks a pipeline faces in connection with In Order No. 636-A, the Commission The Commission continues to believe its performance of transportation required pipelines to allocate 10 percent that pipelines should allocate some service, the appropriate place to make of GSR costs to interruptible portion of their GSR costs to an adjustment is in the allowed return transportation customers. The Industrial interruptible service. The Court upheld on equity embodied in the pipelines’ End-Users challenged this decision on the Commission’s holding that transportation rates.163 appeal and contended that unbundling interruptible transportation customers In conclusion, the Commission has confers no real benefit on that class of benefit from unbundling under Order consistently applied traditional customers, who therefore should not be No. 636.168 As the Court stated, ratemaking principles to the issue of the responsible for paying GSR costs. The An active market for firm transportation pipelines’ recovery of transition costs. Small Distributors and Municipalities would seem likely to drive down the cost of However, the different factual contexts took the opposite view and asserted that less desirable interruptible transportation, addressed by Order Nos. 500/528 and the Commission should have allocated and while the additional use of firm Order No. 636 led the Commission to more GSR costs to interruptible transportation under Order No. 636 may approve different recovery mechanisms transportation customers. The Court crowd out some interruptible transportation, agreed with the Commission that that results at least in part from customers in those orders. Even before the converting from interruptible to firm service Commission initiated open access interruptible transportation customers ** *. Further still, interruptible transportation in Order No. 436, the benefitted from Order No. 636, through, transportation customers do clearly benefit market was preventing pipelines from inter alia, access to low cost from Order No. 636 through access to low recovering costs incurred under their transportation that is available through cost transportation that is available through take-or-pay contracts. The Order Nos. the capacity release mechanism.164 the Commission’s capacity release 500/528 absorption requirement The Court faulted the Commission, mechanism.169 however, for failing to explain why it These benefits received by 160 See UDC, 88 F.3d at 1189. selected the figure of ‘‘10%’’. The Court interruptible customers clearly justify 161 West Ohio Gas Co. v. Public Utilities Comm’n could not discern how the Commission of Ohio, 294 U.S. at 74. Mountain States Telephone got from allocating some GSR costs to 166 Williams Natural Gas Co., 75 FERC ¶ 61,022 at 61,071, reh’g denied, 76 FERC ¶ 61,092 (1996). & Telegraph Co. v. FCC, 939 F.2d at 1029. allocating 10% of those costs to 162 Public Utilities Comm’n of Cal. v. FERC, 988 167 The Commission has approved four F.2d 154, 166 (1993) (The Commission ‘‘with the interruptible transportation customers, settlements concerning Natural’s recovery of GSR backing of this court, has been at pains to permit emphasizing that the law ‘‘requires costs from various groups of customers. Natural Gas pipelines to recover [take-or-pay costs] . . . which more than simple guess-work,’’ and Pipeline Company of America, 67 FERC ¶ 61,174 have accumulated . . . through an otherwise (1994), and 68 FERC ¶ 61,388 (1994). Those remanded the issue to the Commission settlements are generally binding on the parties beneficial transition to competitive gas markets’’). 165 163 In determining the returns on equity allowed for further consideration. notwithstanding the outcome of the judicial review in individual rate cases after the shift to SFV, the As discussed above, the Commission of Order No. 636, with certain limited exceptions Commission has refused to make any special has approved settlements between most as to particular settlement provisions. Any party to downward adjustments based on the pipeline’s shift pipelines and their customers Natural’s GSR proceedings believing that those settlements permit a change in the allocation of to SFV. However, that has been because the concerning those pipelines’ recovery of Commission has found that the equity markets have costs to interruptible service as a result of the already taken the Commission’s shift to SFV into their GSR costs. Therefore, the Court’s Court’s remand of that issue may file in the relevant account. Therefore, the DCF analysis used by the remand of the interruptible allocation Natural GSR proceedings a statement explaining Commission to establish return on equity reflects issue does not affect the settled GSR why it so interprets the settlements. Otherwise, the Commission will presume that the issue has been the shift to SFV without the need for any special proceedings. However, the issue of how adjustment. See Transcontinental Gas Pipe Line settled as to all of Natural’s GSR costs. Corp., 71 FERC ¶ 61,305 at 62,196 (1995); 75 FERC 168 UDC, 88 F.3d at 1187. ¶ 61,039 at 61,125–6 (1996); 76 FERC ¶ 61,096 at 164 UDC, 88 F.3d at 1187. 61,506 (1996). 165 Id. at 1187–88. 169 Id. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10219 the allocation of at least some GSR costs an allocation of GSR costs to FOR FURTHER INFORMATION CONTACT: to interruptible service. interruptible service that is tailored to George K. Haibel, Center For Veterinary However, on remand, the Commission the specific circumstances of the few Medicine (HFV–133), Food and Drug has determined not to require that the pipelines where the issue is still alive. Administration, 7500 Standish Pl., percentage of GSR costs so allocated The Commission also expects that such Rockville, MD 20855, 301–594–1644. must be 10 percent for all pipelines. As hearings will provide the parties a SUPPLEMENTARY INFORMATION: Abbott the Court recognized, different pipelines forum to discuss settlement of this Laboratories, 1401 Sheridan Rd., North perform different levels of interruptible issue. The Commission encourages the Chicago, IL 60064–4000, filed a service. Among the pipelines that parties to seek to settle this and all other supplement to NADA 141–018 that potentially could be affected by a outstanding issues related to GSR provides for use of sarafloxacin departure from the generic 10 percent recovery. hydrochloride solution for injection allocation, interruptible transportation (SaraFlox Injection) in 18-day The Commission Orders comprises a widely varying percentage embryonated broiler eggs in addition to of the pipelines’ total throughput for the (A) Order No. 636 is reaffirmed, in approved use in day-old broiler first nine months of 1996—from 2.87 part, and reversed, in part, as discussed chickens for control of early chick percent (Panhandle) to 21.68 percent in the body of this order. mortality associated with E. coli (ANR).170 Given this fact, it is not (B) Within 180 days of the issuance of organisms susceptible to sarafloxacin. appropriate to require all pipelines to this order, any pipeline with a right-of- The supplement is approved as of allocate the same percentage of their first-refusal tariff provision containing a January 21, 1997, and the regulations GSR costs to interruptible service. If the contract term cap longer than five years are amended by revising 21 CFR same percentage of GSR costs were must revise its tariff consistent with the 522.2095(d) to reflect the approval. The allocated to interruptible service no new cap adopted herein. basis of approval is discussed in the matter how much interruptible service a (C) Within 180 days of the issuance of freedom of information summary. pipeline performs, interruptible this order, pipelines which have filed to In accordance with the freedom of customers on pipelines performing little recover GSR costs before the date of this information provisions of 21 CFR part interruptible service could bear a order, and whose GSR recovery 20 and 514.11(e)(2)(ii), a summary of disproportionate share of the pipeline’s proceedings have not been resolved by safety and effectiveness data and GSR costs (absent discounts). settlement or final and non-appealable information submitted to support Therefore, the Commission will, Commission order, must file, in their approval of this application may be seen instead, require each individual individual GSR proceedings, a proposed in the Dockets Management Branch pipeline, whose GSR proceedings have allocation of GSR costs to its (HFA–305), Food and Drug not been resolved, to propose the interruptible customers as discussed in Administration, 12420 Parklawn Dr., percentage of its GSR costs its the body of this order. rm. 1–23, Rockville, MD 20857, between interruptible customers should bear in 9 a.m. and 4 p.m., Monday through By the Commission. light of the circumstances on its system. Friday. Pipelines which have filed to recover Lois D. Cashell, Under section 512(c)(2)(F)(iii) of the GSR costs before the date of this order, Secretary. Federal Food, Drug, and Cosmetic Act and whose GSR recovery proceedings [FR Doc. 97–5363 Filed 3–5–97; 8:45 am] (21 U.S.C. 360b(c)(2)(F)(iii)), this have not been resolved by settlement or BILLING CODE 6717±01±P approval qualifies for 3 years of final and non-appealable Commission marketing exclusivity beginning January order, must file such proposals in their 21, 1997, because this supplement individual GSR proceedings within 180 DEPARTMENT OF HEALTH AND contains substantial evidence of the days of the date of this order. Interested HUMAN SERVICES effectiveness of the drug involved, parties will be given an opportunity to studies of animal safety, or human food comment on each pipeline’s proposal. If Food and Drug Administration safety studies (other than the pipeline’s proposal is protested, the bioequivalence or residue studies), Commission will set the proposal for 21 CFR Part 522 required for approval and conducted or hearing in the GSR cost recovery sponsored by the applicant. Marketing proceeding in which the proposal is Implantation or Injectable Dosage exclusivity applies only to use in 18-day made. Those hearings will permit the Form New Animal Drugs; Sarafloxacin embryonated broiler eggs. interested parties to develop a record on Hydrochloride The agency has carefully considered which the Commission can base its the potential environmental effects of ultimate decision in each case. AGENCY: Food and Drug Administration, this action. FDA has concluded that the This approach will allow the HHS. action will not have a significant impact Commission and the parties to develop ACTION: Final rule. on the human environment, and that an environmental impact statement is not 170 SUMMARY: The Food and Drug Interruptible transportation comprises less required. The agency’s finding of no than ten percent of total throughput on Panhandle, Administration (FDA) is amending the significant impact and the evidence NorAm (5.89 percent), and Tennessee (9.81 animal drug regulations to reflect supporting that finding, contained in an percent). Pipelines for which interruptible approval of a supplemental new animal transportation comprises greater than 10 percent of environmental assessment, may be seen drug application (NADA) filed by total throughput are Williams (17.72 percent), in the Dockets Management Branch Natural (13.11 percent), Southern (11.17 percent), Abbott Laboratories. The supplement (address above) between 9 a.m. and 4 and ANR. The weighted average percentage of provides for use of sarafloxacin interruptible transportation throughput among all p.m., Monday through Friday. pipelines that report such data is approximately 18 hydrochloride solution for injection in percent. The Commission has determined all of the 18-day embryonated broiler eggs for List of Subjects in 21 CFR Part 522 above percentages based on the pipelines’ reports, control of early chick mortality Animal drugs. pursuant to FERC Form No. 11, of the total volumes associated with Escherichia coli they transported during the first nine months of Therefore, under the Federal Food, 1996 and their interruptible volumes during the organisms susceptible to sarafloxacin. Drug, and Cosmetic Act and under same period. EFFECTIVE DATE: March 6, 1997. authority delegated to the Commissioner 10220 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations of Food and Drugs and redelegated to SUMMARY: The Food and Drug of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 Administration (FDA) is amending the the Center for Veterinary Medicine, 21 CFR part 522 is amended as follows: animal drug regulations to reflect CFR part 524 is amended as follows: approval of an abbreviated new animal PART 522ÐIMPLANTATION OR drug application (ANADA) filed by PART 524ÐOPHTHALMIC AND INJECTABLE DOSAGE FORM NEW Med-Pharmex, Inc. The ANADA TOPICAL DOSAGE FORM NEW ANIMAL DRUGS provides for use of gentamicin topical ANIMAL DRUGS 1. The authority citation for 21 CFR spray in dogs for the treatment of 1. The authority citation for 21 CFR part 522 continues to read as follows: infected superficial lesions caused by part 524 continues to read as follows: bacteria susceptible to gentamicin. Authority: Sec. 512 of the Federal Food, Authority: Sec. 512 of the Federal Food, EFFECTIVE DATE: March 6, 1997. Drug, and Cosmetic Act (21 U.S.C. 360b). Drug, and Cosmetic Act (21 U.S.C. 360b). FOR FURTHER INFORMATION CONTACT: 2. Section 522.2095 is amended by Elizabeth Reese, Center for Veterinary 2. Section 524.1044f is amended by revising paragraph (d) to read as Medicine (HFV–114), Food and Drug revising paragraph (b) to read as follows: follows: Administration, 7500 Standish Pl., Rockville, MD 20855, 301–594–1617. § 524.1044f Gentamicin sulfate, § 522.2095 Sarafloxacin solution for betamethasone valerate topical spray. SUPPLEMENTARY INFORMATION: Med- injection. * * * * * * * * * * Pharmex, Inc., 2727 Thompson Creek Rd., Pomona, CA 91767–1861, filed (b) Sponsor. See Nos. 000061 and (d) Conditions of use. 18-day 051259 in § 510.600(c) of this chapter. embryonated broiler eggs and day-old ANADA 200–188, which provides for TM * * * * * broiler chickens: Gentaspray Topical Spray (each (1) Amount—(i) 18-day embryonated milliliter contains gentamicin sulfate Dated: February 11, 1997. broiler eggs: 0.05 milligram sarafloxacin equivalent to 0.57 milligram (mg) Stephen F. Sundlof, in 0.1 milliliter dose in single in ovo gentamicin, betamethasone valerate Director, Center for Veterinary Medicine. injection. equivalent to 0.284 mg betamethasone) [FR Doc. 97–5453 Filed 3–5–97; 8:45 am] to be used topically for the treatment of (ii) Day-old broiler chickens: 0.1 BILLING CODE 4160±01±F milligrams sarafloxacin per 0.2 milliliter infected superficial lesions in dogs dose in single subcutaneous injection in caused by bacteria susceptible to the neck. gentamicin. (2) Indications for use. For control of Approval of ANADA 200–188 for FEDERAL COMMUNICATIONS early chick mortality associated with Med-Pharmex, Inc. ’s, GentasprayTM COMMISSION Escherichia coli organisms susceptible Topical Spray (gentamicin sulfate with 47 CFR Parts 32 and 53 to sarafloxacin. betamethasone valerate) is as a generic (3) Limitations. Dilute 1 milliliter copy of Schering Plough’s NADA 132– [CC Docket No. 96±150: FCC 96±490] with 99 milliliters of sterile water or 338 Gentocin Topical Spray physiologic saline for use. Use entire (gentamicin sulfate with betamethasone Accounting Safeguards Under the contents of diluted solution within 24 valerate). The ANADA is approved as of Telecommunications Act of 1996: hours. No preslaughter drug withdrawal January 29, 1997, and the regulations in Correction period is required when the product is 21 CFR 524.1044f(b) are amended to used as directed. Use in a manner other reflect the approval. The basis for AGENCY: Federal Communications than that indicated or with dosages in approval is discussed in the freedom of Commission. excess of that recommended may result information summary. ACTION: Final rule; Correction. in illegal drug residues in edible tissues. In accordance with the freedom of Do not use in laying hens producing information provisions of 21 CFR part SUMMARY: This document contains a eggs for human consumption. Do not 20 and 514.11(e)(2)(ii), a summary of correction to the effective date of the use in eggs intended for human safety and effectiveness data and Final Rules, which were published consumption. The effects of sarafloxacin information submitted to support Tuesday, January 21, 1997, (62 FR on the reproductive function of treated approval of this application may be seen 2918). The rules related to accounting fowl have not been determined. Federal in the Dockets Management Branch safeguards that are necessary to satisfy law restricts this drug to use by or on (HFA–305), Food and Drug the requirements of Sections 260 and the order of a licensed veterinarian. Administration, 12420 Parklawn Dr., 271 through 276 of the Communications Act of 1934, as amended by the Dated: February 7, 1997. rm. 1–23, Rockville, MD 20857, between 9 a.m. and 4 p.m., Monday through Telecommunications Act of 1996 (‘‘1996 Stephen F. Sundlof, Friday. Act’’). Specifically, this Order Director, Center for Veterinary Medicine. The agency has determined under 21 prescribed the way incumbent local [FR Doc. 97–5452 Filed 3–5–97; 8:45 am] CFR 25.24(d)(1)(i) that this action is of exchange carriers, including the Bell BILLING CODE 4160±01±F a type that does not individually or Operating Companies (‘‘BOCs’’), must cumulatively have a significant effect on account for transactions with affiliates the human environment. Therefore, involving, and allocate costs incurred in 21 CFR Part 524 neither an environmental assessment the provision of, both regulated telecommunications services and Ophthalmic and Topical Dosage Form nor an environmental impact statement is required. nonregulated services, including New Animal Drugs; Gentamicin Topical telemessaging, interLATA Spray List of Subjects in 21 CFR Part 524 telecommunications, information, AGENCY: Food and Drug Administration, Animal drugs. manufacturing, electronic publishing, HHS. Therefore, under the Federal Food, alarm monitoring and payphone Drug, and Cosmetic Act and under services, to ensure compliance with the ACTION: Final rule. authority delegated to the Commissioner 1996 Act. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10221

EFFECTIVE DATE: The requirements and Register). We will allow carriers to misleading and are in need of regulations established in this Order implement these rules at an earlier date clarification. Accordingly, the with regard to Part 32 of our Rules 47 and encourage them to do so. The publication on January 21, 1997 of the CFR Part 32, shall become effective remaining new and/or modified final regulations (FCC 97–52) is upon approval by OMB of the new information collections established in corrected as follows: information collection requirements this Order shall become effective upon 1. On page 2939, in the second adopted herein, but no sooner than July approval by OMB of the new column, the first indented paragraph is 20, 1997 (six months after publication in information collection requirements the Federal Register). We will allow adopted herein, but no sooner than replaced by the following: carriers to implement these rules at an February 20, 1997. We note that, under Computer II and earlier date and encourage them to do 2. The second indented paragraph Computer III, we have treated three so. The remaining new and/or modified 2925, in the second column, should categories of protocol processing information collections established in read: services as basic services, rather than this Order shall become effective upon It is further ordered that, pursuant to enhanced services. These categories approval by OMB of the new section 220(g) of the Communications include protocol processing: (1) information collection requirements Act of 1934, as amended, 47 U.S.C. involving communications between an adopted herein, but no sooner than § 220(g) and section 1.427(c) of the end user and the network itself (e.g., for February 20,1 997. The Commission Commission’s Rules, 47 CFR § 1.427(c), initiation, routing, and termination of will publish a document at a later date the requirements and regulations calls) rather than between or among establishing the effective dates of these established in this Order with regard to users; (2) in connection with the rules. Part 32 of the Commission’s Rules, 47 introduction of a new basic network CFR Part 32, shall be effective six FOR FURTHER INFORMATION CONTACT: technology (which requires protocol months after publication in the Federal Mark Ehrlich, Attorney/Advisor, conversion to maintain compatibility Register. The remaining requirements Accounting and Audits Division, with existing CPE); and (3) involving and regulations established in this Common Carrier Bureau, (202) 418– internetworking (conversions taking 0385. Order shall become effective upon approval by OMB of the new place solely within the carrier’s network SUPPLEMENTARY INFORMATION: information collection requirements to facilitate provision of a basic network service, that result in no net conversion Background adopted herein, but no sooner than February 20, 1997. to the end user). We agree with PacTel The Accounting Safeguards Under the that analogous treatment should be Telecommunications Act of 1996 Report Federal Communications Commission extended to these categories of protocol and Order established accounting William F. Caton, processing services under the statutory safeguards that are necessary to satisfy Acting Secretary. regime. Because the listed protocol the requirements of the 1996 Act, [FR Doc. 97–5496 Filed 3–5–97; 8:45 am] processing services are information including the way incumbent local BILLING CODE 6712±01±M service capabilities used ‘‘for the exchange carriers, including the Bell management, control, or operation of a Operating Companies (‘‘BOCs’’), must telecommunications system or the account for transactions with affiliates 47 CFR Part 53 management of a telecommunications involving, and allocate costs incurred in [CC Docket No. 96±149; FCC 96±489] service,’’ they are excepted from the the provision of, both regulated statutory definition of information telecommunications services and Implementation of the Non-Accounting service. These excepted protocol nonregulated services, including Safeguards of Sections 271 and 272 of conversion services constitute telemessaging, inteLATA the Communications Act of 1934, as telecommunications services, rather telecommunications, information, Amended; Final rule; Correction than information services, under the manufacturing, electronic publishing, 1996 Act. alarm monitoring and payphone AGENCY: Federal Communications services. Commission. 2. On page 2940, column 3, the first ACTION: Final rule; Correction. indented paragraph is replaced by the Need for Correction following: SUMMARY: This documents contains Under section 220(g) of the Act, the Remote Databases/Network Commission must allow six months corrections to the final regulations which were published Tuesday, January Efficiency. BOCs may not provide notice before alterations in the required interLATA services in their own manner or form of keeping accounts are 21, 1997 (62 FR 2927). The regulations regions, either over their own facilities to take effect. related to special provisions relating to Bell Operating Companies. or through resale, before receiving Correction of Publication EFFECTIVE DATE: March 6, 1997. authorization from the Commission Accordingly, the publication on FOR FURTHER INFORMATION CONTACT: Joe under section 271(d). Therefore, we January 21, 1997 is corrected as follows: Di Scipio (202) 418–1580. conclude that BOCs may not provide 1. The effective date paragraph on interLATA information services, except SUPPLEMENTARY INFORMATION: page 2918, in the third column, should for those designated as incidental read: The requirements and regulations Background interLATA services under section established in this Order with regard to The final regulations that are the 271(g), in any of their in-region states Part 32 of our Rules, 47 CFR Part 32, subject of these corrections affect Bell prior to obtaining section 271 shall become effective upon approval by Operating Companies. authorization. Section 271(g)(4) OMB of the new information collection designates as an incidental interLATA requirements adopted herein, but no Need for correction service the interLATA provision by a sooner than July 20, 1997 (six months As published, the final regulations BOC or its affiliate of ‘‘a service that after publication in the Federal contain errors which may prove to be permits a customer that is located in one 10222 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

LATA to retrieve stored information miles) east at Station WVNX(FM)’s DEPARTMENT OF COMMERCE from, or file information for storage in, presently authorized site. The information storage facilities of such coordinates for Channel 297B1 at National Oceanic and Atmospheric company that are located in another Charlotte Amalie are North Latitude 18– Administration LATA.’’ Because BOCs were able to 20–30 and West Longitude 64–43–59. 50 CFR Part 679 provide incidental interLATA services With this action, this proceeding is immediately upon enactment of the terminated. [Docket No. 961126334±7025±02; I.D. 1996 Act, they may provide interLATA 022897E] information services that fall within the DATES: Effective April 14, 1997. The scope of section 271(g)(4) without window period for filing applications Fisheries of the Exclusive Economic receiving section 271(d) authorization for Channel 269B1 at Frederiksted, Zone Off Alaska, Pacific Cod in the from the Commission. Since section Virgin Islands, will open on April 14, Western Regulatory Area of the Gulf of 271(g)(4) services are not among the 1997, and close on May 15, 1997. Alaska incidental interLATA services exempted FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries from section 272 separate affiliate Sharon P. McDonald, Mass Media Service (NMFS), National Oceanic and requirements, however, they must be Bureau, (202) 418–2180. Atmospheric Administration (NOAA), provided in compliance with those Commerce. requirements. To the extent that parties SUPPLEMENTARY INFORMATION: This is a ACTION: Closure. have argued in the record that synopsis of the Commission’s Report centralized data storage and retrieval and Order, MM Docket No. 96–43, SUMMARY: NMFS is closing directed services that fall within section adopted February 21, 1997, and released fishing for Pacific cod by vessels 271(g)(4) either are not interLATA February 28, 1997. The full text of this catching Pacific cod for processing by information services, or are not subject Commission decision is available for the inshore component in the Western to the section 272 separate affiliate inspection and copying during normal Regulatory Area of the Gulf of Alaska requirements, we specifically reject business hours in the FCC Reference (GOA). This action is necessary to these arguments. Center (Room 239), 1919 M Street, NW., prevent exceeding the allocation of Federal Communications Commission. Washington, DC. The complete text of Pacific cod for processing by the inshore component in the Western Regulatory William F. Caton, this decision may also be purchased Area of the GOA. Acting Secretary. from the Commission’s copy EFFECTIVE DATES: 1200 hrs, Alaska local [FR Doc. 97–5498 Filed 3–5–97; 8:45 am] contractors, International Transcription Service, Inc., (202) 857–3800, 2100 M time (A.l.t.), March 3, 1997, until 2400 BILLING CODE 6712±01±P hrs, A.l.t., December 31, 1997. Street, NW., Suite 140, Washington, DC 20037. FOR FURTHER INFORMATION CONTACT: 47 CFR Part 73 Thomas Pearson, 907–486–6919. List of Subjects in 47 CFR Part 73 SUPPLEMENTARY INFORMATION: The [MM Docket No. 96±43; RM±8754, RM±8830] groundfish fishery in the GOA exclusive Radio broadcasting. Radio Broadcasting Services; economic zone is managed by NMFS Frederiksted and Charlotte Amalie, VI Part 73 of Title 47 of the Code of according to the Fishery Management Federal Regulations is amended as Plan for Groundfish of the Gulf of AGENCY: Federal Communications follows: Alaska (FMP) prepared by the North Commission. Pacific Fishery Management Council ACTION: Final rule. 47 CFR PART 73Ð[AMENDED] under authority of the Magnuson- Stevens Fishery Conservation and SUMMARY: The Commission, at the 1. The authority citation for Part 73 Management Act. Fishing by U.S. request of Jose J. Arzuaga, allots continues to read as follows: vessels is governed by regulations Channel 269B1 at Frederiksted, Virgin implementing the FMP at subpart H of Islands, as the community’s third local Authority: Sections 303, 48 Stat., as amended, 1082; 47 U.S.C. 154, as amended. 50 CFR part 600 and 50 CFR part 679. FM transmission service (RM–8754). The final specification of the See 61 FR 10978, March 18, 1996. We § 73.202 [Amended] allocation of Pacific cod for processing also, at the request of Calypso by the inshore component in the Communications, substitute Channel 2. Section 73.202(b), the Table of FM Western Regulatory Area of the GOA 297B1 for Channel 246B at Charlotte Allotments under Virgin Islands, is was established by the Final 1997 Amalie, Virgin Islands, and modify amended by adding Channel 269B1 at Harvest Specifications of Groundfish for Station WVNX(FM)’s construction Frederiksted; and by removing Channel the GOA (62 FR 8179, February 24, permit accordingly (RM–8830). Channel 246B and adding Channel 297B1 at 1997) as 17,442 metric tons (mt), 269B1 can be allotted at Frederiksted in Charlotte Amalie. determined in accordance with compliance with the Commission’s Federal Communications Commission § 679.20(a)(6)(iii). minimum distance separation In accordance with § 679.20(d)(1)(i), John A. Karousos, requirements at city reference the Administrator, Alaska Region, coordinates. The coordinates for Chief, Allocations Branch, Policy and Rules NMFS (Regional Administrator), has Channel 269B1 at Frederiksted are Division, Mass Media Bureau. determined that the ITAC for Pacific cod North Latitude 17–42–48 and West [FR Doc. 97–5497 Filed 3–5–97; 8:45 am] by vessels catching Pacific cod for Longitude 64–53–00. Additionally, BILLING CODE 6712±01±P processing by the inshore component in Channel 297B1 can be allotted at the Western Regulatory Area will soon Charlotte Amalie in compliance with be reached. Therefore, the Regional the Commission’s minimum distance Administrator is establishing a directed separation requirements with a site fishing allowance of 17,142 mt, and is restriction of 20.8 kilometers (12.9 setting aside the remaining 300 mt as Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10223 bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area. Maximum retainable bycatch amounts for applicable gear types may be found in the regulations at § 679.20 (e) and (f). Classification This action is required by 50 CFR 679.20 and is exempt from review under E.O. 12866. Authority: 16 U.S.C. 1801 et seq. Dated: March 3, 1997. Bruce Morehead, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 97–5541 Filed 3–3–97; 3:10 pm] BILLING CODE 3510±22±P 10224

Proposed Rules Federal Register Vol. 62, No. 44

Thursday, March 6, 1997

This section of the FEDERAL REGISTER p.m., Monday through Friday, except FAA, Transport Airplane Directorate, contains notices to the public of the proposed Federal holidays. ANM–103, Attention: Rules Docket No. issuance of rules and regulations. The The service information referenced in 97–NM–18–AD, 1601 Lind Avenue, purpose of these notices is to give interested the proposed rule may be obtained from SW., Renton, Washington 98055–4056. persons an opportunity to participate in the Gulfstream Aerospace Corporation, rule making prior to the adoption of the final Discussion Technical Operations Department, P.O. rules. Box 2206, M/S D–10, Savannah, Georgia In 1967, the FAA issued AD 67–04– 31402–2206. This information may be 01, amendment 39–1234 (36 FR 12688, DEPARTMENT OF TRANSPORTATION examined at the FAA, Transport July 3, 1971), applicable to all Airplane Directorate, 1601 Lind Gulfstream Model G–159 (G–I) Federal Aviation Administration Avenue, SW., Renton, Washington. airplanes. That AD requires a visual FOR FURTHER INFORMATION CONTACT: inspection to detect corrosion of the 14 CFR Part 39 Christina Marsh, Aerospace Engineer, wing planks under the bottom wing Airframe and Propulsion Branch, ACE– center fairing assemblies (having part [Docket No. 97±NM±18±AD] 117A, FAA, Small Airplane Directorate, numbers 159W10400–121 and 159W10401–121), and repair if RIN 2120±AA64 Atlanta Aircraft Certification Office, Campus Building, 1701 Columbia necessary. After the initial inspection is Airworthiness Directives; Gulfstream Avenue, Suite 2–160, College Park, accomplished, and after any repair is Aerospace Corporation Model G±159 Georgia 30337–2748; telephone (404) made, the inspection is required to be (G±I) Airplanes 305–7362; fax (404) 305–7348. repeated at intervals of 26 weeks. That action was prompted by reports AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: indicating that corrosion was found in Administration, DOT. Comments Invited the lower skins of the wing center ACTION: section of several of these airplanes. The Notice of proposed rulemaking Interested persons are invited to (NPRM). requirements of that AD are intended to participate in the making of the detect and correct corrosion in this area. SUMMARY: This document proposes the proposed rule by submitting such If such corrosion remains unchecked, it supersedure of an existing airworthiness written data, views, or arguments as could reduce the integrity of the wing- directive (AD), applicable to all they may desire. Communications shall to-fuselage fitting, and consequently Gulfstream Model G–159 (G–I) identify the Rules Docket number and could lead to separation of the wing airplanes, that currently requires be submitted in triplicate to the address from the airplane. specified above. All communications repetitive inspections to detect Actions Since Issuance of Previous Rule corrosion in the wing planks under the received on or before the closing date bottom wing center fairings, and repair, for comments, specified above, will be As part of its on-going program to if necessary. This action would require considered before taking action on the address issues relevant to the continued the installation of a protective paint proposed rule. The proposals contained operational safety of the aging transport system which, when accomplished, will in this notice may be changed in light fleet, the FAA, along with Gulfstream allow the inspections to be conducted at of the comments received. Aerospace Corporation and several U.S. longer intervals. This action was Comments are specifically invited on and non-U.S. operators of the affected prompted by the development of a the overall regulatory, economic, airplanes, agreed to undertake the task modification that will improve the environmental, and energy aspects of of identifying and implementing corrosion resistance of the subject area. the proposed rule. All comments procedures to ensure the continuing The actions specified by the proposed submitted will be available, both before structural airworthiness of aging AD are intended to detect and prevent and after the closing date for comments, commuter-class airplanes. This group corrosion in the lower skins of the wing in the Rules Docket for examination by recently reviewed selected service center section. If corrosion in this area interested persons. A report bulletins, applicable to Gulfstream remains unchecked, it could reduce the summarizing each FAA-public contact Model G–159 airplanes, to be integrity of the wing-to-fuselage fitting, concerned with the substance of this recommended for mandatory and consequently could lead to proposal will be filed in the Rules rulemaking action to ensure the separation of the wing from the Docket. continued operational safety of these airplane. Commenters wishing the FAA to airplanes. acknowledge receipt of their comments Explanation of Relevant Service DATES: Comments must be received by submitted in response to this notice Information April 14, 1997. must submit a self-addressed, stamped ADDRESSES: Submit comments in postcard on which the following The group reviewed and triplicate to the Federal Aviation statement is made: ‘‘Comments to recommended Grumman Gulfstream I Administration (FAA), Transport Docket Number 97–NM–18–AD.’’ The Aircraft Service Change No. 190, dated Airplane Directorate, ANM–103, postcard will be date stamped and June 28, 1971, for mandatory regulatory Attention: Rules Docket No. 97–NM– returned to the commenter. action. That service change describes 18–AD, 1601 Lind Avenue, SW., procedures for repetitive inspections to Renton, Washington 98055–4056. Availability of NPRMs detect corrosion of the center section Comments may be inspected at this Any person may obtain a copy of this lower wing planks, and repair, if location between 9:00 a.m. and 3:00 NPRM by submitting a request to the necessary. It also describes the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10225 installation of a protective paint system U.S. operators is estimated to be new airworthiness directive (AD), to to the fairing assemblies and bottom $136,800, or $1,900 per airplane. read as follows: wing cover. This protective system is The cost impact figures discussed Gulfstream Aerospace Corporation: Docket intended to improve the corrosion above are based on assumptions that no 97–NM–18–AD. Supersedes AD 67–04– resistance of this area. Once it is operator has yet accomplished any of 01, Amendment 39–1234. installed, the repetitive inspections may the current or proposed requirements of Applicability: All Model G–159 (G–I) be conducted at longer intervals. this AD action, and that no operator airplanes, certificated in any category. Explanation of Requirements of would accomplish those actions in the Note 1: This AD applies to each airplane Proposed Rule future if this AD were not adopted. identified in the preceding applicability provision, regardless of whether it has been Since an unsafe condition has been Regulatory Impact otherwise modified, altered, or repaired in identified that is likely to exist or the area subject to the requirements of this develop on other products of this same The regulations proposed herein AD. For airplanes that have been modified, type design, the proposed AD would would not have substantial direct effects altered, or repaired so that the performance supersede AD 67–04–01. It would on the States, on the relationship of the requirements of this AD is affected, the between the national government and owner/operator must request approval for an continue to require the repetitive visual alternative method of compliance in inspections, specified in AD 67–04–01, the States, or on the distribution of accordance with paragraph (d)(1) of this AD. to detect corrosion of the wing planks power and responsibilities among the The request should include an assessment of under the bottom wing center fairing various levels of government. Therefore, the effect of the modification, alteration, or assemblies, and repair, if necessary. in accordance with Executive Order repair on the unsafe condition addressed by For airplanes on which a protective 12612, it is determined that this this AD; and, if the unsafe condition has not paint system had not been installed proposal would not have sufficient been eliminated, the request should include previously, this new action would federalism implications to warrant the specific proposed actions to address it. Compliance: Required as indicated, unless require that the inspection continue to preparation of a Federalism Assessment. accomplished previously. be repeated at intervals of 6 months (26 For the reasons discussed above, I To detect and prevent corrosion in the weeks), until a protective paint system certify that this proposed regulation (1) lower skins of the wing center section, which is installed within 12 months. Once the is not a ‘‘significant regulatory action’’ could reduce the integrity of the wing-to- paint system is installed, the repetitive under Executive Order 12866; (2) is not fuselage fitting and consequently could lead inspections would be required to to separation of the wing from the airplane, a ‘‘significant rule’’ under the DOT accomplish the following: continue, but the repetitive interval Regulatory Policies and Procedures (44 would be extended to 18 months. (a) For all airplanes: Within 4 weeks after FR 11034, February 26, 1979); and (3) if July 3, 1971 (the effective date of AD 67–04– For airplanes on which a protective promulgated, will not have a significant 01, amendment 39–1234), remove the bottom paint system was installed previously, economic impact, positive or negative, wing center fairings having part numbers (P/ this new action would extend the on a substantial number of small entities N) 159W10400–121 and 159W10401–121, or currently-required repetitive inspection under the criteria of the Regulatory use an FAA-approved equivalent method, to interval of 12 months to 18 months. Flexibility Act. A copy of the draft perform a visual inspection to detect These actions would be required to be corrosion of the wing planks under these regulatory evaluation prepared for this fairings. accomplished in accordance with the action is contained in the Rules Docket. Note 2: Paragraph (a) of this AD merely aircraft service change described A copy of it may be obtained by previously. restates the actions previously required by contacting the Rules Docket at the AD 67–04–01, amendment 39–1234. As Cost Impact location provided under the caption allowed by the phrase, ‘‘unless accomplished ADDRESSES. previously,’’ if those requirements of AD 67– There are approximately 146 04–01 have already been accomplished, this Gulfstream Model G–159 airplanes of List of Subjects in 14 CFR Part 39 AD does not require that those actions be the affected design in the worldwide repeated. fleet. The FAA estimates that 72 Air transportation, Aircraft, Aviation Note 3: Care must be exercised when airplanes of U.S. registry would be safety, Safety. removing the fairings, since the attaching rivets go into the pressure vessel. Use caution affected by this proposed AD. The Proposed Amendment The inspections that are currently not to enlarge rivet holes when removing required by AD 67–04–01, and those Accordingly, pursuant to the rivets. When reinstalling the fairings, an that would be required by this proposed adequate type fastener and sealant must be authority delegated to me by the used. action, take approximately 40 work Administrator, the Federal Aviation Note 4: Grumman Service Newsletter, hours per airplane to accomplish, at an Administration proposes to amend part Volume 166, dated August–September 1966, average labor rate of $60 per work hour. 39 of the Federal Aviation Regulations pertains to this subject. Based on these figures, the cost impact (14 CFR part 39) as follows: (b) For airplanes on which a protective of the proposed inspection actions on paint system has not been installed in U.S. operators is estimated to be PART 39ÐAIRWORTHINESS accordance with Grumman Gulfstream I $172,800, or $2,400 per airplane, per DIRECTIVES Aircraft Service Change No. 190, dated June inspection. 28, 1971: Accomplish paragraphs (b)(1) and The installation of the protective 1. The authority citation for part 39 (b)(2) of this AD. As of the effective date of paint system that is proposed in this AD continues to read as follows: this AD, the inspections required by this paragraph shall be accomplished in action would take approximately 30 Authority: 49 U.S.C. 106(g), 40113, 44701. accordance with Grumman Gulfstream I work hours per airplane to accomplish, Aircraft Service Change No. 190, dated June at an average labor rate of $60 per work § 39.13 [Amended] 28, 1971. hour. Required materials would cost Note 5: The repeated inspection referred to approximately $100 per airplane. Based 2. Section 39.13 is amended by in this paragraph is the same inspection on these figures, the cost impact of the removing amendment 39–1234 (36 FR previously required by AD 67–04–01. proposed requirements of this AD on 12688, July 3, 1971), and by adding a Paragraph (b)(1) of this AD merely restates 10226 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules the requirement of AD 67–04–01 to repeat the service change. After repair, continue to detected and corrected, such wear could inspection at intervals of 6 months. perform the inspection at intervals not to result in failure of the engine mount Paragraph (b)(2) permits the reinspection exceed 18 months. assembly and possible separation of the interval to be extended to 18 months once the (d)(1) An alternative method of compliance engine from the airplane. specified protective paint system is installed. or adjustment of the compliance time that DATES: Comments must be received by (1) As a result of the inspection required provides an acceptable level of safety may be by paragraph (a) of this AD: used if approved by the Manager, Atlanta April 14, 1997. (i) If no corrosion is detected, repeat the Aircraft Certification Office (ACO), FAA, ADDRESSES: Submit comments in inspection thereafter at intervals not to Small Airplane Directorate. Operators shall triplicate to the Federal Aviation exceed 6 months (26 weeks) until the actions submit their requests through an appropriate Administration (FAA), Transport specified in paragraph (b)(2) of this AD are FAA Principal Maintenance Inspector, who Airplane Directorate, ANM–103, accomplished. may add comments and then send it to the Manager, Atlanta ACO. Attention: Rules Docket No. 97–NM– (ii) If any corrosion is detected, prior to 19–AD, 1601 Lind Avenue, SW., further flight, either repair the corroded part (2) Alternative methods of compliance, with an FAA-approved repair; or replace the approved previously in accordance with AD Renton, Washington 98055–4056. corroded part with a new or serviceable part 67–04–01, amendment 39–1234, are Comments may be inspected at this of the same part number; or replace the approved as alternative methods of location between 9:00 a.m. and 3:00 corroded part with a part approved by the compliance with this AD. p.m., Monday through Friday, except FAA. Thereafter, continue to perform the Note 7: Information concerning the Federal holidays. inspection at intervals not to exceed 6 existence of approved alternative methods of The service information referenced in months (26 weeks) until paragraph (b)(2) of compliance with this AD, if any, may be the proposed rule may be obtained from this AD is accomplished. obtained from the Atlanta ACO. Gulfstream Aerospace Corporation, (2) Within 12 months after the effective (e) Special flight permits may be issued in Technical Operations Department, P.O. date of this AD, install the protective paint accordance with sections 21.197 and 21.199 system in accordance with Grumman Box 2206, M/S D–10, Savannah, Georgia of the Federal Aviation Regulations (14 CFR 31402–2206. This information may be Gulfstream I Aircraft Service Change No. 190, 21.197 and 21.199) to operate the airplane to dated June 28, 1971. After installation, a location where the requirements of this AD examined at the FAA, Transport continue to perform the inspection required can be accomplished. Issued in Renton, Airplane Directorate, 1601 Lind by this paragraph at intervals not to exceed Washington, on February 27, 1997. Avenue, SW., Renton, Washington. 18 months. Darrell M. Pederson, FOR FURTHER INFORMATION CONTACT: (c) For airplanes on which a protective Christina Marsh, Aerospace Engineer, paint system has been installed previously in Acting Manager, Transport Airplane accordance with Grumman Gulfstream I Directorate, Aircraft Certification Service. Airframe and Propulsion Branch, ACE– Aircraft Service Change No. 190, dated June [FR Doc. 97–5463 Filed 3–5–97; 8:45 am] 117A, FAA Small Airplane Directorate, 28, 1971: Accomplish paragraphs (c)(1) and BILLING CODE 4910±13±U Atlanta Aircraft Certification Office, (c)(2) of this AD. As of the effective date of Campus Building, 1701 Columbia this AD, the inspections required by this Avenue, Suite 2–160, College Park, paragraph shall be accomplished in 14 CFR Part 39 Georgia 30337–2748; telephone (404) accordance with Grumman Gulfstream I 305–7362; fax (404) 305–7348. Aircraft Service Change No. 190, dated June [Docket No. 97±NM±19±AD] SUPPLEMENTARY INFORMATION: 28, 1971. RIN 2120±AA64 Note 6: The repeated inspection referred to Comments Invited in this paragraph is the same inspection Airworthiness Directives; Gulfstream Interested persons are invited to previously required by AD 67–04–01. Aerospace Corporation Model G±159 participate in the making of the Paragraph (c)(1) of this AD merely restates (G±I) Airplanes the requirement of AD 67–04–01 to repeat the proposed rule by submitting such inspection at intervals of 12 months. AGENCY: Federal Aviation written data, views, or arguments as Paragraph (c)(2) permits the reinspection Administration, DOT. they may desire. Communications shall interval to be extended to 18 months. ACTION: Notice of proposed rulemaking identify the Rules Docket number and (1) As a result of the inspection required be submitted in triplicate to the address by paragraph (a) of this AD: (NPRM). (i) If no corrosion is detected, repeat the specified above. All communications inspection thereafter at intervals not to SUMMARY: This document proposes the received on or before the closing date exceed 12 months until paragraph (c)(2) of supersedure of an existing airworthiness for comments, specified above, will be this AD is accomplished. directive (AD), applicable to certain considered before taking action on the (ii) If any corrosion is detected, prior to Gulfstream Model G–159 (G–I) proposed rule. The proposals contained further flight, either repair the corroded part airplanes, that currently requires in this notice may be changed in light with an FAA-approved repair; or replace the repetitive inspections to detect chafe of the comments received. corroded part with a new or serviceable part wear on the upper diagonal engine Comments are specifically invited on of the same part number; or replace the mount tube, and replacement or repair, corroded part with a part approved by the the overall regulatory, economic, FAA. Thereafter, continue to perform the if necessary. This action would require environmental, and energy aspects of inspection at intervals not to exceed 12 the installation of chafe guards at the the proposed rule. All comments months until paragraph (c)(2) of this AD is engine mounts, which would terminate submitted will be available, both before accomplished. the currently required inspections. It and after the closing date for comments, (2) Within 18 months since the last also would require that the chafe guards in the Rules Docket for examination by inspection accomplished in accordance with then be repetitively inspected for chafe interested persons. A report paragraph (c)(1) of this AD (i.e., the last wear. This proposal is prompted by the summarizing each FAA-public contact inspection accomplished in accordance with development of a modification that will concerned with the substance of this AD 67–04–01), repeat the inspection provide better protection of the subject specified in paragraph (c)(1) of this AD. proposal will be filed in the Rules (i) If no corrosion is detected, repeat the area against future chafe wear. The Docket. inspection thereafter at intervals not to actions specified by the proposed AD Commenters wishing the FAA to exceed 18 months. are intended to prevent excessive chafe acknowledge receipt of their comments (ii) If any corrosion is detected, prior to wear in the area of the upper diagonal submitted in response to this notice further flight, repair in accordance with the engine mount tubes and trusses; if not must submit a self-addressed, stamped Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10227 postcard on which the following airplanes, to be recommended for Cost Impact statement is made: ‘‘Comments to mandatory rulemaking action to ensure There are approximately 146 Docket Number 97–NM–19–AD.’’ The the continued operational safety of these Gulfstream Model G–159 airplanes of postcard will be date stamped and airplanes. the affected design in the worldwide returned to the commenter. Explanation of Relevant Service fleet. The FAA estimates that 72 Availability of NPRMs Information airplanes of U.S. registry would be Any person may obtain a copy of this affected by this proposed AD. The group reviewed and NPRM by submitting a request to the The actions that are currently recommended Grumman Gulfstream I FAA, Transport Airplane Directorate, required by AD 67–17–05 take Aircraft Service Change No. 180, dated ANM–103, Attention: Rules Docket No. approximately 4 work hours per October 17, 1966, for mandatory 97–NM–19–AD, 1601 Lind Avenue, airplane to accomplish, at an average regulatory action. That service change SW., Renton, Washington 98055–4056. labor rate of $60 per work hour. Based describes procedures for a one-time on these figures, the cost impact of the Discussion initial inspection to detect chafe wear of currently required actions on U.S. In 1967, the FAA issued AD 67–17– the upper diagonal trusses [P/N operators is estimated to be $17,280, or 05, amendment 39–511 (32 FR 7248, 159W10172–5 (left-hand nacelle) and P/ $240 per airplane, per inspection. May 16, 1967), applicable to certain N 159W10172–7 (right-hand nacelle), The installation of the chafe guards Gulfstream Model G–159 airplanes, to and replacement of worn parts, if that is proposed in this AD action require repetitive visual inspections to necessary. would take approximately 40 work detect chafe wear on the upper diagonal The service change also describes hours per airplane to accomplish, at an engine mount tubes, part number (P/N) procedures for installing chafe guards average labor rate of $60 per work hour. 159W10172–11 (left engine) and P/N [part number 159WP10017–11] after the Required parts would cost 159W10172–13 (right engine). inspection of the trusses is approximately $152 per airplane. Based Depending upon the depth of wear accomplished. The chafe guards are on these figures, the cost impact of the found during any inspection, the AD intended to provide better protection of proposed requirements of this AD on requires that the tube(s) either be the subject area against future chafe U.S. operators is estimated to be replaced or repaired, and the repetitive wear. Once these chafe guards are $183,744, or $2,552 per airplane. visual inspections continued thereafter installed, the service change The inspections of the chafe guards at intervals of 200 hours time-in-service. recommends that an inspection of the that are proposed in this AD action That AD also provides for optional chafe guards be conducted thereafter at would take approximately 4 work hours terminating action for these visual intervals of 2,500 hours time-in-service. per airplane to accomplish, at an average labor rate of $60 per work hour. inspections, which consists of installing (The installation of the chafe guards a chafe guard (P/N 159WP10017–11) on Based on these figures, the cost impact and continuing inspections, as of the currently required actions on U.S. each of the upper diagonal trusses. If an described in this service change, are the operator elects to install these chafe operators is estimated to be $17,280, or same actions that were provided as $240 per airplane, per inspection. guards, the AD requires that the chafe optional terminating action for the guards be repetitively inspected to The cost impact figures discussed visual inspections of the engine mount above are based on assumptions that no detect wear thereafter at intervals of tubes in AD 67–17–05.) 2,500 hours time-in-service. operator has yet accomplished any of That action was prompted by reports Explanation of Requirements of the current or proposed requirements of of excessive chafe wear found on the Proposed Rule this AD action, and that no operator engine mount tubes on some airplanes. would accomplish those actions in the The chafe wear was determined to be Since an unsafe condition has been future if this AD were not adopted. identified that is likely to exist or caused by the tube coming into contact Regulatory Impact with the engine exhaust tail pipe develop on other products of this same blanket. The requirements of that AD type design, the proposed AD would The regulations proposed herein are intended to detect and correct chafe supersede AD 67–17–05. It would would not have substantial direct effects wear of the engine mount tube; if such continue to require the repetitive visual on the States, on the relationship wear is left unchecked, it could result in inspections to detect chafe wear of the between the national government and the failure of the engine mount engine mount tube, and repair or the States, or on the distribution of assembly and possible separation of the replacement of the tube(s), if necessary. power and responsibilities among the engine from the airplane. These inspections would be required to various levels of government. Therefore, continue until (1) a one-time inspection in accordance with Executive Order Actions Since Issuance of Previous Rule is performed to detect chafe wear of the 12612, it is determined that this As part of its on-going program to upper diagonal truss, and (2) chafe proposal would not have sufficient address issues relevant to the continued guards are installed. (Once the chafe federalism implications to warrant the operational safety of the aging transport guards are installed, the previously preparation of a Federalism Assessment. fleet, the FAA, along with Gulfstream required visual inspections of the For the reasons discussed above, I Aerospace Corporation and several U.S. engine mount tubes would be certify that this proposed regulation (1) and non-U.S. operators of the affected terminated.) The proposed AD also is not a ‘‘significant regulatory action’’ airplanes, agreed to undertake the task would require that, after the chafe under Executive Order 12866; (2) is not of identifying and implementing guards are installed, an inspection of the a ‘‘significant rule’’ under the DOT procedures to ensure the continuing chafe guards be conducted at intervals Regulatory Policies and Procedures (44 structural airworthiness of aging of 2,500 hours time-in-service. These FR 11034, February 26, 1979); and (3) if commuter class airplanes. This group actions would be required to be promulgated, will not have a significant recently reviewed selected customer accomplished in accordance with the economic impact, positive or negative, bulletins and aircraft service changes, aircraft service change described on a substantial number of small entities applicable to Gulfstream Model G–159 previously. under the criteria of the Regulatory 10228 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

Flexibility Act. A copy of the draft 17–05, amendment 39–411), visually inspect (b) For airplanes on which chafe guards, P/ regulatory evaluation prepared for this to detect chafe wear of the lower half of the N 159WP10017–11, have been installed on action is contained in the Rules Docket. upper diagonal engine mount tubes having each upper diagonal truss prior to the A copy of it may be obtained by part number (P/N) 159W10172–11 (left effective date of this AD: Within 2,500 hours engine) and P/N 159W10172–13 (right time-in-service after the last inspection of the contacting the Rules Docket at the engine). chafe guard required by paragraph (c) of AD location provided under the caption (i) If no chafe wear is detected: Repeat this 67–17–05, repeat that inspection to detect ADDRESSES. inspection thereafter at intervals not to chafe wear of the chafe guards in accordance List of Subjects in 14 CFR Part 39 exceed 200 hours time-in-service until the with Grumman Gulfstream Service Change requirements of paragraph (a)(2) are No. 180, dated October 17, 1966. Air transportation, Aircraft, Aviation accomplished. (1) If no chafe wear is detected: Repeat the safety, Safety. (ii) If any tube is found to have wear depth inspection thereafter at intervals not to greater than 0.030 inch (as measured from the exceed 2,500 hours time-in-service. The Proposed Amendment outer edge of the tube): Prior to further flight, (2) If any chafe wear is detected: Prior to Accordingly, pursuant to the replace the tube with a tube of the same part further flight, replace the chafe guard with a authority delegated to me by the number or with an FAA-approved equivalent new or serviceable part. After replacement, part. After replacement, repeat the inspection repeat the inspection thereafter at intervals Administrator, the Federal Aviation required by this paragraph at intervals not to Administration proposes to amend part not to exceed 2,500 hour time-in-service. exceed 200 hours time-in-service until the (c) An alternative method of compliance or 39 of the Federal Aviation Regulations requirements of paragraph (a)(2) are adjustment of the compliance time that (14 CFR part 39) as follows: accomplished. provides an acceptable level of safety may be (iii) If any tube is found to have wear depth used if approved by the Manager, Atlanta PART 39ÐAIRWORTHINESS of 0.030 inch deep or less, as measured from Aircraft Certification Office (ACO), FAA, DIRECTIVES the outer edge of the tube: Prior to further Small Airplane Directorate. Operators shall flight, either repair the tube in accordance 1. The authority citation for part 39 submit their requests through an appropriate with an FAA-approved repair, or replace the FAA Principal Maintenance Inspector, who continues to read as follows: tube with a part of the same part number or may add comments and then send it to the Authority: 49 U.S.C. 106(g), 40113, 44701. with an FAA-approved equivalent part. After Manager, Atlanta ACO. repair or replacement, repeat the inspection Note 2: Information concerning the required by this paragraph at intervals not to § 39.13 [Amended] existence of approved alternative methods of exceed 200 hours time-in-service until the compliance with this AD, if any, may be 2. Section 39.13 is amended by requirements of paragraph (a)(2) are obtained from the Atlanta ACO. removing amendment 39–511 (32 FR accomplished. 7248, May 16, 1967), and by adding a (2) One-Time Inspection of Upper Diagonal (d) Special flight permits may be issued in new airworthiness directive (AD), to Truss and Installation of Chafe Guards. accordance with sections 21.197 and 21.199 read as follows: Within 600 hours time-in-service after the of the Federal Aviation Regulations (14 CFR effective date of this AD, perform a one-time 21.197 and 21.199) to operate the airplane to Gulfstream Aerospace Corporation (formerly visual inspection to detect chafe wear of the a location where the requirements of this AD Grumman): Docket 97–NM–19–AD. left-hand and right-hand upper diagonal can be accomplished. Supersedes AD 67–17–05, Amendment truss, P/N’s 159W10172–5 (left-hand nacelle) Issued in Renton, Washington, on February 39–511. and P/N 159W10172–7 (right-hand nacelle), 27, 1997. Applicability: All Model G–159 (G–I) in accordance with Grumman Gulfstream Darrell M. Pederson, airplanes, certificated in any category. Service Change No. 180, dated October 17, Acting Manager, Transport Airplane Note 1: This AD applies to each airplane 1966. Once this inspection is completed, the Directorate, Aircraft Certification Service. identified in the preceding applicability repetitive inspections required by paragraph provision, regardless of whether it has been (a)(1) of this AD may be terminated. [FR Doc. 97–5462 Filed 3–5–97; 8:45 am] otherwise modified, altered, or repaired in (i) If there is no evidence of chafe wear on BILLING CODE 4910±13±U the area subject to the requirements of this the truss; or if there is evidence of chafe wear AD. For airplanes that have been modified, and the depth of wear is .030 inch or less altered, or repaired so that the performance (measured from the surface of the tube): Prior 14 CFR Part 39 of the requirements of this AD is affected, the to further flight, install a chafe guard, P/N owner/operator must request approval for an 159WP10017–11, on the truss. [Docket No. 97±NM±16±AD] alternative method of compliance in (ii) If there is any evidence of chafe wear RIN 2120±AA64 accordance with paragraph (c) of this AD. and the depth of wear exceeds .030 inch The request should include an assessment of measured (from the surface of the tube): Prior Airworthiness Directives; Gulfstream the effect of the modification, alteration, or to further flight, install a new upper diagonal Aerospace Corporation Model G±159 repair on the unsafe condition addressed by truss and install a chafe guard, P/N this AD; and, if the unsafe condition has not 159WP10017–11, on the truss. (G±I) Airplanes been eliminated, the request should include (3) Continuing Inspections of Chafe specific proposed actions to address it. AGENCY: Federal Aviation Guards. Within 2,500 hours time-in-service Administration, DOT. Compliance: Required as indicated, unless after installation of the chafe guards required accomplished previously. by paragraph (a)(2) of this AD, perform an ACTION: Notice of proposed rulemaking To prevent excessive chafe wear of the inspection of the undersurface of each chafe (NPRM). engine mount tube and upper diagonal truss, guard for evidence of chafe wear, in which could lead to failure of the engine accordance with Grumman Gulfstream SUMMARY: This document proposes the mount assembly and possible separation of Service Change No. 180, dated October 17, supersedure of an existing airworthiness the engine from the airplane, accomplish the 1966. directive (AD), applicable to certain following: (i) If no chafe wear is detected: Repeat the Gulfstream Model G–159 (G–I) (a) For airplanes on which chafe guards, P/ inspection at intervals not to exceed 2,500 airplanes, that currently requires N 159WP10017–11, have not been installed hours time-in-service. modification and repetitive inspections on each upper diagonal truss prior to the (ii) If any chafe wear is detected: Prior to effective date of this AD: Accomplish further flight, replace the chafe guard with a for cracks in the main landing gear paragraphs (a)(1), (a)(2), and (a)(3) of this AD: new or serviceable part. After replacement, (MLG) retract cylinder attachment (1) Restatement of Requirements of AD 67– repeat the inspection for chafe wear of the fittings. This action would require the 17–05: Within 100 hours time-in-service after chafe guard thereafter at intervals not to installation of improved attachment May 16, 1967 (the effective date of AD 67– exceed 2,500 hours time-in-service. fittings which, when accomplished, Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10229 would terminate the requirement for the concerned with the substance of this airplanes, agreed to undertake the task repetitive inspections. This proposal is proposal will be filed in the Rules of identifying and implementing prompted by the development of a Docket. procedures to ensure the continuing modification that positively addresses Commenters wishing the FAA to structural airworthiness of aging the identified unsafe condition. The acknowledge receipt of their comments commuter-class airplanes. This group actions specified by the proposed AD submitted in response to this notice reviewed selected customer bulletins are intended to prevent failure of the must submit a self-addressed, stamped and aircraft service changes, applicable MLG retract cylinder attachment fitting postcard on which the following to Gulfstream Model G–159 airplanes, to due to fatigue cracking. That condition, statement is made: ‘‘Comments to be recommended for mandatory if not corrected, could result in the Docket Number 97–NM–16–AD.’’ The rulemaking action to ensure the inability to retract the MLG. postcard will be date stamped and continued operational safety of these DATES: Comments must be received by returned to the commenter. airplanes. April 14, 1997. Availability of NPRMs Explanation of Relevant Service ADDRESSES: Submit comments in Information triplicate to the Federal Aviation Any person may obtain a copy of this Administration (FAA), Transport NPRM by submitting a request to the The group reviewed and Airplane Directorate, ANM–103, FAA, Transport Airplane Directorate, recommended Grumman Gulfstream Attention: Rules Docket No. 97–NM– ANM–103, Attention: Rules Docket No. Service Change No. 184, dated February 16–AD, 1601 Lind Avenue, SW., 97–NM–16–AD, 1601 Lind Avenue, 1, 1968, and Amendment 1 to that Renton, Washington 98055–4056. SW., Renton, Washington 98055–4056. Service Change, dated June 28, 1968, for mandatory rulemaking action. This Comments may be inspected at this Discussion location between 9:00 a.m. and 3:00 service information describes In 1967, the FAA issued AD 67–31– procedures for removing MLG retract p.m., Monday through Friday, except 08, amendment 39–515 (32 FR 16201, cylinder attachment fitting assemblies Federal holidays. The service information referenced in November 28, 1967), applicable to made of aluminum alloy and having P/ the proposed rule may be obtained from certain Gulfstream Model G–159 N 159WM10032–1 and –2, and Gulfstream Aerospace Corporation, airplanes, to require repetitive visual replacing them with fitting assemblies Technical Operations Department, P.O. and dye penetrant inspections for cracks made of steel and having P/N Box 2206, M/S D–10, Savannah, Georgia in the main landing gear (MLG) retract 159WM10276–1 and –2 and balls 31402–2206. This information may be cylinder attachment fittings, part having P/N 159WM10277–1. examined at the FAA, Transport number (P/N) 159WM10032–1 and –2, Installation of steel assemblies will Airplane Directorate, 1601 Lind located on the lower surface of the left- preclude the potential for fatigue Avenue, SW., Renton, Washington. hand and right-hand wings; and cracking to occur in the fittings. replacement of cracked parts. It also FOR FURTHER INFORMATION CONTACT: Explanation of Requirements of requires that the fittings be modified by Christina Marsh, Aerospace Engineer, Proposed Rule rounding off their aft end edges. Airframe and Propulsion Branch, ACE– AD 67–31–08 also provided for an Since an unsafe condition has been 117A, FAA, Small Airplane Directorate, optional terminating action, which identified that is likely to exist or Atlanta Aircraft Certification Office, consisted of replacing the MLG retract develop on other products of this same Campus Building, 1701 Columbia cylinder attachment fittings with type design, the proposed AD would Avenue, Suite 2–160, College Park, improved fittings, having Grumman P/N supersede AD 67–31–08. It would Georgia 30337–2748; telephone (404) 159WM10276–1 and –2, and balls continue to require the repetitive 305–7362; fax (404) 305–7348. having Grumman P/N 159WM10277–1. inspections and modification of the SUPPLEMENTARY INFORMATION: That action was prompted by a report MLG retract cylinder attachment indicating that, during a routine fittings, and replacement, if necessary. Comments Invited inspection, the MLG retract cylinder This new action would require that the Interested persons are invited to attachment fitting on one airplane was attachment fitting assemblies eventually participate in the making of the found to be cracked through the aft end. be replaced with assemblies made of proposed rule by submitting such Examination of the fitting revealed steel. Once this replacement is written data, views, or arguments as several notches located along one edge accomplished, the previously required they may desire. Communications shall in the area where the failure had modification and inspections may be identify the Rules Docket number and occurred. This cracking in the fitting terminated. The replacement action be submitted in triplicate to the address was determined to be due to fatigue that would be required to be accomplished specified above. All communications could be directly attributed to these in accordance with the service received on or before the closing date notches. information described previously. for comments, specified above, will be The requirements of that AD are FAA’s Determination for the Need to considered before taking action on the intended to prevent failure of the MLG Mandate the Replacement proposed rule. The proposals contained retract cylinder attachment fitting due to in this notice may be changed in light fatigue cracking. This condition, if not The FAA has determined that long of the comments received. corrected, could result in the inability to term continued operational safety will Comments are specifically invited on retract the MLG. be better assured by design changes to the overall regulatory, economic, remove the source of the problem, rather environmental, and energy aspects of Actions Since Issuance of Previous Rule than by repetitive inspections. Long the proposed rule. All comments As part of its on-going program to term inspections may not be providing submitted will be available, both before address issues relevant to the continued the degree of safety assurance necessary and after the closing date for comments, operational safety of the aging transport for the transport airplane fleet. This, in the Rules Docket for examination by fleet, the FAA, along with Gulfstream coupled with a better understanding of interested persons. A report Aerospace Corporation and several U.S. the human factors associated with summarizing each FAA-public contact and non-U.S. operators of the affected numerous continual inspections, has led 10230 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules the FAA to consider placing less contacting the Rules Docket at the (1) Beginning November 7, 1967 (the emphasis on inspections and more location provided under the caption effective date of AD 67–31–08, amendment emphasis on design improvements. The ADDRESSES. 39–515), and prior to each flight, conduct a proposed replacement requirement is in visual inspection to detect cracks in the MLG List of Subjects in 14 CFR Part 39 consonance with these considerations. retract cylinder attachment fittings on the lower surface of the right-hand and left-hand Air transportation, Aircraft, Aviation Cost Impact wings in the vicinity of the aft end of the safety, Safety. fitting. There are approximately 146 The Proposed Amendment (2) Within 25 hours time-in-service after Gulfstream Model G–159 (G–I) airplanes November 7, 1967, accomplish the actions of the affected design in the worldwide Accordingly, pursuant to the specified in paragraphs (a)(2)(i) and (a)(2)(ii) fleet. The FAA estimates that 72 authority delegated to me by the of this AD: airplanes of U.S. registry would be Administrator, the Federal Aviation (i) Conduct a dye penetrant inspection, in affected by this proposed AD. Administration proposes to amend part conjunction with at least a 10X magnifying The actions that are currently 39 of the Federal Aviation Regulations glass, to detect cracks in the MLG retract required by AD 67–31–08 take (14 CFR part 39) as follows: cylinder attachment fittings on the lower approximately 3 work hours per surface of the right-hand and left-hand wings airplane to accomplish, at an average PART 39ÐAIRWORTHINESS in the vicinity of the aft end of the fitting. labor rate of $60 per work hour. Based DIRECTIVES Repeat this inspection thereafter at intervals on these figures, the cost impact of the not to exceed 25 hours time-in-service. And (ii) Modify the aft end edges of the fitting currently required actions on U.S. 1. The authority citation for part 39 continues to read as follows: by rounding them off to approximately 1/32’’ operators is estimated to be $12,960, or radius. $180 per airplane, per inspection. Authority: 49 U.S.C. 106(g), 40113, 44701. (b) If any crack is found during an The replacement action that is inspection required by paragraph (a) of this § 39.13 [Amended] proposed in this AD action would take AD, prior to further flight, accomplish either approximately 45 work hours per 2. Section 39.13 is amended by paragraph (b)(1) or (b)(2) of this AD: airplane to accomplish, at an average removing amendment 39–515 (32 FR (1) Replace the cracked part with a part of labor rate of $60 per work hour. 16201, November 28, 1967), and by the same part number that has been modified Required parts would cost adding a new airworthiness directive and inspected in accordance with paragraph approximately $5,400 per airplane. (AD), to read as follows: (a) of this AD, in accordance with Grumman Based on these figures, the cost impact Gulfstream Customer Bulletin No. 172, dated Gulfstream Aerospace Corporation (formerly September 6, 1963. Thereafter, continue the of the proposed requirements of this AD Grumman): Docket 97-NM–16-AD. inspections required by paragraph (a) of this on U.S. operators is estimated to be Supersedes AD 67–31–08, amendment AD. Or $583,200, or $8,100 per airplane. 39–515. (2) Replace the fitting assembly with an The cost impact figures discussed Applicability: Model G–159 (G-I) airplanes; assembly having part number (P/N) above are based on assumptions that no serial numbers (S/N) 1 through 12 inclusive, 159WM10276–1 or -2, and balls having P/N operator has yet accomplished any of 14 through 112 inclusive, 114 through 148 159WM10277–1. After accomplishing this the current or proposed requirements of inclusive, 322, and 323; on which main replacement, the repetitive inspections of this AD action, and that no operator landing gear cylinder attach fitting that fitting required by paragraph (a) of this would accomplish those actions in the assemblies having part number (P/N) AD may be terminated. 159WM10276–1 and -2 and balls having P/ (c) Within 400 hours time-in-service after future if this AD were not adopted. N 159WM10277–1 are not installed; the effective date of this AD, replace the MLG Regulatory Impact certificated in any category. retract cylinder attachment fitting assemblies with assemblies having part numbers (P/N) The regulations proposed herein Note 1: This AD applies to each airplane identified in the preceding applicability 159WM10276–1 and -2, and balls having P/ would not have substantial direct effects provision, regardless of whether it has been N 159WM10277–1. This replacement on the States, on the relationship modified, altered, or repaired in the area constitutes terminating action for the between the national government and subject to the requirements of this AD. For inspection requirements of this AD. the States, or on the distribution of airplanes that have been modified, altered, or (d)(1) An alternative method of compliance power and responsibilities among the repaired so that the performance of the or adjustment of the compliance time that various levels of government. Therefore, requirements of this AD is affected, the provides an acceptable level of safety may be in accordance with Executive Order owner/operator must request approval for an used if approved by the Manager, Atlanta alternative method of compliance in Aircraft Certification Office (ACO), FAA, 12612, it is determined that this Small Airplane Directorate. Operators shall proposal would not have sufficient accordance with paragraph (d)(1) of this AD. The request should include an assessment of submit their requests through an appropriate federalism implications to warrant the the effect of the modification, alteration, or FAA Principal Maintenance Inspector, who preparation of a Federalism Assessment. repair on the unsafe condition addressed by may add comments and then send it to the For the reasons discussed above, I this AD; and, if the unsafe condition has not Manager, Atlanta ACO. certify that this proposed regulation: (1) been eliminated, the request should include (2) Alternative methods of compliance, Is not a ‘‘significant regulatory action’’ specific proposed actions to address it. approved previously in accordance with AD under Executive Order 12866; (2) is not Compliance: Required as indicated, unless 67–31–08, amendment 39–515, are approved a ‘‘significant rule’’ under the DOT accomplished previously. as alternative methods of compliance with Regulatory Policies and Procedures (44 To prevent failure of the main landing gear this AD. FR 11034, February 26, 1979); and (3) if (MLG) retract cylinder attachment fittings Note 2: Information concerning the promulgated, will not have a significant due to fatigue cracking, which could result in existence of approved alternative methods of the inability to retract the MLG, accomplish compliance with this AD, if any, may be economic impact, positive or negative, obtained from the Atlanta ACO. on a substantial number of small entities the following: (a) Accomplish the actions specified in (e) Special flight permits may be issued in under the criteria of the Regulatory paragraphs (a)(1) and (a)(2) of this AD, at the accordance with sections 21.197 and 21.199 Flexibility Act. A copy of the draft times indicated in those paragraphs and in of the Federal Aviation Regulations (14 CFR regulatory evaluation prepared for this accordance with Grumman Gulfstream 21.197 and 21.199) to operate the airplane to action is contained in the Rules Docket. Customer Bulletin No. 172, dated September a location where the requirements of this AD A copy of it may be obtained by 6, 1963. can be accomplished. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10231

Issued in Renton, Washington, on February Airframe and Propulsion Branch, ACE– actuator be replaced with an actuator 27, 1997. 117A, FAA, Small Airplane Directorate, having P/N 159SCC100–1, –5, or –11. Darrell M. Pederson, Atlanta Aircraft Certification Office, (AD 72–24–04 specifies that, if an Acting Manager, Transport Airplane Campus Building, 1701 Columbia actuator having P/N 159SCC100–11 is Directorate, Aircraft Certification Service. Avenue, Suite 2–160, College Park, installed, no further action is required.) [FR Doc. 97–5461 Filed 3–5–97; 8:45 am] Georgia 30337–2748; telephone (404) That action was prompted by a report BILLING CODE 4910±13±U 305–7362; fax (404) 305–7348. indicating that, during an inspection, all SUPPLEMENTARY INFORMATION: four mounting lugs on a Gulfstream G– 159 elevator trim tab actuator were 14 CFR Part 39 Comments Invited found to be cracked. Examination of the [Docket No. 97±NM±15±AD] Interested persons are invited to actuator unit indicated that two of the RIN 2120±AA64 participate in the making of the lugs had been failed for an proposed rule by submitting such undetermined period of time. Airworthiness Directives; Gulfstream written data, views, or arguments as Additional inspections of other Aerospace Corporation Model G±159 they may desire. Communications shall airplanes revealed numerous fittings (G±I) Airplanes identify the Rules Docket number and with one lug failed and some with two be submitted in triplicate to the address AGENCY: Federal Aviation lugs failed. specified above. All communications Administration, DOT. received on or before the closing date Once one lug fails, the adjacent lug is ACTION: Notice of proposed rulemaking for comments, specified above, will be under twice the normal stress, and will (NPRM). considered before taking action on the eventually fail. At that point, the remaining two lugs are being worked in SUMMARY: This document proposes the proposed rule. The proposals contained supersedure of an existing airworthiness in this notice may be changed in light bending and their remaining service life, directive (AD), applicable to certain of the comments received. in this condition, is short. Gulfstream Model G–159 (G–I) Comments are specifically invited on The requirements of that AD are airplanes, that currently requires the overall regulatory, economic, intended to detect cracked lugs as early repetitive inspections to detect cracking environmental, and energy aspects of as possible so as to prevent the in the mounting lugs of the elevator trim the proposed rule. All comments concurrent failure of the four lugs. Such tab actuators, and replacement, if submitted will be available, both before failure could cause severe vibration necessary. This action would require the and after the closing date for comments, during flight and/or reduction or loss of installation of improved elevator trim in the Rules Docket for examination by elevator trim tab capability; this could tab actuators that are not susceptible to interested persons. A report then result in reduced controllability of the subject cracking. This proposal is summarizing each FAA-public contact the airplane. prompted by the development of a concerned with the substance of this modification that positively addresses proposal will be filed in the Rules Actions Since Issuance of Previous Rule the identified unsafe condition. The Docket. As part of its on-going program to Commenters wishing the FAA to actions specified by the proposed AD address issues relevant to the continued acknowledge receipt of their comments are intended to prevent failure of the operational safety of the aging transport submitted in response to this notice mounting lugs on the elevator trim tab fleet, the FAA, along with Gulfstream actuator due to cracking; such failure must submit a self-addressed, stamped postcard on which the following Aerospace Corporation and several U.S. could result in severe vibration during and non-U.S. operators of the affected flight and/or reduction or loss of statement is made: ‘‘Comments to Docket Number 97–NM–15–AD.’’ The airplanes, agreed to undertake the task elevator trim tab capability, which of identifying and implementing could lead to reduced controllability of postcard will be date stamped and procedures to ensure the continuing the airplane. returned to the commenter. structural airworthiness of aging DATES: Comments must be received by Availability of NPRMs commuter-class airplanes. This group April 14, 1997. Any person may obtain a copy of this reviewed selected customer bulletins ADDRESSES: Submit comments in NPRM by submitting a request to the and aircraft service changes, applicable triplicate to the Federal Aviation to Gulfstream Model G–159 airplanes, to Administration (FAA), Transport FAA, Transport Airplane Directorate, be recommended for mandatory Airplane Directorate, ANM–103, ANM–103, Attention: Rules Docket No. rulemaking action to ensure the Attention: Rules Docket No. 97–NM– 97–NM–15–AD, 1601 Lind Avenue, continued operational safety of these 15–AD, 1601 Lind Avenue, SW., SW., Renton, Washington 98055–4056. airplanes. Renton, Washington 98055–4056. Discussion Comments may be inspected at this In 1972, the FAA issued AD 72–24– Explanation of Relevant Service location between 9:00 a.m. and 3:00 04, amendment 39–1559 (37 FR 24419, Information p.m., Monday through Friday, except November 17, 1972), applicable to The group reviewed and Federal holidays. certain Gulfstream Model G–159’’ The service information referenced in recommended Grumman Gulfstream I airplanes (formerly designated as the proposed rule may be obtained from Aircraft Service Change No. 191, dated ‘‘Grumman Gulfstream G–159’’ Gulfstream Aerospace Corporation, August 18, 1972, for mandatory airplanes), to require: Technical Operations Department, P.O. 1. repetitive dye penetrant inspections rulemaking action. This service change Box 2206, M/S D–10, Savannah, Georgia to detect cracking in the mounting lugs describes procedures for replacing the 31402–2206. This information may be of the elevator trim tab actuator, part elevator trim tab actuators having P/N examined at the FAA, Transport number (P/N) 159SCC100–1 and –5; and 159SCC100–1 or –5, with actuators Airplane Directorate, 1601 Lind 2. shimming to correct any out-of- having P/N 159SCC100–11. The Avenue, SW., Renton, Washington. plane mounting. replacement actuators have new, FOR FURTHER INFORMATION CONTACT: If cracking is detected during any increased strength housings, and are not Christina Marsh, Aerospace Engineer, inspection, the AD requires that the susceptible to the type of cracking that 10232 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules was previously found. Installation of operators is estimated to be $8,640, or Authority: 49 U.S.C. 106(g), 40113, 44701. these new actuators eliminates the need $120 per airplane, per inspection. for the repetitive inspections for The new installation that is proposed 39.13 [Amended] cracking. in this AD action would take 2. Section 39.13 is amended by The group recognized the fact that approximately 12 work hours per removing amendment 39–1559 (37 FR cracks in the existing elevator trim tab airplane to accomplish, at an average 24419, November 17, 1972), and by actuator housings are very difficult to labor rate of $60 per work hour. adding a new airworthiness directive identify, even with the dye penetrant, if Required parts would cost (AD), to read as follows: approximately $4,900 per airplane. they are small or have just started. Gulfstream Aerospace Corporation Therefore, installation of the improved Based on these figures, the cost impact (previously Grumman): Docket 97–NM– actuators will positively address the of the proposed requirements of this AD 15–AD. Supersedes AD 72–24–04, identified unsafe condition by on U.S. operators is estimated to be amendment 39–1559. eliminating the potential both for the $404,640, or $5,620 per airplane. Applicability: Model G–159 (G–I) cracking itself, as well as for cracks that The cost impact figures discussed airplanes, on which elevator trim tab are missed during an inspection. above are based on assumptions that no actuators having part number 159SCC100–11 operator has yet accomplished any of are not installed; certificated in any category. Explanation of Requirements of the current or proposed requirements of Note 1: This AD applies to each airplane Proposed Rule this AD action, and that no operator identified in the preceding applicability Since an unsafe condition has been would accomplish those actions in the provision, regardless of whether it has been future if this AD were not adopted. modified, altered, or repaired in the area identified that is likely to exist or subject to the requirements of this AD. For develop on other products of this same Regulatory Impact airplanes that have been modified, altered, or type design, the proposed AD would The regulations proposed herein repaired so that the performance of the supersede AD 72–24–04. It would would not have substantial direct effects requirements of this AD is affected, the owner/operator must request approval for an continue to require the repetitive dye on the States, on the relationship penetrant inspections for cracks in the alternative method of compliance in between the national government and accordance with paragraph (e)(1) of this AD. elevator trim tab actuator mounting the States, or on the distribution of lugs. However, it would also require the The request should include an assessment of power and responsibilities among the the effect of the modification, alteration, or installation of improved actuators, various levels of government. Therefore, repair on the unsafe condition addressed by which would constitute terminating in accordance with Executive Order this AD; and, if the unsafe condition has not action for the repetitive inspections. The 12612, it is determined that this been eliminated, the request should include installation would be required to be proposal would not have sufficient specific proposed actions to address it. accomplished in accordance with the federalism implications to warrant the Compliance: Required as indicated, unless aircraft service change described preparation of a Federalism Assessment. accomplished previously. previously. For the reasons discussed above, I To prevent failure of the elevator trim tab certify that this proposed regulation (1) mounting lugs due to cracking, which could FAA’s Determination for the Need to result in severe vibration during flight and a Mandate the Installation is not a ‘‘significant regulatory action’’ consequent reduction or loss of elevator trim under Executive Order 12866; (2) is not tab capability, accomplish the following: The FAA has determined that long a ‘‘significant rule’’ under the DOT (a) Within 10 hours time-in-service after term continued operational safety will Regulatory Policies and Procedures (44 November 24, 1972 (the effective date of AD be better assured by design changes to FR 11034, February 26, 1979); and (3) if 72–24–04, amendment 39–1559), perform an remove the source of the problem, rather promulgated, will not have a significant inspection to detect cracks in the mounting than by repetitive inspections. Long economic impact, positive or negative, lugs of the elevator trim tab actuators, having term inspections may not be providing on a substantial number of small entities part number (P/N) 159SCC100–1 or –5; and the degree of safety assurance necessary under the criteria of the Regulatory shim to correct any out-of-plane condition, in accordance with Gulfstream Customer for the transport airplane fleet. This, Flexibility Act. A copy of the draft coupled with a better understanding of Bulletin No. 208A through Amendment 2, regulatory evaluation prepared for this dated April 21, 1972, and Operational the human factors associated with action is contained in the Rules Docket. Summary No. 72–5B, dated August 1972. numerous continual inspections, has led A copy of it may be obtained by (b) If no crack is found in any mounting the FAA to consider placing less contacting the Rules Docket at the lug during the inspection required by emphasis on inspections and more location provided under the caption paragraph (a) of this AD, repeat the emphasis on design improvements. The ADDRESSES. inspection at intervals not to exceed 200 proposed installation requirement is in hours time-in-service. consonance with these considerations. List of Subjects in 14 CFR Part 39 (c) If any crack is found in a mounting lug Air transportation, Aircraft, Aviation when conducting any inspection required by Cost Impact safety, Safety. paragraph (a) or (b) of this AD, prior to further flight, replace the elevator trim tab There are approximately 146 The Proposed Amendment actuator with a new or serviceable actuator Gulfstream Model G–159 airplanes of having P/N 159SCC100–1, –5, or –11. the affected design in the worldwide Accordingly, pursuant to the (1) If an actuator having P/N 159SCC100– fleet. The FAA estimates that 72 authority delegated to me by the 1 or –5 is used as the replacement unit, airplanes of U.S. registry would be Administrator, the Federal Aviation repeat the inspection for cracks specified in affected by this proposed AD. Administration proposes to amend part paragraph (a) of this AD thereafter at The inspections that are currently 39 of the Federal Aviation Regulations intervals not to exceed 200 hours time-in- required by AD 72–24–04 take (14 CFR part 39) as follows: service. (2) If an actuator having P/N 159SCC100– approximately 2 work hours per PART 39ÐAIRWORTHINESS 11 is used as the replacement unit, no further airplane to accomplish, at an average DIRECTIVES inspection action is required for that unit in labor rate of $60 per work hour. Based accordance with this AD. on these figures, the cost impact of the 1. The authority citation for part 39 (d) Within 1,000 hours time-in-service after currently required actions on U.S. continues to read as follows: the effective date of this AD, replace the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10233 elevator trim tab actuators with actuators that torque link assemblies would eliminate action on the proposed rule. The have P/N 159SCC100–11, in accordance with the need for the repetitive inspections. proposals contained in this notice may Gulfstream Aircraft Service Change No.191, These proposed repetitive inspections be changed in light of the comments dated August 18, 1972. This installation are currently required by AD 86–07–02 received. constitutes terminating action for the inspections required by this AD. for the BN–2A, BN–2B, and BN–2T Comments are specifically invited on (e)(1) An alternative method of compliance series airplanes, as well as the BN2A the overall regulatory, economic, or adjustment of the compliance time that MK. 111 series airplanes. There are no environmental, and energy aspects of provides an acceptable level of safety may be improved design parts for the BN2A the proposed rule. All comments used if approved by the Manager, Atlanta MK. 111 series airplanes. The Federal submitted will be available, both before Aircraft Certification Office (ACO), FAA, Aviation Administration (FAA) is and after the closing date for comments, Small Airplane Directorate. Operators shall issuing in a separate action a proposed in the Rules Docket for examination by submit their requests through an appropriate revision to AD 86–07–02 to retain the interested persons. A report that FAA Principal Maintenance Inspector, who repetitive inspection and replacement may add comments and then send it to the summarizes each FAA-public contact Manager, Atlanta ACO. (if cracked) requirements for the BN2A concerned with the substance of this (2) Alternative methods of compliance, MK. 111 series airplanes. The actions proposal will be filed in the Rules approved previously in accordance with AD specified in the proposed AD are Docket. 72–24–02, amendment 39–1559, are intended to prevent failure of the main Commenters wishing the FAA to approved as alternative methods of landing gear caused by cracks in the acknowledge receipt of their comments compliance with this AD. torque link area, which could lead to submitted in response to this notice Note 2: Information concerning the loss of control of the airplane during must submit a self-addressed, stamped existence of approved alternative methods of landing operations. postcard on which the following compliance with this AD, if any, may be DATES: Comments must be received on obtained from the Atlanta ACO. statement is made: ‘‘Comments to or before May 12, 1997. Docket No. 96–CE–25–AD.’’ The (f) Special flight permits may be issued in ADDRESSES: Submit comments on the accordance with sections 21.197 and 21.199 postcard will be date stamped and of the Federal Aviation Regulations (14 CFR proposal in triplicate to the FAA, returned to the commenter. Central Region, Office of the Assistant 21.197 and 21.199) to operate the airplane to Availability of NPRMs a location where the requirements of this AD Chief Counsel, Attention: Rules Docket can be accomplished. No. 96–CE–25–AD, Room 1558, 601 E. Any person may obtain a copy of this Issued in Renton, Washington, on February 12th Street, Kansas City, Missouri NPRM by submitting a request to the 27, 1997. 64106. Comments may be inspected at FAA, Central Region, Office of the Darrell M. Pederson, this location between 8 a.m. and 4 p.m., Assistant Chief Counsel, Attention: Acting Manager, Transport Airplane Monday through Friday, holidays Rules Docket No. 96–CE–25–AD, Room Directorate, Aircraft Certification Service. excepted. 1558, 601 E. 12th Street, Kansas City, [FR Doc. 97–5460 Filed 3–5–97; 8:45 am] Service information that applies to the Missouri 64106. proposed AD may be obtained from BILLING CODE 4910±13±U Pilatus Britten-Norman Limited, Discussion Bembridge, Isle of Wight, United The FAA has determined that reliance 14 CFR Part 39 Kingdom PO35 5PR; telephone 44–1983 on critical repetitive inspections on 872511; facsimile 44–1983 873246. This aging commuter-class airplanes carries [Docket No. 96±CE±25±AD] information also may be examined at an unnecessary safety risk when a RIN 2120±AA64 the Rules Docket at the address above. design change exists that could FOR FURTHER INFORMATION CONTACT: Mr. eliminate or, in certain instances, Airworthiness Directives; Pilatus Tom Rodriguez, Program Officer, reduce the number of those critical Britten-Norman Ltd. (formerly Britten- Brussels Aircraft Certification Division, inspections. In determining what Norman) BN±2A, BN±2B, and BN±2T FAA, Europe, Africa, and Middle East inspections are critical, the FAA Series Airplanes Office, c/o American Embassy, B–1000 considers (1) the safety consequences if Brussels, Belgium; telephone (32 2) AGENCY: Federal Aviation the known problem is not detected Administration, DOT. 508.2717; facsimile (32 2) 230.6899; or during the inspection; (2) the Mr. S.M. Nagarajan, Project Officer, probability of the problem not being ACTION: Notice of proposed rulemaking Small Airplane Directorate, Airplane (NPRM). detected during the inspection; (3) Certification Service, FAA, 1201 whether the inspection area is difficult SUMMARY: This document proposes to Walnut, Suite 900, Kansas City, to access; and (4) the possibility of adopt a new airworthiness directive that Missouri 64106; telephone (816) 426– damage to an adjacent structure as a would apply to Pilatus Britten-Norman 6932; facsimile (816) 426–2169. result of the problem. Ltd. (Pilatus Britten-Norman) BN–2A, SUPPLEMENTARY INFORMATION: These factors have led the FAA to BN–2B, and BN–2T series airplanes. establish an aging commuter-class The proposed AD would require Comments Invited aircraft policy that requires repetitively inspecting the junction of Interested persons are invited to incorporating a known design change the torque link lug and upper case of the participate in the making of the when it could replace a critical main landing gear (MLG) torque link proposed rule by submitting such repetitive inspection. With this policy assemblies for cracks, and replacing any written data, views, or arguments as in mind, the FAA conducted a review MLG torque link assembly with a they may desire. Communications of existing AD’s that apply to Pilatus Modification A39 MLG torque link should identify the Rules Docket Britten-Norman BN–2A, BN–2B, BN–2T, assembly, either immediately when number and be submitted in triplicate to and BN2A MK. 111 series airplanes. cracks are found or after a certain period the address specified above. All Assisting the FAA in this review were of time if cracks are not found. communications received on or before (1) Pilatus Britten-Norman; (2) the Replacing all MLG torque link the closing date for comments, specified Regional Airlines Association (RAA); (3) assemblies with Modification A39 MLG above, will be considered before taking the Civil Aviation Authority of the 10234 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

United Kingdom; and (4) several airplanes of the same type design, the The proposed action would allow at operators of the affected airplanes. proposed AD would require repetitively least 1,000 hours TIS after the effective From this review, the FAA has inspecting the junction of the torque date of the AD before mandatory identified AD 86–07–02, Amendment link lug and upper case of the MLG accomplishment of the design 39–5382, as one which falls under the torque link assemblies for cracks, and modification (upon the accumulation of FAA’s aging aircraft policy. AD 86–07– replacing any MLG torque link assembly 5,000 hours TIS or within the next 1,000 02 currently requires repetitively with a Modification A39 MLG torque hours TIS after the effective date of the inspecting the junction of the torque link assembly, either immediately when AD, whichever is later). The average link lug and upper case of the main cracks are found or at a certain period utilization of the fleet for those landing gear (MLG) torque link of time if cracks are not found. airplanes in commercial commuter assemblies for cracks on Pilatus Britten- Installation of the improved part would service is approximately 25 to 50 hours Norman BN–2A, BN–2B, BN–2T, and eliminate the need for the repetitive TIS per week. Based on these figures, BN2A MK. 111 series airplanes, and inspections. Accomplishment of the operators of commuter airplanes replacing any cracked part. proposed inspections and installation involved in commercial operation Pilatus Britten-Norman has developed would be in accordance with Fairey would have to accomplish the proposed a modification that, when incorporated, Hydraulics Limited SB 32–4, Issue 4, modification within 5 to 10 calendar would eliminate the need for the dated January 30, 1990. months (at the least) after the proposed repetitive inspection requirement of AD AD would become effective. For private Cost Impact 86–07–02 for the Pilatus Britten-Norman owners, who typically operate between BN–2A, BN–2B, and BN–2T series The FAA estimates that 112 airplanes 100 to 200 hours TIS per year, this airplanes. The requirements of AD 86– in the U.S. registry would be affected by would allow 5 to 10 years (at the least) 07–02 should still apply for the Pilatus the proposed AD, that it would take before the proposed modification would Britten-Norman BN2A MK. 111 series approximately 13 workhours per be mandatory. The time it would take airplanes. airplane to accomplish the proposed those in air cargo/air taxi operations action (1 workhour per inspection and before the proposed action would be Applicable Service Information 12 workhours for the installation), and mandatory is unknown because of the Fairey Hydraulics Limited has issued that the average labor rate is wide variation between each airplane Service Bulletin (SB) 32–4, Issue 4, approximately $60 an hour. Parts cost used in this service. The exact numbers dated January 30, 1990, which applies approximately $6,200 per airplane. would fall somewhere between the to the Pilatus Britten-Norman BN–2A, Based on these figures, the total cost average for commuter operators and BN–2B, and BN–2T series airplanes. impact of the proposed AD on U.S. private operators. This SB includes procedures for operators is estimated to be $781,760 or Regulatory Flexibility Determination inspecting the junction of the torque $6,980 per airplane. and Analysis link lug and upper case of the MLG The proposed inspections are torque link assemblies, and installing currently required on the 112 affected The Regulatory Flexibility Act of 1980 new Modification A39 MLG torque link airplanes by AD 86–07–02. The (RFA) was enacted by Congress to assemblies. Pilatus Britten-Norman SB proposed AD would not require any ensure that small entities are not BN–2/SB.170, Issue 4, dated November additional inspection requirements over unnecessarily or disproportionally 16, 1990, references Fairey Hydraulic that already required by AD 86–07–02. burdened by government regulations. Limited SB32–4, Issue 4, dated January In addition, the cost figures referenced The RFA requires government agencies 30, 1990. above are based on the presumption that to determine whether rules would have no affected airplane operator has a ‘‘significant economic impact on a The FAA’s Determination incorporated the proposed inspection- substantial number of small entities,’’ The FAA has examined all available terminating installation. Pilatus Britten- and, in cases where they would, information related to this subject Norman does not know the number of conduct a Regulatory Flexibility matter and has determined that: parts distributed to the affected airplane Analysis in which alternatives to the • AD action should be taken for the owners/operators. Numerous sets of rule are considered. FAA Order Pilatus Britten-Norman BN–2A, BN–2B, parts were sent out to the owners/ 2100.14A, Regulatory Flexibility Criteria and BN–2T series airplanes to require operators of the affected airplanes, but and Guidance, outlines FAA procedures the installation of Modification A39 over the years Pilatus Britten-Norman and criteria for complying with the MLG torque link assemblies. The has not retained these records. RFA. Small entities are defined as small repetitive inspections of the junction of businesses and small not-for-profit The FAA’s Aging Commuter Aircraft organizations that are independently the torque link lug and upper case of the Policy MLG torque link assemblies would still owned and operated or airports be required until the improved parts are The intent of the FAA’s aging operated by small governmental installed; and commuter airplane program is to ensure jurisdictions. A ‘‘substantial number’’ is • AD 86–07–02 should be revised to safe operation of commuter-class defined as a number that is not less than remove the BN–2A BN–2B, and BN–2T airplanes that are in commercial service 11 and that is more than one-third of the series airplanes from the applicability of without adversely impacting private small entities subject to a proposed rule, that AD, but retain the actions for the operators. Of the approximately 112 or any number of small entities judged BN2A MK. 111 series airplanes (this is airplanes in the U.S. registry that would to be substantial by the rulemaking being proposed in a separate action). be affected by the proposed AD, the official. A ‘‘significant economic FAA has determined that approximately impact’’ is defined by an annualized net Explanation of the Provisions of the 25 percent are operated in scheduled compliance cost, adjusted for inflation, Proposed AD passenger service by 11 different which is greater than a threshold cost Since an unsafe condition has been operators. A significant number of the level for defined entity types. identified that is likely to exist or remaining 75 percent are operated in The entities that would be affected by develop in other Pilatus Britten-Norman other forms of air transportation such as this AD are mostly in the portion of BN–2A, BN–2B, and BN–2T series air cargo and air taxi. Standard Industrial Classification (SIC) Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10235

4512, Operators of Aircraft for Hire, location provided under the caption section of Fairey Hydraulics Limited Service classified as ‘‘unscheduled.’’ FAA Order ADDRESSES. Bulletin (SB) 32–4, Issue 4, dated January 30, 2100.14A sets the size threshold for 1990. Pilatus Britten-Norman SB BN–2/ List of Subjects in 14 CFR Part 39 small entities operating aircraft in this SB.170, Issue 4, November 16, 1990, references this service bulletin. category at nine or fewer aircraft owned Air transportation, Aircraft, Aviation and the annualized cost thresholds of at safety, Safety. Note 2: These inspections were initially a part of AD 86–07–02, which applied to the least $4,975 (1996 dollars) for The Proposed Amendment BN2A MK. 111 series airplanes as well as the unscheduled operators. A four-year life Accordingly, pursuant to the airplanes affected by this AD. The ‘‘prior to for the torque link assembly and capital further flight after the effective date of this cost of 15-percent would establish an authority delegated to me by the AD’’ compliance time was the original initial annualized cost of $2,445 (1996 dollars). Administrator, the Federal Aviation compliance time of AD 86–07–02, and is This is less than 50-percent of the Administration proposes to amend part being retained to provide credit and threshold cost of $4,975 per year. In 39 of the Federal Aviation Regulations continuity for already-accomplished and order to incur costs of at least $4,975, (14 CFR part 39) as follows: future inspections. (b) If any cracks are found during any of an entity would have to operate three or PART 39ÐAIRWORTHINESS more of the airplanes referenced in the the inspections required by this AD, prior to DIRECTIVES further flight, replace the MLG torque link proposed AD. FAA data shows that only assembly with a Modification A39 MLG five small entities operate three or more 1. The authority citation for part 39 torque link assembly in accordance with the of these airplanes. In addition, this data continues to read as follows: ACCOMPLISHMENT INSTRUCTIONS shows that approximately 60 entities Authority: 49 USC 106(g), 40113, 44701. section of Fairey Hydraulics Limited SB No. operate the airplanes referenced in the 32–4, Issue 4, dated January 30, 1990. proposed AD, but that only 15 of these § 39.13 [Amended] (1) Repetitive inspections are no longer entities (one-fourth) operate two or more 2. Section 39.13 is amended by required when all MLG torque assemblies are of these airplanes. adding a new airworthiness directive replaced with Modification A39 MLG torque (AD) to read as follows: link assemblies. Based on this information, less than (2) Repetitive inspections may no longer be one-third of the entities would incur Pilatus Britten-Norman: Docket No. 96–CE– required on one MLG torque assembly, but significant operating costs under FAA 25–AD. still be required on another if all haven’t been Order 2100.14A. Therefore, the Applicability: Models BN–2, BN–2A, BN– replaced with a Modification A39 MLG proposed AD would not significantly 2A–3, BN–2A–6, BN–2A–8, BN–2A–2, BN– torque link assembly. affect a number of small entities. 2A–9, BN–2A–20, BN–2A–21, BN–2A–26, (c) Upon the accumulation of 5,000 hours A copy of the full Cost Analysis and BN–2A–27, BN–2B–20, BN–2B–21, BN–2B– TIS or within the next 1,000 hours TIS after Regulatory Flexibility Determination for 26, BN–2B–27, and BN–2T airplanes (all the effective date of this AD, whichever the proposed action may be examined at serial numbers), certificated in any category. occurs later, unless already accomplished as Note 1: This AD applies to each airplane specified in paragraph (b) of this AD, replace the FAA, Central Region, Office of the each MLG torque link assembly with a Assistant Chief Counsel, Attention: identified in the preceding applicability provision, regardless of whether it has been Modification A39 MLG torque link assembly Rules Docket No. 96–CE–25–AD, Room modified, altered, or repaired in the area in accordance with of the 1558, 601 E. 12th Street, Kansas City, subject to the requirements of this AD. For ACCOMPLISHMENT INSTRUCTIONS Missouri. airplanes that have been modified, altered, or section of Fairey Hydraulics Limited SB No. 32–4, Issue 4, dated January 30, 1990. Regulatory Impact repaired so that the performance of the requirements of this AD is affected, the (d) The intervals between the repetitive The regulations proposed herein owner/operator must request approval for an inspections required by this AD may be would not have substantial direct effects alternative method of compliance in adjusted up to 10 percent of the specified accordance with paragraph (f) of this AD. The interval to allow accomplishing these actions on the States, on the relationship along with other scheduled maintenance on between the national government and request should include an assessment of the effect of the modification, alteration, or repair the airplane. the States, or on the distribution of on the unsafe condition addressed by this (e) Special flight permits may be issued in power and responsibilities among the AD; and, if the unsafe condition has not been accordance with sections 21.197 and 21.199 various levels of government. Therefore, eliminated, the request should include of the Federal Aviation Regulations (14 CFR in accordance with Executive Order specific proposed actions to address it. 21.197 and 21.199) to operate the airplane to a location where the inspection requirements 12612, it is determined that this Compliance: Required as indicated after of this AD can be accomplished. proposal would not have sufficient the effective date of this AD, unless already (f) An alternative method of compliance or federalism implications to warrant the accomplished. adjustment of the initial or repetitive To prevent failure of the main landing gear preparation of a Federalism Assessment. compliance times that provides an equivalent caused by cracks in the torque link assembly For the reasons discussed above, I level of safety may be approved by the area, which could lead to loss of control of certify that this action (1) is not a Manager, Brussels Aircraft Certification the airplane during landing operations, Division, Europe, Africa, Middle East office, ‘‘significant regulatory action’’ under accomplish the following: FAA, c/o American Embassy, 1000 Brussels, Executive Order 12866; (2) is not a (a) Prior to further flight after the effective Belgium. The request should be forwarded ‘‘significant rule’’ under DOT date of this AD or within the next 100 hours through an appropriate FAA Maintenance Regulatory Policies and Procedures (44 time-in-service (TIS) after the last inspection Inspector, who may add comments and then FR 11034, February 26, 1979); and (3) if required by AD 86–07–02, whichever occurs send it to the Manager, Brussels Aircraft later, and thereafter at intervals not to exceed promulgated, will not have a significant Certification Division. economic impact, positive or negative, 100 hours TIS until the installations required by paragraph (c) of this AD are accomplished, Note 3: Information concerning the on a substantial number of small entities existence of approved alternative methods of under the criteria of the Regulatory inspect the junction of the torque link lug and upper case of all main landing gear compliance with this AD, if any, may be Flexibility Act. A copy of the draft (MLG) torque link assemblies for cracks obtained from the Brussels Aircraft regulatory evaluation prepared for this (using a 10-power magnifying glass or by dye Certification Division. action has been placed in the Rules penetrant methods). Accomplish these (g) All persons affected by this directive Docket. A copy of it may be obtained by inspections in accordance with the may obtain copies of the documents referred contacting the Rules Docket at the ACCOMPLISHMENT INSTRUCTIONS to herein upon request to Fairey Hydraulics 10236 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

Limited, Claverham, Bristol, England; or AD, Room 1558, 601 E. 12th Street, Events Leading to the Proposed AD Pilatus Britten-Norman Limited, Bembridge, Kansas City, Missouri 64106. Comments Isle of Wight, United Kingdom PO35 5PR, as AD 96–12–03, Amendment 39–9645 may be inspected at this location (61 FR 28730, June 6, 1996), applies to applicable; or may examine these documents between 8 a.m. and 4 p.m., Monday at the FAA, Central Region, Office of the Aviat Models S–1S, S–1T, S–2, S–2A, Assistant Chief Counsel, Room 1558, 601 E. through Friday, holidays excepted. S–2S, and S–2B airplanes that are 12th Street, Kansas City, Missouri 64106. Service information that applies to the equipped with aft lower fuselage wing proposed AD may be obtained from Issued in Kansas City, Missouri, on attach fittings incorporating either part February 24, 1997. Aviat Aircraft, Inc., P.O. Box 1240 number (P/N) 76090, 2–2107–1, or 1– (postal service delivery), 672 South Michael Gallagher, 210–102. The AD currently requires Washington Street (express mail), Afton, repetitively inspecting the aft lower Manager, Small Airplane Directorate, Aircraft Wyoming 83110. This information also Certification Service. fuselage wing attach fitting on both may be examined at the Rules Docket at wings for cracks, and modifying any [FR Doc. 97–5471 Filed 3–5–97; 8:45 am] the address above. BILLING CODE 4910±13±U cracked aft lower fuselage wing attach FOR FURTHER INFORMATION CONTACT: Mr. fitting. Modifying both aft lower Roger Caldwell, Aerospace Engineer, fuselage wing attach fittings eliminates 14 CFR Part 39 FAA, Denver Aircraft Certification the repetitive inspection requirement of Office, 26805 E. 68th Avenue, Room AD 96–12–03. Accomplishment of the [Docket No. 96±CE±23±AD] 214, Denver, Colorado 80249; telephone actions required by AD 96–12–03 is in RIN 2120±AA64 (303) 342–1086; facsimile (303) 342– accordance with Aviat Service Bulletin 1088. (SB) No. 25, dated April 3, 1996. Aviat recently started incorporating Airworthiness Directives; Aviat SUPPLEMENTARY INFORMATION: Aircraft, Inc. Models S±1S, S±1T, S±2, modified aft lower fuselage wing attach S±2A, S±2S, and S±2B Airplanes Comments Invited fittings on newly manufactured Models (formerly known as Pitts Models S±1S, Interested persons are invited to S–1S, S–1T, S–2, S–2A, S–2S, and S–2B S±1T, S±2, S±2A, S±2S, and S±2B participate in the making of the airplanes. In addition, Aviat revised SB Airplanes) proposed rule by submitting such No. 25 (Revised November 12, 1996) to written data, views, or arguments as include this airplane serial number AGENCY: Federal Aviation they may desire. Communications effectivity change. Administration, DOT. should identify the Rules Docket The FAA’s Determination ACTION: Notice of proposed rulemaking number and be submitted in triplicate to (NPRM). After examining the circumstances the address specified above. All and reviewing all available information communications received on or before SUMMARY: This document proposes to related to the incidents described above, revise AD 96–12–03, which applies to the closing date for comments, specified the FAA has determined that (1) those Aviat Aircraft, Inc. (Aviat) Models S–1S, above, will be considered before taking airplanes with modified aft lower S–1T, S–2, S–2A, S–2S, and S–2B action on the proposed rule. The fuselage wing attach fittings airplanes that are equipped with aft proposals contained in this notice may incorporated at manufacture should be lower fuselage wing attach fittings be changed in light of the comments exempt from AD 96–12–03; and (2) AD incorporating either part number (P/N) received. action should be taken to prevent 76090, 2–2107–1, or 1–210–102. That Comments are specifically invited on possible in-flight separation of the wing AD currently requires repetitively the overall regulatory, economic, from the airplane caused by a cracked inspecting the aft lower fuselage wing environmental, and energy aspects of fuselage wing attach fitting. attach fitting on both wings for cracks, the proposed rule. All comments submitted will be available, both before Explanation of the Provisions of the and modifying any cracked aft lower Proposed AD fuselage wing attach fitting. Modifying and after the closing date for comments, both aft lower fuselage wing attach in the Rules Docket for examination by Since an unsafe condition has been fittings eliminates the repetitive interested persons. A report that identified that is likely to exist or inspection requirement of AD 96–12–03. summarizes each FAA-public contact develop in other Aviat Models S–1S, S– Aviat recently started incorporating concerned with the substance of this 1T, S–2, S–2A, S–2S, and S–2B modified aft lower fuselage wing attach proposal will be filed in the Rules airplanes of the same type design that fittings on newly manufactured Docket. are equipped with aft lower fuselage Commenters wishing the FAA to airplanes. The proposed AD would wing attach fittings incorporating either acknowledge receipt of their comments retain the requirements of AD 96–12–03, P/N 76090, 2–2107–1, or 1–210–102, the submitted in response to this notice but would exempt airplanes that had the FAA is proposing to revise AD 96–12– must submit a self-addressed, stamped modified aft lower fuselage wing attach 03. The proposed AD would retain the postcard on which the following fittings incorporated at manufacture. requirements of AD 96–12–03, but statement is made: ‘‘Comments to The actions specified by the proposed would exempt airplanes that had the Docket No. 96–CE–23–AD.’’ The AD are intended to prevent possible in- modified aft lower fuselage wing attach postcard will be date stamped and flight separation of the wing from the fittings incorporated at manufacture. returned to the commenter. airplane caused by a cracked fuselage Accomplishment of the proposed AD wing attach fitting. Availability of NPRMs would be in accordance with Aviat SB No. 25, dated April 3, 1996, Revised DATES: Comments must be received on Any person may obtain a copy of this November 12, 1996. or before June 4, 1997. NPRM by submitting a request to the ADDRESSES: Submit comments in FAA, Central Region, Office of the Cost Impact triplicate to the Federal Aviation Assistant Chief Counsel, Attention: The FAA estimates that 500 airplanes Administration (FAA), Central Region, Rules Docket No. 96–CE–23–AD, Room in the U.S. registry would be affected by Office of the Assistant Chief Counsel, 1558, 601 E. 12th Street, Kansas City, the proposed AD, that it would take Attention: Rules Docket No. 96–CE–23– Missouri 64106. approximately 2 workhours per airplane Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10237 to accomplish the proposed initial 39 of the Federal Aviation Regulations ACCOMPLISHMENT INSTRUCTIONS inspection, and that the average labor (14 CFR part 39) as follows: section of Aviat SB No. 25, dated April 3, rate is approximately $60 an hour. Parts 1996, Revised November 12, 1996; or Aviat to accomplish the repetitive inspections PART 39ÐAIRWORTHINESS SB No. 25, dated April 3, 1996. Repetitive DIRECTIVES inspections are no longer necessary on an aft cost approximately $100 per airplane. lower fuselage wing attachment fitting that Based on these figures, the total cost 1. The authority citation for part 39 was found cracked and has the referenced impact of the proposed AD on U.S. continues to read as follows: modification incorporated. operators is estimated to be $110,000. (c) Modifying the aft lower fuselage wing Authority: 49 USC 106(g), 40113, 44701. These figures do not take into account attach fitting on both wings in accordance the cost of repetitive inspections. The § 39.13 [Amended] with the ACCOMPLISHMENT FAA has no way of determining how INSTRUCTIONS section of Aviat SB No. 25, 2. Section 39.13, is amended by dated April 3, 1996, Revised November 12, many repetitive inspections each removing Airworthiness Directive (AD) owner/operator may incur over the life 1996; or Aviat SB No. 25, dated April 3, 96–12–03, Amendment 39-9645, and by 1996, is considered terminating action for the of the airplane. adding a new AD to read as follows: repetitive inspection requirement of this AD. In addition, AD 96–12–03 currently Aviat Aircraft, Inc.: Docket No. 96–CE–23– (d) Special flight permits may be issued in requires the same inspections as the AD. Revises AD 96–12–03, Amendment accordance with sections 21.197 and 21.199 proposed AD for all 500 of the affected 39–9645. of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to airplanes. The only difference is that Applicability: The following airplane a location where the requirements of this AD newly manufactured airplanes would be models and serial numbers, certificated in can be accomplished. exempt from the actions because they any category, that are equipped with aft (e) An alternative method of compliance or have modified aft lower fuselage wing lower fuselage wing attach fittings adjustment of the initial or repetitive incorporating part number (P/N) 76090, 2– attach fittings incorporated at compliance times that provides an equivalent 2107–1, or 1-210–102, and where these aft manufacture. Therefore, the cost impact level of safety may be approved by the lower fuselage wing attach fittings on both of the proposed AD for operators of all Manager, Denver Aircraft Certification Office, wings have not been modified in accordance affected airplanes is the same as AD 96– 26805 E. 68th Avenue, Room 214, Denver, with the ACCOMPLISHMENT 12–03. INSTRUCTIONS section of Aviat Service Colorado 80249. The request shall be forwarded through an appropriate FAA Regulatory Impact Bulletin (SB) No. 25, dated April 3, 1996, Revised November 12, 1996; or Aviat SB No. Maintenance Inspector, who may add The regulations proposed herein 25, dated April 3, 1996: comments and then send it to the Manager, would not have substantial direct effects —Models S–1S, S–1T, S–2, S–2A, and S– Denver ACO. Alternative methods of compliance approved in accordance with AD on the States, on the relationship 2S airplanes, all serial numbers. —Model S–2B airplanes, serial numbers 96–12–03 are considered approved for this between the national government and AD. the States, or on the distribution of 5000 through 5348. Note 1: This AD applies to each airplane Note 2: Information concerning the power and responsibilities among the existence of approved alternative methods of various levels of government. Therefore, identified in the preceding applicability provision, regardless of whether it has been compliance with this AD, if any, may be in accordance with Executive Order modified, altered, or repaired in the area obtained from the Denver ACO. 12612, it is determined that this subject to the requirements of this AD. For (f) All persons affected by this directive proposal would not have sufficient airplanes that have been modified, altered, or may obtain copies of the service bulletin federalism implications to warrant the repaired so that the performance of the referred to herein upon request to Aviat preparation of a Federalism Assessment. requirements of this AD is affected, the Aircraft, Inc., P.O. Box 1240 (postal service For the reasons discussed above, I owner/operator must request approval for an delivery), 672 South Washington Street certify that this action (1) is not a alternative method of compliance in (express mail), Afton, Wyoming 83110; or may examine this service bulletin at the ‘‘significant regulatory action’’ under accordance with paragraph (e) of this AD. The request should include an assessment of FAA, Central Region, Office of the Assistant Executive Order 12866; (2) is not a the effect of the modification, alteration, or Chief Counsel, Room 1558, 601 E. 12th ‘‘significant rule’’ under DOT repair on the unsafe condition addressed by Street, Kansas City, Missouri 64106. Regulatory Policies and Procedures (44 this AD; and, if the unsafe condition has not (g) This amendment revises AD 96–12–03, FR 11034, February 26, 1979); and (3) if been eliminated, the request should include Amendment 39–9645. Issued in Kansas City, promulgated, will not have a significant specific proposed actions to address it. Missouri, on February 24, 1997. economic impact, positive or negative, Compliance: Required initially within the Michael Gallagher, on a substantial number of small entities next 50 hours time-in-service (TIS) after the Manager, Small Airplane Directorate, Aircraft under the criteria of the Regulatory effective date of this AD, unless already Certification Service. Flexibility Act. A copy of the draft accomplished (compliance with AD 96–12– [FR Doc. 97–5470 Filed 3–5–97; 8:45 am] 03), and thereafter at intervals not to exceed regulatory evaluation prepared for this BILLING CODE 4910±13±U action has been placed in the Rules 50 hours TIS. To prevent possible in-flight separation of Docket. A copy of it may be obtained by the wing from the airplane caused by a contacting the Rules Docket at the cracked aft lower fuselage wing attach fitting, 14 CFR Part 39 location provided under the caption accomplish the following: [Docket No. 97±NM±17±AD] ADDRESSES. (a) Inspect the aft lower fuselage wing attach fitting on both wings for cracks in RIN 2120±AA64 List of Subjects in 14 CFR Part 39 accordance with the ACCOMPLISHMENT Air transportation, Aircraft, Aviation INSTRUCTIONS section of Aviat SB No. 25, Airworthiness Directives; Gulfstream safety, Safety. dated April 3, 1996, Revised November 12, Aerospace Corporation Model G±159 1996; or Aviat SB No. 25, dated April 3, (G±I) Airplanes The Proposed Amendment 1996. (b) If any cracked aft lower fuselage wing AGENCY: Federal Aviation Accordingly, pursuant to the attach fitting is found during any inspection Administration, DOT. authority delegated to me by the required by this AD, prior to further flight, ACTION: Notice of proposed rulemaking Administrator, the Federal Aviation modify the cracked aft lower fuselage wing (NPRM). Administration proposes to amend part attach fitting in accordance with the 10238 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

SUMMARY: This document proposes the for comments, specified above, will be structural airworthiness of aging supersedure of an existing airworthiness considered before taking action on the commuter-class airplanes. This group directive (AD), applicable to certain proposed rule. The proposals contained reviewed selected customer bulletins Gulfstream Model G–159 (G–I) in this notice may be changed in light and aircraft service changes, applicable airplanes, that currently requires of the comments received. to Gulfstream Model G–159 (G–I) repetitive inspections to detect cracks Comments are specifically invited on airplanes, to be recommended for and loose rivets in the forward brackets the overall regulatory, economic, mandatory rulemaking action to ensure for the main landing gear (MLG) uplock environmental, and energy aspects of the continued operational safety of these beam assembly, and replacement of the the proposed rule. All comments airplanes. brackets, if necessary. This action would submitted will be available, both before Explanation of Relevant Service require the installation of redesigned and after the closing date for comments, Information brackets that preclude the potential for in the Rules Docket for examination by cracking and loose rivets; when interested persons. A report The group reviewed and accomplished, this installation would summarizing each FAA-public contact recommended Part II of Grumman constitute terminating action for the concerned with the substance of this Gulfstream Service Change No. 179, currently required inspections. This proposal will be filed in the Rules dated March 15, 1966, for mandatory proposal is prompted by the Docket. regulatory action. (Part I of that service development of an installation that will Commenters wishing the FAA to change describes procedures for positively address the identified unsafe acknowledge receipt of their comments repetitive inspections to detect cracks condition. The actions specified by the submitted in response to this notice and loose rivets in the forward brackets proposed AD are intended to prevent must submit a self-addressed, stamped of the MLG uplock beam assembly. failure of the bracket for the MLG postcard on which the following Those procedures were mandated by AD uplock beam assembly due to cracking statement is made: ‘‘Comments to 66–10–03.) Part II of the service change and loose rivets; such failure could Docket Number 97–NM–17–AD.’’ The describes procedures for replacing the result in the inability to retract the MLG. postcard will be date stamped and uplock beam support brackets (angles) DATES: Comments must be received by returned to the commenter. with brackets of an improved design April 14, 1997. and having P/N 159W10150–71 and Availability of NPRMs ADDRESSES: Submit comments in –72. Installation of these improved triplicate to the Federal Aviation Any person may obtain a copy of this brackets eliminates the need for the Administration (FAA), Transport NPRM by submitting a request to the repetitive inspections. Airplane Directorate, ANM–103, FAA, Transport Airplane Directorate, Explanation of Requirements of Attention: Rules Docket No. 97–NM– ANM–103, Attention: Rules Docket No. Proposed Rule 17–AD, 1601 Lind Avenue, SW., 97–NM–17–AD, 1601 Lind Avenue, SW., Renton, Washington 98055–4056. Since an unsafe condition has been Renton, Washington 98055–4056. identified that is likely to exist or Comments may be inspected at this Discussion develop on other products of this same location between 9:00 a.m. and 3:00 In 1966, the FAA issued AD 66–10– type design, the proposed AD would p.m., Monday through Friday, except 03, amendment 39–222 (31 FR 5660, supersede AD 66–10–03. It would Federal holidays. continue to require repetitive dye The service information referenced in April 12, 1966), applicable to certain penetrant and visual inspections to the proposed rule may be obtained from Gulfstream Model G–159 airplanes, to detect cracks and loose rivets in the Gulfstream Aerospace Corporation, require repetitive dye penetrant and forward brackets of the main landing Technical Operations Department, P.O. visual inspections to detect cracks and gear (MLG) uplock beam assembly, and Box 2206, M/S D–10, Savannah, Georgia loose rivets in the forward brackets of replacement of the brackets, if 31402–2206. This information may be the main landing gear (MLG) uplock necessary. This new action also would examined at the FAA, Transport beam assembly, and replacement of the require that the currently-installed Airplane Directorate, 1601 Lind brackets, if necessary. That action was prompted by reports brackets be replaced with the improved Avenue, SW., Renton, Washington. of cracks and loose rivets found in brackets. Once this replacement is FOR FURTHER INFORMATION CONTACT: brackets having part number (P/N) accomplished, the previously required Christina Marsh, Aerospace Engineer, 159W10150–51/52. These conditions inspections may be terminated. The Airframe and Propulsion Branch, ACE– were attributed to elongated rivet holes. actions would be required to be 117A, FAA, Small Airplane Directorate, The requirements of that AD are accomplished in accordance with the Atlanta Aircraft Certification Office, intended to prevent such cracking and service change described previously. Campus Building, 1701 Columbia loose rivets, which could lead to the FAA’s Determination for the Need to Avenue, Suite 2–160, College Park, failure of the bracket. Failure of the Mandate the Replacement Georgia 30337–2748; telephone (404) bracket of the MLG uplock beam 305–7362; fax (404) 305–7348. assembly could result in the inability to The FAA has determined that long SUPPLEMENTARY INFORMATION: retract the MLG. term continued operational safety will be better assured by design changes to Comments Invited Actions Since Issuance of Previous Rule remove the source of the problem, rather Interested persons are invited to As part of its on-going program to than by repetitive inspections. Long participate in the making of the address issues relevant to the continued term inspections may not be providing proposed rule by submitting such operational safety of the aging transport the degree of safety assurance necessary written data, views, or arguments as fleet, the FAA, along with Gulfstream for the transport airplane fleet. This, they may desire. Communications shall Aerospace Corporation and several U.S. coupled with a better understanding of identify the Rules Docket number and and non-U.S. operators of the affected the human factors associated with be submitted in triplicate to the address airplanes, agreed to undertake the task numerous continual inspections, has led specified above. All communications of identifying and implementing the FAA to consider placing less received on or before the closing date procedures to ensure the continuing emphasis on inspections and more Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10239 emphasis on design improvements. The location provided under the caption (1) Conduct a dye penetrant inspection, in proposed replacement requirement is in ADDRESSES. conjunction with at least a 10X magnifying consonance with these considerations. glass, to detect cracks in the MLG uplock List of Subjects in 14 CFR Part 39 beam forward brackets, P/N’s 159W10150–51 Cost Impact and –52; and Air transportation, Aircraft, Aviation (2) Conduct a visual inspection of the There are approximately 146 safety, Safety. attachments of each bracket to the firewall Gulfstream Model G–159 airplanes of The Proposed Amendment bulkhead and to the main gear uplock beam the affected design in the worldwide for loose rivets caused by elongated rivet fleet. The FAA estimates that 72 Accordingly, pursuant to the holes. airplanes of U.S. registry would be authority delegated to me by the (b) If any crack or loose rivet is found affected by this proposed AD. Administrator, the Federal Aviation during any inspection required by paragraph The inspections that are currently Administration proposes to amend part (a) of this AD, prior to further flight, accomplish either paragraph (b)(1) or (b)(2) of required by AD 66–10–03 take 39 of the Federal Aviation Regulations this AD, in accordance with Grumman approximately 2 work hours per (14 CFR part 39) as follows: Gulfstream Service Change No. 179, dated airplane to accomplish, at an average March 15, 1966: PART 39ÐAIRWORTHINESS labor rate of $60 per work hour. Based Note 2: Grumman Gulfstream Service on these figures, the cost impact of the DIRECTIVES Change No. 179A, dated March 20, 1966, currently required actions on U.S. 1. The authority citation for part 39 contains additional procedural information relevant to the inspection and replacement operators is estimated to be $8,640, or continues to read as follows: $120 per airplane, per inspection. requirements of this AD. The terminating replacement that is Authority: 49 U.S.C. 106(g), 40113, 44701. (1) Replace the bracket with a new or serviceable bracket having P/N 159W10150– proposed in this AD action would take § 39.13 [Amended] approximately 12 work hours per 51 or –52, as applicable. After this 2. Section 39.13 is amended by replacement, continue to inspect in airplane to accomplish, at an average removing amendment 39–222 (31 FR accordance with paragraph (a) of this AD. Or labor rate of $60 per work hour. 5660, April 12, 1966), and by adding a (2) Replace the bracket with a bracket Required parts would cost new airworthiness directive (AD), to having P/N 159W10150–71 or –72, as approximately $425 per airplane. Based read as follows: applicable. This replacement constitutes on these figures, the cost impact of the terminating action for the inspection required proposed requirements of this AD on Gulfstream Aerospace Corporation (formerly by paragraph (a) of this AD for the replaced U.S. operators is estimated to be Grumman): Docket 97–NM–17–AD. bracket. $82,440, or $1,145 per airplane. Supersedes AD 66–10–03, Amendment (c) Within 1,000 hours time-in-service after 39–222. the effective date of this AD, replace the The cost impact figures discussed Applicability: Model G–159 (G–I) brackets for the main landing gear (MLG) above are based on assumptions that no airplanes; serial numbers (S/N) 1 through 12 uplock beam assembly with brackets having operator has yet accomplished any of inclusive, 14 through 83 inclusive, and 114; P/N 159W10150–71 and –72, in accordance the current or proposed requirements of on which main landing gear uplock beam with Part II of Grumman Gulfstream Service this AD action, and that no operator support brackets (angles) having part Change No. 179, dated March 15, 1966. Such would accomplish those actions in the numbers (P/N) 159W10150–71 and –72 are replacement constitutes terminating action future if this AD were not adopted. not installed; certificated in any category. for the inspections required by this AD. Note 1: This AD applies to each airplane (d)(1) An alternative method of compliance Regulatory Impact identified in the preceding applicability or adjustment of the compliance time that The regulations proposed herein provision, regardless of whether it has been provides an acceptable level of safety may be used if approved by the Manager, Atlanta would not have substantial direct effects modified, altered, or repaired in the area subject to the requirements of this AD. For Aircraft Certification Office (ACO), FAA, on the States, on the relationship Small Airplane Directorate. Operators shall between the national government and airplanes that have been modified, altered, or repaired so that the performance of the submit their requests through an appropriate the States, or on the distribution of requirements of this AD is affected, the FAA Principal Maintenance Inspector, who power and responsibilities among the owner/operator must request approval for an may add comments and then send it to the various levels of government. Therefore, alternative method of compliance in Manager, Atlanta ACO. in accordance with Executive Order accordance with paragraph (d)(1) of this AD. (2) Alternative methods of compliance, 12612, it is determined that this The request should include an assessment of approved previously in accordance with AD proposal would not have sufficient the effect of the modification, alteration, or 66–10–03, amendment 39–222, are approved repair on the unsafe condition addressed by as alternative methods of compliance with federalism implications to warrant the this AD. preparation of a Federalism Assessment. this AD; and, if the unsafe condition has not been eliminated, the request should include Note 3: Information concerning the For the reasons discussed above, I specific proposed actions to address it. existence of approved alternative methods of certify that this proposed regulation (1) Compliance: Required as indicated, unless compliance with this AD, if any, may be is not a ‘‘significant regulatory action’’ accomplished previously. obtained from the Atlanta ACO. under Executive Order 12866; (2) is not To prevent failure of the brackets for the (e) Special flight permits may be issued in a ‘‘significant rule’’ under the DOT main landing gear (MLG) uplock beam accordance with sections 21.197 and 21.199 Regulatory Policies and Procedures (44 assembly due to cracking and loose rivets, of the Federal Aviation Regulations (14 CFR FR 11034, February 26, 1979); and (3) if which could result in the inability to retract 21.197 and 21.199) to operate the airplane to promulgated, will not have a significant the MLG, accomplish the following: a location where the requirements of this AD economic impact, positive or negative, (a) Within 50 hours time-in-service after can be accomplished. on a substantial number of small entities April 12, 1966 (the effective date of AD 66– Issued in Renton, Washington, on February under the criteria of the Regulatory 10–03, amendment 39–222), and thereafter at 27, 1997. intervals not to exceed 100 hours time-in- Darrell M. Pederson, Flexibility Act. A copy of the draft service, accomplish the actions specified in Acting Manager, Transport Airplane regulatory evaluation prepared for this paragraphs (a)(1) and (a)(2) of this AD in Directorate, Aircraft Certification Service. action is contained in the Rules Docket. accordance with Grumman Gulfstream A copy of it may be obtained by Service Change No. 179, dated March 15, [FR Doc. 97–5467 Filed 3–5–97; 8:45 am] contacting the Rules Docket at the 1966: BILLING CODE 4910±13±U 10240 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

14 CFR Part 39 Office, c/o American Embassy, B–1000 the known problem is not detected Brussels, Belgium; telephone (32 2) during the inspection; (2) the [Docket No. 86±CE±23±AD] 508.2717; facsimile (32 2) 230.6899; or probability of the problem not being RIN 2120±AA64 Mr. S.M. Nagarajan, Project Officer, detected during the inspection; (3) Small Airplane Directorate, Airplane whether the inspection area is difficult Airworthiness Directives; Pilatus Certification Service, FAA, 1201 to access; and (4) the possibility of Britten-Norman Ltd. (formerly Britten- Walnut, suite 900, Kansas City, Missouri damage to an adjacent structure as a Norman) BN2A MK. 111 Series 64106; telephone (816) 426–6932; result of the problem. Airplanes facsimile (816) 426–2169. These factors have led the FAA to AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: establish an aging commuter-class Administration, DOT. Comments Invited aircraft policy that requires ACTION: Notice of proposed rulemaking Interested persons are invited to incorporating a known design change (NPRM). participate in the making of the when it could replace a critical proposed rule by submitting such repetitive inspection. With this policy SUMMARY: This document proposes to written data, views, or arguments as in mind, the FAA conducted a review revise AD 86–07–02, which currently they may desire. Communications of existing AD’s that apply to Pilatus requires repetitively inspecting the should identify the Rules Docket Britten-Norman BN–2A, BN–2B, BN–2T, junction of the torque link lug and number and be submitted in triplicate to and BN2A MK. 111 series airplanes. upper case of the main landing gear the address specified above. All Assisting the FAA in this review were (MLG) torque link assemblies for cracks communications received on or before (1) Pilatus Britten-Norman; (2) the on Pilatus Britten-Norman Ltd. (Pilatus the closing date for comments, specified Regional Airlines Association (RAA); (3) Britten-Norman) BN–2A, BN–2B, BN– above, will be considered before taking the Civil Aviation Authority of the 2T, and BN2A MK. 111 series airplanes, action on the proposed rule. The and replacing any part found cracked United Kingdom; and (4) several proposals contained in this notice may operators of the affected airplanes. with a like part. The proposed AD be changed in light of the comments From this review, the FAA has would remove from the applicability the received. BN–2A, BN–2B, and BN–2T series Comments are specifically invited on identified AD 86–07–02, airplanes, and would retain the the overall regulatory, economic, Amendment39–5382, as one which falls repetitive inspection and replacement environmental, and energy aspects of under the FAA’s aging aircraft policy. (if necessary) requirements of AD 86– the proposed rule. All comments AD 86–07–02 currently requires 07–02 for the BN2A MK. 111 series submitted will be available, both before repetitively inspecting the junction of airplanes. The proposed AD results from and after the closing date for comments, the torque link lug and upper case of the the Federal Aviation Administration’s in the Rules Docket for examination by main landing gear (MLG) torque link determination that additional AD action interested persons. A report that assemblies for cracks on Pilatus Britten- needs to be taken on the BN–2A, BN– summarizes each FAA-public contact Norman BN–2A, BN–2B, BN–2T, and 2B, and BN–2T series airplanes. This concerned with the substance of this BN2A MK. 111 series airplanes, and additional action will be addressed in a proposal will be filed in the Rules replacing any cracked part. separate AD. The actions specified by Docket. Pilatus Britten-Norman has developed the proposed AD are intended to Commenters wishing the FAA to a modification that, when incorporated, prevent failure of the main landing gear acknowledge receipt of their comments would eliminate the need for the caused by cracks in the torque link area, submitted in response to this notice which could lead to loss of control of must submit a self-addressed, stamped repetitive inspection requirement of AD the airplane during landing operations. postcard on which the following 86–07–02 for the Pilatus Britten-Norman BN–2A, BN–2B, and BN–2T series DATES: Comments must be received on statement is made: ‘‘Comments to airplanes. The requirements of AD 86– or before May 12, 1997. Docket No. 86-CE–23-AD.’’ The postcard 07–02 should still apply for the Pilatus ADDRESSES: Submit comments in will be date stamped and returned to the commenter. Britten-Norman BN2A MK. 111 series triplicate to the Federal Aviation airplanes. Administration (FAA), Central Region, Availability of NPRM’s Office of the Assistant Chief Counsel, Any person may obtain a copy of this Applicable Service Information Attention: Rules Docket No. 86–CE–23– NPRM by submitting a request to the Fairey Hydraulics Limited has issued AD, Room 1558, 601 E. 12th Street, FAA, Central Region, Office of the Kansas City, Missouri 64106. Comments Service Bulletin (SB) 32–7, Issue 3, Assistant Chief Counsel, Attention: dated January 30, 1990, and Fairey may be inspected at this location Rules Docket No. 86-CE–23-AD, Room between 8 a.m. and 4 p.m., Monday Hydraulics Limited SB 32–10, Issue 2, 1558, 601 E. 12th Street, Kansas City, dated November 10, 1992. These SB’s through Friday, holidays excepted. Missouri 64106. Service information that applies to the include procedures for inspecting the proposed AD may be obtained from Discussion junction of the torque link lug and Pilatus Britten-Norman Limited, The FAA has determined that reliance upper case of the MLG torque link Bembridge, Isle of Wight, United on critical repetitive inspections on assemblies on Pilatus Britten-Norman Kingdom PO35 5PR; telephone 44–1983 aging commuter-class airplanes carries BN2A MK. 111 series airplanes. Pilatus 872511; facsimile 44–1983 873246. This an unnecessary safety risk when a Britten-Norman SB BN–2/SB. 173, Issue information also may be examined at design change exists that could 3, dated November 16, 1990, references the Rules Docket at the address above. eliminate or, in certain instances, Fairey Hydraulic Limited SB 32–7; and FOR FURTHER INFORMATION CONTACT: Mr. reduce the number of those critical Pilatus Britten-Norman SB BN–2/ Tom Rodriguez, Program Officer, inspections. In determining what SB.209, Issue 1, datedNovember 30, Brussels Aircraft Certification Division, inspections are critical, the FAA 1992, references Fairey Hydraulic FAA, Europe, Africa, and Middle East considers (1) the safety consequences if Limited SB 32–10. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10241

The FAA’s Determination Regulatory Impact requirements of this AD is affected, the owner/operator must request approval for an The FAA has examined all available The regulations proposed herein alternative method of compliance in information related to this subject would not have substantial direct effects accordance with paragraph (f) of this AD. The matter and has determined that: on the States, on the relationship request should include an assessment of the • AD 86–07–02 should be revised to between the national government and effect of the modification, alteration, or repair remove the BN–2A, BN–2B, and BN–2T the States, or on the distribution of on the unsafe condition addressed by this series airplanes from the applicability of power and responsibilities among the AD; and, if the unsafe condition has not been the AD (the BN2A MK. 111 series various levels of government. Therefore, eliminated, the request should include specific proposed actions to address it. airplanes should still apply); and in accordance with Executive Order • separate AD action should be taken 12612, it is determined that this Compliance: Required prior to further proposal would not have sufficient flight after the effective date of this AD (see for the Pilatus Britten-NormanBN–2A, Note 2) or within 100 hours time-in-service BN–2B, and BN–2T series airplanes to federalism implications to warrant the (TIS) after the last inspection accomplished require a modification to the main preparation of a Federalism Assessment. in accordance with AD 86–07–02, whichever landing gear torque link assembly. For the reasons discussed above, I occurs later, and thereafter at intervals not to certify that this action (1) is not a exceed100 hours TIS. Explanation of the Provisions of the ‘‘significant regulatory action’’ under Note 2: The ‘‘prior to further flight after the Proposed AD Executive Order 12866; (2) is not effective date of this AD’’ compliance time Since an unsafe condition has been a‘‘significant rule’’ under DOT was the original initial compliance time of identified that is likely to exist or Regulatory Policies and Procedures (44 AD 86–07–02, and is being retained to develop in other Pilatus Britten-Norman FR 11034, February 26, 1979); and (3) if provide credit and continuity for already- BN2A MK. 111 series airplanes of the promulgated, will not have a significant accomplished and future inspections. To prevent failure of the main landing gear same type design, the proposed AD economic impact, positive or negative, caused by cracks in the torque link assembly would revise AD 86–07–02 by removing on a substantial number of small entities area, which could lead to loss of control of the BN–2A, BN–2B, and BN–2T series under the criteria of the Regulatory the airplane during landing operations, airplanes from the applicability of that Flexibility Act. A copy of the draft accomplish the following: AD. The requirement of repetitively regulatory evaluation prepared for this (a) Inspect the junction of the torque link inspecting the junction of the torque action has been placed in the Rules lug and upper case for cracks (using a 10- link lug and upper case of the MLG Docket. A copy of it may be obtained by power magnifying glass or by dye penetrant torque link assemblies would be contacting the Rules Docket at the methods) in accordance with Fairey Hydraulics Limited Service Bulletin (SB) 32– retained for the BN2A MK. 111 series location provided under the caption 7, Issue 3, dated January 30, 1990, or Fairey airplanes. The FAA will propose ADDRESSES. Hydraulics SB 32–10, Issue 2, dated separate AD action for the BN–2A and List of Subjects in 14 CFR Part 39 November 10, 1992, as applicable. Pilatus BN–2T series airplanes to require a Britten-Norman SB BN–2/SB. 173, Issue 3, modification that, when incorporated, Air transportation, Aircraft, Aviation dated November 16, 1990, references Fairey would eliminate the repetitive safety, Safety. Hydraulic Limited SB 32–7; and Pilatus Britten-Norman SB BN–2/SB.209, Issue 1, inspection requirement currently The Proposed Amendment required by AD 86–07–02. dated November 30, 1992, references Fairey Hydraulic Limited SB 32–10. Accomplishment of the proposed Accordingly, pursuant to the authority delegated to me by the (b) If cracked parts are found during any inspections and would be accomplished of the inspections required by this AD, prior in accordance with the previously Administrator, the Federal Aviation Administration proposes to amend part to further flight, replace the cracked parts referenced service bulletins. with airworthy parts in accordance with the 39 of the Federal Aviation Regulations applicable maintenance manual. Cost Impact (14 CFR part 39) as follows: (c) If the landing gear is replaced, only The FAA estimates that nine airplanes equal pairs of the same manufacturer are PART 39ÐAIRWORTHINESS in the U.S. registry would be affected by approved as replacement parts. Mixing of DIRECTIVES the proposed AD, that it would take different manufacturer landing gears is not authorized. approximately one workhour per 1. The authority citation for part 39 (d) The intervals between the repetitive airplane to accomplish the proposed continues to read as follows: inspections required by this AD may be initial inspection, and that the average Authority: 49 U.S.C. 106(g), 40113, 44701. adjusted up to 10 percent of the specified labor rate is approximately $60 an hour. interval to allow accomplishing these actions Based on these figures, the total cost § 39.13 [Amended] along with other scheduled maintenance on impact of the proposed AD on U.S. the airplane. 2. Section 39.13 is amended by operators is estimated to be $540 or $60 (e) Special flight permits may be issued in removing Airworthiness Directive (AD) per airplane. This figure only takes into accordance with sections 21.197 and 21.199 86–07–02, Amendment 39–5382, and by of the Federal Aviation Regulations (14 CFR account the cost of the proposed initial adding a new AD to read as follows: 21.197 and 21.199) to operate the airplane to inspection and does not take into a location where the inspection requirements account the cost of the proposed Pilatus Britten-Norman LTD.: Docket No. 86– of this AD can be accomplished. repetitive inspections. The FAA has no CE–23–AD. Revises AD 86–07–02, (f) An alternative method of compliance or way of determining the number of Amendment 39–5382. adjustment of the initial or repetitive repetitive inspections each of the Applicability: Models MK. 111, BN2A MK. compliance times that provides an equivalent owners/operators would incur over the 111–2, and BN2A MK. 111–3 airplanes (all level of safety may be approved by the serial numbers), certificated in any category. life of the affected airplanes. Manager, Brussels Aircraft Certification In addition, the proposed inspections Note 1: This AD applies to each airplane Division, Europe, Africa, Middle East office, identified in the preceding applicability FAA, c/o American Embassy, 1000 Brussels, are currently required on the nine provision, regardless of whether it has been Belgium. The request should be forwarded affected airplanes. The proposed AD modified, altered, or repaired in the area through an appropriate FAA Maintenance would not require any additional subject to the requirements of this AD. For Inspector, who may add comments and then actions over that already required by AD airplanes that have been modified, altered, or send it to the Manager, Brussels Aircraft 86–07–02. repaired so that the performance of the Certification Division. Alternative methods of 10242 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules compliance approved for AD 86–07–02 are essential use under the Clean Air Act. EPA regulations implementing the considered approved as alternative methods FDA is soliciting comments on this provisions of section 610 of the Clean of compliance for this AD. policy to assist the agency in striking an Air Act (42 U.S.C. 7671i) contain a Note 3: Information concerning the appropriate balance that will best general ban on the use of CFC’s in existence of approved alternative methods of protect the public health, both by pressurized dispensers, such as compliance with this AD, if any, may be ensuring the availability of an adequate metered-dose inhalers (MDI’s) (40 CFR obtained from the Brussels Aircraft Certification Division. number of treatment alternatives and by 82.64(c) and 82.66(d)). These EPA (g) All persons affected by this directive curtailing the release of ozone-depleting regulations exempt from the general ban may obtain copies of the documents referred substances. ‘‘medical devices’’ that FDA considers to herein upon request to Fairey Hydraulics DATES: Written comments by May 5, essential and that are listed in Limited, Claverham, Bristol, England; or 1997. § 2.125(e). Section 601(8) of the Clean Pilatus Britten-Norman Limited, Bembridge, Air Act (42 U.S.C. 7671(8)) defines ADDRESSES: Isle of Wight, United Kingdom PO35 5PR, as Submit written comments ‘‘medical device’’ as any device (as applicable; or may examine these documents to the Dockets Management Branch defined in the Federal Food, Drug, and at the FAA, Central Region, Office of the (HFA–305), Food and Drug Cosmetic Act), diagnostic product, drug Assistant Chief Counsel, Room 1558, 601 E. Administration, 12420 Parklawn Dr., (as defined in the Federal Food, Drug, 12th Street, Kansas City, Missouri 64106. rm. 1–23, Rockville, MD 20857. (h) This amendment revises AD 86–07–02, and Cosmetic Act), and drug delivery Amendment 39–5382. FOR FURTHER INFORMATION CONTACT: system, if such device, product, drug, or Wayne H. Mitchell, Center for Drug Issued in Kansas City, Missouri, on drug delivery system uses a class I or February 25, 1997. Evaluation and Research (HFD–7), Food class II ozone-depleting substance for and Drug Administration, 7500 Standish Michael Gallagher, which no safe and effective alternative Pl., Rockville, MD 20855, 301–594– has been developed (and, where Manager, Small Airplane Directorate, Aircraft 2041. Certification Service. necessary, approved by the Commissioner of Food and Drugs (the [FR Doc. 97–5491 Filed 3–5–97; 8:45 am] SUPPLEMENTARY INFORMATION: Commissioner)); and if such device, BILLING CODE 4910±13±U I. Background product, drug, or drug delivery system Under § 2.125 (21 CFR 2.125), any has, after notice and opportunity for food, drug, device, or cosmetic in a self- public comment, been approved and DEPARTMENT OF HEALTH AND pressurized container that contains a determined to be essential by the HUMAN SERVICES CFC propellant for a nonessential use is Commissioner in consultation with the Food and Drug Administration adulterated, or misbranded, or both, Administrator of EPA (the under the Federal Food, Drug, and Administrator). Class I substances 21 CFR Part 2 Cosmetic Act. This prohibition is based include CFC’s, halons, carbon on scientific research indicating that tetrachloride, methyl chloroform, [Docket No. 97N±0023] CFC’s reduce the amount of ozone in the methyl bromide, and other chemicals RIN 0910±AA99 stratosphere and thereby increase the not relevant to this document (see 40 amount of ultraviolet radiation reaching CFR part 82, appendix A to subpart A). Chlorofluorocarbon Propellants in the earth. An increase in ultraviolet Class II substances include Self-Pressurized Containers; radiation will increase the incidence of hydrochlorofluorocarbons (HCFC’s) (see Determinations That Uses Are No skin cancer, and produce other adverse 40 CFR part 82, appendix B to subpart Longer Essential; Request for effects of unknown magnitude on A). Comments humans, animals, and plants. Section Production of ozone-depleting AGENCY: Food and Drug Administration, 2.125(d) exempts from the adulteration substances is being phased out HHS. and misbranding provisions of worldwide under the terms of the § 2.125(c) certain products containing ACTION: Advance notice of proposed Montreal Protocol on Substances that rulemaking. CFC propellants that FDA determines Deplete the Ozone Layer (Montreal provide unique health benefits that Protocol), Sept. 16, 1987, S. Treaty Doc. SUMMARY: The Food and Drug would not be available without the use No. 10, 100th Cong., 1st sess., 26 I.L.M. Administration (FDA) is seeking public of a CFC. 1541 (1987). In accordance with the comment on the policy it is considering These products are referred to in the provisions of the Montreal Protocol, for adoption on making and regulation as essential uses of CFC’s and under authority of Title VI of the Clean implementing determinations that uses are listed in § 2.125(e). Under § 2.125(f), Air Act (section 601 et seq.), of chlorofluorocarbons (CFC’s) currently any person may petition FDA to request manufacture of CFC’s in the United designated essential will no longer be additions to the list of uses considered States was generally banned as of deemed essential under the Clean Air essential. To demonstrate that the use of January 1, 1996. To receive permission Act due to the availability of safe and a CFC is essential, the petition must be to manufacture CFC’s in the United effective medical product technology supported by an adequate showing that: States after the phaseout date, that does not use CFC’s. Essential-use (1) There are no technically feasible manufacturers must obtain an products are exempt from FDA’s ban on alternatives to the use of a CFC in the exemption from the phaseout the use of CFC propellants in FDA- product; (2) the product provides a requirements from the Parties to the regulated products and the substantial health, environmental, or Montreal Protocol. Procedures for Environmental Protection Agency’s other public benefit that would not be securing an essential-use exemption (EPA’s) ban on the use of CFC’s in obtainable without the use of the CFC; under the Montreal Protocol are pressurized dispensers. The agency is and (3) the use does not involve a described in the most recent request by taking this action because it is significant release of CFC’s into the EPA for applications for exemptions (60 responsible for determining which atmosphere or, if it does, the release is FR 54349, October 23, 1995). Firms that products containing CFC’s or other warranted by the consequence if the use wish to use CFC’s manufactured after ozone-depleting substances are an were not permitted. the phaseout date in medical devices (as Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10243 defined in section 601(8) of the Clean availability, safety, and efficacy of drugs for nasal inhalation can no longer Air Act) covered under section 610 of alternatives, in full consideration of be considered to be essential and FDA the Clean Air Act must receive differences in patients’ medical has tentatively determined to remove exemptions for essential uses under the circumstances, physiological sensitivity, the use from § 2.125(e). Montreal Protocol. and acceptability of use, among others. Faced with the statutorily mandated 2. Drug Products That Are No Longer FDA is specifically soliciting comments Being Marketed phaseout of the production of CFC’s, on how it should develop information to drug manufacturers are developing or assist in striking this balance and how Several of the essential uses listed in have developed alternatives to MDI’s it should further balance the need for § 2.125(e) exempt only a single and other self-pressurized drug dosage timely action. FDA also believes that approved drug product and, in a few forms that do not contain ozone- there is adequate time to publish an cases, that drug product is no longer depleting substances. Examples of these ANPRM and respond to comments but being marketed (or is no longer being alternative dosage forms are MDI’s that will endeavor to complete this marketed in a formulation containing use such non-ozone-depleting rulemaking process in a timely fashion. CFC’s). FDA has tentatively determined substances as propellants and dry- Because the first potential technically that an essential use for which no drug powder inhalers (DPI’s). FDA has feasible alternatives are just now coming product is currently being marketed recently approved the first CFC-free on the market, it will take a significant should no longer be considered to be MDI, 3M Pharmaceuticals Inc.’s amount of time for manufacturers to essential. The absence of a demand for  albuterol sulfate product, Proventil collect and present the postmarketing the product sufficient for even one HFA; although a determination has not safety and patient acceptance data that company to market it is highly yet been made on whether this product the agency will need to determine if the indicative that the use is not essential. is a technically feasible alternative to products are, in fact, technically feasible Therefore, FDA has tentatively the use of CFC’s, this approval gives the alternatives (see section II.B. of this determined to remove the following subject matter of this advance notice of document). uses from § 2.125(e): Polymyxin B proposed rulemaking (ANPRM) a sulfate-bacitracin zinc-neomycin sulfate particular timeliness. The current or II. Proposed Policy soluble antibiotic powder without future availability of ‘‘technically FDA has tentatively determined that excipients, for topical use on humans; feasible alternatives to the use of a certain uses of CFC’s, listed in § 2.125(e) and contraceptive vaginal foams for [CFC]’’ may mean that the existing as essential, can no longer be considered human use. listing of a use in § 2.125(e) would no to be essential. FDA is considering B. Criteria for Determination That a Use longer reflect current conditions. It is proposing to remove these uses from the Is No Longer Essential with this situation in mind that FDA is list of essential uses in a rulemaking to publishing this ANPRM regarding be initiated soon. Uses no longer 1. Therapeutic Classes agency determinations that certain uses considered essential are discussed in In evaluating petitions submitted of ozone-depleting substances are no section II.A. of this document. FDA also under § 2.125(f) requesting that a new longer essential. expects that certain uses still considered use be listed as essential, FDA has not FDA has determined that it would be to be essential will cease to be required a showing that technically most productive to set out the following considered essential as new technology feasible non-CFC alternatives to a tentative policy on the elimination of develops. Section II.B. of this document product contain the same active essential uses in an ANPRM. The describes the policy that FDA has ingredient or active moiety1 as the drug agency believes that providing an tentatively determined will be used in product that would be the subject of the opportunity for the fullest public making determinations that these uses proposed essential use. Thus, if other participation at the earliest possible of CFC’s are no longer essential. FDA drug products, containing other active stage in the agency decisionmaking has worked closely with EPA in moieties, are available for treatment of process in this matter is appropriate to developing the following policy and this the same condition, they may be assist FDA in striking an appropriate ANPRM reflects those discussions. This considered technically feasible balance that will best protect the public policy will also be the subject of a alternatives to the proposed essential- health, both by ensuring the availability notice of proposed rulemaking to use product. Many of the drug products of an adequate number of treatment incorporate the policy into FDA marketed under § 2.125 are alternatives and by curtailing the release regulations. pharmacologically closely related, are of ozone-depleting substances. In indicated for the treatment of the same striking this balance, FDA intends to A. Listed Uses That Are No Longer conditions, and may be considered to be assess a number of factors and is Considered Essential treatment alternatives. In evaluating interested in public comment on them. 1. Metered-Dose Steroid Human Drugs whether a use remains essential, FDA In establishing its policy on the for Nasal Inhalation believes that it is appropriate to evaluate elimination of essential uses, FDA will these treatment alternatives together as assess the potential beneficial effects of Steroid human drugs for nasal reducing CFC emissions from drug inhalation are currently available using a therapeutic class. In this regard, FDA products broadly, based on the amount metering atomizing pumps rather than has tentatively determined that metered- of CFC emissions that would be nasal MDI’s. The availability of such dose corticosteroid human drugs for oral avoided, the stratospheric ozone products as Beconase AQ and inhalation and metered-dose short- depletion that would be averted, and the Vancenase AQ (beclomethasone 1 resulting decline in incidence of UV-B- dipropionate monohydrate), Nasarel 21 CFR 314.108(a) defines active moiety as   meaning ‘‘the molecule or ion, excluding those related adverse human health effects, and Nasalide (flunisolide), Flonase appended portions of the molecule that cause the including human cancers and cataracts. (fluticasone propionate), and Nasacort drug to be an ester, salt (including a salt with FDA will also assess the beneficial AQ (triamcinolone acetonide), and the hydrogen or coordination bonds), or other noncovalent derivative (such as a complex, chelate, public health effects of continued widespread patient acceptance of these or clathrate) of the molecule, responsible for the availability of CFC-containing drug products, indicate to FDA that using physiological or pharmacological action of the drug products broadly, based on the CFC’s in metered-dose steroid human substance.’’ 10244 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules acting adrenergic bronchodilator human essential use would be considered class would only be eliminated when drugs for oral inhalation are appropriate under the criteria for an individual the essential-use status for the therapeutic classes for essential-use active moiety discussed in section therapeutic class as a whole is determinations. The determination of II.B.2. of this document. eliminated. FDA recognizes that this whether drug products that are not The use of CFC’s in any drug product approach may allow the essential-use members of either therapeutic class that is a member of a therapeutic class status of an individual member of a represent essential uses of CFC’s will be described above would no longer be therapeutic class to be retained despite made under the criteria set out in considered essential if, for each the marketing of one or more technically section II.B.2. of this document. therapeutic class: feasible alternatives containing the same FDA has tentatively determined that 1. Three distinct alternative products, active moiety, pending elimination of all drugs currently marketed under representing at least two different active the essential-use status for the § 2.125(e)(2) should be considered to be moieties, are being marketed, with the therapeutic class as a whole. In addition members of the therapeutic class same route of delivery, for the same to the policy FDA is considering for ‘‘metered-dose corticosteroid2 human indication, and with approximately the elimination of the essential-use status of drugs for oral inhalation.’’ These drugs same level of convenience of use as the the therapeutic classes described above, contain the following active moieties: products containing CFC’s. At least two FDA is considering a policy for • beclomethasone of the three alternative products must be elimination of the essential-use status of • dexamethasone MDI’s. individual members of a therapeutic • flunisolide 2. Adequate supplies and production class in advance of elimination of the • fluticasone capacity exist for the alternative essential-use status for the therapeutic • triamcinolone products to meet the needs of the class as a whole. Under this proposed FDA has tentatively determined that population indicated for the therapeutic policy, the essential-use status of an drugs containing the following active class. active moiety within a therapeutic class moieties currently marketed under 3. At least 1 year of postmarketing use would be eliminated when one § 2.125(e)(3) should be considered to be data for each product are available. alternative product that contains the members of the therapeutic class There should be persuasive evidence of same active moiety is being marketed. ‘‘metered-dose short-acting adrenergic patient acceptance in the United States All other elements of the policy bronchodilator human drugs for oral of each of the alternative products. regarding therapeutic classes would inhalation’’: 4. There is no persuasive evidence to apply, including: The alternative • albuterol rebut a presumption that all significant product is delivered by the same route • bitolterol patient subpopulations are served by the of administration, for the same • isoetharine alternative products. indication, and with approximately the FDA believes that making essential- • isoproterenol same level of convenience of use; there • metaproterenol use determinations for an entire class of are adequate supplies and production • pirbuterol closely related drug products will capacity; at least 1 year of postmarketing • terbutaline expedite the elimination of drug use data are available; and there is no Adrenergic bronchodilator drug products that release ozone-depleting persuasive evidence to rebut a products containing the active moiety substances. FDA recognizes that there presumption that all significant patient salmeterol are not included in the may be limited incentives to develop subpopulations using that active moiety therapeutic class because of the longer alternative products containing every are served by the alternative product. duration of action and different active moiety currently marketed under Therapeutic classes would still be indication of usage of salmeterol as essential-use exemptions. By evaluated under the proposed compared to metered-dose short-acting eliminating the essential use by therapeutic class policy, and alternative adrenergic bronchodilator human drugs therapeutic class, FDA will ensure that products used in the evaluation of the for oral inhalation. Adrenergic these drugs do not remain on the market essential-use status of a member of the bronchodilator drug products longer than necessary. therapeutic class under the proposed FDA also hopes that the knowledge containing the active moiety additional policy would also be used in that the essential use covering a given epinephrine are also not included in the the evaluation of the class as a whole. product may be eliminated, even though class because epinephrine is the only FDA requests public comment on these no alternative product exists containing active moiety used in drug products approaches, and other possible the same active moiety as that product, sold over-the-counter (OTC). These OTC approaches, for the elimination of the may provide added incentive for the drug products are available to patients essential-use status of individual manufacturer of that product to develop who may not have access to prescription members of the therapeutic classes and an alternative product containing the drugs. Therefore, FDA has tentatively the therapeutic classes as a whole. same active moiety. In addition, the determined that prescription drug agency believes that requiring multiple 2. Individual Active Moieties products should not be considered as alternative drug products containing In examining the essential-use status alternatives to drug products containing multiple active moieties should ensure of drug products when FDA has not epinephrine. The determination of that all significant patient populations already made a tentative determination whether a drug product containing have safe and effective alternatives to that a currently listed essential use can salmeterol or epinephrine constitutes an CFC-containing drug products. no longer be considered to be essential, A discussion of the application of or when the drug is not a member of one 2 The active ingredients in all drug products currently marketed under the essential use for these criteria can be found in section of the therapeutic classes described in metered-dose steroid human drugs for oral II.B.3 of this document. section II.B.1. of this document, FDA inhalation are members of the subclass of Under the proposed policy being will look at other drug products substances known as corticosteroids. FDA has considered for elimination of the containing the same active moiety as tentatively determined that it would be more accurate to use the more specific term essential-use status of the therapeutic possible technically feasible corticosteroids rather than the more general term classes, the essential-use status for alternatives. The use of CFC’s in any steroids to describe the therapeutic class. individual members of a therapeutic drug product that is not a member of a Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10245 therapeutic class described in section As discussed in section II.B.1. of this multiple-dose DPI’s4 and MDI’s that do II.B.1. of this document would no longer document, the essential-use status of not contain CFC’s. Continuing changes be considered essential if: drugs containing the active moieties in technology may give FDA reason to 1. One alternative product containing epinephrine and salmeterol will also be revisit this tentative determination. the same active moiety is being evaluated under the ‘‘individual active In evaluating whether adequate marketed, delivered by the same route moieties’’ criteria. supplies and production capacity exist of administration, for the same for the alternative product or products FDA requests public comment on the indication, and with approximately the to meet the needs of the patient appropriateness of potentially same level of convenience of use population indicated for drug products eliminating such essential uses and compared to the product containing covered by an essential use, FDA’s CFC’s. criteria outlined here. analyses will be flexible, but with one 2. Adequate supplies and production 3. Discussion of Criteria overarching principle: To ensure that capacity exist to meet the needs of the there are no significant shortages of drug population indicated for the alternative In arriving at the tentative criteria for product that could harm the public drug product containing the active evaluating the essential-use status of the health of the United States. Factors such moiety. two therapeutic classes, FDA has kept in as multiple production sites, to secure a 3. At least 1 year of postmarketing use mind that the MDI is the most widely steady supply if there is an interruption data for the product are available. There accepted delivery system for at one site, would be considered should be persuasive evidence of administering drugs by oral inhalation favorably in this regard. patient acceptance in the United States for the treatment of asthma and chronic In evaluating postmarketing use data of the alternative product. obstructive pulmonary disease. and evidence of patient acceptance 4. There is no persuasive evidence to Physicians and patients value an MDI’s under the third criterion, FDA rebut a presumption that all significant compact size and ease of use. Because anticipates that it may be useful for patient subpopulations are served by the these factors are important and help sponsors of alternative products to alternative product. ensure that patients receive appropriate conduct large postmarketing studies, A discussion of the application of medical treatment, FDA would require preferably in the U.S. clinical practice these criteria can be found in section that at least two of the alternative setting, directly comparing their product II.B.3. of this document. products be available as an MDI. FDA is which does not contain CFC’s to the Drug products marketed under the also aware that not all patients may CFC-containing product for which it following current essential uses would tolerate a given drug product. would be considered an alternative. It generally be evaluated under the above Accordingly, FDA has reached the may also be possible for several ‘‘individual active moieties’’ criteria: • tentative conclusion that there must be sponsors to jointly commission a large Metered-dose ergotamine tartrate drug postmarketing clinical study of their products administered by oral products representing at least two different active moieties before FDA common products. In addition to the inhalation for use in humans. formal studies described above, • Intrarectal hydrocortisone acetate for will consider that there are technically feasible alternatives to the therapeutic manufacturers of alternative products, human use. or other persons requesting the • Anesthetic drugs for topical use on class. FDA is proposing that there be elimination of an essential use, may accessible mucous membranes of three distinct drug products. FDA wish to submit to FDA a review of humans where a cannula is used for wishes to ensure that there are postmarketing surveillance data from application. substantial differences among the • Metered-dose nitroglycerin human alternative products in order to give FDA’s MEDWATCH program, the drugs administered to the oral cavity. patients a wide variety of therapeutic spontaneous reporting systems of other • Metered-dose cromolyn sodium options. Therefore, a drug product and countries, and all other available human drugs administered by oral a second generic drug product that postmarketing data after a potential inhalation. refers to the first drug product to gain alternative product has been marketed • Metered-dose ipratropium bromide for approval, under section 505(j) of the in the United States for a period of 1 oral inhalation. Federal Food, Drug, and Cosmetic Act year. FDA has tentatively concluded • Metered-dose atropine sulfate aerosol (21 U.S.C. 355(j)), would not generally that foreign data would not be human drugs administered by oral be considered to be two distinct drug considered acceptable as the sole inhalation.3 products for purposes of evaluating the evidence of patient acceptance, but • Metered-dose nedocromil sodium essential-use status of the drug. these data will be considered in human drugs administered by oral addition to U.S. postmarketing use data For most of the essential uses that inhalation. in cases where U.S. formulations and • Metered-dose ipratropium bromide would be evaluated under the foreign formulations have been shown and albuterol sulfate, in combination, ‘‘individual active moieties’’ criteria, to be the same or substantially similar. administered by oral inhalation for there is only one product being The term ‘‘patient acceptance’’ here human use. marketed under each essential use. • Sterile aerosol talc administered Therefore, requiring the availability of 4 Single-dose DPI’s that are currently marketed in intrapleurally by thoracoscopy for more than one alternative would appear the United States would not be considered to be inadvisable. technically feasible alternatives to MDI’s using human use. CFC’s. The agency has tentatively determined that Because of their larger size and these single-dose DPI’s do not approximate the 3 The evaluation of the essential use status of drug relative lack of convenience of use, FDA convenience of MDI’s because patients must carry products containing atropine sulfate may be an does not consider currently available both the single-dose DPI device and a supply of the exception to the application of the criteria set out drug. The patient must also load the device prior in section II.B. of this document. Drug products nebulizers to be technically feasible to each use. The comparative inconvenience of containing atropine sulfate were never alternatives to MDI’s. Currently single-dose DPI’s does not warrant their being commercially marketed under § 2.125, but were available delivery systems that FDA considered technically feasible alternatives. The manufactured for the U.S. Army for use by armed considers to be technically feasible agency also believes that these single-dose DPI’s services personnel. The unique status of this use have not shown adequate levels of patient may require that other criteria be applied to it. alternatives to MDI’s using CFC’s are acceptance. 10246 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules assumes that the alternative products manufacturers of drug products covered this separate rulemaking proceeding, have adequate safety, tolerability, by those uses have not demonstrated and is only mentioning the matter here effectiveness, and compliance. Because due diligence in developing alternative to provide a more complete picture of information regarding patient products. FDA’s current plans regarding the acceptance is not routinely captured by regulation of CFC-containing drug D. Analysis of Impacts postmarketing surveillance, such products. FDA does not intend to assessments should be incorporated into FDA is required to examine the respond to any comments regarding this the proposed formal clinical studies. impacts of its proposed rules under issue at this time; those persons wishing In evaluating the last criterion, that Executive Order 12866 and the to comment on this issue should wait there is no persuasive evidence to rebut Regulatory Flexibility Act (5 U.S.C. until the proposed rule is published. a presumption that all significant 601–612). Executive Order 12866 directs Consistent with the phaseout patient subpopulations are served by the agencies to assess all costs and benefits provisions of the Clean Air Act, the alternative product, FDA believes that of available regulatory alternatives and, proposed rule regarding the addition of there should be a strong presumption when regulation is necessary, to select new essential uses will provide new and that, if the first three criteria are met, regulatory approaches that maximize substantially more stringent criteria for then all relevant subpopulations will be net benefits (including potential determining that a use is essential. adequately served by alternative economic, environmental, public health Specific criteria will be proposed for products. If FDA is not already in and safety, and other advantages; both investigational drugs and possession of evidence indicating the distributive impacts; and equity). The commercially marketed drugs. presence of a subpopulation served only Regulatory Flexibility Act requires FDA currently intends that this by a product containing CFC’s, then the agencies to analyze regulatory options if proposed rule will provide a burden of producing compelling the proposed rule is expected to have a restructuring of § 2.125(e) to eliminate scientific evidence that there is a significant impact on a substantial essential uses that cover an entire class subpopulation served only by a product number of small entities. FDA is of drugs, such as current § 2.125(e)(3) containing CFC’s would be placed on soliciting information and data to help ‘‘metered-dose adrenergic anyone opposing the determination that it examine the impacts that a proposed bronchodilator human drugs for oral a use is no longer essential. rule based on this advance notice would inhalation.’’ In their place, FDA will propose to list the use of every active C. Implementation have. In order to help the agency prepare these analysis, FDA requests moiety currently marketed under the FDA currently intends to publish a comments on the following impact current class essential use. This will notice of proposed rulemaking after the questions: mean that an individual wishing to comment period for this ANPRM closes. 1. Are the incentives discussed in the market, for example, an adrenergic That proposed rule would eliminate ANPRM adequate to spur the needed bronchodilator where the active moiety essential uses for steroid human drugs market innovation? Are there alternative is not listed will need to petition FDA for nasal inhalation and for drugs that means of introducing appropriate to amend § 2.125(e) to add the use of the are no longer marketed. The proposed market incentives? active moiety. rule would also codify the criteria for 2. Assuming that an alternative The proposed rule would also elimination of essential uses discussed product is approved for marketing, what eliminate out-of-date transitional in section II.B. of this document. FDA is the estimated cost of obtaining provisions, and make other similar intends to use the preamble of the postmarketing data supporting the new nonsubstantive housekeeping changes. proposed rule to respond to comments product as a technologically feasible The agency has determined to go on this ANPRM. alternative? How much time would be directly to a proposed rule on these As the criteria for eliminating necessary? What other costs should the provisions of the agency’s policy, rather essential uses are met, FDA will propose agency consider? than requesting comment on them in elimination of essential uses for the 3. How much would it cost to obtain this or another ANPRM, in order to appropriate therapeutic classes or the data including the postmarketing accelerate consideration of the new individual active moieties. FDA intends study discussed in the ANPRM? How more stringent criteria for determining that such proposals will be published much would it cost to obtain the data when new uses are essential. FDA and finalized in an expeditious manner. excluding such a postmarketing study? believes that as the agency will soon be FDA is aware that the proposed policy What are the components of this eliminating essential uses, it would be contained in this ANPRM is, to a certain estimate (e.g., person-hours, contract a waste of scarce agency resources, as degree, predicated on the assumption dollars, etc.)? well as inconsistent with the general that drug manufacturers are aggressively 4. How much time should be allowed policy favoring the phase out of ozone- developing alternatives to products for phasing out a CFC-containing depleting substances, to create new containing CFC’s. If this assumption is product no longer considered essential? essential uses unless an extraordinary less than fully met, FDA recognizes that 5. Are there other alternative policies showing of public benefit can be made. it may have to take an even more active that the agency should consider that Interested persons may, on or before role in encouraging the development of would achieve the stated goals and be May 5, 1997, submit to the Dockets technically feasible alternatives. less burdensome to patients that use Management Branch (address above) Furthermore, FDA contemplates these products and/or to the industry written comments regarding this reexamining the effectiveness of the that provides the products? ANPRM. Two copies of any comments policy set out in this ANPRM 1 to 3 are to be submitted, except that years after the publication of the first III. Other Rulemaking Proceedings individuals may submit one copy. final rule implementing the policy set Regarding CFC’s Comments are to be identified with the out in this ANPRM. If this In the very near future, FDA intends docket number found in brackets in the reexamination reveals that alternatives to propose a rule regarding criteria to be heading of this document. Received to CFC’s are not being aggressively applied in agency determinations to add comments may be seen in the office developed, FDA will consider new essential uses to § 2.125(e). The above between 9 a.m. and 4 p.m., eliminating essential uses where agency is not soliciting comments on Monday through Friday. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10247

Dated: February 28, 1997. hold three series of meetings during DATES: Comments must be submitted on William B. Schultz, March and April 1997 in Colorado or before April 4, 1997. The committee Deputy Commissioner for Policy Springs, Colorado to discuss the meeting will be on March 26, 1997. [FR Doc. 97–5495 Filed 3–5–97; 8:45 am] regulatory implementation of ADDRESSES: MMS will hold a meeting of BILLING CODE 4160±01±F NAHASDA. The meetings will be held the Indian Gas Valuation Negotiated on the following dates: rulemaking committee on March 26, 1. March 20, 21, 22, 24, 25, 26, and 1997, in the conference room at: Golden 27, 1997. Hill Office Complex, 12600 West Colfax DEPARTMENT OF HOUSING AND 2. April 8, 9, 10, and 11, 1997. URBAN DEVELOPMENT Avenue, Suite B200, Golden, Colorado. 3. April 24, 25, 26, 28, 29, 30, and Written comments, suggestions, or May 1, 1997. 24 CFR Chapter I objections regarding this proposed The agenda planned for the meetings amendment should be sent to the [Docket No. FR±4170±N±07] includes: (1) the development of following addresses. For comments sent regulatory language by workgroups; (2) via the U.S. Postal Service use: Minerals Native American Housing Assistance discussion and approval of the draft Management Service, Royalty and Self-Determination Negotiated regulatory language by the full Management Program, Rules and Rulemaking Committee; Meetings Committee; and (3) other agenda items Publications Staff, P.O. Box 25165, MS which may be agreed upon by the 3101, Denver, Colorado 80225–0165. AGENCY: Office of the Assistant Committee. For comments via courier or overnight Secretary for Public and Indian The meetings will be open to the delivery service use: Minerals Housing, HUD. public without advance registration. Management Service, Royalty ACTION: Notice of Negotiated Public attendance may be limited to the Management Program, Rules and Rulemaking Committee Meetings. space available. Members of the public Publications Staff, MS 3101, Building may make statements during the 85, Denver Federal Center, Room A– SUMMARY: This notice announces three meeting, to the extent time permits, and 212, Denver, Colorado 80225–0165. series of negotiated rulemaking file written statements with the FOR FURTHER INFORMATION CONTACT: meetings sponsored by HUD to develop Committee for its consideration. Written the regulations necessary to carry out David S. Guzy, Chief, Rules and statements should be submitted to the Publications Staff, phone (303) 231– the Native American Housing address listed in the FOR FURTHER Assistance and Self-Determination Act 3432, FAX (303) 231–3194, e-Mail INFORMATION section of this notice. [email protected]. of 1996 (NAHASDA) (Pub. L. 104–330, Summaries of Committee meetings will FOR FURTHER INFORMATION CONTACT: approved October 26, 1996). be available for public inspection and David S. Guzy, Chief, Rules and DATES: The meetings will be held on: copying at the same address. Procedures Staff, at (303) 231–3432. 1. March 20, 21, 22, 24, 25, 26, and The location and dates of any future 27, 1997. meetings will be published in the I. SUPPLEMENTARY INFORMATION: 2. April 8, 9, 10, and 11, 1997. Federal Register. HUD will make every 3. April 24, 25, 26, 28, 29, 30, and effort to publish such notice at least 15 Background May 1, 1997. calendar days prior to each meeting. On September 23, 1996, MMS The meetings will begin at Dated: March 3, 1997. published a notice of proposed approximately 9:00 am and end at Kevin Emanuel Marchman, rulemaking in the Federal Register (61 FR 49894) to amend the valuation approximately 5:00 pm on each day, Acting Assistant Secretary for Public and local time. Indian Housing. regulations for gas production from Indian leases. The framework for the ADDRESS: The meetings will be held at [FR Doc. 97–5564 Filed 3–5–97; 8:45 am] proposed rule was the product of an the Cheyenne Mountain Conference BILLING CODE 4210±33±P Resort, 325 Broadmoor Valley Road, Indian Gas Valuation Negotiated Colorado Springs, CO 8096; telephone Rulemaking Committee. The proposed rulemaking provided for a 60-day (719) 576–4600 or 1–800–588–6532; fax DEPARTMENT OF THE INTERIOR (719) 576–4711 (With the exception of comment period, which ended the ‘‘800’’ telephone number, these are Minerals Management Service November 22, 1996, and was extended not toll-free numbers). to December 3, 1996, by a Federal Register Notice (61 FR 59849, November FOR FURTHER INFORMATION CONTACT: 30 CFR Parts 202 and 206 25, 1996). during the public comment Dominic Nessi, Deputy Assistant RIN 1010±AB57 period MMS received 13 written Secretary for Native American comments: 7 responses from industry, 4 Programs, Department of Housing and Amendments to Gas Valuation from industry trade groups or Urban Development, 1999 Broadway, Regulations for Indian Leases associations, 1 from an Indian tribe, and Suite 3390, Denver, CO; telephone (303) AGENCY: Minerals Management Service, 1 from an Indian agency. A public 675–1600 (voice) or 1–800–877–8339 Interior. hearing was held in Oklahoma City, (TTY for speech or hearing impaired ACTION: Oklahoma, on October 23, 1996. individuals) (With the exception of the Notice of meeting and reopening ‘‘800’’ number, these are not toll-free of public comment period. II. Comments on Proposed Rule numbers). SUMMARY: The Minerals Management MMS proposed to revise the current SUPPLEMENTARY INFORMATION: The Service (MMS) is reopening the public regulations regarding the valuation of Secretary of HUD has established the comment period for a proposed rule gas production from Indian leases to Native American Housing Assistance & published in the Federal Register on accomplish the following: Self-Determination Negotiated September 23, 1996, 61 FR 49894, • To ensure that Indian mineral Rulemaking Committee (Committee) to amending its regulations governing the lessors receive the maximum revenues negotiate and develop a proposed rule valuation for royalty purposes of natural from mineral resources on their land implementing NAHASDA. HUD will gas produced from Indian leases. consistent with the Secretary of the 10248 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

Interior’s (Secretary) trust responsibility settlement proceeds per MMBTU when announced that it would soon schedule and lease terms; and, added to the 80 percent of the safety net two public hearings to allow interested • To improve the regulatory price exceeds the formula value for the parties the opportunity to comment on framework so that information is month including any increase for dual issues addressed in the NPRM. available which would permit lessees to accounting. This computation would be comply with the regulatory made after the safety net prices were DATES: Public Hearings: The date of the requirements at the time that royalties reported to the MMS by the lessee. first public hearing is Friday, April 4 at were due. Specifically, under this concept, MMS 8:30 a.m. in Chicago, Illinois, and the All commenters endorsed the concept would revise § 206.172(b)(2)(ii) to read date of the second public hearing is of revising the existing regulations to as follows: Monday, April 7 at 8:30 a.m. in New provide simplicity and certainty, This paragraph applies to gas not sold York City, New York. Any person decrease administrative costs, and under a dedicated contract and that was wishing to participate in a public decrease litigation. Industry generally subject to a previous contract which was hearing should notify the Docket Clerk supports the use of independent part of a gas contract settlement. If the by telephone (202–632–3198) or by mail published index prices for valuing gas contract settlement proceeds per at the address provided below at least produced from Indian leases. Industry MMBTU added to the 80 percent of the five working days prior to the date of also supports the concept of an safety net prices calculated at the hearing and submit three copies of alternative ‘‘percentage increase’’ to § 206.172(e)(4)(i) exceeds the index- the oral statement that he or she intends satisfy the dual accounting requirement based value that applies to the gas under to make at the hearing. The notification contained in most Indian leases to the this section (including any adjustments should identify the hearing in which the extent the use of this alternative required under § 206.176), then the person wishes to participate, the party methodology is voluntarily chosen by value of the gas is the higher of the the person represents, and the particular the lessee. Industry does not support the value determined under this section subject(s) the person plans to address. language in the proposed rule and (including any adjustments required The notification should also provide the objects to: under § 206.176) or § 206.174. Docket Clerk with the participant’s • the safety net concept for MMS specifically requests comments mailing address. FRA reserves the right nondedicated sales, on these revised paragraphs. You do not to limit participation in the hearings of • the separate dual accounting need to comment on the rest of the rule. requirement on natural gas liquids, and MMS will respond to all comments in persons who fail to provide such • the gross proceeds requirement if a final rule. notification. gas production was subject to a previous February 28, 1997. ADDRESSES: (1) Docket Clerk: Written contract which was the subject of a gas Lucy R. Querques, notification should identify the docket contract settlement. The Council of number and must be submitted in Petroleum Accountants Societies Associate Director for Royalty Management. [FR Doc. 97–5493 Filed 3–5–97; 8:45 am] triplicate to the Docket Clerk, Office of (COPAS) states ‘‘The COPAS Chief Counsel, Federal Railroad representative on the Committee voted BILLING CODE 4310±MR±M Administration, RCC–10, 400 Seventh in favor of the original index-based Street, S.W., Washington, D.C. 20590. formula at the Committee’s May, 1995 (2) Public Hearings: The hearing meeting based on the belief that the use DEPARTMENT OF TRANSPORTATION of that formula would satisfy both the scheduled for April 4 in Chicago will be gross proceeds and major portion Federal Railroad Administration held in the Special Events Room, Suite clauses contained in most Indian leases, 200 on the Second Floor, Corporate 49 CFR Parts 223 and 239 with the exception of gas sold under Conference Center, 200 W. Adams certain high-priced contracts.’’ [FRA Docket No. PTEP±1, Notice No. 2] Street, Chicago, Illinois 60606. The MMS agrees the gross proceeds hearing scheduled for April 7 in New requirement in the proposed rule RIN 2130±AA96 York City will be held in Room 305C of dealing with the issue of gas contract the Federal Building at 26 Federal Plaza, Passenger Train Emergency settlements changed the Committee’s New York, N.Y. 10278. Preparedness agreement that the index formula was to FOR FURTHER INFORMATION CONTACT: Mr. replace both the gross proceeds AGENCY: Federal Railroad Edward R. English, Director, Office of requirement and the major portion Administration (FRA), Department of Safety Assurance and Compliance, FRA, requirement. The MMS would like to Transportation (DOT). receive comments on a concept where 400 Seventh Street, S.W., Washington, ACTION: Notice of proposed rulemaking; D.C. 20590 (telephone number: 202– contract settlement proceeds would be dates and locations of public hearings. royalty bearing, but would not require a 632–3349), or David H. Kasminoff, Esq., monthly gross proceeds comparison to SUMMARY: By notice of proposed Trial Attorney, Office of Chief Counsel, the index formula. MMS will view rulemaking (NPRM) published on FRA, 400 Seventh Street, S.W., contract settlement proceeds to be part February 24, 1997 (62 FR 8330), FRA Washington, D.C. 20590 (telephone: of gross proceeds when value is proposed a rule to require minimum 202–632–3191). determined by gross proceeds such as Federal safety standards for the Issued in Washington, D.C., on March 3, for production from a dedicated preparation, adoption, and 1997. contract, or in nonindex areas where the implementation of emergency Donald M. Itzkoff, initial value is determined under the preparedness plans by railroads gross proceeds context. For index areas, connected with the operation of Deputy Federal Railroad Administrator. MMS will require the gross proceeds of passenger trains, including freight [FR Doc. 97–5545 Filed 3–3–97; 3:39 pm] gas sold under nondedicated contracts railroads hosting the operations of rail BILLING CODE 4910±06±P to be calculated only if the contract passenger service. In that notice, FRA Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10249

DEPARTMENT OF COMMERCE Before establishing the Registry, About 60 per cent of all LAPs are NMFS wants the public’s guidance. We Transferable. They can be bought and National Oceanic and Atmospheric welcome comments from anyone, but sold. They have market value. They can Administration particularly want guidance from: be pledged as collateral. 1. Fisheries parties who will buy and The other 40 per cent are not 50 CFR Part 600 sell LAPs, Transferable. They cannot be [Docket No. 970213030±7030±01; I.D. 2. Creditors and other parties who independently bought and sold. They 020597B] will file Liens for registration against have no independent market value. LAPs, and They are not useful as collateral. Most RIN: 0648±AJ77 3. The Regional Fishery Management of them generally follow the titles of the Councils. Central Title and Lien Registry for fishing vessels to which they relate. We welcome comments about any Limited Access Permits They have no commercial significance Registry aspect, but particularly want apart from those vessels. AGENCY: National Marine Fisheries guidance about the following: Although the SFA does not limit Service (NMFS), National Oceanic and 1. Who should administer the registration to Transferable LAPs, we Atmospheric Administration (NOAA), Registry? question whether there is a practical Commerce. The SFA allows us either to reason to register LAPs that are not administer the Registry or contract for ACTION: Advance notice of proposed Transferable. The Registry’s purpose is rulemaking; request for comments. its administration. We are considering perfecting title to, and Liens against, the former alternative because: LAPs. This benefits LAP buyers, sellers, SUMMARY: a. The Registry’s perpetual nature NMFS requests comments lenders, and other lienholders. LAPs about a central registry (Registry) for requires continuity, b. Similar functions often appear to be that are not Transferable do not limited access permits (LAPs). The separately involve any of these parties. Magnuson-Stevens Fishery governmentally administered, and c. Many Registry title aspects involve 4. Should initial title registration be Conservation and Management Act voluntary or mandatory for all (Magnuson-Stevens Act) requires us to LAP administration functions we already perform. Transferable LAPs? establish the Registry. The Registry will In the first alternative, registration be the exclusive means of perfecting Should we administer the Registry, or should we contract for its would be voluntary for all Transferable title to LAPs. It will also be the LAPs, except those to which title exclusive means of perfecting security administration? Which is the better alternative, and why? transfers, or against which Liens, were interests in, assignments of, and liens filed for registration. Registration would and other encumbrances (collectively 2. Where should we locate the Registry? be mandatory for the excepted LAPs. Liens) against LAPs. The Registry would, without LAP We want the public’s guidance before Almost 90 per cent of all Transferable holder requests, register these LAPs and proposing regulations. LAPs involve Alaska’s fisheries. NMFS’ Regional Office in Juneau, AK, bill LAP holders for the registration fees. DATES: Comments must be submitted by administers these through its Restricted In the second alternative, registration April 7, 1997. Access Management (RAM) Division. of all Transferable LAPS would be ADDRESSES: Send comments to: Michael If we administer the Registry, Juneau, mandatory. This might produce a more L. Grable, Chief, Financial Services AK, could be the most efficient and stable and dependable Registry that Division, NMFS, 1315 East West effective Registry location and the RAM affords all LAP holders, buyers, lenders, Highway, Silver Spring, MD 20910. Division the Registry’s most suitable and other lienholders greater security FOR FURTHER INFORMATION CONTACT: manager. A comparable example of a and assurance. Potential objections to Michael L. Grable at (301) 713–2390. centralized national registry is the U.S. mandatory registration, however, SUPPLEMENTARY INFORMATION: Coast Guard’s National Vessel include: Conservation and management Documentation Center (NVDC) in a. Those planning neither to sell nor sometimes requires limiting access to Falling Waters, WV. pledge their LAPs might object to Federally-managed fisheries. Only A centralized Registry could consider mandatory registration’s time and cost, parties with LAPs can fish in these ways to facilitate filings from all parts b. Mandatory registration could be fisheries. Some LAPs are transferable of the country. One alternative could be burdensome for seasonal LAPs, and independently of fishing vessels similar to a NVDC approach that allows c. Registering all LAPs might cause (Transferable). Others are not. facsimile filings contingent upon unnecessary Government work. The Sustainable Fisheries Act of 1996 receiving original documentation within Regular LAP administration records (SFA) is Public Law 104–297. The SFA 10 calendar days. If we adopted this disclose the authorized holders of all amended the Magnuson-Stevens Act. approach, a facsimile’s date and time LAPs. We could automatically register One SFA provision requires NMFS to could be the date and time of perfection title in the names of the authorized establish the Registry: if the original documentation were holders and charge a moderate fee for it (the SFA requires a fee). This would ** * the Secretary [of Commerce] shall timely received. Otherwise, the date and establish an exclusive central registry system time the Registry received the original minimize the time and cost of (which may be administered on a regional documentation would be the date and mandatory registration. The alternative basis) for limited access system permits time of perfection. in question No. 5 might minimize the established under section 303(b)(6) or other The centralization alternative seasonal LAP problem. Federal law, including individual fishing includes only the Registry portion of 5. How should the Registry treat quotas, which shall provide for the LAP functions. Regular LAP seasonal LAPs that merely allocate registration of title to, and interests in, such administrative functions (issuance, periodic catch quantities for continuous permits * * *. renewal, transfer approval, etc.) would LAPs? Section 110(d) of the SFA makes the remain in their present regional The Pacific halibut and sablefish Registry the legally exclusive means of locations. fishery, for example, has two types of perfecting LAP titles and Liens (except 3. Should the Registry register LAPs LAPs. The first type is Quota Share Federal tax Liens). that are not Transferable? (Access) permits. These are continuous 10250 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules

LAPs allowing access to the fishery. The It does not authorize fees for registering b. Liens authorized or constituted by second type is Individual Fishing Quota Liens (or their renewal, release, the judgments or orders of duly (Allocation) permits. These are seasonal assumption, assignment, etc.) or for any constituted courts of competent LAPs that annually allocate the amount other Registry service. jurisdiction, and of fish each Access permit holder may Presumably, Registry fees should c. Other Liens authorized by State or catch that season. Allocation permit offset Registry expenses. Federal statute. holders may transfer only 10 per cent of Unless fees other than the specifically Should the Registry allow other types allocated catch quantity. authorized ones are possible, title and of Liens to be registered? Why? Could Separately including this fishery’s title-transfer registrants will have to bear this create problems or be burdensome? Allocation permits in the Registry the cost of all Registry services. 10. Should the Registry attempt to would be burdensome and complicated Although it might be more equitable if validate any title or Lien? for everyone. Excluding Allocation the Registry could also charge the cost One alternative we are considering is permits could compromise minor of Lien or other services to those seeking to accept the validity of title or Lien commercial interests in the Allocation them, the SFA does not authorize this. filings that meet the Registry’s minimal permit’s limited transferability, but the How should we determine the Initial filing requirements. Under this time and expense of doing otherwise Fee? Should it be a modest flat fee or 0.5 alternative, the Registry would not might not be worth the limited benefit. per cent of market value, whichever is attempt to determine the completeness, One alternative we are considering less? If so, what should control the flat accuracy, or validity of any documents would be for initial title registration of fee’s amount? Should it, instead, be a filed. this fishery’s Access permits (and specified percentage (not exceeding 11. Should the Registry do anything to payment of the registration fee) to 0.5%) of market value? If so, what help prevent unauthorized signatures? include automatic registration of all should control the percentage’s amount? One alternative might be requiring subsequent Allocation permits (in the Should we publish a schedule of signatures to be notarized. Would this name of the LAP title holders of record average market values representative of be useful? Is there a better approach? 12. Should the Registry require using and without payment of additional various LAPs and base the percentage a standard form for filing Liens for registration fees). This would prevent on those values? registration? Access permit holders from having each Under the mandatory title-registration year to register their seasonal Allocation One alternative we are considering is alternative, the Initial Fee could be to require using a form fulfilling the permits and pay annual registration moderate. There are about 23,000 fees. Under this alternative, Liens Registry’s minimum filing requirements. Transferable LAPs, if Pacific halibut and This seems to be the practice under the against the Access permits would also sablefish Allocation permits are encumber the corresponding Allocation Uniform Commercial Code (UCC). For included. If not, there are about 14,500. consensual Liens, the Registry could permits. Under the voluntary title-registration 6. How should we determine LAP require both the lienholder and the LAP alternative, however, the Initial Fee may holder to sign this form. Nonconsensual ‘‘value’’? have to be substantially higher. The SFA limits Registry fees to Liens would not require the LAP How should we determine the amounts not exceeding 0.5 per cent of holder’s signature, but could require Transfer fee, and what should control its LAP ‘‘value.’’ Fees may be less, but not specifying the nature of, and authority amount? Should it be a specified more, than this. We must determine the for, the nonconsensual Liens. All forms percentage (within the statutory ‘‘value’’ of all LAPs included in the could identify: the name and address of maximum) of LAP purchase price? If so, Registry. the LAP holder, the name and address Some LAPs have commonly known what should control the percentage’s of the lienholder, the LAP against which market values. We have market-value amount? This alternative could include the Lien is to be registered, and the ranges for other LAPs because buyers provisions to determine market value effective date of the Lien. and sellers have disclosed purchase for LAP gifts, inheritances, trades, and Would the use of a standard form prices to us. There may, however, be other title transfers involving expedite registration or make it more little or no market-value data for some considerations other than market value. reliable? If so, what should the form LAPs. Recent title-transfer activity for require? Valuation problems should mostly be Transferable LAPs indicates about 2,300 13. Should Lien filing forms be limited to initial title registration. The title transfers annually. accompanied by the Lien registration of subsequent title transfers 8. How should we respond when LAP documentation upon which the filings should involve purchase prices or other holders required to register LAP titles are based? consideration that we can objectively and pay registration fees do not do so? If the Registry were to register all value. Where known, we could apply This would apply to all LAP holders Liens that met its minimal filing market values to LAPs transferred by included in a mandatory Registry. In a requirements, should Lien gift, trade, or inheritance. voluntary Registry, it would apply only documentation accompany Lien filing If initial registration fees are a modest to those who sell or pledge their LAPs forms? If so, why, and what should the flat fee for all, the valuation problem or whose LAPs are otherwise subjected Registry do with this documentation? might be mostly limited to determining to Liens. The Registry must be able to 14. Should Lien registrations require that the fee does not exceed 0.5 per cent compel appropriate performance. How periodic renewal? of the ‘‘value’’ of LAPs for which little should it do this? What should the One alternative we are considering is or no market data exists. We are unsure penalties be? for Lien registrations to expire if how to establish the ‘‘value’’ of these 9. What Lien registrations should the lienholders do not renew them within a LAPs. Registry allow? certain time. This seems to be the UCC 7. What fees should the Registry One alternative we are considering practice. If we should adopt this charge? would limit registerable Liens to: alternative, what should the periodic The SFA requires fees for initial title a. Secured interests in LAPs to which renewal period be? registration (Initial Fee) and subsequent the LAPs’ holders have, by their 15. How should the Registry handle title-transfer registration (Transfer Fee). signatures, consented, registering Lien releases? Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules 10251

The UCC practice seems to involve ** * a mechanism for filing notice of a Junior Lienholder both at the address of release forms signed by lienholders. nonjudicial foreclosure * * * by which the record maintained at the Registry for the 16. What Lien data should the holder of a senior security interest acquires LAP Holder and each Junior Lienholder or conveys ownership of a permit * ** Registry register, and how long should [and] the interests of the holders of junior and at such other address as the NJF the Registry maintain them? security interests are released when the Lienholder may have had cause to have Should the Registry register only permit is transferred * * *. known was a better address, lienholders’ names and addresses? c. Such notice contained the notice How should the Registry best comply? Would registering other Lien language required by the Registry’s One alternative we are considering is regulations, characteristics (e.g., nature, amount, and adapting the UCC’s NJF procedure. maturity) be useful? Should the Registry d. The NJF Lienholder is contractually Under this alternative, we would entitled to NJF, and perpetually maintain all Lien data or register an NJF title transfer only if one periodically purge all data about e. Such certification is made in good of the following two conditions apply: faith and without any design to hinder, terminated Liens? a. The LAP holder and all registered 17. Should the Registry require using delay, or defraud the LAP holder or any lienholders junior (Junior Lienholders) present or future lienholder or creditor a specific form for filing LAP title to the senior security interest being transfers for registration and, if so, what of the LAP holder. foreclosed nonjudicially (NJF Security) 24. When NJF title transfer is based on should it include? first notify the Registry in writing that We are considering this alternative, consent, should the Registry require they consent to the recordation of the using a standard filing form? because it might expedite title-transfer NJF title transfer; or registration or make it more reliable. 25. When NJF title transfer is based on b. Absent such consent: certification, should the Registry require For voluntary transfers, the form i. The holder of the NJF Security (NJF using a standard form of certification? could be signed by the LAP seller and Lienholder) certifies to the Registry that 26. Under what circumstances should purchaser and could include: the the NJF Lienholder: the Registry register title transfer by identity of the LAP whose title seller A. Is contractually entitled to NJF, judicial foreclosure, as a result of transfers to purchaser, the date seller B. Has, at least 21 calendar days judgment enforcement, or otherwise by transfers title to purchaser, and the before such certification, notified the LAP Holder and all Junior Lienholders involuntary transfer? accompanying instrument evidencing The SFA provides that the Registry and given the LAP Holder and all Junior seller’s transfer of title to purchaser. shall provide: For involuntary transfers, the form Lienholders the opportunity to object in could be signed by the party to whom writing to the Registry about the NJF ** *procedures for changes in the title involuntarily transfers and include: title transfer; and registration of title to such permits upon the ii. The Registry has received no such occurrence of involuntary transfers, the identity of the LAP interest whose judicial* * * foreclosure of interests, title involuntarily transfers, the date objection. If either of these two conditions enforcement of judgments thereon, and title involuntarily transfers, and the related matters deemed appropriate* * *. nature of the accompanying instrument apply, the Registry would register NJF The Registry would register evidencing involuntary title transfer. title transfer to the NJF Lienholder. judgments as Liens against LAP title. 18. Should any evidence of title If neither of these two conditions One alternative we are considering, transfer the Registry might require applied, the Registry would not register however, is that the Registry would not contain original signatures or would a NJF title transfer. All NJF title transfers would release register LAP title transfer by judicial copy of the original evidence be only such registered Liens as are junior foreclosure (or as a result of judgment sufficient? to the NJF Security. The Registry would enforcement or other involuntary 19. Should the Registry perpetually not release any registered Liens senior transfer) unless the party judicially maintain any evidence of title transfer it to the NJF security, and the title foreclosing (or enforcing a judgment or might require? transferred by NJF would continue causing an involuntary transfer) 20. Should the Registry make subject to the unreleased Liens. presented to the Registry a bill of sale available for public inspection any We would not adjudicate conflicting (or other instrument causing title evidence of title transfer it might interests. Conflicting interests would transfer) issued pursuant to, or maintain and, if so, how and under have either to be settled by the consent confirmed by, the order of a duly what circumstances? of all relevant parties or by adjudication constituted court of competent 21. Should the Registry provide title in a duly constituted court of competent jurisdiction. abstracts (or any other written record of jurisdiction. 27. How best should the Registry LAP title and lien registration)? Are there better ways to implement provide public access to Registry data, The statute does not authorize the the NJF provisions? What are they and and what Registry data should be Registry to charge fees for this purpose. why are they better than the alternative public? If the Registry provided this, its cost suggested here? We are considering putting Registry might have to be recovered primarily 23. If we adopt the alternative data on the Internet. Are there from fees that the statute authorizes the suggested in question No. 22, what additional or better ways of providing Registry to collect for title transfers. certification requirements should the public access to Registry data? What would the effect be if the Registry Registry impose? We are considering making the did not provide this? If it did, should it One alternative we are considering is following data publicly available limit provision to certain users for a certification, pursuant to 28 U.S.C. a. LAP fishery; certain purposes? What data should this 1746, that: b. LAP nature; include? a. The NJF Lienholder gave NJF title c. LAP holder’s name and address (tax 22. How should the Registry best transfer notice, at least 21 calendar days identification number and other provide for nonjudicial foreclosure before such certification, to the LAP protected or confidential data would be (NJF)? holder and all Junior Lienholders, excluded); The SFA requires the Registry to b. Such notice was in writing and d. Chronological listing of all LAP provide: delivered to the LAP holder and each Lien data (including names and 10252 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Proposed Rules addresses of all lienholders and to * * * [the Registry] and in compliance Before the SFA, we had informally recordation dates for: initial recordation, with such regulations of the perfection of the allowed lienholders to register with the renewal, expiration, release, security. RAM Division their Liens against Alaska assumptions, assignments, etc.); and The UCC is (in UCC States) the only LAPs. These informal filings are not e. Complete chain of post-Registry ‘‘otherwise applicable law’’ known to us ‘‘perfected by otherwise applicable law’’ LAP title, including the name and under which pre-Registry Liens against and we cannot consider them in address of each party to whom LAP title LAPs could have been ‘‘perfected.’’ determining pre-Registry Lien priorities. has been registered and the date of each Should we give priority to Liens We welcome all comments on any such title registration. perfected under the UCC in strict other Registry aspects. 28. How should the Registry best chronological precedence regardless of This advance notice of proposed provide for the perfection of pre- the UCC jurisdiction involved? If so, rulemaking has been determined to be Registry Liens? what evidence of UCC perfection and its not significant for purposes of E.O. The SFA provides that: chronological precedence should we 12866. Security interests on * * * [LAPs] that are require? Dated: February 28, 1997. effective and perfected by otherwise Are there any other ‘‘otherwise Nancy Foster, applicable law on the date of the final applicable laws’’ that we should regulations implementing * * * [the Deputy Assistant Administrator for Fisheries, Registry] shall remain effective and perfected consider? If so, how would they relate National Marine Fisheries Service. if, within 120 days after such date, the to perfection under the UCC? [FR Doc. 97–5540 Filed 3–5–97; 8:45 am] secured party submits evidence satisfactory What should the regulations require? BILLING CODE 3510±22±P 10253

Notices Federal Register Vol. 62, No. 44

Thursday, March 6, 1997

This section of the FEDERAL REGISTER agricultural sponsored education and SUMMARY: The Forest Service will contains documents other than rules or research activities. In addition, the prepare an environmental impact proposed rules that are applicable to the information enables the Department of statement (EIS) to analyze and disclose public. Notices of hearings and investigations, Agriculture to comply with the the environmental effects of applying committee meetings, agency decisions and requirement to report all donations of ecosystem management techniques rulings, delegations of authority, filing of petitions and applications and agency excess research equipment under the across the landscape in Main Slate and statements of organization and functions are Stevenson-Wydler Innovation North Fork Slate Creek drainages. The examples of documents appearing in this Technology Act (Public Law 102–245), area is located approximately 19 air section. U.S.C. 3710(i). miles south of Grangeville, Idaho. Some Estimate of Burden: Public reporting activities are planned within the North burden for this collection of information Fork Slate Creek (#1850) Roadless Area. DEPARTMENT OF AGRICULTURE is estimated to average 2 hours per This EIS will tier to the Nez Perce response. National Forest Land and Resource Procurement and Property Respondents: Not-for-profit Management Plan and EIS, which Management; Notice of Intent To Institutions and State, local or Tribal provide overall guidance for achieving Extend a Currently Approved Organizations. the desired forest condition of the area. Information Collection Estimated number of Respondents: The purpose of the proposed action is to improve overall vegetative conditions AGENCY: Procurement and Property 50. and diversity, restore impacted aquatic Management, USDA. Estimated Number of Responses per resources, and provide goods and Respondent: 1. ACTION: Notice and request for services to the public. comments. Estimate, Total Annual Burden on DATES: Written comments and Respondents: 100 hours. suggestions should be received by April SUMMARY: The Department of Copies of this information collection Agriculture, as part of its continuing 7, 1997 to receive timely consideration can be obtained from Linda W. in the preparation of the Draft EIS. effort to reduce paperwork and Oliphant, (202) 720–3141. ADDRESSES: Send written comments and respondent burden, invites the general Comments: Comments are invited on: suggestions on the proposed action, public and other Federal agencies to (a) whether the proposed collection of requests for a map of the proposed take this opportunity to comment on information is necessary for the proper action, or requests to be placed on the continuing information collections, as performance of the functions of the required by the Paperwork Reduction project mailing list to Jack Carlson, agency, including whether the District Ranger, Salmon River Ranger Act of 1995, Public Law 104–13 (44 information shall have practical utility; U.S.C. 3506(c)(2)(A)). District, HC 01, Box 70, White Bird, (b) the accuracy of the agency’s estimate Idaho 83554. DATES: Comment should be received on of the burden of the collection of FOR FURTHER INFORMATION CONTACT: or before April 15, 1997. information; (c) ways to enhance the ADDRESS: Direct all written comments to Mike McGee, Planner, Salmon River quality, utility, and clarity of the Ranger District, Nez Perce National Denise Patterson, USDA, Room 1520–S, information to be collected; and (d) 1400 Independence Avenue, SW, Forest, HC 01, Box 70, White Bird, ways to minimize the burden of the Idaho 83554, Phone (208) 839–2211. Washington, DC 20250. collection of information on SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: respondents, including through the use following activities are proposed in the Requests for additional information of automated collection techniques or Main Slate and North Fork Slate Creek should be directed to Linda W. other forms of information technology. Oliphant, (202) 720–3141, USDA, Room drainages to: Treat approximately 1,100 All responses to this notice will be acres through the use of helicopter, 1522–S, 1400 Independence Avenue, summarized and included in the request SW, Washington, DC 20250. tractor, and cable logging systems, for OMB approval. All comments will which will produce approximately 8 SUPPLEMENTARY INFORMATION: also become a matter of public record. million board feet (MMBF) of timber; W.R. Ashoworth, Title: Department of Agriculture introduce fire for the treatment of both Director, Procurement and Property activity generated and natural fuels; use Guidelines for the Donation of Excess Management. Research Equipment under 15 U.S.C. precommercial thinning of saplings and [FR Doc. 97–5475 Filed 3–5–97; 8:45 am] 3710(i). small poles; provide commercial post OMB Number: 0505–0019. BILLING CODE 3410±PA±M and pole material; improve watershed Expiration Date of Approval: April 30, conditions by implementing actions 1997. such as cutslope revegetation, ditch Type of Request: Intent to extend Forest Service rocking, culvert replacement, improvement of road drainage and currently approved information Clean Slate Ecosystem Management surfacing, partial or complete collection. Project; Nez Perce National Forest, Abstract: This action is necessary to obliteration on many sections of road, Idaho County, ID obtain approval for use of the forms and improvement of the trail system; beyond the current expiration date. The AGENCY: Forest Service, USDA. implement wildlife habitat collection of this information will improvements; implement practices to ACTION: Notice; intent to prepare substantiate that property donations are manage undesirable exotic vegetation; environmental impact statement. based on need, usability and related to modify existing fish habitat structures in 10254 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Slate Creek; analyze and implement as the Nez Perce National Forest Plan Dated: January 31, 1997. access management prescriptions for the EIS. Coy G. Jemmett, existing road and trail system; develop 4. Identify alternatives to the Forest Supervisor, Nez Perce National Forest, and enhance dispersed recreation sites; proposed action. Route 2, Box 475, Grangeville, ID 83530. and provide interpretive sites for the 5. Identify potential environmental [FR Doc. 97–5543 Filed 3–5–97; 8:45 am] public. effects of the proposed action and BILLING CODE 3410±11±M No new permanent roads would be alternatives (i.e., direct, indirect, and constructed. Some new construction of cumulative effects). temporary roads and helicopter log While public participation in this Yakima Province Advisory Committee landings would occur and some re- analysis is welcome at any time, AGENCY: Forest Service, USDA. construction of existing roads would comments received within 30 days of ACTION: Notice of meeting. occur. Temporary roads that are the publication of this notice will be constructed or re-constructed will be especially useful in the preparation of SUMMARY: The Yakima Province recontoured after use. the draft EIS, which is expected to be Advisory Committee will meet on A watershed analysis, called the Slate filed with the Environmental Protection Creek Implementation Area Assessment, March 12, 1997, in the Cle Elum Ranger Agency and available for public review District office warehouse conference was recently undertaken for the entire in May, 1997. A 45-day comment period Slate Creek watershed. The Clean Slate room, 803 W. 2nd Street, Cle Elum, will follow publication of a Notice of Washington. The meeting will begin at project is located within the Slate Creek Availability of the draft EIS in the watershed. One of the primary purposes 9:00 a.m. and continue until 3:00 p.m. Federal Register. The comments Agenda items to be covered will include of this watershed analysis was to collect received will be analyzed and and display historic conditions and agency updates and information relative considered in preparation of a final EIS, to the development and role of an processes and document how which is expected to be filed in [July,] management activities have influenced advisory subcommittee in providing 1997. A Record of Decision will be advice on the Snoqualmie Pass the current conditions of the watershed. issued not less than 30 days after From this, management opportunities Adaptive Management Area. All Yakima publication of a Notice of Availability of Province Advisory Committee meetings were identified that would best fit with the final EIS in the Federal Register. the natural character and processes of are open to the public. Interested The Forest Service believes it is the watershed. This proposal is moving citizens are welcome to attend. important at this early stage to give forward with some of the FOR FURTHER INFORMATION CONTACT: reviewers notice of several court rulings recommendations made in the Slate Direct questions regarding this meeting related to public participation in the Creek Watershed Assessment. to Paul Hart, Designated Federal environmental review process. First, The Forest Service will consider a Official, USDA, Wenatchee National reviewers of draft EISs must structure range of alternatives to the proposed Forest, 215 Melody Lane, Wenatchee, their participation in the environmental action. One of these will be the ‘‘no Washington 98801, 509–662–4335. review of the proposal so that it is action’’ alternative, in which none of the meaningful and alerts an agency to Dated: February 25, 1997. proposed action will be implemented. reviewer’s position and contentions. Glenn Hoffman, Additional alternatives will examine Vermont Yankee Nuclear Power Corp. v. Acting Forest Supervisor, Wenatchee varying levels and locations for the NRDC, 435 U.S. 519, 513 (1978). Also, National Forest. proposed activities, including entry into environmental objections that could be [FR Doc. 97–5458 Filed 3–5–97; 8:45 am] the Roadless Area, to achieve the raised at the draft EIS stage but that are BILLING CODE 3410±11±M proposal’s purposes, as well as to not raised until after completion of the respond to the issues and other resource final EIS may be waived or dismissed by values. ARCTIC RESEARCH COMMISSION Public participation is an important the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir, 1986) and part of the project, commencing with Notice of Meeting the initial scoping process (40 CFR Wisconsin Heritages Inc. v. Harris, 490 1501.7), which starts with publication of F.Supp. 1334, 1338 (E.D. Wis., 1980). Notice is hereby given that the U.S. this notice and continues for the next 30 Because of these court rulings, it is very Research Commission will hold its 46th days. In addition, the public is important that those interested in this Meeting at 9:00 a.m. on Monday, March encouraged to visit with Forest Service proposed action participate by the close 24, 1997, at the National Science officials at any time during the analysis of the 45-day comment period so that Foundation, 4201 Wilson Boulevard, and prior to the decision. The Forest substantive comments and objections Arlington, VA 22230. Agenda items Service will be seeking information, are available to the Forest Service at a include: comments, and assistance from Federal, time when it can meaningfully consider (1) Call to order and approval of the State, and local agencies, the Nez Perce them and respond to them in the final Agenda Tribe, and other individuals or EIS. (2) Approval of the minutes of the 45nd organizations who may be interested in To assist the Forest Service in Meeting or affected by the proposed action. identifying and considering issues and (3) Reports of Congressional Liaisons Comments from the public and other concerns on the proposed action, (4) Agency Reports agencies will be used in preparation of comments should be as specific as (5) Research News the Draft EIS. The scoping process will possible. Reviewers may wish to refer to The focus of the meeting will be on be used to: the Council on Environmental Quality Arctic Ocean Research. 1. Identify potential issues. Regulations for implementing the Any person planning to attend this 2. Identify major issues to be analyzed procedural provisions of the National meeting who requires special in depth. Environmental Policy Act at 40 CFR accessibility features and/or auxiliary 3. Eliminate minor issues or those 1503.3 in addressing these points. aids, such as sign language interpreters which have been covered by a relevant I am the responsible official for this must inform the Commission in advance previous environmental analysis, such environmental impact statement. of those needs. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10255

Contact Person for More Information: contact Brenda Thomas at (202) 401– procedures between the two agencies Dr. Garrett W. Brass, Executive Director, 3736. and our further attempts to assign Arctic Research Commission, 703–525– Dated: March 4, 1997. industry codes to these businesses based 0111 or TDD 703/306–0090. David W. Burke, on their name will still leave some 300,000 unclassified businesses on the Garrett W. Brass, Chairman. 1997 Economic Censuses mail list. This Executive Director. [FR Doc. 97–5725 Filed 3–4–97; 2:37 pm] [FR Doc. 97–5520 Filed 3–5–97; 8:45 am] data collection, Form NC–9923, is BILLING CODE 8230±01±M designed to obtain classification BILLING CODE 7555±01±M information for different types of industries including reflecting changes DEPARTMENT OF COMMERCE from the SIC to NAICS and provide ASSASSINATION RECORDS REVIEW current information on physical BOARD Submission for OMB Review; locations. Comment Request Sunshine Act Meeting Affected Public: Business or other for- DOC has submitted to the Office of profit, Not-for-profit institutions. DATE: March 13–14, 1997. Management and Budget (OMB) for Frequency: Every five years. PLACE: ARRB, 600 E Street, NW, clearance the following proposal for Respondent’s Obligation: Mandatory. Washington, DC. collection of information under the Legal Authority: Title 13 USC, provisions of the Paperwork Reduction Sections 131 and 224. STATUS: Closed. OMB Desk Officer: Jerry Coffey, (202) Act (44 U.S.C. chapter 35). 395–7314. MATTERS TO BE CONSIDERED: Agency: Bureau of the Census. Copies of the above information Title: 1997 Economic Censuses 1. Review and Accept Minutes of Closed collection proposal can be obtained by General Classification Schedule. Meeting calling or writing Linda Engelmeier, Form Number(s): NC–9923. 2. Review of Assassination Records DOC Forms Clearance Officer, (202) Agency Approval Number: None. 3. Other Business 482–3272, Department of Commerce, Type of Request: New collection. CONTACT PERSON FOR MORE INFORMATION: room 5312, 14th and Constitution Burden: 50,000 hours in FY98. Eileen Sullivan, Assistant Press and Avenue, NW, Washington, DC 20230. Number of Respondents: 300,000. Public Affairs Officer, 600 E Street, NW, Written comments and Avg. Hours Per Response: 10 minutes. Second Floor, Washington, DC 20530. recommendations for the proposed Needs and Uses: The 1997 Economic Telephone: (202) 724–0088; Fax: (202) information collection should be sent Census will cover virtually every sector 724–0457. within 30 days of publication of this of the U.S. economy. The Census notice to Jerry Coffey, OMB Desk David G. Marwell, Bureau will implement the new North Executive Director. Officer, room 10201, New Executive American Industry Classification Office Building, Washington, DC 20503. [FR Doc. 97–5619 Filed 3–3–97; 5:12 pm] System (NAICS) in the 1997 Economic BILLING CODE 6118±01±P Census. The implementation of the Dated: February 27, 1997. NAICS as a replacement for the 1987 Linda Engelmeier, Standard Industrial Classification (SIC) Departmental Forms Clearance Officer, Office BROADCASTING BOARD OF system will require contacting of Management and Organization. GOVERNORS businesses to collect classification [FR Doc. 97–5490 Filed 3–5–97; 8:45 am] information to update the 1997 BILLING CODE 3510±07±P Sunshine Act Meeting Economic Census mailing lists. DATE AND TIME: Accurate and reliable industry and March 11, 1997; 9:30 Submission For OMB Review; a.m. geographic codes are critical to the Bureau of Census statistical programs. Comment Request PLACE: Cohen Building, Visitor’s Center, New businesses are assigned industry First Floor, 330 Independence Ave., DOC has submitted to the Office of classification by the Social Security Management and Budget (OMB) for S.W., Washington, D.C. 20547. Administration (SSA). However, OPEN MEETING: The members of the clearance the following proposal for approximately 22 percent of these collection of information under the Broadcasting Board of Governors (BBG) businesses cannot be assigned industry will meet in open session to address a provisions of the Paperwork Reduction codes because insufficient information Act (44 U.S.C. chapter 35). variety of issues relating to U.S. is provided on Internal Revenue Service Government-funded non-military Agency: Bureau of the Census. (IRS) Form SS–4. Since the 1992 Title: Annual Capital Expenditures international broadcasting. Among the Economic Censuses, the number of Survey. subjects on the agenda are the following: unclassified businesses has grown to Form Number(s): ACE–1, ACE–1(l), opening remarks by the BBG Chairman; almost 500,000. ACE–2, ACE–2(l). approval of minutes of a previous In order to provide detailed industry Agency Approval Number: 0607– meeting; remarks by Kevin Klose, data reflecting NAICS for the 1997 0782. Director-designate of the International Economic Censuses and the Standard Type of Request: Revision of a Broadcasting Bureau; remarks by Evelyn Statistical Establishment List (SSEL), currently approved collection. Lieberman, new Director of the Voice of these unclassified businesses must be Burden: 114,000 hours. America; and miscellaneous subjects assigned industry codes. The Census Number of Respondents: 46,000. relating to the Board’s responsibilities Bureau has contracted with the Bureau Avg. Hours Per Response: 2.5 hours. such as the annual report to the of Labor Statistics (BLS) to receive Needs and Uses: The Census Bureau President and the Congress. classification information for plans the continuing information CONTACT PERSON FOR MORE INFORMATION: unclassified businesses. However, collection for the 1996 and 1997 Annual Persons interested in obtaining more differences in NAICS implementation Capital Expenditures Survey (ACES) information about the meeting should schedules, coverage, and updating measuring capital investment in new 10256 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices and used structures and equipment. The Agency Approval Number: 0607– Legal Authority: Title 13 USC, ACES is the sole source of detailed 0822. Sections 141 and 193. comprehensive statistics on actual Type of Request: Revision of a OMB Desk Officer: Jerry Coffey, (202) business spending by domestic, private, currently approved collection. 395–7314. nonfarm businesses operating in the Burden: 396 hours. Copies of the above information United States. Major changes from the Number of Respondents: 1,200. collection proposal can be obtained by 1995 collection of ACES data are the Avg. Hours Per Response: 20 minutes. calling or writing Linda Engelmeier, annual collection of data form Needs and Uses: The Census Bureau DOC Forms Clearance Officer, (202) businesses with one to four employees is interested in privacy issues—such as, 482–3272, Department of Commerce, and nonemployers, and a request from the public’s attitude toward individual room 5312, 14th and Constitution employer businesses for data on total privacy, the Census Bureau’s privacy Avenue, NW, Washington, DC 20230. company sales and receipts, and sales practices, and the potential use of Written comments and and receipts for the three ACES administrative records and collecting recommendations for the proposed industries with the largest sales and Social Security numbers (SSNs—for information collection should be sent receipts. several reasons. Most notable is the within 30 days of publication of this Business spending data are used to steady decline in response rates to the notice to Jerry Coffey, OMB Desk evaluate the quality of estimates of gross Census Bureau’s mailed questionnaire Officer, room 10201, New Executive domestic product, develop monetary in the last five decennial censuses, Office Building, Washington, DC 20503. policy, analyze business asset which may reflect the growing apathy toward and mistrust of the Federal Dated: February 28, 1997. depreciation, and improve estimates of Linda Engelmeier, capital stock for productivity analysis. government. A clear understanding of the public’s beliefs regarding the Census Departmental Forms Clearance Officer, Office Industry analysts use these data for of Management and Organization. market analysis, economic forecasting, Bureau and its practices may help [FR Doc. 97–5544 Filed 3–5–97; 8:45 am] identifying business opportunities, decennial census planners offset the product development, and business trend in declining responses rates and BILLING CODE 3510±07±M planning. address new methods to acquire data. The purpose of this survey, along with Affected Public: Business or other for- Bureau of the Census profit, Not-for-profit institutions. former collections, is to: Frequency: Annually. Determine and clarify the public’s opinion of: (1) The Federal government Survey of Local Government Finances Respondent’s Obligation: Mandatory. (School Systems), Forms F±33, F±33± Legal Authority: (Title 13 USC, and Census Bureau in general; (2) the 1, and F33±L1 Sections 182, 224, and 225. Census Bureau’s privacy and OMB Desk Officer: Jerry Coffey, (202) confidentiality policies; (3) the extent to ACTION: Proposed collection; comment 395–7314. which the Census Bureau adheres to its request. Copies of the above information own privacy guidelines; (4) the Census collection proposal can be obtained by Bureau’s expanded use of SUMMARY: The Department of calling or writing Linda Engelmeier, administrative records and possible Commerce, as part of its continuing DOC Forms Clearance Officer, (202) interest in collecting SSNs in the future; effort to reduce paperwork and 482–3272, Department of Commerce, (5) the notion of an ‘’administrative respondent burden, invites the general room 5312, 14th and Constitution records—only census’’ in 2010; and (6) public and other Federal agencies to Avenue, NW, Washington, DC 20230. the utility of adopting and take this opportunity to comment on Written comments and communicating fair information use proposed and/or continuing information recommendations for the proposed principles. collections, as required by the information collection should be sent Assess change in the public’s Paperwork Reduction Act of 1995, within 30 days of publication of this attitudes on privacy-related issues on a Public Law 104–13 (44 U.S.C. notice to Jerry Coffey, OMB Desk yearly basis. The 1996, 1997, and 1998 3506(c)(2)(A)). Officer, room 10201, New Executive privacy studies, along with the DATES: Written comments must be Office Building, Washington, DC 20503. inaugural survey—the 1995 Joint submitted on or before May 5, 1997. Dated: February 28, 1997. Program in Statistical Methods (JPSM) ADDRESSES: Direct all written comments Linda Engelmeier, study, will help inform decisions on to Linda Engelmeier, Departmental Census 2000. Beginning in 1999, Departmental Forms Clearance Officer, Office Forms Clearance Officer, Department of of Management and Organization. privacy studies will be part of the Commerce, Room 5327, 14th and research and experimentation program [FR Doc. 97–5542 Filed 3–5–97; 8:45 am] Constitution Avenue, NW, Washington, for the 2010 census. DC 20230. BILLING CODE 3510±07±M The Study of Privacy Attitudes was FOR FURTHER INFORMATION CONTACT: formerly known as the ‘‘Study of Public Requests for additional information or Attitudes Towards Administrative Submission for OMB Review; copies of the information collection Records Use (SPARU).’’ To maintain Comment Request instrument(s) and instructions should continuity, the content of the 1997 SPA be directed to Sharon Meade, Bureau of DOC has submitted to the Office of questionnaire will be mostly the same as the Census, Governments Division, Management and Budget (OMB) for the 1996 SPARU. However, questions Washington, DC 20233–0001. Her clearance the following proposal for originally included in the 1995 JPSM telephone number is (301) 457–1563. collection of information under the survey that were left off the 1996 provisions of the Paperwork Reduction SPARU because of budgetary reasons SUPPLEMENTARY INFORMATION: Act (44 U.S.C. chapter 35). will be reinstated for the 1997 SPA. I. Abstract Agency: Bureau of the Census. Affected Public: Individuals or Title: Study of Privacy Attitudes. households. The Census Bureau collects education Form Number(s): None (automated Frequency: One-time. finance data as part of its Annual instrument). Respondent’s Obligation: Voluntary. Survey of State and Local Governments. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10257

This survey is the only comprehensive detail in all aspects of school finance Respondent’s Obligation: Voluntary. source of public fiscal data collected on except for assets. Respondents provide Legal Authority: Title 13 U.S.C., a nationwide scale using uniform the assets data on this letter and it is sections 161 and 181. definitions, concepts and procedures. merged with the other data collected The collection covers the revenues, from the state education agencies. IV. Request for Comments expenditures, debt, and assets of all This request is to reinstate the Comments are invited on: (a) Whether public school systems. This data previous collection for which approval the proposed collection of information collection has been coordinated with expires July 31, 1997. The data to be is necessary for the proper performance the National Center for Education collected is identical to the previous of the functions of the agency, including Statistics (NCES). The NCES uses this collection except as follows: whether the information shall have collection to satisfy its need for school 1—In order to differentiate between practical utility; (b) the accuracy of the system level finance data. payments made to public school agency’s estimate of the burden Information on the finances of our systems and those made to private (including hours and cost) of the public schools is vital to assessing their school systems, we are adding an item proposed collection of information; (c) effectiveness. This data collection that identifies payments to private ways to enhance the quality, utility, and makes it possible to access a single data schools. clarity of the information to be base to obtain information on such 2—In order to differentiate between collected; and (d) ways to minimize the things as per pupil expenditures and the payments made to public schools, those burden of the collection of information percent of state, local, and federal made to private schools, and those made on respondents, including through the funding for each school system. to quasi-public charter schools, we are use of automated collection techniques Recently, as exemplified by the adding an item that identifies payments or other forms of information establishment of the America 2000 to charter schools. technology. education goals, there has been II. Method of Collection Comments submitted in response to increased interest in improving the this notice will be summarized and/or Through central collection Nation’s public schools. One result of included in the request for OMB arrangements with the state education this intensified interest has been a approval of this information collection; agencies, the Census Bureau collects significant increase in the demand for they also will become a matter of public almost all of the finance data for local school finance data. record. school systems from state education The three forms used in the school Dated: February 27, 1997. finance portion of the survey are: agency data bases. The states transfer Linda Engelmeier, Form F–33. This form contains item most of this information in electronic descriptions and definitions of the format on microcomputer disks and Departmental Forms Clearance Officer, Office of Management and Organization. elementary-secondary education finance over the Internet. The Census Bureau items collected jointly by the Census has facilitated central collection of [FR Doc. 97–05459 Filed 3–5–97; 8:45 am] Bureau and NCES. It is used primarily school finance data by accepting data in BILLING CODE 3510±07±P as a worksheet by the state education whatever formats the states elect to agencies that provide school finance transmit. Economic Development data centrally for all of the school III. Data Administration systems in their respective states. Most OMB Number: 0607–0700. states supply their data by electronic Form Number: F–33, F–33–1, F–33– Notice of Petitions by Producing Firms means. L1. for Determination of Eligibility To Form F–33–1. This form is used at the Type of Review: Regular. Apply for Trade Adjustment beginning of each survey period to Affected Public: State and local Assistance solicit the assistance of the state governments. education agencies. It establishes the Estimated Number of Respondents: AGENCY: Economic Development conditions by which the state education 894. Administration (EDA), Commerce. agencies provide their school finance Estimated Time Per Response: 3.2 ACTION: To give firms an opportunity to data to the Census Bureau. hours. comment. Form F–33–L1. This is a supplemental Estimated Total Annual Burden letter sent to the school systems in nine Hours: 2,871 hours. Petitions have been accepted for filing states. In these states, the state Estimated Total Annual Cost: on the dates indicated from the firms education agencies collect adequate $51,678. listed below.

LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD 01/11/97±02/21/97

Date petition Firm name Address accepted Product

Centurion International, Inc ...... 3425 North 44th St., Lincoln, NE 68501 01/17/97 Batteries and antennas. Heinke Technology, Inc ...... 5120 Northwest 38th St., Lincoln, NE 02/03/97 Pharmaceutical applicators. 68524. Penn & Fletcher, Inc ...... 242 West 30th St., suite 200, New York, 02/04/97 Embroidered lace and trimming. NY 10001. Brodnax Mills, Inc ...... P.O. Box A, Brodnax, VA 23920 ...... 02/04/97 Synthetic and blended yarns. Precision Sintered Parts, L.L.C ...... 9902 East 46th Place, Tulsa, OK 74146 02/06/97 Iron or steel, forged or stamped gears. Styletek, Inc ...... 1857 Middlesex St., Lowell, MA 01851 .. 02/07/97 Plastic parts for footwear, luggage, tool, and sporting goods industries and plastic injection molds. Lamarr Jamerson ...... 929 North Sherman, Springfield, MO 02/07/97 Wooden doors and door frames. 65802. 10258 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD 01/11/97±02/21/97ÐContinued

Date petition Firm name Address accepted Product

Ideal Forging Corp ...... 167 Center St., Southington, CT 06489 02/07/97 Parts for compressors, pumps, and ma- chinery. Modu Form, Inc ...... 172 Industrial Rd., Fitchburg, MA 01420 02/07/97 Stackable arm chairs, tables, casegoods, couches, and library shelving. B&L Industries, Inc ...... 4570 West 77th St., suite 238, Min- 02/10/97 Toroid radio frequency filters. neapolis, MN 55435. White Stokes Co., Inc ...... 3615 South Jasper Place, Chicago, IL 02/10/97 Fondant as a reprocessed sugar-based 60609. paste used as a base ingredient in icing, fillings and candy, etc. Cassemco, Inc ...... P.O. Box 1495, Cookeville, TN 38503 ... 02/11/97 Seat parts for motor vehicles, chin straps for football helmets, ammuni- tion packs and medical products. Ever Corp ...... Highway 67 North, Newport, AR 72112 02/13/97 Collapsible aluminum tubes. Acme Roll Forming Co ...... P.O. Box 706, Sebewaing, MI 48759 ..... 02/12/97 Steel tubes for material handling racks. Posey Manufacturing Co., Inc ...... P.O. Box 418, 810 Ontario St., 02/13/97 Piano parts. Hoquiam, WA 98550. Coates ASI ...... 4607 South 35th St., Phoenix, AZ 85040 02/14/97 Wet processing equipment used to man- ufacture printed circuit boards. Advance Energy Technologies, Inc ...... P.O. Box 387, Clifton Park, NY 12065 ... 02/14/97 Insulated refrigeration walls for walk-in freezers and coolers. Firerobin Puppets, Inc ...... Bridge St., Richmond, VT 05477 ...... 02/21/97 Puppets.

The petitions were submitted National Oceanic and Atmospheric applicant had submitted a request for a pursuant to Section 251 of the Trade Act Administration scientific research permit to ‘‘take’’ by Level A and Level B harassment of 1974 (19 U.S.C. 2341). Consequently, [I.D. 022497D] the United States Department of Hawaiian monk seals (Monachus Commerce has initiated separate Marine Mammals schauinslandi) from the population at investigations to determine whether Midway Atoll. The research will be increased imports into the United States AGENCY: National Marine Fisheries conducted over an 5-year period and Service (NMFS), National Oceanic and of articles like or directly competitive will involve census observations, bleach Atmospheric Administration (NOAA), with those produced by each firm marking, pup tagging/ measuring, Commerce. contributed importantly to total or disentanglement, necropsies, and scat ACTION: Issuance of scientific research partial separation of the firm’s workers, collections. The objective of the permit no. 1029 (815–1312) or threat thereof, and to a decrease in research is to study the natural history sales or production of each petitioning SUMMARY: Notice is hereby given that and behavior of monk seals at Midway firm. Mr. William G. Gilmartin, Hawaii Atoll. The requested permit has been issued under the authority of the Marine Any party having a substantial Wildlife Fund, 55–472A Palekana Street, Laie, Hawaii 96762, has been Mammal Protection Act of 1972, as interest in the proceedings may request amended (16 U.S.C. 1361 et seq.), the a public hearing on the matter. A issued a permit to ‘‘take’’ by Level A and Level B harassment, Hawaiian Regulations Governing the Taking and request for a hearing must be received monk seals (Monachus schauinslandi) Importing of Marine Mammals (50 CFR by the Trade Adjustment Assistance for purposes of scientific research. Part 216), the Endangered Species Act Division, Room 7023, Economic ADDRESSES: The permit and related (ESA) of 1973, as amended (16 U.S.C. Development Administration, U.S. documents are available for review 1531 et seq.), and the Regulations Department of Commerce, Washington, upon written request or by appointment Governing the Taking, Importing, and D.C. 20230, no later than the close of in the following offices: Exporting of Endangered Fish and business of the tenth calendar day Permits Division, Office of Protected Wildlife (50 CFR part 222). Issuance of following the publication of this notice. Resources, NMFS, 1315 East-West this permit, as required by the ESA, was (The Catalog of Federal Domestic Assistance Highway, Room 13130, Silver Spring, based on a finding that such permit: (1) official program number and title of the MD 20910 (301/713–2289); Was applied for in good faith; (2) will program under which these petitions are Director, Southwest Region, NMFS, not operate to the disadvantage of the submitted is 11.313, Trade Adjustment 501 W. Ocean Boulevard, Suite 4200, endangered species which is the subject Assistance) Long Beach, CA 90802–4213 (310/980– of this permit; and (3) is consistent with Dated: February 27, 1997. 4016); and the purposes and policies set forth in Protected Species Program section 2 of the ESA. Anthony J. Meyer, Coordinator, Pacific Area Office, Coordinator, Trade Adjustment and Southwest Region, NMFS, 2570 Dole Dated: February 24, 1997. Technical Assistance. Street, Room 106, Honolulu, HI 96822– Ann D. Terbush, [FR Doc. 97–5450 Filed 3–5–97; 8:45 am] 2396 (808/973–2987). Chief, Permits and Documentation Division, BILLING CODE 3510±24±M SUPPLEMENTARY INFORMATION: On Office of Protected Resources, National November 18, 1996, notice was Marine Fisheries Service. published in the Federal Register (61 [FR Doc. 97–5479 Filed 3–5–97; 8:45 am] FR 58676) that the above-named BILLING CODE 3510±22±F Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10259

[I.D. 022897C] the next 5 years. The proposed activities Dated: March 4, 1997. will also include all takes currently Stewart Davis, Marine Mammals; Scientific Research authorized under the Center’s Permit Permit (PHF# 848±1335) Deputy General Counsel, Corporation for No. 898, thereby making that permit National and Community Service. AGENCY: National Marine Fisheries null and void. Research activities will [FR Doc. 97–5722 Filed 3–4–97; 2:36 pm] involve population assessment, disease Service (NMFS), National Oceanic and BILLING CODE 6050±28±P Atmospheric Administration (NOAA), assessment, recovery action, and pelagic Commerce. ecology studies. ACTION: Receipt of application. In compliance with the National Environmental Policy Act of 1969 DEPARTMENT OF DEFENSE SUMMARY: Notice is hereby given that (42 U.S.C. 4321 et seq.), an initial Southwest Fisheries Science Center, determination has been made that the Office of the Secretary Honolulu Laboratory, NMFS, 2570 Dole activity proposed is categorically Street, Honolulu, Hawaii 96822–2396, excluded from the requirement to Meeting of the Military Health Care has applied in due form for a permit to prepare an environmental assessment or Advisory Committee take Hawaiian monk seals (Monachus environmental impact statement. schauinslandi) for purposes of scientific Dated: February 28, 1997. AGENCY: Department of Defense, research. Ann D. Terbush, Military Health Care Advisory Committee. DATES: Written comments must be Chief, Permits and Documentation Division, received on or before April 5, 1997. Office of Protected Resources, National ACTION: Notice. ADDRESSES: The application and related Marine Fisheries Service. documents are available for review [FR Doc. 97–5539 Filed 3–5–97; 8:45 am] SUMMARY: Notice is hereby given of the upon written request or by appointment BILLING CODE 3510±22±W forthcoming meeting of the Military in the following office(s): Health Care Advisory Committee. This Permits Division, Office of Protected is the sixth meeting of the Committee. Resources, NMFS, 1315 East-West The purpose of the meeting is to have CORPORATION FOR NATIONAL AND Highway, Room 13130, Silver Spring, discussions centering around medical COMMUNITY SERVICE MD 20910 (301/713–2289); personnel for the Military Health Regional Administrator, Southwest Sunshine Act Meeting Service System which will include Region, 501 West Ocean Boulevard, recruitment, retention, and support for Suite 4200, Long Beach, CA 90802– Pursuant to the provisions of the readiness; and the healthcare benefit; 4213 (310/980–4001); and Government in the Sunshine Act (5 and approaches to meeting medical Protected Species Coordinator, Pacific U.S.C. 552b), notice is hereby given of personnel requirements. A meeting Area Office, 2570 Dole Street, Room the following meeting of the Board of session will be held and will be open to 106, Honolulu, HI 96822–2396 (808/ Directors of the Corporation for National the public. 973–2987). and Community Service (Corporation). DATES: March 25, 1997. Written data or views, or requests for Date and Time: Thursday, March 13, 1997, a public hearing on this request, should from 9:30 a.m. to 1:00 p.m. ADDRESSES: Sheraton Crystal City Hotel, be submitted to the Director, Office of Place: The Ritz Carlton Hotel, 401 Ward 1800 Jefferson Davis Highway, Protected Resources, NMFS, 1315 East- Parkway, Kansas City, MO 64112. Arlington, VA, unless otherwise West Highway, Room 13130, Silver Status: The meeting will be open to the published. Spring, MD 20910. Those individuals public up to the seating capacity of the room, requesting a hearing should set forth the except that Board deliberations addressing FOR FURTHER INFORMATION CONTACT: Mr. specific reasons why a hearing on this personnel matters will be closed, pursuant to Gary A. Christopherson, Senior Advisor exemptions (c)(2) and (4) of the Government application would be appropriate. or Commander Sid Rodgers, Special in the Sunshine Act. The basis for this partial Assistant to PDASD, Office of the Concurrent with the publication of closing has been certified by the this notice in the Federal Register, Assistant Secretary of Defense (Health Corporation’s Deputy General Counsel. A Affairs), 1200 Defense Pentagon, Room NMFS is forwarding copies of this copy of the certification will be posted for application to the Marine Mammal public inspection at the Corporation’s 3E346, Washington, DC 20301–1200; Commission and its Committee of headquarters at 1201 New York Avenue NW, telephone (703) 697–2111. Scientific Advisors. Suite 8200, Washington, DC 20525, and will SUPPLEMENTARY INFORMATION: Business otherwise be available upon request. SUPPLEMENTARY INFORMATION: The Matters To Be Considered: The Board of sessions are scheduled between 9:30 am subject permit is requested under the Directors of the Corporation will meet to and 5:00 pm, on Tuesday, March 25, authority of the Marine Mammal review (1) reports from committees of the 1997. Contact Elaine L. Powell, CMP, in Protection Act of 1972, as amended Board of Directors on Corporation activities, the MHCAC Conference Support Office (16 U.S.C. 1361 et seq.), the Regulations (2) a report from the Chief Executive Officer, at (703) 575–5024, if you are interested Governing the Taking and Importing of and (3) the status of Corporation initiatives. in attending or need additional Marine Mammals (50 CFR part 216), the Accommodations: Those needing information concerning the agenda, Endangered Species Act of 1973, as interpreters or other accommodations should directions, and maps to the meeting amended (16 U.S.C. 1531 et seq.), and notify the Corporation by March 10, 1997. location. This notice may be requested in an the regulations governing the taking, alternative format for the visually impaired. Dated: February 28, 1997. importing, and exporting of endangered For Further Information: Contact Rhonda L.M. Bynum, fish and wildlife (50 CFR 222.23). Taylor, Associate Director of Special Projects Alternate OSD Federal Register Liaison The application encompasses all and Initiatives, the Corporation for National Officer, Department of Defense. research and enhancement activities to and Community Service, 1201 New York be conducted on Hawaiian monk seals Avenue NW, 8th Floor, Washington, DC [FR Doc. 97–5455 Filed 3–5–97; 8:45 am] by the NMFS Honolulu Laboratory for 20525. Telephone (202) 606–5000 ext. 282. BILLING CODE 5000±04±M 10260 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Department of the Army Patent No. Title Filing date FOR FURTHER INFORMATION CONTACT: Dr. Paul Mele, ORTA, Walter Reed Army Patent Applications Available for 08/446,149 ...... Chemothera- 05/22/95 Institute of Research, Washington, DC Licensing peutic 20307–5100. Treatment SUPPLEMENTARY INFORMATION: None. AGENCY: Office of the Judge Advocate of Bacterial Infections Gregory D. Showalter, General. With An Army Federal Register Liaison Officer. ACTION: Notice. Antibiotic [FR Doc. 97–5503 Filed 3–5–97; 8:45 am] Encap- sulated BILLING CODE 3710±08±M SUMMARY: In compliance with 37 CFR Within A 404 et seq., announcement is made of Biodegrad- the availability of the U.S. Patent able Poly- Patent Applications Available for applications available for licensing. meric Ma- Licensing trix. AGENCY: Patent No. Title Filing date 08/590,973 ...... Novel Burst- 01/24/96 Office of the Judge Advocate Free Sus- General. 08/446,148 ...... Chemothera- 05/22/95 tained Re- ACTION: Notice. peutic lease Poly Treatment (Lactide/ SUMMARY: In compliance with 37 CFR of Bacterial Glycolide) 404 et seq., announcement is made of Infections. Micro- spheres. the availability of the U.S. Patent applications available for licensing.

Patent No. Title Filing date

08/352,944 ...... Vaccines Against Diseases Caused by Enteropathogenic Organisms Using Antigens Encapsulated Within Bio- 12/09/94 degradable-Biocompatible Microspheres. 08/396,986 ...... Oral-Intestinal Vaccines Against Diseases caused by Enteropathogenic Organisms Using Antigens Encap- 03/01/95 sulated Within Biodegradable-Biocompatible Microspheres. 08/242,960 ...... Microparticle Carriers of Maximal Uptake Capacity By Both M Cells and Non-M Cells ...... 05/16/94 08/247,884 ...... Model For Testing Immunogenicity of Peptides ...... 05/23/94 08/598,874 ...... Vaccines Against Intracellular Pathogens Using Antigens Encapsulated Within Biodegradable-Microspheres ...... 02/09/96 08/698,896 ...... Hybrid Solvent Evaporation-Extraction Process For Producing PLGA Microspheres ...... 08/16/96 08/788,002 ...... Therapeutic Treatment And Prevention of Infections With A Bioactive Material(s) Encapsulated Within A Bio- 01/24/97 degradable-Biocompatible Polymeric Matrix. 08/789,734 ...... Therapeutic Treatment And Prevention Of Infections With A Bioactive Material(s) Encapsulated Within A Bio- 01/27/97 degradable-Biocompatible Polymeric Matrix.

FOR FURTHER INFORMATION CONTACT: Dr. Institute of Research, Washington DC FOR FURTHER INFORMATION CONTACT: Paul Mele, ORTA, Walter Reed Army 20307–5100. Institute of Research, Washington DC For more information regarding the SUPPLEMENTARY INFORMATION: 20307–5100. None. property identified in this Notice, Gregory D. Showalter, SUPPLEMENTARY INFORMATION: None. contact Mr. Clyde Martin, U.S. Army Gregory D. Showalter, Army Federal Register Liaison Officer. Corps of Engineers, P.O. Box 889, Savannah, GA 31402–0889 (telephone Army Federal Register Liaison Officer. [FR Doc. 97–5505 Filed 3–5–97; 8:45 am] 912–652–5014, fax 912–652–5335) or [FR Doc. 97–5504 Filed 3–5–97; 8:45 am] BILLING CODE 3710±08±M Mrs. Dewana Kennedy, Fort Bragg, NC BILLING CODE 3710±08±M 2830–5000 (telephone 910–396–4139, Department of the Army fax 910–396–3069). Patents Available for Licensing Corps of Engineers SUPPLEMENTARY INFORMATION: AGENCY: Office of the Judge Advocate 1. This surplus property is available Surplus Real PropertyÐFayetteville, General, Army. under the provisions of the Federal NC ACTION: Notice. Property and Administrative Services SUMMARY: In compliance with 37 CFR AGENCY: U.S. Army Corps of Engineers, Act of 1949 and the Base Closure 404 et seq., announcement is made of DOD. Community Redevelopment and the availability of U.S. Patent No. Homeless Assistance Act of 1994. 5,417,986, entitled ‘‘Vaccines Against ACTION: Notice. Notices of interest should be forwarded Diseases Caused by Enteropathogenic to Fayetteville City Council, ATTN: Mr. Organisms using Antigens Encapsulated SUMMARY: This notice identifies the Roger L. Stancil, 433 Hay Street, Within Biodegradable-Biocompatible surplus real property designated as Fayetteville, NC 28301–5537. Microspheres’’ issued May 28, 1995 and Recreation Center No. 2 and located at 2. The surplus real property totals U.S. Patent No. 5,470,311 entitled 333 Ray Avenue, Fayetteville, NC. The 4.35 acres and includes a two-story ‘‘Microsphere Drug Application Device’’ center is located on the corner of Rowan building containing 17,035 square feet. issued November 28, 1995. Street and Ray Avenue. Properties in the The facility is currently under lease to FOR FURTHER INFORMATION CONTACT: Dr. vicinity are generally commercial/ the City of Fayetteville and is being Paul Mele, ORTA, Walter Reed Army business. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10261 used for educational and recreational Secretary of the Navy and is available Dated: February 20, 1997. purposes. for licensing by the Department of the D.E. Koenig, Jr. Gregory D. Showalter, Navy. LCDR, JAGC, USN, Federal Register Liaison Army Federal Register Liaison Officer. Copies of the patent cited are Officer. [FR Doc. 97–5502 Filed 3–5–97; 8:45 am] available from the Commissioner of [FR Doc. 97–5522 Filed 3–5–97; 8:45 am] BILLING CODE 3710±HP±M Patents and Trademarks, Washington, BILLING CODE 3810±FF±P D.C. 20231, for $3.00 each. Requests for copies of the patent should include the Corps of Engineers patent number. DEPARTMENT OF ENERGY Grant of Exclusive License FOR FURTHER INFORMATION CONTACT: Mr. Federal Energy Regulatory R.J. Erickson, Staff Patent Attorney, Commission AGENCY: U.S. Army Corps of Engineers. Office of Naval Research, ONR 00CC, ACTION: Notice. [Docket Nos. RP95±196±000, et al. and Ballston Tower One, 800 North Quincy RP95±392±000 (Consolidated)] SUMMARY: In accordance with 37 CFR Street, Arlington, Virginia 22217–5660, 404.7(b)(1)(i), announcement is made of telephone (703) 696–4001. Columbia Gas Transmission a prospective exclusive license of U.S. Patent No. 5,552,993: AUDIO Corporation, UGI Utilities v. Columbia Japanese Patent Application No. 7– INFORMATION APPARATUS FOR Gulf Transmission Company, et al.; 510293, entitled ‘‘Concrete Armor Unit PROVIDING POSITION Notice of Informal Settlement to Protect Coastal and Hydraulic INFORMATION, patented September 3, Conference Structures and Shorelines’’ filed August 1996. February 28, 1997. 17, 1994. Dated: February 20, 1997. Take notice that an informal DATES: Written objections must be filed D.E. Koenig, Jr. settlement conference in this proceeding not later than May 5, 1997. will be convened on Thursday, March 6, LCDR, JAGC, USN, Federal Register Liaison ADDRESSES: .U.S. Army Waterways 1997, at 10:00 a.m. The settlement Officer. Experiment Station, 3909 Halls Ferry conference will be held at the offices of Road, Vicksburg, MS 39180–6199, [FR Doc. 97–5521 Filed 3–5–97; 8:45 am] the Federal Energy Regulatory ATTN: CEWES–OC. BILLING CODE 3810±FF±P Commission, 888 First Street, N.E., FOR FURTHER INFORMATION CONTACT: Washington, D.C. 20426, for the purpose Mr. Phil Stewart (601) 634–4113, e-mail of exploring the possible settlement of [email protected]. Notice of Closed Meeting of the Chief the above referenced docket. SUPPLEMENTARY INFORMATION: The of Naval Operations (CNO) Executive Any party, as defined by 18 CFR Concrete Armor Unit was invented by Panel 385.102(c), or any participant as defined Jeffrey A. Melby and George F. Turk in 18 CFR 385.102(b), is invited to (Japanese Patent Application No. 7– SUMMARY: Pursuant to the provisions of attend. Persons wishing to become a 510293, Filed August 17, 1994. Rights to the Federal Advisory Committee Act (5 party must move to intervene and the Japanese patent application have U.S.C. App. 2), notice is hereby given receive intervenor status pursuant to the been assigned to the United States of that the Chief of Naval Operations Commission’s regulations (18 CFR America as represented by the Secretary (CNO) Executive Panel will meet 1 April 385.214). of the Army. The United States of 1997 from 10:00 to 11:00 at the office of For additional information, contact America as represented by the Secretary the Chief of Naval Operations, 2000 Thomas J. Burgess at 208–2058 or David of the Army intends to grant an Navy Pentagon, Washington, DC 20350– R. Cain at 208–0917. exclusive license for all fields of use, in 2000. This session will be closed to the Lois D. Cashell, the manufacture, use, and sale in the public. Secretary. territories and possessions, including The purpose of this meeting is to [FR Doc. 97–5485 Filed 3–5–97; 8:45 am] territorial waters of Japan to TETRA Co., conduct the mid-term briefing of the BILLING CODE 6717±01±M LTD, Shinjuku I-Land Wing, 6–3–1, Naval Warfare Innovations Task Force Nishishinjuku, Shinjuku-ku, Tokyo 160, to the Chief of Naval Operations. These Japan. [Docket No. RP97±178±001] Pursuant to 37 CFR 404.7(b)(1)(i), any matters constitute classified information interested party may file a written that is specifically authorized by Kern River Gas Transmission Co.; objection to this prospective exclusive Executive order to be kept secret in the Notice of Compliance Filing interest of national defense and are, in license agreement. February 28, 1997. Gregory D. Showalter, fact, properly classified pursuant to such Executive order. Accordingly, the Take notice that on February 25, 1997, Army Federal Register Liaison Officer. Secretary of the Navy has determined in Kern River Gas Transmission (Kern [FR Doc. 97–5501 Filed 3–5–97; 8:45 am] writing that the public interest requires River) tendered for filing as part of its BILLING CODE 3710±92±M that all sessions of the meeting be closed FERC Gas Tariff, First Revised Volume to the public because they will be No. 1, the following tariff sheets, to become effective April 6, 1997: Department of the Navy concerned with matters listed in section 552b(c)(1) of title 5, United States Code. First Revised Sheet Nos. 71–2 Original Sheet No. 72–A Notice of Availability of Invention for FOR FURTHER INFORMATION CONCERNING Licensing; Government Owned First Revised Sheet No. 502 THIS MEETING CONTACT: Janice Graham, First Revised Sheet No. 602 Invention Assistant for CNO Executive Panel First Revised Sheet No. 703 SUMMARY: The invention listed below is Management, 4401 Ford Avenue, Suite First Revised Sheet Nos. 804–805 assigned to the United States 601, Alexandria, Virginia 22302–0268, Kern River states that the purpose of Government as represented by the telephone number (703) 681–6205. this filing is to propose an early 10262 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices implementation date for standard 1.3.1 and maintain approximately 40 feet of an end-user, all as more fully set forth of the standards that were promoted by two-inch interconnecting pipe and in the request on file with the the Gas Industry Standard Board (GISB) measurement facilities. Midwestern Commission and open to public and adopted by the Commission in states that NGK will reimburse inspection. Order No. 587 on July 17, 1996 in Midwestern for the cost of this project Tennessee proposes to establish a new Docket No. RM96–1–000. which is approximately $22,400. delivery point on its system at Any person desiring to protest this Midwestern states that service at the filing should file a protest with the proposed delivery point will be on an approximately Mile Post 547J–102+7.0 Federal Energy Regulatory Commission, interruptible basis and that (i) volumes in Monroe County, Mississippi. 888 First Street, N.E., Washington, D.C. delivered to NGK after the construction Tennessee states that it would install, 20426, in accordance with Section of this delivery point will not exceed own, operate and maintain a two-inch 385.211 of the Commission’s Rules and the total volumes authorized prior to hot tap and electronic gas measurement Regulations. All such protests must be this request, (ii) that the construction of interconnecting pipe on Tennessee’s filed as provided in Section 154.210 of the proposed delivery point is not right-of-way, and will inspect and the Commission’s Regulations. Protests prohibited by Midwestern’s existing operate the meter facility to be installed will be considered by the Commission tariff, and, (iii) that Midwestern has by El Paso/Pearson. It is further stated in determining the appropriate action to sufficient capacity to accomplish that El Paso/Pearson would install the be taken, but will not serve to make deliveries at the proposed delivery point remaining interconnecting pipe— protestants parties to the proceeding. without detriment or disadvantage to its approximately 50 feet, and would Copies of this filing are on file with the other customers. provide the site for, and install, own, Commission and are available for public Any person or the Commission’s staff operate and maintain, the meter facility. inspection in the Public Reference may, within 45 days after issuance of Tennessee states that the cost of the Room. the instant notice by the Commission, proposed facility is approximately Lois D. Cashell, file pursuant to Rule 214 of the $37,900, and that El Paso/Pearson Secretary. Commission’s Procedural Rules (18 CFR would reimburse Tennessee. [FR Doc. 97–5486 Filed 3–5–97; 8:45 am] 385.214) a motion to intervene or notice of intervention and pursuant to Tennessee further states that it BILLING CODE 6717±01±M § 157.205 of the Regulations under the proposes to deliver approximately 1,500 Natural Gas Act (18 CFR 157.205) a dekatherms per day to the proposed [Docket No. CP97±269±000] protest to the request. If no protest is new delivery point. It is further stated filed within the time allowed therefor, that the total quantities to be delivered Midwestern Gas Transmission the proposed activity shall be deemed to to El Paso/Pearson after the delivery Company; Notice of Request Under be authorized effective the day after the point is installed would not exceed Blanket Authorization time allowed for filing a protest. If a previously authorized total quantities. February 28, 1997. protest is filed and not withdrawn Tennessee further asserts that the Take notice that on February 26, 1997, within 30 days after the time allowed installation of the proposed delivery Midwestern Gas Transmission Company for filing a protest, the instant request point is not prohibited by Tennessee’s (Midwestern), P.O. Box 2511, Houston, shall be treated as an application for tariff, and that it has sufficient capacity Texas 77252, filed in Docket No. CP97– authorization pursuant to Section 7 of to accomplish deliveries at the proposed 269–000 a request pursuant to the Natural Gas Act. new point without detriment or §§ 157.205 and 157.212 of the Lois D. Cashell, disadvantages to Tennessee’s other Commission’s Regulations under the Secretary. customers. Natural Gas Act (18 CFR 157.205, [FR Doc. 97–5487 Filed 3–5–97; 8:45 am] Any person or the Commission’s staff 157.212) for authorization to construct a BILLING CODE 6717±01±M may, within 45 days after issuance of new delivery point for Natural Gas of the instant notice by the Commission, Kentucky (NGK), a local distribution [Docket No. CP97±225±000] file pursuant to Rule 214 of the company, under Midwestern’s blanket Commission’s Procedural Rules (18 CFR certificate issued in Docket No. CP82– Tennessee Gas Pipeline Company; 385.214) a motion to intervene or notice 414–000 pursuant to Section 7 of the Notice of Request Under Blanket of intervention and pursuant to Section Natural Gas Act, all as more fully set Authorization 157.205 of the Regulations under the forth in the request that is on file with Natural Gas Act (18 CFR 157.205) a the Commission and open to public February 28, 1997. inspection. Take notice that on February 3, 1997, protest to the request. If no protest is Midwestern proposes to establish a and as supplemented February 27, 1997, filed within the time allowed therefor, new delivery point on its system at Tennessee Gas Pipeline Company, P.O. the proposed activity shall be deemed to approximate Mile Post 2105–1+.5 in Box 2511, Houston, Texas 77252, filed be authorized effective the day after the Ohio County, Kentucky, for the delivery in Docket No. CP97–225–000, pursuant time allowed for filing a protest. If a of up to 1,500 Dekatherms of natural gas to Sections 157.205 and 157.212 of the protest is filed and not withdrawn per day to NGK for the ultimate Commission’s Regulations under the within 30 days after the time allowed distribution to a commercial entity not Natural Gas Act (18 CFR 157.205 and for filing a protest, the instant request currently served by any other provider. 157.212) and blanket certificate shall be treated as an application for Midwestern states that in order to authority granted September 1, 1982, in authorization pursuant to Section 7 of accommodate the deliveries to NGK, Docket No. CP82–413–000, a request for the Natural Gas Act. Midwestern proposes to install, own, authorization to install a new delivery Lois D. Cashell, operate and maintain a two-inch hot point to provide interruptible natural Secretary. tap, a tie-in assembly and electronic gas gas transportation service to El Paso [FR Doc. 97–5534 Filed 3–5–97; 8:45 am] measurement equipment. Midwestern Energy Marketing Company on behalf of also states that NGK will install, own, Pearson Technologies (El Paso/Pearson), BILLING CODE 6717±01±M Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10263

[Docket No. RP97±195±001] Company (Williston Basin), 200 North authorization pursuant to Section 7 of Third Street, Suite 300, Bismarck, North the Natural Gas Act. Viking Gas Transmission Company; Dakota 58501, filed in Docket No. CP97– Lois D. Cashell, Notice of Compliance Filing 249–000 a request pursuant to Secretary. February 28, 1997. §§ 157.205, 157.211, and 157.216 of the [FR Doc. 97–5488 Filed 3–5–97; 8:45 am] Take notice that on February 25, 1997, Commission’s Regulations under the BILLING CODE 6717±01±M Viking Gas Transmission Company Natural Gas Act (18 CFR 157.205, (Viking) tendered for filing as part of its 157.211, 157.216) for authorization to [Docket No. ER97±783±000, et al.] FERC Gas Tariff, First Revised Volume modify an existing tap and to abandon No. 1, the following tariff sheets the operation of the existing tap at Illinois Power Company, et al.; Electric proposed to be effective January 15, Station 68+97, located in Ramsey Rate and Corporate Regulation Filings 1997: County, North Dakota, under Williston February 27, 1997. Second Substitute Fourth Revised Sheet No. Basin’s blanket certificate issued in 1 Docket No. CP82–487–000, pursuant to Take notice that the following filings Second Substitute Second Revised Sheet No. Section 7(c) of the Natural Gas Act, all have been made with the Commission: 117 as more fully set forth in the request that 1. Illinois Power Company Second Substitute Second Revised Sheet No. is on file with the Commission and open 118 to public inspection. [Docket No. ER97–783–000] Second Substitute Fourth Revised Sheet No. Take notice that on February 10, 1997, 141 Williston Basin proposes to modify an Illinois Power Company tendered for Second Substitute Original Sheet No. 142 existing tap at Station 68+97 located in filing its amended summary of activity Second Substitute Original Sheet No. 143 Ramsey County, North Dakota, on its report for the second and third quarters Second Substitute Original Sheet No. 144 line from Cleveland to Grafton, North Second Substitute Original Sheet No. 145 of 1996. Second Substitute Original Sheet No. 146 Dakota, to effectuate natural gas Comment date: March 13, 1997, in transportation deliveries to Montana- accordance with Standard Paragraph E Viking states that purpose of this Dakota Utilities Company (Montana- at the end of this notice. filing is to comply with the Office of Dakota), a local distribution company, Pipeline Regulation’s January 15, 1997, under currently effective transportation 2. PECO Energy Company Letter in Docket No. RP97–195–000 service agreements. Williston Basin [Docket No. ER97–1501–000] requesting that Viking correct the states the existing tap is owned and was Take notice that on January 31, 1997, pagination on these sheets consistent installed by Montana-Dakota to serve PECO Energy Company (PECO) with the tariff sheet pagination industrial, commercial and/or tendered for filing a Service Agreement guidelines set forth by the Commission. residential customers. Williston Basin dated January 8, 1997 with Green Viking states that the copies of the also proposes to abandon the operation Mountain Power Corporation (Green filing have been mailed to all of its of the existing tap at Station 68+97, Mountain) under PECO’s FERC Electric jurisdictional customers and to affected Tariff Original Volume No. 1 (Tariff). state regulatory commissions. located in Ramsey County, North The Service Agreement adds Green Any person desiring to protest said Dakota. Mountain as a customer under the filing should file a protest with the Williston Basin declares the Tariff. authorization requested herein includes Federal Energy Regulatory Commission, PECO requests an effective date of 888 First Street, N.E., Washington, DC installation of a two-inch tap and riser January 8, 1997, for the Service 20426, in accordance with Section connected by approximately twelve feet Agreement. 385.211 of the Commission’s Rules of of two-inch pipe. Williston Basin asserts PECO states that copies of the filing Practice and Procedure. All such they will retain ownership of the two- have been supplied to Green Mountain protests must be filed in accordance inch tap, riser, and piping through the and to the Pennsylvania Public Utility with Section 154.210 of the first high-pressure valve. Commission. Commission’s Regulations. Protests will Williston Basin states the estimated Comment date: March 13, 1997, in be considered by the Commission in total cost of this project to be $3,700, accordance with Standard Paragraph E determining the appropriate action to be 100% reimbursable by Montana-Dakota. at the end of this notice. taken, but will not serve to make protestants parties to the proceeding. Any person or the Commission’s staff 3. Dayton Power & Light Company Copies of this filing are on file with the may, within 45 days after issuance of [Docket No. ER97–1529–000] the instant notice by the Commission, Commission and are available for public Take notice that on January 30, 1997, inspection. file pursuant to Rule 214 of the Dayton Power & Light Company (DP&L) Lois D. Cashell, Commission’s Procedural Rules (18 CFR tendered for filing a summary of Secretary. 385.214) a motion to intervene or notice transactions made by DP&L for the 4th [FR Doc. 97–5489 Filed 3–5–97; 8:45 am] of intervention and pursuant § 157.205 quarter of 1996. BILLING CODE 6717±01±M of the Regulations under the Natural Gas Comment date: March 13, 1997, in Act (18 CFR 157.205) a protest to the accordance with Standard Paragraph E request. if no protest is filed within the at the end of this notice. [Docket No. CP97±249±000] time allowed therefor, the proposed activity shall be deemed to be 4. Cinergy Services, Inc. William Basin Interstate Pipeline Company; Notice of Request Under authorized effective the day after the [Docket No. ER97–1531–000] Blanket Authorization time allowed for filing a protest. If a Take notice that on January 30, 1997, protest if filed and not withdrawn Cinergy Services, Inc. (Cinergy) February 28, 1997. within 30 days after the time allowed tendered for a quarterly transaction Take notice that on February 14, 1997, for filing a protest, the instant request report for the quarter ending December Williston basin Interstate Pipeline shall be treated as an application for 31, 1996. 10264 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Comment date: March 13, 1997, in Comment date: March 13, 1997, in for service under Schedule J, Negotiated accordance with Standard Paragraph E accordance with Standard Paragraph E Interchange Service, Schedule S, FERC at the end of this notice. at the end of this notice. Electric Rate Schedule No. 1 and OS, Opportunity Sales. 5. Cleveland Electric Illuminating 11. Duquesne Light Company FPC requests Commission waiver of Company [Docket No. ER97–1594–000] the 60-day notice requirement in order [Docket No. ER97–1532–000] Take notice that on February 10, 1997, to allow the contract to become effective Take notice that on January 31, 1997, Duquesne Light Company (Duquesne) as a rate schedule on February 12, 1997. Cleveland Electric Illuminating tendered for filing a Service Agreement Waiver is consistent with Commission Company (CEI) tendered for a quarterly between Duquesne and WPS Energy policies because it will allow voluntary transaction report for the quarter ending Services, Inc. economic transactions to go forward. December 31, 1996. Comment date: March 13, 1997, in Comment date: March 13, 1997, in Comment date: March 13, 1997, in accordance with Standard Paragraph E accordance with Standard Paragraph E accordance with Standard Paragraph E at the end of this notice. at the end of this notice. at the end of this notice. 12. Duke Power Company 15. New York State Electric & Gas Corporation 6. Duquesne Light Company [Docket No. ER97–1654–000] [Docket No. ER97–1589–000] Take notice that on February 11, 1997, [Docket No. ER97–1657–000] Take notice that on February 10, 1997, Duke Power Company (Duke), tendered Take notice that on February 11, 1997, Duquesne Light Company (Duquesne) for filing a Transmission Service New York State Electric & Gas tendered for filing a Service Agreement Agreement between Duke, on its own Corporation (NYSEG), filed three Firm between Duquesne and Ohio Edison behalf and acting as agent for its wholly- and one Non-Firm Service Agreements Company. owned subsidiary, Nantahala Power and between NYSEG and New York State Comment date: March 13, 1997, in Light Company, and Southern Energy Electric & Gas Corporation, (Customer). accordance with Standard Paragraph E Trading and Marketing, Inc. Duke states The Service Agreements specify that the at the end of this notice. that the TSA sets out the transmission Customer has agreed to the rates, terms arrangements under which Duke will and conditions of the NYSEG open 7. Duquesne Light Company provide Southern Energy Trading and access transmission tariff filed on July 9, [Docket No. ER97–1590–000] Marketing, Inc., non-firm point-to-point 1996 in Docket No. OA96–195–000. transmission service under Duke’s Pro NYSEG requests waiver of the Take notice that on February 10, 1997, Forma Open Access Transmission Commission’s sixty-day notice Duquesne Light Company (Duquesne) Tariff. Duke requests that the Agreement requirements and an effective date: tendered for filing a Service Agreement be made effective as of January 18, 1997. January 12, 1997 Firm Point-to-Point between Duquesne and The Dayton Comment date: March 13, 1997, in Transmission Service Agreement, Power & Light Company. accordance with Standard Paragraph E January 19, 1997 Firm Point-to-Point Comment date: March 13, 1997, in at the end of this notice. Transmission Service Agreement, accordance with Standard Paragraph E January 26, 1997 Firm Point-to-Point 13. Nevada Power Company at the end of this notice. Transmission Service Agreement, and 8. Duquesne Light Company [Docket No. ER97–1655–000] January 12, 1997 Non-Firm Point-to- Point Transmission Service Agreement. [Docket No. ER97–1591–000] Take notice that on February 11, 1997, Nevada Power Company (Nevada NYSEG also requests that the Take notice that on February 10, 1997, Power), tendered for filing an Electric Commission approve the termination of Duquesne Light Company (Duquesne) Service coordination Tariff the above-referenced Firm Service tendered for filing an Agreement (Coordination Tariff) having a proposed Agreements as of the termination date between Duquesne and The Cleveland effective date of March 1, 1997. The set forth in each such agreement Electric Illuminating Company. Coordination Tariff provides for the sale without the need for filing a separate Comment date: March 13, 1997, in of capacity and energy by Nevada Power notice of termination pursuant to the accordance with Standard Paragraph E to all eligible parties under the Commission’s Rules. NYSEG has served at the end of this notice. Coordination Tariff. Customers who copies of the filing on The New York 9. Duquesne Light Company take service under the Coordination State Public Service Commission and on Tariff can purchase any of the following the Customer. [Docket No. ER97–1592–000] services: 1) short term energy and Comment date: March 13, 1997, in Take notice that on February 10, 1997, capacity, 2) limited term energy and accordance with Standard Paragraph E Duquesne Light Company (Duquesne) capacity, 3) economy energy, or 4) at the end of this notice. tendered for filing an Agreement emergency energy. 16. Duke Power Company between Duquesne and The Toledo Comment date: March 13, 1997, in Edison Company. accordance with Standard Paragraph E [Docket No. ER97–1658–000] Comment date: March 13, 1997, in at the end of this notice. Take notice that on February 11, 1997, accordance with Standard Paragraph E 14. Florida Power Corporation Duke Power Company (Duke), tendered at the end of this notice. for filing a Transmission Service [Docket No. ER97–1656–000] 10. Duquesne Light Company Agreement between Duke, on its own Take notice that on February 11, 1997, behalf and acting as agent for its wholly- [Docket No. ER97–1593–000] Florida Power Corporation (‘‘FPC’’) owned subsidiary, Nantahala Power and Take notice that on February 10, 1997, tendered for filing a contract for the Light Company, and The Power Duquesne Light Company (Duquesne) provision of interchange service Company of America, L.P. Duke states tendered for filing an Agreement between itself and PanEnergy Trading that the TSA sets out the transmission between Duquesne and Allegheny and Market Services, Inc. arrangements under which Duke will Power. (‘‘PanEnergy’’). The contract provides provide The Power Company of Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10265

America, L.P., non-firm point-to-point 19. Wisconsin Electric Power Company A copy of this filing was served upon transmission service under Duke’s Pro [Docket No. ER97–1661–000] Federal Energy Sales. Forma Open Access Transmission Comment date: March 13, 1997, in Tariff. Duke requests that the Agreement Take notice that on February 11, 1997, accordance with Standard Paragraph E be made effective as of January 23, 1997. Wisconsin Electric Power Company at the end of this notice. Comment date: March 13, 1997, in (Wisconsin Electric), tendered for filing a transmission service agreement 22. Ohio Valley Electric Corporation accordance with Standard Paragraph E Indian-Kentucky Electric Corporation at the end of this notice. between itself and Northern Indiana Public Service Company (Northern). [Docket No. ER97–1665–000] 17. Illinois Power Company The agreement establishes Northern as a Take notice that on February 12, 1997, [Docket No. ER97–1659–000] customer under Wisconsin Electric’s Ohio Valley Electric Corporation transmission service tariff (FERC Take notice that on February 11, 1997, (including its wholly-owned subsidiary, Electric Tariff, Original Volume No. 7). Illinois Power Company (‘‘Illinois Indiana-Kentucky Electric Corporation) Power’’), 500 South 27th Street, Decatur, Wisconsin Electric respectfully (OVEC), tendered for filing a Service Illinois 62526, tendered for filing a requests an effective date sixty days Agreement for Non-Firm Point-to-Point Power Sales Tariff, Service Agreement after filing. Wisconsin Electric is Transmission Service, dated February 5, under which NIPSCO Energy Services authorized to state that Northern joins 1997 (the Service Agreement) between will take service under Illinois Power in the requested effective date. Duke/Louis Dreyfus L.L.C. (Duke/Louis Company’s Power Sales Tariff. The Copies of the filing have been served Dreyfus) and OVEC. OVEC proposes an agreements are based on the Form of on Northern and the Public Service effective date of February 5, 1997 and Service Agreement in Illinois Power’s Commission of Wisconsin. requests waiver of the Commission’s tariff. Comment date: March 13, 1997, in notice requirement to allow the Illinois Power has requested an accordance with Standard Paragraph E requested effective date. The Service effective date of February 1, 1997. at the end of this notice. Agreement provides for non-firm transmission service by OVEC to Duke/ Comment date: March 13, 1997, in 20. Wisconsin Public Service accordance with Standard Paragraph E Louis Dreyfus. Corporation In its filing, OVEC states that the rates at the end of this notice. [Docket No. ER97–1662–000] and charges included in the Service 18. Western Resources, Inc. Take notice that on February 11, 1997, Agreement are the rates and charges set [Docket No. ER97–1660–000] Wisconsin Public Service Corporation forth in OVEC’s Order No. 888 compliance filing (Docket No. OA96– Take notice that on February 11, 1997, (‘‘WPSC’’), tendered for filing an executed Transmission Service 190–000). Western Resources, Inc., tendered for A copy of this filing was served upon Agreement between WPSC and filing non-firm transmission agreements Duke/Louis Dreyfus. between Western Resources and Illinois American Electric Power Service Corp. Comment date: March 13, 1997, in Power Company, St. Joseph Light & The Agreement provides for accordance with Standard Paragraph E Power Company, Wisconsin Electric transmission service under the Open at the end of this notice. Power Company, Western Power Access Transmission Service Tariff, Services, Inc., Heartland Energy FERC Original Volume No. 11. 23. New England Power Company Services, and Sonat Power Marketing Comment date: March 13, 1997, in [Docket No. ER97–1666–000] L.P. Western Resources states that the accordance with Standard Paragraph E Take notice that on February 12, 1997, purpose of the agreements is to permit at the end of this notice. New England Power Company (NEP) non-discriminatory access to the 21. Ohio Valley Electric Corporation, filed Service Agreements with U.S. transmission facilities owned or Indiana-Kentucky Electric Corporation Generating Co. and Wisconsin Electric controlled by Western Resources in Power Co. for non-firm, point-to-point [Docket No. ER97–1664–000] accordance with Western Resources’ transmission service under NEP’s open open access transmission tariff on file Take notice that on February 12, 1997, access transmission tariff, FERC Electric with the Commission. The agreements Ohio Valley Electric Corporation Tariff, Original Volume No. 9. are proposed to become effective as (including its wholly-owned subsidiary, Comment date: March 13, 1997, in follows: Illinois Power Company, Indiana-Kentucky Electric Corporation) accordance with Standard Paragraph E January 24, 1997, St. Joseph Light & (OVEC), tendered for filing a Service at the end of this notice. Power Company, January 30, 1997; Agreement for Non-Firm Point-to-Point Wisconsin Electric Power Company, Transmission Service, dated January 31, 24. Portland General Electric Company January 30, 1997; Western Power 1997 (the Service Agreement) between [Docket No. ER97–1667–000] Services, Inc., January 31, 1997; Federal Energy Sales, Inc. (Federal Take notice that on February 12, 1997, Heartland Energy Services, February 1, Energy Sales) and OVEC. OVEC Portland General Electric Company 1997; and Sonat Power Marketing L.P., proposes an effective date of January 31, (PGE), tendered for filing under FERC February 5, 1997. 1997 and requests waiver of the Electric Tariff, Second Revised Volume Copies of the filing were served upon Commission’s notice requirement to No. 2, an executed Service Agreement Illinois Power Company, St. Joseph allow the requested effective date. The with the Okanogan Public Utility Light & Power Company, Wisconsin Service Agreement provides for non- District. Electric Power Company, Western firm transmission service by OVEC to Pursuant to 18 CFR 35.11 and the Power Services, Inc., Heartland Energy Federal Energy Sales. Commission’s order issued July 30, 1993 Services, and Sonat Power Marketing In its filing, OVEC states that the rates (Docket No. PL93–2–002), PGE L.P., and the Kansas Corporation and charges included in the Service respectfully requests the Commission Commission. Agreement are the rates and charges set grant a waiver of the notice Comment date: March 13, 1997, in forth in OVEC’s Order No. 888 requirements of 18 CFR 35.3 to allow accordance with Standard Paragraph E compliance filing (Docket No. OA96– the executed Service Agreement to at the end of this notice. 190–000). become effective February 1, 1997. 10266 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

A copy of this filing was caused to be Schedule, Waivers and Blanket [Docket No. PL97±1±000] served upon the Okanogan Public Authority. Utility District as noted in the filing Issues and Priorities for the Natural Comment date: March 13, 1997, in Gas Industry; Notice of Public letter. accordance with Standard Paragraph E Comment date: March 13, 1997, in Conference and Opportunity To at the end of this notice. accordance with Standard Paragraph E Comment at the end of this notice. 29. City of Vernon, California February 28, 1997. 25. New England Power Company [Docket No. OA97–524–000] Take notice that the Federal Energy Regulatory Commission is convening a [Docket No. ER97–1668–000] Take notice that on February 7, 1997, public conference on May 29 and 30, Take notice that on February 12, 1997, City of Vernon, California (Vernon) filed 1997, to conduct a broad inquiry into New England Power Company (NEP) an application for waiver of the the important issues facing the natural filed a Service Agreement with requirements of Order No. 889. Vernon gas industry today, and the Fitchburg Gas & Electric Co. (FG&E) for states that it meets the standards Commission’s regulation of the industry non-firm, point-to-point transmission enunciated by the Commission for for the future. The Commission expects service under NEP’s open access eligibility for such a waiver. a broad ranging discussion that will transmission tariff, FERC Electric Tariff, Comment date: March 20, 1997, in allow the members of the Commission Original Volume No. 9. to discuss these issues with the Comment date: March 13, 1997, in accordance with Standard Paragraph E at the end of this notice. industry, and the public generally, in accordance with Standard Paragraph E order for the Commission to establish its at the end of this notice. Standard Paragraph regulatory goals and priorities in the 26. Public Service Company of New post-Order No. 636 1 environment. We E. Any person desiring to be heard or Mexico anticipate engaging all industry to protest said filing should file a segments in a dialogue about how the [Docket No. ER97–1669–000] motion to intervene or protest with the industry currently works, how the Take notice that on February 12, 1997, Federal Energy Regulatory Commission, industry is changing, and how the Public Service Company of New Mexico 888 First Street, NE., Washington, DC Commission’s regulatory policies (PNM), submitted for filing an executed 20426, in accordance with Rules 211 should respond to such changes in the service agreement under the terms of and 214 of the Commission’s Rules of marketplace. PNM’s Open Access Transmission Tariff Practice and Procedure (18 CFR 385.211 I. Background with Southwestern Public Service and 18 CFR 385.214). All such motions Company. PNM’s filing is available for or protests should be filed on or before Since the issuance and public inspection at its offices in the comment date. Protests will be implementation of Order No. 636, Albuquerque, New Mexico. considered by the Commission in natural gas markets have developed Comment date: March 13, 1997, in determining the appropriate action to be rapidly and the industry has gained experience functioning under different accordance with Standard Paragraph E taken, but will not serve to make at the end of this notice. conditions.2 Also, significant changes in protestants parties to the proceeding. the structure of the natural gas industry 27. Southern Company Services, Inc. Any person wishing to become a party have occurred since Order No. 636 [Docket No. ER97–1670–000] must file a motion to intervene. Copies issued. These include consolidation in Take notice that on February 12, 1997, of this filing are on file with the the ownership of interstate pipelines, Southern Company Services, Inc. Commission and are available for public the spin-off and spin-down of gathering (SCSI), acting on behalf of Alabama inspection. with the potential for state regulation, Power Company, Georgia Power Lois D. Cashell, the emergence of mega marketers, and Company, Gulf Power Company, Secretary. the emerging electric and gas convergence. In addition, many more Mississippi Power Company and [FR Doc. 97–5481 Filed 3–5–97; 8:45 am] Savannah Electric and Power Company market centers exist today, offering a (collectively referred to as Southern BILLING CODE 6717±01±P wide array of services that increase the Companies) filed two (2) service flexibility of the system and facilitate agreements under Southern Companies’ connections between gas sellers and Market-Based Rate Power Sales Tariff [Project Nos. 11285±003] buyers. These services commonly (FERC Electric Tariff, Original Volume include wheeling, parking, loaning, and No. 4) with the following entities: (i) Casitas Municipal Water District; storage. Illinois Power Company; and (ii) Notice of Extension of Comment Date The interstate pipeline transportation grid has expanded significantly, offering Morgan Stanley Capital Group, Inc. February 28, 1997. SCSI states that the service agreements will enable Southern Companies to Because of delayed newspaper 1 Pipeline Service Obligations and Revisions to publication of the notice issued Regulations Governing Self-Implementing engage in short-term market-based rate Transportation; and Regulation of Natural Gas transactions with this entity. February 5, 1997 (62 FR 8235, February Pipelines After Partial Wellhead Decontrol, [Regs. Comment date: March 13, 1997, in 24, 1997), for the Lake Casitas Power Preambles Jan. 1991–June 1996] FERC Stats. & Regs. accordance with Standard Paragraph E Project, the comment date in item j. is ¶ 30,939 (1992), order on reh’g, Order No. 636–A, [Regs. Preambles Jan. 1991–June 1992] FERC Stats. at the end of this notice. being extended from March 25, 1997 to & Regs. ¶ 30,950 (1992), order on reh’g, Order No. 28. Black Brook Energy Company April 1, 1997. 636–B, 61 FERC ¶ 61,272 (1992), reh’g denied, 62 Lois D. Cashell, FERC ¶ 61,007 (1993). [Docket No. ER97–1676–000] 2 For example, the winters of 1993–94 and 1995– Secretary. Take notice that on February 12, 1997, 96 were relatively cold and capacity in some [FR Doc. 97–5480 Filed 3–5–97; 8:45 am] regions was tight, and the winter of 1994–95 Black Brook Energy Company tendered relatively warm and capacity was unusually slack BILLING CODE 6717±01±M for filing a Petition for Initial Rate in some regions. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10267 shippers more flexibility in their choice appropriate transportation. Therefore, Commission intends to be a continuing of supply areas, and creating new paths the Commission needs to continually effort. The Commission also has from existing supply areas to additional assess the operation of the adopted an alternative ratemaking markets. Today, the natural gas contract transportation system to ensure that policy, including market-based, is among the most heavily traded of all unnecessary restrictions, particularly negotiated, and incentive rates. Further, commodity futures. Also, pipeline regulatory restrictions, do not impair the the Commission has obtained comments capacity rights can now be traded, and functioning of the commodity market. on the appropriateness of also electronic communication and trading is Are there aspects of interstate pipeline permitting the negotiation of the terms increasingly more common. Electronic regulation that could facilitate the and conditions of service.7 The trading systems enable buyers to emergence of even more efficient Commission has also considered discover the price and availability of gas natural gas commodity and capacity turnback issues in specific at transaction points, submit bids, transportation markets? cases. The Commission has proposed complete legally binding transactions, In the aftermath of Order No. 636, the improvements to the capacity release and prearrange capacity release Commission also sees more competition rules so that pipeline capacity can be transactions. Further, capacity release is among interstate pipelines. traded more efficiently.8 In addition to also playing an increasingly significant Nontraditional interstate service these initiatives, the Commission has role in permitting the reallocation of providers, such as intrastate pipelines, also been urged to develop procedures firm pipeline capacity to customers Hinshaw pipelines and local to clarify and expedite the processing of most desiring it. Capacity release distribution companies, are also complaints. permits shippers to release the rights to competing with interstate pipelines to transportation on the segments of a provide interstate service. This raises II. Scope of Inquiry pipeline they do not need, and to questions concerning the relative roles As noted, the Commission is acquire firm rights in segments that of NGPA Section 311 3 and NGA Section interested in obtaining public comment connect to other supply areas, on a 7 4 in meeting the demand for new as to what should be the Commission’s temporary or permanent basis. In sum, interstate services. Increased use of near-term and longer term regulatory all of the changes that have occurred NGPA Section 311 to provide a wide priorities. We request a broad analysis since Order No. 636 have given shippers variety of interstate transportation of industry issues now and in the future, better alternatives at less cost and services creates questions about including those deemed the highest greater reliability than ever before. applying two different regulatory priority for Commission action. With all these advances, the industry regimes. Specifically, the Commission would like now faces new issues. A few states have In addition, there are longstanding input on issues of competition and implemented unbundled retail access issues respecting pricing and market power, the general financial for all customer classes. Unbundled environmental review for new facilities. outlook for the industry, and the present retail access is progressing in some Furthermore, given the post-Order No. and future development of industry states faster than others, and unbundled 636 evolution of the natural gas segments (e.e., pipelines, local retail access generally is not available to industry, there are questions concerning distribution companies, producers, all customer classes equally. Further, the Commission’s criteria for the marketers, and consumers). We would the exercise of market power behind the certification and siting of new interstate also like an analysis of whether, and to city gate may translate into the exercise pipeline facilities. what extent, the Commission’s current of market power in the interstate At the same time, market power approach to regulation should be transportation market. These issues also remain a concern. altered. For example, in light of the developments may create new issues for Discrimination, affiliate abuse, and issues identified, what procedural the Commission in its regulation of other exercises of market power by innovations should the Commission interstate pipelines. transporters and holders of interstate explore? How can the Commission more In addition, the ability of customers to pipeline capacity (i.e., LDC’s, marketers, effectively address the issues inherent buy and sell gas and transportation producers and endusers) can undermine in a competitive environment? How capacity, especially in the intraday the goals of open access and can pose should the Commission continue to market, is not yet a reality. Electric impediments to greater regulatory fulfill its NGA mandate in an generators, for example, sell into flexibility. increasingly competitive market? It is increasingly competitive hourly electric The Commission remains committed the answers to these kinds of questions markets. The natural gas market has not to the fundamental goal of Order No. that the Commission seeks in this yet developed the ability to engage in 636: ‘‘improving the competitive proceeding. transactions on an hourly basis. The structure of the natural gas industry in Commission would like input on order to maximize the benefits of III. Request for Comments whether trading gas and transportation wellhead decontrol.’’ 5 To that end, the In order to focus and facilitate the capacity on an hourly basis is desirable Commission has already initiated organization of the discussion at the to meet the needs of customers. It may certain regulatory changes to improve conference, the Commission requests be that regulatory impediments exist the functioning of the transportation written comments from interested that prevent the natural gas industry grid. Among these are the participants to be filed with the from offering such flexibility. standardization of interstate pipeline Commission by April 29, 1997. The Under Order No. 636 the natural gas business practices,6 which the Commission requests that the markets have improved industry reliability; however, there may be 3 15 U.S.C. § 3371. 7 Alternatives to Traditional Cost-of-Service further improvements that could be 4 15 U.S.C. § 717f. Ratemaking for Natural Gas Pipelines and made, and at a lower cost. From a 5 Order No. 636 at 30,392 (citation omitted). Regulation of Negotiated Transportation Services of competitive perspective, gas 6 Standards for Business Practices of Interstate Natural Gas Pipelines, 74 FERC ¶ 61,076 (1996). Natural Gas Pipelines, Order No. 587, 61 FR 39053 8 Secondary Market Transactions on Interstate transportation and commodity markets (July 26, 1996), III FERC Stats. & Regs. ¶ 31,038 Natural Gas Pipelines, 61 FR 41046 (August 7, are interconnected. Many commodity (1996) (to be codified at 18 CFR Parts 161, 250 and 1996), IV FERC Stats. & Regs. ¶ 32,520 (proposed trades cannot occur without the 284). July 31, 1996). 10268 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices participants include executive Notice of Issuance of Decisions and was a security concern resulting from summaries in their comments, and file Orders by the Office of Hearings and other alcohol consumption-related joint comments, wherever possible. Any Appeals; Week of February 3 Through behavior that tended to show that the person who wishes to make a formal February 7, 1997 individual was not honest, reliable or presentation to the Commission should trustworthy. However, the Hearing submit a request to the Secretary of the During the week of February 3 Officer found that the security concerns Commission along with the written through February 7, 1997, the decisions raised by other mental conditions comments. The Commission will issue a and orders summarized below were diagnosed by the DOE psychiatrist were separate notice at a later date organizing issued with respect to appeals, mitigated by the passage of time and a the public conference. applications, petitions, or other requests more current diagnosis in which filed with the Office of Hearings and another mental health professional An original and 14 copies of Appeals of the Department of Energy. expressed his opinion that such mental comments on these issues should be The following summary also contains a conditions were not present. Therefore, submitted to the Office of the Secretary, list of submissions that were dismissed the Hearing Officer found that those Federal Energy Regulatory Commission, by the Office of Hearings and Appeals. concerns had been mitigated. 888 First Street, N.E., Washington, DC Copies of the full text of these Nevertheless, because of the security 20426, and should refer to Docket No. decisions and orders are available in the concerns based on his alcohol-related PL97–1–000. All written comments will Public Reference Room of the Office of charges, the Hearing Officer be placed in the Commission’s public Hearings and Appeals, Room 1E–234, recommended that the individual’s files and will be available for inspection Forrestal Building, 1000 Independence access authorization not be restored. in the Commission’s Public Reference Avenue, SW, Washington, D.C. 20585– Personnel Security Hearing, 2/3/97, Room during regular business hours. 0107, Monday through Friday, between VSO–0113 Commenters are requested to submit a the hours of 1:00 p.m. and 5:00 p.m., An OHA Hearing Officer issued an diskette containing the written except federal holidays. They are also Opinion regarding the eligibility of an comments. If the Commission receives available in Energy Management: individual to maintain access diskettes with the comments submitted Federal Energy Guidelines, a authorization under the provisions of 10 in hard copy, then the Commission will commercially published loose leaf C.F.R. Part 710. After considering the make the written comments also reporter system. Some decisions and testimony presented at the hearing and available on the Commission Issuance orders are available on the Office of the record, the Hearing Officer found Posting System (CIPS). CIPS is available Hearings and Appeals World Wide Web that the individual habitually used at no charge to the user and may be site at http://www.oha.doe.gov. alcohol to excess. This finding was accessed using a personal computer Dated: February 25, 1997. based on the individual’s two charges of with a modem by dialing 202–208–1397 George B. Breznay, Driving Under the Influence (DUI), the if dialing locally or 1–800–856–3920 if Director, Office of Hearings and Appeals. high amount of alcohol that the dialing long distance. To access CIPS, individual consumed and his belief that set your communications software to Decision List No. 19 he had a drinking problem. Although 19200, 14400, 12000, 9600, 7200, 4800, Week of February 3 Through February 7, the individual had attended a three 2400, or 1200 bps, full duplex, no 1997 month counseling program, he parity, 8 data bits and 1 stop bit. The continued to drink. The Hearing Officer full text of this order will be available Personnel Security Hearings found the Individual was not on CIPS in ASCII and WordPerfect 5.1 Personnel Security Hearing, 2/3/97 rehabilitated or reformed from his format. CIPS user assistance is available VSO–0106, habitually excessive use of alcohol. The at 202–208–2474. CIPS is also available An OHA Hearing Officer issued an Hearing Officer also found the on the Internet through the Fed World Opinion regarding the eligibility of an Individual, due to his two DUI arrests, system. Telnet software is required. To individual to maintain access two assault charges, two domestic access CIPS via the Internet, point your authorization under the provisions of 10 violence charges, two telephone browser to the URL address: http:// C.F.R. Part 710. After considering the harassment charges, and his unreformed www.fedworld.gov and select the ‘‘Go testimony presented at the hearing and drinking habitually to excess to have to the FedWorld Telnet Site’’ button. the record, the Hearing Officer found engaged in unusual conduct or to have When your Telnet software connects that the individual habitually used been subject to circumstances which you, log on to the FedWorld system, alcohol to excess and had mental tend to show that he was not honest, scroll down and select FedWorld by conditions (alcohol abuse and alcohol reliable, or trustworthy; or which typing: 1 and at the command line and dependency) that cause or may cause a furnished reason to believe that he may type: /go FERC. FedWorld may also be significant defect in judgment or be subject to pressure, coercion, accessed by Telnet at the address reliability. These findings were based on exploitation, or duress which may cause fedworld.gov. the individual’s two charges of Driving him to act contrary to the best interests All questions concerning the format of Under the Influence (DUI), his pattern of of the national security. Accordingly, the conference should be directed to: alcohol consumption despite the the Hearing Officer recommended that Erica J. Yanoff, Office of the General negative impact it had on his life and the individual’s access authorization not Counsel, Federal Energy Regulatory the fact that such consumption violated be restored. Commission, 888 First Street, NE., the terms of his probation, and the Personnel Security Hearing, 2/7/97, Washington, DC 20426, 202–208–0708. diagnoses of two mental health VSO–0118 By direction of the Commission. professionals, including one selected by A Hearing Officer found that an the individual himself. The Hearing individual had not successfully Lois D. Cashell, Officer found the Individual was not mitigated security concerns arising from Secretary. rehabilitated or reformed from his his provision of false information to the [FR Doc. 97–5535 Filed 3–5–97; 8:45 am] habitually excessive use of alcohol. The DOE and a pattern of criminal and other BILLING CODE 6717±01±M Hearing Officer also found that there conduct that tended to show that the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10269 individual was not honest, reliable, and not entitled to any relief under 10 C.F.R. purchases. The Anchor purchases had trustworthy. Accordingly, the Hearing Part 708. been made by Seago. However, the DOE Officer recommended in the Opinion found that Seago had merged into Mid Implementation of Special Refund that the individual’s access Continent, and consequently, the right Procedures authorization not be restored. to the Anchor refund belonged to Mid Houma Oil Co., Jedco, Inc., 2/7/97, Continent, not to the former owner of Whistleblower Proceeding VEF–0023, VEF–0024 Seago. Accordingly, the application Charles Barry DeLoach, 2/5/97, VWA– The DOE issued a Decision and Order filed by Mid Continent was granted and 0014 establishing procedures for the that filed by Seago was denied. For Charles Barry DeLoach (DeLoach), a distribution of funds obtained from these same reasons, the DOE rescinded former employee of a Department of Houma Oil Company and Jedco, Inc. a refund previously granted to Seago in Energy (DOE) contractor, Westinghouse These funds were remitted by each firm the ARCO special refund proceeding. Savannah River Company (WSRC), filed to the DOE to settle pricing violations Pan Ocean Shipping Co., Ltd., 2/4/97, a request for a hearing under the DOE’s with respect to sales of motor gasoline. RG272–381 Contractor Employee Protection The Decision sets forth procedures for Program, 10 C.F.R., Part 708. DeLoach customers who claim they were injured The Department of Energy (DOE) claimed that he was terminated from his by motor gasoline purchases from issued a Decision and Order (D&O) job as a result of his raising issues with Houma Oil during the period May 1, granting an Application for Refund that his superiors regarding various health 1979 through April 30, 1980 or from was filed by Pan Ocean Shipping Co., and safety issues. WSRC claimed Jedco, Inc. between November 1, 1973 Ltd. (Pan Ocean) in the crude oil refund DeLoach was fired for stealing and March 31, 1974. Any funds proceeding. In the Decision, the OHA approximately $50,000 of DOE remaining after meritorious claims are approved Pan Ocean’s estimation equipment. A hearing was held in paid will be used for indirect restitution methodology, which was based on their which DeLoach and witnesses for WSRC through the states in accordance with ships’’ average daily fuel consumption, testified before an Office of Hearings the Petroleum Overcharge Distribution the number of days that their voyages and Appeals Hearing Officer. On the and Restitution Act of 1986. lasted, and the petroleum product basis of the testimony and other purchasing patterns of their vessels. Pan Refund Applications evidence in the record, the Hearing Ocean was granted a refund of $184,469. Anchor Gasoline Corporation/Mid Officer concluded that DeLoach proved Refund Applications by a preponderance of the evidence that Continent Systems, Inc., Seago he had made disclosures protected by Enterprises, Inc., Atlantic Richfield The Office of Hearings and Appeals Part 708. However, the Hearing Officer Company/Seago Enterprises, Inc., issued the following Decisions and further concluded that WSRC had 2/4/97, RF346–18, RF346–48, Orders concerning refund applications, proved by clear and convincing RF304–15507 which are not summarized. Copies of evidence that it would have taken this Both Seago Enterprises, Inc., and Mid the full texts of the Decisions and action even in the absence of DeLoach’s Continent Systems, Inc., filed competing Orders are available in the Public disclosures. The Hearing Officer Applications for Refund in the Anchor Reference Room of the Office of therefore determined that DeLoach was special refund proceeding for the same Hearings and Appeals.

AJO TRADING CORPORATION ...... RJ272±35 2/4/97 BLUFF CREST, INC ...... RJ272±36 ...... ALTAIR AIRLINES, INC ...... RG272±620 2/7/97 NORTHERN COOPERATIVE, INC. ET AL ...... RG272±640 2/7/97 RUDYARD COOPERATIVE COMPANY ...... RG272±658 2/4/97 Dismissals The following submissions were dismissed.

Name Case No.

ENERGY MARKET & POLICY ANALYSIS, INC ...... VFA±0259 ENSERCH CORPORATION ...... RG272±00495 FARMERS UNION COOPERATIVE CO ...... RG272±00584 KUMM FARM INC ...... RF272±89420 L. KRUPP CONSTRUCTION CO., INC ...... RG272±00855 LANKIN FARMERS GRAIN CO ...... RG272±00770 LYNNEDALE PLANTING CO., INC ...... RF272±89268 MIK COOP TRUCKING ASSN ...... RG272±00896 NERSTRAND FARMERS MERC. & ELEV. CO ...... RG272±00664 NEW YORK TELEPHONE COMPANY ...... RF272±89009 THE CALIFORNIA STATE UNIVERSITY ...... RF272±87979 WEST SHORE CONSTRUCTION ...... RG272±00789 XEROX CORPORATION ...... RF272±93346 10270 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

[FR Doc. 97–5516 Filed 3–5–97; 8:45 am] statements or chemical specific FEDERAL ELECTION COMMISSION BILLING CODE 6450±01±P information should also be directed to the DFO. Sunshine Act Meeting Another meeting of the NAC/AEGL is Tuesday, March 11, 1997 at 10:00 a.m. ENVIRONMENTAL PROTECTION expected to be held in Washington, D.C. AGENCY PLACE: 999 E Street, N.W., Washington, in June, 1997. It is anticipated that DC. [OPPT±00210; FRL±5592±9] chemicals to be addressed at this STATUS: This meeting will be closed to meeting will include, but not the public. National Advisory Committee for Acute necessarily be limited to the following: Exposure Guideline Levels for ammonia, carbon tetrachloride, allyl ITEMS TO BE DISCUSSED: Hazardous Substances (NAC/AEGL); amine, ethylene imine, methyl Open Meeting Compliance matters pursuant to 2 isocyanate, chlorine trifluoride, U.S.C. § 437g. AGENCY: Environmental Protection diborane, methyl chloroformate, and Audits conducted pursuant to 2 U.S.C. Agency (EPA). propyl chloroformate. Inquiries § 437g, § 438(b), and Title 26, U.S.C. ACTION: Notice of open meeting and regarding the submission of data, Matters concerning participation in civil chemicals to be addressed. written statements or chemical-specific actions or proceedings or information on these chemicals should arbitration. SUMMARY: A meeting of the National be directed to the DFO at the earliest Internal personnel rules and procedures Advisory Committee for Acute Exposure date possible to allow for consideration or matters affecting a particular Guideline Levels for Hazardous of this information in the preparation of employee. Substances (NAC/AEGL) will be held on committee materials. March 17–19, 1997, in Washington, D.C. Thursday, March 13, 1997 at 10:00 a.m. At this meeting, the committee will List of Subjects PLACE: 999 E Street, N.W., Washington, continue deliberations as time permits DC (ninth floor). on various aspects of the acute Environmental protection. STATUS: This meeting will be open to the toxicology and development of Acute public. Exposure Guideline Levels (AEGLs) for Dated: February 27, 1997. ITEMS TO BE DISCUSSED: the following chemicals: ethylene oxide; Joseph A. Carra, phosgene; aniline; toluene 2,6- Correction and Approval of Minutes. diisocyanate and 2,4-isomer; isopropyl Acting Director, Office of Pollution Prevention and Toxics. Advisory Opinion 1997–01: Susan chloroformate; and hydrogen chloride. Bevill Livingston on behalf of Tom DATES: A meeting of the NAC/AEGL will [FR Doc. 97–5684 Filed 3–5–97; 8:45 am] Bevill and the Bevill Foundation. be held from 10 a.m. to 5 p.m. on BILLING CODE 6560±50±F Petition for Rulemaking Filed by James Monday, March 17; from 8:30 a.m. to Bopp, Jr., on Behalf of the National 5:00 p.m. on March 18; and from 8:30 Right to Life Committee, Inc.; a.m. to 11:15 a.m. on March 19, 1997. Notice of Availability. ADDRESSES: The meeting will be held in EQUAL EMPLOYMENT OPPORTUNITY Administrative Matters. Hearing Room C on the first floor of the COMMISSION PERSON TO CONTACT FOR INFORMATION: Interstate Commerce Commission Mr. Ron Harris, Press Officer, Sunshine Act Meeting Building, 1201 Constitution Avenue Telephone: (202) 219–4155. NW, Washington, D.C. AGENCY HOLDING THE MEETING: Equal Marjorie W. Emmons, FOR FURTHER INFORMATION CONTACT: Dr. Employment Opportunity Commission. Secretary of the Commission. Paul S. Tobin, Office of Prevention, [FR Doc. 97–5729 Filed 3–4–97; 2:37 pm] Pesticides, and Toxic Substances (7406), FEDERAL REGISTER CITATION OF PREVIOUS BILLING CODE 6715±01±M 401 M St. SW., Washington, D.C. 20460, ANNOUNCEMENT: 62 FR 9430, Monday, (202) 260–1736, e-mail: March 3, 1997. [email protected]. PREVIOUSLY ANNOUNCED TIME AND DATE OF FEDERAL RESERVE SYSTEM SUPPLEMENTARY INFORMATION: For MEETING: further information on the scheduled 2:00 p.m. (Eastern Time) Tuesday, March 11, 1997. Change in Bank Control Notices; meeting, the activities of the committee Acquisitions of Shares of Banks or or the submission of information on CHANGE IN THE MEETING: Bank Holding Companies chemicals to be discussed at the meeting, contact Dr. Paul S. Tobin, the Open Session The notificants listed below have applied under the Change in Bank Designated Federal Officer (DFO) (see Item No. 2.B. Task Force presentation Control Act (12 U.S.C. 1817(j)) and § FOR FURTHER INFORMATION on Litigation Strategy has been removed CONTACT). 225.41 of the Board’s Regulation Y (12 The meeting of the NAC/AEGL will be from the agenda. CFR 225.41) to acquire a bank or bank open to the public. Oral presentations or CONTACT PERSON FOR MORE INFORMATION: holding company. The factors that are statements by interested parties will be Frances M. Hart, Executive Officer, on considered in acting on the notices are limited to ten minutes. Since seating for (202) 663–4070. set forth in paragraph 7 of the Act (12 outside observers may be limited, those U.S.C. 1817(j)(7)). wishing to attend the meeting as Dated: March 3, 1997. The notices are available for observers should contact the NAC/ Frances M. Hart, immediate inspection at the Federal AEGL DFO at the earliest possible date Executive Officer, Executive Secretariat. Reserve Bank indicated. Once the to insure adequate seating arrangements. [FR Doc. 97–5602 Filed 3–3–97; 4:28 pm] notices have been accepted for Inquiries regarding oral presentations BILLING CODE 6750±06±M processing, they will also be available and the submission of written for inspection at the offices of the Board Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10271 of Governors. Interested persons may writing on the standards enumerated in one or more of the questions set forth express their views in writing to the the BHC Act (12 U.S.C. 1842(c)). If the below under the heading: ‘‘Session One: Reserve Bank indicated for that notice proposal also involves the acquisition of Computerized Data Bases Containing or to the offices of the Board of a nonbanking company, the review also Sensitive Consumer Identifying Governors. Comments must be received includes whether the acquisition of the Information.’’ However, the Commission not later than March 20, 1997. nonbanking company complies with the will consider comments of all persons, A. Federal Reserve Bank of Chicago standards in section 4 of the BHC Act. including non-participants in Session (James A. Bluemle, Vice President) 230 Unless otherwise noted, nonbanking One. South LaSalle Street, Chicago, Illinois activities will be conducted throughout Sessions Two and Three follow upon 60690-1413: the United States. the Bureau of Consumer Protection’s 1. Randolph S. Miles, Antioch, Unless otherwise noted, comments June 1996 public workshop on Illinois; to retain a total of 55.73 percent regarding each of these applications Consumer Privacy on the Global of the voting shares of Antioch Holding must be received at the Reserve Bank Information Infrastructure (‘‘June 1996 Company, Antioch, Illinois, and thereby indicated or the offices of the Board of Workshop’’), which was held to provide indirectly retain State Bank of The Governors not later than March 31, an opportunity for public dialogue on Lakes, Antioch, Illinois. 1997. the complex privacy issues posed by the 2. Cynthia M. Stout, Antioch, Illinois; A. Federal Reserve Bank of emerging online marketplace. Sessions to retain a total of 25.44 percent of the Richmond (Lloyd W. Bostian, Jr., Senior Two and Three are intended to update voting shares of Antioch Holding Vice President) 701 East Byrd Street, the Commission on the current status of Company, Antioch, Illinois, and thereby Richmond, Virginia 23261-4528: the collection, compilation, sale, and indirectly retain State Bank of The 1. Southern National Corporation, use of personal information online, and Lakes, Antioch, Illinois. Winstom-Salem, North Carolina; to on self-regulatory efforts and B. Federal Reserve Bank of Dallas merge with United Carolina Bancshares technological developments since June (Genie D. Short, Vice President) 2200 Corporation, Whiteville, North Carolina, 1996. Session Two will address recent North Pearl Street, Dallas, Texas 75201- and thereby indirectly acquire United developments in the collection, 2272: Carolina Bank, Whiteville, North compilation, sale, and use of personal 1. Deborah Yowell Farley, Killeen, Carolina, and United Carolina Bank of information online generally, including Texas, and Sheryl Yowell Anderson, South Carolina, Greer, South Carolina. self-regulatory efforts, technological Austin, Texas; to each acquire an Board of Governors of the Federal Reserve innovations, and unsolicited additional 10.00 percent, for a total of System, February 28, 1997. commercial e-mail. Session Three will 29.99 percent, of the voting shares of Jennifer J. Johnson, address the same developments as they Texas State Bancshares, Harker Heights, Deputy Secretary of the Board. pertain to children’s personal Texas, and thereby indirectly acquire information. Heights State Bank, Harker Heights, [FR Doc. 97–5449 Filed 3–5–97; 8:45 am] Interested parties who wish to apply Texas. BILLING CODE 6210±01±F for participation in Session Two must Board of Governors of the Federal Reserve file a written comment addressing one System, February 28, 1997. FEDERAL TRADE COMMISSION or more of the questions listed below Jennifer J. Johnson, under the heading ‘‘Session Two: Deputy Secretary of the Board. Public Workshop on Consumer Consumer Online Privacy.’’ Interested [FR Doc. 97–5448 Filed 3–5–97; 8:45 am] Information Privacy parties who wish to apply for BILLING CODE 6210±01±F participation in Session Three must file AGENCY: Federal Trade Commission. a written comment addressing one or ACTION: Notice Requesting Public more of the questions listed below Formations of, Acquisitions by, and Comment and Announcing Public under the heading ‘‘Session Three: Mergers of Bank Holding Companies Workshop. Children’s Online Privacy.’’ However, The companies listed in this notice SUMMARY: The Federal Trade Commission staff will consider have applied to the Board for approval, Commission has determined to hold a comments of all persons, including non- pursuant to the Bank Holding Company public workshop devoted to consumer participants in Session Two or Session Act of 1956 (12 U.S.C. 1841 et seq.) information privacy. The workshop will Three, in determining what further (BHC Act), Regulation Y (12 CFR Part be divided into three sessions. Commission action, if any, it will 225), and all other applicable statutes Session One is intended to gather recommend in the area of online privacy and regulations to become a bank information as part of a Commission protections. holding company and/or to acquire the study of the collection, compilation, DATES: Written comments and assets or the ownership of, control of, or sale, and use of computerized data bases notifications of interest in participating the power to vote shares of a bank or that contain what consumers may in the workshop must be submitted on bank holding company and all of the perceive to be sensitive identifying or before April 15, 1997. Parties may banks and nonbanking companies information, often referred to as ‘‘look- apply to participate in more than one owned by the bank holding company, up services.’’ These data bases typically workshop session. Notifications of including the companies listed below. are used to locate individuals or interest must specify the session(s) in The applications listed below, as well develop individual background which participation is sought. as other related filings required by the information. Interested parties are Requesters will be notified as soon as Board, are available for immediate encouraged to submit written comments possible after May 15, 1997, if they have inspection at the Federal Reserve Bank concerning the subject of this study, been selected to participate. The indicated. Once the application has which is described more fully in the workshop will be held on June 10–13, been accepted for processing, it will also Supplementary Information section of 1997 in Room 432 of the Commission’s be available for inspection at the offices this Notice. Any person who wishes to headquarters building, Sixth Street & of the Board of Governors. Interested apply for participation in Session One Pennsylvania Avenue, N.W., persons may express their views in must file a written comment addressing Washington, D.C. 20580. The tentative 10272 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices schedule for workshop sessions is as Street and Pennsylvania Avenue, N.W., Information Collection and Use follows: Session One—June 10, 1997 Washington, D.C. 20580, (202) 326– 1.1 What is the number and the (9:00 am—5:00 pm); Session Two—June 2222, or visit the Commission’s home identity of such data bases? 11, 1997 (9:00 am—5:00 pm) and June page at http://www.ftc.gov for 1.2 What information is contained in 12, 1997 (9:00 am—noon); Session instructions on obtaining an electronic the data bases? Please provide specific Three—June 12, 1997 (1:30—5:00 pm) copy. examples. and June 13, 1997 (9:00 am—5:00 pm). SUPPLEMENTARY INFORMATION: 1.3 What is the source of the ADDRESSES: Six paper copies of each information in the data bases? written comment and each request to Session One: Computerized Data Bases 1.4 What information is currently participate in the workshop should be Containing Sensitive Consumer used to identify individuals? What types submitted to: Secretary, Federal Trade Identifying Information of information might be used to identify Commission, Room H–159, Sixth Street Background individuals in the future? & Pennsylvania Ave., N.W., 1.5 Do the data bases contain Washington, D.C., 20580. Comments for In light of widespread concern and identifying information that consumers Session One should be captioned ‘‘Data Congressional interest, the Commission regard as sensitive? What identifying Base Study—Comment, P974806.’’ has determined to conduct a study of information is considered to be Requests to participate in Session One the collection, compilation, sale, and sensitive? Why is such information should be identified as ‘‘Data Base use of computerized data bases that regarded as sensitive? Please provide Workshop—Request to Participate, contain what consumers may perceive specific examples. P974806.’’ Comments for Sessions Two to be sensitive identifying information, 1.6 Do the data bases contain and Three should be captioned as often referred to as ‘‘look-up services.’’ identifying information that consumers ‘‘Consumer Privacy 1997—Comment, Examples of such sensitive identifying regard as non-sensitive? What P954807.’’ Requests to participate in information may include some or all of identifying information is considered to Sessions Two and Three should be the following: social security numbers, be non-sensitive? Why is such identified as ‘‘Consumer Privacy 1997— mothers’ maiden names, prior information regarded as non-sensitive? Request to Participate, P954807.’’ addresses, and dates of birth. Some data Please provide specific examples. To enable prompt and efficient review bases provide significantly more 1.7 Who has access to the and dissemination of the comments to information, such as information about information in the data bases? the public, comments also should be physical characteristics, property 1.8 How is the information in the submitted, if possible, in electronic holdings, and the subject individual’s data bases accessed? What are the form, on either a 51⁄4 or a 31⁄2 inch family members and neighbors. Session charges for accessing the information? computer disk, with a disk label stating One is intended to gather information as 1.9 What are the uses of the the name of the commenter and the part of this study. information in the data bases? Are there name and version of the word The study will assess the types of beneficial uses of the information in processing program used to create the information that consumers perceive to these data bases? If so, please describe. document. (Programs based on DOS or be sensitive, as well as their level of Are there risks associated with the Windows are preferred. Files from other concern regarding the maintenance of compilation, sale, and use of this operating systems should be submitted and access to such information. In information? If so, please describe. in ASCII text format to be accepted.) addition, the study will evaluate the 1.10 Do these data bases create an Individuals filing comments in risks associated with the lawful and undue potential for theft of consumers’ electronic form need submit only one unlawful use of data bases containing credit identities? How is such potential computer disk. sensitive identifying information, and for theft created? Please provide specific FOR FURTHER INFORMATION CONTACT: For the benefits offered by such data bases. examples. What is the extent to which questions concerning Session One: Finally, the data base study will explore these data bases (as opposed to other Steven Silverman, Attorney, Division of consumers’ privacy concerns regarding means) contribute to consumer identity Credit Practices, Bureau of Consumer the collection, sale and use of their theft? Is this likely to change in the Protection, Federal Trade Commission, identifying information. The study will future? If so, please describe. Sixth Street & Pennsylvania Avenue, not address data bases used primarily 1.11 How do the risks of the N.W., Washington, D.C. 20580, for direct marketing purposes; medical collection, compilation, sale, and use of telephone 202–326–2460. For questions and student records; or the use of this information compare with the concerning Session Two: Martha consumer credit reports for employment benefits? Landesberg, Attorney, Division of Credit purposes. The study will culminate in a 1.12 Are there means that are Practices, Federal Trade Commission, report to Congress. currently available to address the risks, Sixth Street & Pennsylvania Avenue, Invitation To Comment if any, posed by these data bases? If so, N.W., Washington, D.C. 20580, please describe. telephone 202–326–2825. For questions Interested parties are requested to 1.13 What means might be concerning Session Three: Toby submit written comments on any issue considered in the future to address any Milgrom Levin, Attorney, Division of of fact, law or policy that may inform risks posed by these data bases? What Advertising Practices, Federal Trade the Commission’s study of the impact will potential solutions have on Commission, Sixth Street & collection, compilation, sale, and use of the beneficial uses of these data bases? Pennsylvania Avenue, N.W., computerized data bases that provide 1.14 What are consumers’ Washington, D.C. 20580, telephone 202– sensitive consumer identifying perceptions of (1) the benefits and risks 326–3156. information, often referred to as ‘‘look- associated with the collection, To obtain a copy of the Commission up services.’’ Please provide copies of compilation, sale, and use of this Staff Report Consumer Privacy on the any studies, surveys, research, or other information and (2) appropriate uses of Global Information Infrastructure empirical data referenced in responses. such information? (1996), contact the Commission’s Public The Commission seeks comment on the 1.15 Are consumers’ privacy Reference Section, Room H-130, 6th following questions: interests implicated by the collection, Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10273 compilation, sale, and use of laws? If so, what regulatory or legal necessary elements of self-regulatory information from these data bases? If so, requirements are appropriate? efforts to enhance consumer privacy please describe. Are other legal interests online; developments in interactive Self-Regulation implicated? If so, please describe. technology that could enhance online 1.16 Are there means to address any 1.27 Have data base operators information privacy; consumer and privacy or other legal interests undertaken self-regulatory efforts to business education efforts; the role of implicated by the collection, address concerns raised by the government in protecting online compilation, sale, and use of collection, compilation, sale, and use of information privacy; and the special information from these data bases? If so, sensitive consumer identifying issues raised by the online collection please describe. information? and use of information from and about 1.17 How should the benefits of the 1.28 What is the content of children. On January 6, 1997, the collection, compilation, sale, and use of principles, recommendations, or Commission published the staff report information from these data bases be guidelines that have emerged? To the Consumer Privacy on the Global balanced against privacy or other legal extent that industry associations have Information Infrastructure (1996), interests implicated by such practices? developed principles, which summarized the workshop Are there other ways to obtain these recommendations, or guidelines, are testimony. The report recommended benefits without implicating privacy or they permissive or mandatory for that the Commission hold a follow-up other legal interests? If so, please association members? What sanctions workshop. are imposed for non-compliance? How describe. Unlike the June 1996 Workshop, 1.18 Is the ultimate use of the many association members have implemented them? Please provide case which was convened primarily to information disclosed to the subject provide a forum for the expression of individuals? At what point in time is studies, member surveys, or other quantitative data wherever possible. views on online privacy issues, the use of the information disclosed? Workshop Sessions Two and Three are What is the content of such disclosures? 1.29 Have such principles, recommendations or guidelines been designed to collect empirical data Is there any information that should be relevant to those issues. Specifically, added to these disclosures? If so, please effective in addressing concerns associated with the collection, staff now seeks written commentary to describe. document developments in four areas: 1.19 Do data base operators permit compilation, sale, and use of sensitive consumer identifying information? How (1) Web sites’ current actual practices in consumers to choose whether and how the collection, compilation, sale, and their personal identifying information can the effectiveness of self-regulation in this area best be measured? use of consumers’ personal information; will be collected and used? If so, please (2) current implementation of self- describe the choices provided to Technological Developments regulatory efforts to address online consumers. 1.30 Has technology evolved that privacy, including industry proposals 1.20 Is there an effective mechanism could address concerns raised by the presented at the June 1996 Workshop; for an individual to remove his or her collection, compilation, sale, and use of (3) current design and implementation name from a data base or otherwise sensitive consumer identifying of technologies intended to enhance control the use of their personal information? Please describe any such online information privacy; and (4) identifying information? If so, please developments. unsolicited commercial e-mail. describe. 1.31 What are the costs and benefits Interested parties are requested to 1.21 Do subject individuals have of employing such technology? submit written comments on any issue access to their data and the ability to 1.32 What are consumers’ of fact, law or policy that may inform correct errors? If so, please describe. perceptions, knowledge and the Commission on these subjects. 1.22 Have data base operators expectations regarding the risks and Session Two: Consumer Online Privacy instituted procedures to maintain the benefits of using such technology? security of identifying information that Invitation To Comment they collect? What is the nature of such Consumer and Business Education procedures? Are the procedures 1.33 What efforts are underway to To supplement and update the record adequate? Please provide specific educate consumers about data bases developed at the June 1996 Workshop, examples. containing sensitive consumer the Commission seeks new evidence 1.23 Are there additional procedures identifying information? and additional comment on the that are used or available to assure the 1.34 What are or should be the following questions, a number of which accuracy of the data and to limit use of principle messages of such efforts? were discussed generally at that the data to its intended purpose? What 1.35 How can education efforts best Workshop. Responses should provide is the nature of such procedures? Are be implemented? specific examples, models, case studies, the procedures adequate? Please provide Workshop Sessions Two and Three surveys or other research, and specific examples. quantitative and empirical data 1.24 Is the collection, compilation, Background wherever possible. Please provide copies sale, and use of this information subject The June 1996 Workshop identified of any studies, surveys, research, or to any federal laws or regulations? If so, key issues raised by information other empirical data referenced in please describe. practices of commercial sites on the responses. 1.25 Is the collection, compilation, World Wide Web (the ‘‘Web’’), privacy Information Collection and Use sale, and use of this information subject concerns raised by those practices, and to any state laws or regulations? If so, interactive technology’s potential for 2.1 What kinds of personal please describe. addressing information privacy online. information are collected by commercial 1.26 Should the collection, Participants in the June 1996 Workshop Web sites from users who visit those compilation, sale, and use of discussed a wide array of subjects, sites and how is such information information from these data bases be including the collection and use of subsequently used? Among other things, subject to additional regulations or personal information online; the is clickstream data being collected and 10274 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices tied to personally identifying Self-Regulation consumers or others? Are there available information? 2.9 What industry principles, means of avoiding or limiting such 2.2 To what extent is the collection, recommendations or guidelines have costs? If so, what are they? 2.19 Are there technological compilation, sale or use of personally emerged since the June 1996 Workshop? developments that might serve the identifying, as opposed to aggregate, Please discuss whether they are interests of consumers who prefer not to personal information important for permissive or mandatory, whether they receive unsolicited commercial e-mail? marketing online and for market include sanctions for non-compliance, If so, please describe. research? What privacy concerns, if any, and the extent to which they have been are raised by the collection or use of 2.20 How many commercial entities implemented within the industry. have implemented the Principles for aggregate personal information in this 2.10 What steps have individual context? Unsolicited Marketing E-mail presented commercial Web sites taken since June at the June 1996 Workshop by the Direct 2.3 What are the risks, costs, and 1996 to address online privacy issues? Marketing Association and the benefits of collection, compilation, sale, How many have employed the Interactive Services Association? and use of personal consumer procedures for notice and choice set Documents referenced in the above information in this context? forth in the Joint Statement on Online questions may be found in Appendix C 2.4 What surveys, other research, or Notice and Opt-Out presented at the to the Commission staff report quantitative or empirical data exist June 1996 Workshop by the Direct Consumer Privacy on the Global about consumers perceptions, Marketing Association and the Information Infrastructure (1996). knowledge and expectations regarding Interactive Services Association? (1) whether their personal information 2.11 How many online services have Session Three: Children’s Online is being or should be collected by Web implemented the procedures set forth in Privacy site operators and the extent of such the Interactive Services Association’s Invitation To Comment Guidelines for Online Services: The collection; (2) the benefits and risks The June 1996 Workshop identified Renting of Subscriber Mailing Lists associated with the collection and key issues raised by information submitted for inclusion in the June 1996 subsequent use of this information; (3) practices of commercial Web sites that appropriate uses of such information; Workshop record? are directed to children (‘‘children’s and (4) whether certain categories of 2.12 How many marketers have commercial Web sites’’), privacy information should never be collected implemented the provisions of the concerns raised by those practices, and or disclosed to others? Coalition for Advertising Supported interactive technology’s potential for 2.5 How many commercial Web Information and Entertainment’s addressing children’s information sites collect, compile, sell or use (CASIE) Goals for Privacy in Marketing privacy online. To supplement and personal information? Of these, how on Interactive Media presented at the update the record developed at the June many give consumers notice of their June 1996 Workshop? 1996 Workshop, the Commission seeks practices regarding the collection and 2.13 What privacy concerns, if any, new evidence and additional comment subsequent use of personal information? are not adequately addressed by existing on the following questions, a number of With respect to these Web sites, guidelines? which were discussed generally at that describe (1) how and when such notice Technological Developments Workshop. Responses should provide is given, (2) the content of such notice, specific examples, models, case studies, and (3) the costs and benefits, for both 2.14 Has interactive technology surveys or other research, and consumers and commercial Web sites, evolved since June 1996 in ways that quantitative and empirical data of providing such notice. could address online privacy issues? To wherever possible. Please provide copies what extent is it currently available and of any studies, surveys, research, or 2.6 Of the commercial Web sites that being used by consumers and collect, compile, sell or use personal other empirical data referenced in commercial Web sites? responses. information, how many provide 2.15 What are the risks and benefits, consumers choice with respect to to both consumers and commercial Web Information Collection and Use whether and how their personal sites, of employing such technology? information is to be collected and 3.1 What kinds of personal What are consumers’ perceptions about information are collected by children’s subsequently used by those sites? With the risks and benefits of using such respect to such Web sites, describe (1) commercial Web sites from children technology to address online privacy who visit those sites and how is such what choices are provided to consumers issues? and how such choices are exercised; information subsequently used? Among and (2) the costs and benefits, for both Unsolicited Commercial E-mail other things, is clickstream data being collected and tied to personally consumers and commercial Web sites, 2.16 How widespread is the practice identifying information about children; of providing such choices. of sending unsolicited commercial e- is information being collected from 2.7 Of the commercial Web sites that mail? Are privacy or other consumer children to create lists for sending collect, compile, sell or use personal interests implicated by this practice? unsolicited e-mail? information, how many provide What are the sources of e-mail addresses 3.2 To what extent is the collection, consumers access to, and an used for this purpose? compilation, sale or use of personally opportunity to review and correct, 2.17 What are the risks and benefits, identifying, as opposed to aggregate, personal information about them that is to both consumers and commercial children’s personal information collected and retained by those sites? entities, of unsolicited commercial e- important for marketing online or for 2.8 Of the commercial Web sites that mail? What are consumers’ perceptions, marketing research? What privacy collect, compile, sell or use personal knowledge, and expectations regarding concerns, if any, are raised by the information, how many have procedures the risks and benefits of unsolicited collection or use of aggregate children’s to maintain the security of personal commercial e-mail? personal information in this context? information collected from consumers 2.18 What costs does unsolicited 3.3 What are the risks, costs and online, and what are those procedures? commercial e-mail impose on benefits of the collection, compilation, Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10275 sale, and use of children’s information role do they currently play, and what 3.19 Are there technological in this context? role could they play in the future? developments that might serve the 3.4 What surveys, other research, or interests of parents who prefer that their Self-Regulation quantitative or empirical data exist children not receive unsolicited about parents’ perceptions, knowledge 3.11 What industry principles, commercial e-mail? and expectations regarding (1) whether recommendations or guidelines have 3.20 How many children’s their children’s personal information is emerged since the June 1996 Workshop? commercial Web sites have being or should be collected by Web site Please discuss whether they are implemented the Principles for operators and the extent of such permissive or mandatory, whether they Unsolicited Marketing E-mail presented collection; (2) the benefits and risks include sanctions for non-compliance, at the June 1996 Workshop by the Direct associated with the collection and and the extent to which they have been Marketing Association and the subsequent use of such information; (3) implemented within the industry. Interactive Services Association? appropriate uses of such information; 3.12 What steps have children’s Documents referenced in the above and (4) whether certain categories of commercial Web site operators taken questions may be found in Appendix C children’s information should never be since June 1996 to address children’s to the Commission staff report collected or disclosed to others? online privacy issues? To what extent Consumer Privacy on the Global 3.5 How many children’s have they adopted the principles Information Infrastructure (1996). commercial Web sites collect, compile, outlined in the following documents sell or use children’s personal submitted at the June 1996 Workshop: Form and Availability of Comments information? Of these, how many give (1) the Joint Statement on Children’s Comments should indicate the parents notice of their practices Marketing Issues presented by the Direct number(s) of the specific question(s) regarding the collection and subsequent Marketing Association and Interactive being answered, provide responses to use of personal information? With Services Association; (2) Self-Regulation questions in numerical order, and use a respect to these Web sites, describe (1) Proposal for the Children’s Internet new page for each question answered. how and when such notice is given; (2) Industry presented by Ingenius, Yahoo the content of such notice; and (3) the Written comments will be available and Internet Profiles Corporation; and for public inspection in accordance with costs and benefits, for both parents and (3) Proposed Guidelines presented by children’s commercial Web sites, of the Freedom of Information Act, 5 the Center for Media Education and U.S.C. 552, and Commission providing such notice. Consumer Federation of America? 3.6 Of the children’s commercial regulations, 16 C.F.R. Part 4.9, on Web sites that collect, compile, sell or 3.13 What privacy concerns, if any, normal business days between the hours use children’s personal information, are not adequately addressed by existing of 8:30 a.m. and 5:00 p.m. at the Public how many provide parents choice with guidelines? Reference Room 130, Federal Trade respect to whether and how their Technological Developments Commission, Sixth Street & children’s personal information is Pennsylvania Avenue, N.W., 3.14 Has interactive technology collected and subsequently used by Washington, D.C. 20580. The evolved since June 1996 in ways that those sites? With respect to such Web Commission will make this notice and, could address children’s online privacy sites, describe: (1) what choices are to the extent technically possible, all issues? To what extent is it (a) readily provided to parents and how such comments received in response to this available; (b) currently in use; (c) easy choices are exercised; and (2) the costs notice available to the public through to use; and (d) effective in preventing and benefits, for both parents and the Internet at the following address: children from disclosing personally children’s commercial Web sites, of http://www.ftc.gov. The Commission identifiable information? providing such choices. cannot currently receive comments 3.7 Of the children’s commercial 3.15 What are the costs and benefits, responding to this notice over the Web sites that collect, compile, sell or to both parents and children’s Internet. commercial Web sites, of employing use children’s personal information, Workshop Sessions how many provide parents access to, such technology? What are parents’’ and an opportunity to review and perceptions, knowledge and The workshop will be held on June correct, personal information about their expectations of the risks and benefits of 10–13, 1997 in Room 432 of the children that is collected and retained using such technology? Commission’s headquarters building, by those sites? Unsolicited Commercial E-mail Sixth Street & Pennsylvania Avenue, 3.8 Of the children’s commercial N.W., Washington, D.C. 20580. The Web sites that collect, compile, sell or 3.16 How widespread is the practice tentative schedule for workshop use children’s personal information, of sending children unsolicited sessions is as follows: Session One— how many have procedures to maintain commercial e-mail? Are privacy or other June 10, 1997 (9:00 am–5:00 pm); the security of personal information consumer interests implicated by this Session Two—June 11, 1997 (9:00 am– collected from children online, and practice? What are the sources of e-mail 5:00 pm) and June 12, 1997 (9:00 am– what are those procedures? addresses used for this purpose? noon); Session Three—June 12, 1997 3.9 Do children’s information 3.17 What are the risks and benefits, (1:30–5:00 pm) and June 13, 1997 (9:00 practices in the online context differ to children, parents and commercial am–5:00 pm). Those parties who wish to from those implemented in other entities, of unsolicited e-mail directed to participate in the workshop must file contexts? If so, describe the differences. children? What are parents’ perceptions, written comments and notify the Do the risks, costs, and benefits of these knowledge and expectations of the risks Commission’s Secretary, in writing, of practices differ depending on the and benefits? their interest in participating in context? If so, describe the differences. 3.18 What costs does unsolicited Sessions One, Two, and/or Three on or 3.10 Do schools, libraries, and other commercial e-mail directed to children before April 15, 1997. Parties may settings in which children may have impose on children, parents, or others? participate in more than one workshop access to the Web, have a role to play Are there available means of avoiding or session; notifications of interest must in protecting children’s privacy? What limiting such costs? If so, what are they? specify the session(s) in which 10276 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices participation is sought. All workshop Parties to represent the above- GENERAL SERVICES sessions are open to the public. referenced interests will be selected on ADMINISTRATION The purpose of the workshop will not the basis of the following criteria: Notice of Intent to Prepare an be to achieve a consensus of opinion 1. The party submits a written among participants, or between Environmental Impact Statement for comment (in the prescribed form) for the Exterior Security of Federally participants and Commission staff, with one or more sessions and notifies respect to any issue raised in Sessions Occupied Buildings in the District of Commission staff of its interest in Columbia One, Two, or Three. The purpose of participating in those sessions on or Session One will be to explore the before April 15, 1997. Pursuant to Section 102(2)(C) the issues raised by the Commission’s study National Environmental Policy Act 2. The party’s participation would and discussed in the comments (NEPA) of 1969 as implemented by the promote a balance of interests being responding to this notice. The Council on Environmental Quality represented at the conference. Commission will consider the views (CEQ) regulations (40 CFR parts 1500– and suggestions made during Session 3. The party’s participation would 1508), the General Services One, as well as any written comments, promote the consideration and Administration (GSA) announces its as part of its study. discussion of a variety of issues raised intent to prepare an Environmental The purpose of Sessions Two and by the study. Impact Statement (EIS) to evaluate the Three will be to update the Commission 4. The party has expertise in or potential environmental impacts of on the current collection and use of knowledge of the issues that are the vehicle restrictions near selected personal information online, and on focus of the study. federally-occupied buildings in the self-regulatory efforts and technological District of Columbia. developments since June 1996. 5. The party adequately reflects the The GSA is investigating measures to Commission staff will consider the views of the affected interest(s) which it improve security at buildings in the views and suggestions made during purports to represent, not simply a District of Columbia occupied by federal these sessions, as well as any written single entity or firm within that interest. employees. In cooperation with the comments, in determining what further 6. The party has been designated by GSA, tenants of federally occupied Commission action, if any, it will one or more interested parties (who buildings formed Building Security recommend in the area of online privacy timely file written comments and Committees (BSC) to decide the type protections. requests to participate) as a party who and amount of security appropriate for their needs. The BSC recommended If the number of parties who request shares group interests with the vehicle restrictions in the proximity of to participate in Session One, Two, or designator(s). federal buildings. GSA will prepare an Three is so large that including all 7. The number of parties selected will EIS to assess the potential effect of this requesters would inhibit effective not be so large as to inhibit effective type of recommendation and determine discussion among the participants, then discussion among them. whether the impact of the recommended Commission staff will select a limited alternative is significant. number of parties, from among those If it is necessary to limit the number The GSA has identified 80 federally who submit written comments, to of participants, those not selected to occupied buildings within the represent the significant interests participate, but who submit both written downtown of the District of Columbia affected by the study. These parties will comments and requests to participate, that are currently at a security risk. A participate in an open discussion of the may be afforded an opportunity at the series of alternatives will be analyzed to issues. It is contemplated that the end of the session to present their views determine the effectiveness at selected parties will ask and answer during a limited time period. The time improving building security and questions based on their respective allotted for these statements will be determine the environmental impacts: determined on the basis of the time comments, including questions posed • No Action—This alternative necessary for discussion of the issues by by Commission staff. The discussion presents no change in the existing will be transcribed and the transcription the selected parties, as well as by the vehicle restrictions. placed on the public record. number of persons who wish to make • Partial Vehicular Restriction— To the extent possible, Commission statements. Vehicle restrictions in proximity to staff will select parties to represent the Requesters will be notified as soon as federal buildings would only allow for following affected interests. For Session possible after May 15, 1997, if they have authorized vehicles with a secure One: data base operators and their been selected to participate in workshop windshield sticker, placard, or other customers; suppliers of data to data sessions. To assist Commission staff in identifying marker. bases; federal, state and local law making this notification, parties are • Total Vehicular Restriction—All enforcement and regulatory authorities; asked to include in their request to vehicles in proximity to any at-risk consumer and privacy advocacy groups; participate a telephone number and federally occupied buildings would be and any other interests that Commission facsimile number if available. prohibited. staff may identify and deem appropriate The EIS to be prepared by the GSA for representation. For Sessions Two Authority: 15 U.S.C. 41 et seq. will address the following potential and Three: consumer and privacy By direction of the Commission. areas of concern: economic impacts to advocacy groups; industry groups, Donald S. Clark, the District of Columbia; traffic flow and online service providers, Web site Secretary. mass transit; air quality; and public owners; online marketers; consumers [FR Doc. 97–5562 Filed 3–5–97; 8:45 am] safety. who are active on the World Wide Web; GSA will initiate a scoping process for interactive technology developers; and BILLING CODE 6750±01±P the purpose of determining the scope of any other interests that Commission issues to be addressed and for staff may identify and deem appropriate identifying the significant issues related for representation. to this proposed action. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10277

Public scoping meetings are sessions will take place from 8:30 a.m. D. Humphrey Building, 200 Independence scheduled for: until 5 p.m. on Monday, Tuesday, Avenue SW., Washington, DC 20201, April 9, 1997 beginning at 7:30 p.m. Wednesday and from 8:30 a.m. until 12 telephone (202) 690–7100, or Marjorie at the General Services Administration noon on Thursday. The sessions will be Greenberg, Acting Executive Secretary, NCVHS, NCHS, CDC, Room 1100, Auditorium located at 18th and F held at the Washington National Airport Presidential Building, 6525 Belcrest Road, Streets, NW., Washington, DC 20405 Hilton, 2399 Jefferson Davis Highway, Hyattsville, Maryland 20782, telephone 301/ (enter on the F Street Entrance) and Arlington, Virginia 22202. The purpose 436–7050. April 10, 1997 beginning at 1:30 p.m. at of this meeting is to discuss the Federal Dated: February 28, 1997. the General Services Administration Depository Library Program. The Regional Auditorium located at 7th & D meeting is open to the public. James Scanlon, Streets, SW., Washington, DC 20407 A limited number of hotel rooms have Director, Division of Data Policy. (enter on the D Street Entrance) These been reserved at the Washington [FR Doc. 97–5517 Filed 3–5–97; 8:45 am] meetings will be announced in local National Airport Hilton for anyone BILLING CODE 4151±04±M newspapers. needing hotel accommodations. A brief presentation will precede the Telephone: 703–418–6800; FAX: 703– request for public comment. GSA 418–3762. Agency for Health Care Policy and representative will be available at this Please specify the Depository Library Research meeting to receive comments from the Council when you contact the hotel. Notice of Health Care Policy and public regarding issues of concern. It is Room cost per night is $124. Research; Special Emphasis Panel important that federal, state, and local Michael F. DiMario, Meeting agencies and interested groups and Public Printer. individuals take this opportunity to [FR Doc. 97–5557 Filed 3–5–97; 8:45 am] In accordance with section 10(a) of identify environmental concerns that BILLING CODE 1520±01±P the Federal Advisory Committee Act (5 should be addressed during the U.S.C., Appendix 2) announcement is preparation of the EIS. All interested made of the following special emphasis parties are invited to attend this meeting DEPARTMENT OF HEALTH AND panel scheduled to meet during the or submit comments in writing as HUMAN SERVICES month of March 1997: described below. When registering, each attendee will be requested to indicate National Committee on Vital and Health Name: Health Care Policy and Research Special Emphasis Panel. whether oral comments will be Statistics: Meeting Date and Time: March 28, 1997, 1:00 p.m. delivered at the meeting. In the interest Place: Agency for Health Care Policy and of available time, each speaker will be Pursuant to the Federal Advisory Committee Act, the Department of Research, 2101 E. Jefferson Street, Suite 400, asked to limit oral comments to five (5) Rockville, MD 20852. minutes. Longer comments should be Health and Human Services announces Open Mach 28, 1:00 p.m. to 1:15 p.m. summarized at the public meeting or the following advisory committee Closed for remainder of meeting. mailed to the address listed at the end meeting. Purpose: This Panel is charged with of this announcement. To be most Name: National Committee on Vital and conducting the initial review of grant helpful, scoping comments should Health Statistics (NCVHS). applications submitted in response to the Times and Dates: 9 a.m.–5:30 p.m., March National Research Service Award Individual clearly describe specific issues or topics Postdoctoral Fellowships Program. The that the commenter believes the EIS 13, 1997; 9 a.m.–5:30 p.m., March 14, 1997. Place: Room 703A, Hubert H. Humphrey postdoctoral research fellowships provide should address. All written statements Building, 200 Independence Avenue, SW., opportunities for 1 or more years of academic and/or questions regarding the scoping Washington, DC 20201. training and supervised experience in process should be mailed no later than Status: Open. applying quantitative research methods to April 24, 1997 to: Ms. Christine Kelly, Purpose: The meeting will focus on the the systematic analysis and evaluation of General Services Administration, Committee’s progress in addressing new health services. (WPCAA), Property Development responsibilities in health data standards and Agenda: The open session of the meeting Division, Room 2634, 7th & D Streets health information privacy as outlined in the on March 28, from 1:00 p.m. to 1:15 p.m., will be devoted to a business meeting SW., Washington, DC 20407, telephone administrative simplification provisions of P.L. 104–191, as well as on related matters. covering administrative matters. During the (202) 708–4900, ext. 256, E-mail Departmental officials will brief the closed session, the committee will be [email protected]. Committee on recent activities of the HHS reviewing and discussing grant applications Dated: February 21, 1997. Data Council, the status of HHS activities in dealing with health services research issues. In accordance with the Federal Advisory William R. Lawson, implementing the administrative simplification provisions of P.L. 104–191, Committee Act, section 10(d) of 5 U.S.C., Assistant Regional Administrator, Public and related data policy activities. The Appendix 2 and 5 U.S.C., 552b(c)(6), the Buildings Service. Committee is scheduled to hear reports from Acting Administrator, AHCPR, has made a [FR Doc. 97–5477 Filed 3–5–97; 8:45 am] its subcommittees and work groups dealing formal determination that this latter session BILLING CODE 6820±23±M with privacy and confidentiality, data will be closed because the discussions are standards and populations at risk. likely to reveal personal information Information presentations are scheduled on concerning individuals associated with the conceptual frameworks for coding and grant applications. This information is GOVERNMENT PRINTING OFFICE classification, as well as on unique patient exempt from mandatory disclosure. identifiers. The Committee also will discuss Anyone wishing to obtain a roster of Depository Library Council to the its priorities and work plans. members or other relevant information Public Printer; Meeting Contact Person for More Information: should contact Carmen M. Johnson, Agency Substantive program information as well as for Health Care Policy and Research, Suite The Depository Library Council to the summaries of the meeting and a roster of 400, 2101 East Jefferson Street, Rockville, Public Printer (DLC) will hold its Spring committee members may be obtained from Maryland 20852, Telephone (301) 594–1449 1997 meeting on Monday, April 14, James Scanlon, NCVHS Executive Staff x1613. 1997, through Thursday, April 17, 1997, Director, Office of the Assistant Secretary for Agenda items for this meeting are subject in Arlington, Virginia. The meeting Planning and Evaluation, DHHS, Room 440– to change as priorities dictate. 10278 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Dated: February 26, 1997. the Northern Mariana Islands, the 1. The human resources needed to Lisa Simpson, Republic of the Marshall Islands, the direct the statewide project, including Acting Administrator. Republic of Palau, and federally facilitating leadership, visibility, [FR Doc. 97–5494 Filed 3–5–97; 8:45 am] recognized Indian tribal governments. coordination, and inclusion of the State agencies applying under this BILLING CODE 4160±90±M prevention of secondary conditions as a announcement other than the official public health priority, both within the State health department must provide applicant agency and in cross-agency Centers for Disease Control and written concurrence from that agency collaborations; Prevention and describe the proposed working 2. Support of an advisory function to relationship. Only one application from assist in project guidance and oversight; [Announcement Number 730] each State may enter the review process 3. Developing and implementing a and be considered for an award under State plan and/or policy document for State Capacity Projects for Assessing this program. the prevention of secondary conditions and Preventing Secondary Conditions that includes coordination with other Availability of Funds Associated With Disability and related planning functions; Promoting the Health of Persons With A total of $5,300,000 is estimated to 4. Gathering and analyzing disability Disabilities; Notice of Availability of be available in FY 1997 to fund State information from targeted populations Funds for Fiscal Year 1997 capacity projects. CDC anticipates in the State and promoting the use of making 15–16 awards which will not Introduction this data in developing and exceed $350,000 each. Awards are implementing disability policy and the The Centers for Disease Control and expected to be made in June 1997, for resulting program direction; Prevention (CDC) announces the a 12-month budget period beginning on 5. Support of data collection using availability of fiscal year (FY) 1997 July 1, 1997, within a project period of questions taken from BRFSS-related cooperative agreements to establish and/ up to four years. modules and other instruments; or sustain capacity to assess the Funding estimates are subject to 6. Sustaining collaborations and magnitude of disability in States, change, including funds to be awarded partnerships with constituency prevent secondary conditions associated in continuation budget years. The organizations and individuals, and with disability, and promote the health funding levels for each continuation ensuring that access for persons with and wellness of persons with year of the project period are expected disabilities to project activities and disabilities. to remain constant at $350,000. facilities will be achieved; CDC is committed to achieving the However, the actual amount of future 7. Collecting and disseminating health promotion and disease year funding levels will take into disability and health promotion prevention objectives of ‘‘Healthy account documented progress toward information; People 2000,’’ a national activity to objectives, the quality of subsequent 8. Designing, promoting, and reduce morbidity and mortality and project work plans, evidence of cost measuring the impact of efforts toward improve the quality of life. This sharing, previous year expenditures, informing the public, professionals, and Announcement is related to the Healthy and the availability of funds. persons with disabilities and their People 2000 category, Preventive family members regarding the disabling Use of Funds and Project Costs Services. (For ordering a copy of process and the opportunities for ‘‘Healthy People 2000,’’ see the section These awards may be used for intervention; ‘‘WHERE TO OBTAIN ADDITIONAL personnel services, supplies, 9. Providing technical assistance to INFORMATION.’’) equipment, travel, subcontracts, disability service organizations and consultants, and services directly community groups. Authority related to project activities. Funds may States may budget funds within their This program is authorized by Section not be used to supplant State or local maximum request of $350,000 to 301(a) (42 U.S.C. 241(a)) and Section funds for the purpose of this cooperative develop a university partnership which 317 (42 U.S.C. 247b) of the Public agreement, for construction costs, to can expand the scope of the State in Health Service Act, as amended. lease or purchase space or facilities, or defining and assessing the magnitude for patient care. Awards made under and impact of disabilities at the State Smoke-free Workplace this Announcement should also be used and community level. This partnership CDC strongly encourages all grant to enhance/increase expenditures from may also include establishing and recipients to provide a smoke-free State, local, and other funding sources sustaining a resource and research workplace and promote the non-use of to augment program operations. capacity to serve the State in identifying all tobacco products. Public Law 103– This program has no statutory gaps and addressing unmet disability 227, the Pro Children Act of 1994 matching requirement; however data/information and service needs, and prohibits smoking in certain facilities applicants should demonstrate and in assisting in program evaluation. that receive Federal funds in which document their capacity to support a Within their application, States education, library, day care, health care, portion of project costs, increase cost- should outline the rationale for selecting and early childhood development sharing over time, and identify other and contracting with the proposed services are provided to children. funding sources for expanding the university (denoting specific project. departments or programs), and describe Eligible Applicants Financial assistance should be the competencies and relationships in Eligible applicants are the official utilized for the following State capacity place at the university that will blend public health departments of States or activities (refer to the attachment with State capacity to address and fulfill other State agencies or departments. providing DEFINITIONS included in the the proposed epidemiologic and This includes the District of Columbia, application kit and also appended to program evaluation agenda. American Samoa, the Commonwealth of this Announcement available through Such a partnership is not a Puerto Rico, the Virgin Islands, the the CDC Home Page on the Internet requirement of this Announcement. Federated States of Micronesia, Guam, ): However, if State applicants elect not to Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10279 pursue the university affiliation; they prevention of secondary conditions. of physical fitness, weight gain, must indicate how and by whom these Therefore, it is incumbent that this incontinence, poor nutrition, and enumerated tasks will be conducted Announcement recognize that even emotional dependence. (such as within the resources of the though specific conditions or etiologies 3. Communication refers to an applicant agency). are important, each individually individual’s ability to generate and Given the limits on funding for State represents only a small portion of the express messages, and to receive and capacity activities, it is important that total measure of disability in America. understand messages. Examples of applicants demonstrate their shared Broader disability domains and underlying conditions or diagnoses support in making a resource associated secondary conditions include persons with cerebral palsy, commitment for the project. States represent the major impact and effects deafness, aphasia from varied should identify those staff positions and of disability in terms of human and pathology, or congenital speech other components of cost-sharing that economic cost. CDC wishes to give impediments. Secondary conditions will be supported by the applicant priority to these broader effects of may include family dysfunction, agency or other organizations in helping disability on Americans and address the isolation, and constraints and barriers in to achieve the objectives of the project. importance of health promotion among employment opportunity. The sources and amounts of such persons with disabilities, preventing the 4. Learning refers to an individual’s contributions should be specified in the loss of their independence and ability to profit from daily experiences, budget narrative and those amounts participation, and reducing the and includes aspects of receiving, represented on the budget information economic and human costs of secondary processing, remembering, and using sheet (Form 424A) under non-Federal conditions. These are health and social information. Examples of underlying budget categories. States receiving concerns of great magnitude and conditions or diagnoses include persons awards are expected to sustain (and national significance. with mental retardation, spina bifida, make efforts to increase) that level of This Announcement emphasizes fetal alcohol syndrome, or traumatic support throughout the project period. expanding the capacity of States to brain injury. Secondary conditions may Meeting those commitments will be determine the magnitude of disability in include depression, behavioral taken into account by CDC in funding their respective jurisdictions. States problems, increased family stress, and level determinations for subsequent should also conduct and measure the poor academic and vocational budget years. effectiveness of programs to reduce or performance. prevent secondary conditions, and Background Note that the examples listed above assess the risk and protective factors are illustrative, and not intended to be The CDC Office on Disability and related to their selected disability exhaustive. Several secondary Health (proposed), current name- domain. Disabilities Prevention Program has Disability domains are categories of conditions may apply to more than one provided financial assistance to States activities that individuals perform in disability domain. Because of limited since 1988. These awards have everyday life. States should propose funds and other resources available, this permitted State health departments and activities in at least one of the following Announcement does not include other State agencies to build capacity in disability domains: (1) mobility disabilities created by psychiatric program identity, planning, surveillance (locomotion); (2) personal care/home diagnoses, although mental health of targeted disabilities, conduct of management; (3) communication; and issues may be appropriately included as community-based interventions, (4) learning. Descriptions and examples secondary conditions. training of providers, and providing within these disability domains are as CDC will develop a set of questions health education/promotion curricula follow: taken from existing Behavioral Risk and conferences. Awards resulting from 1. Mobility (locomotion) refers to an Factor Surveillance System (BRFSS) this Announcement are designed to individual’s ability to perform modules and add additional questions assist States in shifting from assessing distinctive activities associated with that must be asked by States funded and preventing condition-specific moving; both himself and objects, from under this Announcement. This would etiologies (e.g., spinal cord injury, place to place. Examples of underlying include asking an expected range of 20 traumatic brain injury, fetal alcohol conditions or diagnoses include persons to 25 questions that would take syndrome, mild mental retardation, with spinal cord injury, cerebral palsy, approximately 15–20 minutes to spina bifida, cerebral palsy, lower limb loss, blindness, arthritis, or administer per interview. This process osteoporosis, etc); toward building stroke. Secondary conditions may would employ BRFSS-like survey epidemiologic capacity to assess the include urinary tract infections, methods, designed to benefit the State magnitude of disability in States, cardiovascular deficit due to sedentary in determining the magnitude of developing data systems that contribute lifestyle, pressure sores, results from disability and selected secondary to the understanding of secondary falls, bowel obstruction, dependence on conditions. CDC will identify and conditions, and conducting other assistive devices and its economic finalize the survey questions by the time activities noted in the PROGRAM impact, lack of access to medical care, of issuance of awards in June 1997. The REQUIREMENTS section. and social isolation. survey questions will be discussed with This change in approach 2. Personal Care/Home Management the successful State applicants in a start- acknowledges that over 49 million refers to an individual’s ability to up technical assistance conference to be Americans have a disability and the perform basic self-care activities such as held in Atlanta within 60 days of award. national cost of disabilities is in excess feeding, bladder and bowel care, States will be required to implement (at of $170 billion each year, of which an personal hygiene, dressing, financial a minimum) a point-in-time survey in estimated $85 billion is spent in management, and homemaking. the first year. The conduct of the federally-supported programs and Examples of underlying conditions or BRFSS-like survey is expected to begin services. diagnoses include persons with in early 1998 and would be repeated in CDC has been assigned a Federal arthritis, asthma, stroke, osteoporosis, the second and subsequent years of the leadership role in assessing the paraplegia, or multiple sclerosis. project period, whether as a point-in- magnitude of disability and the Secondary conditions may include lack time survey or as a continuous 10280 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices surveillance system at approximately epidemiologic information on the ascertain the magnitude of disability the same range of annual expenditure. magnitude of disabilities in the State, within the selected domain. For purposes of budgeting, applicants competence in guiding and overseeing Although separate State and other should set aside $50,000 of their education/health promotion activities resources should be utilized for financial assistance request to conduct for persons with disabilities, and the condition-specific surveillance, the survey each year and describe the ability to establish and sustain applicants may request a portion of process, methods, and organizational communications/information cooperative agreement funds (up to a structure within the State for its dissemination systems. maximum of 15 percent of the total implementation. Since the States to be To that end, applicants must propose budget) to sustain surveillance for funded are not yet known, sample sizes a disability program office that includes conditions or surveillance systems of for the survey based on population a full-time manager/coordinator importance (e.g., selected traumatic differences among States cannot yet be position with the authority to carry out injuries, developmental disabilities, determined. Thus, with each State all project requirements. Applicants chronic diseases) that will contribute to proposing $50,000 for this survey, who do not include (and maintain) a the requirements of this Announcement. adjustments to the awards will be made full-time manager/coordinator position Direct financing of interventions for on an individual State basis once the will not be eligible for award or primary prevention activities at the sample sizes and resulting costs are continuation funding. Applicants State or community level should be determined. This will occur subsequent should present their plan and time line supported from resources apart from to the selection of States to be funded for staffing the disability program office these awards; although the State and during award negotiations. and indicate how the proposed staff will disability program office may function in facilitating and promoting Purpose appropriately be used to provide the activities required under this technical assistance for planning, The purpose of these cooperative Announcement. Applicants should monitoring, and evaluation of these agreements is to assist States to develop describe the proposed staff disciplines activities. highly visible programs for assessing the and professional competencies needed magnitude of disability in the State, to meet these requirements, while also Cooperative Activities preventing secondary conditions, and coordinating and influencing those In conducting activities to achieve the fostering health promotion among activities that reside outside of this purposes of this program, the recipient persons with disabilities within their office. shall be responsible for activities under own agency and through statewide Applicants should describe the A. (Recipient Activities) and CDC shall collaborations. Financial assistance is organizational structure and placement be responsible for activities listed under being provided to allow States to work of the project and how this placement/ B. (CDC Activities). toward that goal by promoting public location can maximize the applicant’s health leadership; building program capacity to promote State level policy A. Recipient Activities visibility statewide; coordinating and priority setting for the prevention of 1. Develop a highly visible State- prevention services; using existing and secondary conditions. CDC prefers that based program for the prevention of emerging disability data; establishing an State disability program offices have a secondary conditions (see attachment external or internal mechanism to program title and organizational providing DEFINITIONS for the list of enhance epidemiologic and program location that adequately conveys their State capacity activities included in the evaluation capabilities; providing State-level coordination functions and application kit and also appended to technical assistance; and facilitating responsibilities. this Announcement available through training, education, and health Applicants must cite the present and/ the CDC Home Page on the Internet promotion programs directed to meet or proposed composition and structure ); the needs of persons with disabilities. of its advisory function, and indicate 2. Establish coordination with other State capacity awards are also designed how maximum input by persons with a disabilities-related agencies, develop to support functions that promote and disability, and their family members, project objectives and time frames, influence the activities of other and minority populations will be provide technical assistance, and organizations regarding these goals. achieved. CDC recommends as high establish a mechanism for computerized ratios as practical, but requires that communications/information systems; Program Requirements applicants provide a specific plan to 3. Implement data collection using Under this Program Announcement, maximize representation of persons survey questions provided by CDC from States should develop strategies to with a disability, women, and existing BRFSS-related modules and identify the magnitude of a selected minorities. CDC requires that such a other instruments; disability domain within the State in plan assures that the State advisory 4. Use existing disability data and addition to the BRFSS-like survey. function includes a minimum access other State information in States should also be able to measure representation of 25 percent of persons developing and implementing disability and characterize the incidence and with a disability. policy, including working with prevalence of State-selected secondary States must note the disability domain populations within a disability domain; conditions related to that domain, selected and the basis for that and implement preventive interventions, determination. Within that domain, 5. Promote prevention planning in and assess how participation is affected States should conduct surveillance communities, conduct or guide by secondary conditions. assessing the prevalence of the selected education and health promotion State projects must include an domain in addition to the BRFSS-like activities (primarily for persons with organizationally-defined prevention survey. A variety of underlying disabilities), and evaluate their office, an advisory function that conditions may contribute to the effectiveness. includes broad representation with an selected disability domain. To work emphasis on persons with disabilities, a toward that assessment, States should B. CDC Activities strategic planning and/or policy identify specific data sets which are 1. Provide scientific and development process, access to sound available, and could be accessed to help programmatic technical assistance in Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10281 the planning, operation, and evaluation the first two budget years of the project be responsible for each identified of disability data and health promotion period. objective. activities; 9. Describe how the organizational 19. Describe the plan for assuring that 2. Provide programmatic assistance in linkages in place or to be negotiated will persons with disabilities as well as all administrative and organizational be utilized for data access, analysis, data racial, ethnic, gender, and cultural aspects of project operations and sharing, and dissemination. Denote the groups will have access to all project provide information on project activities internal State structure and the services, facilities, and opportunities for in other States and national initiatives; proposed university partnership (if representation in the project. 3. Support project staff by conducting selected) to enhance epidemiologic 20. Present the approach to design, training programs, conferences, and capability. Indicate the experience and influence, and/or provide leadership in workshops to enhance skills and competencies in place to assure that training and education programs for knowledge; these epidemiologic activities can be health professionals and for the public, 4. Provide a point of referral for performed successfully and within with an emphasis on groups at special coordinating State, regional and/or defined time frames. risk. Indicate the subject areas and target national data pertinent to the disabling 10. Present the methods and audiences to be included in such process; and organizational entities to be used for programs. Describe the process for 5. Provide survey questions to States developing and conducting surveys developing a system for disabilities- from BRFSS-related modules and assist using CDC-supplied BRFSS-related related information sharing and in the analysis of the resulting data. questions. communications. 11. Describe and identify the 21. Prepare a budget and narrative Application Contents for State Capacity information/data systems (including that clearly and fully justifies all Projects their title, ownership, linkage requested items, denoting the specific line categories for Federal financial 1. Document the background and opportunities, and potential benefit) to assistance. The budget form should also need for support, including an overview be accessed for the selected disability list categories of non-CDC Federal funds (with evidence) of the disability domain. Outline how that data will be and non-Federal funds that contribute to problem in the State. utilized in the design of health promotion programs or other and comprise the total budget for the 2. Describe the gaps in information project. and program services, and how this interventions to prevent secondary conditions. 22. In addition to the budget award will help close those gaps. justification, applicants should denote 3. Provide a synopsis of prevention 12. Indicate how the project will address the reliability and validity of the extent of State financial support of services now in place including those the project as documented by budget related to secondary conditions, denote epidemiologic data collected, and how it will be used for policy development and narrative information. Indicate the other organizations with similar level of full-time and majority-time staff interests, discuss efforts to identify and prevention practice. 13. Describe the plan, methods and and resources dedicated to this project populations at risk, and provide an structure (such as a university and the level of other tangible costs to inventory of unmet needs that this partnership) to be enlisted for ongoing be borne by the applicant. award can help address. program evaluation, noting the 23. Human Subjects (if applicable): 4. Describe the plans to identify, experience and competencies available, This section must describe the degree to designate, and utilize partner and how the evaluation component will which human subjects may be at risk organizations and other collaborators in be integrated into project operations. and the assurance that the project will the conduct of the project and discuss 14. Present how, and by whom the be subject to initial and continuing their prospective roles in meeting advisory function and strategic planning review by the appropriate institutional agreed-upon objectives. and policy activities of the project will review committees. 5. Describe the proposed structure of be evaluated as to process and results. the advisory function and how it will Evaluation Criteria for State Capacity 15. Discuss how the delivery of health (Total 100 Points) function as a viable component for promotion and technical assistance program guidance and oversight. activities will be measured and 1. Evidence of Need and Understanding 6. Present how the project will modified for greater quality, acceptance, of the Problem: (10 Points) develop, disseminate, and implement a and improved outcomes. Evaluation will be based on: strategic plan and/or policy directive for 16. Present the plan to establish the a. The applicant’s description and the prevention of secondary conditions, State disability program office, clearly understanding of the magnitude of and use it to advance this agenda within indicate the time frames for staff disabilities showing evidence (as the State. recruitment, and provide curriculum available) of estimates of incidence and/ 7. Provide letters of endorsement and vitae for the proposed Principal or prevalence, demographic indicators, support confirming proposed Investigator and key project personnel. scope of disabilities and their severity, collaborations. These must represent 17. Provide an organization chart of and their associated costs. specific, tangible commitments, not the proposed project delineating its b. The applicant’s description of, and merely convey general interest and placement, and discuss how this the extent of current prevention imprecise future relationships. Discuss location and resultant linkages will activities related to disability, including how collaborations will function serve to ensure the prominence of the those related to the prevention of individually, and collectively contribute program and its influence within the secondary conditions within the State. to the overall success of the project. applicant agency. This description should describe need, 8. Provide a detailed work plan for all 18. Discuss how and by whom the available resources, populations-at-risk, State capacity activities. The work plan project will be directed. Designate the knowledge gaps, and the use of this should outline long-range goals for the responsibilities of all staff members in award in addressing those needs. four year project period, but also the State disability program office. include detailed specific, measurable, Present the rationale for outlined tasks, 2. Evidence of Collaboration: (15 Points) and time-phased objectives by quarter and identify personnel (by positions) to Evaluation will be based on: 10282 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

a. Evidence of collaboration with awareness, knowledge, behavior, and As part of the funding decision other principal partners in the conduct the overall benefits of health promotion process, CDC desires to achieve a of the project, including (if selected) the delivery. balance of States that are geographically formal university partnership. d. The description of how the project and demographically representative of b. The description of the proposed will assess changes in public policy, the United States; and, to the extent advisory function including evidence of and measure the effects of its technical practical, fund States in most or all of representation of persons with assistance and communications directed the ten Department of Health and disabilities and its role and capacity to toward communities and special Human Services Regions. influence State-level policy. populations. Priority for funding will be given to c. The approach to develop and those States that both score high in the implement a State strategic plan and/or 6. Project Management and Staffing: (20 Points) review and can also provide substantial policy directive for the prevention of commitment and evidence of tangible secondary conditions. Evaluation will be based on: cost-sharing for financial and human a. The description of the proposed d. The description of the specific roles resource contributions to this staffing for the project, including the and responsibilities of these working cooperative agreement. This includes partners including the products and plan to expedite filling of all positions. b. The description of the commitments for both immediate and services to be provided. long-term support as the applicant’s e. The presentation of evidence as to responsibilities of individual staff participation in project costs. how these collaborations will result in members including the level of effort successful implementation of the and time allocation for each project Priority for funding will also be given project. activity by staff position. to those States that score high in the c. The extent to which the placement review and also demonstrate an 3. Goals and objectives: (15 Points) of the project within the applicant organizational commitment to meet the Evaluation will be based on the organization assures maximum requirements of this Announcement by quality of the proposed project goals operational visibility and influence. integrating key project personnel within and objectives related to the conduct of d. The strength of the presentation their agency personnelmerit system the project. Objectives must be specific, citing that all project facilities and structure. In lieu of that capability, measurable, achievable, and time- services provided will be fully applicants should provide evidence that phased; and based on a formal work accessible to persons with disabilities. key personnel will be able to function plan with descriptive methods and a e. The extent to which the application effectively under an alternate staffing timetable for accomplishment. demonstrates direct involvement of plan, such as through a contract/ personnel who reflect the racial, ethnic, consultant personnel agreement, and 4. Epidemiological Capacity: (25 Points) gender, and cultural composition of the present the basis and rationale for such Evaluation will be based on: population to be served. action. a. The epidemiologic capacity and f. The plan to provide technical CDC considers it important that States structure in place to coordinate and assistance, education and training, and expedite meeting the requirements of facilitate data collection, analysis, and health promotion programs; and the this Announcement. Hence, special dissemination. proposed design of a shared information consideration will be given to those b. The description of the approach and communications dissemination applicants that demonstrate evidence of and activities necessary to conduct the system. an immediate or short term capability to survey taken from CDC-provided 7. Budget Justification: (Not Scored) address these requirements, as opposed BRFSS-related questionnaires. to a longer term approach for The budget section must demonstrate c. The description of the approach to development of these components of the reasonableness, a concise and clear access other identified applicable State project. While extra points are not set justification, accuracy, and full disability information sources, and how aside for that capability, the objective itemization of line categories for Federal such data will be used. review committee will view the tasks d. The plan for how the university and non-Federal funds comprising the explicit in this Announcement in light partnership (if selected) or other agency total budget. It also must show of the applicant’s facility for will be employed to facilitate consistency with the intended use of implementation and attainment over the epidemiologic excellence toward cooperative agreement funds. short term, as opposed to not being in assessing the magnitude of disability 8. Human Subjects (if Applicable): (Not place until late or at the conclusion of and set intervention and health Scored) the four year project period. promotion priorities. e. The accounts of how the project The extent to which the applicant Reporting Requirements will assess the reliability and validity of complies with the Department of Health epidemiological data collected and used and Human Services Regulations (45 Project narrative reports will be for policy development. CFR Part 46) regarding the protection of required twice annually; and due 31 human subjects. days after the close of each six month 5. Program Evaluation: (15 Points) calendar period. An original and two Funding Priorities Evaluation will be based on: copies of the narrative progress report a. The overall plan for evaluation of CDC intends that there be should be submitted to the CDC Grants the project, including design, methods, representation of all four listed Management Branch by January 31 and partners, and process to be followed for disability domains among its State July 31 of each year. The January report implementation. capacity recipients nationally. should cover the period from July 1 to b. The description of how the Therefore, to the extent that high quality December 31. The July report should advisory committee functions and and high ranking applications are cover the period from January 1 to June planning activities of the project will be reviewed, CDC plans to have no fewer 30. An original and two copies of the evaluated, and by whom. than two States conducting prevention Financial Status Report is required to be c. The description of how the project programs in each of the four disability submitted to the CDC Grants will measure increases in public domains. Management Branch no later than 90 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10283 days after the end of each budget period, ADDITIONAL INFORMATION’’ Section Other Requirements or by September 30 of each year. for the time and location. Paperwork Reduction Act Special Instructions CDC plans to hold a start-up conference for successful applicants Projects that involve the collection of Applicants must submit a separate early in the project cycle. That meeting information from 10 or more individuals typed abstract or summary of their will be held in Atlanta within 60 days and funded by cooperative agreement proposal as a cover to their applications, of award. Details regarding that will be subject to review by the Office consisting of no more than two double- conference will be provided at the time of Management and Budget (OMB) spaced pages. Applicants should also of the issuance of grant awards. under the Paperwork Reduction Act. include a table of contents for both the Applicants should include travel funds Human Subjects project narrative and attachments. The in their budgets to participate in this If the proposed project involves budget narrative and full budget start-up conference, and for one research on human subjects, the justification must be placed additional workshop for key project staff applicant must comply with the immediately after the table of contents late in the first budget year. and abstract in the front of the Department of Health and Human CDC considers it critical that States application. Applications must be Services Regulations, 45 CFR Part 46, participate in these and future project developed in accordance with PHS regarding the protection of human meetings. By virtue of accepting an Form 5161–1. Applicants should subjects. Assurance must be provided to award, States are understood to have organize their proposals along the lines demonstrate that the project will be of the application contents section for agreed to use cooperative agreement subject to initial and continuing review state capacity functions under this funds for travel by project staff selected by an appropriate institutional review Announcement, as those elements are by CDC to participate in CDC-sponsored committee. The applicant will be arranged to be compatible with the workshops and other called meetings. responsible for providing assurance in respective application review evaluation Executive Order 12372 accordance with the appropriate criteria. guidelines and forms provided in the The main body of the application Applications are subject to the application kit. narrative should not exceed 50 double- Intergovernmental Review of Federal spaced pages. Pages must be numbered Programs as governed by Executive Animal Subjects and printed on only one side of the Order 12372. Executive Order 12372 If the proposed project involves page. All material must be typewritten; sets up a system for State and local research on animal subjects, the with 10 characters per inch type (12 government review of proposed Federal applicant must comply with the ‘‘PHS point) on 8–1⁄2′′ by 11′′ white paper with assistance applications. Applicants Policy on Humane Care and Use of at least 1’’ margins, headers and footers (other than federally recognized Indian Laboratory Animals by Awardee (except for applicant-produced forms tribal governments) should contact their Institutions.’’ An applicant organization such as organizational charts, photos, State Single Point of Contacts (SPOCs) proposing to use vertebrate animals in graphs and tables, etc.). Applications as early as possible to alert them to the PHS-supported activities must file an must be held together only by rubber prospective applications and receive Animal Welfare Assurance with the bands or metal clips. Applications must any necessary instructions on the State Office of Protection from Research Risks not be bound together in any other way. process. For proposed projects serving at the National Institutes of Health. Attachments to the application should more than one State, the applicant is Women and Minority Inclusion Policy be held to a minimum in keeping to advised to contact the SPOCs of each those items required by this affected State. A current list is included It is the policy of CDC to ensure that Announcement. in the application kit. If SPOCs have any women and racial and ethnic groups Applicants may contract with other State process recommendations on will be included in CDC-supported entities for the conduct of the project. applications submitted to CDC, they research projects involving human These can include activities such as should forward them to Ron Van Duyne, subjects, whenever feasible and formal instruments with universities Grants Management Officer, Grants appropriate. Racial and ethnic groups and faculty members as part of State Management Branch, Procurement and are those defined in OMB Directive capacity, facilitators for project Grants Office, Centers for Disease Number 15 and include American meetings, training leaders/specialists, Control and Prevention, 255 East Paces Indian, Alaska Native, Asian, Pacific consultants for strategic planning, data Ferry Road, NE., Room 321, Mailstop E– Islander, Black, and Hispanic. collection contracts, intra-agency 13, Atlanta, Georgia 30305, no later than Applicants shall ensure that women, agreements in states for conducting 60 days after the deadline date for new racial, and ethnic minority populations surveys such as BRFSS-like questions and competing awards. The granting are appropriately represented in provided by CDC, health promotion agency does not guarantee to applications for research involving curriculum and communications/ ‘‘accommodate or explain’’ State process human subjects. Where clear and information systems development, recommendations it receives after that compelling rationale exist that inclusion questionnaire and survey design, and date. is inappropriate or not feasible, this situation must be explained as part of workshops and conferences. Public Health System Reporting Applicants are invited by CDC to the application. In conducting the Requirements attend a one day technical assistance review of applications for scientific meeting in Atlanta on Wednesday, This program is not subject to the merit, review groups will evaluate March 26, 1997, to discuss the Public Health System Reporting proposed plans for inclusion of requirements of this Announcement, Requirements. minorities and both sexes as part of the and to ask questions regarding its scientific assessment and assigned Catalog of Federal Domestic Assistance content. Interested State applicants score. This policy does not apply to (CFDA) should contact the official listed for research studies when the investigator obtaining programmatic information in The Catalog of Federal Domestic cannot control the race, ethnicity, and/ the ‘‘WHERE TO OBTAIN Assistance number is 93.184. or sex of subjects. Further guidance to 10284 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices this policy is contained in the Federal competition and will be returned to the 1) through the Superintendent of Register, Vol. 60, No. 179, Friday, applicant. Documents, Government Printing September 15, 1995, pages 47947– Office, Washington, DC 20402–9325, Where To Obtain Additional 47951. telephone (202) 512–1800. Information Dated: February 28, 1997. Application Submission and Deadline To receive additional written Joseph R. Carter, A. Pre-Application Letter of Intent information call (404) 332–4561. You will be asked your name, address, and Acting Associate Director for Management Although not a prerequisite of telephone number and will need to refer and Operations, Centers for Disease Control application, a non-binding letter of to Announcement Number 730. You and Prevention (CDC). intent to apply is requested from will receive a complete program [FR Doc. 97–5515 Filed 3–5–97; 8:45 am] potential applicants. The letter should description, information on application BILLING CODE 4163±18±P be submitted to the Grants Management procedures, and application forms. In Officer whose name is noted in section addition, this announcement is also B. below. The letter should be available through the CDC Home Page Administration for Children and postmarked no later than 30 days prior on the Internet. The CDC Home Page Families to the submission deadline. The letter of address is http://www.cdc.gov. Agency Record/keeping/Reporting intent should identify the If you have questions after reviewing Requirements Under Emergency Announcement Number; name the the contents of all the documents, proposed project director; and in a Review by the Office of Management business management technical paragraph, describe the scope of the and Budget (OMB) assistance may be obtained from Georgia proposed project. The letter will not L. Jang, Grants Management Specialist, influence review or funding decisions, Title: Community-Based Family Grants Management Branch, but it will enable CDC to plan the Resource and Support Grants. Procurement and Grants Office, Centers review more efficiently and ensure that OMB No.: New Collection. for Disease Control and Prevention, 255 applicants receive timely and relevant East Paces Ferry Road, NE., Room 321, Description: The Program Instruction, information prior to application Mailstop E–13, Atlanta, Georgia 30305, prepared in response to the enactment submission. telephone (404) 842–6814. (Internet of the Community-Based Family B. Application Submission address: [email protected]). Resource and Support Grants (CBFRS), Programmatic and operational as set forth in Title II of Pub. L. 104– The original and two copies of the 235, Child Abuse Prevention and application PHS Form 5161–1 (OMB information may be obtained from Joseph B. Smith, Office on Disability Treatment Act Amendments of 1996, Number 0937–0189) should be provides direction to the States and submitted to Mr. Ron Van Duyne, and Health, National Center for Environmental Health, Centers for Territories to accomplish the purposes Grants Management Officer, Grants of (1) supporting State efforts to Management Branch, Procurement and Disease Control and Prevention, 4770 Buford Highway, Building 101, Mailstop develop, operate, expand and enhance a Grants Office, Centers for Disease network of community-based, Control and Prevention (CDC), 255 East F–29, Atlanta, Georgia 30341, telephone (770) 488–7082. (Internet address: prevention-focused, family resource and Paces Ferry Road, NE., Room 321, support programs that coordinate Mailstop E–13, Atlanta, Georgia 30305, [email protected]). Epidemiologic and surveillance-related technical assistance resources among existing human service on or before Thursday, May 1, 1997. organizations within the State; and (2) 1. Deadline: Applications will be is available from Donald J. Lollar, Ed.D. fostering an understanding, considered as meeting the deadline if at the same address, telephone (770) appreciation, and knowledge of diverse they are either: 488–7094. (Internet address: (a) Received on or before the deadline [email protected]). populations in order to be effective in date; or An attachment to this Announcement preventing and treating child abuse and (b) Sent on or before the deadline date provides definitions concerning the neglect. This Program Instruction and received in time for submission to conceptional model of disability, contains information collection the objective review group. (Applicants secondary conditions; and includes a requirements that are found in Pub. L. must request a legibly dated U. S. Postal list and description of major State 104–235 at Sections 202(1)(A); 202(b); Service postmark or obtain a legibly capacity activities (included in the 203(b)(1)(B); 205; and pursuant to dated receipt from a commercial carrier application kit and also appended to receiving a grant award. The or the U. S. Postal Service. Private this Announcement available through information submitted will be used by metered postmarks will not be the CDC Home Page on the Internet the agency to ensure compliance with acceptable as proof of timely mailing.) ). the statute, complete the calculation of 2. Late Applications: Applications Potential applicants may obtain a the grant award entitlement, and that do not meet the criteria in 1.(a) or copy of ‘‘Healthy People 2000’’ (Full provide training and technical 1.(b). above are considered late Report; Stock number 017–001–00474– assistance to the grantee. applications. Late applications will not 0) or ‘‘Healthy People 2000’’ (Summary Respondents: State, Local or Tribal be considered in the current Report; Stock number 017–001–00473– Govt.

ANNUAL BURDEN ESTIMATES

Number of Number of responses Average bur- Total burden Instrument respondents per respond- den hours hours ent per response

Application ...... 57 1 40 2,280 Annual report ...... 57 1 40 1,368 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10285

ANNUAL BURDEN ESTIMATESÐContinued

Number of Number of responses Average bur- Total burden Instrument respondents per respond- den hours hours ent per response

Estimated total annual burden hours: ...... 3,648

Additional Information: ACF is 205), Food and Drug Administration, subject of this notice. A copy of the requesting that OMB grant a 180 day 200 C St. SW., Washington, DC 20204, petition (including the environmental approval for this information collection 202–418–3107. assessment) and received comments under procedures for emergency SUPPLEMENTARY INFORMATION: Under the may be seen in the Dockets Management processing by March 21, 1997. A copy Federal Food, Drug, and Cosmetic Act Branch between 9 a.m. and 4 p.m., of this information collection, with (secs. 201(s) and 409(b)(5) (21 U.S.C. Monday through Friday. applicable supporting documentation, 321(s) and 348(b)(5)) and the regulations Dated: February 12, 1997. may be obtained by calling the for affirmation of GRAS status in George H. Pauli, Administration for Children and § 170.35 (21 CFR 170.35), notice is given Acting Director, Office of Premarket Families, Reports Clearance Officer, that Cerestar Holding Co. B.V., Approval, Center for Food Safety and Applied Larry Guerrero at (202) 401–6465. Mitsubishi Chemical Corp., and Nikken Nutrition. Comments and questions about the Chemicals Co., Ltd., c/o Hyman, Phelps [FR Doc. 97–5454 Filed 3–5–97; 8:45 am] information collection described above & McNamara, 700 13th St. NW., suite BILLING CODE 4160±01±F should be directed to the Office of 1200, Washington, DC 20005, have filed Information and Regulatory Affairs, a petition (GRASP 7G0422) proposing ATTN: OMB Desk Officer for ACF, that erythritol be affirmed as GRAS for Health Care Financing Administration Office of Management and Budget, use as an ingredient in human food. Paperwork Reduction Project, 725 17th The petition has been placed on [Document Identifier: HCFA±3427] Street N.W., Washington, D.C. 20503, display at the Dockets Management Agency Information Collection (202) 395–7316. Branch (address above). Activities: Submission for OMB Dated: February 28, 1997. Any petition that meets the Review; Comment Request requirements outlined in §§ 170.30 (21 Bob Sargis, CFR 170.30) and 170.35 is filed by the AGENCY: Health Care Financing Acting Reports Clearance Officer. agency. There is no prefiling review of Administration. [FR Doc. 97–5451 Filed 3–5–97; 8:45 am] the adequacy of data to support a GRAS In compliance with the Paperwork BILLING CODE 4184±01±M conclusion. Thus, the filing of a petition Reduction Act of 1995 (44 U.S.C. 3501 for GRAS affirmation should not be et seq.), the Health Care Financing interpreted as a preliminary indication Administration (HCFA), Department of Food and Drug Administration of suitability for GRAS affirmation. Health and Human Services, has [Docket No. 97G±0063] The potential environmental impact submitted to the Office of Management of this action is being reviewed. If the and Budget (OMB) the following Cerestar Holding Co. B.V., Mitsubishi agency finds that an environmental proposals for the collection of Chemical Corp., and Nikken Chemicals impact statement is not required and information. Interested persons are Co., Ltd.; Filing of Petition for this petition results in a regulation, the invited to send comments regarding the Affirmation of GRAS Status notice of availability of the agency’s burden estimate or any other aspect of finding of no significant impact and the this collection of information, including AGENCY: Food and Drug Administration, evidence supporting that finding will be any of the following subjects: (1) the HHS. published with the regulation in the necessity and utility of the proposed ACTION: Notice. Federal Register in accordance with 21 information collection for the proper SUMMARY: The Food and Drug CFR 25.40(c). performance of the agency’s functions; Administration (FDA) is announcing Interested persons may, on or before (2) the accuracy of the estimated that Cerestar Holding Co. B.V., May 20, 1997, review the petition and burden; (3) ways to enhance the quality, Mitsubishi Chemical Corp., and Nikken file comments with the Dockets utility, and clarity of the information to Chemicals Co., Ltd., have filed a Management Branch (address above). be collected; and (4) the use of petition (GRASP 7G0422) proposing to Two copies of any comments should be automated collection techniques or affirm that the use of erythritol is filed and should be identified with the other forms of information technology to generally recognized as safe (GRAS) as docket number found in brackets in the minimize the information collection an ingredient in human food. heading of this document. Comments burden. should include any available Type of Information Collection DATES: Written comments by May 20, information that would be helpful in Request: Reinstatement, with change, of 1997. determining whether the substance is, previously approved collection for ADDRESSES: Submit written comments or is not, GRAS for the proposed use. In which approval has expired; Title of to the Dockets Management Branch addition, consistent with the regulations Information Collection: End Stage Renal (HFA–305), Food and Drug promulgated under the National Disease (ESRD) Application and Survey Administration, 12420 Parklawn Dr., Environmental Policy Act (40 CFR and Certification Report Form; Form rm. 1–23, Rockville, MD 20857. 1501.4(b)), the agency encourages public No.: HCFA–3427; Use: This form is a FOR FURTHER INFORMATION CONTACT: participation by review of and comment facility identification and screening Rosalie M. Angeles, Center for Food on the environmental assessment measurement tool used to initiate the Safety and Applied Nutrition (HFS– submitted with the petition that is the certification and recertification of ESRD 10286 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices facilities. The form is also completed by Security Act to appoint a Practicing the Council. Individuals or the Medicare/Medicaid State survey Physicians Advisory Council (the organizations who wish to make 5- agency to determine facility compliance Council) based on nominations minute oral presentations on the above with ESRD conditions for coverage; submitted by medical organizations issues should contact the Executive Frequency: Annually; Affected Public: representing physicians. The Council Director by 12:00 noon, March 13, 1997, State, Local or Tribal Governments; meets quarterly to discuss certain to be scheduled. The number of oral Number of Respondents: 2,640; Total proposed changes in regulations and presentations may be limited by the Annual Responses: 1,056; Total Annual carrier manual instructions related to time available. A written copy of the Hours: 2,376. physicians’ services, as identified by the oral remarks should be submitted to the To obtain copies of the supporting Secretary. To the extent feasible and Executive Director no later than 12:00 statement and any related forms, E-mail consistent with statutory deadlines, the noon, March 19, 1997. your request, including your address consultation must occur before Anyone who is not scheduled to and phone number, to publication of the proposed changes. speak may submit written comments to [email protected], or call the Reports The Council submits an annual report the Executive Director by 12:00 noon, on its recommendations to the Secretary Clearance Office on (410) 786–1326. March 19, 1997. The meeting is open to and the Administrator of the Health Written comments and the public, but attendance is limited to Care Financing Administration not later recommendations for the proposed the space available. information collections should be sent than December 31 of each year. within 30 days of this notice directly to The Council consists of 15 physicians, (Section 1868 of the Social Security Act (42 the OMB Desk Officer designated at the each of whom has submitted at least 250 U.S.C. 1395ee) and section 10(a) of Public following address: OMB Human claims for physicians’ services under Law 92–463 (5 U.S.C. App. 2, section 10(a)) Resources and Housing Branch, Atten: Medicare or Medicaid in the previous (Catalog of Federal Domestic Assistance Allison Eydt, New Executive Office year. Members of the Council include Program No. 93.773, Medicare—Hospital Building, Room 10235, Washington, both participating and nonparticipating Insurance; and Program No. 93.774, physicians, and physicians practicing in Medicare—Supplementary Medical D.C. 20503. Insurance Program) Dated: February 27, 1997. rural and underserved urban areas. At least 11 members must be doctors of Dated: February 27, 1997. Edwin J. Glatzel, medicine or osteopathy authorized to Bruce C. Vladeck, Director, Management Analysis and Planning practice medicine and surgery by the Administrator, Health Care Financing Staff, Office of Financial and Human Administration. Resources, Health Care Financing States in which they practice. Members Administration. have been invited to serve for [FR Doc. 97–5511 Filed 3–5–97; 8:45 am] [FR Doc. 97–5532 Filed 3–5–97; 8:45 am] overlapping 4-year terms. In accordance BILLING CODE 4120±01±P with section 14 of the Federal Advisory BILLING CODE 4120±03±M Committee Act, terms of more than 2 years are contingent upon the renewal Health Resources and Services [OPL±014±N] of the Council by appropriate action Administration before the end of the 2-year term. Medicare Program; March 24, 1997 The Council held its first meeting on Notice Regarding Healthy Start Meeting of the Practicing Physicians May 11, 1992. Initiative Cooperative Agreements Advisory Council The current members are: Richard Bronfman, D.P.M.; Wayne R. Carlsen, AGENCY: Health Resources and Services AGENCY: Health Care Financing Administration, HHS. Administration (HCFA), HHS. D.O.; Gary C. Dennis, M.D.; Catalina E. Garcia, M.D.; Mary T. Herald, M.D.; ACTION: Notice of meeting. ACTION: Correction of eligibility criteria Ardis Hoven, M.D.; Sandral Hullett, for healthy start initiative cooperative SUMMARY: In accordance with section M.D.; Jerilynn S. Kaibel, D.C. agreements. 10(a)(2) of the Federal Advisory (renominated—pending selection); Committee Act, this notice announces a Marie G. Kuffner, M.D.; Marc Lowe, SUMMARY: In Notice document 97–1928 meeting of the Practicing Physicians M.D.; Katherine L. Markette, M.D.; in the issue of Monday January 27, 1997 Advisory Council. This meeting is open Susan Schooley, M.D.; Maisie Tam, (62 FR 3903), make the following to the public. M.D. (renominated—pending selection); correction: The eligibility criteria on DATES: The meeting is scheduled for and Kenneth M. Viste, Jr., M.D. The page 3904 in the second column, the March 24, 1997, from 9 a.m. until 5 p.m. chairperson is Kenneth M. Viste, Jr., paragraph preceding ‘‘Funding e.s.t. M.D. Category; which states: ‘‘A percentage of The Council agenda will provide for ADDRESSES: The meeting will be held in children under 18 with family incomes the Stonehenge Room, 615F, Hubert H. discussion and comment on the below the Federal Poverty Level which following three items: Humphrey Building, 200 Independence • exceeded the national average of 22 Practice expense project. percent for 1993 only’’ has been Avenue, S.W., Washington, DC 20201. • Administrative simplifications changed to: ‘‘A percentage of children FOR FURTHER INFORMATION CONTACT: under the Health Insurance Portability under 18 years of age with family Pamela J. Gentry, Associate and Accountability Act of 1966 (Public incomes below the Federal Poverty Administrator for External Affairs, Law 104–191), enacted on August 21, Level which exceeded the national Room 435–H, Hubert H. Humphrey 1996. Building, 200 Independence Avenue, • Fraud and abuse provisions under average of 19.9% for 1990.’’ S.W., Washington, DC 20201, (202) 690– the Health Insurance Portability and This correction has been made to 7418. Accountability Act. allow the use of 1990 Census data SUPPLEMENTARY INFORMATION: The Council members will also receive an which is available and accessible to Secretary of the Department of Health update on legislation, managed care, most communities. Applicants who and Human Services (the Secretary) is and Medicaid. In addition, new have access to and wish to use more mandated by section 1868 of the Social members will be sworn in to serve on recent verifiable poverty data may do so. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10287

Dated: March 3, 1997. on-site inspection. To maintain that 88–6819, Great Lakes, IL 60088–6819, Ciro V. Sumaya, certification a laboratory must 847–688–2045/847–688–4171 Administrator. participate in a quarterly performance Diagnostic Services Inc., dba DSI, 4048 [FR Doc. 97–5549 Filed 3–5–97; 8:45 am] testing program plus periodic, on-site Evans Ave., Suite 301, Fort Myers, FL BILLING CODE 4160±15±P inspections. 33901, 941–418–1700/800–735–5416 Laboratories which claim to be in the Doctors Laboratory, Inc., P.O. Box 2658, applicant stage of certification are not to 2906 Julia Dr., Valdosta, GA 31604, Substance Abuse and Mental Health be considered as meeting the minimum 912–244–4468 Services Administration requirements expressed in the HHS DrugProof, Division of Dynacare/ Guidelines. A laboratory must have its Laboratory of Pathology, LLC, 1229 Current List of Laboratories Which letter of certification from SAMHSA, Madison St., Suite 500, Nordstrom Meet Minimum Standards To Engage in HHS (formerly: HHS/NIDA) which Medical Tower, Seattle, WA 98104, Urine Drug Testing for Federal attests that it has met minimum 800–898–0180/206–386–2672 Agencies, and Laboratories That Have standards. (formerly: Laboratory of Pathology of Withdrawn From the Program In accordance with Subpart C of the Seattle, Inc., DrugProof, Division of Laboratory of Pathology of Seattle, AGENCY: Substance Abuse and Mental Guidelines, the following laboratories meet the minimum standards set forth Inc.) Health Services Administration, HHS DrugScan, Inc., P.O. Box 2969, 1119 in the Guidelines: (Formerly: National Institute on Drug Mearns Rd., Warminster, PA 18974, Abuse, ADAMHA, HHS). Aegis Analytical Laboratories, Inc., 624 215–674–9310 ACTION: Notice. Grassmere Park Rd., Suite 21, ElSohly Laboratories, Inc., 5 Industrial Nashville, TN 37211, 615–331–5300 Park Dr., Oxford, MS 38655, 601–236– SUMMARY: The Department of Health and Alabama Reference Laboratories, Inc., 2609 Human Services notifies Federal 543 South Hull St., Montgomery, AL General Medical Laboratories, 36 South agencies of the laboratories currently 36103, 800–541–4931 / 334–263–5745 Brooks St., Madison, WI 53715, 608– certified to meet standards of Subpart C American Medical Laboratories, Inc., 267–6267 of Mandatory Guidelines for Federal 14225 Newbrook Dr., Chantilly, VA Harrison Laboratories, Inc., 9930 W. Workplace Drug Testing Programs (59 22021, 703–802–6900 Highway 80, Midland, TX 79706, FR 29916, 29925). A similar notice Associated Pathologists Laboratories, 800–725–3784/915–563–3300 listing all currently certified laboratories Inc., 4230 South Burnham Ave., Suite (formerly: Harrison & Associates will be published during the first week 250, Las Vegas, NV 89119–5412, 702– Forensic Laboratories) of each month, and updated to include 733–7866 / 800–433–2750 Jewish Hospital of Cincinnati, Inc., 3200 laboratories which subsequently apply Associated Regional and University Burnet Ave., Cincinnati, OH 45229, for and complete the certification Pathologists, Inc. (ARUP), 500 Chipeta 513–569–2051 process. If any listed laboratory’s Way, Salt Lake City, UT 84108, 801– LabOne, Inc., 8915 Lenexa Dr., Overland certification is totally suspended or 583–2787 / 800–242–2787 Park, Kansas 66214, 913–888–3927/ revoked, the laboratory will be omitted Baptist Medical Center—Toxicology 800–728–4064 (formerly: Center for from updated lists until such time as it Laboratory, 9601 I–630, Exit 7, Little Laboratory Services, a Division of is restored to full certification under the Rock, AR 72205–7299, 501–202–2783 LabOne, Inc.) Guidelines. (formerly: Forensic Toxicology Laboratory Corporation of America, 888 If any laboratory has withdrawn from Laboratory Baptist Medical Center) Willow St., Reno, NV 89502, 702– the National Laboratory Certification Bayshore Clinical Laboratory, 4555 W. 334–3400 (formerly: Sierra Nevada Program during the past month, it will Schroeder Dr., Brown Deer, WI 53223, Laboratories, Inc.) be identified as such at the end of the 414–355–4444 / 800–877–7016 Laboratory Corporation of America current list of certified laboratories, and Cedars Medical Center, Department of Holdings, 69 First Ave., Raritan, NJ will be omitted from the monthly listing Pathology, 1400 Northwest 12th Ave., 08869, 800–437–4986 (Formerly: thereafter. Miami, FL 33136, 305–325–5784 Roche Biomedical Laboratories, Inc.) Laboratory Specialists, Inc., 113 Jarrell This Notice is now available on the Centinela Hospital Airport Toxicology Dr., Belle Chasse, LA 70037, 504– internet at the following website: http:/ Laboratory, 9601 S. Sepulveda Blvd., /www.health.org 392–7961 Los Angeles, CA 90045, 310–215– Marshfield Laboratories, Forensic FOR FURTHER INFORMATION CONTACT: Mrs. 6020 Toxicology Laboratory, 1000 North Giselle Hersh or Dr. Walter Vogl, Clinical Reference Lab, 8433 Quivira Oak Ave., Marshfield, WI 54449, 715– Division of Workplace Programs, Room Rd., Lenexa, KS 66215–2802, 800– 389–3734/800–331–3734 13A–54, 5600 Fishers Lane, Rockville, 445–6917 MedExpress/National Laboratory Maryland 20857; Tel.: (301) 443–6014. CompuChem Laboratories, Inc., 1904 Center, 4022 Willow Lake Blvd., SUPPLEMENTARY INFORMATION: Alexander Drive, Research Triangle Memphis, TN 38118, 901–795–1515/ Mandatory Guidelines for Federal Park, NC 27709, 919–549–8263/800– 800–526–6339 Workplace Drug Testing were developed 833–3984 (Formerly: CompuChem Medical College Hospitals Toxicology in accordance with Executive Order Laboratories, Inc., A Subsidiary of Laboratory, Department of Pathology, 12564 and section 503 of Pub. L. 100– Roche Biomedical Laboratory, Roche 3000 Arlington Ave., Toledo, OH 71. Subpart C of the Guidelines, CompuChem Laboratories, Inc., A 43614, 419–381–5213 ‘‘Certification of Laboratories Engaged Member of the Roche Group) Medlab Clinical Testing, Inc., 212 in Urine Drug Testing for Federal Cox Health Systems, Department of Cherry Lane, New Castle, DE 19720, Agencies,’’ sets strict standards which Toxicology, 1423 North Jefferson 302–655–5227 laboratories must meet in order to Ave., Springfield, MO 65802, 800– MedTox Laboratories, Inc., 402 W. conduct urine drug testing for Federal 876–3652/417–269–3093 (formerly: County Rd, D, St. Paul, MN 55112, agencies. To become certified an Cox Medical Centers) 800–832–3244/612–636–7466 applicant laboratory must undergo three Dept. of the Navy, Navy Drug Screening Methodist Hospital of Indiana, Inc., rounds of performance testing plus an Laboratory, Great Lakes, IL, P. O. Box Department of Pathology and 10288 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Laboratory Medicine, 1701 N. Senate HealthCare/MetPath, CORNING SmithKline Beecham Clinical Blvd., Indianapolis, IN 46202, 317– Clinical Laboratories) Laboratories, 8000 Sovereign Row, 929–3587 Quest Diagnostics Incorporated, 1355 Dallas, TX 75247, 214–638–1301 Methodist Medical Center Toxicology Mittel Blvd., Wood Dale, IL 60191, (formerly: SmithKline Bio-Science Laboratory, 221 N.E. Glen Oak Ave., 630–595–3888 (formerly: MetPath, Laboratories) Peoria, IL 61636, 800–752–1835/309– Inc., CORNING MetPath Clinical South Bend Medical Foundation, Inc., 671–5199 Laboratories, CORNING Clinical 530 N. Lafayette Blvd., South Bend, MetroLab-Legacy Laboratory Services, Laboratories, Inc.) IN 46601, 219–234–4176 235 N. Graham St., Portland, OR Quest Diagnostics Incorporated, 2320 Southwest Laboratories, 2727 W. 97227, 503–413–4512, 800–237–7808 Schuetz Rd., St. Louis, MO 63146, Baseline Rd., Suite 6, Tempe, AZ (x4512) 800–288–7293/314–991–1311 85283, 602–438–8507 Minneapolis Veterans Affairs Medical (formerly: Metropolitan Reference St. Anthony Hospital (Toxicology Center, Forensic Toxicology Laboratories, Inc., CORNING Clinical Laboratory), P.O. Box 205, 1000 N. Laboratory, 1 Veterans Drive, Laboratories, South Central Division) Lee St., Oklahoma City, OK 73102, Minneapolis, Minnesota 55417, 612– Quest Diagnostics Incorporated, One 405–272–7052 725–2088 Malcolm Ave., Teterboro, NJ 07608, Toxicology & Drug Monitoring National Toxicology Laboratories, Inc., 201–393–5590 (formerly: MetPath, Laboratory, University of Missouri 1100 California Ave., Bakersfield, CA Inc., CORNING MetPath Clinical Hospital & Clinics, 2703 Clark Lane, 93304, 805–322–4250 Laboratories, CORNING Clinical Suite B, Lower Level, Columbia, MO Northwest Toxicology, Inc., 1141 E. Laboratory) 65202, 573–882–1273 3900 South, Salt Lake City, UT 84124, Quest Diagnostics Incorporated, Toxicology Testing Service, Inc., 5426 800–322–3361 National Center for Forensic Science, N.W. 79th Ave., Miami, FL 33166, Oregon Medical Laboratories, P.O. Box 1901 Sulphur Spring Rd., Baltimore, 305–593–2260 972, 722 East 11th Ave., Eugene, OR MD 21227, 410–536–1485 (formerly: TOXWORX Laboratories, Inc., 6160 97440–0972, 541–687–2134 Maryland Medical Laboratory, Inc., Variel Ave., Woodland Hills, CA Pathology Associates Medical National Center for Forensic Science, 91367, 818–226–4373/800–966–2211 Laboratories, East 11604 Indiana, CORNING National Center for (formerly: Laboratory Specialists, Inc.; Spokane, WA 99206, 509–926–2400/ Forensic Science) Abused Drug Laboratories; MedTox 800–541–7891 Quest Diagnostics Incorporated, 7470 Bio-Analytical, a Division of MedTox PharmChem Laboratories, Inc., 1505–A Mission Valley Rd., San Diego, CA Laboratories, Inc.) O’Brien Dr., Menlo Park, CA 94025, 92108–4406, 800–446–4728/619–686– UNILAB, 18408 Oxnard St., Tarzana, 415–328–6200/800–446–5177 3200 (formerly: Nichols Institute, CA 91356, 800–492–0800/818–996– PharmChem Laboratories, Inc., Texas Nichols Institute Substance Abuse 7300 (formerly: MetWest-BPL Division, 7606 Pebble Dr., Fort Worth, Testing (NISAT), CORNING Nichols Toxicology Laboratory) TX 76118, 817–595–0294 (formerly: Institute, CORNING Clinical UTMB Pathology-Toxicology Harris Medical Laboratory) Laboratories) Laboratory, University of Texas Physicians Reference Laboratory, 7800 Scientific Testing Laboratories, Inc., 463 Medical Branch, Clinical Chemistry West 110th St., Overland Park, KS Southlake Blvd., Richmond, VA Division, 301 University Boulevard, 66210, 913–338–4070/800–821–3627 23236, 804–378–9130 Room 5.158, Old John Sealy, Poisonlab, Inc., 7272 Clairemont Mesa Scott & White Drug Testing Laboratory, Galveston, Texas 77555–0551, 409– Blvd., San Diego, CA 92111, 619–279– 600 S. 25th St., Temple, TX 76504, 772–3197. 2600/800–882–7272 800–749–3788 Premier Analytical Laboratories, 15201 S.E.D. Medical Laboratories, 500 Walter Richard Kopanda, I–10 East, Suite 125, Channelview, TX NE, Suite 500, Albuquerque, NM Executive Officer, Substance Abuse and 77530, 713–457–3784/800–888–4063 87102, 505–727–8800/800–999–LABS Mental Health Services Administration. (formerly: Drug Labs of Texas) SmithKline Beecham Clinical [FR Doc. 97–5563 Filed 3–5–97; 8:45 am] Presbyterian Laboratory Services, 1851 Laboratories, 7600 Tyrone Ave., Van BILLING CODE 4160±20±U East Third Street, Charlotte, NC Nuys, CA 91405, 818–989–2520/800– 28204, 800–473–6640 877–2520 Puckett Laboratory, 4200 Mamie St., SmithKline Beecham Clinical DEPARTMENT OF THE INTERIOR Hattiesburgh, MS 39402, 601–264– Laboratories, 801 East Dixie Ave., 3856/800–844–8378 Leesburg, FL 34748, 352–787–9006 Bureau of Land Management Quest Diagnostics Incorporated, 4770 (formerly: Doctors & Physicians [WO 310 1310 03±2410] Regent Blvd., Irving, TX 75063, 800– Laboratory) 526–0947/972–916–3376 (formerly: SmithKline Beecham Clinical Information Collection Submitted to Damon Clinical Laboratories, Damon/ Laboratories, 3175 Presidential Dr., the Office of Management and Budget MetPath, CORNING Clinical Atlanta, GA 30340, 770–452–1590 for Review Under the Paperwork Laboratories) (formerly: SmithKline Bio-Science Reduction Act; OMB Approval Number Quest Diagnostics Incorporated, 875 Laboratories) 1004±0074 Greentree Rd., 4 Parkway Ctr., SmithKline Beecham Clinical Pittsburgh, PA 15220–3610, 800–574– Laboratories, 506 E. State Pkwy., The proposal for the collection of 2474/412–920–7733 (formerly: Med- Schaumburg, IL 60173, 847–447– information listed below has been Chek Laboratories, Inc., Med-Chek/ 4379/800–447–4379 (formerly: submitted to the Office of Management Damon, MetPath Laboratories, International Toxicology Laboratories) and Budget for approval under the CORNING Clinical Laboratories) SmithKline Beecham Clinical provisions of the Paperwork Reduction Quest Diagnostics Incorporated, 4444 Laboratories, 400 Egypt Rd., Act (44 U.S.C. Chapter 35). On Giddings Road, Auburn Hills, MI Norristown, PA 19403, 800–523– September 3, 1996, the Bureau of Land 48326, 810–373–9120 (formerly: 0289/610–631–4600 (formerly: Management (BLM) published a notice HealthCare/Preferred Laboratories, SmithKline Bio-Science Laboratories) in the Federal Register (61 FR 46480) Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10289 requesting comments on the collection. Bureau Clearance Officer: Carole Sentinel Butte Formation of the Fort The comment period ended November Smith (202) 452–0367. Union Group. The recoverable coal 4, 1996. No comments were received. Dated: February 27, 1997. reserve of NDM 85516 is contained in Copies of the proposed collection of Frank P. Bruno, the Hagel lignite seam of the Sentinel information may be obtained by Butte Formation of the Fort Union Acting Manager, Regulatory Affairs Group. contacting the Bureau’s Clearance Office Group. at the phone number listed below. [FR Doc. 97–5556 Filed 3–5–97; 8:45 am] NDM 85515 OMB is required to respond to this BILLING CODE 4310±84±P request within 60 days but may respond The coal resource to be offered after 30 days. For maximum [MT±921±07±1320±01; NDM 85515] consists of all recoverable reserves in consideration, your comments and the following-described lands located in suggestions on the requirement should Coal Lease Offering Mercer County, North Dakota: be made within 30 days directly to the AGENCY: Bureau of Land Management, T. 145 N., R. 87 W., 5th P.M. Office of Management and Budget, Sec. 2: Lot 3, SE1⁄4NW1⁄4 Interior Department Desk Officer (1004– Montana State Office, Interior. 0074), Office of Information and ACTION: Notice of coal lease offering by The 79.470-acre tract contains an Regulatory Affairs, Washington, D.C. sealed bid NDM 85515, NDM 85517, estimated 2.00 million tons of 20503, telephone (202) 395–7340. Please NDM 85537 (Acq.)—The Coteau recoverable coal reserves. For NDM provide a copy of your comments to the Properties Company, and NDM 85516— 85515, the Beulah-Zap seam averages Bureau Clearance Officer (WO–630) The Falkirk Mining Company. 15.5 feet in thickness with an average overburden depth of 125 feet, 6,690 1849 C St., N.W., Mail Stop 401 LS, SUMMARY: Notice is hereby given that Washington, D.C. 20240. BTU/lb. in heating value, and 1.43% the coal resources in the tracts described sulphur content. Nature of Comments: below in Mercer and McLean Counties, North Dakota, will be offered for NDM 85516 We specifically request your competitive lease by sealed bid, in comments on the following: The coal resource to be offered 1. Whether the collection of accordance with the provisions of the consists of all recoverable reserves in information is necessary for the proper Mineral Leasing Act of February 25, the following-described lands located in functioning of the Bureau of Land 1920, as amended (41 Stat. 437; 30 McLean County, North Dakota: Management, including whether the U.S.C. 181 et seq.), and The Mineral T. 146 N., R. 81 W., 5th P.M. Leasing Act for Acquired Lands of 1 1 1 1 information will have practical utility; Sec. 30: Lot 4, SE ⁄4SW ⁄4, S ⁄2SE ⁄4 August 7, 1947, as amended (30 U.S.C. 2. The accuracy of BLM’s estimate of The recoverable coal reserve in this the burden of collecting the information, 351–359 et seq.). This offering is being made as a result of applications filed by 158.75-acre tract is contained in the including the validity of the Hagel lignite seam. The Hagel seam of methodology and assumptions used; The Coteau Properties Company and The Falkirk Mining Company. the Sentinel Butte Formation of the Fort 3. The quality, utility, and clarity of Union Group is split into two benches SUPPLEMENTARY INFORMATION: the information to be collected; and throughout the area. The upper bench, Environmental Assessments of the 4. How to minimize the burden of the Hagel A, ranges from 0 to 10.6 feet proposed coal developments and related collecting the information on those who over the Falkirk Mine area and averages requirements for consultation, public are to respond, including the use of 8.6 feet in thickness, 6,082 BTU/lb. in involvement and hearings have been appropriate automated electronic, heating value, and 0.55% sulphur completed in accordance with 43 CFR mechanical, or other forms of content. Separating the upper and lower 3425. The results of these activities were information technology. benches of the Hagel seam is an a finding of no significant Title: Oil and Gas and Geothermal interburden layer ranging from 8 to 32 Resources Leasing (43 CFR 3120, 3209 environmental impact. Each tract will be leased to the feet in thickness and consisting of clays, and 3220). silts, and carbonaceous matter. The OMB Approval Number: 1004–0074. qualified bidder of the highest cash lower bench, the Hagel B, ranges from Abstract: Respondents supply amount provided that the high bid 0 to 4.4 feet over the mine area and information that will be used to meets the fair market value of the coal averages 3.5 feet in thickness, 6,012 determine the highest qualified bonus resource. The minimum bid for each BTU/lb. in heating value, and 0.62% bid submitted for a competitive oil and tract is $100 per acre, or fraction thereof. sulphur content. An estimated 1.75 gas or geothermal resources parcel on No bid that is less than $100 per acre, million tons of recoverable lignite are Federal land and to enable the BLM to or fraction thereof, will be considered. present in the Hagel A and Hagel B coal complete reviews in compliance with The minimum bid is not intended to seams. the National Environmental Policy Act. represent fair market value. The fair The BLM needs the information to market value will be determined by the NDM 85517 determine the eligibility of an applicant authorized officer after the sale. All tracts in this lease offering contain The coal resource to be offered to hold, explore for, develop, and consists of all recoverable reserves in produce oil and gas and geothermal split estate lands. Regulations at 43 CFR 3427 set out the protection that shall be the following-described lands located in resources on Federal lands. Mercer County, North Dakota: Form Numbers: 3000–2 and 3200–9. afforded qualified surface owners of Frequency: On occasion. split estate lands (as defined at 43 CFR T. 146 N., R. 87 W., 5th P.M. Description of Respondents: 3400.0–5). Sec. 30: Lot 2 Individuals, small businesses, large T. 146 N., R. 88 W., 5th P.M. Coal Tracts Offered 1 4 1 4 corporations. Sec. 26: SE ⁄ SE ⁄ Sec. 34: E1⁄2 Estimated Completion Time: 2 hours The recoverable coal reserves of the each form. tracts NDM 85515, NDM 85517, and The 398.790-acre tract contains an Annual Responses: 443. NDM 85537 (Acquired) are contained in estimated 5.61 million tons of Annual Burden Hours: 886. the Beulah-Zap lignite seam of the recoverable coal reserves. For NDM 10290 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

85517, the Beulah-Zap averages 17.0 Notice of Availability [(NM±930±1310±01); (NMNM 92169)] feet in thickness with an average Bidding instructions for the offered overburden depth of 57 feet, 6,766 BTU/ New Mexico: Proposed Reinstatement tracts are included in the detailed of Terminated Oil and Gas Lease lb. in heating value, and 0.46% sulphur statement of Lease Sale. Copies of the content. detailed statement and the proposed Under the provisions of Public Law NDM 85537 (Acquired) coal leases are available at the Montana 97–451, a petition for reinstatement of State Office. Casefile documents are also oil and gas lease NMNM 92169 for lands The coal resource to be offered available for public inspection at the in Chaves County, New Mexico, was consists of all recoverable reserves in Montana State Office. timely filed and was accompanied by all the following-described lands located in Dated: February 26, 1997. required rentals and royalties accruing Mercer County, North Dakota. The from December 1, 1996, the date of Thomas P. Lonnie, United States owns 50 percent mineral termination. interest in these lands. Deputy State Director, Division of Resources. No valid lease has been issued T. 146 N., R. 87 W., 5th P.M. [FR Doc. 97–5528 Filed 3–5–97; 8:45 am] affecting the lands. The lessee has Sec. 31: NE1⁄4 BILLING CODE 4310±DN±P agreed to new lease terms of rentals and royalties at rates of $10.00 per acre or The Federal interest in the 160.00- fraction thereof and 162⁄3 percent, acre tract contains an estimated 0.51 [NV±030±1992±02] respectively. The lessee has paid the million tons of recoverable coal Notice of Availability for the Denton- required $500 administrative fee and reserves. For NDM 85537 (Acquired), Rawhide Mine Expansion Project Final has reimbursed the Bureau of Land the Beulah-Zap seam averages 16.0 feet Environmental Impact Statement Management for the cost of this Federal in thickness with an average overburden Register notice. depth of 70 feet, 6,766 BTU/lb. in AGENCY: Bureau of Land Management, The Lessee has met all the heating value, and 0.46% sulphur Department of the Interior. requirements for reinstatement of the content. ACTION: Notice of availability for the lease as set out in Sections 31(d) and (e) Rental and Royalty Denton-Rawhide Mine Expansion Final of the Mineral Leasing Act of 1930 (30 Environmental Impact Statement (FEIS), USC 188), and the Bureau of Land Leases issued as a result of this Mineral County, Nevada. Management is proposing to reinstate offering will provide for payment of an the lease effective December 1, 1996, annual rental of $3 per acre, or fraction SUMMARY: Pursuant to section 102 (2) (C) subject to the original terms and thereof; and a royalty payable to the of the National Environmental Policy conditions of the lease and the United States of 12.5 percent of the Act, 40 CFR 1500–1508 and 43 CFR increased rental and royalty rates cited value of coal mined by surface methods 3809, notice is given that the Bureau of above. and 8.0 percent of the value of coal Land Management (BLM) has prepared, For further information contact: mined by underground methods. The with the assistance of a third-party Lourdes B. Ortiz, BLM, New Mexico value of the coal shall be determined in consultant, a FEIS for Kennecott State Office, (505) 438–7586. accordance with 30 CFR 206. Rawhide Mining Company’s proposed Denton-Rawhide Mine Expansion, Dated: February 26, 1997. Date located approximately 55 miles Lourdes B. Ortiz, The lease sale will be held at 11:00 southeast of Fallon, Nevada. Copies of Land Law Examiner a.m., Wednesday, March 26, 1997, in the document are available for public [FR Doc. 97–5473 Filed 3–5–97; 8:45 am] the Conference Room on the Sixth Floor review. BILLING CODE 4310±FB±M of the Granite Tower Building, Bureau DATES: Written comments on the FEIS of Land Management, 222 North 32nd will be accepted until close of business Street, Billings, Montana 59101. [NM±070±1430±01; NMNM039649/ on April 7, 1997. No public meetings are NMNM96454, NMNM22493/NMNM97415] Bids scheduled. Following the 30-day availability period of this FEIS, a Record Notice of Realty Action; Recreation Sealed bids must be submitted on or of Decision (ROD) will be issued. and Public Purpose (R&PP) Act before 10:00 a.m., Wednesday, March ADDRESSES: A copy of the FEIS can be AGENCY: 26, 1997, to the cashier, Bureau of Land obtained from: Bureau of Land Bureau of Land Management, Management, Montana State Office, Management, Carson City District Interior. Second Floor, Granite Tower Building, Office, Attn: Terri Knutson, Rawhide ACTION: R&PP transfer of title and 222 North 32nd Street, Post Office Box Project Manager, 1535 Hot Springs Road change of use located in San Juan 36800, Billings, Montana 59107–6800. 89706. County, New Mexico. The bids should be sent by certified The FEIS is available for inspection at SUMMARY: The following described mail, return receipt requested, or be the following locations: BLM State public land are classified (previously) as hand-delivered. The cashier will issue a Office (Reno) and BLM Carson City being suitable for lease/conveyance receipt for each hand-delivered bid. District Office. Bids received after that time will not be under the provisions of the R&PP Act, FOR FURTHER INFORMATION CONTACT: For considered. as amended (43 U.S.C. 869 et seq.). An additional information, write to the If identical high sealed bids are assignment from the City of Farmington above address or call Terri Knutson at to the Farmington Municipal School received, the tying high bidders will be (702) 885–6156. # requested to submit follow-up sealed District 5, with a change of use taking bids until a high bid is received. All tie- Dated: February 24, 1997. place for the following lands. breaking sealed bids must be submitted John O. Singlaub, New Mexico Principal Meridian within 15 minutes following the Sale District Manager. T. 30 N., R. 13 W., Official’s announcement at the sale that [FR Doc. 97–5476 Filed 3–5–97; 8:45 am] Sec 25, S1⁄2SW1⁄4NE1⁄4SW1⁄4, identical high bids have been received. BILLING CODE 4310±HC±P SW1⁄4SE1⁄4NE1⁄4SW1⁄4, Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10291

S1⁄2SE1⁄4SE1⁄4NE1⁄4SW1⁄4, shoulder of the road is the compacted This survey requested by the Forest S1⁄2NE1⁄4SW1⁄4NE1⁄4SW1⁄4, road base that extends from the edge of Service for administrative purposes. S1⁄2NW1⁄4SE1⁄4NE1⁄4SW1⁄4, the pavement to where it drops off and 1 1 1 1 1 1 1 The plat representing the dependent NE ⁄4SW ⁄4SE ⁄4, W ⁄2NE ⁄4SW ⁄4SE ⁄4, resumes the natural contour of the resurvey of portions of the south NW1⁄4SE1⁄4SW1⁄4SE1⁄4, surrounding terrain. boundary, subdivisional lines, and the N1⁄2SW1⁄4SE1⁄4SW1⁄4SE1⁄4, 1 1 1 1 1 section subdivision lines of section 35, N ⁄2S ⁄2SW ⁄4SW ⁄4SE ⁄4, Background N1⁄2SW1⁄4SW1⁄4SE1⁄4. T. 1 S., R. 1 W., Ute Principal Meridian, Containing 37.50 acres, more or less. The need for safety rules was Group 1144, Colorado, and the identified during a series of public completion survey of section 35, the A transfer of title from the Farmington meetings held during preparation of the # subdivision, the metes-and-bounds Municipal School District 5 to the City Imperial Sand Dunes Recreation Area survey of lots and private land parcels of Farmington, with a change of use Management Plan, completed in 1987. A & B, the original meander of the left taking place for the following lands. Safety hazards and methods of reducing bank, and the informative traverse of the New Mexico Principal Meridian them were high priority planning issues meanders of the actual right bank of the T. 30 N., R. 13 W., identified by participants at the Gunnison River, all in section 35, was Sec. 25, SW1⁄4. planning meetings. accepted February 10, 1997. Containing 40 acres, more or less. Additional safety precautions are This survey was requested by BLM for needed to prevent accident or injury administrative purposes. FOR FURTHER INFORMATION CONTACT: along Gecko Road. Visitors are parking The amended plat correcting the Information related to this action, and camping immediately adjacent to bearings and distances on the west including the environmental the road, and there is a high likelihood boundary T. 33 N., R. 6 W., New Mexico assessment, is available for review at the of accidents or injuries involving Principal Meridian, Colorado, was Bureau of Land Management, visitors parked or camped on the accepted January 7, 1997. Farmington District Office, 1235 La shoulder of the road. Plata Highway, Farmington, NM 87401. The supplemental plat showing the EFFECTIVE DATE: Effective upon date of correct position of corner no. 7 and line SUPPLEMENTARY INFORMATION: publication and will remain in effect 7–1 of the Maysville Townsite and Publication of this notice is to provide until rescinded or modified by the creating new lot 20 in section 3, T. 49 public notification that this transfer of authorized officer. N., R. 7 E., New Mexico Principal title and change of use is being FOR FURTHER INFORMATION CONTACT: Meridian, Colorado, was accepted considered. The original land Chief Area Ranger Robert Zimmer, January 9, 1997. classifications remain the same. Bureau of Land Management, El Centro These plats were requested by BLM Dated: February 28, 1997. Resource Area, 1661 S. 4th St., El for administrative purposes. Joel E. Farrell, Centro, CA 92243 (619) 337–4407. Colin R. Kelley, Assistant District Manager for Lands and SUPPLEMENTARY INFORMATION: The Acting Chief Cadastral Surveyor for Colorado. Renewable Resources. authority for this restriction is provided [FR Doc. 97–5536 Filed 3–5–97; 8:45 am] [FR Doc. 97–5514 Filed 3–5–97; 8:45 am] in 43 CFR 8365.1–6. Violation of this BILLING CODE 4310±JB±P BILLING CODE 4310±FB±M restriction is punishable by a fine not to exceed $100,000.00 and/or [CA±067±1230±00] imprisonment not to exceed 12 months. [ID±957±1420±00] Dated: February 26, 1997. Establishment of Supplementary Rule Terry Reed, Idaho; Filing of Plats of Survey; Idaho for Use Management of Imperial Sand Area Manager. The plat of the following described Dunes Recreation Area, California [FR Doc. 97–5529 Filed 3–5–97; 8:45 am] Desert District land was officially filed in the Idaho BILLING CODE 4310±40±M State Office, Bureau of Land AGENCY: Bureau of Land Management, Management, Boise, Idaho, effective Interior. [CO±956±96±1420±00] 9:00 a.m. February 24, 1997. ACTION: Establishment of supplementary The plat representing the dependent rule. Colorado; Filing of Plats of Survey resurvey of portions of the subdivisional lines and the subdivision of section 15, SUMMARY: The primary purpose of this February 25, 1997. T. 36 N., R. 2 E., Boise Meridian, Idaho, supplementary rule is enhancement of The plats of survey of the following Group No. 903, was accepted February public safety in the Imperial Sand described land, will be officially filed in 24, 1997. This plat was prepared to meet Dunes Recreation Area. This rule will the Colorado State Office, Bureau of certain administrative needs of the Nez provide a safety zone between the heavy Land Management, Lakewood, Perce Tribe and the Bureau of Indian traffic on Gecko Road and those Colorado, effective 10:00 am., February Affairs. camping off the road. 25, 1997. All inquiries should be sent to All inquiries concerning the survey of The following rule is therefore the Colorado State Office, Bureau of the above described land must be sent recommended: Land Management, 2850 Youngfield to the Chief, Cadastral Survey, Idaho 1. No person shall camp or park on Street, Lakewood, Colorado 80215. State Office, Bureau of Land the shoulder of Gecko Road in the The plat (in six sheets) representing Management, 1387 S. Vinnell Way, Imperial Sand Dunes Recreation Area the dependent resurvey of portions of Boise, Idaho, 83709–1657. except where permitted by posted signs. the subdivisional lines, and certain In areas where there is no obvious mineral claims and portions thereof and February 24, 1997. shoulder, no one shall park or camp the subdivision of section 29, T. 1 N., Duane E. Olsen, within 10 feet of the pavement of Gecko R. 71 W., Sixth Principal Meridian, Chief Cadastral Surveyor for Idaho. Rd. This includes all portions of Gecko Group 1008, Colorado, was accepted [FR Doc. 97–5527 Filed 3–5–97; 8:45 am] Road. For purposes of this rule, the February 3, 1997. BILLING CODE 4310±GG±M 10292 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

INTERNATIONAL TRADE information on this matter by contacting participate in the conference should COMMISSION the Commission’s TDD terminal on 202– contact Debra Baker (202–205–3180) not 205–1810. Persons with mobility later than March 13, 1997, to arrange for [Investigations Nos. 701±TA±368±371 and impairments who will need special their appearance. Parties in support of 731±TA±763±766 (Preliminary)] assistance in gaining access to the the imposition of countervailing duty Certain Steelwire Rod From Canada, Commission should contact the Office and/or antidumping duties in the Germany, Trinidad & Tobago, and of the Secretary at 202–205–2000. investigations and parties in opposition Venezuela General information concerning the to the imposition of such duties will Commission may also be obtained by each be collectively allocated one hour AGENCY: United States International accessing its internet server (http:// within which to make an oral Trade Commission. www.usitc.gov or ftp://ftp.usitc.gov). presentation at the conference. A ACTION: Institution of countervailing SUPPLEMENTARY INFORMATION nonparty who has testimony that may duty and antidumping investigations aid the Commission’s deliberations may and scheduling of preliminary phase Background.—These investigations request permission to present a short investigations. are being instituted in response to a statement at the conference. petition filed on February 26, 1997, by Written submissions.—As provided in SUMMARY: The Commission hereby gives counsel for Connecticut Steel Corp., sections 201.8 and 207.15 of the notice of the institution of the Wallingford, CT; Co-Steel Raritan, Perth Commission’s rules, any person may investigations and commencement of Amboy, NJ; GS Industries, Inc., submit to the Commission on or before preliminary phase countervailing duty Georgetown, SC; Keystone Steel & Wire March 24, 1997, a written brief investigations 701–TA–368–371 Co., Peoria, IL; and North Star Steel containing information and arguments (Preliminary) under section 703(a) of the Texas, Inc., Beaumont, TX. pertinent to the subject matter of the Tariff Act of 1930 (19 U.S.C. § 1671b(a)) Participation in the investigations and investigations. Parties may file written (the Act) and antidumping public service list.—Persons (other than testimony in connection with their petitioners) wishing to participate in the investigations No. 731–TA–763–766 presentation at the conference no later investigations as parties must file an (Preliminary) under section 733(a) of the than three days before the conference. If entry of appearance with the Secretary Act (19 U.S.C. § 1673b(a)) to determine briefs or written testimony contain BPI, to the Commission, as provided in whether there is a reasonable indication they must conform with the sections 201.11 and 207.10 of the that an industry in the United States is requirements of sections 201.6, 207.3, Commission’s rules, not later than seven materially injured or threatened with and 207.7 of the Commission’s rules. days after publication of this notice in material injury, or the establishment of In accordance with sections 201.16(c) the Federal Register. Industrial users an industry in the United States is and 207.3 of the rules, each document and (if the merchandise under materially retarded, by reason of filed by a party to the investigations investigation is sold at the retail level) imports from Canada, Germany, must be served on all other parties to representative consumer organizations Trinidad & Tobago, and Venezuela of the investigations (as identified by have the right to appear as parties in certain steel wire rod, provided for in either the public or BPI service list), and subheadings 7213.91.30, 7213.91.45, Commission countervailing duty and antidumping investigations. The a certificate of service must be timely 7213.91.60, 7213.99.00, 7227.20.00, and filed. The Secretary will not accept a 7227.90.60 of the Harmonized Tariff Secretary will prepare a public service list containing the names and addresses document for filing without a certificate Schedule of the United States, that are of service. alleged to be subsidized and/or sold in of all persons, or their representatives, Authority: These investigations are being the United States at less than fair value. who are parties to these investigations upon the expiration of the period for conducted under authority of title VII of the Unless the Department of Commerce Tariff Act of 1930; this notice is published extends the time for initiation pursuant filing entries of appearance. Limited disclosure of business pursuant to section 207.12 of the to section 732(c)(1)(B) of the Act (19 proprietary information (BPI) under an Commission’s rules. U.S.C. § 1673a(c)(1)(B)), the Commission administrative protective order (APO) Issued: February 28, 1997. must reach preliminary determinations and BPI service list.—Pursuant to By order of the Commission. in countervailing duty and antidumping section 207.7(a) of the Commission’s Donna R. Koehnke, investigations in 45 days, or in this case rules, the Secretary will make BPI Secretary. by April 14, 1997. The Commission’s gathered in the investigations available views are due at the Department of [FR Doc. 97–5466 Filed 3–5–97; 8:45 am] to authorized applicants representing Commerce within five business days BILLING CODE 7020±02±P interested parties (as defined in 19 thereafter, or by April 21, 1997. U.S.C. § 1677(9)) who are parties to the For further information concerning investigations under the APO issued in [Investigation No. 337±TA±390] the conduct of these investigations and the investigations, provided that the rules of general application, consult the In the Matter of Certain Transport application is made not later than seven Commission’s Rules of Practice and Vehicle Tires; Notice of Commission days after the publication of this notice Procedure, part 201, subparts A through Determination Not To Review an Initial in the Federal Register. A separate E (19 CFR part 201), and part 207, Determination Terminating the service list will be maintained by the subparts A and B (19 CFR part 207), as Investigation Secretary for those parties authorized to amended in 61 FR 37818 (July 22, 1996). receive BPI under the APO. AGENCY: U.S. International Trade EFFECTIVE DATE: February 26, 1997. Conference.—The Commission’s Commission. FOR FURTHER INFORMATION CONTACT: Director of Operations has scheduled a ACTION: Notice. Debra Baker (202–205–3180), Office of conference in connection with these Investigations, U.S. International Trade investigations for 9:30 a.m. on March SUMMARY: Notice is hereby given that Commission, 500 E Street SW., 19, 1997, at the U.S. International Trade the U.S. International Trade Washington, DC 20436. Hearing- Commission Building, 500 E Street SW., Commission has determined not to impaired persons can obtain Washington, DC. Parties wishing to review the presiding administrative law Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10293 judge’s (ALJ’s) initial determination (ID) determination and its motion for Dated: February 28, 1997. (Order No. 17) in the above-captioned discovery sanctions before ruling on Mary Ann Hadyka, investigation terminating the MNA’s motion to terminate. MNA and Policy and Communications Staff. investigation based on withdrawal of the IA have opposed the petition for [FR Doc. 97–5509 Filed 3–5–97; 8:45 am] the complaint. review. BILLING CODE 7515±01±P FOR FURTHER INFORMATION CONTACT: Neal This action is taken under the J. Reynolds, Esq., Office of the General authority of section 337 of the Tariff Act Counsel, U.S. International Trade of 1930, 19 U.S.C. § 1337, and NATIONAL COMMUNICATIONS Commission, telephone 202–205–3093. Commission rule 210.42, 19 C.F.R. SYSTEM SUPPLEMENTARY INFORMATION: On July §§ 210.42. Copies of the ALJ’s ID, and all 31, 1996, the Commission instituted this other nonconfidential documents filed National Security Telecommunications investigation based on a complaint filed in connection with this investigation, Advisory Committee by Michelin North America, Inc. are or will be available for inspection AGENCY: National Communications (‘‘MNA’). The complaint alleged that the during official business hours (8:45 a.m. System (NCS). importation and sale of certain transport to 5:15 p.m.) in the Office of the vehicle tires violated section 337 of the Secretary, U.S. International Trade ACTION: Notice of meeting. Tariff Act of 1930 by infringing claims Commission, 500 E Street, SW, SUMMARY: A meeting of the President’s of U.S. Letters Patent 4,480,671 (‘‘the Washington, D.C. 20436, telephone 202– National Security Telecommunications ’671 patent’’) covering tread on a heavy 205–2000. Hearing-impaired persons are Advisory Committee will be held on duty tire. The companies named as advised that information on this matter Tuesday, March 18, 1997, from 8:30 respondents are Kumho Tire Co., Ltd. can be obtained by contacting the a.m. to 3:15 p.m. The Business Session and Kumho Tire U.S.A., Inc. (‘‘Kumho’). Commission’s TDD terminal on 202– will be held at the Department of State, On November 27, 1996, Kumho filed 205–1810. 2101 C Street NW, Washington, DC. The a motion for summary determination of Issued: February 28, 1997. Executive Session will be held at the non-infringement. MNA opposed the Department of Treasury, 15th and motion. On December 12, 1996, Kumho By order of the Commission. Donna R. Koehnke, Pennsylvania Avenue NW, Washington, also filed two motions requesting the DC. The agenda is as follows: ALJ to compel MNA to discover certain Secretary. —Call to Order/Welcoming Remarks information relating to MNA’s tire [FR Doc. 97–5465 Filed 3–5–97; 8:45 am] —Manager’s Report compounding and manufacturing BILLING CODE 7020±02±P processes. MNA opposed the discovery —IES Report of Activities motions, arguing that the information —Information Assurance Task Force requested by Kumho was extremely Report sensitive and highly sought-after —National Information Infrastructure NATIONAL ARCHIVES AND RECORDS Task Force Report proprietary information of MNA and ADMINISTRATION that it was not relevant to the subject —Network Security Group Report —Global Information Infrastructure and matter of the investigation. On Information Security Oversight Office; Information Assurance Topics December 24, 1996, the ALJ ordered National Industrial Security Program —Adjournment MNA to produce the information (Order Policy Advisory Committee; Notice of No. 12). Meeting Due to the potential requirement to On January 7, 1997, pursuant to discuss classified information, in Commission rule 210.21(a), MNA In accordance with the Federal conjunction with the issues listed moved for an order terminating the Advisory Committee Act (5 U.S.C. above, the meeting will be closed to the investigation based on withdrawal of App.2) and implementing regulation 41 public in the interest of National the complaint. MNA stated that it was CFR 101–6, announcement is made of Defense. withdrawing the complaint and the following committee meeting: FOR FURTHER INFORMATION: Telephone requesting termination of the (703) 607–6221 or write the Manager, Name of Committee: National Industrial National Communications System, 701 investigation in order to protect its Security Program Policy Advisory Committee highly proprietary tire compounding (NISPPAC). S. Court House Rd., Arlington, VA information from discovery. Kumho Date of Meeting: March 25, 1997. 22204–2198. opposed the motion, arguing that the Time of Meeting: 10:00 a.m. to 12:00 noon. Dennis Bodson, ALJ should rule on the pending motion Place of Meeting: National Archives and Chief, Technology and Standards. for summary determination before Records Administration, 700 Pennsylvania [FR Doc. 97–5474 Filed 3–5–97; 8:45 am] addressing the motion to terminate. On Avenue, NW, Washington, DC. BILLING CODE 5000±03±M January 30, 1997, the ALJ granted Purpose: To discuss National Industrial MNA’s motion to terminate and issued Security Program policy matters. an ID terminating the investigation This meeting will be open to the public. NATIONAL FOUNDATION ON THE ‘‘with prejudice’’ (Order No. 17). The However, due to space limitations and access ARTS AND THE HUMANITIES ALJ declined to issue a decision on procedures, the names and telephone Kumho’s motion for summary numbers of individuals planning to attend National Endowment for the Arts; determination. must be submitted to the Information Submission for OMB Review; On February 6, 1997, Kumho filed a Security Oversight Office (ISOO) no later Comment Request petition for review of the ID terminating than March 20, 1997. the investigation. In its petition, Kumho For Further Information Contact: Steven March 3, 1997. requested that the Commission vacate Garfinkel, Director, ISOO, National Archives The National Endowment for the Arts the ID and remand the investigation to Building, 700 Pennsylvania Avenue, NW, (NEA) has submitted the following the ALJ with instructions to rule on Room 100, Washington, DC 20408, telephone public information collection request Kumho’s pending motion for summary (202) 219–5250. (ICR) to the Office of Management and 10294 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Budget (OMB) for review and approval OMB Number: 3135–0112. Emergency Filtration System, the in accordance with the Paperwork Frequency: Annually. Penetration Room Filtration System, Reduction Act of 1995 [P.L. 104–13, 44 Affected Public: Nonprofit and the Containment Purge Exhaust U.S.C. Chapter 35]. Copies of this ICR, organizations, state and local arts Filter System. with applicable supporting agencies, and individuals. This requested Technical documentation, may be obtained by Estimated Number of Respondents: Specification (TS) change is a followup calling the National Endowment for the 5,000. to a Notice of Enforcement Discretion Arts’ Director of Guidelines & Panel Estimated Time Per Respondent: (NOED) granted to the licensee that is in Operations, A.B. Spellman [(202) 682– 19.29 hours. effect for the period from 1:27 p.m. 5421]. Individuals who use a Total Burden Hours: 96,450. Eastern Standard Time on February 26, telecommunications device for the deaf Total Annualized Capital/Startup 1997, until approval of this exigent TS (TTY/TDD) may call (202) 682–5496 Costs: 0. request and full implementation of the between 10:00 a.m. and 4:00 p.m. Total Annual Costs (Operating/ amendments within 30 days of its Eastern time, Monday through Friday. Maintaining Systems or Purchasing issuance. NRC Inspection Manual, Part Comments should be sent to the Services): 0. 9900, ‘‘Operations—Notices of Office of Information and Regulatory Description: Guideline instructions Enforcement Discretion,’’ requires that a Affairs, Attn: OMB Desk Officer for the and applications elicit relevant followup TS amendment be issued National Endowment for the Arts, Office information from individuals, nonprofit within 4 weeks from the issuance of the of Management and Budget, Room organizations, and state and local arts NOED. 10235, Washington, DC 20503 [(202) agencies that apply for funding from the Before issuance of the proposed 395–7316], within 30 days from the date NEA. Current Endowment categories license amendments, the Commission of this publication in the Federal include, but are not limited to: Grants to will have made findings required by the Register. Organizations, Partnership Agreements, Atomic Energy Act of 1954, as amended The Office of Management and Budget Literature Fellowships, American Jazz (the Act) and the Commission’s (OMB) is particularly interested in Masters, National Heritage Fellowships regulations. comments which: in the Folk & Traditional Arts, and • Pursuant to 10 CFR 50.91(a)(6) for Evaluate whether the proposed Leadership Initiatives (including collection of information is necessary amendments to be granted under Millennium). This information is exigent circumstances, the NRC staff for the proper performance of the necessary for the accurate, fair and functions of the agency, including must determine that the requested thorough consideration of competing amendments involve no significant whether the information will have proposals in the review process. practical utility; hazards consideration. Under the • Evaluate the accuracy of the ADDRESSES: A.B. Spellman, National Commission’s regulations in 10 CFR agency’s estimate of the burden of the Endowment for the Arts, 1100 50.92, this means that operation of the proposed collection of information Pennsylvania Avenue, N.W., Room 516, facility in accordance with the proposed including the validity of the Washington, DC 20506–0001, telephone amendment would not (1) involve a methodology and assumptions used; (202) 682–5421 (this is not a toll-free significant increase in the probability or • Enhance the quality, utility and number), fax (202) 682–5049. consequences of an accident previously clarity of the information to be Murray Welsh, evaluated; or (2) create the possibility of collected; and Director, Administrative Services, National a new or different kind of accident from • Minimize the burden of the Endowment for the Arts. any accident previously evaluated; or collection of information on those who [FR Doc. 97–5538 Filed 3–5–97; 8:45 am] (3) involve a significant reduction in a are to respond, including through the BILLING CODE 7537±01±M margin of safety. As required by 10 CFR use of appropriate automated, 50.91(a), the licensee has provided its electronic, mechanical, or other analysis of the issue of no significant technological collection techniques or NUCLEAR REGULATORY hazards consideration, which is other forms of information technology, COMMISSION presented below: e.g., permitting electronic submissions [Docket Nos. 50±348 and 50±364] 1. The proposed changes do not involve a of responses. significant increase in the probability or SUPPLEMENTARY INFORMATION: The Southern Nuclear Operating Company, consequences of an accident previously Endowment request the review of all of Inc.; Notice of Consideration of evaluated. its funding application guidelines. This The proposed changes to convert from Issuance of Amendments to Facility ANSI N510–1980 to ASME N510–1989 for entry is issued by the Endowment and Operating Licenses, Proposed No contains the following information: (1) specific FNP [Farley Nuclear Plant] filtration Significant Hazards Consideration surveillance testing requirements do not The title of the form; (2) how often the Determination, and Opportunity for a affect the probability of any accident required information must be reported; Hearing occurring. The consequences of any accident (3) who will be required or asked to will not be affected since the proposed report; (4) what the form will be used The U.S. Nuclear Regulatory change will continue to ensure that for; (5) an estimate of the number of Commission (the Commission) is appropriate and required surveillance testing responses; (6) the average burden hours considering issuance of amendments to for FNP filtration systems will be performed. per response; (7) an estimate of the total Facility Operating License Nos. NPF–2 Relocating specific testing requirements to number of hours needed to prepare the and NPF–8, issued to Southern Nuclear the FNP FSAR [Final Safety Analysis Report] form. This entry is not subject to 44 Operating Company, Inc. (the licensee), has no effect on the probability or for operation of the Joseph M. Farley consequences of any accident previously U.S.C. § 3504(h). evaluated since required testing will Agency: National Endowment for the Nuclear Plant, Units 1 and 2, located in continue to be performed. Arts. Houston County, Alabama. Therefore, the proposed TS changes do not Title: Blanket Justification for NEA The proposed amendments would involve a significant increase in the Funding Application Guidelines FY revise and clarify surveillance probability or consequences of an accident 1998–FY 2001. requirements for the Control Room previously evaluated. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10295

2. The proposed changes do not create the amendment involves no significant how that interest may be affected by the possibility of a new or different kind of hazards consideration. The final results of the proceeding. The petition accident from any accident previously determination will consider all public should specifically explain the reasons evaluated. and State comments received. Should why intervention should be permitted Testing differences between ANSI N510– 1980 and ASME N510–1989 have been the Commission take this action, it will with particular reference to the evaluated by SNC [Southern Nuclear publish in the Federal Register a notice following factors: (1) the nature of the Operating Company, Inc.] and none of the of issuance. The Commission expects petitioner’s right under the Act to be proposed changes have the potential to create that the need to take this action will made a party to the proceeding; (2) the an accident at FNP. ANSI N510–1989 has occur very infrequently. nature and extent of the petitioner’s been endorsed and approved by the NRC for Written comments may be submitted property, financial, or other interest in licensee use in NUREG 1431. No new system by mail to the Chief, Rules Review and the proceeding; and (3) the possible design or testing configuration is being Directives Branch, Division of Freedom effect of any order which may be proposed that could create the possibility of of Information and Publications entered in the proceeding on the any new or different kind of accident from Services, Office of Administration, U.S. any accident previously evaluated. petitioner’s interest. The petition should Relocating specific testing requirements to Nuclear Regulatory Commission, also identify the specific aspect(s) of the the FSAR has no effect on the possibility of Washington, DC 20555–0001, and subject matter of the proceeding as to creating a new or different kind of accident should cite the publication date and which petitioner wishes to intervene. from any accident previously evaluated since page number of this Federal Register Any person who has filed a petition for it is an administrative change in nature. notice. Written comments may also be leave to intervene or who has been Therefore, the proposed changes do not delivered to Room 6D22, Two White admitted as a party may amend the create the possibility of a new or different Flint North, 11545 Rockville Pike, kind of accident from any accident petition without requesting leave of the Rockville, Maryland, from 7:30 a.m. to Board up to 15 days prior to the first previously evaluated. 4:15 p.m. Federal workdays. Copies of 3. The proposed changes do not involve a prehearing conference scheduled in the significant reduction in a margin of safety. written comments received may be proceeding, but such an amended Conversion from the testing requirements examined at the NRC Public Document petition must satisfy the specificity of ANSI N510–1980 sections 5, 8, and 14 to Room, the Gelman Building, 2120 L requirements described above. ASME N510–1989 sections 5, 8, and 14 has Street, NW., Washington, DC. Not later than 15 days prior to the first been previously approved by the NRC at The filing of requests for hearing and prehearing conference scheduled in the other nuclear facilities. ASME N510–1989 petitions for leave to intervene is proceeding, a petitioner shall file a has been approved and endorsed by the NRC discussed below. in NUREG 1431. Relocating specific testing By April 7, 1997, the licensee may file supplement to the petition to intervene requirements to the FSAR has no effect on a request for a hearing with respect to which must include a list of the the margin of plant safety since required issuance of the amendment to the contentions which are sought to be testing will continue to be performed. subject facility operating license and litigated in the matter. Each contention Therefore, SNC concludes based on the must consist of a specific statement of above, that the proposed changes do not any person whose interest may be affected by this proceeding and who the issue of law or fact to be raised or result in a significant reduction of margin controverted. In addition, the petitioner with respect to plant safety as defined in the wishes to participate as a party in the Final Safety Analysis Report or the bases of proceeding must file a written request shall provide a brief explanation of the the FNP technical specifications. for a hearing and a petition for leave to bases of the contention and a concise Therefore, the proposed changes do not intervene. Requests for a hearing and a statement of the alleged facts or expert involve a significant reduction in a margin of petition for leave to intervene shall be opinion which support the contention safety. filed in accordance with the and on which the petitioner intends to The NRC staff has reviewed the Commission’s ‘‘Rules of Practice for rely in proving the contention at the licensee’s analysis and, based on this Domestic Licensing Proceedings’’ in 10 hearing. review, it appears that the three CFR Part 2. Interested persons should The petitioner must also provide standards of 10 CFR 50.92(c) are consult a current copy of 10 CFR 2.714 references to those specific sources and satisfied. Therefore, the NRC staff which is available at the Commission’s documents of which the petitioner is proposes to determine that the Public Document Room, the Gelman aware and on which the petitioner amendment request involves no Building, 2120 L Street, NW., intends to rely to establish those facts or significant hazards consideration. Washington, DC, and at the local public expert opinion. Petitioner must provide The Commission is seeking public document room located at the Houston- sufficient information to show that a comments on this proposed Love Memorial Library, 212 W. genuine dispute exists with the determination. Any comments received Burdeshaw Street, Post Office Box 1369, applicant on a material issue of law or within 14 days after the date of Dothan, Alabama. If a request for a fact. Contentions shall be limited to publication of this notice will be hearing or petition for leave to intervene matters within the scope of the considered in making any final is filed by the above date, the amendment under consideration. The determination. Commission or an Atomic Safety and contention must be one which, if Normally, the Commission will not Licensing Board, designated by the proven, would entitle the petitioner to issue the amendment until the Commission or by the Chairman of the relief. A petitioner who fails to file such expiration of the 14-day notice period. Atomic Safety and Licensing Board a supplement which satisfies these However, should circumstances change Panel, will rule on the request and/or requirements with respect to at least one during the notice period, such that petition; and the Secretary or the contention will not be permitted to failure to act in a timely way would designated Atomic Safety and Licensing participate as a party. result, for example, in derating or Board will issue a notice of hearing or Those permitted to intervene become shutdown of the facility, the an appropriate order. parties to the proceeding, subject to any Commission may issue the license As required by 10 CFR 2.714, a limitations in the order granting leave to amendment before the expiration of the petition for leave to intervene shall set intervene, and have the opportunity to 14-day notice period, provided that its forth with particularity the interest of participate fully in the conduct of the final determination is that the the petitioner in the proceeding, and hearing, including the opportunity to 10296 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices present evidence and cross-examine which is available for public inspection staff. This meeting is a follow-up to the witnesses. at the Commission’s Public Document February 21, 1997, meeting where NEI If the amendment is issued before the Room, the Gelman Building, 2120 L presented material concerning the use of expiration of the 30-day hearing period, Street, NW., Washington, DC, and at the MOX fuel in nuclear reactors. A the Commission will make a final local public document room, located at preliminary agenda for the meeting is as determination on the issue of no the Houston-Love Memorial Library, follows: (1) Technology Confirmation significant hazards consideration. If a 212 W. Burdeshaw Street, Post Office Around the World, presented by the hearing is requested, the final Box 1369, Dothan, Alabama. National Laboratories; (2) MOX determination will serve to decide when Dated at Rockville, Maryland, this 28th day Fabrication and Licensing Experience, the hearing is held. of February 1997. presented by British Nuclear Fuels, Inc.; If the final determination is that the (3) MOX Fabrication and Licensing amendment request involves no For the Nuclear Regulatory Commission. Jacob I. Zimmerman, Experience, presented by significant hazards consideration, the Belgonucleaire; (4) MOX Fabrication Commission may issue the amendment Project Manager, Project Directorate II–2, Division of Reactor Projects—I/II, Office of and Licensing Experience, presented by and make it immediately effective, Cogema; and (5) MOX Fabrication and notwithstanding the request for a Nuclear Reactor Regulation. [FR Doc. 97–5507 Filed 2–5–97; 8:45 am] Licensing Experience, presented by hearing. Any hearing held would take Siemens. place after issuance of the amendment. BILLING CODE 7590±01±P Attendees are requested to notify Ms. If the final determination is that the Vanice A. Perin at 301–415–8143 of amendment request involves a their planned attendance if special significant hazards consideration, any Industry Presentation on the Fabrication of Mixed Oxide Fuel requirements (e.g., for the hearing- hearing held would take place before impaired) are necessary. the issuance of any amendment. AGENCY: Nuclear Regulatory Dated at Rockville, Maryland, this 28th day A request for a hearing or a petition Commission. for leave to intervene must be filed with of February, 1997. ACTION: Meeting notice. the Secretary of the Commission, U.S. For the Nuclear Regulatory Commission. Nuclear Regulatory Commission, SUMMARY: Representatives from the Elizabeth Q. Ten Eyck, Washington, DC 20555–0001, Attention: nuclear industry will be making Division Director, Division of Fuel Cycle Docketing and Services Branch, or may presentations relating to the fabrication Safety and Safeguards. be delivered to the Commission’s Public of mixed oxide (MOX) fuel for use in [FR Doc. 97–5508 Filed 3–5–97; 8:45 am] Document Room, the Gelman Building, commercial light nuclear reactors. This BILLING CODE 7590±01±P 2120 L Street, NW., Washington, DC, by meeting is a follow-up to the February the above date. Where petitions are filed 21, 1997, meeting where NEI presented during the last 10 days of the notice material concerning the use of MOX fuel RAILROAD RETIREMENT BOARD period, it is requested that the petitioner in nuclear reactors. The meeting is open promptly so inform the Commission by to the public, and all interested parties Agency Forms Submitted for OMB a toll-free telephone call to Western may attend. Review Union at 1–(800) 248–5100 (in Missouri DATES: Wednesday, March 26, 1997, 1–(800) 342–6700). The Western Union SUMMARY: In accordance with the from 8:30 a.m. to 1:00 p.m. operator should be given Datagram Paperwork Reduction Act of 1995 (44 Identification Number N1023 and the ADDRESSES: U.S. Nuclear Regulatory U.S.C. Chapter 35), the Railroad following message addressed to Herbert Commission, Two White Flint North, Retirement Board has submitted the N. Berkow: petitioner’s name and Auditorium, 11545 Rockville Pike, following proposal(s) for the collection telephone number, date petition was Rockville, Maryland. (Note: The NRC is of information to the Office of mailed, plant name, and publication accessible to the White Flint Metro Management and Budget for review and date and page number of this Federal Station; visitor parking around the NRC approval. building is limited.) Register notice. A copy of the petition SUMMARY OF PROPOSAL(S): should also be sent to the Office of the FOR FURTHER INFORMATION CONTACT: Ms. Vanice A. Perin, Mail Stop T–8–A–33, (1) Collection title: Voluntary General Counsel, U.S. Nuclear Customer Surveys in Accordance with Regulatory Commission, Washington, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Phone: 301– E.O. 12862. DC 20555–0001, and to M. Stanford (2) Form(s) submitted: G–201, Web- Blanton, Esq., Balch and Bingham, Post 415–8143; FAX: 301–415–5390; INTERNET: [email protected]. For Site Survey. Office Box 306, 1710 Sixth Avenue (3) OMB Number: N/A. material related to the meeting please North, Birmingham, Alabama 35201, (4) Expiration date of current OMB contact U.S. NRC Public Affairs Office attorney for the licensee. clearance: N/A. Nontimely filings of petitions for at (301) 415–8200 after March 26, 1997. (5) Type of request: New collection. leave to intervene, amended petitions, SUPPLEMENTARY INFORMATION: On (6) Respondents: Individuals or supplemental petitions and/or requests January 14, 1997, the Department of households, business or other for profit. for hearing will not be entertained Energy issued the Record of Decision (7) Estimated annual number of absent a determination by the (ROD) on the Storage and Disposition of respondents: 11,550. Commission, the presiding officer or the Weapons-Usable Fissile Materials. One (8) Total annual responses: 11,550. presiding Atomic Safety and Licensing of DOE’s approaches to dispose of the (9) Total annual reporting hours: Board that the petition and/or request surplus plutonium is to burn it as MOX 1,043. should be granted based upon a fuel in existing domestic commercial (10) Collection description: The balancing of the factors specified in 10 reactors. Railroad Retirement Board (RRB) will CFR 2.714(a)(1)(i)-(v) and 2.714(d). The Nuclear Energy Institute (NEI) utilize voluntary customer surveys to For further details with respect to this has requested the opportunity to present ascertain customer satisfaction with the action, see the application for information on the use and fabrication RRB in terms of timeliness, amendments dated February 24, 1997, of MOX fuel for nuclear reactors to NRC appropriateness, access, and other Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10297 measures of quality service. Surveys SECURITIES AND EXCHANGE FOR FURTHER INFORMATION CONTACT: will involve individuals that are direct COMMISSION Elaine M. Boggs, Senior Counsel, at (202) 942–0572, or Mercer E. Bullard, or indirect beneficiaries of RRB services [Rel. No. IC±22534; 812±9450] as well as railroad employers who must Branch Chief, at (202) 942–0564 report earnings. Capital Southwest Corporation, et al.; (Division of Investment Management, Notice of Application Office of Investment Company ADDITIONAL INFORMATION OR COMMENTS: Regulation). Copies of the form and supporting February 28, 1997. SUPPLEMENTARY INFORMATION: The documents can be obtained from Chuck AGENCY: Securities and Exchange following is a summary of the Mierzwa, the agency clearance officer Commission (‘‘SEC’’). application. The complete application (312–751–3363). Comments regarding ACTION: Notice of Application for may be obtained for a fee at the SEC’s the information collection should be Exemption under the Investment Public Reference Branch. addressed to Ronald J. Hodapp, Railroad Company Act of 1940 (the ‘‘Act’’). Retirement Board, 844 North Rush Applicants’ Representations Street, Chicago, Illinois 60611–2092 and APPLICANTS: Capital Southwest 1. CSC is a business development the OMB reviewer, Laura Oliven (202– Corporation (‘‘CSC’’) and Capital company (‘‘BDC’’), as defined under Southwest Venture Corporation 395–7316), Office of Management and section 2(a)(48) of the Act,1 organized (‘‘CSVC’’) Budget, Room 10230, New Executive under the laws of Texas. CSVC, a Office Building, Washington, D.C. RELEVANT ACT AND EXCHANGE ACT wholly-owned subsidiary of CSC, is a SECTIONS: Order requested under section 20503. Nevada corporation and is registered 6(c) of the Act for an exemption from Chuck Mierzwa, under the Act as a closed-end sections 18(a), 18(c), 30, and 61(a) of the management investment company. Clearance Officer. Act, under sections 17(d) and 57(a)(4) of CSVC is also licensed by the Small [FR Doc. 97–5533 Filed 3–5–97; 8:45 am] the Act and rule 17d–1 thereunder to Business Administration (‘‘SBA’’) as a BILLING CODE 7905±01±M permit certain joint transactions, under small business investment company section 17(b) of the Act for an (‘‘SBIC’’) under the Small Business exemption from section 17(a) of the Act, Investment Act of 1958. CSC’s principal Determination of Quarterly Rate of and under section 57(c) of the Act for an business is to make, directly and Excise Tax for Railroad Retirement exemption from section 57(a) of the Act. through CSVC, loans and equity-type Supplemental Annuity Program SUMMARY OF APPLICATION: The order investments in small businesses. would permit CSC and CSVC to engage 2. Applicants request an order to In accordance with directions in in certain transactions that would permit CSC and CSVC to engage in Section 3221(c) of the Railroad otherwise be permitted if CSC and certain transactions that would Retirement Tax Act (16 U.S.C., Section CSVC were one company. The order otherwise be permitted if CSC and 3221(c)), the Railroad Retirement Board also would permit modified asset CSVC were one company. The order has determined that the excise tax coverage requirements for CSC and also would permit modified asset imposed by such Section 3221(c) on CSVC on a consolidated basis. In coverage requirements for CSC and every employer, with respect to having addition, the order would permit CSC CSVC on a consolidated basis. In individuals in his employ, for each and CSVC to file reports on a addition, the order would permit CSC work-hour for which compensation is consolidated basis. The requested order and CSVC to file reports on a paid by such employer for services would supersede a prior order. consolidated basis. The requested order rendered to him during the quarter FILING DATES: The application was filed would supersede a prior order obtained beginning April 1, 1997, shall be at the on January 23, 1995, and amended on by CSC, which, among other things, rate of 35 cents. October 25, 1995, August 22, 1996, and permits CSC and CSVC to engage in February 27, 1997. certain joint transactions.2 In accordance with directions in HEARING OR NOTIFICATION OF HEARING: An Section 15(a) of the Railroad Retirement Applicants’ Legal Analysis order granting the application will be Act of 1974, the Railroad Retirement issued unless the SEC orders a hearing. A. Section 18 Board has determined that for the Interested persons may request a quarter beginning April 1, 1997, 31.5 1. Section 18(a) of the Act prohibits a hearing by writing to the SEC’s registered closed-end investment percent of the taxes collected under Secretary and serving applicants with a Sections 3211(b) and 3221(c) of the company from issuing any class or copy of the request, personally or by senior security unless the company Railroad Retirement Tax Act shall be mail. Hearing requests should be complies with the asset coverage credited to the Railroad Retirement received by the SEC by 5:30 p.m. on requirements set forth in section 18. Account and 68.5 percent of the taxes March 25, 1997, and should be ‘‘Asset coverage’’ is defined in section collected under such Sections 3211(b) accompanied by proof of service on 19(h) to mean the ratio which the value and 3221(c) plus 100 percent of the applicants, in the form of an affidavit or, of the total assets of an issuer, less all taxes collected under Section 3221(d) of for lawyers, a certificate of service. the Railroad Retirement Tax Act shall be Hearing requests should state the nature 1 Section 2(a)(48) generally defines a BDC to be credited to the Railroad Retirement of the writer’s interest, the reason for the any closed-end investment company that operates Supplemental Account. request, and the issues contested. for the purpose of making investments in securities Persons may request notification of a described in sections 55(a)(1) through 55(a)(3) of the Dated: February 25, 1997. Investment Company Act and makes available hearing by writing to the SEC’s By Authority of the Board. significant managerial assistance with respect of the Secretary. issuers of such securities. Such issuers are small, Beatrice Ezerski, ADDRESSES: Secretary, SEC, 450 5th nascent companies whose securities typically are Secretary to the Board. illiquid. Street N.W., Washington, D.C. 20549. 2 [FR Doc. 97–5484 Filed 3–5–97; 8:45 am] Investment Company Act Release Nos. 5640 Applicants, 12900 Preston Road, Suite (Mar. 25, 1969) (notice) and 5827 (Sept. 30, 1969) BILLING CODE 7905±01±M 700, Dallas, Texas 75230. (order). 10298 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices liabilities not represented by senior respect to transactions between it and registered investment company or any securities, bears to the aggregate amount CSVC, because CSC owns one hundred affiliated person of such person, acting of senior securities of such issuer. percent of CSVC’s voting stock. Section as principal, to participate in or effect Under section 18(a), senior securities of 57(b)(2) of the Act describes certain any transaction in connection with any closed-end investment companies persons to which section 57(a) applies. joint enterprise or arrangement in which representing indebtedness must have an Such persons includes a person directly any such registered company or a asset coverage of 300% immediately or indirectly controlling, controlled by, company controlled by it is participant, after their issuance and senior securities or under common control with a BDC. unless an order permitting such of such companies representing stock Applicants state that they share a transaction has been granted by the SEC. must have an asset coverage of 200%. common board of directors and are Section 57(a)(4) imposes substantially Section 18(k) provides for modified under common control of persons the same prohibitions on joint asset coverage requirements for SBICs. serving as officers and directors of both transactions involving BDCs and certain Section 61 makes section 18, with CSC and CSVC. Accordingly, applicants of their affiliates as described in section certain modifications, applicable to a state that CSVC is ‘‘controlled by’’ CSC 57(b). Section 57(i) provides that the BDC. for purposes of section 57(b)(2). rules and transactions subject to section 2. CSC and CSVC are subject to the 3. Applicants believe that, under 57(a)(4) in the absence of rules under requirements of section 18(a) (as sections 17(a) and 57(a), the acquisition that section. No rules with respect to modified by section 61 with respect to by CSC of the capital stock of CSVC in joint transactions have been adopted CSC). Applicants request relief from exchange for part of CSC’s investment under section 57(a)(4) and, therefore, section 18(a) to the extent necessary to portfolio may be considered as (a) a sale the standards set forth under rule 17d– provide that senior securities issued by of a security of an investment company 1 govern the requested order. CSVC that are excluded from CSVC’s (CSVC’s capital stock) to a BDC (CSC); 2. As noted above, CSC and CSVC are individual asset coverage ratio by (b) a sale of a security (part of CSC’s affiliated persons of each other. section 18(k) will be excluded from investment portfolio) to an investment Applicants state that there may be CSC’s consolidated asset coverage ratio. company; (c) a purchase from an circumstances when it is in the interest 3. Applicants believe that CSC may be investment company of a security by an of CSC and its shareholders that CSC required to comply with applicable as affiliate; and (d) a purchase from a BDC and CSVC invest in securities of the set coverage requirements on a of a security by an affiliate. Likewise, same issuer, either simultaneously or consolidated basis with CSVC. loan transactions between CSC and sequentially, in the same or different Applicants state that this would mean CSVC may be deemed to be purchases securities of such issue, and to deal with that CSC would treat as its own any and sales of securities representing their investments separately or jointly. liabilities of CSVC (with intercompany indebtedness by an affiliate of a BDC or Accordingly, applicants request an receivables and liabilities eliminated), an affiliate of an investment company, order under sections 57(a)(4) rule 17d– including liabilities of CSVC with as applicable. In addition, applicants 1 to permit CSC or CSVC to invest in respect to senior securities as to which contend that there may be any portfolio company in which the CSVC is exempt from the provisions of circumstances when it is in the interest other is or proposes to be an investor, section 18(a) by virtue of section 18(k). of CSC and its shareholders that CSVC but only to the extent that such Applicants state that section 18(k) is invest in securities of an issuer that may transaction would not be prohibited if intended to benefit SBICs by permitting be deemed to be an affiliate of CSC or CSVC were deemed to be part of CSC them to issue a greater amount of senior that CSC invest in securities of an issuer and not a separate company. securities representing indebtedness that may be deemed to be an affiliate of D. Reporting Requirements than is otherwise permitted under CSVC, as in the case of a portfolio section 18(a). Applicants further state company deemed to be affiliated with 1. Sections 30 (a) and (d) of the Act that if senior securities representing either CSC or CSVC as a result of its and rules 30a–1, 30b–1, and 30d–1 indebtedness issued and sold by CSVC ownership of five percent or more of the thereunder require that certain are treated as CSC’s for purposes of portfolio company’s outstanding voting information be filed with the SEC and section 18(a), then the consolidated securities. be transmitted to shareholders on an entity (CSC and CSVC) would lose the 4. Applicants request an order from annual or semi-annual basis. As a benefits of section 18(k) to which CSVC the provisions of sections 17(a) and registered investment company, CSVC is entitled as a SBIC. 57(a) (1), (2), and (3) to exempt (a) any must file the reports required by the transaction solely between CSC and SEC under section 30. Section 13(a) of B. Sections 17(a) and 57(a) CSVC with respect to the purchase or the Securities Exchange Act of 1934 1. Section 17(a) of the Act generally sale of securities or other property or the requires any issuer of a security subject prohibits sales or purchases of securities borrowing of any money or other to section 12 thereof, such as CSC, to between registered investment property including the guarantee by file such documents and information as companies and certain affiliated persons CSC of CSVC’s debts and (b) any the SEC may require to keep such of that company. Paragraphs (1), (2), and transaction involving CSC and/or CSVC issuer’s registration current and such (3) of section 57(a) impose substantially and portfolio affiliates of either or both annual or other periodic reports as the the same prohibitions between BDCs of CSC and/or CSVC, but only to the SEC may prescribe. and certain of their affiliates as extent that any such transaction would 2. Applicants state that the filing of described in sections 57(b) of the Act. not be prohibited if CSVC (and all of its separate reports and financial 2. Section 2(a)(3) of the Act defines an asset and liabilities) were deemed to be statements of CSVC with respect to its affiliated person of an investment part of CSC, and not a separate individual operations, in addition to company to include any person directly company. such filings by CSC with respect to the or indirectly controlling, or under consolidated operations of CSC and common control with, such investment C. Sections 17(d) and 57(a)(4) and Rule CSVC, is unduly burdensome and is not company. Applicants state that CSC is 17d–1 necessary to protect the investing an affiliated person of CSVC, and 1. Section 17(d) and rule 17d–1 make public. Accordingly, applicants request therefore subject to section 17(a) with it unlawful for an affiliated person of a an order granting relief to CSVC from Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10299 section 30 and rules 30a–1, 30b1–1, and 1. CSC will at all times own and hold, any senior security or sell any senior 30–d to the extent necessary to permit beneficially and of record, all of the security of which CSC or CSVC is the CSC to file consolidated reports to the outstanding capital stock of CSVC. issuer, unless immediately after the SEC and CSC’s shareholders as provided 2. CSVC will have fundamental issuance or sale of any such senior in condition number four below. investment policies not inconsistent securities, CSC and CSVC on a with those of CSC as set forth in CSC’s consolidated basis, and CSC E. Standards for Relief registration statement; CSVC will not individually, shall have the asset 1. Section 6(c) of the Act permits the engage in any action described in coverage that would be required by SEC to exempt any person or transaction section 13(a) of the Act, unless such section 18(a) if CSC and CSVC had each from any provision of the Act, if such action shall have been authorized by elected to become a BDC pursuant to CSC after approval of such action by a exemption is necessary or appropriate section 54 of the Act (except that, in vote of a majority (as defined in the Act) in the public interest and consistent determining whether CSC and CSVC, on of the outstanding voting securities of with the protection of investors and the a consolidated basis, have the asset CSC. purposes fairly intended by the policy coverage required by section 18(a), any 3. No person shall serve or act as borrowings by CSVC pursuant to section of the Act. Applicants state that the investment adviser to CSVC unless the operation of CSC as a BDC with a 18(k) of the Act shall not be considered directors and shareholders of CSC shall senior securities and, for purposes of the wholly-owned SBIC subsidiary is have taken the action with respect intended to permit CSC to expand the definition of asset coverage in section thereto also required to be taken by the 18(h), shall not be treated as scope of its operations beyond that directors and sole shareholder of CSVC. which would be permitted to it as an indebtedness not represented by senior 4. CSC shall (a) file with the SEC, on securities). SBIC. Applicants further state that the behalf of itself and CSVC, all requested exemptions would permit information and reports required to be For the Commission, by the Division of CSC and CSVC to operate effectively as Investment Management, pursuant to filed with the SEC under the Securities delegated authority. one company even though they will be Exchange Act of 1934 and other Margaret H. McFarland, divided into two legal entities. applicable federal securities laws, Accordingly, applicants believe that the including information and financial Deputy Secretary. requested relief meets the section 6(c) statements prepared solely on a [FR Doc. 97–5524 Filed 3–5–97; 8:45 am] standards. consolidated basis as to CSC and CSVC, BILLING CODE 8010±01±M 2. Section 17(b) of the Act permits the such reports to be in satisfaction of any SEC to exempt a proposed transaction separate reporting obligations of CSVC, [Investment Company Act Release No. from section 17(a) if evidence and (b) provide to its shareholders such 22532; 811±5855] establishes that (a) the terms of the information and reports required to be proposed transaction, including the disseminated to CSC’s shareholders, Conestoga Family of Funds; Notice of consideration to be paid or received, are including information and financial Application statements prepared solely on a reasonable and fair and do not involve February 27, 1997. consolidated basis as to CSC and CSVC, overreaching on the part of any person AGENCY: Securities and Exchange such reports to be in satisfaction of any concerned; (b) the proposed transaction Commission (‘‘SEC’’). is consistent with the policy of each separate reporting obligations of CSVC. ACTION: Notice of Application for registered investment company Notwithstanding anything in this Deregistration under the Investment concerned; and (c) the proposed condition, CSC will not be relieved of Company Act of 1940 (the ‘‘Act’’). transaction is consistent with the any of its reporting obligations, general purposes of the Act. Section including, but not limited to, any APPLICANT: Conestoga Family of Funds. 57(c) permits the SEC to exempt a consolidating statement setting forth the RELEVANT ACT SECTION: Section 8(f). individual statements of CSVC required proposed transaction from sections SUMMARY OF APPLICATION: Application 57(a)(1), (2), and (3) using substantially by rule 6–03(c) of Regulation S–X. 5. CSC and CSVC may file on a requests an order declaring that it has the same standard imposed by section ceased to be an investment company. 17(b). Applicants believe that the consolidated basis pursuant to FILING DATE: The application was filed requested relief from sections 17(a) and condition (4) above only so long as the on November 12, 1996. 57(a) meets these standards. amount of CSC’s total consolidated assets invested in assets other than (a) HEARING OR NOTIFICATION OF HEARING: An 3. In passing upon applications filed securities issued by CSVC or (b) order granting the application will be pursuant to rule 17d–1, the SEC securities similar to those in which issued unless the SEC orders a hearing. considers whether the participation of CSVC invests, does not exceed 10%. Interested persons may request a the registered investment company in a 6. No person shall serve as a director hearing by writing to the SEC’s joint enterprise or arrangement is of CSVC unless elected as a director of Secretary and serving applicant with a consistent with the provisions, policies CSC at its most recent annual meeting, copy of the request, personally or by and purposes of the Act and the extent as contemplated by section 16(a) of the mail. Hearing requests should be to which such participation is on a basis Act. Vacancies on CSC’s board of received by the SEC by 5:30 p.m. on different from or less advantageous than directors will be filled in the manner March 24, 1997, and should be that of other participants. Applicants provided for in section 16(a). accompanied by proof of service on the believe that the requested authorization Notwithstanding the foregoing, the applicant, in the form of an affidavit or, under sections 57(a)(4) and rule 17d–1 board of directors of CSVC will be for lawyers, a certificate of service. is appropriate. elected by CSC as the sole shareholder Hearing requests should state the nature Applicants’ Conditions of CSVC, and such board will be of the writer’s interest, the reason for the composed of the same persons that request, and the issues contested. Applicants agree that the order serve as directors of CSC. Persons may request notification of a granting the requested relief will be 7. CSC will not itself issue, and CSC hearing by writing to the SEC’s conditioned upon the following: will not cause or permit CSVC to issue, Secretary. 10300 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

ADDRESSESS: Secretary, SEC, 450 Fifth from the reorganization, including, (a) a asset value as the shareholder had in the Street, N.W., Washington, D.C. 20549. broader array of investment Reorganizing Portfolio immediately Applicant, 680 East Swedesford Road, opportunities available to shareholders, before the transaction. Wayne, Pennsylvania 19087–1658. (b) existing purchase and redemption 6. On April 22, 1996, all of the assets features will remain in place, and (c) the FOR FURTHER INFORMATION CONTACT: of the Continuing Portfolios were potential for economies of scale in Diane L. Titus, Paralegal Specialist, at transferred to corresponding New portfolio management resulting from the (202) 942–0584, or Mary Kay Frech, CoreFunds Portfolios in exchange for Branch Chief, at (202) 942–0564 larger asset size. 4. On February 15, 1996, proxy shares of the New CoreFunds Portfolios. (Division of Investment Management, The New CoreFunds Portfolios had only Office of Investment Company materials soliciting shareholder nominal assets and liabilities Regulation). approval of the reorganization were sent to applicant’s shareholders. The immediately prior to the transaction, SUPPLEMENTARY INFORMATION: The Reorganization Agreement was and the number of shares of each class following is a summary of the approved by applicant’s shareholders at of shares of the New CoreFunds application. The complete application a special meeting held on March 22, Portfolios issued in the transaction may be obtained for a fee from the SEC’s 1996. equalled the number of shares of each Public Reference Branch. 5. On April 15, 1996: (1) all of the corresponding class of shares of the Applicant’s Representations assets of Conestoga Cash Management Continuing Portfolios that were issued Fund were transferred to CoreFunds 1. Applicant is an open-end and outstanding immediately prior to Cash Reserve in exchange for shares of the transaction. Applicant thereafter management investment company CoreFunds Cash Reserve based on net organized as a Massachusetts business made a liquidating distribution to asset value; (2) all of the assets of shareholders of the Continuing trust. Applicant’s Pennsylvania Tax- Conestoga Tax-Free Fund were Portfolios of a like number of full and Free Bond Fund is a non-diversified transferred to CoreFunds Tax-Free fractional shares of the New CoreFunds investment company, and all other Reserve in exchange for shares of funds of applicant are diversified CoreFunds Tax-Free Reserve based on Portfolios. investment companies. On August 9, net asset value; (3) all of the assets of 7. In connection with the 1989, applicant registered under section Conestoga U.S. Treasury Securities reorganization, certain expenses were 8(a) of the Act and filed a registration Fund were transferred to CoreFunds incurred and consisted primarily of statement on Form N–1A pursuant to Treasury Reserve in exchange for shares professional fees, printing expenses, section 8(b) of the Act and the Securities of CoreFunds Treasury Reserve based on expenses associated with the special Act of 1933, covering an indefinite net asset value; (4) all of the assets of meeting of shareholders, and expenses number of shares of common stock. The Conestoga Equity Fund were transferred associated with the winding up of registration statement was declared to CoreFunds Value Equity Fund based effective on November 20, 1989, and the applicant’s affairs. The Reorganization on net asset value; (5) all of the assets Agreement provides that these expenses initial public offering of applicant’s of Conestoga Intermediate Income Fund funds commenced thereafter. will be borne by Meridian Bancorp, Inc. were transferred to CoreFunds and/or CoreStates Financial Corp., the 2. On December 21, 1995, applicant’s Intermediate Bond Fund in exchange for bank holding companies that control the board of trustees considered and shares of CoreFunds Intermediate Bond investment advisers. approved an Agreement and Plan of Fund based on net asset value; (6) all of Reorganization (the ‘‘Reorganization the assets of Conestoga Pennsylvania 8. Applicant has retained no assets. Agreement’’) between applicant and Tax-Free Bond Fund were transferred to Applicant has no outstanding debts or CoreFunds, Inc. (‘‘CoreFunds’’). CoreFunds Pennsylvania Municipal liabilities. As of the date of the Pursuant to the Reorganization Bond Fund in exchange for shares of application, applicant has no security Agreement, the holders of each class of CoreFunds Pennsylvania Municipal holders. shares of applicant’s Cash Management Bond Fund based on net asset value; (7) Fund, Tax-Free Fund, U.S. Treasury 9. Applicant is not a party to any all of the assets of Conestoga Balanced litigation or administrative proceeding. Securities Funds, Equity Fund, Fund were transferred to CoreFunds Applicant is not now engaged, nor does Intermediate Income Fund, Balanced Fund in exchange for shares of Pennsylvania Tax-Free Bond Fund, CoreFunds Balanced Fund based on net it propose to engage, in any business Balanced Fund, and International asset value; and (8) all of the assets of activities other than those necessary for Equity Fund (collectively, the Conestoga International Equity Fund the winding up of its affairs. ‘‘Reorganizing Portfolios’’) would were transferred to CoreFunds 10. Applicant intends to file the receive the class of shares of the International Growth Fund in exchange necessary documentation with the corresponding existing portfolios of for shares of CoreFunds International Commonwealth of Massachusetts to CoreFunds (the ‘‘CoreFunds Growth Fund based on net asset value. effect its dissolution as a Massachusetts Portfolios’’). Also pursuant to the The aggregate net asset value of the business trust. Reorganization Agreement, the holders shares of the corresponding existing of each class of shares of applicant’s CoreFunds Portfolios received by each For the SEC, by the Division of Investment Special Equity Fund, Bond Fund, and Reorganizing Portfolio was equal to the Management, under delegated authority. Short-Term Income Fund (collectively, aggregate net asset value of each such Margaret H. McFarland, the ‘‘Continuing Portfolios’’) would Reorganizing Portfolio. Thereafter, Deputy Secretary. receive the class of shares of the applicant’s Reorganizing Portfolios [FR Doc. 97–5469 Filed 3–5–97; 8:45 am] corresponding new portfolios of made liquidating distributions to their BILLING CODE 8010±01±M CoreFunds (the ‘‘New CoreFunds shareholders so that a holder of a class Portfolios’’). of shares in a Reorganizing Portfolio 3. In approving the Reorganization received a class of shares of the Agreement, the trustees identified corresponding existing CoreFunds certain potential benefits likely to result Portfolio with the same aggregate net Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10301

[Investment Company Act Release No. beneficial interest. On March 7, 1988, outstanding at a net asset value of 22533; 811±5331] applicant’s registration statement was $12.54 per share. At such date, aggregate declared effective, and the initial public net assets amounted to $12,950,208.48. Hampton Utilities Trust; Notice of offering of applicant’s shares 7. On August 5, 994 (the ‘‘Closing Application commenced on the same date. Date’’), applicant transferred February 27, 1997. 2. On December 16, 1993, applicant’s substantially all of its net assets to the AGENCY: Securities and Exchange board of trustees approved an Utilities Series in exchange solely for Commission (‘‘SEC’’). Agreement and Plan of Reorganization shares of common stock of Utilities (the ‘‘Agreement’’) between applicant Series having an aggregate net asset ACTION: Notice of Application for and Franklin Custodian Funds, Inc. on value equal to the aggregate value of net Deregistration under the Investment behalf of its Utilities Series, pursuant to assets transferred. The number of shares Company Act of 1940 (the ‘‘Act’’). which applicant would transfer was determined by dividing the APPLICANT: Hampton Utilities Trust. substantially all of its assets to the aggregate value of applicant’s assets to Utilities Series in exchange for shares of RELEVANT ACT SECTION: Section 8(f). be transferred on the Closing Date by the common stock of Utilities Series. In net asset value per share of common SUMMARY OF APPLICATION: Applicant accordance with rule 17a–8 of the Act, stock of Utilities Series as of 1:00 p.m. requests an order declaring that it has applicant’s board determined that the Pacific time on Closing Date. Shares of ceased to be an investment company. sale of applicant’s assets to Utilities Utilities Series were distributed to the FILING DATES: The application was filed Series was in the best interests of holders of applicant’s Capital Shares pro on December 3, 1996 and amended on applicant and that the interests of the rata in accordance with their respective February 21, 1997. existing shareholders would not be interest in applicant. HEARING OR NOTIFICATION OF HEARING: An diluted as a result of the sale.1 8. The expenses incurred in order granting the application will be 3. The board’s conclusion was based connection with the reorganization were issued unless the SEC orders a hearing. on a number of factors, including that approximately $90,370. These expenses Interested persons may request a the sale of applicant’s assets to the included printing and mailing costs for hearing by writing to the SEC’s Utilities Series in exchange for shares of proxy materials and related documents. Secretary and serving applicant with a Utilities Series would permit One half of these costs were borne by copy of the request, personally or by shareholders to pursue their investment Franklin Advisers, Inc. through a mail. Hearing requests should be goals in a larger fund with enhanced reimbursement of the amounts received by the SEC by 5:30 p.m. on ability to effect portfolio transactions on advanced by applicant and Utilities March 24, 1997, and should be more favorable terms and with greater Series, and the remainder of the costs accompanied by proof of service on the investment flexibility. The board also were borne by applicant. applicant, in the form of an affidavit or, considered that as shareholders of an 9. Applicant has no securityholders, for lawyers, a certificate or service. open-end fund, the holders of assets, or liabilities. Applicant is not a Hearing requests should state the nature applicant’s Capital Shares would have party to any litigation or administration of the writer’s interest, the reason for the redemption rights and exchange proceeding. Applicant is not now request, and the issues contested. privileges that were not previously engaged, and does not propose to Persons may request notification of a available. engage, in any business activities other hearing by writing to the SEC’s 4. As of March 7, 1994, applicant was than those necessary for the winding up Secretary. a closed-end investment company with of its affairs. ADDRESSES: Secretary, SEC, 450 Fifth two classes of shares outstanding: The 10. A Notice of Termination of Trust Street, N.W., Washington, D.C. 20549. Cumulative Preferred Shares and the was filed with the Massachusetts Applicant, 777 Mariners Island Blvd., Capital Shares. On that date, in Secretary of State on October 4, 1994. San Mateo, California 94404. accordance with applicant’s Restated For the SEC, by the Division of Investment Declaration of Trust, dated December FOR FURTHER INFORMATION CONTACT: Management, under delegated authority. 16, 1993, all of the Cumulative Preferred Margaret H. McFarland, Diane L. Titus, Paralegal Specialist, at Shares were redeemed by applicant in Deputy Secretary. (202) 942–0584, or Mary Kay Frech, cash at $50.00 per share. Branch Chief, at (202) 942–0564 5. On or about May 30, 1994, proxy [FR Doc. 97–5468 Filed 3–5–97; 8:45 am] (Division of Investment Management, materials soliciting shareholder BILLING CODE 8010±01±M Office of Investment Company approval of the Agreement were Regulation). furnished to holders of applicant’s [Release No. 35±26679] SUPPLEMENTARY INFORMATION: The Capital Shares and filed with the SEC. following is a summary of the Applicant’s shareholders approved the Filings Under the Public Utility Holding application.The complete application Agreement at an annual meeting held on Company Act of 1935, as amended may be obtained for a fee from the SEC’s July 14, 1994. (``Act'') Public Reference Branch. 6. On August 4, 1994, there were 1,032,684 Capital Shares of applicant February 28, 1997. Applicant’s Representations Notice is hereby given that the 1. Applicant is a closed-end, 1 Applicant and Franklin Custodian Funds, Inc., following filing(s) has/have been made diversified management investment may be deemed to be affiliated persons of each with the Commission pursuant to company organized as a business trust other solely by reason of having a common provisions of the Act and rules investment adviser, common director, and/or under the laws of the Commonwealth of common officers. Although purchases and sales promulgated thereunder. All interested Massachusetts. On September 15, 1987, between affiliated persons generally are prohibited persons are referred to the application(s) applicant registered under section 8(a) by section 17(a) of the Act, rule 17a–8 provides an and/or declaration(s) for complete of the Act and filed a registration exemption from certain purchases and sales among statements of the proposed investment companies that are affiliated persons of statement on Form N–2 pursuant to each other solely by reason of having a common transaction(s) summarized below. The section 8(b) of the Act and the Securities investment adviser, common directors, and/or application(s) and/or declaration(s) and Act of 1933 to register its shares of common officers. any amendments thereto is/are available 10302 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices for public inspection through the records and software (‘‘Related Assets’’). costs and other costs associated with the Commission’s Office of Public The purchaser (‘‘Purchaser’’) is a special agreements. The formula will also take Reference. purpose Delaware corporation which into account the cost of servicing, which Interested persons wishing to acquires receivables and other assets will be returned to WMECO in the form comment or request a hearing on the and issues commercial paper to finance of a servicing fee. application(s) and/or declaration(s) these acquisitions. A Swiss bank will Primarily because of the reserves, the should submit their views in writing by act as agent (‘‘Agent’’) for the Purchaser purchase price paid by the Purchaser for March 24, 1997, to the Secretary, for transactions under the Existing Undivided Interests will be lower than Securities and Exchange Commission, Agreement. the purchase price paid by WRC to Washington, D.C. 20549, and serve a The Existing Agreement is structured WMECO for Receivables and Related copy on the relevant applicant(s) and/or so that any sales made thereunder Assets. WMECO states that it expects declarant(s) at the address(es) specified would be accounted for as sales under WRC to have sufficient assets to pay below. Proof of service (by affidavit or, generally accepted accounting WMECO the full purchase price for in case of an attorney at law, by principles. In order for such sales made Receivables purchased from WMECO. certificate) should be filed with the on or after January 1, 1997 to be so WMECO anticipates that the request. Any request for hearing shall treated, they must comply with the availability of Receivables and Related identify specifically the issues of fact or requirements of the Statement of Assets will vary from time to time in law that are disputed. A person who so Financial Accounting Standards No. 125 accordance with the Energy use of its requests will be notified of any hearing, (‘‘FAS 125’’) issued in June 1996. The customers. Therefore, since WRC’s only if ordered, and will receive a copy of formation of WRC is intended to satisfy source of funds are its participation in any notice or order issued in the matter. certain of the requirements of FAS 125: the program and WMECO’s capital After said date, the application(s) and/ (i) WRC, as purchaser and transferee, contributions, it may not have funds or declaration(s), as filed or as amended, will be a ‘‘qualifying special purpose available at a particular time to may be granted and/or permitted to entity’’ within the meaning of FAS 125, purchase the Receivables and Related become effective. and (ii) once transferred, WMECO will Assets available to it. WMECO proposes no longer have effective control over the to accommodate this situation by (i) Western Massachusetts Electric assets, so that such transfers should be allowing WRC to make the purchase and Company (70–8959) labeled ‘‘true sales’’ in the event of owe the balance to WMECO on a Western Massachusetts Electric WMECO’s bankruptcy or receivership. deferred basis, or (ii) by making a Company (‘‘WMECO’’ or the The Existing Agreement contemplates capital contribution to WRC in the form ‘‘Applicant’’), a wholly owned electric that a restructured purchase and sales of the Receivables and Related Assets utility subsidiary of Northeast Utilities, program involving WRC will be in place for which WRC lacks the purchase price a registered holding company, located at by March 31, 1997, at which date the funds at the time.1 174 Brush Hill Avenue, West Existing Agreement will terminate. Under the WRC Agreement, purchases Springfield, Massachusetts 01089, has The restructured accounts receivable may be funded by the Purchaser’s filed an application-declaration under purchase and sales program will consist issuance of commercial paper or sections 6(a), 7, 9(a) and 10 of the Act of two agreements which will replace drawing under its bank facilities. and rule 54 thereunder. the Existing Agreement, and is intended Initially, the aggregate purchase price WMECO requests that: (i) WMECO be to accomplish sales to the Purchaser in paid by the Purchaser for Undivided allowed to organize a wholly-owned a manner substantially similar to that Interests is not intended to exceed special purpose corporation to be called under the Existing Agreement. $50,000,000. WMECO Receivables Corporation Applicant states that the addition or The Agent will have the right to (‘‘WRC’’) for the sole purpose of WRC serves merely as a vehicle to appoint a servicer on behalf of it and acquiring certain of WMECO’s eligible isolate the Receivables as required by WRC, to administer and collect accounts receivable; (ii) WRC be FAS 125, and that restructured purchase receivables and to notify the obligors of allowed to issue shares of Common and sales arrangements are on the sale of their receivables, at the Stock; (iii) WMECO be allowed to essentially the same terms to WMECO Agent’s option. WMECO will be acquire shares of capital stock of WRC; as the Existing Agreement. Under the appointed as the initial servicer. and (iv) WMECO be allowed to make, first agreement (‘‘Company Certain obligations under the directly and indirectly, general and Agreement’’), WMECO will sell or Company Agreement create limited initial equity contributions to WRC. transfer as equity contributions from recourse against WMECO. In order to WMECO has entered into a time to time all of its receivables and secure these obligations, WMECO will Receivables Purchase and Sale related assets to WRC. The purchase grant to WRC a lien on, and security Agreement dated as of September 11, price will take into account historical interest in, any rights which WMECO 1996, as amended (‘‘Existing loss statistics in WMECO’s receivables may have in respect of Receivables and Agreement’’) under which WMECO may pool. Under the second agreement Related Assets. The WRC Agreement sell (from time to time in its discretion (‘‘WRC Agreement’’), WRC will sell creates comparable recourse obligations and subject to the satisfaction of certain Undivided Interests to the Purchaser against WRC, and WMECO states that conditions precedent) fractional, from time to time. Such Undivided WRC will grant a security interest to the undivided ownership interests Interests may be funded and repaid on Purchaser in all rights in the expressed as a percentage (‘‘Undivided a revolving basis. The purchase price for Receivables retained by WRC, the Interests’’) in: (i) Billed and unbilled an Undivided Interest will be calculated Related Assets and certain other rights indebtedness of customers, as booked to according to a formula. Such formula Accounts 142.01 and 173 under the will include reserves based on, among 1 WMECO also states that if WRC develops a Federal Energy Regulatory Commission other things, a multiple of historical substantial cash balance, it will likely dividend the Chart of Accounts (‘‘Receivables’’); and losses, a multiple of historical dilution excess cash to WMECO, so that WRC will not itself retain substantial cash balances at any one time, (ii) certain related assets, including any (such as, e.g., adjustments due to billing and substantially all of the net cash realized from security or guaranty for any Receivables, errors), customer concentrations that the collection of Receivables will be made available and collections thereon, and related exceed specified levels and carrying to WMECO. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10303 and remedies (including its rights and staff members who have an interest in I. Self-Regulatory Organization’s remedies under the Company the matters may also be present. Statement of the Terms of Substance of Agreement) to secure such recourse The General Counsel of the the Proposed Rule Change obligations.2 Commission, or his designee, has The Exchange proposes to implement WMECO and WRC will be obligated certified that, in his opinion, one or audit trail identifiers relating to to reimburse the Purchaser and the more of the exemptions set forth in 5 competing market-maker and ‘‘short Agent for various costs and expenses U.S.C. 552b(c)(4), (8), (9)(A) and (10) exempt’’ transactions, substantially associated with the Company and 17 CFR 200.402(a)(4), (8), (9)(i) and identical to those previously approved Agreement and the WRC Agreement. (10), permit consideration of the for use at the New York Stock Exchange. WRC will also be required to pay to the scheduled matters at the closed meeting. The text of the proposed rule change is Agent certain fees for services in Commissioner Wallman, as duty available at the Office of the Secretary, connection with such agreements. officer, voted to consider the items the Amex and at the Commission. The arrangements under the Company listed for the closed meeting in a closed Agreement and the WRC Agreement are session. II. Self-Regulatory Organization’s scheduled to terminate on September 4, The subject matter of the closed Statement of the Purpose of, and 2001. WRC may, upon at least five meeting scheduled for Tuesday, March Statutory Basis for, the Proposed Rule business days’ notice to the Agent, 11, 1997, at 10:00 a.m., will be: Change Institution and settlement of terminate in whole or reduce in part the In its filing with the Commission, the injunctive actions. unused portion of its purchase limit in self-regulatory organization included Institution and settlement of accordance with the terms and statements concerning the purpose of administrative proceedings of an conditions of the WRC Agreement. The and basis for the proposed rule change enforcement nature. WRC Agreement allows the Purchaser to and discussed any comments it received At times, changes in Commission assign all of its rights and obligations on the proposed rule change. The text priorities require alterations in the under the WRC Agreement (including of these statements may be examined at scheduling of meeting items. For further its Undivided Interests and the the places specified in Item IV below. information and to ascertain what, if obligation to fund Undivided Interests) The self-regulatory organization has any, matters have been added, deleted to other persons, including the prepared summaries, set forth in or postponed, please contact: providers of its bank facilities. Sections A, B, and C below, of the most The Office of the Secretary at (202) WMECO intends that the above- significant aspects of such statements. described transactions will permit it, in 942–7070. effect, through this intermediary device, Dated: March 4, 1997. A. Self-Regulatory Organization’s to accelerate its receipt of cash Jonathan G. Katz, Statement of the Purpose of, and Statutory Basis for, the Proposed Rule collections from accounts receivable Secretary. and thereby meet its short-term cash Change [FR Doc. 97–5669 Filed 3–4–97; 12:08 pm] needs. BILLING CODE 8010±01±M 1. Purpose For the Commission, by the Division of Investment Management, pursuant to Amex member firm procedures delegated authority. currently require that Amex clearing [Release No. 34±38351; File No. SR±Amex± Margaret H. McFarland, members provide comparison and 97±06] clearing reports with the following trade Deputy Secretary. details with respect to each transaction Self-Regulatory Organizations; Notice [FR Doc. 97–5525 Filed 3–5–97; 8:45 am] processed by them: security, volume, of Filing and Order Granting BILLING CODE 8010±01±M price, trade date, clearing member Accelerated Approval of Proposed number and contra clearing member Rule Change by the American Stock number. In addition, for each trade Sunshine Act Meeting Exchange, Inc. Relating to Audit Trail processed by them, clearing members Identifiers Notice is hereby given, pursuant to are responsible for providing the the provisions of the Government in the February 27, 1997. Exchange with additional audit trail Sunshine Act, Pub. L. 94–409, that the Pursuant to Section 19(b)(1) of the information, including the following Securities and Exchange Commission Securities Exchange Act of 1934 account types: agency (market with will hold the following closed meeting (‘‘Act’’),1 and Rule 19b–4 thereunder,2 identifier ‘‘A’’), principal (‘‘P’’), during the week of March 10, 1997. notice is hereby given that on January specialist principal (‘‘S’’), registered A closed meeting will be held on 30, 1997, the American Stock Exchange, trader (‘‘G’’) and Amex options Tuesday, March 11, 1997, at 10:00 a.m. Inc. (‘‘Amex’’ or ‘‘Exchange’’) filed with specialist or market-maker trading an Commissioners, Counsel to the the Securities and Exchange Amex Paired Security (‘‘V’’). Commissioners, the Secretary to the Commission (‘‘Commission’’) the The Exchange proposes to require that Commission, and recording secretaries proposed rule change as described in the audit trail information provided by will attend the closed meeting. Certain Items I and II below, which Items have clearing members include the following been prepared by the self-regulatory additional account types: 2 WMECO states that neither WRC’s nor the organization. The Commission is Oproprietary transactions for a Purchaser’s recourse to WMECO will include any publishing this notice to solicit competing market-maker that is rights against WMECO should customer defaults on affiliated with the clearing member. the Receivables result in collections attributable to comments on the proposed rule change the Undivided Interests sold to the Purchaser being from interested persons and to grant T—transactions for the account of an insufficient to reimburse the Purchaser for the accelerated approval to the proposed unaffiliated member’s competing purchase price paid by it for the Undivided rule change. market-maker (that is, transactions were Interests and its anticipated yield. The Purchaser will bear the risk for any credit losses on the an Amex member is acting as agent for Receivables which exceed the reserves for such 1 15 U.S.C. § 78s(b)(1). another member’s competing market- losses included in the Undivided Interests. 2 17 CFR 240.19b–4. maker account). 10304 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

R—transactions for the account of a ‘‘Short exempt’’ transactions are those Exchange to ensure compliance with the non-member competing market-maker. that are exempt from the ‘‘tick-test’’ exemptive provisions of Rule 10a–1(e) ‘‘Competing market-maker’’ is defined provisions of SEC Rule 10a–1 4 or Amex of the Act. as any person acting as a market-maker, Rule 7. The Exchange notes that it Finally, the Commission believes that as defined in section 3(a)(38) 3 of the understands that members should mark the proposed identification codes Act, in an Amex-traded security. A as ‘‘short exempt’’ any short selling should prevent fraudulent and person acting solely in the capacity of order that is exempt from the ‘‘tick-test’’ manipulative acts by improving the block positioner would not be provisions of Rule 10a–1. Use of accuracy and efficiency of audit trail considered to be a competing market identifiers for ‘‘short exempt’’ information used for surveillance maker. The Exchange believes that transactions will enhance the purposes. In particular, more accurate implementation of O, T and R Exchange’s ability to identify violations audit trail information should increase identifiers will permit the Exchange to of Rule 10a–1 and Amex Rule 7. the effectiveness of the Exchange’s automated surveillance procedures and better assess the level of member and 2. Statutory Basis non-member competing market-maker provide Exchange staff with a more activity on the Amex and to formulate The basis under the Act for the comprehensive reconstruction of trading appropriate rules and procedures proposed rule change is the requirement activity. In summary, the Commission relating to such activity in view of the under Section 6(b)(5) that an Exchange believes that the proposed identifier needs of public investors and other have rules that are designed to promote codes should permit the Amex to market participants. just and equitable principles of trade, to perform its surveillance responsibilities The Exchange proposes further to remove impediments to, and perfect the under the Act more thoroughly and for implement account identifiers for mechanism of a free and open market this reason, finds the proposal individual investor orders (‘‘I’’) and and, in general, to protect investors and consistent with Section 6(b)(5) of the orders submitted by an Amex clearing the public interest. Act. member for the account of an The Commission notes that the B. Self-Regulatory Organization’s approval of this proposal is limited unaffiliated Amex member or member Statement on Burden on Competition organization (‘‘W’’). solely to establishing competing dealer The proposed rule change will impose The Exchange is also proposing to identifier codes for audit trail and no burden on competition. 7 expand use of the audit trail account surveillance purposes. The proposal type field to require designation of C. Self-regulatory Organization’s does not limit or restrict the activity of competing dealers or their access to the ‘‘short exempt’’ trades Four identifiers Statement on Comments on the Amex. Thus, any competitive burden on would be added to the audit trail Proposed Rule Change Received From competing dealers would be minimal account type field to identify ‘‘short Members, Participants or Others and outweighed by the surveillance exempt’’ trades for: No written comments were solicited benefits to be obtained by the Amex. The proprietary account of a clearing or received with respect to the proposed The Commission finds good cause for member organization or an affiliated rule change. approving the proposed rule change member/member organization—to be III. Commission’s Findings and Order prior to the thirtieth day after the date designated E of publication of notice of filing thereof The proprietary account of an Granting Accelerated Approval of Proposed Rule Change in the Federal Register. This rule change unaffiliated member/member will permit the Amex to implement the organization—to be designated F The Commission finds that the new audit trail identifiers on the same An individual customer account—to be proposed rule change is consistent with day that their use will be made designated H the requirements of the Act and the mandatory on the New York Stock Other agency customer account—to be rules and regulations thereunder Exchange.8 Substantially similar audit designated B. applicable to a national securities trail identifiers were approved for use In addition, member firms would be exchange, and, in particular, with the on the New York Stock Exchange in 5 required to identify ‘‘short exempt’’ requirements of Section 6(b) of the Act. 1994 following a full notice period trades of competing market-makers Specifically, the Commission believes during which no comments were utilizing the following identifiers: the proposal is consistent with the received.9 Since that time, the L—to designate a ‘‘short exempt’’ Section 6(b)(5) requirements that the Commission has not been made aware transaction for the account of a rules of an exchange be designed to of any concerns regarding the use of the competing market-maker that is a promote just and equitable principles of audit trail identifiers and therefore member or member organization trading trade, to prevent fraudulent and believes that it is appropriate to approve for its own account. manipulative acts, and, in general, to the use of the audit trail identifiers on 6 X—to designate a ‘‘short exempt’’ protect investors and the public. an accelerated basis. The Commission also believes that the transaction where one member is acting IV. Solicitation of Comments as agent for another member’s adopted ‘‘short exempt’’ account competing market-maker account. identifiers are consistent with SEC Rule Interested persons are invited to Z—to designate a ‘‘short exempt’’ 10a–1, which requires that orders be submit written data, views, and transaction for the account of a non- marked ‘‘long’’ or ‘‘short.’’ In this 7 This information is not available to specialists member competing market-maker. regard, the new, more precise identifier codes should facilitate surveillance or traders on the floor. investigations and will allow the 8 The use of the new audit trail identifiers will be 3 Section 3(a)(38) of the Act defines market maker made mandatory on the NYSE on March 3, 1997. as any specialist permitted to act as a dealer, any See NYSE Information Memo No. 96–36 (Dec. 5, dealer acting in the capacity of block positioner, 4 17 CFR 240.10a–1(e). 1996). and any dealer who, with respect to a security, 5 15 U.S.C. § 78f (b). 9 See Securities Exchange Act Release Nos. 33662 holds himself out (by entering quotations in an 6 In approving these rule changes, the (Feb. 23, 1994), 59 FR 10027 (Mar. 2, 1994) (order inter-dealer communications system or otherwise) Commission has considered the proposed rules’ approving File No. SR–NYSE–91–46) and 34539 as being willing to buy and sell such security for impact on efficiency, competition, and capital (Aug. 17, 1994), 59 FR 43605 (Aug. 24, 1994) (order his own account on a regular or continuous basis. formation. 15 U.S.C. § 78c (f). approving File No. SR–NYSE–94–16). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10305 arguments concerning the foregoing. FOR FURTHER INFORMATION CONTACT: 20, 1997 at Boeing Company, 20th Persons making written submissions Dan Gardner, Department of Commerce, Floor, MIC Room, 1700 North Moore should file six copies thereof with the 14th St. and Constitution Ave., N.W. Street, Arlington, VA 22202 (Rosslyn Secretary, Securities and Exchange Washington, D.C. 20230, (202) 482–3681 Metro stop). Commission, 450 Fifth Street, N.W., or Suzanna Kang, Office of the United The agenda will include: Washington, D.C. 20549. Copies of the States Trade Representative, 600 17th • Opening Remarks. submission, all subsequent St. N.W., Washington, D.C. 20508, (202) • Review of Action Items. amendments, all written statements 395–6120. • Report on Performance Standards with respect to the proposed rule SUPPLEMENTARY INFORMATION: The IFAC Working Group Activities. change that are filed with the 1 will hold a meeting on March 24, 1997 The Emergency Evacuation Issues Commission, and all written from 9:30 a.m. to 12:30 p.m. The Group will vote on the Performance communications relating to the meeting will be open to the public and Standards Working Group’s proposal for proposed rule change between the press during this time. Agenda topics to revision to Technical Standard Order Commission and any person, other than be addressed will be: (TSO) C69b, emergency slides, ramps, those that may be withheld from the 1.Strategies and Priorities of U.S. Trade and slide/raft combinations. Anyone public in accordance with the Promotion Efforts interested in obtaining a copy of this provisions of 5 U.S.C. § 552, will be 2. Rules of Origin Work Program document should contact the individual available for inspection and copying at 3. Regional Customs Activities listed under the heading FOR FURTHER the Commission’s Public Reference 4. Customs Valuation INFORMATION CONTACT. Room. Copies of such filing will also be 5. Other Business Attendance is open to the public, but available for inspection and copying at Attendance during this part of the will be limited to space available. The the principal office of the Exchange. All meeting is for observation only. pubic must make arrangements by submissions should refer to File No. Individuals who are not members of the March 14, 1997 to present oral SR–Amex–97–06 and should be committee will not be invited to statements at the meeting. Written submitted by March 27, 1997. comment. statements may be presented to the V. Conclusion Phyllis Shearer Jones, committee at any time by providing 25 Assistant United States Trade Representative, copies to the Assistant Executive It is therefore ordered, pursuant to Director for Emergency Evacuation 10 Intergovernmental Affairs and Public Liaison. Section 19(b)(2) of the Act, that the Issues or by providing copies at the proposed rule change (SR–Amex–97– [FR Doc. 97–5492 Filed 3–5–97; 8:45 am] BILLING CODE 3190±01±M meeting. In addition, sign and oral 06) is approved. interpretation, as well as a listening For the Commission, by the Division of Market Regulation, pursuant to delegated device, can be made available if authority.11 DEPARTMENT OF TRANSPORTATION requested 10 calendar days before the Margaret H. McFarland, meeting. Arrangements may be made by contacting the person listed under the Deputy Secretary. Federal Aviation Administration heading FOR FURTHER INFORMATION [FR Doc. 97–5526 Filed 3–5–97; 8:45 am] Aviation Rulemaking Advisory CONTACT. BILLING CODE 8010±01±M Committee Meeting on Emergency Issued in Washington, DC, on February 28, Evacuation Issues 1997. OFFICE OF THE UNITED STATES AGENCY: Federal Aviation Joseph A. Hawkins, TRADE REPRESENTATIVE Administration (FAA), DOT. Executive Director, Aviation Rulemaking Advisory Committee. ACTION: Notice of public meeting. Notice of Meeting of the Industry [FR Doc. 97–5548 Filed 3–5–97; 8:45 am] Functional Advisory Committee on SUMMARY: This notice announces a BILLING CODE 4910±13±M Customs Matters (IFAC 1) public meeting of the FAA’s Aviation Rulemaking Advisory Committee AGENCY: Office of the United States (ARAC) to discuss emergency Federal Highway Administration Trade Representative. evacuation issues. Environmental Impact Statement: ACTION: Notice of meeting. DATES: The meeting will be held on Douglas County, KS SUMMARY: The Industry Functional March 20, 1997 at 9:00 a.m. Arrange for Advisory Committee on Customs oral presentations by March 14, 1997. AGENCY: Federal Highway Matters (IFAC 1) will hold a meeting on ADDRESSES: The meeting will be held on Administration (FHWA), DOT. March 24, 1997 from 9:30 a.m. to 12:30 the 20th Floor, MIC Room of the Boeing ACTION: Notice of withdrawal. p.m. The meeting will be open to the Company, 1700 North Moore Street, public. Arlington, VA 22202 (Rosslyn Metro SUMMARY: The Federal Highway DATES: The meeting is scheduled for stop). Administration (FHWA) is issuing this March 24, 1997, unless otherwise FOR FURTHER INFORMATION CONTACT: notice to advise the public, that our notified. Jackie Smith, Office of Rulemaking, October 17, 1994, Notice of Intent to ADDRESSES: The meeting will be held at ARM–209, FAA, 800 Independence complete a Supplement to the Final the Department of Commerce in Room Avenue, SW, Washington, DC 20591, Environmental Impact Statement is 1859, located at 14th Street and Telephone (202) 267–9682, FAX (202) withdrawn. Constitution Avenue, N.W., 267–5075. FOR FURTHER INFORMATION CONTACT: Washington, D.C., unless otherwise SUPPLEMENTARY INFORMATION: Pursuant David R. Geiger, P.E., Division notified. to section 10(a)(2) of the Federal Administrator, FHWA 3300 S.W. Advisory Committee Act (Pub. L. 92– Topeka Boulevard, Suite 1, Topeka, 10 15 U.S.C. § 78s(b)(2). 463; 5 U.S.C. app. III), notice is given of Kansas 66611–2237, Telephone: (913) 11 17 C.F.R. 200.30–3(a)(12). an ARAC meeting to be held on March 267–7281. 10306 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

SUPPLEMENTARY INFORMATION: It was the Road 472 Interchange in Volusia The design concepts and scope of the intent of FHWA to re-evaluate the Final County, a distance of approximately 69 I–4 improvements were developed as Environmental Impact Statement for km (43 miles). The project is commonly part of the I–4 Major Investment Study that portion of the South Lawrence referred to as the I–4 Project (MIS). The MIS was performed in Trafficway project from U.S. 59 east to Development and Environmental conjunction with the I–4 Multi-Modal K–10. FHWA wanted to consider the (PD&E) Study—Section 2. The proposed Master Plan (I–4 MMMP) and included effects of the proposed trafficway on the improvement will involve widening the evaluations of a full range of reasonable spiritual sites, cultural issues, and segment of I–4 to six general use lanes alternatives and transportation modes. academic programs at the Haskell plus two high occupancy vehicle lanes. The specific design concept and scope Indian Nations University. FHWA In addition, the project will evaluate the recommendations identified in the MIS prepared and circulated a Draft need for interchange modifications. which are pertinent to the I–4 PD&E Supplemental Environmental Impact Improvements to the corridor are Study—Section 2 include: Statement and received many considered necessary to provide for the • Six general use lanes plus two high comments. FHWA was in the process of existing and projected travel demand. occupancy lanes within the limits of the evaluating these comments when There are three independent studies Section 2 Study, Douglas County and the Kansas which are being performed concurrently • Reserved right-of-way for a rail Department of Transportation decided with the I–4 PD&E Study—Section 2. envelope within Volusia County, • not to use Federal-aid Highway funds The I–4 PD&E Study—Section 1 Light rail transit from the city of for the project. Therefore, FHWA is no involves preparation of an Sanford to the South, extending beyond longer the lead Federal agency for this Environmental Assessment for the southern limits of the Section 2 project and is discontinuing the improvements on I–4 from County Road study, • Supplemental Environmental document 532 in Osceola County, Florida to State Express bus service between process. Road 528 in Orange County, Florida. Volusia County and the Orlando The Record of Decision dated June 5, The I–4 PD&E Study—Section 3 metropolitan area. 1990, is now valid only for that portion involves preparation of a Environmental The need for improvements to I–4 is of the Trafficway from the western Assessment for improvements on I–4 recognized by local and regional plans. terminus to U.S. 59. from State Road 472 to I–95 in Volusia The MIS has been approved by the County, Florida. The Central Florida Orlando Urban Area Metropolitan Issued on: February 27, 1997. Light Rail Transit System Study Planning Organization (MPO) and the David R. Geiger, involves preparation of an EIS for Light Volusia County MPO. The project is also Division Administrator, Kansas Division, Rail Transit improvements in Osceola, included in the Orlando Urban Area and Federal Highway Administration, Topeka, Orange, and Seminole Counties, Florida. Volusia County year 2020 Long Range Kansas. Consideration of the cumulative effects Transportation Plans. Local government [FR Doc. 97–5531 Filed 3–5–97; 8:45 am] of these actions, as well as other past, comprehensive plans support mobility BILLING CODE 4910±22±M present and reasonable foreseeable enhancements to I–4. future actions, will be included in the Alternative I–4 PD&E Study—Section 2. Environmental Impact Statement; Alternatives under consideration Orange, Seminole, and Volusia Need for Project include: (1) ‘‘No Action’’ which Counties, FL I–4 is considered to be an integral part involves no change to transportation of Central Florida’s transportation facilities in the corridor beyond projects AGENCY: Federal Highway system. The Interstate carries the already committed; (2) the design Administration (FHWA), DOT. greatest number of people and vehicles concept recommended in the I–4 MIS ACTION: Notice of intent. of any transportation facility in the and I–4 MMMP which consists of region and serves many of the area’s SUMMARY: The FHWA is issuing this widening the segment of I–4 to six primary activity centers. I–4 was notice to advise the public that an general use lanes plus two high originally designed to serve long Environmental Impact Statement (EIS) occupancy vehicle lanes, and evaluating distance travelers, however, the will be prepared for a proposed highway the need for interchange modifications; highway has evolved to one which project in Orange County, Seminole and (3) design concept refinements to serves many shorter trips. County, and Volusia County, Florida. the recommended I–4 MMMP Central Florida has experienced alternative. The design concept FOR FURTHER INFORMATION CONTACT: tremendous growth in the past two refinements will involve consideration Mr. Mark D. Bartlett, Program decades. A significant amount of this of geometric adjustments which Operations Engineer, Federal Highway growth is occurring within close maximize use of the existing Administration, 227 N. Bronough Street, proximity to I–4. In recent years, infrastructure, reduce project costs, and Room 2015, Tallahassee, Florida 32301. congestion on I–4 has extended well avoid or minimize environmental Telephone: (904) 942–9598. beyond normal peak hours and major impacts. SUPPLEMENTARY INFORMATION: accidents have closed I–4, subsequently resulting in traffic congestion Probable Effects Description of Project throughout the metropolitan area. FHWA and local joint lead agencies The FHWA, in consultation with the Congestion and delays on I–4 and the will evaluate in the EIS all significant Florida Department of Transportation, parallel arterial highways are now environmental impacts including will prepare an EIS for a proposal to considered to be the major analysis of socio-economic, natural, and improve Interstate 4 (I–4) in Orange transportation problem facing the physical impacts for each of the County, Seminole County, and Volusia region. Travel conditions in Central alternatives. Analysis of socio-economic County, Florida. The project limits are Florida are expected to continue to impacts will include the evaluation of from just west of the State Road 528 deteriorate due to the continuing trend land use and neighborhood impacts, (Bee Line Expressway) Interchange in of increased growth in population and park/recreation area impacts, historic/ Orange County to just east of the State tourism. archaeological impacts, and visual and Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10307 aesthetic impacts. Natural impact Planning and Construction. The regulations likely to survive even a direct impact analysis will include impacts to implementing Executive Order 12372 from small aircraft. Outstanding Florida Waters and Wild regarding inter-governmental consultation on 5. Similar LNG storage tanks and and Scenic Rivers, aquatic preserves, Federal programs and activities apply to this dispensing facilities are routinely program) wetlands, and threatened or endangered allowed at airports without species. In addition, within the study Issued on February 27, 1997. impoundment as they are not subject to limits, I–4 crosses the St. John’s River J.R. Skinner, Part 193 requirements, but they pose which is a navigable waterway. Division Administrator, Tallahassee. precisely the same risk in the event of Consequently, navigation impacts will [FR Doc. 97–5530 Filed 3–5–97; 8:45 am] a collision, and due to their location at be evaluated as part of the natural BILLING CODE 4910±22±M the airport pose a much greater risk of impact analysis. Physical impact impact from an aircraft. To support this analysis will include evaluating impacts fact, NE provided pictures of an above to noise, air quality, water quality, Research and Special Programs ground NFPA 59A LNG storage tank at floodplain, potentially contaminated Administration the Dallas/Fort Worth airport. sites, and coastal zone. The 6. Part 193 contains special provisions environmental evaluation will consider [Docket No. P±97±2W; Notice 1] for LNG tanks with less than a 70,000 both short-term and long-term impacts gallon capacity. However, Section Liquefied Natural Gas Facilities associated with the alternatives. 193.2155(c) fails to reflect the vastly Petition for Waiver; Northern Eclipse, Measures to mitigate any significant different risks posed by different sized Inc. adverse impacts will also be considered. LNG storage tanks. A small LNG tank Environmental issues raised from Northern Eclipse, Inc. (NE) has like that proposed by NE poses no responses to the Advanced Notification petitioned the Research and Special significant risk, and certainly no more Letter include neighborhood protection, Programs Administration (RSPA) for a than any other similar small energy aesthetics, bicycle facilities, recreational waiver from compliance with 49 CFR storage tank, such as a propane tank or greenways, alternative modes of storage tank impounding system. a non-Part 193 LNG tank. transportation, lake protection, Section 193.2155(c) requires a Class 1 7. During the December 9, 1996, hydrology and stormwater management, impounding system whenever an LNG meeting between NE and OPS on this cultural features, wildlife corridors, and storage tank is located within 20,000 issue, NE was informed that the origin rare habitat and listed species. feet from the nearest runway serving of the distance of 20,000 feet from the Scoping large aircraft. The petition applies to the airport was taken from the Federal Letters describing the proposed action Northern Eclipse’s proposed LNG Aviation Administration’s (FAA) and soliciting comments will be sent to storage facility at Fairbanks, Alaska. Regulations under 14 CFR part 77, appropriate Federal, State, and local The petitioner’s rationale for the which define a critical area surrounding agencies, and to private organizations waiver from compliance rests on the a large airport. According to NE, only and citizens who have expressed following reasons: § 77.13(a)(2)(i) of 14 CFR part 77, interest in this proposal. Interested 1. Fairbanks does not currently have addresses 20,000 ft. restriction, which parties may request project information natural gas service, and given the exists where there are runways of over by contacting Mr. Harold Webb, Florida distance to gas fields and the size of the 3,200 feet in length, and that section Department of Transportation, District market, petitioner believes that LNG is refers only to the heights of structures. Five, 719 South Woodland Boulevard, the only feasible way to provide natural NE believes that the FAA may be Florida 32720 or by calling him at (904) gas service in the community. concerned with the height of the 943-5554. A series of public meetings 2. Fairbanks is a small town by a structure rather than the contents. will be held in Orange, Seminole, and lower-48 states standards, however, due Because of the unusual circumstances Volusia Counties between August 1997 to international air transport and described above at NE’s proposed LNG and December 1998. In addition, public reliance of Alaskans on air travel, facility, relatively low risk to the public hearings will be held in Orange, Fairbanks has an international airport safety due to a smaller tank, and the Seminole, and Volusia Counties. Public (FIA) with a 11,050 foot long runway. In operators’s use of a shop fabricated notice will be given of the time and addition, Fairbanks has a similar heavy outer wall built to more stringent place of the meetings and hearings. The runway for a U.S. military base (Fort standards than those specified under Draft EIS will be made available for Wainwright), and other smaller runways part 193, RSPA believes that granting a public and agency review and comment. in the area. The 20,000 foot restriction waiver from the requirements of 49 CFR A formal scoping meeting will be held requirement eliminates any reasonable 193.2155(c) would not be inconsistent at 8:00 a.m. on Tuesday, April 15, 1997 site in Fairbanks for an LNG storage with pipeline safety, nor would it lessen and Wednesday, April 16, 1997 at the tank and it would not be economically public safety in this case. The operator Eastmonte Park Recreation & Civic feasible to build an impounding system must comply with all other Center located at 830 Magnolia Drive, which would withstand a direct impact requirements of part 193 including Class Altamonte Springs, Florida. from a 747, in order to provide gas 2 impounding system for the storage To ensure that the full range of issues service to the Fairbanks community. tank. Therefore, RSPA proposes to grant related to the proposed action are 3. NE does not propose to locate its the waiver. addressed and all significant issues storage tank in the approach/departure Interested parties are invited to identified, comments and suggestions corridor for heavy aircraft. The areas comment on the proposed waiver by are invited from all interested parties. under consideration are approximately submitting in duplicate such data, Comments or questions concerning this two miles to the side of the FIA runway. views, or arguments as they may desire. proposed action and the EIS should be 4. NE proposes the use of a shop Comments should identify the docket directed to the FHWA at the address fabricated, heavy outer wall storage tank number and the RSPA rulemaking provided above. of less than 70,000 gallon capacity, built number. Comments should be addressed (Catalog of Federal Domestic Assistance to National Aeronautical and Space to the Docket Facility, U.S. Department Program Number 20.205, Highway Research, Administration specifications, and Of Transportation, plaza 401, 400 10308 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices

Seventh Street SW., Washington, DC 1201 Constitution Avenue, N.W., received,1 this exemption will be 20590–0001. Washington, DC 20423. 1 In addition, a effective on April 5, 1997, unless stayed All comments received before April 7, copy of each pleading must be served on pending reconsideration. Petitions to 1997 will be considered before final Michael E. Roper, Esq., The Burlington stay that do not involve environmental action is taken. Late filed comments will Northern and Santa Fe Railway issues,2 formal expressions of intent to be considered so far as practicable. No Company, 3800 Continental Plaza, 777 file an OFA under 49 CFR 1152.27(c)(2), public hearing is contemplated, but one Main Street, Forth Worth, TX 76102– and trail use/rail banking requests under may be held at a time and place set in 5384. 49 CFR 1152.29 3 must be filed by March a notice in the Federal Register if Decided: February 27, 1997. 19, 1997. Petitions to reopen or requests required by an interested person By the Board, David M. Konschnik, for public use conditions under 49 CFR desiring to comment at a public hearing Director, Office of Proceedings. 1152.28 must be filed by March 26, and raising a genuine issue. All Vernon A. Williams, 1997, with: Office of the Secretary, Case comments and other docketed material Control Branch, Surface Transportation Secretary. will be available for inspection and Board, 1201 Constitution Avenue, N.W., copying in room 401 Plaza between the [FR Doc. 97–5547 Filed 3–5–97; 8:45 am] Washington, DC 20423.4 hours of 10:00 a.m. and 5 p.m., Monday BILLING CODE 4915±00±P A copy of any petition filed with the through Friday, except Federal holidays. Board should be sent to applicant’s Authority: 49 App. U.S.C. 2002(h) and representative: Charles M. Rosenberger, 2015; and 49 CFR 1.53. [STB Docket No. AB±55 (Sub±No. 539X)] Senior Counsel, 500 Water Street, J150, Jacksonville, FL 32202. Issued in Washington, D.C., on March 3, CSX Transportation, Inc.Ð 1997. If the verified notice contains false or Abandonment ExemptionÐin Harrison misleading information, the exemption Richard B. Felder, County, WV Associate Administrator for Pipeline Safety. is void ab initio. CSXT has filed an environmental [FR Doc. 97–5552 Filed 3–5–97; 8:45 am] CSX Transportation, Inc. (CSXT) has report which addresses the BILLING CODE 4910±60±P filed a notice of exemption under 49 abandonment’s effects, if any, on the CFR part 1152 subpart F—Exempt environment and historic resources. The Abandonments to abandon 14.1 miles of Surface Transportation Board Section of Environmental Analysis its line of railroad between milepost 2.1 (SEA) will issue an environmental [STB Finance Docket No. 33363] at Clarksburg and milepost 16.2 at assessment (EA) by March 11, 1997. McWhorter, in Harrison County, WV. Interested persons may obtain a copy of Burlington Northern and Santa Fe CSXT has certified that: (1) No local the EA by writing to SEA (Room 3219, Railway Co.; Trackage Rights traffic has moved over the line for at Surface Transportation Board, Exemption; Birmingham Southern least 2 years; (2) there is no overhead Washington, DC 20423) or by calling Railway Co. traffic on the line; (3) no formal Elaine Kaiser, Chief of SEA, at (202) complaint filed by a user of rail service Birmingham Southern Railway 927–6248. Comments on environmental on the line (or by a state or local Company has agreed to grant overhead and historic preservation matters must government entity acting on behalf of trackage rights to The Burlington be filed within 15 days after the EA such user) regarding cessation of service Northern and Santa Fe Railway becomes available to the public. over the line either is pending with the Company (BNSF) from BNSF’s rail yard Environmental, historic preservation, Surface Transportation Board (Board) or at milepost 147 + 28.00 to milepost 225 public use, or trail use/rail banking with any U.S. District Court or has been + 51.51 in Birmingham, AL, for the conditions will be imposed, where decided in favor of complainant within purpose of moving loaded and empty appropriate, in a subsequent decision. the 2-year period; and (4) the cars to the American Cast Iron Pipe Pursuant to the provisions of 49 CFR requirements at 49 CFR 1105.7 Company plant. 1152.29(e)(2), CSXT shall file a notice of (environmental reports), 49 CFR 1105.8 The transaction was scheduled to be consummation with the Board to signify (historic reports), 49 CFR 1105.11 consummated on February 26, 1997. (transmittal letter), 49 CFR 1105.12 1 As a condition to this exemption, any Under 49 CFR 1152.27(c)(2)(i), the expression of (newspaper publication), and 49 CFR intent to file an OFA would normally be due 10 employees affected by the trackage 1152.50(d)(1) (notice to governmental days after publication of notice in the Federal rights will be protected by the agencies) have been met. Register. However, due to the Board’s scheduled conditions imposed in Norfolk and relocation on March 16, 1997, expressions of intent Western Ry. Co.—Trackage Rights—BN, As a condition to this exemption, any in this proceeding may be filed as late as March 19, 1997. 354 I.C.C. 605 (1978), as modified in employee adversely affected by the abandonment shall be protected under 2 The Board will grant a stay if an informed Mendocino Coast Ry., Inc.—Lease and decision on environmental issues (whether raised Operate, 360 I.C.C. 653 (1980). Oregon Short Line R. Co.— by a party or by the Board’s Section of This notice is filed under 49 CFR Abandonment—Goshen, 360 I.C.C. 91 Environmental Analysis in its independent 1180.2(d)(7). If it contains false or (1979). To address whether this investigation) cannot be made before the condition adequately protects affected exemption’s effective date. See Exemption of Out- misleading information, the exemption of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any is void ab initio. Petitions to revoke the employees, a petition for partial request for a stay should be filed as soon as possible exemption under 49 U.S.C. 10502(d) revocation under 49 U.S.C. 10502(d) so that the Board may take appropriate action before may be filed at any time. The filing of must be filed. Provided no formal the exemption’s effective date. expression of intent to file an offer of 3 The Board will accept late-filed trail use a petition to revoke will not requests as long as the abandonment has not been automatically stay the transaction. financial assistance (OFA) has been consummated and the abandoning railroad is An original and 10 copies of all willing to negotiate an agreement. pleadings, referring to STB Finance 1 Due to the Board’s scheduled relocation on 4 Due to the Board’s scheduled relocation on March 16, 1997, any filings made after March 16, March 16, 1997, any filings made after March 16, Docket No. 33363, must be filed with 1997, must be filed with the Surface Transportation 1997, must be filed with the Surface Transportation the Surface Transportation Board, Office Board, 1925 K Street, NW., Washington, DC 20423– Board, Office of the Secretary, Case Control Branch, of the Secretary, Case Control Branch, 0001. 1925 K Street, N.W., Washington, DC 20423. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices 10309 that it has exercised the authority who lose U.S. citizenship, cease to be Proposed Collection; Comment granted and fully abandoned the line. If taxed as U.S. lawful permanent Request for Revenue Procedure 97±19 consummation has not been effected by residents, or are otherwise subject to tax CSXT’s filing of a notice of under Code section 877. The AGENCY: Internal Revenue Service (IRS), consummation by March 6, 1998, and information required by the notice will Treasury. there are no legal or regulatory barriers be used to help make a determination as ACTION: Notice and request for to consummation, the authority to to whether these taxpayers expatriated comments. abandon will automatically expire. with a principal purpose to avoid tax. SUMMARY: The Department of the Decided: February 25, 1997. Current Actions: There are no changes Treasury, as part of its continuing effort By the Board, David M. Konschnik, being made to the notice at this time. to reduce paperwork and respondent Director, Office of Proceedings. Type of Review: Extension of a burden, invites the general public and Vernon A. Williams, currently approved collection. other Federal agencies to take this Secretary. opportunity to comment on proposed Affected Public: Individuals. [FR Doc. 97–5546 Filed 3–5–97; 8:45 am] and/or continuing information BILLING CODE 4915±00±P Estimated Number of Respondents: collections, as required by the 12,300. Paperwork Reduction Act of 1995, Estimated Time Per Respondent: 31 Public Law 104–13 (44 U.S.C. DEPARTMENT OF THE TREASURY minutes. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Estimated Total Annual Burden Internal Revenue Service Revenue Procedure 97–19, 26 CFR Hours: 6,300. 301.7502–1: Timely mailing treated as Proposed Collection; Comment The following paragraph applies to all timely filing. Request for Notice 97±19 of the collections of information covered DATES: Written comments should be by this notice: AGENCY: Internal Revenue Service (IRS), received on or before May 5, 1997 to be Treasury. An agency may not conduct or assured of consideration. sponsor, and a person is not required to ADDRESSES: ACTION: Notice and request for Direct all written comments comments. respond to, a collection of information to Garrick R. Shear, Internal Revenue unless the collection of information Service, room 5571, 1111 Constitution SUMMARY: The Department of the displays a valid OMB control number. Avenue NW., Washington, DC 20224. Treasury, as part of its continuing effort Books or records relating to a collection FOR FURTHER INFORMATION CONTACT: to reduce paperwork and respondent of information must be retained as long Requests for additional information or burden, invites the general public and as their contents may become material copies of the information collection other Federal agencies to take this in the administration of any internal should be directed to Carol Savage, opportunity to comment on proposed revenue law. Generally, tax returns and (202) 622–3945, Internal Revenue and/or continuing information tax return information are confidential, Service, room 5569, 1111 Constitution collections, as required by the as required by 26 U.S.C. 6103. Avenue NW., Washington, DC 20224. Paperwork Reduction Act of 1995, Request for Comments SUPPLEMENTARY INFORMATION: Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).Currently, the IRS is Comments submitted in response to Title: 26 CFR 301.7502–1: Timely soliciting comments concerning Notice this notice will be summarized and/or mailing treated as timely filing. 97–19, Guidance for Expatriates under included in the request for OMB OMB Number: 1545–1535. Revenue Procedure Number: Revenue Internal Revenue Code sections 877, approval. All comments will become a Procedure 97–19. 2501, 2107 and 6039F. matter of public record. Comments are Abstract: Revenue Procedure 97–19 DATES: Written comments should be invited on: (a) whether the collection of provides the criteria that will be used by received on or before May 5, 1997 to be information is necessary for the proper assured of consideration. the Internal Revenue Service to performance of the functions of the determine whether a private delivery ADDRESSES: Direct all written comments agency, including whether the service qualifies as a designated private to Garrick R. Shear, Internal Revenue information shall have practical utility; delivery service under section 7502 of Service, room 5571, 1111 Constitution (b) the accuracy of the agency’s estimate the Internal Revenue Code. Avenue NW., Washington, DC 20224. of the burden of the collection of Current Actions: There are no changes FOR FURTHER INFORMATION CONTACT: information; (c) ways to enhance the being made to the revenue procedure at Requests for additional information or quality, utility, and clarity of the this time. copies of the information collection information to be collected; (d) ways to Type of Review: Extension of a should be directed to Carol Savage, minimize the burden of the collection of currently approved collection. (202) 622–3945, Internal Revenue information on respondents, including Affected Public: Business or other for- Service, room 5569, 1111 Constitution through the use of automated collection profit organizations. Avenue NW., Washington, DC 20224. techniques or other forms of information Estimated Number of Respondents: 5. technology; and (e) estimates of capital Estimated Time Per Respondent: 613 SUPPLEMENTARY INFORMATION: or start-up costs and costs of operation, hours, 48 minutes. Title: Guidance for Expatriates under maintenance, and purchase of services Estimated Total Annual Burden Internal Revenue Code sections 877, to provide information. Hours: 3,069. 2501, 2107 and 6039F. Approved: February 25, 1997. The following paragraph applies to all OMB Number: 1545–1531. of the collections of information covered Garrick R. Shear, Notice Number: Notice 97–19. by this notice: Abstract: Notice 97–19 provides IRS Reports Clearance Officer. An agency may not conduct or guidance regarding the federal tax [FR Doc. 97–5553 Filed 3–5–97; 8:45 am] sponsor, and a person is not required to consequences for certain individuals BILLING CODE 4830±01±U respond to, a collection of information 10310 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Notices unless the collection of information ACTION: Notice. propylene of 0.494, a conversion factor displays a valid OMB control number. for chlorine of 0.833, and a conversion SUMMARY: This notice announces a Books or records relating to a collection factor for sodium hydroxide of 0.705. determination, under Notice 89–61, that of information must be retained as long The petitioner is Dow Chemical as their contents may become material the list of taxable substances in section Company, a manufacturer and exporter in the administration of any internal 4672(a)(3) will be modified to include of this substance. No material comments revenue law. Generally, tax returns and diglycidyl ether of bisphenol-A. tax return information are confidential, EFFECTIVE DATE: This modification is were received on this petition. The as required by 26 U.S.C. 6103. effective April 1, 1992. following information is the basis for FOR FURTHER INFORMATION CONTACT: the determination. Request for Comments Ruth Hoffman, Office of Assistant Chief HTS number: 3907.3 Comments submitted in response to Counsel (Passthroughs and Special CAS number: 025085–99–8 this notice will be summarized and/or Industries), (202) 622–3130 (not a toll- included in the request for OMB free number). Diglycidyl ether of bisphenol-A approval. All comments will become a (DGEBA) is derived from the taxable SUPPLEMENTARY INFORMATION: matter of public record. Comments are chemicals benzene, propylene, chlorine, invited on: (a) whether the collection of Background and sodium hydroxide and produced information is necessary for the proper Under section 4672(a), an importer or predominantly from epichlorohydrin performance of the functions of the exporter of any substance may request and bisphenol-A via a two-step reaction. agency, including whether the that the Secretary determine whether The stoichiometric material information shall have practical utility; that substance should be listed as a consumption formula for this substance (b) the accuracy of the agency’s estimate taxable substance. The Secretary shall is: of the burden of the collection of add the substance to the list of taxable information; (c) ways to enhance the substances in section 4672(a)(3) if the 2 C6H6 (benzene) + 4 C3H6 (propylene) quality, utility, and clarity of the Secretary determines that taxable + 4 Cl2 (chlorine) + 6 NaOH information to be collected; (d) ways to chemicals constitute more than 50 (sodium hydroxide) + 2 O2 (oxygen) minimize the burden of the collection of percent of the weight, or more than 50 ———> (CH3)2C(C6H4OC3H50)2 information on respondents, including percent of the value, of the materials (DGEBA) + CH3COCH3 (acetone) + 2 through the use of automated collection used to produce the substance. This HCl (hydrogen chloride) + 6 NaCl techniques or other forms of information determination is to be made on the basis (sodium chloride) + 5 H2O (water) technology; and (e) estimates of capital of the predominant method of or start-up costs and costs of operation, production. Notice 89–61, 1989–1 C.B. Diglycidyl ether of bisphenol-A has maintenance, and purchase of services 717, sets forth the rules relating to the been determined to be a taxable to provide information. determination process. substance because a review of its stoichiometric material consumption Approved: February 28, 1997. Determination Garrick R. Shear, formula shows that, based on the IRS Reports Clearance Officer. On February 24, 1997, the Secretary predominant method of production, determined that diglycidyl ether of [FR Doc. 97–5555 Filed 3–5–97; 8:45 am] taxable chemicals constitute 92.95 bisphenol-A should be added to the list percent by weight of the materials used BILLING CODE 4830±01±U of taxable substances in section in its production. 4672(a)(3), effective April 1, 1992. Dale D. Goode, The rate of tax prescribed for Tax on Certain Imported Substances Federal Register Liaison Officer, Assistant (Epoxy); Notice of Determination diglycidyl ether of bisphenol-A , under section 4671(b)(3), is $7.08 per ton. This Chief Counsel (Corporate). AGENCY: Internal Revenue Service (IRS), is based upon a conversion factor for [FR Doc. 97–5554 Filed 3–5–97; 8:45 am] Treasury. benzene of 0.459, a conversion factor for BILLING CODE 4830±01±U federal register March 6,1997 Thursday Asylum Procedures;FinalRule Conduct ofRemovalProceedings; Aliens; DetentionandRemovalof Inspection andExpeditedRemovalof 8 CFRPart1,etal. Review and ExecutveOfficeforImmigration Immigration andNaturalizationService Justice Department of Part II 10311 10312 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

DEPARTMENT OF JUSTICE Pike, Suite 2400, Falls Church, VA input on the issues addressed in this 22041, telephone number (703) 305– rulemaking, this rule is being published Immigration and Naturalization Service 0470; for asylum issues—Michael Shaul, as an interim rule with an additional Field Manual Project Office, 120-day comment period. Executive Office for Immigration Immigration and Naturalization Service, The Department received 124 Review 425 I Street NW, ULLB—4th Floor, comments on the proposed rule. Most of 8 CFR Parts 1, 3, 103, 204, 207, 208, Washington, DC 20536, telephone the commenters represented either 209, 211, 212, 213, 214, 216, 217, 221, number (202) 616–7439; for inspections attorney organizations or voluntary 223, 232, 233, 234, 235, 236, 237, 238, issues—Linda Loveless, Office of organizations predominantly involved 239, 240, 241, 242, 243, 244, 245, 246, Inspections, Immigration and with refugees and asylum claimants. 248, 249, 251, 252, 253, 274a, 286, 287, Naturalization Service, 425 I Street NW, Commenters addressed a variety of 299, 316, 318, and 329 Room 4064, Washington, DC 20536, topics, with much of the focus on telephone number (202) 616–7489; for asylum, expedited removal, and [INS No. 1788±96; AG ORDER No. 2071± detention and removal issues—Len voluntary departure. The Department 97] Loveless, Office of Detention and also received comments from individual members of Congress and Congressional RIN 1115±AE47 Deportation, Immigration and Naturalization Service, 425 I Street NW, subcommittees. Since many of the Inspection and Expedited Removal of Room 3008, Washington, DC 20536, comments were duplicative or endorsed Aliens; Detention and Removal of telephone number (202) 616–7799. the submissions of other commenters, Aliens; Conduct of Removal they will be addressed by topic, rather SUPPLEMENTARY INFORMATION: Proceedings; Asylum Procedures than referencing each specific comment Background and commenter. Also, because many of AGENCY: Immigration and Naturalization the comments were complex and dealt Service, Justice, and Executive Office for The Immigration and Naturalization with issues that may be better addressed Immigration Review, Justice. Service and the Executive Office for after the Department has had a period of Immigration Review jointly published a time to gain operational experience ACTION: Interim rule with request for proposed rule on January 3, 1997 (62 FR comments. under the new law, suggestions that 443–517 (1997)), to implement sections were not adopted for the interim period SUMMARY: This interim rule amends the of the Illegal Immigration Reform and will be further considered when a final regulations of the Immigration and Immigrant Responsibility Act of 1996, rule is prepared. A number of comments Naturalization Service (Service) and the Pub. L. 104–208, which was enacted on were received concerning sections of the Executive Office for Immigration September 30, 1996. This legislation regulations that were not specifically Review (EOIR) to implement the significantly amended the Immigration changed by the proposed rule, but were provisions of the Illegal Immigration and Nationality Act (Act) by revising the simply moved to new sections. The Reform and Immigrant Responsibility asylum process and providing a Department has not addressed these Act of 1996 (IIRIRA) governing mechanism for the determination and comments at this time, but will consider expedited and regular removal review of certain applicants who them either as part of separate proceedings, handling of asylum claims, demonstrate a credible fear of rulemaking initiatives or as part of the and other activities involving the persecution if returned to their own final rule rather than the interim rule, apprehension, detention, hearing of country; expanding the grounds of after the Service and EOIR more closely claims and ultimately the removal of inadmissibility; redefining applicants study the proposals. This inadmissible and deportable aliens. This for admission to include aliens who supplementary information will identify rule incorporates a number of changes entered the United States without significant changes made to the which are a part of the Administration’s inspection; creating new expedited proposed rule and briefly discuss reinvention and regulation streamlining removal procedures for aliens reasons why many other major initiative. attempting to enter the United States suggestions were not adopted at this through fraud or misrepresentation or DATES: Effective date: This interim rule time. without proper documents; Although the Department has is effective April 1, 1997. consolidating the former exclusion and Comment date: Written comments addressed the major comments received, deportation proceedings into one there will be further detailed analysis of must be submitted on or before July 7, unified removal proceeding; and 1997. these comments, as well as reorganizing and renumbering consideration of the additional ADDRESSES: Please submit written numerous provisions of existing law. comments received during the 120-day comments, in triplicate, to the Director, The effective date of most of the comment period following publication Policy Directives and Instructions provisions affecting asylum, inspection, of the interim regulation. This will Branch, Immigration and Naturalization and removal processes is April 1, 1997, ensure every suggestion is more fully Service, 425 I Street, NW, Room 5307, and implementing regulations must be explored. Commenters responding to Washington, DC 20536. To ensure in place by March 1, 1997. The the interim rule may choose to amend proper handling, please reference INS proposed rule allowed only a 30-day or expand on prior comments or address number 1788–96 on your comment period. The limited comment other areas not raised by commenters correspondence. Comments are period was necessary, given the short during the first comment period. available for public inspection at the statutory deadline and the time needed above address by calling (202) 514–3048 to draft the rule, coordinate with Definitions to arrange for an appointment. interested agencies, and complete the Several sections of the statute, such as FOR FURTHER INFORMATION CONTACT: For regulatory review process by the Office sections 212(a)(9), 240B, and 241 of the matters relating to the Executive Office of Management and Budget. In order to Act, refer to arriving aliens, even though for Immigration Review—Peggy Philbin, meet the statutory deadline for an this term is not defined in statute. After General Counsel, Executive Office for implementing regulation and yet carefully considering these references, Immigration Review, 5107 Leesburg provide adequate opportunity for public the Department felt that the statute Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10313 seemed to differentiate more clearly One commenter objected to the and with standard practice in many between aliens at ports-of-entry and inclusion of parolee in the definition of jurisdictions. Several commenters those encountered elsewhere in the arriving alien. The definition in the suggested that every alien subject to the United States. For clarity, ‘‘arriving proposed rule states ‘‘An arriving alien expedited removal provisions should alien’’ was specifically defined in 8 CFR remains such even if paroled pursuant automatically be offered the opportunity part 1, and the Department invited to section 212(d)(5) of the Act.’’ The to withdraw his or her application for commentary on the proper scope of the inclusion of paroled aliens was based on admission prior to the secondary regulatory definition. the statutory language in section inspection interview. Permission to One commenter suggested that aliens 212(d)(5) of the Act, which states withdraw an application for admission interdicted in United States waters ‘‘* * * but such parole of such alien is solely at the discretion of the should not be included in the definition shall not be regarded as an admission of Attorney General and is not a right of because persons arriving in United the alien and when the purposes of such the alien, a premise that has been States waters have already legally parole shall, in the opinion of the consistently upheld by the BIA. Only arrived in the United States. The Board Attorney General, have been served the the Attorney General may decide of Immigration Appeals (BIA) has alien shall forthwith return or be whether to pursue removal charges consistently held that the mere crossing returned to the custody from which he against an alien who has violated the into the territorial waters of the United or she was paroled and thereafter his immigration laws. Withdrawal of States has never satisfied the test of case shall continue to be dealt with in application for admission is only one of having entered the United States. See the same manner as that of any other several discretionary options that may Matter of G, 20 I&N Dec. 764 (BIA 1993). applicant for admission to the United be considered by the Service once the Aliens who have not yet established States.’’ Existing regulations at facts of the case are known, and so will physical presence on land in the United § 212.5(d) relating to termination of not automatically be offered to all aliens States cannot be considered as anything parole echo this provision, stating subject to expedited removal. other than arriving aliens. In addition, ‘‘* * * he or she shall be restored to The Department does, however, share the Department has for years relied on the status he or she had at the time of the concern of several commenters that interdiction efforts to stem the flow of parole.’’ The Department feels there is aliens who may be inadvertently or inadmissible aliens and attempted solid statutory basis for inclusion of unintentionally in violation of the illegal entries by sea. The inclusion of certain paroled aliens in the definition immigration laws or regulations should aliens interdicted at sea in the definition of arriving alien, and so will retain this not be subject to the harsh consequences of arriving alien will support the provision. of a formal removal order. The Department’s mandate to protect the The Department has added two Department also wishes to ensure that nation’s borders against illegal additional definitions for the sake of the expedited removal provisions and immigration. These provisions in no clarity. The term ‘‘Service counsel’’ has the discretionary option to permit way alter the Department’s current been added to clarify that although the withdrawal are applied consistently and interdiction policy and should not be term refers to any immigration officer fairly throughout the nation. Although construed as to require that all designated to represent the Service not included in the regulations at this interdicted aliens be brought to the before the Immigration Court or the BIA. time, the Department intends to United States. Only when an express Existing regulations interchangeably use formulate policy guidance and criteria decision is made, in accordance with this term and a variety of other terms, for determining the types of cases in existing interdiction policies, to including trial attorney, district counsel which such permission should or transport an interdicted alien to the and assistant district counsel. The term should not be considered. United States, will that alien be ‘‘aggravated felony’’ has also been considered an arriving alien for defined by reference to section Classes Subject to Expedited Removal purposes of the Act. 101(a)(43) of the Act as amended by Another commenter suggested that IIRIRA. The regulatory definition The Department requested public the definition be expanded to include clarifies that the amended section comment regarding the appropriate use aliens who have been present for less 101(a)(43) applies to any proceeding, of the authority conferred by the statute than 24 hours in the United States application, custody determination or upon the Attorney General to expand without inspection and admission. The adjudication. the class of aliens subject to expedited Department extensively considered this removal. Most commenters commended and similar options, such as a distance- Parole of Aliens the Department on its decision not to based distinction. For the reasons This interim rule modifies § 212.5(a) apply at this time the expedited removal discussed below relating to the decision to comport with the statutory change provisions to aliens in the United States not to apply the expedited removal made by IIRIRA to section 212(d)(5)(A) who have not been admitted or paroled provisions at this time to certain aliens of the Act. and who cannot establish continuous who entered without inspection, and physical presence in the United States considering the difficulty not only in Withdrawal of Application for for the previous two years. At this time, establishing that the alien entered Admission the Department will apply the without inspection, but also in The proposed rule contains provisions only to ‘‘arriving aliens,’’ as determining the exact time of the alien’s provisions to implement the defined in § 1.1(q). The Department arrival, the Department continues to longstanding practice used by the acknowledges that application of the believe the position taken in the Service to permit applicants for expedited removal provisions to aliens proposed rule is correct and will not admission to voluntarily withdraw their already in the United States will involve modify this definition in the interim application for admission to the United more complex determinations of fact rule. The definition of ‘‘arriving alien’’ States in lieu of removal proceedings, and will be more difficult to manage, will be given further consideration in now included in section 235(a)(4) of the and therefore wishes to gain insight and the final rule, however, drawing upon Act. The withdrawal provisions in the experience by initially applying these the experience of the early proposed rule were written to conform new provisions on a more limited and implementation of the interim rule. with rulings of the BIA on withdrawal controlled basis. 10314 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

The Department does, however, instituting removal proceedings, permit verified by the immigration officer by reserve the right to apply the expedited an alien to withdraw his or her referring to official Service records. The removal procedures to additional application for admission in those cases Department intends that when such a classes of aliens within the limits set by where there is no fraudulent intent and prior admission is verified, the the statute, if, in the Commissioner’s the alien is inadmissible only through individual will not be removed under discretion, such action is operationally inadvertent error or misinformation. the expedited removal provisions of warranted. It is emphasized that a There are also discretionary waivers section 235(b) of the Act, regardless of proposed expansion of the expedited available in certain cases. the officer’s determination as to the removal procedures may occur at any individual’s current admissibility and/ Reorganization of § 235.3(b)(1) and (2) time and may be driven either by or retention of such lawful permanent specific situations such as a sudden In order to provide a more logical status. For that reason the first sentence influx of illegal aliens motivated by discussion of the applicability of the of § 235.3(b)(5)(ii) sets forth this political or economic unrest or other expedited removal provisions and the prohibition. Since the removal events or by a general need to increase procedures for applying them, provisions under section 235(b) of the the effectiveness of enforcement § 235.3(b)(1) (determination of Act are not available, the only actions operations at one or more locations. inadmissibility) and § 235.3(b)(2) left for the examining officer are to: Although several commenters (applicability) as they appeared in the admit the individual (through the grant suggested that imposition of the proposed regulation have been of a waiver if need be); defer inspection provisions should only occur after interchanged and revised as discussed to allow the individual to retrieve the publication of a proposed rule followed below. appropriate documents; or place the by a comment period, the statute does Expedited Removal Procedures person in removal proceedings under not impose any specific notice section 240 of the Act. This process will requirement in connection with the Many commenters stated that the allow those individuals verified as Attorney General’s designation under provisions in § 235.3(b) were not having once been admitted as a lawful section 235(b)(1)(A)(3), and certainly sufficiently explicit to ensure that the permanent resident, asylee, or refugee a does not impose the requirement of a expedited removal provisions are fairly full evidentiary hearing in removal full administrative rulemaking. Indeed, and consistently applied. Because most proceedings under section 240 of the such a requirement would defeat a of these commenters represented Act before an immigration judge to major purpose of this provision: to organizations primarily concerned with address the heavily fact-based issues of allow the Attorney General to respond refugee and asylum issues, we have abandonment of status or other issues rapidly, effectively, and flexibly to addressed this topic in detail below in concerning loss of status. The language situations of mass influx or other the section relating to credible fear ‘‘may initiate proceedings’’ was used exigencies. The Attorney General has determinations and claims of asylum or here to indicate that the officer is not elected to exercise this authority in fear of persecution by aliens subject to required to initiate any proceedings but connection with publication of a notice expedited removal. may opt to admit the individual into the in the Federal Register (in advance, Review of Claim of Status as Lawful United States. where practicable) simply as a matter of Permanent Resident, Asylee, or Refugee As for those individuals claiming to sound administration and policy. The be returning lawful permanent provisions contained in § 235.3(b) of Several commenters suggested residents, asylees, or refugees, but who this interim rule will apply for now only provisions of § 235.3(b)(5) were not are not verified by the Service as having to arriving aliens. sufficiently clear to provide adequate ever been admitted in such status, the Several commenters suggested that review of claims by returning lawful referral to the immigration judge in certain classes of individuals, such as permanent residents, asylees, or § 235.3(b)(5)(iv) is for the purpose of minors, certain nonimmigrant refugees who are subject to expedited allowing the individual to establish classifications, and aliens claiming to be removal. Specifically, the commenters such a prior admission in such status, lawful permanent residents or U.S. asserted that § 235.3(b)(5)(ii) could be nothing more. If the individual citizens, should not be subject to interpreted to imply that an alien whose establishes such a prior admission, the expedited removal, or that it should not claim to lawful permanent residence is immigration judge will terminate the be applied where resources or location verified and is not granted a expedited removal order and at that do not permit optimal inspection discretionary waiver or provided an point that person will be in the same conditions. Some stated that aliens in opportunity through deferred inspection position as the person whose prior expedited removal should be entitled to to present the required documents could admission was verified by the a full hearing before an immigration be ordered removed under section inspecting Service officer: the Service judge. The statute is clear that the 235(b) of the Act. These commenters can admit the individual or contest his expedited removal provisions apply to requested that § 235.3(b)(5)(iv) of the or her current retention of such status in all aliens inadmissible under sections proposed regulation be amended to the context of removal proceedings 212(a)(6)(C) or (7) of the Act, and that allow that claimed lawful permanent under section 240 of the Act. such aliens are not entitled to further residents, asylees, or refugees (who the Another commenter contended that it hearing or review with specific limited Service has been unable to verify ever is not appropriate to refer aliens who are exceptions. Although the statute does was admitted in such status) be referred verified as having been admitted or not require it, the Department has directly to removal proceedings under establish that they were once admitted provided for supervisory review and section 240 of the Act. as lawful permanent residents, asylees, concurrence on all expedited removal For the following reasons, these or refugees to proceedings under section orders. The statute itself provides for sections of the proposed regulation will 240 of the Act. Section 235(b)(1)(C) of review of a claim to lawful permanent not be changed in the interim rule. the Act states that the Attorney General resident, refugee, or asylee status. In Section 235.3(b)(5)(ii) of the proposed shall provide regulations for addition, the Department has a certain regulation relates to those arriving administrative review of an expedited amount of prosecutorial discretion aliens whose prior admission as a removal order entered against ‘‘an alien provided by statute. It may, in lieu of lawful permanent resident has been who claims under oath . . .’’ to have Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10315 been lawfully admitted as a lawful admitted as permanent residents, procedure’’ and there was no emergency permanent resident, asylee, or refugee. refugees, or asylees. necessitating the more recent The statute provides no further directive Several commenters stated that the departure), the director may determine as to how aliens who actually have been regulations do not provide any criteria that favorable exercise of discretionary admitted in such status are to be for the detention or release of these authority is not warranted. Accordingly, processed if, in fact, the Service believes individuals. The provisions of the regulation provides that the district that such status may no longer be valid. § 235.3(b)(2)(iii) requiring detention of director having jurisdiction over the If that claim is never verified or all aliens subject to the expedited overseas location, or over the inspection established before the inspecting removal provisions and issued a facility in the case of an alien at a port- Service officer or an Immigration Judge, removal order also apply to persons of-entry, may deny the application as a the expedited removal order entered whose claim to lawful permanent matter of discretion. against the alien will be effected and the resident, refugee, asylee, or U.S. citizen A few commenters suggested that alien will be removed from the United status has not been verified. To clarify there be no limit on how long after States. However, once an alien that detention is required for these departure the application may be filed. establishes admission in such status, it individuals, the interim rule reiterates Others suggested that the time limit be is not inconsistent with the statute for this requirement in § 235.3(b)(5)(i). shortened from 1 year to 6 months to coincide with the 6 month time frame further proceedings against an alien Filing of an Application for a Refugee in section 101(a)(13)(C) of the Act, known to have been lawfully admitted Travel Document While Outside the which is the period during which a as a permanent resident, asylee, or United States refugee to occur in the context of lawful permanent resident who meets proceedings under section 240 of the Several commenters remarked certain other requirements is not Act. Further, given the greater interests favorably on the proposal to revise 8 considered to be an applicant for and ties to the United States normally CFR part 223 to allow refugees and admission. Another commenter stated at stake for such aliens compared to asylees to apply for refugee travel that the validity of a refugee travel those arriving without any previous documents from outside the United document approved under this process status, the Department considers it States, after departure from the United should not be limited to 1 year from the appropriate that verified arriving States, under certain very limited date of the alien’s departure from the permanent residents, asylees, and circumstances. The Department United States, so long as the application refugees be accorded the protections proposed this revision with full was filed within 1 year of that inherent in proceedings under section awareness of the provision in section departure. The 1-year limitation was 240 of the Act. 208(c)(1) of the Act under which the chosen because it is the maximum Attorney General may allow the alien to validity period for which a document Review of Claim to U.S. Citizenship travel abroad ‘‘with the prior consent of would have been approved had the Several commenters stated that while the Attorney General.’’ Despite the alien complied with the requirement of the statute and regulations provide for implied language of the statute, the filing prior to departure. Allowing an review of an expedited removal order of Department felt that an exception was applicant to file from outside the United an alien claiming to be a lawful warranted for those cases where the States more than 1 year after departure permanent resident, refugee, or asylee, alien innocently departed in ignorance would effectively authorize a longer there is no such provision for review of of the requirement or, although aware of validity period for the person who failed a claim to U.S. citizenship. While U.S. the requirement, departed without to comply with the requirement than for citizens are not subject to the applying for the document due to an one who did. This would not be inadmissibility and removal provisions urgent humanitarian need, such as the appropriate. Likewise, the 6-month of the Act and the Department makes impending death of a close relative. It period during which a lawful every effort to prevent the inadvertent should be noted that the current permanent resident (who meets the removal of U.S. citizens, there are regulations only require that an other criteria in section 101(a)(13) of the approximately 35,000 false claims to application be filed before departure, Act) is not deemed to be seeking U.S. citizenship made every year at not that the applicant delay travel until admission is not analogous to that of the ports-of-entry. Congress recognized this after the application is approved and the stranded refugee, since the refugee is problem in IIRIRA by adding a new document is received. The Service has clearly deemed to be seeking admission. ground of inadmissibility to section always provided the option of allowing Additionally, 6 months might be too 212(a)(6)(C)(ii) of the Act specifically the alien to pick up the document short a time for the alien who realizes designating such aliens as inadmissible overseas at an American consular post. his or her error to file the application and subject to the expedited removal A few commenters suggested that the and for the Service to verify eligibility provisions. Existing regulations at decision whether to accept such and approve that application. The § 235.1(b), which have been in place for applications not be left to the discretion Department feels that in those cases many years, place the burden of of the Service. This change has been where it is proper to allow an exception establishing a claim to U.S. citizenship made. However, the regulation does not from the requirement to file before on the person seeking entry. Otherwise, remove the general requirement that the departure, it is appropriate that the that person is inspected as an alien. To application be filed before departure, document be valid for the same length provide an additional level of review nor does it intend that the new of time as for the person who complied and safeguard against a mistaken procedure be viewed as a routine with that requirement. determination, the Department will method of obtaining the document. institute the same procedures contained Although not specifically stated in the Revision of Asylum Procedures in § 235.3(b)(5) for persons who have regulation, the Department intends that In general, many commenters not been able to establish U.S. if it is apparent that the alien knew of requested that specific ‘‘step-by-step’’ citizenship, but who maintain a claim the general requirement and simply procedural instructions be placed in the under oath or under penalty of perjury chose to ignore it (e.g., if the alien had regulations regarding the interview to be U.S. citizens, which are used for previously been issued a refugee travel process at both the secondary inspection persons claiming to be lawfully document through this ‘‘overseas stage and the credible fear 10316 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations determination stage. Although a number establishing that one of the exceptions for that circumstance, the application of these suggestions have been adopted, in section 208(a)(2)(D) applies must would have been filed within the year. others have not. While the Department only be to the ‘‘satisfaction of the Some commenters requested that the appreciates both the necessity for equal Attorney General.’’ The rule also Department clarify that failure to and proper treatment of all cases and contemplates that the asylum officer or establish changed circumstances or the advantages of standardization, it immigration judge hearing such a case extraordinary circumstances might bar must also recognize that not all will explore the reasons for the late an applicant from applying for asylum, situations are identical and the filing. Finally, and importantly, the it does not bar him or her from applying interviewing officer must be allowed a Department has decided to follow the for withholding of removal. The certain amount of flexibility in recommendation that the date of arrival Department agrees and the interim rule conducting interviews to account for used to determine the one-year period contains this clarification. differences in individual situations. in section 208(a)(2)(B), consistent with Some commenters objected to the Convention Against Torture the effective date of that section, be no requirement that an alien who meets the earlier than April 1, 1997. Thus, the first extraordinary circumstances criteria, file Many commenters urged that there be case to which this prohibition could the application ‘‘as soon after the express reference in several parts of the apply would be one filed on April 2, deadline as practicable given those regulation to the non-refoulement 1998. circumstances,’’ preferring instead the obligation under Article 3 of the Regarding the changed circumstances phrase ‘‘within a reasonable time period Convention Against Torture. This article exception in section 208(a)(2)(D), the requires a state not to ‘‘expel, return given those circumstances.’’ The Department has followed the (‘refouler’) or extradite a person to Department has adopted this suggestion recommendation of numerous another state where there are substantial and a similar formulation for the commentators to drop the language grounds for believing that he or she ‘‘changed circumstances’’ exception. limiting this exception, for purposes of would be in danger of being subjected section 208(a)(2)(B), to circumstances ‘‘Asylum-Only’’ Hearings to torture.’’ This article has been in that arise after the one-year period. The effect for the United States since The Department noted a conflict in Department has also decided to provide November 1994. Although Article 3 of the proposed rule between the a better definition of this exception by the Torture Convention itself is not self- provisions of § 208.2(b)(1)(i)(C) and indicating that the definition may executing, the Attorney General has § 252.2(b) regarding crewmembers who sufficient administrative authority to include either changed conditions in the are granted landing permits prior to ensure that the United States observes home country or changes in objective April 1, 1997, and subsequently become the limitations on removal required by circumstances relating to the applicant deportable. The former provision would this provision. In fact, the Service has in the United States, including changes place such alien in ‘‘asylum-only’’ received and considered individual in applicable U.S. law, that create a proceedings before the immigration requests for relief under the Torture reasonable possibility that the applicant judge, while the latter would place him Convention since November 1994 and may qualify for asylum. Because of or her in regular removal proceedings has arranged for relief where inconsistency between the formulation under section 240 of the Act. The appropriate. For the present, the of changed circumstances in section interim rule corrects this conflict by Department intends to continue to carry 208(a)(2)(D) and the formulation in specifying that the ‘‘asylum-only’’ out the non-refoulement provision of section 240(c)(5)(ii) of the Act, which process applies to those crewmembers the Torture Convention through its permits an alien to file a motion to granted landing privileges on or after existing administrative authority rather reopen beyond the time limit normally April 1, 1997. Also, § 208.2(b)(2) has than by promulgating regulations. The applicable to such a motion, the been expanded to explain the Service is, however, developing Department has decided to drop the consequences of failure to appear for an thorough guidelines to address Article 3 requirement that, for purposes of the asylum-only hearing and to set forth issues and intends to issue those prohibition in section 208(a)(2)C), such conditions and limitations on reopening guidelines soon. These guidelines exception may only be raised through a such proceedings. motion to reopen. generally, and the expedited removal Discovery and FOIA Issues process in particular, will be A large number of commenters implemented in accordance with Article requested that the Department list Some commenters expressed concern 3. examples of what is meant by about the statement in 8 CFR 208.12 that extraordinary circumstances within the ‘‘[n]othing in this part shall be Prohibitions on Filing Asylum meaning of section 208(a)(2)(D) of the construed to entitle the applicant to Applications Act, and several commenters suggested conduct discovery directed towards the There were numerous comments on examples that they believed were records, officers, agents, or employees of the prohibitions on the filing of asylum appropriate. Accordingly, the the Service, the Department of Justice or applications in section 208(a)(2) of the Department has included such a list in the Department of States.’’ Specifically, Act. Because of the importance of a the interim rule. It is important to bear they feared that the provision would decision to deny an alien the right to two points in mind when reviewing the preclude someone from seeking, or apply for asylum, the Department has list. First, the list is not all-inclusive, excuse the Service from providing, chosen to adopt the suggestion that only and it is recognized that there are many information under the Freedom of asylum officers, immigration judges, other circumstances that might apply if Information Act (FOIA). This fear is and the BIA be empowered to make the applicant is able to show that but for totally groundless. FOIA provisions are such determinations. The Department such circumstances the application covered under separate statutory and has also made clear that, while the alien would have been filed within the first regulatory bases. The Service is guided must establish by clear and convincing year of the alien’s arrival in the United by 5 U.S.C. 522 and 8 CFR 103 with evidence that he or she applied within States. Second, the alien still has the regard to FOIA matters, neither of which one year of his or her arrival in the burden of establishing the existence of are in any way affected by this United States, the alien’s burden of the claimed circumstance and that but rulemaking. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10317

Persecution for Illegal Departure or § 208.16(c)(3) on those aliens who may that the credible fear standard is a low Applying for Asylum be eligible for relief under section one and that cases of certain types Several commenters objected to the 243(h)(3) of the Act, as amended by Pub. should necessarily meet that standard. proposed elimination of L. 104–132. In particular, these Since the statute expressly defines the § 208.13(b)(2)(ii) and § 208.16(b)(4), commenters object to the notion that the term ‘‘credible fear of persecution,’’ we which require asylum officers and United States may summarily preclude have chosen not to provide in the rule immigration judges to give ‘‘due from eligibility for withholding of a further refinement of this definition. consideration’’ to evidence that the deportation aliens convicted of a However, both INS and EOIR will give government of the applicant’s country of particularly serious crime, including an extensive training to their officials on nationality or last habitual residence aggravated felony, without individually the purpose of the credible fear standard considering their cases. However, it is and how it is to be applied to particular persecutes its nationals or residents if well established in U.S. law that aliens cases. The Department believes that they leave the country without who have been convicted of an such training will ensure that the authorization or seek asylum in another aggravated felony are mandatorily standard is implemented in a way country. These commenters interpreted barred from obtaining withholding of which will encourage flexibility and a this change to mean that the Department deportation. See, e.g., Kofa v. INS, 60 F. broad application of the statutory does not wish to consider seriously such 3d 1084, 1090 (4th Cir. 1995) (en banc). standard. evidence or to grant asylum or In the proposed regulation withholding to persons who are at risk Employment Authorization for Asylum implementing section 243(h)(3) of the of punishment for illegal departure from Applicants Act, the Department decided, consistent their countries or for applying for with the revisions made to the Almost all who chose to comment on asylum abroad. This is not the case. The withholding of deportation statute by the Department’s position regarding Department and the United States the Illegal Immigration Reform and work authorization for asylum Government continue to deplore and Immigrant Responsibility Act of 1996, to applicants were pleased with the oppose certain countries’ practice of make relief under this section available decision to continue to allow the severely punishing their citizens for only to those persons convicted of an applicant to apply for an employment illegal departure or for applying for aggravated felony who receive an authorization document once the asylum in another country. The aggregate sentence of imprisonment of asylum application has been pending Department also acknowledges that less than 5 years. This proposal is for 150 days. One commenter requested persons who face severe punishment for almost entirely consistent with a recent that the 150-day period be abolished, such acts may continue to qualify for precedent decision issued by the BIA on but that suggestion was not deemed asylum or withholding of removal. this issue. See Matter of Q–T–M–T–, Int. viable, especially in light of the new However, the regulation at issue did not Dec. 3300 (BIA 1996). Thus, the statutorily-mandated 6-month minimum clearly implement this policy. First, it Department intends to retain the basic time before granting such authorization requires only that asylum officers and approach in the proposed regulation. contained in section 208(d)(2) of the immigration judges give ‘‘due We have only added a sentence Act. consideration’’ to evidence of such providing that an alien convicted of an The Department has also modified the practices; this is a vague and indefinite aggravated felony shall be presumed to regulations relating to employment standard. Second, it obliges adjudicators have been convicted of a particularly authorization at §§ 208.7(a) and to consider evidence of whether a serious crime. This minor change 274a.12(a)(8) to ensure that applicants country ‘‘persecutes’’ its nationals for renders the regulation fully consistent who appear to an asylum officer to be such actions. Such language begs the with the Board’s decision in Matter of eligible for asylum but have not yet very question that an adjudicator must Q–T–M–T–, supra. received a grant of asylum are able to answer in deciding such a case: Does obtain employment authorization. the alleged punishment amount to Admission of the Spouse and Children Section 208(d)(5)(A)(i) of the Act obliges persecution? It is well-established that of an Asylee the Service, prior to granting asylum, to not all punishment for illegal departure The proposed rule reserved § 208.19 check the identity of the applicant constitutes persecution. See, e.g., Sovich for regulations pertaining to the ‘‘against all appropriate records or v. Esperdy, 319 F. 2d 21 (2d Cir. 1963); admission of the spouse and children of databases maintained by the Attorney Matter of Chumpitazi, 16 I&N Dec. 629 an asylee. This matter was the subject of General and by the Secretary of State (BIA 1978). However, in some cases, it a separate proposed rule published July ** *.’’ Such databases include, among may. Such a question must be resolved 9, 1996, see 61 FR 35,984 (1996) and the others, the Federal Bureau of on a case-by-case basis. Thus, rather Department had intended to incorporate Investigation’s (FBI) fingerprint than continue to have an ambiguous the revised regulations into this interim database. At present, the Service regulation on this issue, the Department rule. However, because analysis of the initiates such a fingerprint check at the believes its adjudicators should apply comments to that earlier proposed rule time it grants asylum; if the check turns the same standards to these cases as has not been completed, the Department up information that undercuts that they would to any other case in which will instead redesignate the existing decision, asylum is later revoked. The the applicant claims a fear that derives regulations at § 208.21 as § 208.19. The Service’s experience is that the FBI’s from governmental prosecution. This is revised regulations on the admission of fingerprint checks often take a best accomplished by removing the the spouse and children of an asylee significant period of time to complete. provisions in question from the will be incorporated into the final The new statutory requirement at regulations. regulations, which will be published section 208(d)(5)(A)(i) of the Act thus after the expiration of the comment means that after April 1, 1997, an alien Exception to the Prohibition on period for this interim rule. who would otherwise appear to be Withholding of Deportation in Certain eligible for asylum may have to wait for Cases Credible Fear Standard a long period of time before he or she Several commenters objected to the Several commenters urged that we can be granted asylum or employment proposed rule’s limitation in adopt regulatory language emphasizing authorization. (A similar problem may 10318 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations arise in the case of an alien who is suspected of qualifying for expedited procure (or has sought to procure or has determined to be a refugee under the removal ‘‘may’’ be eligible, and that the procured) a visa, other documentation, new language in section 101(a)(42) of information should be given before the or admission into the United States or the Act but is precluded from being secondary inspection pre-screening other benefit provided under this Act granted asylum because of the cap in process. ** *,’’ as well as aliens who falsely section 207(a)(5) of the Act.) Such a To understand the Service position on represent themselves to be citizens of result is contrary to one of the chief this issue, one must understand the the United States. In addition to the purposes of the asylum reforms brought general inspection process. All persons presentation of fraudulent documents, about by the regulatory changes of entering the United States at ports-of- the falsity of which may not be verified January 1995: to ensure that bona fide entry undergo primary inspection. U.S. until a thorough examination has been asylees are eligible to obtain citizens are exempt from the inspection conducted, the fraud and employment authorization as quickly as process, but must nevertheless undergo misrepresentation referenced in this possible. Thus, consistent with the an examination to determine section may include falsehoods told by authority in section 208(d)(2) of the Act, entitlement to exemption from the alien concerning his or her the Department has decided to make inspection. In FY 96, the Service admission or other misrepresentations employment authorization available to conducted more than 475 million told to Government officials now or in asylum applicants who are primary inspections. During the primary the past. recommended for a grant of asylum but inspection stage, the immigration officer Section 212(a)(7) of the Act, in have not yet received such grant of literally has only a few seconds to addition to covering a lack of valid asylum or withholding. An alien may examine documents, run basic lookout documents (including expired or apply for employment authorization queries, and ask pertinent questions to incorrect visas or passports), also under these provisions as soon as he or determine admissibility and issue encompasses the alien ‘‘who is not in she receives notice of the grant relevant entry documents. At most land possession of a valid unexpired recommendation. border ports-of-entry, primary immigrant visa.’’ Under immigration inspection duties are shared with U.S. law, aliens who cannot establish Credible Fear Determinations and Customs inspectors, who are cross- entitlement to one of the nonimmigrant Claims of Asylum or Fear of designated to perform primary categories contained in the Act are Persecution by Alien Subject to immigration inspections. If there appear presumed to be immigrants, and, if not Expedited Removal to be discrepancies in documents in possession of a valid immigrant visa, Under the new section 235(b)(1)(A)(ii) presented or answers given, or if there are inadmissible under section 212(a)(7) of the Act, an alien subject to expedited are any other problems, questions, or of the Act. The majority of the aliens removal who indicates an intention to suspicions that cannot be resolved currently found inadmissible to the apply for asylum or who expresses a within the exceedingly brief period United States fall into this category and fear of persecution will be referred to an allowed for primary inspection, the will now be subject to expedited asylum officer to determine if the alien person must be referred to a secondary removal. Again, inadmissibility under has a credible fear of persecution. Many inspection procedure, where a more this ground often cannot be determined commenters stated that the regulation in thorough inquiry may be conducted. In until the secondary inspector has § 235.3 was not sufficiently detailed in addition, aliens are often referred to thoroughly questioned the alien. delineating the following procedures for secondary inspection for routine To fully advise, prior to any recognizing and referring arriving aliens matters, such as processing immigration secondary questioning, nearly all aliens who may be genuine refugees fleeing documents and responding to inquiries. referred to secondary inspection of the persecution: disclosures to arriving While millions of aliens (almost 10 expedited removal procedures and of aliens; conditions of secondary million in FY 96) are referred to the possibility of requesting asylum inspection; use of interpreters; secondary inspection each year for would needlessly delay the millions of representation during secondary many reasons, approximately 90 percent aliens who are ultimately found inspection; written record of of these aliens are ultimately admitted admissible after secondary questioning. proceeding; time and place of credible to the United States in a very short For almost all of these people, asylum, fear interview; detention pending a period of time once they have been fear of persecution, or fear of return is determination of credible fear; and interviewed and have established their not an issue. detention following a determination of admissibility. The Service has very carefully credible fear. We will address these The secondary officer often does not considered how best to ensure that bona concerns individually. know if an alien is likely to be removed fide asylum claimants are given every under the expedited removal process opportunity to assert their claim, while Disclosures to Arriving Aliens until he or she has questioned the alien. at the same time not unnecessarily Many commenters expressed the Congress, in drafting the expedited burdening the inspections process or opinion that all arriving aliens should removal provisions, chose to include encouraging spurious asylum claims. be provided with information both section 212(a)(6)(C) and 212(a)(7) Service procedures require that all concerning the credible fear interview. of the Act as the applicable grounds of expedited removal cases will be This contention is based on the inadmissibility. The common documented by creation of an official language of the statute in section perception is that most expedited Service file, to include a complete 235(b)(1)(B)(iv) that states: ‘‘The removal cases will involve obvious sworn statement taken from the alien Attorney General shall provide fraudulent documents, or aliens arriving recording all the facts of the case and information concerning the asylum with no documents at all. This is not the reasons for a finding of interview described in this necessarily the type of case that most inadmissibility. This sworn statement subparagraph to aliens who may be frequently falls within the provisions of will be taken on a new Form I–867AB, eligible * * *.’’ The commenters’ sections 212(a)(6)(C) and (7) of the Act. Record of Sworn Statement in position is that this requirement is not Section 212(a)(6)(C) of the Act includes Proceedings under Section 235(b)(1) of limited only to aliens who ‘‘are’’ ‘‘any alien who, by fraud or willfully the Act. The form will be used in every eligible, but that all aliens who are misrepresenting a material fact, seeks to case where it is determined that an alien Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10319 is subject to the expedited removal Service has always made every effort to immigration inspection and issuance of process, and contains a statement of afford as much privacy during sensitive the order. Therefore, the Department rights, purpose, and consequences of the or complex interviews as conditions will retain its interpretation that an process. Among other things, it clearly allow, and will continue to do so. alien in primary or secondary advises the alien that this may be the As for delaying the secondary inspection is not entitled to only opportunity to present information interview to allow every alien time to representation, except where the person concerning any fears or concerns about rest prior to being questioned, the has become the focus of a criminal being removed from the United States, Service again points out that it conducts investigation and has been taken into and that any information concerning more than ten million secondary custody for that purpose. that fear will be heard confidentially by inspections each year. Most of those another officer. The final page of the questioned are eager to have their Written Record of Proceeding form contains a standard question inspection completed as quickly as Several commenters expressed asking if the alien has any fear or possible. The Department has neither concern that there be a complete record concern of being removed or of being the resources nor the authority to detain of proceeding to ensure that Service sent home. If, during the course of the all secondary referrals without first officers are making proper decisions. As sworn statement, or at any time in the conducting a prompt interview to previously explained, an official Service process, the alien indicates a fear or determine inadmissibility. file will be created on every expedited concern of being removed, he or she Use of Interpreters removal case. The file will include will be given a more detailed written photographs, fingerprints, copies of any The issue of language barriers and the explanation of the credible fear documentary or other evidence use of interpreters is not new to the interview process prior to being placed presented or discovered, and a complete Service. The Service makes use of in detention pending the credible fear written sworn statement. The sworn interview. The Inspector’s Field Manual interpreters whenever necessary and will continue to do so to ensure that all statement will record all facts of the will contain detailed instructions and case and the alien’s statements. As with guidance to officers to assist them in aliens are fully apprised of the proceedings against them. The Service all sworn statements taken by the recognizing potential asylum claims, Service, the alien is required to initial and this topic will also be covered in currently uses its own officers, many of whom are bilingual or multilingual, each page and any corrections, and sign officer training. Every expedited the statement certifying that he or she removal case also undergoes airport personnel, or telephonic interpretive services when in-person has read (or had read to him or her), the supervisory review before the alien is statement and that it is true and correct. removed from the United States. The interpreters are not available. Occasionally, family members or When necessary, interpreters will be Service is confident that these used. The language added to the safeguards will adequately protect persons waiting to meet the arriving alien may be allowed to assist in regulation at § 235.3(b)(2) requires that potential asylum claimants. To ensure such sworn statement be taken in every that these procedures are followed in translation of the interview. The Service will use appropriate means to ensure case. Procedures developed for the every expedited removal case, language Inspector’s Field Manual also contain has been added to § 235.3(b)(4) that aliens being removed are advised of very specific instructions regarding the outlining the procedures. and understand the reasons for the removal and the consequences of such record of proceeding. Conditions of Secondary Inspection removal. Time and Place of Credible Fear Representation During Secondary Interview Numerous commenters indicated that Inspection the secondary inspection should be Several commenters requested that conducted in private, comfortable Several commenters stated that an the regulations state where and when rooms, and that no secondary inspection alien subject to expedited removal the credible fear interviews will take should take place before an alien has should be able to obtain representation place. The statute provides that credible had time to rest (some commenters or counsel prior to any secondary fear interviews may take place either at suggested 24 hours), eat, and consult inspection interview. As discussed in a port-of-entry or at other locations that with family, friends, counsel, or other the section on disclosures to aliens in the Attorney General may designate. representatives. The commenters also expedited removal, the secondary The Service intends that most suggest that aliens should have access to inspection officer often does not know interviews will be conducted at Service interpreters before and during the that an alien will be subject to expedited detention facilities, but prefers the screening process. removal until such questioning has flexibility to make adjustments to this At airports, the inspection facilities taken place, nor will all determinations arrangement as the need arises. for the Federal Inspection Services of inadmissibility under section Therefore, this operational concern will (FIS), which includes the Service, U.S. 212(a)(6)(C) or (7) of the Act result in an not be addressed in the regulation. The Customs Service, the U.S. Department of expedited removal order. Section 292 of Service maintains detention facilities Agriculture, and the U.S. Public Health the Act provides that in any removal near several major airports such as JFK, Service, are provided by the airport proceeding before an immigration judge, Miami, and Los Angeles, as well as authorities. While the Government has the person concerned shall have the many locations along the southern input when new facilities are privilege of being represented by border and other sites like Denver, constructed, the inspection areas, counsel, at no expense to the Seattle, and Houston. In circumstances especially in older airports, simply do Government. Congress did not amend where the port of arrival is not near a not allow for the amenities suggested by this section to include proceedings Service detention facility and it is the commenters. The same is true for before an immigration officer. In impractical to transport the alien to a land border ports, where the facility is addition, while Congress specifically Service facility, the alien may be usually provided by the General provided for consultation prior to the detained in other Service-approved Services Administration and overall credible fear interview, it did not detention sites, such as local or county space is often extremely limited. The provide for consultation prior to the jails. In these instances an asylum 10320 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations officer will travel to the detention site in exclusion proceedings after April 1, the Act provides that if an asylum to conduct the interview. 1997. officer determines that an alien has a Several commenters suggest that the credible fear of persecution, the alien Review of Credible Fear Determinations Service should conduct credible fear ‘‘shall be detained for further interviews at its local asylum offices The proposed regulation provides that consideration of the application for whenever possible. The Service declines an alien may receive, upon request, asylum. The remainder of section 235(b) to be bound by this suggestion because review by an immigration judge of an of the Act is very specific as to what of the prohibitive costs involved in asylum officer’s finding of no credible procedures should be followed if an transporting aliens, under escort, to and fear. A number of commenters requested alien does not establish a credible fear. from detention facilities. However, the that language be inserted in the interim However, the statute is silent as to the Service retains the option to conduct regulation which presumes that an procedures for those who do interviews at places designated for asylum officer’s finding of no credible demonstrate a credible fear of asylum officers. fear will be reviewed by an immigration persecution. Once an alien establishes a Similarly, the Service intends that judge unless the alien desires to credible fear of persecution, the purpose aliens will normally be given 48 hours abandon the review and return to his or behind the expedited removal from the time of arrival at the detention her home country. If such a suggestion provisions of section 235 of the Act to facility, in which to contact family is not adopted, these commenters screen out arriving aliens with members, friends, attorneys, or request that, at a minimum, language be fraudulent documents or no documents representatives. During the referral inserted requiring that the asylum and with no significant possibility of process from the port-of-entry, they will officer advise the alien of his or her establishing a claim to asylum has been be given a list of pro bono right to request review of the negative satisfied. Therefore, the further representatives. This list is provided for decision and requiring the officer to ask consideration of the application for the purpose of consultation prior to the the alien whether he or she desires such asylum by an alien who has established interview, and does not entitle the alien review. The language of section a credible fear of persecution will be to formal counsel or representation 235(b)(1)(B)(iii)(III) of the Act clearly provided for in the context of removal during the credible fear interview. The provides that the alien has the proceedings under section 240 of the aliens will be given access to a obligation to request review of a Act. telephone to make such contacts. negative credible fear determination. Commenters suggest that aliens be given The Department notes that § 208.30(e) of Detention Following a Determination of petty cash or be permitted to make the proposed regulation requires the Credible Fear telephone calls at Government expense; asylum officer to inquire whether the Numerous commenters stated that however, the statute that provides for alien wishes review of the negative aliens who have established a credible such consultation specifically states that credible fear determination. This fear of persecution are presumptively the consultation shall be at no expense provision is appropriated into Form I– eligible for release and should not be to the Government. 589. detained unless the government can A number of commenters asked that demonstrate that the alien poses a Detention Pending a Determination of the regulation provide that, whenever danger to the community or a risk of Credible Fear practicable, the credible fear review be flight. Some stated that the burden A few commenters stated that the conducted in person; that the alien may should be on the government to prove provisions of § 235.3(b)(4) for detention be assisted by an attorney or other that custody is necessary. Again, the of aliens awaiting a credible fear representative; and that an interpreter clear language of the statute states that determination are too harsh, and asked be provided when necessary. Another such aliens shall be detained. The that the rule be amended to allow for commenter stated, however, that no parole provisions of section 212(d)(5) of parole of such aliens. However, because counsel should be allowed in the review the Act provide discretionary authority section 235(b)(1)(B)(iii)(IV) of the Act of credible fear determinations; rather, a to the Attorney General to parole into requires that an alien in expedited representative should be allowed to the United States or from custody only removal proceedings ‘‘shall be detained submit a written statement. The on a case-by-case basis. The credible pending a final determination of Department recognizes the concerns fear standard sets a low threshold of credible fear of persecution and, if raised by these commenters. However, proof of potential entitlement to asylum; found not to have such a fear, until because the proposed regulation sets many aliens who have passed the removed,’’ the Department feels that forth a procedure for credible fear credible fear standard will not parole is appropriate only in the very review that is consistent with the ultimately be granted asylum. It should limited circumstances specified in language of section 235(b)(1)(B)(iii)(III) also be noted, as stated by one § 235.3(b)(4). The interim rule has been of the Act and provides the Attorney commenter, that these aliens are prima amended, however, to clarify that aliens General the flexibility to administer facie inadmissible to the United States. found to have a credible fear will be such a procedure, the rule was not However, the Department intends, as subject to the generally applicable changed. part of the credible fear interview detention and parole standards One commenter asserted that the process, to assess the eligibility for contained in the Act. Although parole proposed regulation that provides for an parole of aliens who have been authority is specifically limited while a alien who demonstrates a credible fear determined to have a credible fear. The credible fear determination is pending of persecution to be placed in removal discretion to release from custody will under § 235.3(b)(4), those found to have proceedings under section 240 of the remain with the district director on a a credible fear and referred for a hearing Act is incorrect. The commenter case-by-case basis. under section 240 of the Act will be maintains that IIRIRA contemplates that subject to the rule generally applicable such aliens will be limited to an Effect of Initiation of Removal to arriving aliens in § 235.3(c). In ‘‘asylum only’’ hearing with an appeal Proceedings addition, § 235.3(c) has been amended to the Board. This portion of the Several commenters objected to the to retain detention authority for aliens regulation will not be changed in the language in section 239.3 providing that whose admissibility will be determined interim rule. Section 235(b)(1)(B)(ii) of the filing of a notice to appear has no Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10321 effect in determining periods of if the alien departed the United States before, and specifically imposed those unlawful presence. These commenters after issuance of that order. The limits on the alien only. The interim noted that this section of the regulation commenters assert that if a petition for regulations will not be changed. could be interpreted to mean that the review of habeas corpus is successful, One commenter suggested that the period of time a respondent is in the petitioner should be lawfully time and numerical limitations for removal proceedings is not a period entitled to reopen his or her removal motions to reopen should be broader ‘‘authorized by the Attorney General,’’ case, even though he or she departed than changed country conditions, as which would mean that removal from the United States. They argue that provided in § 3.23(b)(4). The commenter proceedings would not toll the running such motions will promote judicial asserted that IIRIRA contains a much of time periods for purposes of the bars efficiency and economy. broader exception for individuals to to admission in section 212(a)(9)(B) of The Department has decided not to apply for asylum beyond the one year the Act. The result, the commenters adopt this suggestion and the interim deadline and that it is inconsistent for assert, would be that people would be regulations will not be changed. No the statute to provide these broader compelled to abandon their legitimate provision of the new section 242 of the exceptions if eligible applicants will be claims for relief from removal because, Act supports reversing the long barred from applying for asylum by pursuing such relief before an established rule that a motion to reopen because of the stricter motion to reopen immigration judge or on appeal to the or reconsider cannot be made in standard. As noted earlier, the Board, an individual would risk immigration proceedings by or on behalf Department has decided to drop the accruing over 180 days in ‘‘unlawful of a person after that person’s departure requirement that the changed status’’ and thereby becoming from the United States. circumstances exception to the one year filing deadline in section 208(a)(2) of inadmissible under section Departure Constituting Withdrawal of the Act be raised only through a motion 212(a)(9)(B)(i)(I) of the Act. The Motion commenters recommended that either to reopen. The Department also notes this language in section 239.2 be deleted In the proposed regulation, § 3.2(d) that the standard for reopening an or that it be replaced by a statement that did not provide that departure from the asylum case provided in 8 CFR the filing of a notice to appear tolls the United States after the filing of a motion 3.23(b)(4) is entirely consistent with the period of unlawful presence. to reopen or a motion to reconsider asylum reopening standard provided in Upon review, the Department has constitutes a withdrawal of such IIRIRA. concluded that the regulation will be motion. The Department has Retention of September 30, 1996 Cut- retained without change in the interim reconsidered the advisability of Off Date on Filing Certain Motions rule. Section 212(a)(9)(B)(iv) of the adjudicating motions to reopen and statute is clear that any period of illegal reconsider subsequent to an alien’s Some commenters indicated that presence may tolled only in very limited departure from the United States. The § 3.2(c)(2) does not retain the September circumstances. This section of the interim regulation retains the long 30, 1996 cut-off date for earlier motions statute does not include issuance of a established principal that any departure to reopen, while the proposed section charging document among those subsequent to moving to reopen or 3.2(b)(2) does retain the July 31, 1996 circumstances. The Department does reconsider constitutes a withdrawal of cut-off date for earlier motions to not agree that application of this section that motion. The Department believes reconsider. The commenters point out will deter aliens from pursuing valid that the burdens associated with the that although these dates have passed, claims for relief in removal proceedings. adjudication of motions to reopen and they should be retained to ensure the The same forms of relief, including reconsider on behalf of deported or rights of respondents who submitted asylum and adjustment of status, remain departed aliens would greatly outweigh timely motions that have not yet been available in such cases, even after any advantages this system might adjudicated. Since the commenters passage of the 180 day and one year render. Further, the Department is demonstrate that the cut-off date in time limits. Similarly, availability of confident that the immigration judge’s §§ 3.2(c)(2) and 3.23(b)(1) are not voluntary departure is unchanged. discretionary authority to stay the necessarily obsolete references, those Further clarification of the applicability deportation or removal of an alien who sections are revised in the interim of section 212(a)(9) will be included in has filed a motion to reopen or regulation to retain the appropriate cut- a separate proposed rule which the reconsider will safeguard an alien from off dates. Service is currently drafting. being inappropriately deported before Immigration Court Rules of Procedure Motions to Reopen After Departure he is heard on his motion to reopen or motion to reconsider. One commenter noted that § 3.12 From United States omitted disciplinary proceedings under A few commenters recommended that Time and Numerical Limitations on § 292.3 from the scope of the rules of motions to reopen be permitted after Filing Motions Immigration Court procedure. The departure and that the Department A number of commenters pointed out commenter correctly noted that no delete the language in § 3.2(d) of the that §§ 3.2(d) and 3.23(b) subject all explanation had been given as to why proposed rule providing that motions to parties to time and numerical limits for disciplinary proceedings were omitted reopen or reconsider cannot be made by motions to reopen in deportation and from the scope of the rules. Section or on behalf of a person after that exclusion proceedings, but apply those 292.3 is currently being revised by EOIR person’s departure from the United limits only to aliens in removal and will ultimately be moved into 8 States. These commenters contend that proceedings. These commenters argue CFR 3. It was thought that the this regulation is no longer valid that the same limitations should apply disciplinary proceedings regulations because IIRIRA substituted former to all parties in all proceedings. would have been revised and moved section 106(c) of the Act with new IIRIRA specifically mandates that into part 3 prior to publication of this section 242. New section 242 of the Act ‘‘[a]n alien may only file one motion to interim regulation and that a reference does not contain the provision of former reopen’’ in removal proceedings. to § 292.3 would not be necessary. The section 106(c) barring judicial review of Congress has imposed limits on motions disciplinary proceedings regulation, a final order of deportation or exclusion to reopen, where none existed by statute however, is still in progress. The interim 10322 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations rule will therefore place the reference to One commenter expressed concern motion for reconsideration of that disciplinary proceedings pursuant to that § 240.10 of the proposed regulation decision or to prepare a notice of appeal § 292.3 back into § 3.12. does not cross-reference § 236.1(e). with sufficient specificity to prevent a One commenter claimed that Section 236.1(e) requires that every summary dismissal by the Board under § 3.25(b), which allows the immigration detained alien be notified that he or she § 3.1(d)(1)(1–a) of the regulations. The judge to waive a hearing and enter a has the privilege of communication with Department disagrees. The proposed decision upon a stipulated request for consular authorities. The commenter regulation allows for an adequate that order, raises due process concerns proposed that § 240.10 require the articulation of the immigration judge’s because the provision requiring an Service to determine whether the alien basis for his or her decision as well as immigration judge to determine that the is covered by § 236.1(e) and therefore the underlying reasons for granting or alien’s waiver is voluntary, knowing must have an opportunity to contact the denying the request. The rule provides and intelligent is not an adequate consular officer before a responsive sufficient information for the safeguard. The interim rule does not pleading. The Service is required to respondent to prepare a notice of appeal change this provision. The requirement comply with this requirement before with sufficient specificity to prevent a that the immigration judge determine if commencement of removal proceedings. summary dismissal of appeal. For these an unrepresented alien’s waiver is In the unlikely event that the Service reasons this section has not been voluntary, knowing and intelligent failed to comply with this requirement, changed in the interim rule. before granting a stipulated request for such a procedure could unduly delay an Other comments regarding procedures an order safeguards against an otherwise routine removal case. Contact are not discussed individually and have imprudent waiver of a formal with a consular officer is unlikely to not been adopted in this interim rule. adjudication on the part of an have any bearing on a respondent’s Most recommended changes to existing unrepresented alien. Further, the inadmissibility or deportability. The procedures or commented on matters request for the order and waiver of the delay in the proceedings and its which directly resulted from changes to hearing must not only be stipulated to attendant cost would generate little the law itself. These comments will be by both the alien and the Service, but substantive benefit for the alien as a reviewed and considered in greater must also be approved by the result. detail when the final rule is prepared. One commenter expressed concern immigration judge. If an immigration Guardian Ad Litem judge is confronted with a stipulated over provisions in § 240.10(g) implementing section 241(b) of the Act. In the proposed rulemaking, the request raising due process concerns, he Those provisions allow the Attorney Department solicited comments on the or she may examine that request in the General to remove an alien to a country advisability of procedures for context of a hearing. other than as designated by the alien appointment of guardians ad litem. Comments Relating to Removal under certain circumstances. The Several thorough and detailed Hearings Under Section 240 of the Act commenter suggests a 30-day waiting comments were received. Because the period for removal from the time the issue is a complex and sensitive one, the Several commenters were concerned alien is given notice of the new country Department has decided to further with various aspects of the ordinary of removal. The Service has considered examine the issue and prepare a removal hearing process. One aspect of this suggestion and has decided not to separate rulemaking at a later date. the removal process that received change this provision in the interim Cancellation of Removal several comments was the method of rule. This procedure is not required by service of Form I–862, Notice to Appear. the Act, and would place a significant A number of commenters expressed Specifically, commenters were strain on detention resources. concern with section 240.20(b) of the concerned that service of the notice to Another commenter argued that proposed regulation, which states that appear by regular mail would be provisions in § 240.7(a) relating to the an application for cancellation of inadequate. A few commenters have admissibility of prior statements in removal may be filed only with the assumed that because service by removal proceedings were unnecessary. Immigration Court after jurisdiction has certified mail is not required in all Specifically, the commenter was vested pursuant to section 8 CFR 3.14. cases, it will not be used in any case. concerned about criminal pleas Section 3.14(a) provides that Both the statute and the regulations, resulting in less than a criminal jurisdiction vests when a charging however, allow for service by regular conviction and their effect on removal document is filed with the Immigration mail only when personal service is ‘‘not proceedings. It is always within the Court by the Service. The practical practicable.’’ Moreover, because the authority of the immigration judge to concern raised by the commenters arise regulatory provisions at issue follow assign the statement a proper weight. if the Service serves Form I–862, Notice exactly the requirements of the Act, Moreover, this provision was carried to Appear, on a respondent but does not these provisions have not been changed over from the prior regulations where it file it with the Immigration Court. If the in the interim rule. formerly existed at § 242.14(c). Thus, Service does not file a notice to appear Commenters expressed concern over this section has not been changed in the which has been served, a respondent the provision at § 240.8(d) that states interim rule. would not have access to the that it is the alien’s burden to establish Several commenters requested that Immigration Court to obtain forms of that mandatory grounds for denial of § 240.12(a) of the proposed regulation relief such as cancellation of removal or any application for relief do not apply. include language that was in former adjustment of status. Moreover, the It is well-settled that an alien bears the § 242.18(a) requiring that the decision of service of the notice to appear will cut burden of establishing eligibility for an immigration judge ‘‘shall include a off the accrual of time in continuous relief or a benefit. This provision merely discussion of the evidence and findings residence or continuous physical reflects this well-settled rule. Also, an as to deportability [inadmissibility].’’ presence for that respondent under new alien is only required to establish The commenters assert that such section 240A(d)(1) of the Act. The eligibility by a preponderance of the findings and discussion of the evidence commenters proposed that language be evidence. This provision has not been is necessary for the respondent to added to § 3.14(a) of the regulation changed in the interim rule. properly determine whether to file a allowing for jurisdiction to vest and Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10323 proceedings to commence when a goal the accreditation of each of its hearings before an immigration judge, charging document is filed by the facilities. The Krome Service Processing while arriving aliens do not. This Service or by a respondent. The Center (SPC) has received accreditation procedure maintains the status quo commenters added that § 3.14(a) already with commendation from the Joint regarding release decisions for aliens in permits immigration judges to conduct Commission of Healthcare proceedings, as discussed in the bond proceedings and credible fear Organizations (JCHO), the most supplementary information of the determinations without a charging prestigious medical accreditation that proposed regulation. document being filed with the court. can be awarded. Currently, six SPCs are One commenter stated that no Thus, they assert, there is no rational accredited by the National Commission criminal alien may be released pursuant basis to permit the initiation of those on Correctional Health Care (NCCHC), to the Transition Period Custody Rules two types of proceedings and not permit and accreditation is pending at the in section 303(b)(3) of IIRIRA where an immigration judge to consider an remaining three SPCs. The Denver there is sufficient space to detain the application for cancellation of removal contract facility is also NCCHC after a respondent files a charging accredited. Six contract facilities have individual alien. The same commenter document that previously has been American Correctional Association stated that it was not the intention of served on the respondent by the Service. (ACA) accreditation and two others Congress that EOIR continue to exercise The ability to file a charging document have begun the accreditation process. bond redetermination authority under has rested exclusively with the Service Several commenters stated that the the Transition Rules. Aside from the for a number of years, without problem. Service should require ACA standards classes of aliens covered by the This portion of the proposed regulation in local detention facilities used. Transition Rules, however, the basic will not be changed in the interim rule. Approximately 46 percent of the structure of the Rules is essentially that The issue of the initiation of removal detention space used by the Service is of section 242(a)(2) of the Act as it stood proceedings lies within the with state and local facilities. Formal prior to AEDPA, providing for the prosecutorial discretion of the Service. ACA accreditation of a state or local release of ‘‘lawfully admitted’’ criminal The Service needs to have control over facility is a matter for the state or local aliens (as well as unremovable criminal when charging documents are filed with government. The Service could not meet aliens), in the exercise of the Attorney the Immigration Courts in order to best its detention requirements by using only General’s discretion, when such aliens manage its administrative resources. facilities that have been formally can demonstrate the absence of a danger accredited. The Service has established to the community or a flight risk upon Apprehension, Custody, and Detention its own rigorous inspection program release. The Department intends to issue of Aliens that uses ACA standards for evaluation a separate proposed rule in the near The IIRIRA extended the mandatory of a facility. The Service will not use a future establishing both substantive detention provisions to additional facility that fails to pass our inspection. limitations and procedural safeguards classes of inadmissible and deportable Several commenters stated that § 236 concerning the release of criminal aliens aliens but provided an exception for of the proposed rule as written is a eligible to be considered for release certain witnesses. It also allowed the reversal of long established procedure under the Transition Rules. Attorney General the option of a that provides that a noncriminal alien is Accordingly, the interim rule has not transition period for implementation of presumptively eligible for release. The been modified. mandatory detention. The Service Service has been strongly criticized for exercised this discretion and its failure to remove aliens who are not Expedited Deportation Procedures for implemented the transition period detained. A recent report by the Aliens Convicted of Aggravated custody rules on October 9, 1996, Department of Justice Inspector General Felonies Who Are Not Lawful effective for 1 year. This interim rule shows that when aliens are released Permanent Residents amends the regulations to comply with from custody, nearly 90 percent abscond The interim rule amends the Service’s the amended Act by removing the and are not removed from the United regulations to comply with the Act, as release from custody provisions for States. The mandate of Congress, as amended, by: including aliens who have aliens who may no longer be released. evidenced by budget enhancements and lawful permanent residence on a These amendments to the regulations other legislation, is increased detention conditional basis under section 216 of will take effect upon the termination of to ensure removal. Accordingly, because the Act as being subject to expedited the transition period. As for non- the Service believes that the regulation administrative deportation procedures; criminal aliens, the rule reflects the new as written is consistent with the intent removing references to prima facie $1,500 minimum bond amount of Congress, the interim rule has not eligibility for relief; and eliminating specified by IIRIRA. Despite being modified the proposed rule in this references to release from custody, since applicants for admission, aliens who are regard. present without having been admitted Several commenters noticed a aliens subject to these proceedings are or paroled (formerly referred to as aliens discrepancy between the discussion in now statutorily ineligible for release as who entered without inspection) will be the supplementary information and the a result of changes to other sections of eligible for bond and bond substance of § 236.1(c)(5) of the the Act. redetermination. proposed regulation. The Several commenters addressed the Several commenters complained that supplementary information stated the time period for response, the role of the the Service has no national standards of Department’s intended approach, and deciding Service officer, the risk of detention. They stated that policies, clause (i) of the proposed regulation was deporting U.S. citizens or permanent practices, and decisions regarding in error. Accordingly, the interim rule residents, and other aspects of the outside communication are bewildering, removes paragraph (c)(5)(i) of § 236.1 procedure. These procedures were not arbitrary, and inconsistent. Consistent and renumbers the remaining changed from the regulation as it was with its focus on providing safe, secure, paragraphs (c)(5)(ii), (iii), and (iv). The written at § 242.25. These comments and humane detention environments, effect of this change is that inadmissible were previously addressed when the the Service has implemented detention aliens, except for arriving aliens, have regulation was published on August 24, facility improvements and has set as a available to them bond redetermination 1995. 10324 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Voluntary Departure and Employment of the voluntary departure provisions by EOIR and the Service for extended Authorization contained in the proposed rule. One periods of time. With grants and The proposed rule outlined how commenter stated that ‘‘it would be extensions of voluntary departure for voluntary departure would be handled unlawful to extend or renew voluntary extended periods of time, it was at various stages of proceedings. Since departure beyond the single period of 60 reasonable to allow for employment new section 240B of the Act and the or 120 days specified in that section.’’ authorization. Now, voluntary departure corresponding proposed regulations Another commenter stated that ‘‘These is limited to a maximum of 120 days. represented a significant departure from changes represent nothing more or less Moreover, it has long been recognized the predecessor provisions for voluntary than what has been mandated by that employment provides a magnet that departure, public comments regarding Congress, and there is no basis on which draws aliens to this country. Voluntary the Department’s approach to they can be substantively altered or departure provides an opportunity for implementation of this provision were amended in the promulgation of the an alien to complete the process of interim rule.’’ departure from the United States and particularly welcomed. In its proper form, voluntary Several commenters wrote in should not be seen as a new opportunity departure serves several functions. First, opposition to the language in § 240.25 for employment authorization. Although it allows the Service to allocate its providing that ‘‘[t[he Service may attach the granting of voluntary departure will enforcement resources more efficiently to the granting of voluntary departure not, in and of itself, cause any through case management. Second, it any conditions it deems necessary to previously approved employment saves resources by allowing aliens to ensure the alien’s timely departure from authorization to be terminated, neither depart at their own expense rather than will the granting of voluntary departure the United States.’’ Many based their at the expense of the government. provide a new opportunity to apply for opposition on their contention that the Finally, it benefits the aliens involved employment authorization. Therefore, language was ‘‘beyond the scope of the by allowing them to avoid the harsh the interim rule will eliminate the legislation.’’ However, a similar consequences of a formal order of general provision found at provision already exists in regulation. removal. Too often, however, voluntary § 274a.12(c)(12) for employment The present § 242.5(b) states that departure has been sought and obtained authorization for aliens who have been ‘‘officers * * * may deny or grant the by persons who have no real intention granted voluntary departure. application and determine the to depart. The IIRIRA was intended as Employment authorization will be conditions under which the alien’s a comprehensive reform of the retained only for beneficiaries of the departure shall be effected.’’ Similarly, immigration system and was Family Unity Program (section 301 of current § 244.1 states that voluntary specifically designed to curb abuses of the Immigration Act of 1990, Pub. L. departure may be authorized ‘‘under voluntary departure. A reading of the 101–649). such conditions as the district director voluntary departure provisions allowing Several commenters expressed shall direct.’’ Basically, the language of for extensions of voluntary departure in concern about the consequences for the proposed rule merely stated what multiple increments of 120 or 60 days certain abused immigrant spouses and was already in regulation. In addition, it inconsistent with the purpose of the children of lawful permanent residents is noted that voluntary departure is a statute and would be at best difficult to with properly filed self-petitions who privilege granted by the Service and is reconcile with the language of section were granted voluntary departure and not an entitlement to be claimed by the 240B of the Act. work authorization pending availability alien. An alien must establish both that Prior to IIRIRA, the authority for of an immigrant visa. The Department he or she is statutorily eligible for voluntary departure was found in shares the concerns of the commenters voluntary departure and that he or she section 244(e) of the Act, which and is looking at how best to address merits voluntary departure in the contained no time limitation. Now, for them outside the context of voluntary exercise of discretion. See Matter of the first time, there are statutory departure. Seda, 17 I&N Dec. 550 (BIA 1980). The restrictions limiting the time for which Several commenters objected to the ability to attach conditions to a grant of voluntary departure may be authorized. provisions for appeals, generally stating voluntary departure is necessary to the The Conference Report on H.R. 2202 that the Service could appeal approvals, Service’s ability to consider the request stated that under section 240B(a) of the yet aliens cannot appeal denials. In and is fully consistent with the intent of Act, ‘‘[p]ermission to depart voluntarily § 240.25 (voluntary departure by the Congress in enacting section 240B of the under this subsection shall not be valid Service), the appeal procedure at Act, which tightens the previously for a period exceeding 120 days * * *.’’ paragraph (e) states that a denial of an applicable voluntary departure Similarly, the Conference Report stated application for voluntary departure may provisions in order better to assure that under section 240B(b) of the Act, not be appealed, but such denial shall actual departure. Therefore, the ‘‘[t]he period for voluntary departure be without prejudice to the alien’s right language will not be changed for the cannot exceed 60 days * * *. The to apply to the immigration judge in interim rule. Department concludes that the total accordance with § 240.26. Section Several commenters objected to the period, including all extensions, may 240.26(g)(1) (voluntary departure by maximum time limits for voluntary not exceed 120 days for voluntary EOIR) places limitations for appeals departure of 120 days prior to departure granted prior to completion of only on the Service, and places none on completion of removal proceedings, and proceedings or 60 days for voluntary the alien. Section 240.26(g)(2) discusses 60 days at the completion of removal departure granted at the conclusion of an appeal of a grant or denial of proceedings. Those commenters proceedings. voluntary departure. Therefore, the indicated that the statutory language Several commenters objected to the appeal procedures in §§ 240.25(e) and limiting voluntary departure to 120 and elimination of employment 240.26(g)(1) and (2) do not allow the 60 days did not preclude an authorization for aliens who have been Service to appeal approvals while interpretation authorizing additional granted voluntary departure. Several precluding aliens from appealing extensions of voluntary departure in other commenters wrote in favor of the denials. In reviewing the comments, increments of 120 or 60 days. Several elimination. Prior to April 1, 1997, however, it became apparent that the commenters, however, wrote in support voluntary departure was often granted language of 240.26(g) appeared to Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10325 prohibit the Service from appealing a immigration judge within 30 days through no fault of his own, has not grant of voluntary departure on the thereafter. Other commenters stated that obtained travel documents. The ground that the alien was not eligible for these provisions were confusing. regulation already provides, at the relief. Any such implication was The regulation has not been changed § 240.26(b)(3)(ii), that the Service in its unintended, and the language has been substantively based on these comments discretion may extend the period within corrected to reflect that both the alien but has been revised to clarify the which the alien must provide such and the Government may appeal issues applicable time periods. The revisions documentation. However, the provision of both eligibility and discretion, but make it clear that in order to obtain for extension is discretionary and not an that neither may appeal the length of the voluntary departure from an entitlement. The alien in removal voluntary departure period granted by immigration judge under section proceedings bears the responsibility to the immigration judge. 240B(a) of the Act, an alien must request demonstrate eligibility for any relief One commenter expressed concern it prior to or at the master calendar requested. The alien is encouraged to about the dangerous intersection hearing at which the case is initially work with the government of his or her between the voluntary departure time calendared for a merits hearing, which home country to obtain a valid passport limits and new section 212(a)(9)(B) of is not necessarily the first master or other travel authorization if a travel the Act, which imposes a 3- to 10-year calendar hearing. This ensures that the document is necessary for return to that bar to admission upon any alien alien is not obligated to request country. Failure to obtain necessary unlawfully present in the United States voluntary departure at preliminary travel documentation will leave the from 180 days to more than 1 year. The stages of the process, before the case is Department no option but to enforce the commenter pointed out that individuals ready to be scheduled for a merits alternate order of removal. now granted voluntary departure for hearing. The Department believes that Several commenters pointed out that extended periods of time for this allows sufficient time for the alien in a case involving an alien who was humanitarian reasons will become to consider voluntary departure and previously granted voluntary departure unlawfully present after 120 days of other options and to discuss them with and failed to depart, the proposed voluntary departure. The commenter counsel. If such requests cannot be regulation correctly reflects the statutory stated that if deferred action is to be the resolved at the master calendar hearing language that such an alien is not sole avenue of relief, the Service needs the immigration judge may take an eligible for voluntary departure or relief to develop policy guidelines so that additional 30 day period in case he or under sections 240A, 245, 248, and 249 district directors will not be afraid to she desires additional time to consider of the Act. The commenters pointed out, use it to enable the sick and the dying the voluntary departure request or to however, that the proposed regulation to receive treatment and to enable their complete the processing. In the event fails to include the statutory parents to work for health insurance. that the alien decides only after the requirement that the alien must receive The Department acknowledges that specified master calendar hearing that notice of the penalty for failing to there will be some compelling he or she wishes to request voluntary depart. The Department agrees with the humanitarian cases for which voluntary departure, such a request can still be commenters, and will change the departure cannot be extended. A district made later, but requires the concurrence language in the interim rule to reflect director will be able to give individual of the Service under § 240.26(b)(2). the requirement that a voluntary consideration for a recommendation for Finally, even without Service departure order permitting an alien to deferred action to the regional director. concurrence, the immigration judge may depart voluntarily shall inform the alien If approved by the regional director, grant voluntary departure under section of the penalties under section 240B(d) of employment authorization may be 240B(b) of the Act upon conclusion of the Act. granted under the provisions of the proceeding. Sections 240B(a)(1) and 240B(b)(1)(C) § 274a.12(c)(14). Several commenters objected to the of the statute bar aliens deportable Several commenters objected to the language at § 240.26(b)(1)(iv) under section 237(a)(2)(A)(iii) of the Act provision for revocation found in authorizing the grant of voluntary from voluntary departure. Because § 240.25(f), and stated that revocation of departure by immigration judges aliens entering without inspection are voluntary departure should require pursuant to section 240B(a) of the Act no longer considered deportable, notice and the opportunity to be heard. only if the alien waives appeal of all however, the statutory bar might be read However, this provision already exists issues. The Department believes that as allowing such aliens to obtain in the current § 242.5(c), which provides voluntary departure authorized by voluntary departure despite an for revocation of a grant of voluntary immigration judges prior to completion aggravated felony conviction. The departure without notice. The of proceedings should be for the statute would thus create the anomaly of revocation is an adverse action initiated purpose of settling cases in the interests more favorable treatment for aggravated by the Service; therefore, personal of economy and justice. If an alien felons who enter without inspection. service of the decision is required in wishes to contest any issues, the proper The Department does not believe that accordance with § 103.5a(c). However, a forum will be a merits hearing. Once a Congress intended such an anomaly. In notice of intent to revoke will not be case proceeds to a merits hearing and any event, having become aware of the issued. The interim rule will be contested issues are settled, voluntary problem, the Department now exercises amended to point out that the departure remains a form of relief; its discretion to bar such aliens from revocation shall be communicated in however, it may be authorized only receiving this form of relief. writing, and shall cite the statutory basis pursuant to the provisions of section Finally, several commenters requested for revocation. 240B(b) of the Act for voluntary clarification regarding the effect of a Several commenters objected to the departure granted at the completion of motion or appeal to the Immigration limits in § 240.26(b)(1) on grants of removal proceedings. Court, BIA, or a federal court on any voluntary departure under section Several commenters wrote that the period of voluntary departure already 240B(a) of the Act, particularly the regulation should provide an exemption granted. Since an alien granted requirement that a request for such for an alien who would otherwise have voluntary departure prior to completion relief be made at or before a master a removal order issued against him or of proceedings must concede calendar hearing, and decided by the her for failing to depart when the alien, removeability and agree to waive 10326 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations pursuit of any alternative form of relief, Reinstatement of Removal Orders of stowaway. Since IIRIRA added a clear no such appeal or motion would be Against Aliens Illegally Reentering definition of stowaway in section possible in this situation. Regarding Several commenters suggested that 101(a)(49) of the Act, the Department post-hearing voluntary departure, the aliens caught illegally reentering the saw no need to repeat the definition in Department considered several options, United States after removal should be the regulations. One commenter but has not adopted any position or provided a hearing before an objected to the 15-day detention period modified the interim rule. The immigration judge. They expressed for asylum-seeking stowaways, for which the owner of the vessel or aircraft Department has identified three possible concern that issues such as identity and bringing the stowaway is obligated for options: no tolling of any period of the propriety of the earlier removal the costs of detention. As this time voluntary departure; tolling the order would not be addressed. One frame is mandated by statute in section voluntary departure period for any commenter argued that new section 241(c)(3)(A)(ii)(III) of the Act, the 241(a)(5) of the Act was not intended to period that an appeal or motion is Department is bound by it. pending; or setting a brief, fixed period be a substantive revision of former One commenter suggested that the of voluntary departure (for example, 10 section 242(f) of the Act, which also regulation clearly define the situations days) after any appeal or motion is dealt with reinstatement of deportation where the Service should allow the resolved. The Department wishes to orders, but was merely taken from a bill carrier to remove, by aircraft, a solicit additional public comments on proposing to recodify the Act without stowaway who arrived by vessel. The these or other possible approaches to substantive change. One commenter regulation at § 241.11(c)(1) has been this issue so that it can be resolved wrote in support of these provisions, amended to include general when a final rule is promulgated. stating that they were consistent with circumstances where the Service might the language and intent of IIRIRA. favorably consider such request. These Detention and Removal of Aliens A review of the relevant statutory circumstances will also be more Ordered Removed provisions reveals that a substantive thoroughly addressed in the Inspector’s change was in fact effected in the This rule provides for the assumption Field Manual. transition from section 242(f) of the Act One commenter stated that the of custody during the removal period, to section 241(a)(5) of the Act. Section regulations should define how the allows detention beyond the period, and 242(f) of the Act provided only that the Service will make a determination that provides conditions for discretionary deportation order was to be reinstated the necessary travel documents for the release and supervision of aliens who upon illegal entry. New section stowaway cannot be obtained, so as to cannot be removed during the period. 241(a)(5) of the Act provides that the shift the costs of the stowaway’s Several commenters stated that the removal order is reinstated from its detention from the carrier to the Service, wording of the statute provides for original date, but adds the provision as stated in section 241(c)(3)(A)(ii)(II) of release of noncriminal aliens during the ‘‘and is not subject to being reopened or the Act. The Department has not had removal period and suggested that the reviewed.’’ sufficient time to consider this issue and Service adopt a policy of allowing the The Service has taken steps to ensure so will address it in the final rule. the positive identification of an alien alien to remain at liberty during the 90- apprehended and removed under this Adjustment of Status day removal period. One commenter section. In § 241.8(a)(2), the regulation Some commenters objected to the stated that the proposed rule is requires fingerprint identification before policy statement contained in the consistent with the language and intent an alien can be removed under section proposed rule that amended of IIRIRA and should be retained in the 241(a)(5) of the Act. In cases where no § 245.1(c)(8) and indicated that, as an interim rule. The plain language of the fingerprints are available and the alien exercise of discretion, the Attorney statute requires that an alien be held in disputes that he or she was previously General would not adjust the status of custody during the 90-day removal removed, the alien will not be removed arriving aliens ordered removed under period and not be released. Accordingly, under section 241(a)(5) of the Act. section 235(b)(1) of the Act or in the proposed language is retained in the Because the process mandated by the proceedings under section 240 of the interim rule. proposed rule adequately addresses the Act. Those commenters believed that Several commenters stated that the concerns expressed by the commenters, such a statement exceeded the Attorney statute requires release on an order of this provision remains unchanged in the General’s authority by eliminating an supervision after the expiration of the interim rule. immigration benefit that has not been eliminated by an act of Congress. Other 90-day removal period. One commenter Detention and Removal of Stowaways commenters suggested that the policy stated that the proposed rule is Section 241.11 implements section statement did not go far enough and that consistent with the language and intent 305 of IIRIRA, defining the the policy should be expanded to of IIRIRA and should be retained in the responsibilities for stowaways and costs include all inadmissible aliens in interim rule. Taken together, sections of detention in the new section 241 of section 240 proceedings, not just 241(a)(3) and (a)(6) of the Act provide the Act. All stowaways are deemed to be arriving aliens. In this interim rule, the that any alien who is inadmissible or inadmissible under the Act and are not Department will maintain the position who is deportable on the grounds entitled to a hearing on admissibility. taken in the proposed rule. This enumerated in paragraph (a)(6) may be Those with a credible fear of position promotes the Department’s detained beyond the removal period. persecution may seek asylum in objective of taking steps to preserve the Additionally, any alien who is a risk to accordance with 8 CFR part 208 in integrity of the visa issuance process the community or is unlikely to appear special proceedings before an while preserving the current additional for removal may be detained regardless immigration judge. The statute is very avenue for review of discretionary of the charge of inadmissibility or specific regarding most detention and denials of adjustment applications filed deportability. Accordingly, the removal responsibilities of the carriers. by aliens present without inspection proposed language is retained in the Several commenters stated that the and admission. The Department interim rule. regulations do not contain a definition continues to believe this position is Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10327 consistent with the intent of Congress past procedure, it should be removed existed in the regulations for years. when it passed IIRIRA. from this rule and proposed in a Moreover, aliens applying under the In response to the commenters who separate rulemaking. The commenter VWPP are, by statute, not entitled to a suggested this policy exceeded the specifically objected to the elimination hearing before an immigration judge, Attorney General’s statutory authority, it of the time and distance controls except on the basis of an asylum claim. is noted that section 245 of the Act imposed on Mexican nationals inherent The only change that the proposed rule clearly and unambiguously states that in the issuance of the Form I–444. As made to this provision was that the adjustment of status is a discretionary stated in the proposed rule, the Service hearing provided for VWPP asylum decision, subject to such regulatory has been unable to demonstrate that claimants is now more clearly limited to limitations as the Attorney General may there is any connection between the asylum issues only. In addition, prescribe. The same commenters stated limits on travel by persons issued Forms inadmissible VWPP applicants may be that aliens who depart using an advance I–444 and immigration violations. temporarily refused permission to enter parole authorization and whose Mexican nationals must undergo the the United States, but are not subject to applications are subsequently denied same interview process to obtain a the formal expedited removal provisions would no longer be able to renew their Border Crossing Card (BCC) or of section 235(b)(1) of the Act. adjustment application before an nonimmigrant visa as any other One commenter objected to several immigration judge. However, the applicant from any other country. New aspects of the amended language in revisions to § 245.2(a)(5)(ii) contained in validity periods have been imposed in § 217.6 relating to carrier agreements. the proposed rule preserved this recent years on the BCC, requiring Since most of the language in this procedure. periodic renewal. A Mexican national section is already contained on the Form I–775, Visa Waiver Pilot Program Rescission of Adjustment of Status entering with a BCC undergoes the same inspection process as any other Agreement, which is signed by all The interim rule includes several applicant for admission and must carriers participating in the VWPP, changes to 8 CFR part 246 that update establish eligibility as a visitor for much of this section has been removed obsolete references and bring the business or pleasure upon each entry to from the interim rule. The commenter regulation into agreement with the the United States. Presently, Mexican objected to the elimination of due statute. References to special inquiry nationals who request entry at a process safeguards in allowing officer were updated to refer to Mexican land border port-of-entry to termination of agreements by the immigration judges. References to status travel more than 30 days or beyond the Commissioner, with 5 days notice to the of permanent residence acquired five-state area, and who establish carrier, for failure to meet the terms of through outdated sections of law, and admissibility as a visitor, are issued the agreement. This is not a new any related procedures for special report Form I–94, Arrival/Departure Record, provision. The exact language has to Congress, were eliminated. In § 246.2, and allowed to proceed anywhere in the existed in the regulations since at least the provision that limited the rescission United States with no additional 1991 and has also been part of the authority of the district director to cases restrictions. Mexican BCC holders existing Form I–775 for years, and will that had been adjusted under section entering the United States by air or via be retained. The definition of round 245 of 249 or the Act was expanded to the Canadian land border are also (return) trip ticket has been revised to include all types of adjustment, thereby admitted with no restrictions. The conform with terminology used bringing the regulation into accord with elimination of the Form I–444 does not elsewhere in the regulation and carrier the statute. In § 246.6, the requirements expand the possible use of the BCC in agreement, and to provide for electronic for immigration judges’ decisions were any way; it merely standardizes the ticketing technology. changed to comport with the entry documentation issued. The Miscellaneous Changes requirements of immigration judges’ Department can see no reason to decisions found in § 240.12. The continue to impose specific controls on The proposed rule contemplated reference to Form I–151 in § 246.9 was Mexican nationals seeking admission removing 8 CFR part 215, Controls of removed because Form I–151 is no only at Mexican border ports-of-entry, Aliens Departing from the United States, longer a valid document. and so accordingly will retain in the because it was also contained in the interim rule the elimination of Form I– Department of State regulations. The Elimination of Mexican Border Visitor’s Department has decided to retain 8 CFR Permit 444 in favor of more thoroughly documenting entry with Form I–94. part 215. The proposed rule eliminated the The proposed rule contained § 240.39, Form I–444, Mexican Border Visitor’s Visa Waiver Pilot Program (VWPP) which retained material previously Permit, which is issued at land border The provisions relating to the VWPP found in § 242.22, and § 240.54, which ports-of-entry along the United States/ in 8 CFR part 217 were included in the preserved the former § 242.23. These Mexico border to Mexican nationals proposed rule primarily as part of the sections have been removed from the traveling for more than 72 hours but less review intended to streamline and interim rule since the subjects are than 30 days in duration or for more eliminate duplication in Department encompassed by §§ 3.23 and 241.8, than 25 miles from the United States/ regulations. In addition, several changes respectively. Mexico border but within the five states were made to conform to new statutory One commenter correctly noted that of Arizona, California, Nevada, New terminology and to include certain new § 216.5(e)(3)(ii) had been amended to Mexico, or Texas. The elimination was procedures created as a result of IIRIRA. allow an alien in exclusion, deportation, proposed because the Form I–444 does One commenter expressed concern that or removal proceedings to file a petition not have adequate security features to there could be confusion in § 217.4 as to for waiver only until such time as there deter counterfeiting, and provides no what constitutes fraudulent or is a final order of deportation or tracking or enforcement benefits. counterfeit documents and that aliens removal. In § 216.5(e)(3), adjudication of One commenter suggested that since could be removed without the a waiver is based upon the alien’s claim the elimination of the Form I–444 was opportunity for review by an of having been battered or subjected to not mandated by IIRIRA and immigration judge. The language in this extreme mental cruelty. The commenter represented a significant departure from section was not changed from what has stated that there is no reason to shorten 10328 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations the period allotted for a battered woman inclusion in separate regulations after removed within 90 days he or she may and child to file a battered spouse implementation of IIRIRA. be released from custody. waiver. The proposed rule change was The Department solicited comments The Commissioner has notified meant to apply generally to all aliens on the general organization and Congress pursuant to section 303(b) of filing a petition for a waiver, and was restructuring contained in the proposed IIRIRA that the Service lacks sufficient intended to add a point of finality to the regulation. No comments were received space to immediately implement the time when the petition could be filed. on this topic. Accordingly, the mandatory custody provisions. This Therefore, the interim rule has been organizational structure has not been notification will delay for 1-year full amended to clarify the general revised in the interim rule. implementation of the new mandatory custody provisions. Section 303(b) also applicability to all petitions for waiver. Regulatory Flexibility Act The regulation will permit filing of a provides for an additional 1-year delay petition for waiver at any time prior to The Attorney General, in accordance in implementation of the mandatory the second anniversary of obtaining with the Regulatory Flexibility Act (5 custody provisions upon a second permanent resident status and up to the U.S.C. 605(b)), has reviewed this certification that space and personnel point of receiving a final order in regulation and, by approving it, certifies are inadequate to comply with the exclusion, deportation, or removal that the rule will not have a significant requirement. The Service estimates that proceedings, which includes any adverse economic impact on a the cost to enforce the requirement to possible Federal court review. substantial number of small entities detain all criminal aliens will be at least Several commenters were concerned because of the following factors. This $205,000,000. Of that total, personnel about removing language at rule affects only federal government costs account for $65,284,000 and § 204.2(a)(1)(iii)(A) through (C), which operations by codifying statutory include detention and deportation dealt with commencement and amendments to the Immigration and officers ($32,873,000), investigators termination of proceedings, and Nationality Act primarily regarding the ($25,501,000), legal proceedings exemptions from the general prohibition examination, detention, and removal of personnel ($4,968,000), and against approval of visa petitions filed aliens from the United States. It affects administrative support ($1,942,000). on the basis of marriages during only individuals and does not impose Non-personnel requirements are proceedings. The language was removed any reporting or compliance projected to be at least $139,732,000 and as part of the Service’s streamlining requirements on small entities. includes increases in bed space and initiative because it was duplicative of Unfunded Mandates Reform Act of related alien custody requirements language in § 245.1(c)(8). The interim 1995 ($82,782,000—funds 3,600 beds @ rule does clarify that in visa petition $63.00 per day), increases in alien travel proceedings the burden of proof remains This rule will not result in the expenses ($36,000,000—3,600 removals on the petitioner to establish eligibility expenditure by State, local and tribal @ $1,000 each), and detention vehicle for the exemption found at section governments, in the aggregate, or by the expenses ($20,950,000). The Service is 204(g) of the Act. In addition, private sector, of $100 million or more currently in the process of projecting the § 204.2(a)(1)(iii) introductory text has in any one year, and it will not costs of the IIRIRA requirement that we been amended reflecting that significantly or uniquely affect small detain all aliens with administratively § 245.1(c)(8) has been renumbered as governments. Therefore, no actions were final orders of deportation pending their § 245.1(c)(9). deemed necessary under the provisions removal. of the Unfunded Mandates Reform Act In addition to these detention related Streamlining, Updating, and of 1995. costs, the Service estimates that the Reorganization Executive Order 12866 expenses for training employees on the Several commenters expressed provisions of the new law and the concern about sections of the regulation This rule is considered by the regulations will be $2,977,500. The cost that were identified in the Department of Justice to be a to the Service related to additional Supplementary Information of the ‘‘significant regulatory action’’ under forms or changes needed to current proposed regulation as being revised Executive Order 12866, section 3(f), forms is estimated to be $2,000,000 solely for the purpose of streamlining: because it will have a significant (until the final list of form requirements elimination of unnecessary recitation of economic impact on the federal is completed it is not possible to more statutory provisions; discussion of government in excess of $100 million. accurately assess this cost). Finally, the procedural matters; elimination of No economic impact is anticipated for Department believes there may be some duplication; or general updating. It is state and local governments. The increases needed for immigration judges emphasized that these streamlining Service projects significant increases in to review credible fear determinations changes neither created new detention-related costs due to the made under section 235(b) of the Act. requirements nor abolished any existing provisions of IIRIRA that mandate the The EOIR estimates increases in its ones. Similarly, several comments custody of criminal aliens who have costs related to IIRIRA-mandated concerned regulatory provisions that committed two or more crimes immigration judge review of credible were simply carried over from the involving moral turpitude, aliens fear determinations (which must be existing regulation, but relocated to new convicted of firearms offenses, and made under stringent time frames) and sections in order to conform with the aliens who have been convicted of an the prompt immigration judge review general regulatory outline for the aggravated felony. The type of crime that IIRIRA requires of certain expedited affected sections. Although the that will qualify as an ‘‘aggravated removal orders entered against aliens Department reviewed these comments, felony’’ has been greatly expanded claiming to be, lawful permanent none resulted in further amendments to under IIRIRA. In addition, all aliens, residents, asylees, or refugees. Further, the streamlined or reorganized even non-criminal aliens, who are EOIR projects costs associated with the paragraphs. Other commenters proposed subject to a final administrative order of possible need for an Immigration Court changes to current regulations that are removal must be held in custody until presence at certain ports-of-entry and beyond the scope of this rulemaking. the alien can be removed from the additional detention centers, which will These suggestions will be considered for United States. If the person is not result from the above-mentioned Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10329 credible fear review and expedited Paperwork Reduction Act 8 CFR Part 221 removal review process. Also, there will The information collection Aliens, Surety bonds. be costs related to the overall need for requirements contained in this rule have an increased Immigration Court been approved by the Office of 8 CFR Part 223 presence at existing Service detention Management and Budget under the Aliens, Reporting and recordkeeping centers to support the processing of the provisions of the Paperwork Reduction requirements. additional detainees that will result Act. The OMB control numbers for these from the implementation of this rule. collections are contained in 8 CFR 8 CFR Part 232 Similarly, EOIR anticipates a need for 299.5, Display of control numbers. Aliens, Public health. construction of new Immigration Courts at new detention facilities the Service List of Subjects 8 CFR Part 233 may open as a result of this rule’s 8 CFR Part 1 Administrative practice and implementation. Administrative practice and procedure, Air carriers, Government Although there are still a number of procedure, Immigration. contracts, Travel. unknown variables which could effect the total costs to EOIR to implement its 8 CFR Part 3 8 CFR Part 234 part of the new expedited removal Administrative practice and Air carriers, Aircraft, Airports, Aliens. process and to respond to the increased procedure, Immigration, Organization 8 CFR Part 235 number of detained individuals in and functions (Government agencies). proceedings under this rule, EOIR Administrative practice and 8 CFR Part 103 estimates that the total annual cost for procedure, Aliens, Immigration, EOIR could be as high as $25,000,000. Administrative practice and Reporting and recordkeeping Of that total, the cost for hiring new procedure, Authority delegations requirements. immigration judges and legal support (Government agencies), Reporting and staff is projected to be $21,300,000. The recordkeeping requirements. 8 CFR Part 236 cost for new video and audio 8 CFR Part 204 Administrative practice and teleconferencing equipment is estimated procedure, Aliens, Immigration. at $3,000,000. Training costs are Administrative practice and expected to be approximately $400,000. procedure, Immigration, Reporting and 8 CFR Part 237 Finally, forms and other support recordkeeping requirements. Aliens. requirements are estimated to cost 8 CFR Part 207 $300,000. 8 CFR Part 238 Administrative practice and Small Business Regulatory Enforcement procedure, Refugees, Reporting and Administrative practice and Fairness Act of 1996 recordkeeping requirements. procedure, Aliens. The Department of Justice considers 8 CFR Part 208 8 CFR Part 239 this rule to be a ‘‘major’’ rule under the Administrative practice and Administrative practice and Small Business Regulatory Enforcement procedure, Aliens, Immigration, procedure, Aliens, Immigration, Fairness Act of 1996 in view of the Reporting and recordkeeping Reporting and recordkeeping projected expenditures for the federal requirements. requirements. government as discussed in the preceding section. The Department 8 CFR Part 209 8 CFR Part 240 finds good cause to make this rule Aliens, Immigration, Refugees. Administrative practice and effective on April 1, 1997, in order to procedure, Aliens, Immigration. meet the statutory deadline. These rules 8 CFR Part 211 are essential for the implementation of Immigration, Passports and visas, 8 CFR Part 241 the provisions of Title III-A of IIRIRA, Reporting and recordkeeping Administrative practice and which become effective on that date requirements. procedure, Aliens, Immigration. pursuant to Section 309(a) of IIRIRA. 8 CFR Part 212 8 CFR Part 242 Executive Order 12612 Administrative practice and Administrative practice and The regulation adopted herein will procedure, Aliens, Immigration, procedure, Aliens, Immigration. not have substantial direct effects on the Passports and visas, Reporting and States, on the relationship between the recordkeeping requirements. 8 CFR Part 243 National Government and the States, or 8 CFR Part 213 Administrative practice and on the distribution of power and procedure, Aliens. responsibilities among the various Immigration, Surety bonds. 8 CFR Part 244 levels of government. Therefore, in 8 CFR Part 214 accordance with Executive Order 12612, Administrative practice and Administrative practice and it is determined that this rule does not procedure, Aliens. procedure, Aliens. have sufficient Federalism implications to warrant the preparation of a 8 CFR Part 216 8 CFR Part 245 Federalism Assessment. Administrative practice and Aliens, Immigration, Reporting and recordkeeping requirements. Executive Order 12988 procedure, Aliens. 8 CFR Part 246 This interim rule meets the applicable 8 CFR Part 217 standards set forth in section 3(a) and Air carriers, Aliens, Maritime carriers, Administrative practice and 3(b)(2) of Executive Order 12988. Passports and visas. procedure, Aliens, Immigration. 10330 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

8 CFR Part 248 appoints as an administrative judge (2) Decisions of Immigration Judges in Aliens, Immigration, Reporting and within the Executive Office for deportation cases, as provided in 8 CFR recordkeeping requirements. Immigration Review, qualified to part 240, Subpart E, except that no conduct specified classes of appeal shall lie seeking review of a 8 CFR Part 249 proceedings, including a hearing under length of a period of voluntary Aliens, Immigration, Reporting and section 240 of the Act. An immigration departure granted by an Immigration recordkeeping requirements. judge shall be subject to such Judge under section 244E of the Act as supervision and shall perform such it existed prior to April 1, 1997. 8 CFR Part 251 duties as the Attorney General shall (3) Decisions of Immigration Judges in Air carriers, Aliens, Crewmen, prescribe, but shall not be employed by removal proceedings, as provided in 8 Maritime carriers, Reporting and the Immigration and Naturalization CFR part 240, except that no appeal recordkeeping requirements. Service. shall lie seeking review of the length of a period of voluntary departure granted 8 CFR Part 252 * * * * * (q) The term arriving alien means an by an immigration judge under section Air carriers, Airmen, Aliens, alien who seeks admission to or transit 240B of the Act or part 240 of this Crewmen, Maritime carriers, Reporting through the United States, as provided chapter. and recordkeeping requirements. in 8 CFR part 235, at a port-of-entry, or * * * * * 8 CFR Part 253 an alien who is interdicted in (7) Determinations relating to bond, Air carriers, Airmen, Aliens, Maritime international or United States waters parole, or detention of an alien as carriers, Reporting and recordkeeping and brought into the United States by provided in 8 CFR part 236, Subpart A requirements, Seamen. any means, whether or not to a and 8 CFR part 240, Subpart E. designated port-of-entry, and regardless * * * * * 8 CFR Part 274a of the means of transport. An arriving (9) Decisions of Immigration Judges in Administrative practice and alien remains such even if paroled asylum proceedings pursuant to procedure, Aliens, Employment, pursuant to section 212(d)(5) of the Act. § 208.2(b) of this chapter. Penalties, Reporting and recordkeeping (r) The term respondent means a (10) Decisions of Immigration Judges requirements. person named in a Notice to Appear relating to Temporary Protected Status issued in accordance with section 239(a) as provided in 8 CFR part 244. 8 CFR Part 286 of the Act, or in an Order to Show Cause * * * * * Air carriers, Immigration, Reporting issued in accordance with § 242.1 of this 5. Section 3.2 is amended by: and recordkeeping requirements. chapter as it existed prior to April 1, a. Revising the section heading; 8 CFR Part 287 1997. b. Revising paragraph (b)(2); (s) The term Service counsel means c. Revising paragraph (c)(2) and (c)(3), Immigration, Law enforcement any immigration officer assigned to and by officers. represent the Service in any proceeding d. Revising paragraphs (d) through 8 CFR Part 299 before an immigration judge or the (g)(1), to read as follows: Board of Immigration Appeals. Immigration, Reporting and (t) The term aggravated felony means § 3.2 Reopening or reconsideration before recordkeeping requirements. a crime (or a conspiracy or attempt to the Board of Immigration Appeals. 8 CFR Part 316 commit a crime) described in section * * * * * (b) * * * Citizenship and naturalization, 101(a)(43) of the Act. This definition is (2) A motion to reconsider a decision Reporting and recordkeeping applicable to any proceeding, must be filed with the Board within 30 requirements. application, custody determination, or adjudication pending on or after days after the mailing of the Board 8 CFR Part 318 September 30, 1996, but shall apply decision or on or before July 31, 1996, Citizenship and naturalization. under section 276(b) of the Act only to whichever is later. A party may file only violations of section 276(a) of the Act one motion to reconsider any given 8 CFR Part 329 occurring on or after that date. decision and may not seek Citizenship and naturalization, reconsideration of a decision denying a Military Personnel, Veterans. PART 3ÐEXECUTIVE OFFICE FOR previous motion to reconsider. In Accordingly, chapter I of title 8 of the IMMIGRATION REVIEW removal proceedings pursuant to section 240 of the Act, an alien may file only Code of Federal Regulations is amended 3. The authority citation for part 3 as follows: one motion to reconsider a decision that continues to read as follows: the alien is removable from the United PART 1ÐDEFINITIONS Authority: 5 U.S.C. 301; 8 U.S.C. 1103, States. 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, (c) * * * 1. The authority citation for part 1 is 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; (2) Except as provided in paragraph revised to read as follows: 3 CFR, 1949–1953 Comp., p. 1002. (c)(3) of this section, a party may file Authority: 8 U.S.C. 1101; 8 CFR part 2. 4. Section 3.1 is amended by revising only one motion to reopen deportation 2. Section 1.1 is amended by revising paragraphs (b)(1), (b)(2), (b)(3), (b)(7), or exclusion proceedings (whether paragraph (l), and by adding new (b)(9), and (b)(10) to read as follows: before the Board or the Immigration Judge) and that motion must be filed no paragraphs (q) through (t) to read as § 3.1 General authorities. follows: later than 90 days after the date on * * * * * which the final administrative decision § 1.1 Definitions. (b) * * * was rendered in the proceeding sought * * * * * (1) Decisions of Immigration Judges in to be reopened, or on or before (l) The term immigration judge means exclusion cases, as provided in 8 CFR September 30, 1996, whichever is later. an attorney whom the Attorney General part 240, Subpart D. Except as provided in paragraph (c)(3) Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10331 of this section, an alien may file only include a statement by or on behalf of § 3.9 Chief Immigration Judge. one motion to reopen removal the moving party declaring whether the The Chief Immigration Judge shall be proceedings (whether before the Board subject of the order is also the subject responsible for the general supervision, or the Immigration Judge) and that of any pending criminal proceeding direction, and scheduling of the motion must be filed no later than 90 under the Act, and, if so, the current Immigration Judges in the conduct of days after the date on which the final status of that proceeding. If a motion to the various programs assigned to them. administrative decision was rendered in reopen or reconsider seeks discretionary The Chief Immigration Judge shall be the proceeding sought to be reopened. relief, the motion shall include a assisted by Deputy Chief Immigration (3) In removal proceedings pursuant statement by or on behalf of the moving Judges and Assistant Chief Immigration to section 240 of the Act, the time party declaring whether the alien for Judges in the performance of his or her limitation set forth in paragraph (c)(2) of whose relief the motion is being filed is duties. These shall include, but are not this section shall not apply to a motion subject to any pending criminal limited to: to reopen filed pursuant to the prosecution and, if so, the nature and (a) Establishment of operational provisions of § 3.23(b)(4)(ii). The time current status of that prosecution. policies; and and numerical limitations set forth in (f) Stay of deportation. Except where (b) Evaluation of the performance of paragraph (c)(2) of this section shall not a motion is filed pursuant to the Immigration Courts, making appropriate apply to a motion to reopen provisions of §§ 3.23(b)(4)(ii) and reports and inspections, and taking proceedings: 3.23(b)(4)(iii)(A), the filing of a motion corrective action where indicated. (i) Filed pursuant to the provisions of to reopen or a motion to reconsider shall 9. Section 3.10 is revised to read as § 3.23(b)(4)(iii)(A)(1) or not stay the execution of any decision follows: § 3.23(b)(4)(iii)(A)(2); made in the case. Execution of such § 3.10 Immigration Judges. (ii) To apply or reapply for asylum or decision shall proceed unless a stay of Immigration Judges, as defined in 8 withholding of deportation based on execution is specifically granted by the CFR part 1, shall exercise the powers changed circumstances arising in the Board, the Immigration Judge, or an and duties in this chapter regarding the country of nationality or in the country authorized officer of the Service. to which deportation has been ordered, conduct of exclusion, deportation, (g) Filing procedures. (1) English removal, and asylum proceedings and if such evidence is material and was not language, entry of appearance, and proof available and could not have been such other proceedings which the of service requirements. A motion and Attorney General may assign them to discovered or presented at the previous any submission made in conjunction hearing; conduct. with a motion must be in English or 10. Section 3.11 is revised to read as (iii) Agreed upon by all parties and accompanied by a certified English follows: jointly filed. Notwithstanding such translation. If the moving party, other agreement, the parties may contest the than the Service, is represented, Form § 3.11 Administrative control Immigration issues in a reopened proceeding; or EOIR–27, Notice of Entry of Appearance Courts. (iv) Filed by the Service in exclusion as Attorney or Representative Before the An administrative control or deportation proceedings when the Board, must be filed with the motion. In Immigration Court is one that creates basis of the motion is fraud in the all cases, the motion shall include proof and maintains Records of Proceedings original proceeding or a crime that of service on the opposing party of the for Immigration Courts within an would support termination of asylum in motion and all attachments. If the assigned geographical area. All accordance with § 208.22(f) of this moving party is not the Service, service documents and correspondence chapter. of the motion shall be made upon the pertaining to a Record of Proceeding * * * * * Office of the District Counsel for the shall be filed with the Immigration (d) Departure, deportation, or district in which the case was Court having administrative control removal. A motion to reopen or a completed before the Immigration over that Record of Proceeding and shall motion to reconsider shall not be made Judge. not be filed with any other Immigration by or on behalf of a person who is the * * * * * Court. A list of the administrative subject of exclusion, deportation, or 6. The following sentence is added to control Immigration Courts with their removal proceedings subsequent to his the end of § 3.4: assigned geographical areas will be or her departure from the United States. made available to the public at any Any departure from the United States, § 3.4 Withdrawal of appeal. Immigration Court. including the deportation or removal of ** * Departure from the United a person who is the subject of exclusion, Subpart CÐImmigration CourtÐRules States of a person who is the subject of of Procedure deportation, or removal proceedings, deportation or removal proceedings, occurring after the filing of a motion to except for arriving aliens as defined in 11. In part 3, the heading of Subpart reopen or a motion to reconsider, shall § 1.1(q) of this chapter, subsequent to C is revised as set forth above. constitute a withdrawal of such motion. the taking of an appeal, but prior to a 12. Section 3.12 is amended by (e) Judicial proceedings. Motions to decision thereon, shall constitute a revising the last sentence, and adding a reopen or reconsider shall state whether withdrawal of the appeal, and the initial new sentence at the end of the section, the validity of the exclusion, decision in the case shall be final to the to read as follows: deportation, or removal order has been same extent as though no appeal had § 3.12 Scope of rules. or is the subject of any judicial been taken. proceeding and, if so, the nature and ** * Except where specifically date thereof, the court in which such Subpart BÐImmigration Court stated, the rules in this subpart apply to proceeding took place or is pending, matters before Immigration Judges, and its result or status. In any case in 7. In Part 3, the heading of Subpart B including, but not limited to, which an exclusion, deportation, or is revised as set forth above. deportation, exclusion, removal, bond, removal order is in effect, any motion to 8. Section 3.9 is revised to read as rescission, departure control, asylum reopen or reconsider such order shall follows: proceedings, and disciplinary 10332 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations proceedings under § 292.3 of this allegiance in administrative ‘‘respondent/applicant’’ to read ‘‘alien’’, chapter. The sole procedures for review naturalization ceremonies conducted by and by revising the phrase ‘‘the of credible fear determinations by the Service in accordance with appropriate EOIR form’’ to read ‘‘Form Immigration Judges are provided for in § 337.2(b) of this chapter. EOIR–28’’. § 3.42. 15. Section 3.15 is amended by: 18. Section 3.18 is revised to read as 13. Section 3.13 is revised to read as a. Revising the section heading; follows: follows: b. Amending paragraph (b) introductory text and paragraph (b)(6), § 3.18 Scheduling of cases. § 3.13 Definitions. by adding the phrase ‘‘and Notice to (a) The Immigration Court shall be As used in this subpart: Appear’’ immediately after the phrase responsible for scheduling cases and Administrative control means ‘‘Order to Show Cause’’; providing notice to the government and custodial responsibility for the Record c. Redesignating paragraph (c) as (d); the alien of the time, place, and date of of Proceeding as specified in § 3.11. d. Adding a new paragraph (c); and by hearings. Charging document means the written e. Revising newly redesignated (b) In removal proceedings pursuant instrument which initiates a proceeding paragraph (d), to read as follows: to section 240 of the Act, the Service before an Immigration Judge. For shall provide in the Notice to Appear, proceedings initiated prior to April 1, § 3.15 Contents of the order to show cause and notice to appear and notification of the time, place and date of the initial 1997, these documents include an Order change of address. removal hearing, where practicable. If to Show Cause, a Notice to Applicant that information is not contained in the for Admission Detained for Hearing * * * * * (c) Contents of the Notice to Appear Notice to Appear, the Immigration Court before Immigration Judge, and a Notice for Removal Proceedings. In the Notice shall be responsible for scheduling the of Intention to Rescind and Request for to Appear for removal proceedings, the initial removal hearing and providing Hearing by Alien. For proceedings Service shall provide the following notice to the government and the alien initiated after April 1, 1997, these administrative information to the of the time, place, and date of hearing. documents include a Notice to Appear, Immigration Court. Failure to provide In the case of any change or a Notice of Referral to Immigration any of these items shall not be postponement in the time and place of Judge, and a Notice of Intention to construed as affording the alien any such proceeding, the Immigration Court Rescind and Request for Hearing by substantive or procedural rights. shall provide written notice to the alien Alien. (1) The alien’s names and any known specifying the new time and place of the Filing means the actual receipt of a aliases; proceeding and the consequences under document by the appropriate (2) The alien’s address; section 240(b)(5) of the Act of failing, Immigration Court. (3) The alien’s registration number, except under exceptional circumstances Service means physically presenting with any lead alien registration number as defined in section 240(e)(1) of the or mailing a document to the with which the alien is associated; Act, to attend such proceeding. No such appropriate party or parties; except that (4) The alien’s alleged nationality and notice shall be required for an alien not an Order to Show Cause or Notice of citizenship; and in detention if the alien has failed to Deportation Hearing shall be served in (5) The language that the alien provide the address required in section person to the alien, or by certified mail understands. 239(a)(1)(F) of the Act. to the alien or the alien’s attorney and (d) Address and telephone number. a Notice to Appear or Notice of Removal (1) If the alien’s address is not provided § 3.19 [Amended] Hearing shall be served to the alien in on the Order to Show Cause or Notice 19. Section 3.19(a) is amended by person, or if personal service is not to Appear, or if the address on the Order revising the reference to ‘‘part 242 of practicable, shall be served by regular to Show Cause or Notice to Appear is this chapter’’ to read ‘‘8 CFR part 236’’ mail to the alien or the alien’s attorney incorrect, the alien must provide to the wherever it appears in the paragraph. of record. Immigration Court where the charging 20. Section 3.19(d) is amended in the 14. Section § 3.14 is amended by: document has been filed, within five first sentence by adding the term ‘‘or a. Revising paragraph (a), and by days of service of that document, a removal’’ immediately after the word b. Adding a new paragraph (c) to read written notice of an address and ‘‘deportation’’. as follows: telephone number at which the alien 21. Section 3.19 is amended by § 3.14 Jurisdiction and commencement of can be contacted. The alien may satisfy removing paragraph (h). proceedings. this requirement by completing and 22. In § 3.20, paragraph (a) is revised to read as follows: (a) Jurisdiction vests, and proceedings filing Form EOIR–33. before an Immigration Judge commence, (2) Within five days of any change of § 3.20 Change of venue. address, the alien must provide written when a charging document is filed with (a) Venue shall lie at the Immigration the Immigration Court by the Service. notice of the change of address on Form EOIR–33 to the Immigration Court Court where jurisdiction vests pursuant The charging document must include a to § 3.14. certificate showing service on the where the charging document has been * * * * * opposing party pursuant to § 3.32 which filed, or if venue has been changed, to 23. Section 3.23 is amended by indicates the Immigration Court in the Immigration Court to which venue revising the section heading and which the charging document is filed. has been changed. paragraph (b) to read as follows: However, no charging document is § 3.16 [Amended] required to be filed with the 16. Section 3.16(b) is amended by § 3.23 Reopening or Reconsideration before the Immigration Court. Immigration Court to commence bond revising the term ‘‘respondent/ proceedings pursuant to §§ 3.19, applicant’’ to read ‘‘alien’’. (a) * * * 236.1(d) and 240.2(b) of this chapter. (b) Before the Immigration Court. (1) * * * * * § 3.17 [Amended] In general. An Immigration Judge may (c) Immigration Judges have 17. Section 3.17(a) is amended in the upon his or her own motion at any time, jurisdiction to administer the oath of first sentence by revising the term or upon motion of the Service or the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10333 alien, reopen or reconsider any case in Judge must be filed with the motion to reopen for the purpose of which he or she has made a decision, Immigration Court having providing the alien an opportunity to unless jurisdiction is vested with the administrative control over the Record apply for any form of discretionary Board of Immigration Appeals. Subject of Proceeding. A motion to reopen or a relief will not be granted if it appears to the exceptions in this paragraph and motion to reconsider shall include a that the alien’s right to apply for such paragraph (b)(4), a party may file only certificate showing service on the relief was fully explained to him or her one motion to reconsider and one opposing party of the motion and all by the Immigration Judge and an motion to reopen proceedings. A motion attachments. If the moving party is not opportunity to apply therefore was to reconsider must be filed within 30 the Service, service of the motion shall afforded at the hearing, unless the relief days of the date of entry of a final be made upon the Office of the District is sought on the basis of circumstances administrative order of removal, Counsel for the district in which the that have arisen subsequent to the deportation, or exclusion, or on or case was completed. If the moving hearing. Pursuant to section 240A(d)(1) before July 31, 1996, whichever is later. party, other than the Service, is of the Act, a motion to reopen A motion to reopen must be filed within represented, a Form EOIR–28, Notice of proceedings for consideration or further 90 days of the date of entry of a final Appearance as Attorney or consideration of an application for relief administrative order of removal, Representative Before an Immigration under section 240A(a) (cancellation of deportation, or exclusion, or on or Judge must be filed with the motion. removal for certain permanent before September 30, 1996, whichever is The motion must be filed in duplicate residents) or 240A(b) (cancellation of later. A motion to reopen or to with the Immigration Court, removal and adjustment of status for reconsider shall not be made by or on accompanied by a fee receipt. certain nonpermanent residents) may be behalf of a person who is the subject of (iii) Assignment to an Immigration granted only if the alien demonstrates removal, deportation, or exclusion Judge. If the Immigration Judge is that he or she was statutorily eligible for proceedings subsequent to his or her unavailable or unable to adjudicate the such relief prior to the service of a departure from the United States. Any motion to reopen or reconsider, the notice to appear, or prior to the departure from the United States, Chief Immigration Judge or his or her commission of an offense referred to in including the deportation or removal of delegate shall reassign such motion to section 212(a)(2) of the Act that renders a person who is the subject of exclusion, another Immigration Judge. the alien inadmissible or removable deportation, or removal proceedings, (iv) Replies to motions; decision. The under sections 237(a)(2) of the Act or occurring after the filing of a motion to Immigration Judge may set and extend (a)(4), whichever is earliest. The reopen or a motion to reconsider shall time limits for replies to motions to Immigration Judge has discretion to constitute a withdrawal of such motion. reopen or reconsider. A motion shall be deny a motion to reopen even if the The time and numerical limitations set deemed unopposed unless timely moving party has established a prima forth in this paragraph do not apply to response is made. The decision to grant facie case for relief. motions by the Service in removal or deny a motion to reopen or a motion (4) Exceptions to filing deadlines.—(i) proceedings pursuant to section 240 of to reconsider is within the discretion of Asylum. The time and numerical the Act. Nor shall such limitations the Immigration Judge. limitations set forth in paragraph (b)(1) apply to motions by the Service in (v) Stays. Except in cases involving in of this section shall not apply if the exclusion or deportation proceedings, absentia orders, the filing of a motion to basis of the motion is to apply for relief when the basis of the motion is fraud in reopen or a motion to reconsider shall under section 208 or 241(b)(3) of the Act the original proceeding or a crime that not stay the execution of any decision and is based on changed country would support termination of asylum in made in the case. Execution of such conditions arising in the country of accordance with § 208.22(f) of this decision shall proceed unless a stay of nationality or the country to which chapter. execution is specifically granted by the removal has been ordered, if such (i) Form and contents of the motion. Immigration Judge, the Board, or an evidence is material and was not The motion shall be in writing and authorized officer of the Service. available and could not have been signed by the affected party or the (2) Motion to reconsider. A motion to discovered or presented at the previous attorney or representative of record, if reconsider shall state the reasons for the proceeding. The filing of a motion to any. The motion and any submission motion by specifying the errors of fact reopen under this section shall not made in conjunction with it must be in or law in the Immigration Judge’s prior automatically stay the removal of the English or accompanied by a certified decision and shall be supported by alien. However, the alien may request a English translation. Motions to reopen pertinent authority. Such motion may stay and, if granted by the Immigration or reconsider shall state whether the not seek reconsideration of a decision Judge, the alien shall not be removed validity of the exclusion, deportation, or denying previous motion to reconsider. pending disposition of the motion by removal order has been or is the subject (3) Motion to reopen. A motion to the Immigration Judge. If the original of any judicial proceeding and, if so, the reopen proceedings shall state the new asylum application was denied based nature and date thereof, the court in facts that will be proven at a hearing to upon a finding that it was frivolous, which such proceeding took place or is be held if the motion is granted and then the alien is ineligible to file either pending, and its result or status. In any shall be supported by affidavits and a motion to reopen or reconsider, or for case in which an exclusion, deportation, other evidentiary material. Any motion a stay of removal. or removal order is in effect, any motion to reopen for the purpose of acting on (ii) Order entered in absentia in to reopen or reconsider such order shall an application for relief must be asylum proceedings or removal include a statement by or on behalf of accompanied by the appropriate proceedings. An order of removal the moving party declaring whether the application for relief and all supporting entered in absentia in asylum subject of the order is also the subject documents. A motion to reopen will not proceedings pursuant to § 208.2(b) of of any pending criminal proceeding be granted unless the Immigration Judge this chapter or in removal proceedings under the Act, and, if so, the current is satisfied that evidence sought to be pursuant to section 240(b)(5) of the Act status of that proceeding. offered is material and was not available may be rescinded only upon a motion (ii) Filing. Motions to reopen or and could not have been discovered or to reopen filed within 180 days after the reconsider a decision of an Immigration presented at the former hearing. A date of the order of removal, if the alien 10334 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations demonstrates that the failure to appear (iv) Jointly filed motions. The time (7) A statement that the alien will was because of exceptional and numerical limitations set forth in accept a written order for his or her circumstances as defined in section paragraph (b)(1) of this section shall not deportation, exclusion or removal as a 240(e)(1) of the Act. An order entered in apply to a motion to reopen agreed upon final disposition of the proceedings; and absentia pursuant to § 208.2(b) of this by all parties and jointly filed. (8) A waiver of appeal of the written chapter or pursuant to section 240(b)(5) 24. Section 3.25 is revised to read as order of deportation or removal. may be rescinded upon a motion to follows: (c) Telephonic or video hearings. An reopen filed at any time if the alien Immigration Judge may conduct § 3.25 Form of the proceeding. demonstrates that he or she did not hearings through video conference to receive notice in accordance with (a) Waiver of presence of the parties. the same extent as he or she may sections 239(a)(1) or (2) of the Act, or The Immigration Judge may, for good conduct hearings in person. An the alien demonstrates that he or she cause, and consistent with section Immigration Judge may also conduct a was in Federal or state custody and the 240(b) of the Act, waive the presence of hearing through a telephone conference, failure to appear was through no fault of the alien at a hearing when the alien is but an evidentiary hearing on the merits the alien. However, in accordance with represented or when the alien is a minor may only be conducted through a section 240(b)(5)(B) of the Act, no child at least one of whose parents or telephone conference with the consent written notice of a change in time or whose legal guardian is present. When of the alien involved after the alien has place of proceeding shall be required if it is impracticable by reason of an been advised of the right to proceed in the alien has failed to provide the alien’s mental incompetency for the person or, where available, through a address required under section alien to be present, the presence of the video conference, except that credible 239(a)(1)(F) of the Act. The filing of a alien may be waived provided that the fear determinations may be reviewed by motion under this paragraph shall stay alien is represented at the hearing by an the Immigration Judge through a the removal of the alien pending attorney or legal representative, a near telephone conference without the disposition of the motion by the relative, legal guardian, or friend. consent of the alien. Immigration Judge. An alien may file (b) Stipulated request for order; 25. Section 3.26 is amended by only one motion pursuant to this waiver of hearing. An Immigration Judge revising paragraph (c) and adding a new paragraph. may enter an order of deportation, paragraph (d) to read as follows: exclusion or removal stipulated to by (iii) Order entered in absentia in § 3.26 In absentia hearings. deportation or exclusion proceedings. the alien (or the alien’s representative) (A) An order entered in absentia in and the Service. The Immigration Judge * * * * * deportation proceedings may be may enter such an order without a (c) In any removal proceeding before rescinded only upon a motion to reopen hearing and in the absence of the parties an Immigration Judge in which the alien filed: based on a review of the charging fails to appear, the Immigration Judge document, the written stipulation, and shall order the alien removed in (1) Within 180 days after the date of supporting documents, if any. If the absentia if: the order of deportation if the alien alien is unrepresented, the Immigration (1) The Service establishes by clear, demonstrates that the failure to appear Judge must determine that the alien’s unequivocal, and convincing evidence was because of exceptional waiver is voluntary, knowing, and that the alien is removable; and circumstances beyond the control of the intelligent. The stipulated request and (2) The Service establishes by clear, alien (e.g., serious illness of the alien or required waivers shall be signed on unequivocal, and convincing evidence serious illness or death of an immediate behalf of the government and by the that written notice of the time and place relative of the alien, but not including alien and his or her attorney or of proceedings and written notice of the less compelling circumstances); or representative, if any. The attorney or consequences of failure to appear were (2) At any time if the alien representative shall file a Notice of provided to the alien. demonstrates that he or she did not Appearance in accordance with (d) Written notice to the alien shall be receive notice or if the alien § 3.16(b). A stipulated order shall considered sufficient for purposes of demonstrates that he or she was in constitute a conclusive determination of this section if it was provided at the federal or state custody and the failure the alien’s deportability or removability most recent address provided by the to appear was through no fault of the from the United States. The stipulation alien. If the respondent fails to provide alien. shall include: his or her address as required under (B) A motion to reopen exclusion (1) An admission that all factual § 3.15(d), no written notice shall be hearings on the basis that the allegations contained in the charging required for an Immigration Judge to Immigration Judge improperly entered document are true and correct as proceed with an in absentia hearing. an order of exclusion in absentia must written; This paragraph shall not apply in the be supported by evidence that the alien (2) A concession of deportability or event that the Immigration Judge waives had reasonable cause for his failure to inadmissibility as charged; the appearance of an alien under § 3.25. appear. (3) A statement that the alien makes 26. Section 3.27 is amended by (C) The filing of a motion to reopen no application for relief under the Act; revising paragraph (c) to read as follows: under paragraph (b)(4)(iii)(A) of this (4) A designation of a country for section shall stay the deportation of the deportation or removal under section § 3.27 Public access to hearings. alien pending decision on the motion 241(b)(2)(A)(i) of the Act; * * * * * and the adjudication of any properly (5) A concession to the introduction (c) In any proceeding before an filed administrative appeal. of the written stipulation of the alien as Immigration Judge concerning an (D) The time and numerical an exhibit to the Record of Proceeding; abused alien spouse, the hearing and the limitations set forth in paragraph (b)(1) (6) A statement that the alien Record of Proceeding shall be closed to of this section shall not apply to a understands the consequences of the the public unless the abused spouse motion to reopen filed pursuant to the stipulated request and that the alien agrees that the hearing and the Record provisions of paragraph (b)(4)(iii)(A) of enters the request voluntarily, of Proceeding shall be open to the this section. knowingly, and intelligently; public. In any proceeding before an Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10335

Immigration Judge concerning an (3) Issuance of subpoena. Upon being evidence any oral or written statement abused alien child, the hearing and the satisfied that a witness will not appear which is material and relevant to any Record of Proceeding shall be closed to and testify or produce documentary issue in the review. The testimony of the public. evidence and that the witness’ evidence the alien shall be under oath or 27. Section 3.30 is revised to read as is essential, the Immigration Judge shall affirmation administered by the follows: issue a subpoena. The subpoena shall Immigration Judge. If an interpreter is state the title of the proceeding and § 3.30 Additional charges in deportation or necessary, one will be provided by the removal hearings. shall command the person to whom it Immigration Court. The Immigration is directed to attend and to give At any time during deportation or Judge shall determine whether the testimony at a time and place specified. review shall be in person, or through removal proceedings, additional or The subpoena may also command the substituted charges of deportability and/ telephonic or video connection (where person to whom it is directed to available). The alien may consult with or factual allegations may be lodged by produce the books, papers, or a person or persons of the alien’s the Service in writing. The alien shall be documents specified in the subpoena. served with a copy of these additional (4) Appearance of witness. If the choosing prior to the review. charges and/or allegations and the witness is at a distance of more than 100 (d) Standard of review. The Immigration Judge shall read them to miles from the place of the proceeding, Immigration Judge shall make a de novo the alien. The Immigration Judge shall the subpoena shall provide for the determination as to whether there is a advise the alien, if he or she is not witness’ appearance at the Immigration significant possibility, taking into represented by counsel, that the alien Court nearest to the witness to respond account the credibility of the statements may be so represented. The alien may be to oral or written interrogatories, unless made by the alien in support of the given a reasonable continuance to there is no objection by any party to the alien’s claim and such other facts as are respond to the additional factual witness’ appearance at the proceeding. known to the Immigration Judge, that allegations and charges. Thereafter, the (5) Service. A subpoena issued under provision of § 240.10(b) of this chapter the alien could establish eligibility for this section may be served by any asylum under section 208 of the Act. relating to pleading shall apply to the person over 18 years of age not a party additional factual allegations and to the case. (e) Timing. The Immigration Judge charges. (6) Invoking aid of court. If a witness shall conclude the review to the 28. Section 3.35 is revised to read as neglects or refuses to appear and testify maximum extent practicable within 24 follows: as directed by the subpoena served hours, but in no case later than 7 days after the date the supervisory asylum § 3.35 Depositions and subpoenas. upon him or her in accordance with the provisions of this section, the officer has approved the asylum officer’s (a) Depositions. If an Immigration Immigration Judge issuing the subpoena negative credible fear determination Judge is satisfied that a witness is not shall request the United States Attorney issued on Form I–869, Record of reasonably available at the place of for the district in which the subpoena Negative Credible Fear Finding and hearing and that said witness’ testimony was issued to report such neglect or or other evidence is essential, the Request for Review. refusal to the United States District Immigration Judge may order the taking (f) Decision. If an Immigration Judge Court and to request such court to issue of deposition either at his or her own determines that an alien has a credible an order requiring the witness to appear instance or upon application of a party. fear of persecution, the Immigration and testify and to produce the books, Such order shall designate the official Judge shall vacate the order entered papers or documents designated in the by whom the deposition shall be taken, subpoena. pursuant to section 235(b)(1)(B)(iii)(I) of may prescribe and limit the content, 29. In Subpart C, a new § 3.42 is the Act. Subsequent to the order being scope, or manner of taking the added to read as follows: vacated, the Service shall issue and file deposition, and may direct the Form I–862, Notice to Appear, with the production of documentary evidence. § 3.42 Review of credible fear Immigration Court to commence (b) Subpoenas issued subsequent to determination. removal proceedings. The alien shall commencement of proceedings. (1) (a) Referral. Jurisdiction for an have the opportunity to apply for General. In any proceeding before an Immigration Judge to review an adverse asylum in the course of removal Immigration Judge, other than under 8 credible fear finding by an asylum proceedings pursuant to section 240 of CFR part 335, the Immigration Judge officer pursuant to section 235(b)(1)(B) the Act. If an Immigration Judge shall have exclusive jurisdiction to issue of the Act shall commence with the determines that an alien does not have subpoenas requiring the attendance of filing by the Service of Form I–863, a credible fear of persecution, the witnesses or for the production of Notice of Referral to Immigration Judge. Immigration Judge shall affirm the books, papers and other documentary The Service shall also file with the asylum officer’s determination and evidence, or both. An Immigration Judge notice of referral a copy of the written may issue a subpoena upon his or her record of determination as defined in remand the case to the Service for own volition or upon application of the section 235(b)(1)(B)(iii)(II) of the Act, execution of the removal order entered Service or the alien. including a copy of the alien’s written pursuant to section 235(b)(1)(B)(iii)(I) of (2) Application for subpoena. A party request for review, if any. the Act. No appeal shall lie from a applying for a subpoena shall be (b) Record of proceeding. The review of an adverse credible fear required, as a condition precedent to its Immigration Court shall create a Record determination made by an Immigration issuance, to state in writing or at the of Proceeding for a review of an adverse Judge. proceeding, what he or she expects to credible fear determination. This record (g) Custody. An Immigration Judge prove by such witnesses or shall not be merged with any later shall have no authority to review an documentary evidence, and to show proceeding pursuant to section 240 of alien’s custody status in the course of a affirmatively that he or she has made the Act involving the same alien. review of an adverse credible fear diligent effort, without success, to (c) Procedures and evidence. The determination made by the Service. produce the same. Immigration Judge may receive into 10336 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

PART 103ÐPOWERS AND DUTIES OF obligor. A district director is authorized behalf of an alien by a United States SERVICE OFFICERS; AVAILABILITY to approve a bond, a formal agreement citizen or a lawful permanent resident OF SERVICE RECORDS to extension of liability of surety, a spouse shall not be approved if the request for delivery of collateral security marriage creating the relationship 30. The authority citation for part 103 to a duly appointed and undischarged occurred on or after November 10, 1986, continues to read as follows: administrator or executor of the estate of and while the alien was in exclusion, Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. a deceased depositor, and a power of deportation, or removal proceedings, or 1101, 1103, 1201, 1252 note, 1252b, 1304, attorney executed on Form I–312, judicial proceedings relating thereto. 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR Designation of Attorney in Fact. All Determination of commencement and 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 other matters relating to bonds, termination of proceedings and CFR part 2. including a power of attorney not exemptions shall be in accordance with 31. In § 103.1, paragraph (g)(3)(ii) is executed on Form I–312 and a request § 245.1(c)(9) of this chapter, except that revised to read as follows: for delivery of collateral security to the burden in visa petition proceedings other than the depositor or his or her to establish eligibility for the exemption § 103.1 Delegations of authority. approved attorney in fact, shall be in § 245.1(c)(9)(iii)(F) of this chapter * * * * * forwarded to the regional director for shall rest with the petitioner. (g) * * * approval. * * * * * (3) * * * (2) Bond riders.—(i) General. Bond (ii) Asylum officers. Asylum officers riders shall be prepared on Form I–351, PART 207ÐADMISSION OF constitute a professional corps of Bond Riders, and attached to Form I– REFUGEES officers who serve under the 352. If a condition to be included in a supervision and direction of the 38. The authority citation for part 207 bond is not on Form I–351, a rider is revised to read as follows: Director of International Affairs and containing the condition shall be shall be specially trained as required in executed. Authority: 8 U.S.C. 1101, 1103, 1151, 1157, § 208.1(b) of this chapter. Asylum 1159, 1182; 8 CFR part 2. * * * * * officers are delegated the authority to 35. Section 103.7(b)(1) is amended by: 39. Section 207.1 is amended by hear and adjudicate credible fear of a. Removing the entry to ‘‘Form I– removing paragraph (e), and by revising persecution determinations under 444’’, and by paragraph (a) to read as follows: section 235(b)(1)(B) of the Act and b. Adding the entry for ‘‘Form EOIR– applications for asylum and for § 207.1 Eligibility. 42’’ to the listing of forms, in proper (a) Filing jurisdiction. Any alien who withholding of removal, as provided numerical sequence, to read as follows: under 8 CFR part 208. believes he or she is a refugee as defined * * * * * § 103.7 Fees in section 101(a)(42) of the Act, and is * * * * * included in a refugee group identified in § 103.5 [Amended] (b) * * * section 207(a) of the Act, may apply for 32. Section 103.5 is amended by: (1) * * * admission to the United States by filing a. Removing paragraph (a)(1)(iii)(B); an application in accordance with * * * * * § 207.2 with the Service office having b. Redesignating paragraphs Form EOIR–42. For filing application for (a)(1)(iii)(C) through (F) as paragraphs cancellation of removal under section 240A jurisdiction over the area where the (a)(1)(iii)(B) through (E), respectively; of the Act—$100.00. (A single fee of $100.00 applicant is located. In those areas too and will be charged whenever cancellation of distant from a Service office, the c. Removing paragraph (a)(5)(iii). removal applications are filed by two or more application may be filed at a designated 33. In § 103.5a, paragraph (c)(1) is aliens in the same proceedings). United States consular office. revised to read as follows: * * * * * * * * * * 40. Section 207.3 is revised to read as § 103.5a Service of notification, decisions, PART 204ÐIMMIGRANT PETITIONS follows: and other papers by the Service. * * * * * 36. The authority citation for part 204 § 207.3 Waivers of inadmissibility. (c) * * * continues to read as follows: (a) Authority. Section 207(c)(3) of the (1) Generally. In any proceeding Authority: 8 U.S.C. 1101, 1103, 1151, 1153, Act sets forth grounds of inadmissibility which is initiated by the Service, with 1154, 1182, 1186a, 1255; 8 CFR part 2. under section 212(a) of the Act which proposed adverse effect, service of the 37. Section 204.2 is amended by: are not applicable and those which may initiating notice and of notice of any a. Revising paragraph (a)(1)(iii) be waived in the case of an otherwise decision by a Service officer shall be introductory text; qualified refugee and the conditions accomplished by personal service, b. Removing paragraphs (a)(1)(iii)(A) under which such waivers may be except as provided in section 239 of the through (C); and approved. Officers in charge of overseas Act. c. Redesignating paragraphs offices are delegated authority to initiate * * * * * (a)(1)(iii)(D) through (I) as paragraphs the necessary investigations to establish 34. In § 103.6, paragraph (a) is revised (a)(1)(iii)(A) through (F) respectively, to the facts in each waiver application to read as follows: read as follows: pending before them and to approve or deny such waivers. § 103.6 Surety bonds. § 204.2 Petitions for relatives, widows, and (b) Filing requirements. The applicant (a) Posting of surety bonds.—(1) widowers, and abused spouses and for a waiver must submit Form I–602, Extension agreements; consent of surety; children. Application by Refugee for Waiver of collateral security. All surety bonds (a) * * * Grounds of Inadmissibility, with the posted in immigration cases shall be (1) * * * Service office processing his or her case. executed on Form I–352, Immigration (iii) Marriage during proceedings— The burden is on the applicant to show Bond, a copy of which, and any rider general prohibition against approval of that the waiver should be granted based attached thereto, shall be furnished the visa petition. A visa petition filed on upon humanitarian grounds, family Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10337 unity, or the public interest. The withholding of removal under section provided in § 208.16(a), an asylum applicant shall be notified in writing of 241(b)(3) of the Act, whether before an officer shall not decide whether an alien the decision, including the reasons for asylum officer or an immigration judge, is entitled to withholding of removal denial, if the application is denied. regardless of the date of filing. For under section 241(b)(3) of the Act. There is no appeal from such decision. purposes of this chapter, withholding of (b) Immigration Court—(1) Certain removal shall also mean withholding of aliens not entitled to proceedings under § 207.8 [Amended] deportation under section 243(h) of the section 240 of the Act. After Form I–863, 41. Section 207.8 is amended in the Act, as it appeared prior to April 1, Notice of Referral to Immigration Judge, last sentence by revising the reference to 1997, except as provided in § 208.16(c). has been filed with the Immigration ‘‘sections 235, 236, and 237’’ to read Such applications are hereinafter Court, an immigration judge shall have ‘‘sections 235, 240, and 241’’. referred to generically as asylum exclusive jurisdiction over any asylum 42. Part 208 is revised to read as applications. The provisions of this part application filed on or after April 1, follows: shall not affect the finality or validity of 1997, by: any decision made by a district director, (i) An alien crewmember who: PART 208ÐPROCEDURES FOR an immigration judge, or the Board of (A) Is an applicant for a landing ASYLUM AND WITHHOLDING OF Immigration Appeals in any such case permit; REMOVAL prior to April 1, 1997. No asylum (B) Has been refused permission to Subpart AÐAsylum and Withholding of application that was filed with a district land under section 252 of the Act; or Removal director, asylum officer or immigration (C) On or after April 1, 1997, was granted permission to land under Sec. judge prior to April 1, 1997, may be 208.1 General. reopened or otherwise reconsidered section 252 of the Act, regardless of 208.2 Jurisdiction. under the provisions of this part except whether the alien has remained in the 208.3 Form of application. by motion granted in the exercise of United States longer than authorized; 208.4 Filing the application. discretion by the Board of Immigration (ii) An alien stowaway who has been 208.5 Special duties toward aliens in Appeals, an immigration judge, or an found to have a credible fear of custody of the Service. asylum officer for proper cause shown. persecution pursuant to the procedure 208.6 Disclosure to third parties. Motions to reopen or reconsider must set forth in subpart B of this part; 208.7 Employment authorization. meet the requirements of sections (iii) An alien who is an applicant for 208.8 Limitations on travel outside the admission pursuant to the Visa Waiver United States. 240(c)(5) and (c)(6) of the Act, and 8 208.9 Procedure for interview before an CFR parts 3 and 103, where applicable. Pilot Program under section 217 of the asylum officer. (b) Training of asylum officers. The Act; 208.10 Failure to appear at an interview Director of International Affairs shall (iv) An alien who was admitted to the before an asylum officer. ensure that asylum officers receive United States pursuant to the Visa 208.11 Comments from the Department of special training in international human Waiver Pilot Program under section 217 State. rights law, nonadversarial interview of the Act and has remained longer than 208.12 Reliance on information compiled techniques, and other relevant national authorized or has otherwise violated his by other sources. and international refugee laws and or her immigration status; 208.13 Establishing asylum eligibility. principles. The Director of International (v) An alien who has been ordered 208.14 Approval, denial, or referral of removed under section 235(c) of the application. Affairs shall also, in cooperation with 208.15 Definition of ‘‘firm resettlement.’’ the Department of State and other Act; or 208.16 Withholding of removal. appropriate sources, compile and (vi) An alien who is an applicant for 208.17 Decisions. disseminate to asylum officers admission, or has been admitted, as an 208.18 Determining if an asylum information concerning the persecution alien classified under section application is frivolous. of persons in other countries on account 101(a)(15)(S) of the Act. 208.19 Admission of the asylee’s spouse of race, religion, nationality, (2) Rules of procedure. (i) General. and children. membership in a particular social group, Proceedings falling under the 208.20 Effect on exclusion, deportation, and or political opinion, as well as other jurisdiction of the immigration judge removal proceedings. pursuant to paragraph (b)(1) of this 208.21 Restoration of status. information relevant to asylum 208.22 Termination of asylum or determinations, and shall maintain a section shall be conducted in withholding of removal or deportation. documentation center with information accordance with the same rules of 208.23—29 [Reserved] on human rights conditions. procedure as proceedings conducted under 8 CFR part 240, except the scope Subpart BÐCredible Fear of Persecution § 208.2 Jurisdiction. of review shall be limited to a 208.30 Credible fear determinations (a) Office of International Affairs. determination of whether the alien is involving stowaways and applicants for Except as provided in paragraph (b) of eligible for asylum or withholding of admission found inadmissible pursuant this section, the Office of International removal and whether asylum shall be to section 212(a)(6)(C) or 212(a)(7) of the Affairs shall have initial jurisdiction Act. granted in the exercise of discretion. over an asylum application filed by, or During such proceedings all parties are Authority: 8 U.S.C. 1103, 1158, 1226, 1252, a credible fear determination pertaining 1282; 8 CFR part 2. prohibited from raising or considering to, an alien physically present in the any other issues, including but not Subpart AÐAsylum and Withholding United States or seeking admission at a limited to issues of admissibility, or Removal port-of-entry. An application that is removability, eligibility for waivers, and complete within the meaning of eligibility for any form of relief other § 208.1 General. § 208.3(c)(3) shall be either adjudicated than asylum or withholding of removal. (a) Applicability. Unless otherwise or referred by asylum officers under this (ii) Notice of hearing procedures and provided in this chapter, this subpart part in accordance with § 208.14. An in-absentia decisions. The alien will be shall apply to all applications for application that is incomplete within provided with notice of the time and asylum under section 208 of the Act or the meaning of § 208.3(c)(3) shall be place of the proceeding. The request for for withholding of deportation or returned to the applicant. Except as asylum and withholding of removal 10338 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations submitted by an alien who fails to (b) An asylum application shall be United States Code and to civil appear for the hearing shall be denied. deemed to constitute at the same time penalties under section 274C of the Act; The denial of asylum and withholding an application for withholding of and of removal for failure to appear may be removal, unless adjudicated in (5) Knowingly filing a frivolous reopened only upon a motion filed with deportation or exclusion proceedings application on or after April 1, 1997, so the immigration judge with jurisdiction commenced prior to April 1, 1997. In long as the applicant has received the over the case. Only one motion to such instances, the asylum application notice required by section 208(d)(4) of reopen may be filed, and it must be filed shall be deemed to constitute an the Act, shall render the applicant within 90 days, unless the alien application for withholding of permanently ineligible for any benefits establishes that he or she did not receive deportation under section 243(h) of the under the Act pursuant to § 208.18. notice of the hearing date or was in Act, as that section existed prior to Federal or State custody on the date April 1, 1997. Where a determination is § 208.4 Filing the application. directed to appear. The motion must made that an applicant is ineligible to Except as prohibited in paragraph (a) include documentary evidence which apply for asylum under section 208(a)(2) of this section, asylum applications demonstrates that: of the Act, an asylum application shall shall be filed in accordance with (A) The alien did not receive the be construed as an application for paragraph (b) of this section. notice; withholding of removal. (a) Prohibitions on filing. Section (B) The alien was in Federal or State (c) Form I–589 shall be filed under the 208(a)(2) of the Act prohibits certain custody and the failure to appear was following conditions and shall have the aliens from filing for asylum on or after through no fault of the alien; or following consequences: April 1, 1997, unless the alien can (C) ‘‘Exceptional circumstances,’’ as (1) If the application was filed on or demonstrate to the satisfaction of the defined in section 240(e)(1) of the Act, after January 4, 1995, information Attorney General that one of the caused the failure to appear. provided in the application may be used exceptions in section 208(a)(2)(D) of the (iii) Relief. The filing of a motion to as a basis for the initiation of removal Act applies. Such prohibition applies reopen shall not stay removal of the proceedings, or to satisfy any burden of only to asylum applications under alien unless the immigration judge proof in exclusion, deportation, or section 208 of the Act and not to grants a written request for a stay removal proceedings; applications for withholding of removal pending disposition of the motion. An (2) The applicant and anyone other under section 241 of the Act. If an alien who fails to appear for a than a spouse, parent, son, or daughter applicant submits an asylum proceeding under this section shall not of the applicant who assists the application and it appears that one or be eligible for relief under section 208, applicant in preparing the application more of the prohibitions contained in 212(h), 212(i), 240A, 240B, 245, 248, or must sign the application under penalty section 208(a)(2) of the Act apply, an 249 for a period of 10 years after the of perjury. The applicant’s signature asylum officer or an immigration judge date of the denial. establishes a presumption that the shall review the application to (3) Other aliens. Immigration judges applicant is aware of the contents of the determine if the application should be shall have exclusive jurisdiction over application. A person other than a rejected or denied. For the purpose of asylum applications filed by an alien relative specified in this paragraph who making determinations under section who has been served Form I–221, Order assists the applicant in preparing the 208(a)(2) of the Act, the following rules to Show Cause; Form I–122, Notice to application also must provide his or her shall apply: Applicant for Admission Detained for a full mailing address; (1) Authority. Only an asylum officer, Hearing before an Immigration Judge; or (3) An asylum application that does an immigration judge, or the Board of Form I–862, Notice to Appear, after a not include a response to each of the Immigration Appeals is authorized to copy of the charging document has been questions contained in the Form I–589, make determinations regarding the filed with the Immigration Court. is unsigned, or is unaccompanied by the prohibitions contained in section Immigration judges shall also have required materials specified in 208(a)(2)(B) or (C) of the Act; jurisdiction over any asylum paragraph (a) of this section is (2) One-year filing deadline. (i) For applications filed prior to April 1, 1997, incomplete. The filing of an incomplete purposes of section 208(a)(2)(B) of the by alien crewmembers who have application shall not commence the Act, an applicant has the burden of remained in the United States longer 150-day period after which the proving than authorized, by applicants for applicant may file an application for (A) By clear and convincing evidence admission under the Visa Waiver Pilot employment authorization in that he or she applied within one year Program, and by aliens who have been accordance with § 208.7. An application of the alien’s arrival in the United States admitted to the United States under the that is incomplete shall be returned by or Visa Waiver Pilot Program. mail to the applicant within 30 days of (B) To the satisfaction of the asylum the receipt of the application by the officer, immigration judge, or Board of § 208.3 Form of application. Service. If the Service has not mailed Immigration Appeals that he or she (a) An asylum applicant must file the incomplete application back to the qualifies for an exception to the one- Form I–589, Application for Asylum or applicant within 30 days, it shall be year deadline. Withholding of Removal, together with deemed complete. An application (ii) The one-year period shall be any additional supporting evidence in returned to the applicant as incomplete calculated from the date of the alien’s accordance with the instructions on the shall be resubmitted by the applicant last arrival in the United States or April form. The applicant’s spouse and with the additional information if he or 1, 1997, whichever is later. In the case children shall be listed on the she wishes to have the application of an application that appears to have application and may be included in the considered; been filed more than a year after the request for asylum if they are in the (4) Knowing placement of false applicant arrived in the United States, United States. One additional copy of information on the application may an asylum officer or immigration judge the principal applicant’s Form I–589 subject the person placing that will determine whether the applicant must be submitted for each dependent information on the application to qualifies under one of the exceptions to included in the principal’s application. criminal penalties under title 18 of the the deadline; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10339

(3) Prior denial of application. For with respect to any violation of of Immigration Appeals under 8 CFR purposes of section 208(a)(2)(C) of the counsel’s ethical or legal part 3. Any such motion must Act, an asylum application has not been responsibilities, and if not, why not; reasonably explain the failure to request denied unless denied by an immigration (iv) The applicant maintained asylum prior to the completion of the judge or the Board of Immigration Temporary Protected Status until a proceedings. Appeals; reasonable period before the filing of the (5) With the district director. In the (4) Changed circumstances. (i) The asylum application; and case of any alien described in term ‘‘changed circumstances’’ in (v) The applicant submitted an § 208.2(b)(1) and prior to the service on section 208(a)(2)(D) of the Act shall refer asylum application prior to the the alien of Form I–863, any asylum to circumstances materially affecting the expiration of the 1-year deadline, but application shall be submitted to the applicant’s eligibility for asylum. They that application was rejected by the district director having jurisdiction may include: Service as not properly filed, was pursuant to 8 CFR part 103. The district (A) Changes in conditions in the returned to the applicant for corrections, director shall forward such asylum applicant’s country of nationality or, if and was refiled within a reasonable application to the appropriate the person is stateless, country of last period thereafter. Immigration Court with the Form I–863 habitual residence or (b) Filing location—(1) With the being filed with that Immigration Court. (B) Changes in objective service center by mail. Except as (c) Amending an application after circumstances relating to the applicant provided in paragraphs (b)(2), (b)(3), filing. Upon request of the alien and as in the United States, including changes (b)(4) and (b)(5) of this section, asylum a matter of discretion, the asylum officer in applicable U.S. law, that create a applications shall be filed directly by or immigration judge having jurisdiction reasonable possibility that applicant mail with the service center servicing may permit an asylum applicant to may qualify for asylum. the asylum office with jurisdiction over amend or supplement the application, (ii) The applicant shall apply for the place of the applicant’s residence or, but any delay caused by such request asylum within a reasonable period given in the case of an alien without a United shall extend the period within which those ‘‘changed circumstances.’’ States residence, the applicant’s current the applicant may not apply for (5) The term extraordinary lodging or the land border port-of-entry employment authorization in circumstances in section 208(a)(2)(D) of through which the alien seeks accordance with § 208.7(a). the Act shall refer to events or factors admission to the United States. beyond the alien’s control that caused (2) With the asylum office. Asylum § 208.5 Special duties toward aliens in custody of the Service. the failure to meet the 1-year deadline. applications shall be filed directly with Such circumstances shall excuse the the asylum office having jurisdiction (a) General. When an alien in the failure to file within the 1-year period over the matter in the case of an alien custody of the Service requests asylum so long as the alien filed the application who has received the express consent of or withholding of removal or expresses within a reasonable period given those the Director of Asylum to do so. a fear of persecution or harm upon circumstances. The burden of proof is (3) With the immigration judge. return to his or her country of origin or on the applicant to establish to the Asylum applications shall be filed to agents thereof, the Service shall make satisfaction of the asylum officer or directly with the Immigration Court available the appropriate application immigration judge that the having jurisdiction over the case in the forms and shall provide the applicant circumstances were both beyond his or following circumstances: with the information required by section her control and that, but for those (i) During exclusion, deportation, or 208(d)(4) of the Act, except in the case circumstances, he or she would have removal proceedings, with the of an alien who is in custody pending filed within the 1-year period. These Immigration Court having jurisdiction a credible fear of persecution circumstances may include: over the port, district office, or sector determination under section (i) Serious illness or mental or after service and filing of the 235(b)(1)(B) of the Act. Where possible, physical disability of significant appropriate charging document. expedited consideration shall be given duration, including any effects of (ii) After completion of exclusion, to applications of detained aliens. persecution or violent harm suffered in deportation, or removal proceedings, Except as provided in paragraph (c) of the past, during the 1-year period after and in conjunction with a motion to this section, such alien shall not be arrival; reopen pursuant to 8 CFR part 3 where excluded, deported, or removed before a (ii) Legal disability (e.g., the applicant applicable, with the Immigration Court decision is rendered on his or her was an unaccompanied minor or having jurisdiction over the prior asylum application. suffered from a mental impairment) proceeding. Any such motion must (b) Certain aliens aboard vessels. (1) during the first year after arrival; reasonably explain the failure to request If an alien crewmember or alien (iii) Ineffective assistance of counsel, asylum prior to the completion of the stowaway on board a vessel or other provided that: proceedings. conveyance alleges, claims, or otherwise (A) The alien files an affidavit setting (iii) In asylum proceedings pursuant makes known to an immigration forth in detail the agreement that was to § 208.2(b)(1) and after the Notice of inspector or other official making an entered into with counsel with respect Referral to Immigration Judge has been examination on the conveyance that he to the actions to be taken and what served on the alien and filed with the or she is unable or unwilling to return representations counsel did or did not Immigration Court having jurisdiction to his or her country of nationality or make to the respondent in this regard; over the case. last habitual residence (if not a national (B) The counsel whose integrity or (4) With the Board of Immigration of any country) because of persecution competence is being impugned has been Appeals. In conjunction with a motion or a fear of persecution in that country informed of the allegations leveled to remand or reopen pursuant to §§ 3.2 on account of race, religion, nationality, against him or her and given an and 3.8 of this chapter where membership in a particular social group, opportunity to respond; and applicable, an initial asylum application or political opinion, the alien shall be (C) The alien indicates whether a shall be filed with the Board of promptly removed from the conveyance. complaint has been filed with Immigration Appeals if jurisdiction over If the alien makes such fear known to an appropriate disciplinary authorities the proceedings is vested in the Board official while off such conveyance, the 10340 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations alien shall not be returned to the (i) The adjudication of asylum filing of the asylum application filed on conveyance but shall be retained in or applications; or after April 1, 1997. transferred to the custody of the Service. (ii) The defense of any legal action (2) The time periods within which the (i) An alien stowaway will be referred arising from the adjudication of or alien may not apply for employment to an asylum officer for a credible fear failure to adjudicate the asylum authorization and within which the determination under § 208.30. application; Service must respond to any such (ii) An alien crewmember shall be (iii) The defense of any legal action of application and within which the provided the appropriate application which the asylum application is a part; asylum application must be adjudicated forms and information required by or pursuant to section 208(d)(5)(A)(iii) of section 208(d)(4) of the Act and may (iv) Any United States Government the Act shall begin when the alien has then have 10 days within which to investigation concerning any criminal or filed a complete asylum application in submit an asylum application to the civil matter; or accordance with §§ 208.3 and 208.4. district director having jurisdiction over (2) Any Federal, state, or local court Any delay requested or caused by the the port of entry. The district director, in the United States considering any applicant shall not be counted as part of pursuant to § 208.4(b), shall serve Form legal action: these time periods. Such time periods I–863 on the alien and immediately (i) Arising from the adjudication of or also shall be extended by the equivalent forward any such application to the failure to adjudicate the asylum of the time between issuance of a appropriate Immigration Court with a application; or request for evidence under § 103.2(b)(8) copy of the Form I–863 being filed with (ii) Arising from the proceedings of of this chapter and the receipt of the that court. which the asylum application is a part. applicant’s response to such request. (2) Pending adjudication of the § 208.7 Employment authorization. (3) The provisions of paragraphs (a)(1) application, and, in the case of a and (a)(2) of this section apply to (a) Application and approval. (1) applications for asylum filed on or after stowaway the credible fear Subject to the restrictions contained in determination and any review thereof, January 4, 1995. sections 208(d) and 236(a) of the Act, an (4) Employment authorization the alien may be detained by the Service applicant for asylum who is not an or otherwise paroled in accordance with pursuant to § 274a.12(c)(8) of this aggravated felon shall be eligible chapter may not be granted to an alien § 212.5 of this chapter. However, pursuant to §§ 274a.12(c)(8) and pending the credible fear determination, who fails to appear for a scheduled 274a.13(a) of this chapter to submit a interview before an asylum officer or a parole of an alien stowaway may be Form I–765, Application for permitted only when the Attorney hearing before an immigration judge, Employment Authorization. Except in unless the applicant demonstrates that General determines, in the exercise of the case of an alien whose asylum discretion, that parole is required to the failure to appear was the result of application has been recommended for exceptional circumstances. meet a medical emergency or is approval, or in the case of an alien who necessary for a legitimate law (b) Renewal and termination. filed an asylum application prior to Employment authorization shall be enforcement objective. January 4, 1995, the application shall be (c) Exception to prohibition on renewable, in increments to be submitted no earlier than 150 days after removal. A motion to reopen or an order determined by the Commissioner, for the date on which a complete asylum to remand accompanied by an asylum the continuous period of time necessary application submitted in accordance application pursuant to § 208.4(b)(3)(iii) for the asylum officer or immigration with §§ 208.3 and 208.4 has been shall not stay execution of a final judge to decide the asylum application received. In the case of an applicant exclusion, deportation, or removal order and, if necessary, for completion of any whose asylum application has been unless such stay is specifically granted administrative or judicial review. recommended for approval, the by the Board of Immigration Appeals or (1) If the asylum application is denied applicant may apply for employment the immigration judge having by the asylum officer, the employment authorization when he or she receives jurisdiction over the motion. authorization shall terminate at the notice of the recommended approval. If expiration of the employment § 208.6 Disclosure to third parties. an asylum application has been authorization document or 60 days after (a) Information contained in or returned as incomplete in accordance the denial of asylum, whichever is pertaining to any asylum application with § 208.3(c)(3), the 150-day period longer. shall not be disclosed without the will commence upon receipt by the (2) If the application is denied by the written consent of the applicant, except Service of a complete asylum immigration judge, the Board of as permitted by this section or at the application. An applicant whose asylum Immigration Appeals, or a Federal court, discretion of the Attorney General. application has been denied by an the employment authorization (b) The confidentiality of other asylum officer or by an immigration terminates upon the expiration of the records kept by the Service that indicate judge within the 150-day period shall employment authorization document, that a specific alien has applied for not be eligible to apply for employment unless the applicant has filed an asylum shall also be protected from authorization. If an asylum application appropriate request for administrative or disclosure. The Service will coordinate is denied prior to a decision on the judicial review. with the Department of State to ensure application for employment (c) Supporting evidence for renewal of that the confidentiality of these records authorization, the application for employment authorization. In order for is maintained if they are transmitted to employment authorization shall be employment authorization to be Department of State offices in other denied. If the asylum application is not renewed under this section, the alien countries. so denied, the Service shall have 30 must provide the Service (in accordance (c) This section shall not apply to any days from the date of filing of the Form with the instructions on or attached to disclosure to: I–765 to grant or deny that application, the employment authorization (1) Any United States Government except that no employment application) with a Form I–765, the official or contractor having a need to authorization shall be issued to an required fee (unless waived in examine information in connection asylum applicant prior to the expiration accordance with § 103.7(c) of this with: of the 180-day period following the chapter), and (if applicable) proof that Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10341 he or she has continued to pursue his and useful information bearing on the applicant, any comments submitted by or her asylum application before an applicant’s eligibility for asylum. At the the Department of State or by the immigration judge or sought time of the interview, the applicant Service, and any other information administrative or judicial review. For must provide complete information specific to the applicant’s case and purposes of employment authorization, regarding his or her identity, including considered by the asylum officer shall pursuit of an asylum application is name, date and place of birth, and comprise the record. established by presenting to the Service nationality, and may be required to (g) An applicant unable to proceed one of the following, depending on the register this identity electronically or with the interview in English must stage of the alien’s immigration through any other means designated by provide, at no expense to the Service, a proceedings: the Attorney General. The applicant competent interpreter fluent in both (1) If the alien’s case is pending in may have counsel or a representative English and the applicant’s native proceedings before the immigration present, may present witnesses, and language or any other language in which judge, and the alien wishes to continue may submit affidavits of witnesses and the applicant is fluent. The interpreter to pursue his or her asylum application, other evidence. must be at least 18 years of age. Neither a copy of any asylum denial, referral (c) The asylum officer shall have the applicant’s attorney or notice, or charging document placing authority to administer oaths, verify the representative of record, a witness the alien in such proceedings; identity of the applicant (including testifying on the applicant’s behalf, nor (2) If the immigration judge has through the use of electronic means), a representative or employee of the denied asylum, a copy of the document verify the identity of any interpreter, applicant’s country of nationality, or if issued by the Board of Immigration present and receive evidence, and stateless, country of last habitual Appeals to show that a timely appeal question the applicant and any residence, may serve as the applicant’s has been filed from a denial of the witnesses. interpreter. Failure without good cause asylum application by the immigration (d) Upon completion of the interview, to comply with this paragraph may be judge; or the applicant or the applicant’s considered a failure to appear for the (3) If the Board of Immigration representative shall have an opportunity interview for purposes of § 208.10. Appeals has dismissed the alien’s to make a statement or comment on the appeal of a denial of asylum, or evidence presented. The asylum officer § 208.10 Failure to appear at an interview before an asylum officer. sustained an appeal by the Service of a may, in his or her discretion, limit the grant of asylum, a copy of the petition length of such statement or comment Failure to appear for a scheduled for judicial review or for habeas corpus and may require its submission in interview without prior authorization pursuant to section 242 of the Act, date writing. Upon completion of the may result in dismissal of the stamped by the appropriate court. interview, the applicant shall be application or waiver of the right to an (d) In order for employment informed that he or she must appear in interview. Failure to appear shall be authorization to be renewed before its person to receive and to acknowledge excused if the notice of the interview expiration, the application for renewal receipt of the decision of the asylum was not mailed to the applicant’s must be received by the Service 90 days officer and any other accompanying current address and such address had prior to expiration of the employment material at a time and place designated been provided to the Office of authorization. by the asylum officer, except as International Affairs by the applicant otherwise provided by the asylum prior to the date of mailing in § 208.8 Limitations on travel outside the officer. An applicant’s failure to appear accordance with section 265 of the Act United States. to receive and acknowledge receipt of and regulations promulgated (a) An applicant who leaves the the decision shall be treated as delay thereunder, unless the asylum officer United States without first obtaining caused by the applicant for purposes of determines that the applicant received advance parole under § 212.5(e) of this § 208.7(a)(3) and shall extend the period reasonable notice of the interview. chapter shall be presumed to have within which the applicant may not Failure to appear will be excused if the abandoned his or her application under apply for employment authorization by applicant demonstrates that such failure this section. the number of days until the applicant was the result of exceptional (b) An applicant who leaves the does appear to receive and acknowledge circumstances. United States pursuant to advance receipt of the decision or until the parole under § 212.5(e) of this chapter applicant appears before an immigration § 208.11 Comments from the Department and returns to the country of claimed judge in response to the issuance of a of State. persecution shall be presumed to have charging document under § 208.14(b). (a) The Service shall forward to the abandoned his or her application, (e) The asylum officer shall consider Department of State a copy of each unless the applicant is able to establish evidence submitted by the applicant completed application it receives. At its compelling reasons for such return. together with his or her asylum option, the Department of State may application, as well as any evidence provide detailed country conditions § 208.9 Procedure for interview before an submitted by the applicant before or at information relevant to eligibility for asylum officer. the interview. As a matter of discretion, asylum or withholding of removal. (a) The Service shall adjudicate the the asylum officer may grant the (b) At its option, the Department of claim of each asylum applicant whose applicant a brief extension of time State may also provide: application is complete within the following an interview during which the (1) An assessment of the accuracy of meaning of § 208.3(c)(3) and is within applicant may submit additional the applicant’s assertions about the jurisdiction of the Service. evidence. Any such extension shall conditions in his or her country of (b) The asylum officer shall conduct extend by an equivalent time the nationality or habitual residence and his the interview in a nonadversarial periods specified by § 208.7 for the or her particular situation; manner and, except at the request of the filing and adjudication of any (2) Information about whether persons applicant, separate and apart from the employment authorization application. who are similarly situated to the general public. The purpose of the (f) The asylum application, all applicant are persecuted in his or her interview shall be to elicit all relevant supporting information provided by the country of nationality or habitual 10342 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations residence and the frequency of such that he or she is unable or unwilling to or her fear of persecution upon return is persecution; or return to or avail himself or herself of reasonable. (3) Such other information as it deems the protection of that country owing to (c) Mandatory denials. (1) relevant. such persecution. Applications filed on or after April 1, (c) Asylum officers and immigration (i) If it is determined that the 1997. For applications filed on or after judges may request specific comments applicant has established past April 1, 1997, an applicant shall not from the Department of State regarding persecution, he or she shall be qualify for asylum if section 208(a)(2) or individual cases or types of claims presumed also to have a well-founded 208(b)(2) of the Act applies to the under consideration, or such other fear of persecution unless a applicant. If the applicant is found to be information as they deem appropriate. preponderance of the evidence ineligible for asylum under either (d) Any such comments received establishes that since the time the section 208(a)(2) or 208(b)(2) of the Act, pursuant to paragraphs (b) and (c) of persecution occurred conditions in the the applicant shall be considered for this section shall be made part of the applicant’s country of nationality or last eligibility for withholding of removal record. Unless the comments are habitual residence have changed to such under section 241(b)(3) of the Act. classified under the applicable an extent that the applicant no longer (2) Applications filed before April 1, Executive Order, the applicant shall be has a well-founded fear of being 1997. (i) An immigration judge or provided an opportunity to review and persecuted if he or she were to return. asylum officer shall not grant asylum to respond to such comments prior to the (ii) An application for asylum shall be any applicant who filed his or her issuance of any decision to deny the denied if the applicant establishes past application before April 1, 1997, if the application. persecution under this paragraph but it alien: is also determined that he or she does (A) Having been convicted by a final § 208.12 Reliance on information compiled not have a well-founded fear of future judgment of a particularly serious crime by other sources. persecution under paragraph (b)(2) of in the United States, constitutes a (a) In deciding an asylum application, this section, unless it is determined that danger to the community; or whether the alien has a credible fear the applicant has demonstrated (B) Has been firmly resettled within of persecution pursuant to section compelling reasons for being unwilling the meaning of § 208.15; 235(b)(1)(B) of the Act, the asylum to return to his or her country of (C) Can reasonably be regarded as a officer may rely on material provided by nationality or last habitual residence danger to the security of the United the Department of State, the Office of arising out of the severity of the past States; International Affairs, other Service persecution. If the applicant (D) Has been convicted of an offices, or other credible sources, such demonstrates such compelling reasons, aggravated felony, as defined in section as international organizations, private he or she may be granted asylum unless 101(a)(43) of the Act; or voluntary agencies, news organizations, such a grant is barred by paragraph (c) (E) Ordered, incited, assisted, or or academic institutions. of this section . otherwise participated in the (b) Nothing in this part shall be (2) Well-founded fear of persecution. persecution of any person on account of construed to entitle the applicant to An applicant shall be found to have a race, religion, nationality, membership conduct discovery directed toward the well-founded fear of persecution if he or in a particular social group, or political records, officers, agents, or employees of she can establish first, that he or she has opinion. the Service, the Department of Justice, a fear of persecution in his or her (ii) If the evidence indicates that one or the Department of State. country of nationality or last habitual of the above grounds apply to the residence on account of race, religion, § 208.13 Establishing asylum eligibility. applicant, he or she shall have the nationality, membership in a particular burden of proving by a preponderance (a) Burden of proof. The burden of social group, or political opinion; of the evidence that he or she did not proof is on the applicant for asylum to second, that there is a reasonable so act. establish that he or she is a refugee as possibility of suffering such persecution (d) Discretionary denial. An asylum defined in section 101(a)(42) of the Act. if he or she were to return to that application may be denied in the The testimony of the applicant, if country; and third, that he or she is discretion of the Attorney General if the credible, may be sufficient to sustain the unable or unwilling to return to or avail alien can be removed to a third country burden of proof without corroboration. himself or herself of the protection of which has offered resettlement and in The fact that the applicant previously that country because of such fear. In which the alien would not face harm or established a credible fear of evaluating whether the applicant has persecution. persecution for purposes of section sustained his or her burden of proving 235(b)(1)(B) of the Act does not relieve that he or she has a well-founded fear § 208.14 Approval, denial, or referral of the alien of the additional burden of of persecution, the asylum officer or application. establishing eligibility for asylum. immigration judge shall not require the (a) By an immigration judge. Unless (b) Persecution. The applicant may applicant to provide evidence that he or otherwise prohibited in § 208.13(c), an qualify as a refugee either because he or she would be singled out individually immigration judge may grant or deny she has suffered past persecution or for persecution if: asylum in the exercise of discretion to because he or she has a well-founded (i) The applicant establishes that there an applicant who qualifies as a refugee fear of future persecution. is a pattern or practice in his or her under section 101(a)(42) of the Act. (1) Past persecution. An applicant country of nationality or last habitual (b) By an asylum officer. Unless shall be found to be a refugee on the residence of persecution of a group of otherwise prohibited in § 208.13(c): basis of past persecution if he or she can persons similarly situated to the (1) An asylum officer may grant establish that he or she has suffered applicant on account of race, religion, asylum in the exercise of discretion to persecution in the past in his or her nationality, membership in a particular an applicant who qualifies as a refugee country of nationality or last habitual social group, or political opinion; and under section 101(a)(42) of the Act. residence on account of race, religion, (ii) The applicant establishes his or (2) If the alien appears to be nationality, membership in a particular her own inclusion in and identification deportable, excludable or removable social group, or political opinion, and with such group of persons such that his under section 240 of the Act, the asylum Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10343 officer shall either grant asylum or refer live, the type of housing made available country on account of race, religion, the application to an immigration judge to the refugee, whether permanent or nationality, membership in a particular for adjudication in deportation, temporary, the types and extent of social group, or political opinion, the exclusion, or removal proceedings. An employment available to the refugee, asylum officer or immigration judge asylum officer may refer such an and the extent to which the refugee shall not require the applicant to application after an interview received permission to hold property provide evidence that he or she would conducted in accordance with § 208.9 or and to enjoy other rights and privileges, be singled out individually for such if, in accordance with § 208.10, the such as travel documentation including persecution if: applicant is deemed to have waived his a right of entry or reentry, education, (i) The applicant establishes that there or her right to an interview. public relief, or naturalization, is a pattern or practice in the country of (3) If the applicant is maintaining ordinarily available to others resident in proposed removal of persecution of a valid nonimmigrant status at the time the country. group of persons similarly situated to the application is decided, the asylum the applicant on account of race, officer may grant or deny asylum, § 208.16 Withholding of removal. religion, nationality, membership in a except in the case of an applicant (a) Consideration of application for particular social group, or political described in § 208.2(b)(1). withholding of removal. An asylum opinion; and (c) Applicability of § 103.2(b) of this officer shall not decide whether the (ii) The applicant establishes his or chapter. No application for asylum or exclusion, deportation, or removal of an her own inclusion in and identification withholding of deportation shall be alien to a country where the alien’s life with such group of persons such that it subject to denial pursuant to § 103.2(b) or freedom would be threatened must be is more likely than not that his or her of this chapter. withheld, except in the case of an alien life or freedom would be threatened (d) Duration. If the alien’s asylum who is otherwise eligible for asylum but upon return. application is granted, the grant will be is precluded from being granted such (c) Approval or denial of application. effective for an indefinite period, subject status due solely to section 207(a)(5) of (1) General. Subject to paragraphs (c)(2) to termination as provided in § 208.22. the Act. In exclusion, deportation, or and (c)(3) of this section, an application (e) Effect of denial of principal’s removal proceedings, an immigration for withholding of deportation or application on separate applications by judge may adjudicate both an asylum removal to a country of proposed dependents. The denial of an asylum claim and a request for withholding of removal shall be granted if the application filed by a principal removal whether or not asylum is applicant’s eligibility for withholding is applicant for asylum shall also result in granted. established pursuant to paragraph (b) of the denial of asylum status to any (b) Eligibility for withholding of this section. dependents of that principal applicant removal; burden of proof. The burden of (2) Mandatory denials. Except as who are included in that same proof is on the applicant for provided in paragraph (c)(3) of this application. Such denial shall not withholding of removal to establish that section, an application for withholding preclude a grant of asylum for an his or her life or freedom would be of removal shall be denied if the otherwise eligible dependent who has threatened in the proposed country of applicant falls within section filed a separate asylum application, nor removal on account of race, religion, 241(b)(3)(B) of the Act or, for shall such denial result in an otherwise nationality, membership in a particular applications for withholding of eligible dependent becoming ineligible social group, or political opinion. The deportation adjudicated in proceedings to apply for asylum due to the testimony of the applicant, if credible, commenced prior to April 1, 1997, provisions of section 208(a)(2)(C) of the may be sufficient to sustain the burden within section 243(h)(2) of the Act as it Act. of proof without corroboration. The appeared prior to that date. For evidence shall be evaluated as follows: purposes of section 241(b)(3)(B)(ii) of § 208.15 Definition of ``firm resettlement.'' (1) The applicant’s life or freedom the Act, or section 243(h)(2)(B) of the An alien is considered to be firmly shall be found to be threatened if it is Act as it appeared prior to April 1, 1997, resettled if, prior to arrival in the United more likely than not that he or she an alien who has been convicted of a States, he or she entered into another would be persecuted on account of race, particularly serious crime shall be nation with, or while in that nation religion, nationality, membership in a considered to constitute a danger to the received, an offer of permanent resident particular social group, or political community. If the evidence indicates status, citizenship, or some other type of opinion. the applicability of one or more of the permanent resettlement unless he or she (2) If the applicant is determined to grounds for denial enumerated in the establishes: have suffered persecution in the past Act, the applicant shall have the burden (a) That his or her entry into that such that his or her life or freedom was of proving by a preponderance of the nation was a necessary consequence of threatened in the proposed country of evidence that such grounds do not his or her flight from persecution, that removal on account of race, religion, apply. he or she remained in that nation only nationality, membership in a particular (3) Exception to the prohibition on as long as was necessary to arrange social group, or political opinion, it withholding of deportation in certain onward travel, and that he or she did shall be presumed that his or her life or cases. Section 243(h)(3) of the Act, as not establish significant ties in that freedom would be threatened on return added by section 413 of Public Law nation; or to that country unless a preponderance 104–132, shall apply only to (b) That the conditions of his or her of the evidence establishes that applications adjudicated in proceedings residence in that nation were so conditions in the country have changed commenced before April 1, 1997, and in substantially and consciously restricted to such an extent that it is no longer which final action had not been taken by the authority of the country of refuge more likely than not that the applicant before April 24, 1996. The discretion that he or she was not in fact resettled. would be so persecuted there. permitted by that section to override In making his or her determination, the (3) In evaluating whether the section 243(h)(2) of the Act shall be Asylum Officer or Immigration Judge applicant has sustained the burden of exercised only in the case of an shall consider the conditions under proving that his or her life or freedom applicant convicted of an aggravated which other residents of the country would be threatened in a particular felony (or felonies) where he or she was 10344 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations sentenced to an aggregate term of application is frivolous if any of its Department of State, which will send an imprisonment of less than 5 years and material elements is deliberately authorization cable to the American the immigration judge determines on an fabricated. Such finding shall only be Embassy or Consulate having individual basis that the crime (or made if the immigration judge or the jurisdiction over the area in which the crimes) of which the applicant was Board is satisfied that the applicant, asylee’s spouse or child is located. convicted does not constitute a during the course of the proceedings, (e) Denial. If the spouse or child is particularly serious crime. Nevertheless, has had sufficient opportunity to found to be ineligible for the status it shall be presumed that an alien account for any discrepancies or accorded under section 208(c) of the convicted of an aggravated felony has implausible aspects of the claim. Act, a written notice stating the basis for been convicted of a particularly serious denial shall be forwarded to the crime. Except in the cases specified in § 208.19 Admission of the asylee's spouse principal alien. No appeal shall lie from and children. this paragraph, the grounds for denial of this decision. withholding of deportation in section (a) Eligibility. A spouse, as defined in (f) Burden of proof. To establish the 243(h)(2) of the Act as it appeared prior section 101(a)(35) of the Act, 8 U.S.C. claim of relationship of spouse or child to April 1, 1997, shall be deemed to 1101(a)(35), or child, as defined in as defined in section 101(b)(1) of the comply with the 1967 Protocol Relating section 101(b)(1)(A), (B), (C), (D), (E), or Act, evidence must be submitted with to the Status of Refugees. (F) of the Act, also may be granted the request as set forth in part 204 of (d) Reconsideration of discretionary asylum if accompanying or following to this chapter. Where possible this will denial of asylum. In the event that an join the principal alien who was granted consist of the documents specified in 8 applicant is denied asylum solely in the asylum, unless it is determined that: CFR 204.2(c) (2) and (3). The burden of exercise of discretion, and the applicant (1) The spouse or child ordered, proof is on the principal alien to is subsequently granted withholding of incited, assisted, or otherwise establish by a preponderance of the deportation or removal under this participated in the persecution of any evidence that any person on whose section, thereby effectively precluding persons on account of race, religion, behalf he or she is making a request admission of the applicant’s spouse or nationality, membership in a particular under this section is an eligible spouse minor children following to join him or social group, or political opinion; or child. her, the denial of asylum shall be (2) The spouse or child, having been (g) Duration. The spouse or child reconsidered. Factors to be considered convicted by a final judgment of a qualifying under section 208(c) of the will include the reasons for the denial particularly serious crime in the United Act shall be granted asylum for an and reasonable alternatives available to States, constitutes a danger to the indefinite period unless the principal’s the applicant such as reunification with community of the United States; status is revoked. (3) The spouse or child has been his or her spouse or minor children in convicted of an aggravated felony, as § 208.20 Effect on exclusion, deportation, a third country. and removal proceedings. defined in section 101(a)(43) of the Act; § 208.17 Decisions. or (a) An alien who has been granted asylum may not be deported or removed The decision of an asylum officer to (4) There are reasonable grounds for unless his or her asylum status is grant or to deny asylum or withholding regarding the spouse or child a danger to the security of the United States. terminated pursuant to § 208.22. An of removal, or to refer an asylum alien in exclusion, deportation, or application in accordance with (b) Relationship. The relationship of spouse and child as defined in section removal proceedings who is granted § 208.14(b), shall be communicated in withholding of removal or deportation writing to the applicant. Notices of 101(b)(1) of the Act must have existed at the time the principal alien’s asylum may not be deported or removed to the decisions to grant or deny asylum, or to country to which his or her deportation refer an application, by asylum officers application was approved, except for children born to or legally adopted by or removal is ordered withheld unless shall generally be served in person the withholding order is terminated unless, in the discretion of the asylum the principal alien and spouse after approval of the principal alien’s asylum pursuant to § 208.22. office director, routine service by mail is (b) When an alien’s asylum status or appropriate. A letter communicating application. (c) Spouse or child in the United withholding of removal or deportation denial of the application shall state the is terminated under this chapter, the basis for denial of the asylum States. When a spouse or child of an alien granted asylum is in the United Service shall initiate removal application. The letter also shall contain proceedings under section 235 or 240 of an assessment of the applicant’s States but was not included in the principal alien’s application, the the Act, as appropriate, if the alien is credibility, unless the denial is the not already in exclusion, deportation, or result of the applicant’s conviction of an principal alien may request asylum for the spouse or child by filing Form I–730 removal proceedings. Removal aggravated felony. Pursuant to proceedings may also be in conjunction § 208.9(d), an applicant must appear in with the District Director having jurisdiction over his only place of with a termination hearing scheduled person to receive and to acknowledge under § 208.22(e). receipt of the decision. residence, regardless of the status of that spouse or child in the United States. § 208.21 Restoration of status. § 208.18 Determining if an asylum (d) Spouse or child outside the United An alien who was maintaining his or application is frivolous. States. When a spouse or child of an her nonimmigrant status at the time of For applications filed on or after April alien granted asylum is outside the filing an asylum application and has 1, 1997, an applicant is subject to the United States, the principal alien may such application denied may continue provisions of section 208(d)(6) of the request asylum for the spouse or child in or be restored to that status, if it has Act only if a final order by an by filing form I–730 with the District not expired. immigration judge or the Board of Director, setting forth the full name, Immigration Appeals specifically finds relationship, date and place of birth, § 208.22 Termination of asylum or that the alien knowingly filed a and current location of each such withholding of removal or deportation. frivolous asylum application. For person. Upon approval of the request, (a) Termination of asylum by the purposes of this section, an asylum the District Director shall notify the Service. Except as provided in Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10345 paragraph (e) of this section, an asylum that asylum status or withholding of Office for Immigration Review has officer may terminate a grant of asylum deportation or removal and any exclusive jurisdiction to review such made under the jurisdiction of an employment authorization issued determinations. Except as otherwise asylum officer or a district director if pursuant thereto, are terminated. provided in this subpart, paragraphs (b) following an interview, the asylum (d) Termination of derivative status. through (e) of this section are the officer determines that: The termination of asylum status for a exclusive procedures applicable to (1) There is a showing of fraud in the person who was the principal applicant credible fear interviews, determinations, alien’s application such that he or she shall result in termination of the asylum and review under section 235(b)(1)(B) of was not eligible for asylum at the time status of a spouse or child whose status the Act. it was granted; was based on the asylum application of (b) Interview and procedure. The (2) As to applications filed on or after the principal. Such termination shall asylum officer, as defined in section April 1, 1997, one or more of the not preclude the spouse or child of such 235(b)(1)(E) of the Act, will conduct the conditions described in section alien from separately asserting an interview in a nonadversarial manner, 208(c)(2) of the Act exist; or asylum or withholding of deportation or separate and apart from the general (3) As to applications filed before removal claim. public. At the time of the interview, the April 1, 1997, the alien no longer has a (e) Termination of asylum or asylum officer shall verify that the alien well-founded fear of persecution upon withholding of deportation or removal has received Form M–444, Information return due to a change of country by the Executive Office for Immigration about Credible Fear Interview in conditions in the alien’s country of Review. An immigration judge or the Expedited Removal Cases. The officer nationality or habitual residence or the Board of Immigration Appeals may shall also determine that the alien has alien has committed any act that would reopen a case pursuant to § 3.2 or § 3.23 an understanding of the credible fear have been grounds for denial of asylum of this chapter for the purpose of determination process. The alien may be under § 208.13(c)(2). terminating a grant of asylum or (b) Termination of withholding of withholding of deportation or removal required to register his or her identity deportation or removal by the Service. made under the jurisdiction of an electronically or through any other Except as provided in paragraph (e) of immigration judge. In such a reopened means designated by the Attorney this section, an asylum officer may proceeding, the Service must establish, General. The alien may consult with a terminate a grant of withholding of by a preponderance of evidence, one or person or persons of the alien’s deportation or removal made under the more of the grounds set forth in choosing prior to the interview or any jurisdiction of an asylum officer or a paragraphs (a) or (b) of this section. In review thereof, and may present other district director if the asylum officer addition, an immigration judge may evidence, if available. Such consultation determines, following an interview, terminate a grant of asylum or shall be at no expense to the that: withholding of deportation or removal Government and shall not unreasonably (1) The alien is no longer entitled to made under the jurisdiction of the delay the process. Any person or withholding of deportation or removal Service at any time after the alien has persons with whom the alien chooses to due to a change of conditions in the been provided a notice of intent to consult may be present at the interview country to which removal was withheld; terminate by the Service. Any and may be permitted, in the discretion (2) There is a showing of fraud in the termination under this paragraph may of the asylum officer, to present a alien’s application such that the alien occur in conjunction with an exclusion, statement at the end of the interview. was not eligible for withholding of deportation or removal proceeding. The asylum officer, in his or her removal at the time it was granted; (f) Termination of asylum for arriving discretion, may place reasonable limits (3) The alien has committed any other aliens. If the Service determines that an on the number of such persons who may act that would have been grounds for applicant for admission who had be present at the interview and on the denial of withholding of removal under previously been granted asylum in the length of statement or statements made. section 241(b)(3)(B) of the Act had it United States falls within conditions set If the alien is unable to proceed occurred prior to the grant of forth in section 208(c)(2) of the Act and effectively in English, and if the asylum withholding of removal; or is inadmissible, the Service shall issue officer is unable to proceed competently (4) For applications filed in a notice of intent to terminate asylum in a language chosen by the alien, the proceedings commenced before April 1, and initiate removal proceedings under asylum officer shall arrange for the 1997, the alien has committed any act section 240 of the Act. The alien shall assistance of an interpreter in that would have been grounds for denial present his or her response to the intent conducting the interview. The of withholding of deportation under to terminate during proceedings before interpreter may not be a representative section 243(h)(2) of the Act. the immigration judge. or employee of the applicant’s country (c) Procedure. Prior to the termination of nationality or, if the applicant is of a grant of asylum or withholding of §§ 208.23Ð208.29 [Reserved] stateless, the applicant’s country of last deportation or removal, the alien shall habitual residence. The asylum officer be given notice of intent to terminate, Subpart BÐCredible Fear of shall create a summary of the material with the reasons therefor, at least 30 Persecution facts as stated by the applicant. At the days prior to the interview specified in § 208.30 Credible fear determinations conclusion of the interview, the officer paragraph (a) of this section before an involving stowaways and applicants for shall review the summary with the alien asylum officer. The alien shall be admission found inadmissible pursuant to and provide the alien with an provided the opportunity to present section 212(a)(6)(C) or 212(a)(7) of the Act. opportunity to correct errors therein. evidence showing that he or she is still (a) Jurisdiction. The provisions of this The asylum officer shall create a written eligible for asylum or withholding of subpart apply to aliens subject to record of his or her determination, deportation or removal. If the asylum sections 235(a)(2) and 235(b)(1) of the including a summary of the material officer determines that the alien is no Act. Pursuant to section 235(b)(1)(B) of facts as stated by the applicant, any longer eligible for asylum or the Act, the Service has exclusive additional facts relied on by the officer, withholding of deportation or removal, jurisdiction to make credible fear and the officer’s determination of the alien shall be given written notice determinations, and the Executive whether, in light of such facts, the alien 10346 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations has established a credible fear of (1) If the immigration judge concurs PART 211ÐDOCUMENTARY persecution. The decision shall not with the determination of the asylum REQUIREMENTS: IMMIGRANTS; become final until reviewed by a officer that the alien does not have a WAIVERS supervisory asylum officer. credible fear of persecution, the case (c) Authority. Asylum officers shall be returned to the Service for 46. Part 211 is revised to read as conducting credible fear interviews removal of the alien. follows: shall have the authorities described in (2) If the immigration judge finds that Sec. § 208.9(c). 211.1 Visas. the alien, other than an alien stowaway, (d) Referral for an asylum hearing. If 211.2 Passports. possesses a credible fear of persecution, an alien, other than an alien stowaway, 211.3 Expiration of immigrant visas, reentry is found to have a credible fear of the immigration judge shall vacate the permits, refugee travel documents, and persecution, the asylum officer will so order of the asylum officer issued on Forms I–551. inform the alien and issue a Form I–862, Form I–860 and the Service may 211.4 Waiver of documents for returning commence removal proceedings under residents. Notice to Appear, for full consideration 211.5 Alien commuters. of the asylum claim in proceedings section 240 of the Act, during which time the alien may file an asylum Authority: 8 U.S.C. 1101, 1103, 1181, 1182, under section 240 of the Act. Parole of 1203, 1225, 1257; 8 CFR part 2. the alien may only be considered in application in accordance with accordance with section 212(d)(5) of the § 208.4(b)(3)(i). § 211.1 Visas. Act and § 212.5 of this chapter. If an (3) If the immigration judge finds that (a) General. Except as provided in alien stowaway is found to have a an alien stowaway possesses a credible paragraph (b) of this section, each credible fear of persecution, the asylum fear of persecution, the alien shall be arriving alien applying for admission (or officer will so inform the alien and issue allowed to file an asylum application boarding the vessel or aircraft on which a Form I–863, Notice to Referral to before the immigration judge in he or she arrives) into the United States Immigration Judge, for full accordance with § 208.4(b)(3)(iii). The for lawful permanent residence, or as a consideration of the asylum claim in immigration judge shall decide the lawful permanent resident returning to proceedings under § 208.2(b)(1). asylum application as provided in that an unrelinquished lawful permanent (e) Removal of aliens with no credible section. Such decision may be appealed residence in the United States, shall fear of persecution. If an alien is found by either the stowaway or the Service to present one of the following: not to have a credible fear of the Board of Immigration Appeals. If (1) A valid, unexpired immigrant visa; persecution, the asylum officer shall and when a denial of the asylum (2) A valid, unexpired Form I–551, provide the alien with a written notice application becomes final, the alien Alien Registration Receipt Card, if of decision and inquire whether the shall be removed from the United States seeking readmission after a temporary alien wishes to have an immigration in accordance with section 235(a)(2) of absence of less than 1 year, or in the judge review the negative decision, the Act. If and when an approval of the case of a crewmember regularly serving using Form I–869, Record of Negative asylum application becomes final, the on board a vessel or aircraft of United Credible Fear Finding and Request for Service shall terminate removal States registry seeking readmission after Review by Immigration Judge, on which proceedings under section 235(a)(2) of any temporary absence connected with the alien shall indicate whether he or the Act. his or her duties as a crewman; she desires such review. If the alien is (3) A valid, unexpired Form I–327, not a stowaway, the officer shall also PART 209ÐADJUSTMENT OF STATUS Permit to Reenter the United States; order the alien removed and issue a OF REFUGEES AND ALIENS (4) A valid, unexpired Form I–571, Form I–860, Notice and Order of GRANTED ASYLUM Refugee Travel Document, properly Expedited Removal. If the alien is a endorsed to reflect admission as a stowaway and the alien does not request 43. The authority citation for part 209 lawful permanent resident; a review by an immigration judge, the is revised to read as follows: (5) An expired Form I–551, Alien asylum officer shall also refer the alien Authority: 8 U.S.C. 1101, 1103, 1157, 1158, Registration Receipt Card, accompanied to the district director for completion of 1159, 1228, 1252, 1282; 8 CFR part 2. by a filing receipt issued within the removal proceedings in accordance with previous 6 months for either a Form I– section 235(a)(2) of the Act. § 209.1 [Amended] 751, Petition to Remove the Conditions (f) Review by immigration judge. The 44. In § 209.1, paragraph (a)(1) is on Residence, or Form I–829, Petition asylum officer’s negative decision amended in the first sentence by by Entrepreneur to Remove Conditions, regarding credible fear shall be subject revising the reference to ‘‘, 236, and if seeking admission or readmission to review by an immigration judge upon 237’’ to read ‘‘and 240’’. after a temporary absence of less than 1 the applicant’s request, in accordance year; with section 235(b)(1)(B)(iii)(III) of the 45. In § 209.2, the last sentence of (6) A Form I–551, whether or not Act. If the alien requests such review, paragraph (c) is revised to read as expired, presented by a civilian or the asylum officer shall arrange for the follows: military employee of the United States detention of the alien and serve him or § 209.2 Adjustment of status of alien Government who was outside the her with a Form I–863, Notice of granted asylum. United States pursuant to official orders, Referral to Immigration Judge. The * * * * * or by the spouse or child of such record of determination, including employee who resided abroad while the copies of the Form I–863, the asylum (c) Application. * * * If an alien has employee or serviceperson was on officer’s notes, the summary of the been placed in deportation, exclusion, overseas duty and who is preceding, material facts, and other materials upon or removal proceedings under any accompanying or following to join which the determination was based section of this Act (as effective on the within 4 months the employee, shall be provided to the immigration date such proceedings commenced), the returning to the United States; or judge with the negative determination. application can be filed and considered (7) Form I–551, whether or not Upon review of the asylum officer’s only in those proceedings. expired, or a transportation letter issued negative credible fear determination: * * * * * by an American consular officer, Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10347 presented by an employee of the good cause for the alien’s failure to accompanying parent is found to be American University of Beirut, who was present an immigrant visa, Form I–551, admissible to the United States; so employed immediately preceding or reentry permit. Filing the Form I–90 (4) Is a stateless person or a person travel to the United States, returning will serve as both application for who because of his or her opposition to temporarily to the United States before replacement and as application for Communism is unwilling or unable to resuming employment with the waiver of passport and visa, without the obtain a passport from the country of his American University of Beirut, or obligation to file a separate waiver or her nationality, or is the resuming permanent residence in the application. accompanying spouse or unmarried son United States. (c) Immigrants having occupational or daughter of such immigrant; or (b) Waivers. (1) A waiver of the visa status defined in section 101(a)(15) (A), (5) Is a member of the Armed Forces required in paragraph (a) of this section (E), or (G) of the Act. An immigrant visa, of the United States. shall be granted without fee or reentry permit, or Form I–551 shall be (b) Except as provided in paragraph application by the district director, invalid when presented by an alien who (a) of this section, if an alien seeking upon presentation of the child’s birth has an occupational status under section admission as an immigrant with an certificate, to a child born subsequent to 101(a)(15) (A), (E), or (G) of the Act, immigrant visa believes that good cause the issuance of an immigrant visa to his unless he or she has previously exists for his or her failure to present a or her accompanying parent who submitted, or submits at the time he or passport, the alien may file an applies for admission during the she applies for admission to the United application for a waiver of this validity of such a visa; or a child born States, the written waiver required by requirement with the district director in during the temporary visit abroad of a section 247(b) of the Act and 8 CFR part charge of the port-of-entry. To apply for mother who is a lawful permanent 247. this waiver, the alien must file Form I– resident alien, or a national, of the (d) Returning temporary residents. (1) 193, Application for Waiver of Passport United States, provided that the child’s Form I–688, Temporary Resident Card, and/or Visa, with the fee prescribed in application for admission to the United may be presented in lieu of an § 103.7(b)(1) of this chapter. In the States is made within 2 years of birth, immigrant visa by an alien whose status exercise of discretion, the district the child is accompanied by the parent has been adjusted to that of a temporary director in charge of the port-of-entry who is applying for readmission as a resident under the provisions of § 210.1 may waive the alien’s lack of passport permanent resident upon the first return of this chapter, such status not having and admit the alien as an immigrant, if of the parent to the United States after changed, and who is returning to an the district director is satisfied that the the birth of the child, and the unrelinquished residence within one alien has established good cause for the accompanying parent is found to be year after a temporary absence abroad. alien’s failure to present a passport. admissible to the United States. (2) Form I–688 may be presented in (2) For an alien described in lieu of an immigrant visa by an alien § 211.3 Expiration of immigrant visas, paragraph (b)(1) of this section, whose status has been adjusted to that reentry permits, refugee travel documents, recordation of the child’s entry shall be of a temporary resident under the and Forms I±551. on Form I–181, Memorandum of provisions of § 245a.2 of this chapter, An immigrant visa, reentry permit, Creation of Record of Admission for such status not having changed, and refugee travel document, or Form I—551 Lawful Permanent Residence. The who is returning to an unrelinquished shall be regarded as unexpired if the carrier of such alien shall not be liable residence within 30 days after a rightful holder embarked or enplaned for a fine pursuant to section 273 of the temporary absence abroad, provided before the expiration of his or her Act. that the aggregate of all such absences immigrant visa, reentry permit, or (3) If an immigrant alien returning to abroad during the temporary residence refugee travel document, or with respect an unrelinquished lawful permanent period has not exceeded 90 days. to Form I—551, before the first residence in the United States after a anniversary of the date on which he or temporary absence abroad believes that § 211.2 Passports. she departed from the United States, good cause exists for his or her failure (a) A passport valid for the bearer’s provided that the vessel or aircraft on to present an immigrant visa, Form I– entry into a foreign country at least 60 which he or she so embarked or 551, or reentry permit, the alien may file days beyond the expiration date of his enplaned arrives in the United States or an application for a waiver of this or her immigrant visa shall be presented foreign contiguous territory on a requirement with the district director in by each immigrant except an immigrant continuous voyage. The continuity of charge of the port-of-entry. To apply for who: the voyage shall not be deemed to have this waiver, the alien must file Form I– (1) Is the parent, spouse, or unmarried been interrupted by scheduled or 193, Application for Waiver of Passport son or daughter of a United States emergency stops of the vessel or aircraft and/or Visa, with the fee prescribed in citizen or of an alien lawful permanent en route to the United States or foreign § 103.7(b)(1) of this chapter, except that resident of the United States; contiguous territory, or by a layover in if the alien’s Form I–551 was lost or (2) Is entering under the provisions of foreign contiguous territory necessitated stolen, the alien shall instead file Form § 211.1(a)(2) through (a)(7); solely for the purpose of effecting a I–90, Application to Replace Alien (3) Is a child born during the transportation connection to the United Registration Receipt Card, with the fee temporary visit abroad of a mother who States. prescribed in § 103.7(b)(1) of this is a lawful permanent resident alien, or chapter, provided the temporary a national, of the United States, § 211.4 Waiver of documents for returning absence did not exceed 1 year. In the provided that the child’s application for residents. exercise of discretion, the district admission to the United States is made (a) Pursuant to the authority director in charge of the port-of-entry within 2 years of birth, the child is contained in section 211(b) of the Act, may waive the alien’s lack of an accompanied by the parent who is an alien previously lawfully admitted to immigrant visa, Form I–551, or reentry applying for readmission as a the United States for permanent permit and admit the alien as a permanent resident upon the first return residence who, upon return from a returning resident, if the district director of the parent to the United States after temporary absence was inadmissible is satisfied that the alien has established the birth of the child, and the because of failure to have or to present 10348 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations a valid passport, immigrant visa, reentry cannot satisfy the residence juvenile has a relative who is in permit, border crossing card, or other requirements of the naturalization laws detention. document required at the time of entry, and cannot qualify for any benefits (ii) If a relative who is not in may be granted a waiver of such under the immigration laws on his or detention cannot be located to sponsor requirement in the discretion of the her own behalf or on behalf of his or her the minor, the minor may be released district director if the district director relatives other than as specified in with an accompanying relative who is determines that such alien: paragraph (a) of this section. When an in detention. (1) Was not otherwise inadmissible at alien commuter takes up residence in (iii) If the Service cannot locate a the time of entry, or having been the United States, he or she shall no relative in or out of detention to sponsor otherwise inadmissible at the time of longer be regarded as a commuter. He or the minor, but the minor has identified entry is with respect thereto qualified she may facilitate proof of having taken a non-relative in detention who for an exemption from deportability up such residence by notifying the accompanied him or her on arrival, the under section 237(a)(1)(H) of the Act; Service as soon as possible, preferably at question of releasing the minor and the and the time of his or her first reentry for accompanying non-relative adult shall (2) Is not otherwise subject to that purpose. Application for issuance be addressed on a case-by-case basis; removal. of a new alien registration receipt card (4) Aliens who will be witnesses in (b) Denial of a waiver by the district to show that he or she has taken up proceedings being, or to be, conducted director is not appealable but shall be residence in the United States shall be by judicial, administrative, or legislative without prejudice to renewal of an made on Form I–90. bodies in the United States; or application and reconsideration in (5) Aliens whose continued detention proceedings before the immigration PART 212ÐDOCUMENTARY is not in the public interest as judge. REQUIREMENTS: NONIMMIGRANTS; determined by the district director or WAIVERS; ADMISSION OF CERTAIN § 211.5 Alien commuters. chief patrol agent. INADMISSIBLE ALIENS; PAROLE (a) General. An alien lawfully (b) In the cases of all other arriving admitted for permanent residence or a 47. The authority citation for part 212 aliens, except those detained under special agricultural worker lawfully continues to read as follows: § 235.3(b) or (c) of this chapter and paragraph (a) of this section, the district admitted for temporary residence under Authority: 8 U.S.C. 1101, 1102, 1103, 1182, section 210 of the Act may commence 1184, 1187, 1225, 1226, 1227, 1228, 1252; 8 director or chief patrol agent may, after or continue to reside in foreign CFR part 2. review of the individual case, parole contiguous territory and commute as a into the United States temporarily in 48. Section 212.5 is amended by: special immigrant defined in section accordance with section 212(d)(5)(A) of a. Revising paragraph (a) and (b); the Act, any alien applicant for 101(a)(27)(A) of the Act to his or her b. Revising introductory text in place of employment in the United admission, under such terms and paragraph (c); conditions, including those set forth in States. An alien commuter engaged in c. Revising paragraph (c)(1); and by paragraph (c) of this section, as he or seasonal work will be presumed to have d. Revising paragraph (d)(2)(i), to read she may deem appropriate. An alien taken up residence in the United States as follows: if he or she is present in this country for who arrives at a port-of-entry and more than 6 months, in the aggregate, § 212.5 Parole of aliens into the United applies for parole into the United States during any continuous 12-month States. for the sole purpose of seeking period. An alien commuter’s address (a) The parole of aliens within the adjustment of status under section 245A report under section 265 of the Act must following groups who have been or are of the Act, without benefit of advance show his or her actual residence address detained in accordance with § 235.3(b) authorization as described in paragraph even though it is not in the United or (c) of this chapter would generally be (e) of this section shall be denied parole States. justified only on a case-by-case basis for and detained for removal in accordance (b) Loss of residence status. An alien ‘‘urgent humanitarian reasons’’ or with the provisions of § 235.3(b) or (c) commuter who has been out of regular ‘‘significant public benefit,’’ provided of this chapter. An alien seeking to enter employment in the United States for a the aliens present neither a security risk the United States for the sole purpose of continuous period of 6 months shall be nor a risk of absconding: applying for adjustment of status under deemed to have lost residence status, (1) Aliens who have serious medical section 210 of the Act shall be denied notwithstanding temporary entries in conditions in which continued parole and detained for removal under the interim for other than employment detention would not be appropriate; § 235.3(b) or (c) of this chapter, unless purposes. An exception applies when (2) Women who have been medically the alien has been recommended for employment in the United States was certified as pregnant; approval of such application for interrupted for reasons beyond the (3) Aliens who are defined as adjustment by a consular officer at an individual’s control other than lack of a juveniles in § 236.3(a) of this chapter. Overseas Processing Office. job opportunity or the commuter can The district director or chief patrol (c) Conditions. In any case where an demonstrate that he or she has worked agent shall follow the guidelines set alien is paroled under paragraph (a) or 90 days in the United States in the forth in § 236.3(a) of this chapter and (b) of this section, the district director aggregate during the 12-month period paragraphs (a)(3)(i) through (iii) of this or chief patrol agent may require preceding the application for admission section in determining under what reasonable assurances that the alien will into the United States. Upon loss of conditions a juvenile should be paroled appear at all hearings and/or depart the status, Form I–551 or I–688 shall from detention: United States when required to do so. become invalid and must be (i) Juveniles may be released to a Not all factors listed need be present for surrendered to an immigration officer. relative (brother, sister, aunt, uncle, or parole to be exercised. The district (c) Eligibility for benefits under the grandparent) not in Service detention director or chief patrol agent should immigration and nationality laws. Until who is willing to sponsor a minor and apply reasonable discretion. The he or she has taken up residence in the the minor may be released to that consideration of all relevant factors United States, an alien commuter relative notwithstanding that the includes: Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10349

(1) The giving of an undertaking by PART 213ÐADMISSION OF ALIENS continue to be a lawful conditional the applicant, counsel, or a sponsor to ON GIVING BOND OR CASH DEPOSIT permanent resident with all the rights, ensure appearances or departure, and a privileges, and responsibilities provided bond may be required on Form I–352 in 50. The authority citation for part 213 to persons possessing such status. Prior such amount as the district director or is revised to read as follows: to issuing the notice of termination, the chief patrol agent may deem Authority: 8 U.S.C. 1103; 8 CFR part 2. director shall provide the alien with an appropriate; opportunity to review and rebut the § 213.1 [Amended] evidence upon which the decision is to * * * * * 51. Section 213.1 is amended in the be based, in accordance with (d) * * * last sentence by revising the term ‘‘part § 103.2(b)(2) of this chapter. The (2)(i) On notice. In cases not covered 103’’ to read ‘‘§ 103.6’’. termination of status, and all of the rights and privileges concomitant by paragraph (d)(1) of this section, upon PART 214ÐNONIMMIGRANT CLASSES accomplishment of the purpose for thereto (including authorization to which parole was authorized or when in 52. The authority citation for part 214 accept or continue in employment in the opinion of the district director or continues to read as follows: this country), shall take effect as of the date of such determination by the chief patrol agent in charge of the area Authority: 8 U.S.C. 1101, 1103, 1182, 1184, in which the alien is located, neither 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2. director, although the alien may request a review of such determination in humanitarian reasons nor public benefit 53. Section 214.1 is amended by warrants the continued presence of the removal proceedings. In addition to the revising paragraph (c)(4)(iv) to read as notice of termination, the director shall alien in the United States, parole shall follows: be terminated upon written notice to the issue a notice to appear in accordance alien and he or she shall be restored to § 214.1 Requirements for admission, with 8 CFR part 239. During the ensuing removal proceedings, the alien may the status that he or she had at the time extension, and maintenance of status. submit evidence to rebut the of parole. When a charging document is * * * * * determination of the director. The served on the alien, the charging (c) * * * burden of proof shall be on the Service document will constitute written notice (4) * * * (iv) The alien is not the subject of to establish, by a preponderance of the of termination of parole, unless evidence, that one or more of the otherwise specified. Any further deportation proceedings under section 242 of the Act (prior to April 1, 1997) conditions in section 216(b)(1) or inspection or hearing shall be 216A(b)(1) of the Act, whichever is conducted under section 235 or 240 of or removal proceedings under section 240 of the Act. applicable, are true, or that an alien the Act and this chapter, or any order entrepreneur who was admitted of exclusion, deportation, or removal * * * * * pursuant to section 203(b)(5) of the Act previously entered shall be executed. If PART 216ÐCONDITIONAL BASIS OF obtained his or her investment capital the exclusion, deportation, or removal LAWFUL PERMANENT RESIDENCE through other than legal means (such as order cannot be executed by removal STATUS through the sale of illegal drugs). within a reasonable time, the alien shall (b) Determination of fraud after two again be released on parole unless in the 54. The authority citation for part 216 years. If, subsequent to the removal of opinion of the district director or the continues to read as follows: the conditional basis of an alien’s chief patrol agent the public interest Authority: 8 U.S.C. 1101, 1103, 1154, 1184, permanent resident status, the director requires that the alien be continued in 1186a, 1186b, and 8 CFR part 2. determines that an alien spouse custody. 55. Section 216.3 is revised to read as obtained permanent resident status * * * * * follows: through a marriage which was entered into for the purpose of evading the 49. In § 212.6, paragraph (a)(2) is § 216.3 Termination of conditional resident immigration laws or an alien revised to read as follows: status. entrepreneur obtained permanent § 212.6 Nonresident alien border crossing (a) During the two-year conditional resident status through a commercial cards. period. The director shall send a formal enterprise which was improper under written notice to the conditional section 216A(b)(1) of the Act, the (a) * * * permanent resident of the termination of director may institute rescission (2) Mexican border crossing card, the alien’s conditional permanent proceedings pursuant to section 246 of Form I–186 or I–586. The rightful holder resident status if the director determines the Act (if otherwise appropriate) or of a nonresident alien Mexican border that any of the conditions set forth in removal proceedings under section 240 crossing card, Form I–186 or I–586, may section 216(b)(1) or 216A(b)(1) of the of the Act. be admitted under § 235.1(f) of this Act, whichever is applicable, are true, or 56. Section 216.4 is amended by: chapter if found otherwise admissible. it becomes known to the government a. Revising paragraphs (a)(6), and However, any alien seeking entry as a that an alien entrepreneur who was (b)(3); visitor for business or pleasure must admitted pursuant to section 203(b)(5) b. Revising paragraph, (c)(4); also present a valid passport and shall of the Act obtained his or her c. Removing the unnumbered be issued Form I–94 if the alien is investment capital through other than paragraph immediately after paragraph applying for admission from: legal means (such as through the sale of (c)(4); and by (i) A country other than Mexico or illegal drugs). If the Service issues a d. Revising paragraph (d)(2) to read as Canada, or notice of intent to terminate an alien’s follows: conditional resident status, the director (ii) Canada if the alien has been in a shall not adjudicate Form I–751 or Form § 216.4 Joint petition to remove country other than the United States or I–829 until it has been determined that conditional basis of lawful permanent Canada since leaving Mexico. the alien’s status will not be terminated. resident status for alien spouse. * * * * * During this time, the alien shall (a) * * * 10350 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

(6) Termination of status for failure to interview within the 90-day period I–751, Petition to Remove the file petition. Failure to properly file following the filing of the petition. Conditions on Residence, if the alien Form I–751 within the 90-day period (c) * * * requests a waiver, was not at fault in immediately preceding the second (4) A fee or other consideration was failing to meet the filing requirement, anniversary of the date on which the given (other than a fee or other and the conditional resident alien is alien obtained lawful permanent consideration to an attorney for able to establish that: residence on a conditional basis shall assistance in preparation of a lawful (i) Deportation or removal from the result in the automatic termination of petition) in connection with the filing of United States would result in extreme the alien’s permanent residence status the petition through which the alien hardship; and the initiation of proceedings to obtained conditional permanent (ii) The marriage upon which his or remove the alien from the United States. residence. If derogatory information is her status was based was entered into in In such proceedings the burden shall be determined regarding any of these good faith by the conditional resident on the alien to establish that he or she issues, the director shall offer the alien, but the marriage was terminated complied with the requirement to file petitioners the opportunity to rebut other than by death, and the conditional the joint petition within the designated such information. If the petitioners fail resident was not at fault in failing to file period. Form I–751 may be filed after to overcome such derogatory a timely petition; or the expiration of the 90-day period only information the director may deny the (iii) The qualifying marriage was if the alien establishes to the satisfaction joint petition, terminate the alien’s entered into in good faith by the of the director, in writing, that there was permanent residence, and issue a notice conditional resident but during the good cause for the failure to file Form to appear to initiate removal marriage the alien spouse or child was I–751 within the required time period. proceedings. If derogatory information battered by or subjected to extreme If the joint petition is filed prior to the not relating to any of these issues is cruelty committed by the citizen or jurisdiction vesting with the determined during the course of the permanent resident spouse or parent. immigration judge in removal interview, such information shall be (2) A conditional resident who is in proceedings and the director excuses forwarded to the investigations unit for exclusion, deportation, or removal the late filing and approves the petition, appropriate action. If no unresolved proceedings may apply for the waiver he or she shall restore the alien’s derogatory information is determined only until such time as there is a final permanent residence status, remove the relating to these issues, the petition order of exclusion, deportation or conditional basis of such status and shall be approved and the conditional removal. cancel any outstanding notice to appear basis of the alien’s permanent residence * * * * * in accordance with § 239.2 of this status removed, regardless of any action (d) Interview. The service center chapter. If the joint petition is not filed taken or contemplated regarding other director may refer the application to the until after jurisdiction vests with the possible grounds for removal. appropriate local office and require that immigration judge, the immigration (d) * * * the alien appear for an interview in judge may terminate the matter upon (2) Denial. If the director denies the connection with the application for a joint motion by the alien and the joint petition, he or she shall provide waiver. The director shall deny the Service. written notice to the alien of the application and initiate removal (b) * * * decision and the reason(s) therefor and proceedings if the alien fails to appear shall issue a notice to appear under (3) Termination of status for failure to for the interview as required, unless the section 239 of the Act and 8 CFR part appear for interview. If the conditional alien establishes good cause for such 239. The alien’s lawful permanent resident alien and/or the petitioning failure and the interview is rescheduled. resident status shall be terminated as of spouse fail to appear for an interview in (e) Adjudication of waiver the date of the director’s written connection with the joint petition application. (1) Application based on decision. The alien shall also be required by section 216(c) of the Act, claim of hardship. In considering an instructed to surrender any Alien the alien’s permanent residence status application for a waiver based upon an Registration Receipt Card previously will be automatically terminated as of alien’s claim that extreme hardship issued by the Service. No appeal shall the second anniversary of the date on would result from the alien’s removal lie from the decision of the director; which the alien obtained permanent from the United States, the director however, the alien may seek review of residence. The alien shall be provided shall take into account only those the decision in removal proceedings. In with written notification of the factors that arose subsequent to the such proceedings the burden of proof termination and the reasons therefor, alien’s entry as a conditional permanent shall be on the Service to establish, by and a notice to appear shall be issued resident. The director shall bear in mind a preponderance of the evidence, that placing the alien under removal that any removal from the United States the facts and information set forth by proceedings. The alien may seek review is likely to result in a certain degree of the petitioners are not true or that the of the decision to terminate his or her hardship, and that only in those cases petition was properly denied. status in such proceedings, but the where the hardship is extreme should 57. Section 216.5 is amended by burden shall be on the alien to establish the application for a waiver be granted. revising paragraphs (a), (d), (e)(1), compliance with the interview The burden of establishing that extreme (e)(3)(ii), and (f) to read as follows: requirements. If the alien submits a hardship exists rests solely with the written request that the interview be § 216.5 Waiver of requirement to file joint applicant. rescheduled or that the interview be petition to remove conditions by alien * * * * * waived, and the director determines that spouse. (3) * * * there is good cause for granting the (a) General. (1) A conditional resident (ii) A conditional resident or former request, the interview may be alien who is unable to meet the conditional resident who has not rescheduled or waived, as appropriate. requirements under section 216 of the departed the United States after If the interview is rescheduled at the Act for a joint petition for removal of the termination of resident status may apply request of the petitioners, the Service conditional basis of his or her for the waiver. The conditional resident shall not be required to conduct the permanent resident status may file Form may apply for the waiver regardless of Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10351 his or her present marital status. The the Visa Waiver Pilot Program, Program applicant arriving at a land conditional resident may still be whichever comes first, Ireland has been border port-of-entry must provide residing with the citizen or permanent designated as a Visa Waiver Pilot evidence to the immigration officer of resident spouse, or may be divorced or Program country with Probationary financial solvency and a domicile separated. Status in accordance with section 217(g) abroad to which the applicant intends to * * * * * of the Act. return. An applicant arriving at a land- (f) Decision. The director shall Round trip ticket means any return border port-of-entry will be charged a provide the alien with written notice of trip transportation ticket in the name of fee as prescribed in § 103.7(b)(1) of this the decision on the application for an arriving Visa Waiver Pilot Program chapter for issuance of Form I–94W, waiver. If the decision is adverse, the applicant on a participating carrier valid Nonimmigrant Visa Waiver Arrival/ director shall advise the alien of the for at least 1 year, electronic ticket Departure Form. A round-trip reasons therefor, notify the alien of the record, airline employee passes transportation ticket is not required of termination of his or her permanent indicating return passage, individual applicants at land border ports-of-entry. residence status, instruct the alien to vouchers for return passage, group (d) Aliens in transit. An alien who is surrender any Alien Registration vouchers for return passage for charter in transit through the United States is Receipt Card issued by the Service and flights, and military travel orders which eligible to apply for admission under issue a notice to appear placing the include military dependents for return the Visa Waiver Pilot Program, provided alien in removal proceedings. No appeal to duty stations outside the United the applicant meets all other program shall lie from the decision of the States on U.S. military flights. A period requirements. director; however, the alien may seek of validity of 1 year need not be 61. Section 217.3 is revised to read as review of such decision in removal reflected on the ticket itself, provided follows: proceedings. that the carrier agrees that it will honor the return portion of the ticket at any § 217.3 Maintenance of status. PART 217ÐVISA WAIVER PILOT time, as provided in Form I–775, Visa (a) Satisfactory departure. If an PROGRAM Waiver Pilot Program Agreement. emergency prevents an alien admitted (b) Special program requirements. (1) under this part from departing from the 58. The authority citation for part 217 General. In addition to meeting all of the United States within his or her period continues to read as follows: requirements for the Visa Waiver Pilot of authorized stay, the district director Authority: 8 U.S.C. 1103, 1187; 8 CFR part Program specified in section 217 of the having jurisdiction over the place of the 2. Act, each applicant must possess a alien’s temporary stay may, in his or her 59. Section 217.1 is revised to read as valid, unexpired passport issued by a discretion, grant a period of satisfactory follows: designated country and present a departure not to exceed 30 days. If completed, signed Form I–94W, departure is accomplished during that § 217.1 Scope. Nonimmigrant Visa Waiver Arrival/ period, the alien is to be regarded as The Visa Waiver Pilot Program Departure Form. having satisfactorily accomplished the (VWPP) described in this section is (2) Persons previously removed as visit without overstaying the allotted established pursuant to the provisions deportable aliens. Aliens who have been time. of section 217 of the Act. deported or removed from the United (b) Readmission after departure to 60. Section 217.2 is revised to read as States, after having been determined contiguous territory or adjacent island. follows: deportable, require the consent of the An alien admitted to the United States Attorney General to apply for admission under this part may be readmitted to the § 217.2 Eligibility. to the United States pursuant to section United States after a departure to foreign (a) Definitions. As used in this part, 212(a)(9)(A)(iii) of the Act. Such persons contiguous territory or adjacent island the term: may not be admitted to the United for the balance of his or her original Carrier refers to the owner, charterer, States under the provisions of this part Visa Waiver Pilot Program admission lessee, or authorized agent of any notwithstanding the fact that the period if he or she is otherwise commercial vessel or commercial required consent of the Attorney admissible and meets all the conditions aircraft engaged in transporting General may have been secured. Such of this part with the exception of arrival passengers to the United States from a aliens must secure a visa in order to be on a signatory carrier. foreign place. admitted to the United States as 62. Section 217.4 is amended by: Designated country refers to Andorra, nonimmigrants, unless otherwise a. Revising the section heading: Argentina, Australia, Austria, Belgium, exempt. b. Removing paragraph (a); Brunei, Denmark, Finland, France, (c) Restrictions on manner of arrival. c. Redesignating paragraphs (b), (c), Germany, Iceland, Italy, Japan, (1) Applicants arriving by air and sea. and (d) as paragraphs (a), (b), and (c) Liechtenstein, Luxembourg, Monaco, Applicants must arrive on a carrier that respectively; the Netherlands, New Zealand, Norway, is signatory to a Visa Waiver Pilot d. Revising newly redesignated San Marino, Spain, Sweden, Program Agreement and at the time of paragraph (a)(1); Switzerland, and the United Kingdom. arrival must have a round trip ticket that e. Adding a new paragraph (a)(3); The United Kingdom refers only to will transport the traveler out of the f. Revising newly redesignated British citizens who have the United States to any other foreign port paragraph (b); and by unrestricted right of permanent abode in or place as long as the trip does not g. Revising newly redesignated the United Kingdom (England, Scotland, terminate in contiguous territory or an paragraph (c) to read as follows: Wales, Northern Ireland, the Channel adjacent island; except that the round Islands and the Isle of Man); it does not trip ticket may transport the traveler to § 217.4 Inadmissibility and deportability. refer to British overseas citizens, British contiguous territory or an adjacent (a) Determinations of inadmissibility. dependent territories’ citizens, or island, if the traveler is a resident of the (1) An alien who applies for admission citizens of British Commonwealth country of destination. under the provisions of section 217 of countries. Effective April 1, 1995, until (2) Applicants arriving at land border the Act, who is determined by an September 30, 1998, or the expiration of ports-of-entry. Any Visa Waiver Pilot immigration officer not to be eligible for 10352 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations admission under that section or to be point of embarkation to the United 68. In § 223.1, paragraph (b) is revised inadmissible to the United States under States. Nothing in this part absolves the to read as follows: one or more of the grounds of carrier of the responsibility to remove inadmissibility listed in section 212 of any inadmissible or deportable alien at § 223.1 Purpose of documents. the Act (other than for lack of a visa), carrier expense, as provided in the * * * * * or who is in possession of and presents carrier agreement. (b) Refugee travel document. A fraudulent or counterfeit travel (2) Removal of inadmissible and refugee travel document is issued documents, will be refused admission deportable aliens who arrived at land pursuant to this part and article 28 of into the United States and removed. border ports-of-entry. Removal under the United Nations Convention of July Such refusal and removal shall be made this section will be by the first available 29, 1951, for the purpose of travel. at the level of the port director or means of transportation deemed Except as provided in § 223.3(d)(2)(i), a officer-in-charge, or an officer acting in appropriate by the district director. person who holds refugee status that capacity, and shall be effected pursuant to section 207 of the Act, or without referral of the alien to an § 217.5 [Removed and reserved] asylum status pursuant to section 208 of immigration judge for further inquiry, 63. Section 217.5 is removed and the Act, must have a refugee travel examination, or hearing, except that an reserved. document to return to the United States alien who presents himself or herself as 64. Section 217.6 is revised to read as after temporary travel abroad unless he an applicant for admission under follows: or she is in possession of a valid section 217 of the Act, who applies for advance parole document. asylum in the United States must be § 217.6 Carrier agreements. 69. In § 223.2, paragraph (b)(2) is issued a Form I–863, Notice of Referral (a) General. The carrier agreements revised to read as follows: to Immigration Judge, for a proceeding referred to in section 217(e) of the Act § 223.2 Processing. in accordance with § 208.2(b)(1) and (2) shall be made by the Commissioner on of this chapter. behalf of the Attorney General and shall * * * * * * * * * * be on Form I–775, Visa Waiver Pilot (b) * * * (3) Refusal of admission under Program Agreement. (2) Refugee travel document. (i) paragraph (a)(1) of this section shall not (b) Termination of agreements. The General. Except as otherwise provided constitute removal for purposes of the Commissioner, on behalf of the Attorney in this section, an application may be Act. General, may terminate any carrier approved if filed by a person who is in (b) Determination of deportability. (1) agreement under this part, with 5 days the United States at the time of An alien who has been admitted to the notice to a carrier, for the carrier’s application, and either holds valid United States under the provisions of failure to meet the terms of such refugee status under section 207 of the section 217 of the Act and of this part agreement. As a matter of discretion, the Act, valid asylum status under section who is determined by an immigration Commissioner may notify a carrier of 208 of the Act, or is a permanent officer to be deportable from the United the existence of a basis for termination resident and received such status as a States under one or more of the grounds of a carrier agreement under this part direct result of his or her asylum or of deportability listed in section 237 of and allow the carrier a period not to refugee status. the Act shall be removed from the exceed 15 days within which the carrier (ii) Discretionary authority to United States to his or her country of may bring itself into compliance with adjudicate an application from an alien nationality or last residence. Such the terms of the carrier agreement. The not within the United States. As a matter removal shall be determined by the agreement shall be subject to of discretion, a district director having district director who has jurisdiction cancellation by either party for any jurisdiction over a port-of-entry or a over the place where the alien is found, reason upon 15 days’ written notice to preinspection station where an alien is and shall be effected without referral of the other party. an applicant for admission, or an the alien to an immigration judge for a overseas district director having determination of deportability, except PART 221ÐADMISSION OF VISITORS jurisdiction over the place where an that an alien admitted as a Visa Waiver OR STUDENTS alien is physically present, may accept Pilot Program visitor who applies for and adjudicate an application for a 65. The authority citation for part 221 asylum in the United States must be refugee travel document from an alien is revised to read as follows: issued a Form I–863 for a proceeding in who previously had been admitted to accordance with § 208.2(b)(1) and (2) of Authority: 8 U.S.C. 1101, 1103, 1201; 8 the United States as a refugee, or who this chapter. CFR part 2. previously had been granted asylum status in the United States, and who had (2) Removal by the district director § 221.1 [Amended] under paragraph (b)(1) of this section is departed from the United States without equivalent in all respects and has the 66. Section 221.1 is amended in the having applied for such refugee travel same consequences as removal after last sentence by revising the term ‘‘part document, provided: proceedings conducted under section 103’’ to read ‘‘§ 103.6’’. (A) The alien submits a Form I–131, Application for Travel Document, with 240 of the Act. PART 223ÐREENTRY PERMITS, the fee required under § 103.7(b)(1) of (c)(1) Removal of inadmissible aliens REFUGEE TRAVEL DOCUMENTS, AND this chapter; who arrived by air or sea. Removal of an ADVANCE PAROLE DOCUMENTS alien from the United States under this (B) The district director is satisfied section may be effected using the return 67. The authority citation for part 223 that the alien did not intend to abandon portion of the round trip passage is revised to read as follows: his or her refugee status at the time of departure from the United States; presented by the alien at the time of Authority: 8 U.S.C. 1103, 1181, 1182, entry to the United States as required by 1186a, 1203, 1225, 1226, 1227, 1251; Protocol (C) The alien did not engage in any section 217(a)(7) of the Act. Such Relating to the Status of Refugees, November activities while outside the United removal shall be on the first available 1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR States that would be inconsistent with means of transportation to the alien’s part 2. continued refugee or asylee status; and Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10353

(D) The alien has been outside the §§ 234.1 and 234.2 [Redesignated as Headquarters Office of Inspections and United States for less than 1 year since §§ 232.1 and 232.2 respectively] is available upon written request. his or her last departure. 74. Sections 234.1 and 234.2 are * * * * * * * * * * redesignated as §§ 232.1 and 232.2 80. Newly redesignated § 233.4 is 70. In § 223.3, paragraph (d)(2) is respectively. revised to read as follows: revised to read as follows: PART 234Ð[REMOVED] § 233.4 Preinspection outside the United States. § 223.3 Validity and effect on admissibility. 75. Part 234 is removed. * * * * * 76. The following parts are (a) Form I–425 agreements. A (d) * * * redesignated as set forth in the table transportation line bringing applicants (2) Refugee travel document. (i) below: for admission to the United States Inspection and immigration status. through preinspection sites outside the Upon arrival in the United States, an Old part New part United States shall enter into an alien who presents a valid unexpired agreement on Form I–425. Such an refugee travel document, or who has Part 238 ...... Part 233. agreement shall be negotiated directly been allowed to file an application for Part 239 ...... Part 234. by the Service’s Headquarters Office of a refugee travel document and this Inspections and the head office of the application has been approved under PART 233ÐCONTRACTS WITH transportation line. the procedure set forth in TRANSPORTATION LINES (b) Signatory lines. A list of § 223.2(b)(2)(ii), shall be examined as to transportation lines with currently valid 77. The authority citation for newly his or her admissibility under the Act. transportation agreements on Form I– designated part 233 continues to read as An alien shall be accorded the 425 is maintained by the Service’s follows: immigration status endorsed in his or Headquarters Office of Inspections and her refugee travel document, or (in the Authority: 8 U.S.C. 1103, 1228; 8 CFR part is available upon written request. case of an alien discussed in 2. 81. Newly redesignated § 233.5 is § 223.2(b)(2)(ii)) which will be endorsed 78. Newly redesignated § 233.1 is revised to read as follows: in such document, unless he or she is revised to read as follows: § 233.5 Aliens entering Guam pursuant to no longer eligible for that status, or he § 233.1 Contracts. section 14 of Public Law 99±396, ``Omnibus or she applies for and is found eligible Territories Act.' for some other immigration status. The contracts with transportation lines referred to in section 233(c) of the A transportation line bringing aliens (ii) Inadmissibility. If an alien who to Guam under the visa waiver presents a valid unexpired refugee Act may be entered into by the Executive Associate Commissioner for provisions of § 212.1(e) of this chapter travel document appears to the shall enter into an agreement on Form examining immigration officer to be Programs, or by an immigration officer designated by the Executive Associate I–760. Such agreements shall be inadmissible, he or she shall be referred negotiated directly by the Service’s for proceedings under section 240 of the Commissioner for Programs on behalf of the government and shall be Headquarters and head offices of the Act. Section 235(c) of the Act shall not transportation lines. be applicable. documented on Form I–420. The contracts with transportation lines PART 234ÐDESIGNATION OF PORTS PART 232ÐDETENTION OF ALIENS referred to in section 233(a) of the Act OF ENTRY FOR ALIENS ARRIVING BY FOR PHYSICAL AND MENTAL shall be made by the Commissioner on CIVIL AIRCRAFT EXAMINATION behalf of the government and shall be documented on Form I–426. The 82. The heading for newly 71. The heading for part 232 is revised contracts with transportation lines redesignated part 234 is revised as set to read as set forth above. desiring their passengers to be forth above. 72. The authority citation for part 232 preinspected at places outside the 83. The authority citation for newly is revised to read as follows: United States shall be made by the designated part 234 is revised to read as Authority: 8 U.S.C. 1103, 1222, 1224, 1252; Commissioner on behalf of the follows: 8 CFR part 2. government and shall be documented Authority: 8 U.S.C. 1103, 1221, 1229; 8 on Form I–425; except that contracts for CFR part 2. § 232.1 [Redesignated and revised] irregularly operated charter flights may 73. Section 232.1 is redesignated as be entered into by the Associate § 234.3 [Amended] § 232.3, and is revised to read as Commissioner for Examinations or an 84. Newly redesignated § 234.3 is follows: immigration officer designated by the amended by removing the last sentence. § 232.3 Arriving aliens. Executive Associate Commissioner for Programs and having jurisdiction over PART 235ÐINSPECTION OF PERSONS When a district director has the location where the inspection will APPLYING FOR ADMISSION reasonable grounds for believing that take place. persons arriving in the United States 85. The authority citation for part 235 79. In newly redesignated § 233.3, is revised to read as follows: should be detained for reasons specified paragraph (b) is revised to read as in section 232 of the Act, he or she follows (the list of agreements is Authority: 8 U.S.C. 1101, 1103, 1182, 1183, shall, after consultation with the United removed): 1201, 1224, 1225, 1226, 1227, 1228, 1252; 8 States Public Health Service at the port- CFR part 2. of-entry, notify the master or agent of § 233.3 Aliens in immediate and 86. Section 235.1 is revised to read as the arriving vessel or aircraft of his or continuous transit. follows: her intention to effect such detention by * * * * * serving on the master or agent Form I– (b) Signatory lines. A list of currently § 235.1 Scope of examination. 259 in accordance with § 235.3(a) of this effective Form I–426 agreements is (a) General. Application to lawfully chapter. maintained by the Service’s enter the United States shall be made in 10354 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations person to an immigration officer at a (3) An alien who is brought to the Canadian Border Boat Landing Card, U.S. port-of-entry when the port is open United States, whether or not to a and may thereafter enter the United for inspection, or as otherwise designated port-of-entry and regardless States along with the immediate shore designated in this section. of the means of transportation, after area of the United States on the body of (b) U.S. citizens. A person claiming having been interdicted in international water designated on the Form I–68 from U.S. citizenship must establish that fact or United States waters, is considered time to time for the duration of that to the examining officer’s satisfaction an applicant for admission and shall be navigation season without further and must present a U.S. passport if such examined under section 235(b) of the inspection. In the case of a Canadian passport is required under the Act. national or other resident of Canada provisions of 22 CFR part 53. If such (4) An alien stowaway is not an having a common nationality with applicant for admission fails to satisfy applicant for admission and may not be Canadians, the Form I–68 shall be valid the examining immigration officer that admitted to the United States. A only for the purpose of visits not to he or she is a U.S. citizen, he or she stowaway shall be removed from the exceed 72 hours and only if the alien shall thereafter be inspected as an alien. United States under section 235(a)(2) of will remain in nearby shopping areas, (c) Alien members of United States the Act. The provisions of section 240 nearby residential neighborhoods, or Armed Forces and members of a force of the Act are not applicable to other similar areas adjacent to the of a NATO country. Any alien member stowaways, nor is the stowaway entitled immediate shore area of the United of the United States Armed Forces who to further hearing or review of the States. If the bearer of Form I–68 seeks is in the uniform of, or bears documents removal, except that an alien stowaway to enter the United States by means identifying him or her as a member of, who indicates an intention to apply for other than small craft of less than 5 net such Armed Forces, and who is coming asylum shall be referred to an asylum tons without merchandise, or if he or to or departing from the United States officer for a determination of credible she seeks to enter the United States for under official orders or permit of such fear of persecution in accordance with other purposes, or if he or she is an Armed Forces is not subject to the section 235(b)(1)(B) of the Act and alien, other than a lawful permanent removal provisions of the Act. A § 208.30 of this chapter. An alien resident alien of the United States, and member of the force of a NATO country stowaway who is determined to have a intends to proceed beyond an area signatory to Article III of the Status of credible fear of persecution shall have adjacent to the immediate shore area of Forces Agreement seeking to enter the his or her asylum application the United States, or remains in the adjudicated in accordance with United States under official orders is United States longer than 72 hours, he § 208.2(b)(2) of this chapter. Nothing in exempt from the control provision of the or she must apply for admission at a this section shall be construed to require Act. Any alien who is a member of United States port-of-entry. expedited removal proceedings in (f) Form I–94, Arrival Departure either of the foregoing classes may, accordance with section 235(b)(1) of the Record. (1) Unless otherwise exempted, upon request, be inspected and his or Act. A stowaway who absconds either each arriving nonimmigrant who is her entry as an alien may be recorded. prior to inspection by an immigration admitted to the United States shall be If the alien does not appear to the officer or after being ordered removed as issued, upon payment of a fee examining immigration officer to be a stowaway pursuant to section prescribed in § 103.7(b)(1) of this clearly and beyond a doubt entitled to 235(a)(2) of the Act is not entitled to chapter for land border admissions, a enter the United States under the removal proceedings under section 240 Form I–94 as evidence of the terms of provisions of the Act, the alien shall be of the Act and shall be removed under admission. A Form I–94 issued at a land so informed and his or her entry shall section 235(a)(2) of the Act as if border port-of-entry shall be considered not be recorded. encountered upon arrival. A stowaway issued for multiple entries unless (d) Alien applicants for admission. (1) who has been removed pursuant to specifically annotated for a limited Each alien seeking admission at a section 235(a)(2) of the Act and this number of entries. A Form I–94 issued United States port-of-entry shall present section shall be considered to have been at other than a land border port-of-entry, whatever documents are required and formally removed from the United unless issued for multiple entries, must shall establish to the satisfaction of the States for all purposes under the Act. be surrendered upon departure from the immigration officer that he or she is not (e) U.S. citizens, lawful permanent United States in accordance with the subject to removal under the residents of the United States, Canadian instructions on the form. Form I–94 is immigration laws, Executive Orders, or nationals, and other residents of not required by: Presidential Proclamations and is Canada having a common nationality (i) Any nonimmigrant alien described entitled under all of the applicable with Canadians, entering the United in § 212.1(a) of this chapter and 22 CFR provisions of the immigration laws and States by small craft. Upon being 41.33 who is admitted as a visitor for this chapter to enter the United States. inspected by an immigration officer and business or pleasure or admitted to A person claiming to have been lawfully found eligible for admission as a citizen proceed in direct transit through the admitted for permanent residence must of the United States, or found eligible United States; establish that fact to the satisfaction of for admission as a lawful permanent (ii) Any nonimmigrant alien residing the inspecting immigration officer and resident of the United States, or in the in the British Virgin Islands who was must present proper documents in case of a Canadian national or other admitted only to the U.S. Virgin Islands accordance with § 211.1 of this chapter. resident of Canada having a common as a visitor for business or pleasure (2) An alien present in the United nationality with Canadians being found under § 212.1(b) of this chapter; States who has not been admitted or eligible for admission as a temporary (iii) Any Mexican national in paroled or an alien who seeks entry at visitor for pleasure, a person who possession of a valid nonresident alien other than an open, designated port-of- desires to enter the United States from Mexican border crossing card, or a valid entry, except as otherwise permitted in Canada in a small pleasure craft of less Mexican passport and a multiple-entry this section, is subject to the provisions than 5 net tons without merchandise nonimmigrant visa issued under section of section 212(a) of the Act and to may be issued, upon application and 101(a)(15)(B) of the Act, who is removal under section 235(b) or 240 of payment of a fee prescribed under admitted as a nonimmigrant visitor at a the Act. § 103.7(b)(1) of this chapter, Form I–68, Mexican border port of entry for a Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10355 period not to exceed 72 hours to visit have such alien testify, and any determines, in the exercise of discretion, within 25 miles of the border; accompanying aliens whose protection that the delay caused by publication (iv) Bearers of Mexican diplomatic or or guardianship will be required should would adversely affect the interests of official passports described in § 212.1(c– such alien be found inadmissible shall the United States or the effective 1) of this chapter. be deferred for such time and under enforcement of the immigration laws, (2) Paroled aliens. Any alien paroled such conditions as the district director the Commissioner’s designation shall into the United States under section in whose district the port is located become effective immediately upon 212(d)(5) of the Act, including any alien imposes. issuance, and shall be published in the crewmember, shall be issued a 88. Section 235.3 is revised to read as Federal Register as soon as practicable completely executed Form I–94, follows: thereafter. When these provisions are in endorsed with the parole stamp. effect for aliens who enter without 87. Section 235.2 is revised to read as § 235.3 Inadmissible aliens and expedited removal. inspection, the burden of proof rests follows: (a) Detention prior to inspection. All with the alien to affirmatively show that he or she has the required continuous § 235.2 Parole for deferred inspection. persons arriving at a port-of-entry in the United States by vessel or aircraft shall physical presence in the United States. (a) A district director may, in his or Any absence from the United States her discretion, defer the inspection of be detained aboard the vessel or at the airport of arrival by the owner, agent, shall serve to break the period of any vessel or aircraft, or of any alien, to continuous physical presence. An alien another Service office or port-of-entry. master, commanding officer, person in charge, purser, or consignee of such who was not inspected and admitted or Any alien coming to a United States paroled into the United States but who port from a foreign port, from an vessel or aircraft until admitted or otherwise permitted to land by an establishes that he or she has been outlying possession of the United States, continuously physically present in the from Guam, Puerto Rico, or the Virgin officer of the Service. Notice or order to detain shall not be required. The owner, United States for the 2-year period Islands of the United States, or from immediately prior to the date of another port of the United States at agent, master, commanding officer, person in charge, purser, or consignee of determination of inadmissibility shall which examination under this part was be detained in accordance with section deferred, shall be regarded as an such vessel or aircraft shall deliver every alien requiring examination to an 235(b)(2) of the Act for a proceeding applicant for admission at that onward under section 240 of the Act. port. immigration officer for inspection or to (b) An examining immigration officer a medical officer for examination. The (2) Determination of inadmissibility. may defer further examination and refer Service will not be liable for any (i) Record of proceeding. An alien who the alien’s case to the district director expenses related to such detention or is arriving in the United States, or other having jurisdiction over the place where presentation or for any expenses of a alien as designated pursuant to the alien is seeking admission, or over passenger who has not been presented paragraph (b)(1)(ii) of this section, who the place of the alien’s residence or for inspection and for whom a is determined to be inadmissible under destination in the United States, if the determination has not been made section 212(a)(6)(C) or 212(a)(7) of the examining immigration officer has concerning admissibility by a Service Act (except an alien for whom reason to believe that the alien can officer. documentary requirements are waived overcome a finding of inadmissibility (b) Expedited removal. (1) under § 211.1(b)(3) or § 212.1 of this by: Applicability. The expedited removal chapter), shall be ordered removed from (1) Posting a bond under section 213 provisions shall apply to the following the United States in accordance with of the Act; classes of aliens who are determined to section 235(b)(1) of the Act. In every (2) Seeking and obtaining a waiver be inadmissible under section case in which the expedited removal under section 211 or 212(d)(3) or (4) of 212(a)(6)(C) or (7) of the Act: provisions will be applied and before the Act; or (i) Arriving aliens, as defined in removing an alien from the United (3) Presenting additional evidence of § 1.1(q) of this chapter, except for States pursuant to this section, the admissibility not available at the time citizens of Cuba arriving at a United examining immigration officer shall and place of the initial examination. States port-of-entry by aircraft; create a record of the facts of the case (c) Such deferral shall be (ii) As specifically designated by the and statements made by the alien. This accomplished pursuant to the Commissioner, aliens who arrive in, shall be accomplished by means of a provisions of section 212(d)(5) of the attempt to enter, or have entered the sworn statement using Form I–867AB, Act for the period of time necessary to United States without having been Record of Sworn Statement in complete the deferred inspection. admitted or paroled following Proceedings under Section 235(b)(1) of (d) Refusal of a district director to inspection by an immigration officer at the Act. The examining immigration authorize admission under section 213 a designated port-of-entry, and who officer shall read (or have read) to the of the Act, or to grant an application for have not established to the satisfaction alien all information contained on Form the benefits of section 211 or section of the immigration officer that they have I–867A. Following questioning and 212(d) (3) or (4) of the Act, shall be been physically present in the United recording of the alien’s statement without prejudice to the renewal of such States continuously for the 2-year regarding identity, alienage, and application or the authorizing of such period immediately prior to the date of inadmissibility, the examining admission by the immigration judge determination of inadmissibility. The immigration officer shall record the without additional fee. Commissioner shall have the sole alien’s response to the questions (e) Whenever an alien on arrival is discretion to apply the provisions of contained on Form I–867B, and have the found or believed to be suffering from section 235(b)(1) of the Act, at any time, alien read (or have read to him or her) a disability that renders it impractical to to any class of aliens described in this the statement, and the alien shall sign proceed with the examination under the section. The Commissioner’s and initial each page of the statement Act, the examination of such alien, designation shall become effective upon and each correction. The examining members of his or her family concerning publication of a notice in the Federal immigration officer shall advise the whose admissibility it is necessary to Register. However, if the Commissioner alien of the charges against him or her 10356 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations on Form I–860, Notice and Order of of the alien until the alien has been citizen status cannot be verified will be Expedited Removal, and the alien shall referred for an interview by an asylum advised of the penalties for perjury, and be given an opportunity to respond to officer in accordance with § 208.30 of will be placed under oath or allowed to those charges in the sworn statement. this chapter to determine if the alien has make a declaration as permitted under After obtaining supervisory concurrence a credible fear of persecution. The 28 U.S.C. 1746, concerning his or her in accordance with paragraph (b)(7) of examining immigration officer shall lawful admission for permanent this section, the examining immigration record sufficient information in the residence, admission as a refugee under official shall serve the alien with Form sworn statement to establish and record section 207 of the Act, grant of asylum I–860 and the alien shall sign the that the alien has indicated such status under section 208 of the Act, or reverse of the form acknowledging intention, fear, or concern, and to claim to U.S. citizenship. A written receipt. Interpretative assistance shall be establish the alien’s inadmissibility. statement shall be taken from the alien used if necessary to communicate with (i) Referral. The referring officer shall in the alien’s own language and the alien. provide the alien with a written handwriting, stating that he or she (ii) No entitlement to hearings and disclosure on Form M–444, Information declares, certifies, verifies, or states that appeals. Except as otherwise provided About Credible Fear Interview, the claim is true and correct. The in this section, such alien is not entitled describing: immigration officer shall issue an to a hearing before an immigration judge (A) The purpose of the referral and expedited order of removal under in proceedings conducted pursuant to description of the credible fear section 235(b)(1)(A)(i) of the Act and section 240 of the Act, or to an appeal interview process; refer the alien to the immigration judge of the expedited removal order to the (B) The right to consult with other for review of the order in accordance Board of Immigration Appeals. persons prior to the interview and any with paragraph (b)(5)(iv) of this section (iii) Detention and parole of alien in review thereof at no expense to the and § 235.6(a)(2)(ii). The person shall be expedited removal. An alien whose United States Government; detained pending review of the inadmissibility is being considered (C) The right to request a review by expedited removal order under this under this section or who has been an immigration judge of the asylum section. Parole of such person, in ordered removed pursuant to this officer’s credible fear determination; accordance with section 212(d)(5) of the section shall be detained pending and Act, may be permitted only when the determination and removal, except that (D) The consequences of failure to Attorney General determines, in the parole of such alien, in accordance with establish a credible fear of persecution. exercise of discretion, that parole is section 212(d)(5) of the Act, may be (ii) Detention pending credible fear required to meet a medical emergency permitted only when the Attorney interview. Pending the credible fear or is necessary for a legitimate law General determines, in the exercise of determination by an asylum officer and enforcement objective. discretion, that parole is required to any review of that determination by an (ii) Verified lawful permanent meet a medical emergency or is immigration judge, the alien shall be residents. If the claim to lawful necessary for a legitimate law detained. Parole of such alien in permanent resident status is verified, enforcement objective. accordance with section 212(d)(5) of the and such status has not been terminated (3) Additional charges of Act may be permitted only when the in exclusion, deportation, or removal inadmissibility. In the expedited Attorney General determines, in the proceedings, the examining immigration removal process, the Service may not exercise of discretion, that parole is officer shall not order the alien removed charge an alien with any additional required to meet a medical emergency pursuant to section 235(b)(1) of the Act. grounds of inadmissibility other than or is necessary for a legitimate law The examining immigration officer will section 212(a)(6)(C) or 212(a)(7) of the enforcement objective. Prior to the determine in accordance with section Act. If an alien appears to be interview, the alien shall be given time 101(a)(13)(C) of the Act whether the inadmissible under other grounds to contact and consult with any person alien is considered to be making an contained in section 212(a) of the Act, or persons of his or her choosing. Such application for admission. If the alien is and if the Service wishes to pursue such consultation shall be made available in determined to be seeking admission and additional grounds of inadmissibility, accordance with the policies and the alien is otherwise admissible, except the alien shall be detained and referred procedures of the detention facility that he or she is not in possession of the for a removal hearing before an where the alien is detained, shall be at required documentation, a discretionary immigration judge pursuant to sections no expense to the government, and shall waiver of documentary requirements 235(b)(2) and 240 of the Act for inquiry not unreasonably delay the process. may be considered in accordance with into all charges. Once the alien is in (5) Claim to lawful permanent section 211(b) of the Act and removal proceedings under section 240 resident, refugee, or asylee status or U.S. § 211.1(b)(3) of this chapter or the of the Act, the Service is not precluded citizenship.—(i) Verification of status. If alien’s inspection may be deferred to an from lodging additional charges against an applicant for admission who is onward office for presentation of the the alien. Nothing in this paragraph subject to expedited removal pursuant required documents. If the alien appears shall preclude the Service from to section 235(b)(1) of the Act claims to to be inadmissible, the immigration pursuing such additional grounds of have been lawfully admitted for officer may initiate removal proceedings inadmissibility against the alien in any permanent residence, admitted as a against the alien under section 240 of subsequent attempt to reenter the refugee under section 207 of the Act, the Act. United States, provided the additional granted asylum under section 208 of the (iii) Verified refugees and asylees. If a grounds of inadmissibility still exist. Act, or claims to be a U.S. citizen, the check of Service records or other means (4) Claim of asylum or fear of immigration officer shall attempt to indicates that the alien has been granted persecution. If an alien subject to the verify the alien’s claim. Such refugee status or asylee status, and such expedited removal provisions indicates verification shall include a check of all status has not been terminated in an intention to apply for asylum, a fear available Service data systems and any deportation, exclusion, or removal of persecution, or a fear of return to his other means available to the officer. An proceedings, the immigration officer or her country, the inspecting officer alien whose claim to lawful permanent shall not order the alien removed shall not proceed further with removal resident, refugee, asylee status, or U.S. pursuant to section 235(b)(1) of the Act. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10357

If the alien is not in possession of a port-of-entry. The alien will be allowed (10) Applicant for admission under valid, unexpired refugee travel to present evidence or provide sufficient section 217 of the Act. The provisions document, the examining immigration information to support the claim. Such of § 235.3(b) do not apply to an officer may accept an application for a evidence may consist of documentation applicant for admission under section refugee travel document in accordance in the possession of the alien, the 217 of the Act. with § 223.2(b)(2)(ii) of this chapter. If Service, or a third party. The examining (c) Arriving aliens placed in accepted, the immigration officer shall immigration officer will consider all proceedings under section 240 of the readmit the refugee or asylee in such evidence and information, make Act. Except as otherwise provided in accordance with § 223.3(d)(2)(i) of this further inquiry if necessary, and will this chapter, any arriving alien who chapter. If the alien is determined not to attempt to verify the alien’s status appears to the inspecting officer to be be eligible to file an application for a through a check of all available Service inadmissible, and who is placed in refugee travel document the data systems. The burden rests with the removal proceedings pursuant to section immigration officer may initiate removal alien to satisfy the examining 240 of the Act shall be detained in proceedings against the alien under immigration officer of the claim of accordance with section 235(b) of the section 240 of the Act. lawful admission or parole. If the alien Act. Parole of such alien shall only be (iv) Review of order for claimed lawful establishes that he or she was lawfully considered in accordance with permanent residents, refugees, asylees, admitted or paroled, the case will be § 212.5(a) of this chapter. This or U.S. citizens. A person whose claim examined to determine if grounds of paragraph shall also apply to any alien to U.S. citizenship has been verified deportability under section 237(a) of the who arrived before April 1, 1997, and may not be ordered removed. When an Act are applicable, or if paroled, who was placed in exclusion alien whose status has not been verified whether such parole has been, or should proceedings. but who is claiming under oath or under be, terminated, and whether the alien is (d) Service custody. The Service will penalty of perjury to be a lawful inadmissible under section 212(a) of the assume custody of any alien subject to permanent resident, refugee, asylee, or Act. An alien who cannot satisfy the detention under paragraph (b) or (c) of U.S. citizen is ordered removed examining officer that he or she was this section. In its discretion, the pursuant to section 235(b)(1) of the Act, lawfully admitted or paroled will be Service may require any alien who the case will be referred to an ordered removed pursuant to section appears inadmissible and who arrives at immigration judge for review of the 235(b)(1) of the Act. a land border port-of-entry from Canada expedited removal order under section (7) Review of expedited removal or Mexico, to remain in that country 235(b)(1)(C) of the Act and orders. Any removal order entered by an while awaiting a removal hearing. Such § 235.6(a)(2)(ii). If the immigration judge examining immigration officer pursuant alien shall be considered detained for a determines that the alien has never been to section 235(b)(1) of the Act must be proceeding within the meaning of admitted as a lawful permanent resident reviewed and approved by the section 235(b) of the Act and may be or as a refugee, granted asylum status, appropriate supervisor before the order ordered removed in absentia by an or is not a U.S. citizen, the order issued is considered final. Such supervisory immigration judge if the alien fails to by the immigration officer will be review shall not be delegated below the appear for the hearing. affirmed and the Service will remove (e) Detention in non-Service facility. level of the second line supervisor, or a the alien. There is no appeal from the Whenever an alien is taken into Service person acting in that capacity. The decision of the immigration judge. If the custody and detained at a facility other supervisory review shall include a immigration judge determines that the than at a Service Processing Center, the review of the sworn statement and any alien was once so admitted as a lawful public or private entities contracted to answers and statements made by the permanent resident or as a refugee, or perform such service shall have been alien regarding a fear of removal or was granted asylum status, or is a U.S. approved for such use by the Service’s return. The supervisory review and citizen, and such status has not been Jail Inspection Program or shall be approval of an expedited removal order terminated by final administrative performing such service under contract for an alien described in section action, the immigration judge will in compliance with the Standard 235(b)(1)(A)(iii) of the Act must include terminate proceedings and vacate the Statement of Work for Contract a review of any claim of lawful expedited removal order. The Service Detention Facilities. Both programs are admission or parole and any evidence or may initiate removal proceedings administered by the Detention and information presented to support such a against such an alien, but not against a Deportation section having jurisdiction claim, prior to approval of the order. In person determined to be a U.S. citizen, over the alien’s place of detention. such cases, the supervisor may request in proceedings under section 240 of the Under no circumstances shall an alien additional information from any source Act. During removal proceedings, the be detained in facilities not meeting the and may require further interview of the immigration judge may consider any four mandatory criteria for usage. These alien. waivers, exceptions, or requests for are: relief for which the alien is eligible. (8) Removal procedures relating to (1) 24-Hour supervision, (6) Opportunity for alien to establish expedited removal. An alien ordered (2) Conformance with safety and that he or she was admitted or paroled removed pursuant to section 235(b)(1) of emergency codes, into the United States. If the the Act shall be removed from the (3) Food service, and Commissioner determines that the United States in accordance with (4) Availability of emergency medical expedited removal provisions of section section 241(c) of the Act and 8 CFR part care. 235(b)(1) of the Act shall apply to any 241. (f) Privilege of communication. The or all aliens described in paragraph (9) Waivers of documentary mandatory notification requirements of (b)(2)(ii) of this section, such alien will requirements. Nothing in this section consular and diplomatic officers be given a reasonable opportunity to limits the discretionary authority of the pursuant to § 236.1(e) of this chapter establish to the satisfaction of the Attorney General, including authority apply when an inadmissible alien is examining immigration officer that he or under sections 211(b) or 212(d) of the detained for removal proceedings, she was admitted or paroled into the Act, to waive the documentary including for purpose of conducting the United States following inspection at a requirements for arriving aliens. credible fear determination. 10358 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

89. Section 235.4 is revised to read as made immediately prior to such issued by the asylum officer pursuant to follows: departure. The examination shall be section 235(b)(1)(B)(iii) of the Act. conducted in accordance with sections (iv) If an immigration officer verifies § 235.4 Withdrawal of application for 232, 235, and 240 of the Act and 8 CFR that an alien subject to expedited admission. parts 235 and 240. If it appears to the removal under section 235(b)(1) of the (a) The Attorney General may, in his examining immigration officer that any Act has been admitted as a lawful or her discretion, permit any alien person in the United States being permanent resident refugee, or asylee, or applicant for admission to withdraw his examined under this section is prima upon review pursuant to or her application for admission in lieu facie removable from the United States, § 235.3(b)(5)(iv) an immigration judge of removal proceedings under section further action with respect to his or her determines that the alien was once so 240 of the Act or expedited removal examination shall be deferred and admitted, provided that such status has under section 235(b)(1) of the Act. The further proceedings regarding not been terminated by final alien’s decision to withdraw his or her removability conducted as provided in administrative action, and the Service application for admission must be made section 240 of the Act and 8 CFR part initiates removal proceedings against voluntarily, but nothing in this section 240. When the foregoing inspection the alien under section 240 of the Act. shall be construed as to give an alien the procedure is applied to any aircraft, (2) Referral by Form I–863, Notice of right to withdraw his or her application persons examined and found admissible Referral to Immigration Judge. An for admission. Permission to withdraw shall be placed aboard the aircraft, or immigration officer will sign and deliver an application for admission should not kept at the airport separate and apart a Form I–863 to an alien in the normally be granted unless the alien from the general public until they are following cases: intends and is able to depart the United permitted to board the aircraft. No other (i) If, in accordance with section States immediately. An alien permitted person shall be permitted to depart on 235(b)(1)(B)(iii)(III) of the Act, an to withdraw his or her application for such aircraft until and unless he or she asylum officer determines that an alien admission shall normally remain in is found to be admissible as provided in does not have a credible fear of carrier or Service custody pending this section. persecution, and the alien requests a departure, unless the district director (b) In foreign territory. In the case of review of that determination by an determines that parole of the alien is any aircraft, vessel, or train proceeding immigration judge; or warranted in accordance with § 212.5(a) directly, without stopping, from a port (ii) If, in accordance with section of this chapter. or place in foreign territory to a port-of- 235(b)(1)(C) of the Act, an immigration (b) An immigration judge may allow entry in the United States, the officer refers an expedited removal only an arriving alien to withdraw an examination and inspection of order entered on an alien claiming to be application for admission. Once the passengers and crew required by the Act a lawful permanent resident, refugee, issue of inadmissibility has been and final determination of admissibility asylee, or U.S. citizen for whom the resolved, permission to withdraw an may be made immediately prior to such officer could not verify such status to an application for admission should departure at the port or place in the immigration judge for review of the ordinarily be granted only with the foreign territory and shall have the same order. concurrence of the Service. An effect under the Act as though made at (iii) If an immigration officer refers an immigration judge shall not allow an the destined port-of-entry in the United applicant described in § 208.2(b)(1) of alien to withdraw an application for States. this chapter to an immigration judge for admission unless the alien, in addition an asylum hearing under § 208.2(b)(2) of to demonstrating that he or she 91. Section 235.6 is revised to read as follows: this chapter. possesses both the intent and the means (b) Certification for mental condition; to depart immediately from the United § 235.6 Referral to immigration judge. medical appeal. An alien certified States, establishes that factors directly (a) Notice. (1) Referral by Form I–862, under sections 212(a)(1) and 232(b) of relating to the issue of inadmissibility Notice to Appear. An immigration the Act shall be advised by the indicate that the granting of the officer or asylum officer will sign and examining immigration officer that he or withdrawal would be in the interest of deliver a Form I–862 to an alien in the she may appeal to a board of medical justice. During the pendency of an following cases: examiners of the United States Public appeal from the order of removal, (i) If, in accordance with the Health Service pursuant to section 232 permission to withdraw an application provisions of section 235(b)(2)(A) of the of the Act. If such appeal is taken, the for admission must be obtained from the Act, the examining immigration officer district director shall arrange for the immigration judge or the Board. convening of the medical board. 90. Section 235.5 is revised to read as detains an alien for a proceeding before an immigration judge under section 240 follows: § 235.7 [Removed] of the Act; or § 235.5 Preinspection. (ii) If, in accordance with section 92. Section 235.7 is removed. (a) In United States territories and 235(b)(1)(B)(ii) of the Act, an asylum § 235.13 [Redesignated as § 235.7] possessions. In the case of any aircraft officer determines that an alien in 93. Section 235.13 is redesignated as proceeding from Guam, Puerto Rico, or expedited removal proceedings has a § 235.7. the United States Virgin Islands credible fear of persecution and refers 94. Section 235.8 is revised to read as destined directly and without touching the case to the immigration judge for follows: at a foreign port or place, to any other consideration of the application for of such places, or to one of the States asylum. § 235.8 Inadmissibility on security and of the United States or the District of (iii) If, in accordance with section related grounds. Columbia, the examination of the 235(b)(1)(B)(iii)(III) of the Act, the (a) Report. When an immigration passengers and crew required by the Act immigration judge determines that an officer or an immigration judge suspects may be made prior to the departure of alien in expedited removal proceedings that an arriving alien appears to be the aircraft, and in such event, final has a credible fear of persecution and inadmissible under section 212(a)(3)(A) determination of admissibility shall be vacates the expedited removal order (other than clause (ii)), (B), or (C) of the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10359

Act, the immigration officer or the matter shall be conducted in by the Service but valid existing cards immigration judge shall order the alien accordance with the provisions of will continue to be acceptable removed and report the action promptly section 240 of the Act and other documentation of U.S. citizenship. to the district director who has applicable sections of the Act to the Possession of the identification card is administrative jurisdiction over the same extent as though the alien had not mandatory for any purpose. A U.S. place where the alien has arrived or been referred to an immigration judge Citizen Identification Card remains the where the hearing is being held. The by the examining immigration officer. In property of the United States. Because immigration officer shall, if possible, a case where the immigration judge the identification card is no longer take a brief sworn question-and-answer ordered the alien removed pursuant to issued, there are no provisions for statement from the alien, and the alien paragraph (a) of this section, the Service replacement cards. shall be notified by personal service of shall refer the case back to the (b) Surrender and voidance. (1) Form I–147, Notice of Temporary immigration judge and proceedings Institution of proceeding under section Inadmissibility, of the action taken and shall be automatically reopened upon 240 or 342 of the Act. A U.S. Citizen the right to submit a written statement receipt of the notice of referral. If Identification Card must be surrendered and additional information for confidential information, not previously provisionally to a Service office upon consideration by the Attorney General. considered in the matter, is presented notification by the district director that The district director shall forward the supporting the inadmissibility of the a proceeding under section 240 or 342 report to the regional director for further alien under section 212(a)(3)(A) (other of the Act is being instituted against the action as provided in paragraph (b) of than clause (ii)), (B) or (C) of the Act, the person to whom the card was issued. this section. disclosure of which, in the discretion of The card shall be returned to the person (b) Action by regional director. (1) In the immigration judge, may be if the final order in the proceeding does accordance with section 235(c)(2)(B) of prejudicial to the public interest, safety, not result in voiding the card under this the Act, the regional director may deny or security, the immigration judge may paragraph. A U.S. Citizen Identification any further inquiry or hearing by an again order the alien removed under the Card is automatically void if the person immigration judge and order the alien authority of section 235(c) of the Act to whom it was issued is determined to removed by personal service of Form I– and further action shall be taken as be an alien in a proceeding conducted 148, Notice of Permanent provided in this section. under section 240 of the Act, or if a Inadmissibility, or issue any other order (e) Nonapplicability. The provisions certificate, document, or record relating disposing of the case that the regional of this section shall apply only to to that person is canceled under section director considers appropriate. arriving aliens, as defined in § 1.1(q) of 342 of the Act. (2) If the regional director concludes this chapter. Aliens present in the (2) Investigation of validity of that the case does not meet the criteria United States who have not been identification card. A U.S. Citizen contained in section 235(c)(2)(B) of the admitted or paroled may be subject to Identification Card must be surrendered Act, the regional director may direct proceedings under Title V of the Act. provisionally upon notification by a that: district director that the validity of the (i) An immigration officer shall § 235.9 [Removed] card is being investigated. The card conduct a further examination of the 95. Section 235.9 is removed. shall be returned to the person who surrendered it if the investigation does alien, concerning the alien’s § 235.12 [Redesignated as § 235.9 and admissibility; or, revised] not result in a determination adverse to (ii) The alien’s case be referred to an his or her claim to be a United States 96. Section 235.12 is redesignated as immigration judge for a hearing, or for citizen. When an investigation results in § 235.9 and is revised to read as follows: the continuation of any prior hearing. a tentative determination adverse to the (3) The regional director’s decision § 235.9 Northern Marianas identification applicant’s claim to be a United States shall be in writing and shall be signed card. citizen, the applicant shall be notified by the regional director. Unless the During the two-year period that ended by certified mail directed to his or her written decision contains confidential July 1, 1990, the Service issued last known address. The notification information, the disclosure of which Northern Marianas Identification Cards shall inform the applicant of the basis would be prejudicial to the public to aliens who acquired United States for the determination and of the interest, safety, or security of the United citizenship when the Covenant to intention of the district director to States, the written decision shall be Establish a Commonwealth of the declare the card void unless within 30 served on the alien. If the written Northern Mariana Islands in Political days the applicant objects and demands decision contains such confidential Union with the United States entered an opportunity to see and rebut the information, the alien shall be served into force on November 3, 1986. These adverse evidence. Any rebuttal, with a separate written order showing cards remain valid as evidence of explanation, or evidence presented by the disposition of the case, but with the United States citizenship. Although the the applicant must be included in the confidential information deleted. Service no longer issues these cards, a record of proceeding. The determination (c) Finality of decision. The regional United States citizen to whom a card whether the applicant is a United States director’s decision under this section is was issued may file Form I–777, citizen must be based on the entire final when it is served upon the alien in Application for Issuance or record and the applicant shall be accordance with paragraph (b)(3) of this Replacement of Northern Marianas notified of the determination. If it is section. There is no administrative Card, to obtain replacement of a lost, determined that the applicant is not a appeal from the regional director’s stolen, or mutilated Northern Marianas United States citizen, the applicant shall decision. Identification Card. be notified of the reasons, and the card (d) Hearing by immigration judge. If 97. Section 235.10 is revised to read deemed void. There is no appeal from the regional director directs that an as follows: the district director’s decision. alien subject to removal under this (3) Admission of alienage. A U.S. section be given a hearing or further § 235.10 U.S. Citizen Identification Card. Citizen Identification Card is void if the hearing before an immigration judge, the (a) General. Form I–197, U.S. Citizen person to whom it was issued admits in hearing and all further proceedings in Identification Card, is no longer issued a statement signed before an 10360 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations immigration officer that he or she is an alien is subject thereto (e.g., if the 236.13 Ineligible aliens. alien and consents to the voidance of second anniversary of the marriage 236.14 Filing. the card. Upon signing the statement the upon which the immigrant visa is based 236.15 Voluntary departure and eligibility card must be surrendered to the occurred after the issuance of the visa for employment. 236.16 Travel outside the United States. immigration officer. and prior to the alien’s application for 236.17 Eligibility for Federal financial (4) Surrender of void card. A void admission) the endorsement on the visa assistance programs. U.S. Citizen Identification Card which shall be corrected and the alien shall be 236.18 Termination of Family Unity has not been returned to the Service admitted as a lawful permanent resident Program benefits. must be surrendered without delay to an without conditions, if otherwise Authority: 8 U.S.C. 1103, 1182, 1224, 1225, immigration officer or to the issuing admissible. 1226, 1227, 1362; 8 CFR part 2. (c) Expired conditional permanent office of the Service. Subpart AÐDetention of Aliens Prior to (c) U.S. Citizen Identification Card resident status. The lawful permanent Order of Removal previously issued on Form I–179. A resident alien status of a conditional valid Form I–179, U.S. Citizen resident automatically terminates if the § 236.1 Apprehension, custody, and Identification Card, continues to be conditional basis of such status is not detention. valid subject to the provisions of this removed by the Service through (a) Detainers. The issuance of a section. approval of a Form I–751, Petition to detainer under this section shall be 98. Section 235.11 is revised to read Remove the Conditions on Residence or, governed by the provisions of § 287.7 of as follows: in the case of an alien entrepreneur (as this chapter. defined in section 216A(f)(1) of the Act), (b) Warrant of arrest. (1) In general. At § 235.11 Admission of conditional Form I–829, Petition by Entrepreneur to the time of issuance of the notice to permanent residents. Remove Conditions. Therefore, an alien appear, or at any time thereafter and up (a) General. (1) Conditional residence who is seeking admission as a returning to the time removal proceedings are based on family relationship. An alien resident subsequent to the second completed, the respondent may be seeking admission to the United States anniversary of the date on which arrested and taken into custody under with an immigrant visa as the spouse or conditional residence was obtained the authority of Form I–200, Warrant of son or daughter of a United States (except as provided in § 211.1(b)(1) of Arrest. A warrant of arrest may be citizen or lawful permanent resident this chapter) and whose conditional issued only by those immigration shall be examined to determine whether basis of such residence has not been officers listed in § 287.5(e)(2) of this the conditions of section 216 of the Act removed pursuant to section 216(c) or chapter and may be served only by apply. If so, the alien shall be admitted 216A(c) of the Act, whichever is those immigration officers listed in conditionally for a period of 2 years. At applicable, shall be placed under § 287.5(e)(3) of this chapter. the time of admission, the alien shall be removal proceedings. However, in a (2) If, after the issuance of a warrant notified that the alien and his or her case where conditional residence was of arrest, a determination is made not to petitioning spouse must file a Form I– based on a marriage, removal serve it, any officer authorized to issue 751, Petition to Remove the Conditions proceedings may be terminated and the such warrant may authorize its on Residence, within the 90-day period alien may be admitted as a returning cancellation. immediately preceding the second resident if the required Form I–751 is (c) Custody issues and release anniversary of the alien’s admission for filed jointly, or by the alien alone (if procedures. (1) After the expiration of permanent residence. appropriate), and approved by the the Transition Period Custody Rules (2) Conditional residence based on Service. In the case of an alien under Public Law 104–208, no alien entrepreneurship. An alien seeking entrepreneur, removal proceedings may described in section 236(c)(1) of the Act admission to the United States with an be terminated and the alien admitted as shall be released from custody during immigrant visa as an alien entrepreneur a returning resident if the required Form removal proceedings except pursuant to (as defined in section 216A(f)(1) of the I–829 is filed by the alien entrepreneur section 236(c)(2) of the Act. Act) or the spouse or unmarried minor and approved by the Service. (2) Any officer authorized to issue a child of an alien entrepreneur shall be 99. Part 236 is revised to read as warrant of arrest may, in the officer’s admitted conditionally for a period of 2 follows: discretion, release an alien not years. At the time of admission, the described in section 236(c)(1) of the Act, alien shall be notified that the principal PART 236ÐAPPREHENSION AND under the conditions at section 236(a)(2) alien (entrepreneur) must file a Form I– DETENTION OF INADMISSIBLE AND and (3) of the Act; provided that the 829, Petition by Entrepreneur to Remove DEPORTABLE ALIENS; REMOVAL OF alien must demonstrate to the Conditions, within the 90-day period ALIENS ORDERED REMOVED satisfaction of the officer that such immediately preceding the second release would not pose a danger to Subpart AÐDetention of Aliens Prior to anniversary of the alien’s admission for Order of Removal property or persons, and that the alien permanent residence. is likely to appear for any future (b) Correction of endorsement on Sec. proceeding. immigrant visa. If the alien is subject to 236.1 Apprehension, custody, and (3) When an alien who, having been detention. the provisions of section 216 of the Act, 236.2 Confined aliens, incompetents, and arrested and taken into custody, has but the classification endorsed on the minors. been released, such release may be immigrant visa does not so indicate, the 236.3 Detention and release of juveniles. revoked at any time in the discretion of endorsement shall be corrected and the 236.4 Removal of S–5, S–6, and S–7 the district director, acting district alien shall be admitted as a lawful nonimmigrants. director, deputy district director, permanent resident on a conditional 236.5 Fingerprints and photographs. assistant district director for basis, if otherwise admissible. 236.6–236.9 Reserved. investigations, assistant district director Conversely, if the alien is not subject to Subpart BÐFamily Unity Program for detention and deportation, or officer the provisions of section 216 of the Act, 236.10 Description of program. in charge (except foreign), in which but the visa classification endorsed on 236.11 Definitions. event the alien may be taken into the immigrant visa indicates that the 236.12 Eligibility. physical custody and detained. If Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10361 detained, unless a breach has occurred, appeal the decision of an immigration Grenada any outstanding bond shall be revoked judge pursuant to paragraph (d)(1) of Guyana and canceled. this section. Hungary (4) The provisions of § 103.6 of this (ii) The alien, within 10 days, may Jamaica chapter shall apply to any bonds appeal from the district director’s Kazakhstan Kiribati authorized. Subject to the provisions of decision under paragraph (d)(2)(i) of Kuwait this section, the provisions of § 3.19 of this section. Kyrgyzstan this chapter shall govern availability to (iii) The alien, within 10 days, may Malaysia the respondent of recourse to other appeal from the district director’s Malta administrative authority for release from decision under paragraph (d)(2)(ii) of Mauritius custody. this section, except that no appeal shall Moldova (5) An immigration judge may not be allowed when the Service notifies the Mongolia exercise authority provided in this alien that it is ready to execute an order Nigeria Philippines section and the review process of removal and takes the alien into Poland described in paragraph (d) of this custody for that purpose. Romania section shall not apply with respect to: (4) Effect of filing an appeal. The Russian Federation (i) Arriving aliens, as described in filing of an appeal from a determination St. Kitts/Nevis § 1.1(q) of this chapter, including aliens of an immigration judge or district St. Lucia paroled pursuant to section 212(d)(5) of director under this paragraph shall not St. Vincent/Grenadines the Act, in removal proceedings, operate to delay compliance with the Seychelles (ii) Aliens described in section order, nor stay the administrative Sierra Leone 237(a)(4) of the Act, or proceedings or removal. Singapore (iii) After the expiration of section (e) Privilege of communication. Every Slovak Republic 303(b)(3) of Public Law 104–208, aliens South Korea detained alien shall be notified that he Tajikistan described in section 236(c)(1) of the Act. or she may communicate with the Tanzania (d) Appeals from custody decisions. consular or diplomatic officers of the Tonga (1) Application to immigration judge. country of his or her nationality in the Trinidad/Tobago After an initial custody determination United States. Existing treaties with the Turkmenistan by the district director, including the following countries require immediate Tuvalu setting of a bond, the respondent may, communication with appropriate Ukraine at any time before an order under 8 CFR consular or diplomatic officers United Kingdom 3 4 part 240 becomes final, request whenever nationals of the following U.S.S.R. amelioration of the conditions under Uzbekistan countries are detained in removal Zambia which he or she may be released. Prior proceedings, whether or not requested to such final order, and except as by the alien and even if the alien (f) Notification to Executive Office for otherwise provided in this chapter, the requests that no communication be Immigration Review of change in immigration judge is authorized to undertaken in his or her behalf. When custody status. The Service shall notify exercise the authority in section 236 of notifying consular or diplomatic the Immigration Court having the Act to detain the alien in custody, officials, Service officers shall not reveal administrative control over the Record release the alien, and determine the the fact that any detained alien has of Proceeding of any change in custody amount of bond, if any, under which the applied for asylum or withholding of location or of release from, or respondent may be released, as removal. subsequent taking into, Service custody provided in § 3.19 of this chapter. If the 1 of a respondent/applicant pursuant to Albania § 3.19(g) of this chapter. alien has been released from custody, an Antigua application for amelioration of the terms Armenia § 236.2 Confined aliens, incompetents, of release must be filed within 7 days of Azerbaijan and minors. release. Once a removal order becomes Bahamas (a) Service. If the respondent is administratively final, determinations Barbados confined, or if he or she is an regarding custody and bond are made by Belarus incompetent, or a minor under the age the district director. Belize (2) Application to the district director. Brunei of 14, the notice to appear, and the Bulgaria (i) After expiration of the 7-day period warrant of arrest, if issued, shall be China (People’s Republic of) 2 served in the manner prescribed in in paragraph (d)(1) of this section, the Costa Rica respondent may request review by the § 239.1 of this chapter upon the person Cyprus or persons specified by § 103.5a(c) of district director of the conditions of his Czech Republic or her release. Dominica this chapter. (ii) After an order becomes Fiji (b) Service custody and cost of administratively final, the respondent Gambia, The maintenance. An alien confined may request review by the district Georgia because of physical or mental disability director of the conditions of his or her Ghana in an institution or hospital shall not be release. 1 3 (3) Appeal to the Board of Arrangements with these countries provide that British dependencies are also covered by this U.S. authorities shall notify responsible agreement. They are: Anguilla, British Virgin Immigration Appeals. An appeal representatives within 72 hours of the arrest or Islands, Hong Kong, Bermuda, Montserrat, and the relating to bond and custody detention of one of their nationals. Turks and Caicos Islands. Their residents carry determinations may be filed to the 2 When Taiwan nationals (who carry ‘‘Republic British passports. Board of Immigration Appeals in the of China’’ passports) are detained, notification 4 All U.S.S.R. successor states are covered by this should be made to the nearest office of the Taiwan agreement. They are: Armenia, Azerbaijan, Belarus, following circumstances: Economic and Cultural Representative’s Office, the Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian (i) In accordance with § 3.38 of this unofficial entity representing Taiwan’s interests in Federation, Tajikistan, Turkmenistan, Ukraine, and chapter, the alien or the Service may the United States. Uzbekistan. 10362 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations accepted into physical custody by the other than those identified in voluntary departure form or being Service until an order of removal has paragraphs (b)(1)(i) through (iii) of this allowed to withdraw his or her been entered and the Service is ready to section, who executes an agreement to application for admission, that he or she remove the alien. When such an alien is care for the juvenile’s well-being and to may make a telephone call to a parent, an inmate of a public or private ensure the juvenile’s presence at all close relative, a friend, or to an institution at the time of the future proceedings before the Service or organization found on the free legal commencement of the removal an immigration judge. services list. A juvenile who does not proceedings, expenses for the (c) Juvenile coordinator. The case of a reside in Mexico or Canada who is maintenance of the alien shall not be juvenile for whom detention is apprehended shall be provided access to incurred by the Government until he or determined to be necessary should be a telephone and must in fact she is taken into physical custody by the referred to the ‘‘Juvenile Coordinator,’’ communicate either with a parent, adult Service. whose responsibilities should include, relative, friend, or with an organization but not be limited to, finding suitable found on the free legal services list prior § 236.3 Detention and release of juveniles. placement of the juvenile in a facility to presentation of the voluntary (a) Juveniles. A juvenile is defined as designated for the occupancy of departure form. If such juvenile, of his an alien under the age of 18 years. juveniles. These may include juvenile or her own volition, asks to contact a (b) Release. Juveniles for whom bond facilities contracted by the Service, state consular officer, and does in fact make has been posted, for whom parole has or local juvenile facilities, or other such contact, the requirements of this been authorized, or who have been appropriate agencies authorized to section are satisfied. ordered released on recognizance, shall accommodate juveniles by the laws of (h) Notice and request for disposition. be released pursuant to the following the state or locality. When a juvenile alien is apprehended, guidelines: (d) Detention. In the case of a juvenile he or she must be given a Form I–770, (1) Juveniles shall be released, in for whom detention is determined to be Notice of Rights and Disposition. If the order of preference, to: necessary, for such interim period of juvenile is less than 14 years of age or (i) A parent; time as is required to locate suitable unable to understand the notice, the (ii) Legal guardian; or placement for the juvenile, whether notice shall be read and explained to the (iii) An adult relative (brother, sister, such placement is under paragraph (b) juvenile in a language he or she aunt, uncle, grandparent) who is not or (c) of this section, the juvenile may understands. In the event a juvenile presently in Service detention, unless a be temporarily held by Service who has requested a hearing pursuant to determination is made that the authorities or placed in any Service the notice subsequently decides to detention of such juvenile is required to detention facility having separate accept voluntary departure or is allowed secure his or her timely appearance accommodations for juveniles. to withdraw his or her application for before the Service or the Immigration (e) Refusal of release. If a parent of a admission, a new Form I–770 shall be Court or to ensure the juvenile’s safety juvenile detained by the Service can be given to, and signed by the juvenile. or that of others. In cases where the located, and is otherwise suitable to parent, legal guardian, or adult relative receive custody of the juvenile, and the § 236.4 Removal of S±5, S±6, and S±7 resides at a location distant from where juvenile indicates a refusal to be nonimmigrants. the juvenile is detained, he or she may released to his or her parent, the (a) Condition of classification. As a secure release at a Service office located parent(s) shall be notified of the condition of classification and near the parent, legal guardian, or adult juvenile’s refusal to be released to the continued stay in classification relative. parent(s), and shall be afforded an pursuant to section 101(a)(15)(S) of the (2) If an individual specified in opportunity to present their views to the Act, nonimmigrants in S classification paragraphs (b)(1)(i) through (iii) of this district director, chief patrol agent, or must have executed Form I–854, Part B, section cannot be located to accept immigration judge before a custody Inter-agency Alien Witness and custody of a juvenile, and the juvenile determination is made. Informant Record, certifying that they has identified a parent, legal guardian, (f) Notice to parent of application for have knowingly waived their right to a or adult relative in Service detention, relief. If a juvenile seeks release from removal hearing and right to contest, simultaneous release of the juvenile and detention, voluntary departure, parole, other than on the basis of an application the parent, legal guardian, or adult or any form of relief from removal, for withholding of deportation or relative shall be evaluated on a where it appears that the grant of such removal, any removal action, including discretionary case-by-case basis. relief may effectively terminate some detention pending deportation or (3) In cases where the parent or legal interest inherent in the parent-child removal, instituted before lawful guardian is in Service detention or relationship and/or the juvenile’s rights permanent resident status is obtained. outside the United States, the juvenile and interests are adverse with those of (b) Determination of deportability. (1) may be released to such person as is the parent, and the parent is presently A determination to remove a deportable designated by the parent or legal residing in the United States, the parent alien classified pursuant to section guardian in a sworn affidavit, executed shall be given notice of the juvenile’s 101(a)(15)(S) of the Act shall be made by before an immigration officer or application for relief, and shall be the district director having jurisdiction consular officer, as capable and willing afforded an opportunity to present his over the place where the alien is to care for the juvenile’s well-being. or her views and assert his or her located. Such person must execute an agreement interest to the district director or (2) A determination to remove such a to care for the juvenile and to ensure the immigration judge before a deportable alien shall be based on one juvenile’s presence at all future determination is made as to the merits or more of the grounds of deportability proceedings before the Service or an of the request for relief. listed in section 237 of the Act based on immigration judge. (g) Voluntary departure. Each conduct committed after, or conduct or (4) In unusual and compelling juvenile, apprehended in the immediate a condition not disclosed to the Service circumstances and in the discretion of vicinity of the border, who resides prior to, the alien’s classification as an the district director or chief patrol agent, permanently in Mexico or Canada, shall S nonimmigrant under section a juvenile may be released to an adult, be informed, prior to presentation of the 101(a)(15)(S) of the Act, or for a Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10363 violation of, or failure to adhere to, the immigration officer not to be eligible for and Control Act of 1986 (Cuban/Haitian particular terms and conditions of status admission under that section or to be Adjustment). in S nonimmigrant classification. inadmissible to the United States under (c) Removal procedures. (1) A district one or more of the grounds of § 236.12 Eligibility. director who determines to remove an inadmissibility listed in section 212 of (a) General. An alien who is not a alien witness or informant in S the Act and which have not been lawful permanent resident is eligible to nonimmigrant classification shall notify previously waived by the Commissioner apply for benefits under the Family the Commissioner, the Assistant will be taken into custody. The district Unity Program if he or she establishes: Attorney General, Criminal Division, director having jurisdiction over the (1) That he or she entered the United and the relevant law enforcement port-of-entry shall follow the States before May 5, 1988 (in the case agency in writing to that effect. The notification procedures specified in of a relationship to a legalized alien Assistant Attorney General, Criminal paragraph (c)(1) of this section. A described in subsection (b)(2)(B) or Division, shall concur in or object to district director who has provided such (b)(2)(C) of section 301 of IMMACT 90), that decision. Unless the Assistant notice and who has been advised by the or as of December 1, 1988 (in the case Attorney General, Criminal Division, Commissioner that the Assistant of a relationship to a legalized alien objects within 7 days, he or she shall be Attorney General, Criminal Division, described in subsection (b)(2)(A) of deemed to have concurred in the has not objected shall remove the alien section 301 of IMMACT 90), and has decision. In the event of an objection by without further hearing. An alien may been continuously residing in the the Assistant Attorney General, not contest such removal, other than by United States since that date; and Criminal Division, the matter will be applying for withholding of removal. (2) That on May 5, 1988 (in the case expeditiously referred to the Deputy of a relationship to a legalized alien Attorney General for a final resolution. § 236.5 Fingerprints and photographs. described in subsection (b)(2)(B) or In no circumstances shall the alien or Every alien 14 years of age or older (b)(2)(C) of section 301 of IMMACT 90), the relevant law enforcement agency against whom proceedings based on or as of December 1, 1988 (in the case have a right of appeal from any decision deportability under section 237 of the of a relationship to a legalized alien to remove. Act are commenced under this part by described in subsection (b)(2)(A) of (2) A district director who has service of a notice to appear shall be section 301 of IMMACT 90), he or she provided notice as set forth in paragraph fingerprinted and photographed. Such was the spouse or unmarried child of a (c)(1) of this section and who has been fingerprints and photographs shall be legalized alien, and that he or she has advised by the Commissioner that the made available to Federal, State, and been eligible continuously since that Assistant Attorney General, Criminal local law enforcement agencies upon time for family-sponsored second Division, has not objected shall issue a request to the district director or chief preference immigrant status under Warrant of Removal. The alien shall patrol agent having jurisdiction over the section 203(a)(2) of the Act based on the immediately be arrested and taken into alien’s record. Any such alien, same relationship. custody by the district director initiating regardless of his or her age, shall be (b) Legalization application pending the removal. An alien classified under photographed and/or fingerprinted if as of May 5, 1988 or December 1, 1988. the provisions of section 101(a)(15)(S) of required by any immigration officer An alien whose legalization application the Act who is determined, pursuant to authorized to issue a notice to appear. was filed on or before May 5, 1988 (in a warrant issued by a district director, Every alien 14 years of age or older who the case of a relationship to a legalized to be deportable from the United States is found to be inadmissible to the alien described in subsection (b)(2)(B) or shall be removed from the United States United States and ordered removed by (b)(2)(C) of section 301 of IMMACT 90), to his or her country of nationality or an immigration judge shall be or as of December 1, 1988 (in the case last residence. The agency that fingerprinted, unless during the of a relationship to a legalized alien requested the alien’s presence in the preceding year he or she has been described in subsection (b)(2)(A) of United States shall ensure departure fingerprinted at an American consular section 301 of IMMACT 90), but not from the United States and so inform office. approved until after that date will be the district director in whose treated as having been a legalized alien jurisdiction the alien has last resided. §§ 236.6Ð236.9 [Reserved] as of May 5, 1988 (in the case of a The district director, if necessary, shall relationship to a legalized alien oversee the alien’s departure from the Subpart BÐFamily Unity Program described in subsection (b)(2)(B) or United States and, in any event, shall § 236.10 Description of program. (b)(2)(C) of section 301 of IMMACT 90), notify the Commissioner of the alien’s or as of December 1, 1988 (in the case departure. The family unity program implements of a relationship to a legalized alien (d) Withholding of removal. An alien the provisions of section 301 of the described in subsection (b)(2)(A) of classified pursuant to section Immigration Act of 1990, Public Law section 301 of IMMACT 90), for 101(a)(15)(S) of the Act who applies for 101–649. This Act is referred to in this purposes of the Family Unity Program. withholding of removal shall have 10 subpart as ‘‘IMMACT 90’’. § 236.13 Ineligible aliens. days from the date the Warrant of § 236.11 Definitions. Removal is served upon the alien to file The following categories of aliens are an application for such relief with the In this subpart, the term: ineligible for benefits under the Family district director initiating the removal Eligible immigrant means a qualified Unity Program: order. The procedures contained in immigrant who is the spouse or (a) An alien who is deportable under §§ 208.2 and 208.16 of this chapter shall unmarried child of a legalized alien. any paragraph in section 237(a) of the apply to such an alien who applies for Legalized alien means an alien who: Act, except paragraphs (1)(A), (1)(B), withholding of removal. (1) Is a temporary or permanent (1)(C), and (3)(A); provided that an alien (e) Inadmissibility. An alien who resident under section 210 or 245A of who is deportable under section applies for admission under the the Act; or 237(a)(1)(A) of such Act is also provisions of section 101(a)(15)(S) of the (2) Is a permanent resident under ineligible for benefits under the Family Act who is determined by an section 202 of the Immigration Reform Unity Program if deportability is based 10364 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations upon a ground of inadmissibility the provisions of section 240B of the Act continuing eligibility since the date of described in section 212(a)(2) or (3) of and 8 CFR part 240. the prior approval. the Act; (b) Children of legalized aliens. § 236.16 Travel outside the United States. (b) An alien who has been convicted Children of legalized aliens residing in of a felony or three or more the United States, who were born during An alien granted Family Unity misdemeanors in the United States; or an authorized absence from the United Program benefits who intends to travel (c) An alien described in section States of mothers who are currently outside the United States temporarily 241(b)(3)(B) of the Act. residing in the United States under must apply for advance authorization voluntary departure pursuant to the using Form I–131, Application for § 236.14 Filing. Family Unity Program, may be granted Travel Document. The authority to grant (a) General. An application for voluntary departure under section 301 an application for advance authorization voluntary departure under the Family of IMMACT 90 for a period of 2 years. for an alien granted Family Unity Unity Program must be filed at the (c) Duration of voluntary departure. Program benefits rests solely with the service center having jurisdiction over An alien whose application for benefits district director. An alien who is the alien’s place of residence. A Form I– under the Family Unity Program is granted advance authorization and approved will receive voluntary 817, Application for Voluntary returns to the United States in departure for 2 years, commencing with Departure under the Family Unity accordance with such authorization, the date of approval of the application. Program, must be filed with the correct and who is found not to be inadmissible Voluntary departure under this section fee required in § 103.7(b)(1) of this under section 212(a)(2) or (3) of the Act, shall be considered effective from the chapter and the required supporting shall be inspected and admitted in the date on which the application was documentation. A separate application same immigration status as the alien properly filed. with appropriate fee and documentation had at the time of departure, and shall (d) Employment authorization. An be provided the remainder of the must be filed for each person claiming alien granted benefits under the Family eligibility. voluntary departure period previously Unity Program is authorized to be granted under the Family Unity (b) Decision. The service center employed in the United States and may Program. director has sole jurisdiction to apply for an employment authorization adjudicate an application for benefits document on Form I–765, Application § 236.17 Eligibility for Federal financial under the Family Unity Program. The for Employment Authorization. The assistance programs. director will provide the applicant with application may be filed concurrently An alien granted Family Unity specific reasons for any decision to deny with Form I–817. The application must Program benefits based on a relationship an application. Denial of an application be accompanied by the correct fee to a legalized alien as defined in may not be appealed. An applicant who required by § 103.7(b)(1) of this chapter. § 236.11 is ineligible for public welfare believes that the grounds for denial have The validity period of the employment assistance in the same manner and for been overcome may submit another authorization will coincide with the the same period as the legalized alien application with the appropriate fee and period of voluntary departure. who is ineligible for such assistance documentation. (e) Extension of voluntary departure. under section 245A(h) or 210(f) of the (c) Referral of denied cases for An application for an extension of Act, respectively. consideration of issuance of notice to voluntary departure under the Family appear. If an application is denied, the Unity Program must be filed by the alien § 236. 18 Termination of Family Unity case will be referred to the district on Form I–817 along with the correct fee Program benefits. director with jurisdiction over the required in § 103.7(b)(1) of this chapter (a) Grounds for termination. The alien’s place of residence for and the required supporting Service may terminate benefits under consideration of whether to issue a documentation. The submission of a the Family Unity Program whenever the notice to appear. After an initial denial, copy of the previous approval notice necessity for the termination comes to an applicant’s case will not be referred will assist in shortening the processing the attention of the Service. Such for issuance of a notice to appear until time. An extension may be granted if the grounds will exist in situations 90 days from the date of the initial alien continues to be eligible for benefits including, but not limited to, those in denial, to allow the alien the under the Family Unity Program. which: opportunity to file a new Form I–817 However, an extension may not be (1) A determination is made that application in order to attempt to approved if the legalized alien is a Family Unity Program benefits were overcome the basis of the denial. lawful permanent resident, and a acquired as the result of fraud or willful However, if the applicant is found not petition for family-sponsored immigrant misrepresentation of a material fact; to be eligible for benefits under status has not been filed in behalf of the (2) The beneficiary commits an act or § 236.13(b), the Service reserves the applicant. In such case the Service will acts which render him or her right to issue a notice to appear at any notify the alien of the reason for the inadmissible as an immigrant or who time after the initial denial. denial and afford him or her the are ineligible for benefits under the opportunity to file another Form I–817 Family Unity Program; § 236.15 Voluntary departure and eligibility once the petition, Form I–130, has been (3) The legalized alien upon whose for employment. filed in behalf of him or her. No status benefits under the Family Unity (a) Authority. Voluntary departure charging document will be issued for a Program were based loses his or her under this section implements the period of 90 days. legalized status; provisions of section 301 of IMMACT (f) Supporting documentation for (4) The beneficiary is the subject of a 90, and authority to grant voluntary extension application. Supporting final order of exclusion, deportation, or departure under the family unity documentation need not include removal issued subsequent to the grant program derives solely from that documentation provided with the of Family Unity benefits unless such section. Voluntary departure under the previous application(s). The extension final order is based on entry without family unity program shall be governed application need only include changes inspection; violation of status; or failure solely by this section, notwithstanding to previous applications and evidence of to comply with section 265 of the Act; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10365 or inadmissibility at the time of entry Deportation Order (Notice of Intent), if (iv) The Service shall provide the other than inadmissibility pursuant to the officer is satisfied that there is alien with a list of available free legal section 212(a)(2) or 212(a)(3) of the Act, sufficient evidence, based upon services programs qualified under 8 CFR regardless of whether the facts giving questioning of the alien by an part 3 and organizations recognized rise to such ground occurred before or immigration officer and upon any other pursuant to 8 CFR part 292, located after the benefits were granted; or evidence obtained, to support a finding within the district or sector where the (5) A qualifying relationship to a that the individual: Notice of Intent is issued. legalized alien no longer exists. (i) Is an alien; (v) The Service must either provide (b) Notice procedure. Notice of intent (ii) Has not been lawfully admitted for the alien with a written translation of to terminate and of the grounds thereof permanent residence, or has conditional the Notice of Intent or explain the shall be served pursuant to the permanent resident status under section contents of the Notice of Intent to the provisions of § 103.5a of this chapter. 216 of the Act; alien in the alien’s native language or in The alien shall be given 30 days to (iii) Has been convicted (as defined in a language that the alien understands. respond to the notice and may submit section 101(a)(48) of the Act and as (c) Alien’s response. (1) Time for to the Service additional evidence in demonstrated by any of the documents response. The alien will have 10 rebuttal. Any final decision of or records listed in § 3.41 of this calendar days from service of the Notice termination shall also be served chapter) of an aggravated felony and of Intent, or 13 calendar days if service pursuant to the provisions of § 103.5a of such conviction has become final; and is by mail, to file a response to the this chapter. Nothing in this section (iv) Is deportable under section Notice of Intent. In the response, the shall preclude the Service from 237(a)(2)(A)(iii) of the Act, including an alien may: designate his or her choice of commencing exclusion or deportation alien who has neither been admitted nor country for removal; submit a written proceedings prior to termination of paroled, but who is conclusively response rebutting the allegations Family Unity Program benefits. presumed deportable under section supporting the charge and/or requesting (c) Effect of termination. Termination 237(a)(2)(A)(iii) by operation of section the opportunity to review the of benefits under the Family Unity 238(c) of the Act (‘‘Presumption of Government’s evidence; and/or request Program, other than as a result of a final Deportability’’). in writing an extension of time for order of removal, shall render the alien (2) Notice. (i) Removal proceedings response, stating the specific reasons amenable to removal proceedings under under section 238(b) of the Act shall why such an extension is necessary. section 240 of the Act. If benefits are commence upon personal service of the Alternatively, the alien may, in writing, terminated, the period of voluntary Notice of Intent upon the alien, as choose to accept immediate issuance of departure under this section is also prescribed by §§ 103.5a(a)(2) and a Final Administrative Removal Order. terminated. 103.5a(c)(2) of this chapter. The Notice The deciding Service officer may extend of Intent shall set forth the preliminary the time for response for good cause PART 237Ð[REMOVED AND determinations and inform the alien of shown. A request for extension of time RESERVED] the Service’s intention to issue a Form for response will not automatically 100. Part 237 is removed and I–851A, Final Administrative Removal extend the period for the response. The reserved. Order, without a hearing before an alien will be permitted to file a response 101. Part 238 is added to read as immigration judge. This Notice shall outside the prescribed period only if the follows: constitute the charging document. The deciding Service officer permits it. The Notice of Intent shall include allegations alien must send the response to the PART 238ÐEXPEDITED REMOVAL OF of fact and conclusions of law. It shall deciding Service officer at the address AGGRAVATED FELONS advise that the alien: has the privilege provided in the Notice of Intent. of being represented, at no expense to (2) Nature of rebuttal or request to Sec. the Government, by counsel of the review evidence. (i) If an alien chooses 238.1 Proceedings under section 238(b) of the Act. alien’s choosing, as long as counsel is to rebut the allegations contained in the authorized to practice in deportation Notice of Intent, the alien’s written Authority: 8 U.S.C. 1228; 8 CFR part 2. proceedings; may inspect the evidence response must indicate which finding(s) § 238.1 Proceedings under section 238(b) supporting the Notice of Intent; and may are being challenged and should be of the Act. rebut the charges within 10 calendar accompanied by affidavit(s), (a) Definitions. As used in this part: days after service of such Notice (or 13 documentary information, or other Deciding Service officer means a calendar days if service of the Notice specific evidence supporting the district director, chief patrol agent, or was by mail). challenge. another immigration officer designated (ii) The Notice of Intent also shall (ii) If an alien’s written response by a district director or chief patrol advise the alien that he or she may requests the opportunity to review the agent, who is not the same person as the designate in writing, within the rebuttal Government’s evidence, the Service issuing Service officer. period, the country to which he or she shall serve the alien with a copy of the Issuing Service officer means any chooses to be deported in accordance evidence in the record of proceeding Service officer listed in § 239.1 of this with section 241 of the Act, in the event upon which the Service is relying to chapter as authorized to issue notices to that a Final Administrative Removal support the charge. The alien may, appear. Order is issued, and that the Service within 10 calendar days following (b) Preliminary consideration and will honor such designation only to the service of the Government’s evidence Notice of Intent to Issue a Final extent permitted under the terms, (13 calendar days if service is by mail), Administrative Deportation Order; limitations, and conditions of section furnish a final response in accordance commencement of proceedings.—(1) 241 of the Act. with paragraph (c)(1) of this section. If Basis of Service charge. An issuing (iii) The Service must determine that the alien’s final response is a rebuttal of Service officer shall cause to be served the person served with the Notice of the allegations, such a final response upon an alien a Form I–851, Notice of Intent is the person named on the should be accompanied by affidavit(s), Intent to Issue a Final Administrative notice. documentary information, or other 10366 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations specific evidence supporting the Removal Order that states the reasons (h) Record of proceeding. The Service challenge. for the decision of deportability. shall maintain a record of proceeding (d) Determination by deciding Service (iii) Conversion to proceedings under for judicial review of the Final officer. (1) No response submitted or section 240 of the Act. If the deciding Administrative Removal Order sought concession of deportability. If the Service officer finds that the alien is not by any petition for review. The record deciding Service officer does not receive amenable to removal under section 238 of proceeding shall include, but not a timely response and the evidence in of the Act, the deciding Service officer necessarily be limited to: the charging the record of proceeding establishes shall terminate the expedited document (Notice of Intent); the Final deportability by clear, convincing, and proceedings under section 238 of the Administrative Removal Order unequivocal evidence, or if the alien Act and shall, where appropriate, cause (including any supplemental concedes deportability, then the to be issued a notice to appear for the memorandum of decision); the alien’s deciding Service officer shall issue and purpose of initiating removal response, if any; all evidence in support cause to be served upon the alien a proceedings before an immigration of the charge; and any admissible Final Administrative Removal Order judge under section 240 of the Act. evidence, briefs, or documents that states the reasons for the (3) Termination of proceedings by submitted by either party respecting deportation decision. The alien may, in deciding Service officer. Only the deportability. The executed duplicate of writing, waive the 14-day waiting deciding Service officer may terminate the Notice of Intent in the record of period before execution of the final proceedings under section 238 of the proceedings shall be retained as order of removal provided in a Act, in accordance with this section. evidence that the individual upon paragraph (f) of this section. (e) Proceedings commenced under whom the notice for the proceeding was (2) Response submitted. (i) section 240 of the Act. In any served was, in fact, the alien named in Insufficient rebuttal; no genuine issue of proceeding commenced under section the notice. material fact. If the alien timely submits 240 of the Act which is based on 102. Part 239 is added to read as a rebuttal to the allegations, but the deportability under section 237 of the follows: deciding Service officer finds that Act, if it appears that the respondent deportability is established by clear, alien is subject to removal pursuant to PART 239ÐINITIATION OF REMOVAL convincing, and unequivocal evidence section 238 of the Act, the immigration PROCEEDINGS in the record of proceeding, the judge may, upon the Service’s request, deciding Service officer shall issue and Sec. terminate the case and, upon such cause to be served upon the alien a 239.1 Notice to appear. termination, the Service may commence Final Administrative Removal Order 239.2 Cancellation of notice to appear. 239.3 Effect of filing notice to appear. that states the reasons for the decision administrative proceedings under of deportability. section 238 of the Act. However, in the Authority: 8 U.S.C. 1103, 1221, 1229; 8 (ii) Additional evidence required. (A) absence of any such request, the CFR part 2. immigration judge shall complete the If the deciding Service officer finds that § 239.1 Notice to appear. the record of proceeding, including the proceeding commenced under section 240 of the Act. (a) Commencement. Every removal alien’s timely rebuttal, raises a genuine proceeding conducted under section issue of material fact regarding the (f) Executing final removal order of deciding Service officer. (1) Time of 240 of the Act to determine the preliminary findings, the deciding deportability or inadmissibility of an Service officer may either obtain execution. Upon the issuance of a Final Administrative Removal Order, the alien is commenced by the filing of a additional evidence from any source, notice to appear with the Immigration including the alien, or cause to be Service shall issue a Warrant of Removal in accordance with § 241.2 of Court. Any immigration officer issued a notice to appear to initiate performing an inspection of an arriving removal proceedings under section 240 this chapter; such warrant shall be executed no sooner than 14 calendar alien at a port-of-entry may issue a of the Act. The deciding Service officer notice to appear to such an alien. In may also obtain additional evidence days after the date the Final addition, the following officers, or from any source, including the alien, if Administrative Removal Order is officers acting in such capacity, may the deciding Service officer deems that issued, unless the alien knowingly, issue a notice to appear: such additional evidence may aid the voluntarily, and in writing waives the 14-day period. (1) District directors (except foreign); officer in the rendering of a decision. (2) Deputy district directors (except (B) If the deciding Service officer (2) Country to which alien is to be foreign); removed. The deciding Service officer considers additional evidence from a (3) Assistant district directors for source other than the alien, that shall designate the country of removal investigations; evidence shall be made a part of the in the manner prescribed by section 241 (4) Deputy assistant district directors record of proceeding, and shall be of the Act. for investigations; provided to the alien. If the alien elects (g) Arrest and detention. At the time (5) Assistant district directors for to submit a response to such additional of issuance of a Notice of Intent or at deportation; evidence, such response must be filed any time thereafter and up to the time (6) Deputy assistant district directors with the Service within 10 calendar the alien becomes the subject of a for deportation; days of service of the additional Warrant of Removal, the alien may be (7) Assistant district directors for evidence (or 13 calendar days if service arrested and taken into custody under examinations; is by mail). If the deciding Service the authority of a Warrant of Arrest (8) Deputy assistant district directors officer finds, after considering all issued by an officer listed in for examinations; additional evidence, that deportability § 287.5(e)(2) of this chapter. The (9) Officers in charge (except foreign); is established by clear, convincing, and decision of the Service concerning (10) Assistant officers in charge unequivocal evidence in the record of custody or bond shall not be (except foreign); proceeding, the deciding Service officer administratively appealable during (11) Chief patrol agents; shall issue and cause to be served upon proceedings initiated under section 238 (12) Deputy chief patrol agents; the alien a Final Administrative of the Act and this part. (13) Associate chief patrol agents; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10367

(14) Assistant chief patrol agents; for remand of the matter to district Subpart BÐCancellation of Removal (15) Patrol agents in charge; jurisdiction on the ground that the 240.20 Cancellation of removal and (16) The Assistant Commissioner, foreign relations of the United States are adjustment of status under section 240A Investigations; involved and require further of the Act. (17) Service center directors; consideration. Remand of the matter 240.21–240.24 [Reserved] (18) Deputy center directors; shall be without prejudice to the alien Subpart CÐVoluntary Departure (19) Assistant center directors for or the Service. 240.25 Voluntary departure—authority of examinations; (e) Warrant of arrest. When a notice the Service. (20) Supervisory asylum officers; to appear is canceled or proceedings are 240.26 Voluntary departure—authority of (21) Institutional Hearing Program terminated under this section any the Executive Office for Immigration directors; or outstanding warrant of arrest is Review. (22) Deputy Institutional Hearing canceled. 240.27–240.29 [Reserved] Program directors. (f) Termination of removal Subpart DÐExclusion of Aliens (for (b) Service of notice to appear. proceedings by immigration judge. An proceedings commenced prior to April 1, Service of the notice to appear shall be immigration judge may terminate 1997) in accordance with section 239 of the removal proceedings to permit the alien 240.30 Proceedings prior to April 1, 1997. Act. to proceed to a final hearing on a 240.31 Authority of immigration judges. pending application or petition for § 239.2 Cancellation of notice to appear. 240.32 Hearing. naturalization when the alien has 240.33 Applications for asylum or (a) Any officer authorized by established prima facie eligibility for withholding of deportation. § 239.1(a) to issue a notice to appear naturalization and the matter involves 240.34 Renewal of application for may cancel such notice prior to exceptionally appealing or adjustment of status under section 245 of jurisdiction vesting with the humanitarian factors; in every other the Act. immigration judge pursuant to § 3.14 of case, the removal hearing shall be 240.35 Decision of the immigration judge; this chapter provided the officer is notice to the applicant. completed as promptly as possible 240.36 Finality of order. satisfied that: notwithstanding the pendency of an (1) The respondent is a national of the 240.37 Appeals. application for naturalization during 240.38 Fingerprinting of excluded aliens. United States; any state of the proceedings. 240.39 [Reserved] (2) The respondent is not deportable or inadmissible under immigration § 239.3 Effect of filing notice to appear. Subpart EÐProceedings to determine laws; The filing of a notice to appear shall deportability of aliens in the United States: (3) The respondent is deceased; Hearing and Appeal (for proceedings have no effect in determining periods of commenced prior to April 1, 1997) (4) The respondent is not in the unlawful presence as defined in section United States; 212(a)(9)(B) of the Act. 240.40 Proceedings commenced prior to (5) The notice was issued for the April 1, 1997. respondent’s failure to file a timely §§ 240.1±240.20 [Redesignated as 240.41 Immigration judges. §§ 244.3±244.22] 240.42 Representation by counsel. petition as required by section 216(c) of 240.43 Incompetent respondents. the Act, but his or her failure to file a 103. Sections 240.1 through 240.20 240.44 Interpreter. timely petition was excused in are redesignated as §§ 244.3 through 240.45 Postponement and adjournment of accordance with section 216(d)(2)(B) of 244.22. hearing. the Act; 104. Part 240 is revised to read as 240.46 Evidence. (6) The notice to appear was follows: 240.47 Contents of record. improvidently issued, or 240.48 Hearing. PART 240ÐPROCEEDINGS TO (7) Circumstances of the case have 240.49 Ancillary matters, applications. DETERMINE REMOVABILITY OF 240.50 Decision of the immigration judge. changed after the notice to appear was ALIENS IN THE UNITED STATES 240.51 Notice of decision. issued to such an extent that 240.52 Finality of order. continuation is no longer in the best Subpart AÐRemoval Proceedings 240.53 Appeals. interest of the government. Sec. 240.54 [Reserved] (b) A notice to appear issued pursuant 240.1 Immigration judges. Subpart FÐSuspension of Deportation and to section 235(b)(3) of the Act may be 240.2 Service counsel. Voluntary Departure (for proceedings canceled under provisions in 240.3 Representation by counsel. commenced prior to April 1, 1997) paragraphs (a)(2) and (a)(6) of this 240.4 Incompetent respondents. 240.5 Interpreter. 240.55 Proceedings commenced prior to section only by the issuing officer, April 1, 1997. unless it is impracticable for the issuing 240.6 Postponement and adjournment of hearing. 240.56 Application. officer to cancel the notice. 240.57 Extension of time to depart. (c) Motion to dismiss. After 240.7 Evidence in removal proceedings under section 240 of the Act. commencement of proceedings pursuant Subpart GÐCivil Penalties for Failure to 240.8 Burdens of proof in removal Depart [Reserved] to § 3.14 of this chapter, Service proceedings. Authority: 8 U.S.C. 1103; 1182, 1186a, counsel, or any officer enumerated in 240.9 Contents of record. 1224, 1225, 1226, 1227, 1251, 1252 note, paragraph (a) of this section may move 240.10 Hearing. 1252a, 1252b, 1362; 8 CFR part 2. for dismissal of the matter on the 240.11 Ancillary matters, applications. grounds set out under paragraph (a) of 240.12 Decision of the immigration judge. Subpart AÐRemoval Proceedings this section. Dismissal of the matter 240.13 Notice of decision. shall be without prejudice to the alien 240.14 Finality of order. § 240.1 Immigration judges. 240.15 Appeals. or the Service. 240.16 Application of new procedures or (a) Authority. In any removal (d) Motion for remand. After termination of proceedings in old proceeding pursuant to section 240 of commencement of the hearing, Service proceedings pursuant to section 309(c) of the Act, the immigration judge shall counsel, or any officer enumerated in Public Law 104–208. have the authority to: determine paragraph (a) of this section may move 240.17–240.19 [Reserved] removability pursuant to section 10368 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

240(a)(1) of the Act; to make decisions, proceedings under this part. The Service § 240.7 Evidence in removal proceedings including orders of removal as provided counsel is authorized to appeal from a under section 240 of the Act. by section 240(c)(1)(A) of the Act; to decision of the immigration judge (a) Use of prior statements. The determine applications under sections pursuant to § 3.38 of this chapter and to immigration judge may receive in 208, 212(a)(2)(F), 212(a)(6)(F)(ii), move for reopening or reconsideration evidence any oral or written statement 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), pursuant to § 3.23 of this chapter. that is material and relevant to any issue 212(g), 212(h), 212(i), 212(k), in the case previously made by the (b) Assignment. In a removal 237(a)(1)(E)(iii), 237(a)(1)(H), respondent or any other person during proceeding, the Service shall assign an 237(a)(3)(C)(ii), 240A(a) and (b), 240B, any investigation, examination, hearing, 245, and 249 of the Act; to order attorney to each case within the or trial. withholding of removal pursuant to provisions of § 240.10(d), and to each (b) Testimony. Testimony of witnesses section 241(b)(3) of the Act; and to take case in which an unrepresented appearing at the hearing shall be under any other action consistent with respondent is incompetent or is under oath or affirmation administered by the applicable law and regulations as may 18 years of age, and is not accompanied immigration judge. be appropriate. In determining cases by a guardian, relative, or friend. In a (c) Depositions. The immigration referred for further inquiry, immigration case in which the removal proceeding judge may order the taking of judges shall have the powers and would result in an order of removal, the depositions pursuant to § 3.35 of this authority conferred upon them by the Service shall assign an attorney to each chapter. Act and this chapter. Subject to any case in which a respondent’s nationality specific limitation prescribed by the Act is in issue. A Service attorney shall be § 240.8 Burdens of proof in removal and this chapter, immigration judges assigned in every case in which the proceedings. shall also exercise the discretion and Commissioner approves the submission (a) Deportable aliens. A respondent authority conferred upon the Attorney of non-record information under charged with deportability shall be General by the Act as is appropriate and § 240.11(a)(3). In his or her discretion, found to be removable if the Service necessary for the disposition of such whenever he or she deems such proves by clear and convincing cases. An immigration judge may certify assignment necessary or advantageous, evidence that the respondent is his or her decision in any case under the General Counsel may assign a deportable as charged. (b) Arriving aliens. In proceedings section 240 of the Act to the Board of Service attorney to any other case at any commenced upon a respondent’s arrival Immigration Appeals when it involves stage of the proceeding. an unusually complex or novel question in the Untied States or after the of law or fact. Nothing contained in this § 240.3 Representation by counsel. revocation or expiration of parole, the part shall be construed to diminish the respondent must prove that he or she is The respondent may be represented at authority conferred on immigration clearly and beyond a doubt entitled to the hearing by an attorney or other judges under sections 101(b)(4) and 103 be admitted to the United States and is of the Act. representative qualified under 8 CFR not inadmissible as charged. (b) Withdrawal and substitution of part 292. (c) Aliens present in the United States without being admitted or paroled. In immigration judges. The immigration § 240.4 Incompetent respondents. judge assigned to conduct the hearing the case of a respondent charged as shall at any time withdraw if he or she When it is impracticable for the being in the United States without being deems himself or herself disqualified. If respondent to be present at the hearing admitted or paroled, the Service must an immigration judge becomes because of mental incompetency, the first establish the alienage of the unavailable to complete his or her attorney, legal representative, legal respondent. Once alienage has been duties, another immigration judge may guardian, near relative, or friend who established, unless the respondent be assigned to complete the case. The was served with a copy of the notice to demonstrates by clear and convincing new immigration judge shall familiarize appear shall be permitted to appear on evidence that he or she is lawfully in himself or herself with the record in the behalf of the respondent. If such a the United States pursuant to a prior case and shall state for the record that person cannot reasonably be found or admission, the respondent must prove he or she has done so. fails or refuses to appear, the custodian that he or she is clearly and beyond a (c) Conduct of hearing. The of the respondent shall be requested to doubt entitled to be admitted to the immigration judge shall receive and appear on behalf of the respondent. United States and is not inadmissible as consider material and relevant evidence, charged. rule upon objections, and otherwise § 240.5 Interpreter. (d) Relief from removal. The regulate the course of the hearing. Any person acting as an interpreter in respondent shall have the burden of establishing that he or she is eligible for a hearing before an immigration judge § 240.2 Service counsel. any requested benefit or privilege and under this part shall be sworn to (a) Authority. Service counsel shall that it should be granted in the exercise interpret and translate accurately, present on behalf of the government of discretion. If the evidence indicates unless the interpreter is an employee of evidence material to the issues of that one or more of the grounds for the United States Government, in which deportability or inadmissibility and any mandatory denial of the application for other issues that may require event no such oath shall be required. relief may apply, the alien shall have disposition by the immigration judge. § 240.6 Postponement and adjournment of the burden of proving by a The duties of the Service counsel hearing. preponderance of the evidence that such include, but are not limited to, the grounds do not apply. presentation of evidence and the After the commencement of the interrogation, examination, and cross- hearing, the immigration judge may § 240.9 Contents of record. examination of the respondent or other grant a reasonable adjournment either at The hearing before the immigration witnesses. Nothing contained in this his or her own instance or, for good judge, including the testimony, exhibits, subpart diminishes the authority of an cause shown, upon application by the applications, proffers, and requests, the immigration judge to conduct respondent or the Service. immigration judge’s decision, and all Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10369 written orders, motions, appeals, briefs, respondent admits the factual removed, the country of removal will in and other papers filed in the allegations and admits his or her the first instance be directed pursuant to proceedings shall constitute the record removability under the charges and the section 241(b) of the Act to the country in the case. The hearing shall be immigration judge is satisfied that no designated by the alien, unless section recorded verbatim except for statements issues of law or fact remain, the 241(b)(2)(C) of the Act applies, and shall made off the record with the permission immigration judge may determine that afford him or her an opportunity then of the immigration judge. In his or her removability as charged has been and there to make such designation. The discretion, the immigration judge may established by the admissions of the immigration judge shall then specify exclude from the record any arguments respondent. The immigration judge and state for the record the country, or made in connection with motions, shall not accept an admission of countries in the alternative, to which applications, requests, or objections, but removability from an unrepresented the alien’s removal will be directed in such event the person affected may respondent who is incompetent or pursuant to section 241(b) of the Act if submit a brief. under the age of 18 and is not the country of his or her designation accompanied by an attorney or legal will not accept him or her into its § 240.10 Hearing. representative, a near relative, legal territory, or fails to furnish timely notice (a) Opening. In a removal proceeding, guardian, or friend; nor from an officer of acceptance, or if the alien declines to the immigration judge shall: of an institution in which a respondent designate a country. (1) Advise the respondent of his or is an inmate or patient. When, pursuant (g) In the event that the Service is her right to representation, at no to this paragraph, the immigration judge unable to remove the alien to the expense to the government, by counsel does not accept an admission of specified or alternative country or of his or her own choice authorized to removability, he or she shall direct a countries, the Service may remove the practice in the proceedings and require hearing on the issues. alien to any other country as permitted the respondent to state then and there (d) Issues of removability. When by section 241(b) of the Act. whether he or she desires removability is not determined under representation; the provisions of paragraph (c) of this § 240.11 Ancillary matters, applications. (2) Advise the respondent of the section, the immigration judge shall (a) Creation of the status of an alien availability of free legal services request the assignment of an Service lawfully admitted for permanent provided by organizations and attorneys counsel, and shall receive evidence as to residence. (1) In a removal proceeding, qualified under 8 CFR part 3 and any unresolved issues, except that no an alien may apply to the immigration organizations recognized pursuant to further evidence need be received as to judge for cancellation of removal under § 292.2 of this chapter, located in the any facts admitted during the pleading. section 240A of the Act, adjustment of district where the removal hearing is The alien shall provide a court certified status under section 245 of the Act, being held; copy of a Judicial Recommendation adjustment of status under section 1 of (3) Ascertain that the respondent has Against Deportation (JRAD) to the the Act of November 2, 1966 (as received a list of such programs, and a immigration judge when such modified by section 606 of Public Law copy of appeal rights; recommendation will be the basis of 104–132) or under section 101 or 104 of (4) Advise the respondent that he or denying any charge(s) brought by the the Act of October 28, 1977, or for the she will have a reasonable opportunity Service in the proceedings against the creation of a record of lawful admission to examine and object to the evidence alien. No JRAD is effective against a for permanent residence under section against him or her, to present evidence charge of deportability under former 249 of the Act. The application shall be in his or her own behalf and to cross- section 241(a)(11) of the Act or if the subject to the requirements of § 240.20, examine witnesses presented by the JRAD was granted on or after November and 8 CFR parts 245 and 249. The government (but the respondent shall 29, 1990. approval of any application made to the not be entitled to examine such national (e) Additional charges in removal immigration judge under section 245 of security information as the government hearings. At any time during the the Act by an alien spouse (as defined may proffer in opposition to the proceeding, additional or substituted in section 216(g)(1) of the Act) or by an respondent’s admission to the United charges of inadmissibility and/or alien entrepreneur (as defined in section States or to an application by the deportability and/or factual allegations 216A(f)(1) of the Act) shall result in the respondent for discretionary relief); may be lodged by the Service in writing. alien’s obtaining the status of lawful (5) Place the respondent under oath; The alien in removal proceedings shall permanent resident on a conditional (6) Read the factual allegations and be served with a copy of these basis in accordance with the provisions the charges in the notice to appear to the additional charges and allegations. The of section 216 or 216A of the Act, respondent and explain them in non- immigration judge shall read the whichever is applicable. However, the technical language; and additional factual allegations and Petition to Remove the Conditions on (7) Enter the notice to appear as an charges to the alien and explain them to Residence required by section 216(c) of exhibit in the Record of Proceeding. him or her. The immigration judge shall the Act, or the Petition by Entrepreneur (b) Public access to hearings. Removal advise the alien, if he or she is not to Remove Conditions required by hearings shall be open to the public, represented by counsel, that the alien section 216A(c) of the Act shall be made except that the immigration judge may, may be so represented, and that he or to the director in accordance with 8 CFR in his or her discretion, close she may be given a reasonable part 216. proceedings as provided in § 3.27 of this continuance to respond to the (2) In conjunction with any chapter. additional factual allegations and application for creation of status of an (c) Pleading by respondent. The charges. Thereafter, the provision of alien lawfully admitted for permanent immigration judge shall require the § 240.6(b) relating to pleading shall residence made to an immigration respondent to plead to the notice to apply to the additional factual judge, if the alien is inadmissible under appear by stating whether he or she allegations and charges. any provision of section 212(a) of the admits or denies the factual allegations (f) Country of removal. The Act, and believes that he or she meets and his or her removability under the immigration judge shall notify the alien the eligibility requirements for a waiver charges contained therein. If the that if he or she is finally ordered of the ground of inadmissibility, he or 10370 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations she may apply to the immigration judge § 208.4(c) of this chapter. Upon receipt opposing evidence. A decision based in for such waiver. The immigration judge of an application that has not been whole or in part on such classified shall inform the alien of his or her referred by an asylum officer, the information shall state whether such apparent eligibility to apply for any of Immigration Court shall forward a copy information is material to the decision. the benefits enumerated in this chapter to the Department of State pursuant to (4) The decision of an immigration and shall afford the alien an opportunity § 208.11 of this chapter and shall judge to grant or deny asylum or to make application during the hearing. calendar the case for a hearing. The withholding of removal shall be (3) In exercising discretionary power reply, if any, from the Department of communicated to the alien and to the when considering an application for State, unless classified under the Service counsel. An adverse decision status as a permanent resident under applicable Executive Order, shall be shall state why asylum or withholding this chapter, the immigration judge may given to both the alien and to the of removal was denied. consider and base the decision on Service counsel representing the (d) Application for relief under information not contained in the record government. sections 237(a)(1)(H) and and not made available for inspection (3) Applications for asylum and 237(a)(1)(E)(iii) of the Act. The by the alien, provided the withholding of removal so filed will be respondent may apply to the Commissioner has determined that such decided by the immigration judge immigration judge for relief from information is relevant and is classified pursuant to the requirements and removal under sections 237(a)(1)(H) and under the applicable Executive Order as standards established in 8 CFR part 208 237(a)(1)(E)(iii) of the Act. requiring protection from unauthorized of this chapter after an evidentiary (e) General. An application under this disclosure in the interest of national hearing to resolve factual issues in section shall be made only during the security. Whenever the immigration dispute. An evidentiary hearing hearing and shall not be held to judge believes that he or she can do so extending beyond issues related to the constitute a concession of alienage or while safeguarding both the information basis for a mandatory denial of the deportability in any case in which the and its source, the immigration judge application pursuant to § 208.14 or respondent does not admit his or her should inform the alien of the general § 208.16 of this chapter is not necessary alienage or deportability. However, nature of the information in order that once the immigration judge has nothing in this section shall prohibit the the alien may have an opportunity to determined that such a denial is Service from using information supplied offer opposing evidence. A decision required. in an application for asylum or based in whole or in part on such (i) Evidentiary hearings on withholding of deportation or removal classified information shall state that applications for asylum or withholding submitted to the Service on or after the information is material to the of removal will be open to the public January 4, 1995, as the basis for issuance decision. unless the alien expressly requests that of a charging document or to establish (b) Voluntary departure. The alien the hearing be closed pursuant to § 3.27 alienage or deportability in a case may apply to the immigration judge for of this chapter. The immigration judge referred to an immigration judge under voluntary departure in lieu of removal shall inquire whether the alien requests § 208.14(b) of this chapter. The alien pursuant to section 240B of the Act and such closure. shall have the burden of establishing subpart C of this part. (ii) Nothing in this section is intended that he or she is eligible for any (c) Applications for asylum and to limit the authority of the immigration requested benefit or privilege and that it withholding of removal. (1) If the alien judge to properly control the scope of should be granted in the exercise of expresses fear of persecution or harm any evidentiary hearing. discretion. Nothing contained in this upon return to any of the countries to (iii) During the removal hearing, the section is intended to foreclose the which the alien might be removed alien shall be examined under oath on respondent from applying for any pursuant to § 240.10(f), and the alien his or her application and may present benefit or privilege that he or she has not previously filed an application evidence and witnesses in his or her believes himself or herself eligible to for asylum or withholding of removal own behalf. The alien has the burden of receive in proceedings under this part. that has been referred to the establishing that he or she is a refugee Nothing in this section is intended to immigration judge by an asylum officer as defined in section 101(a)(42) of the limit the Attorney General’s authority to in accordance with § 208.14 of this Act pursuant to the standards set forth remove an alien to any country chapter, the immigration judge shall: in § 208.13 of this chapter. permitted by section 241(b) of the Act. (i) Advise the alien that he or she may (iv) Service counsel may call (f) Fees. The alien shall not be apply for asylum in the United States or witnesses and present evidence for the required to pay a fee on more than one withholding of removal to those record, including information classified application within paragraphs (a) and countries; under the applicable Executive Order, (c) of this section, provided that the (ii) Make available the appropriate provided the immigration judge or the minimum fee imposed when more than application forms; and Board has determined that such one application is made shall be (iii) Advise the alien of the privilege information is relevant to the hearing. determined by the cost of the of being represented by counsel at no When the immigration judge receives application with the highest fee. expense to the government and of the such classified information, he or she consequences, pursuant to section shall inform the alien. The agency that § 240.12 Decision of the immigration 208(d)(6) of the Act, of knowingly filing provides the classified information to judge. a frivolous application for asylum. The the immigration judge may provide an (a) Contents. The decision of the immigration judge shall provide to the unclassified summary of the immigration judge may be oral or alien a list of persons who have information for release to the alien, written. The decision of the immigration indicated their availability to represent whenever it determines it can do so judge shall include a finding as to aliens in asylum proceedings on a pro consistently with safeguarding both the inadmissibility or deportability. The bono basis. classified nature of the information and formal enumeration of findings is not (2) An application for asylum or its sources. The summary should be as required. The decision shall also withholding of removal must be filed detailed as possible, in order that the contain reasons for granting or denying with the Immigration Court, pursuant to alien may have an opportunity to offer the request. The decision shall be Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10371 concluded with the order of the § 240.14 Finality of order. Form EOIR–42, Application for immigration judge. The order of the immigration judge Cancellation of Removal, to the (b) Summary decision. shall become final in accordance with Immigration Court having Notwithstanding the provisions of § 3.39 of this chapter. administrative control over the Record of Proceeding of the underlying removal paragraph (a) of this section, in any case § 240.15 Appeals. where inadmissibility or deportability is proceeding under section 240 of the Act. determined on the pleadings pursuant Pursuant to 8 CFR part 3, an appeal The application must be accompanied to § 240.10(b) and the respondent does shall lie from a decision of an by payment of the filing fee as set forth not make an application under § 240.11, immigration judge to the Board of in § 103.7(b) of this chapter or a request the alien is statutorily ineligible for Immigration Appeals, except that no for a fee waiver. relief, or the respondent applies for appeal shall lie from an order of (b) Filing the application. The voluntary departure only and the removal entered in absentia. The application may be filed only with the immigration judge grants the procedures regarding the filing of a Immigration Court after jurisdiction has application, the immigration judge may Form EOIR 26, Notice of Appeal, fees, vested pursuant to § 3.14 of this chapter. and briefs are set forth in §§ 3.3, 3.31, enter a summary decision or, if §§ 240.21Ð240.24 [Reserved] voluntary departure is granted, a and 3.38 of this chapter. An appeal shall summary decision with an alternate be filed within 30 calendar days after Subpart CÐVoluntary Departure order of removal. the mailing of a written decision, the stating of an oral decision, or the service § 240.25 Voluntary departureÐauthority of (c) Order of the immigration judge. of a summary decision. The filing date the Service. The order of the immigration judge shall is defined as the date of receipt of the (a) Authorized officers. The authority direct the respondent’s removal, or the Notice of Appeal by the Board of contained in section 240B(a) of the Act termination of the proceedings, or such Immigration Appeals. The reasons for to permit aliens to depart voluntarily other disposition of the case as may be the appeal shall be stated in the Notice from the United States may be exercised appropriate. When removal is ordered, of Appeal in accordance with the in lieu of being subject to proceedings the immigration judge shall specify the provisions of § 3.3(b) of this chapter. under section 240 of the Act by district country, or countries in the alternate, to Failure to do so may constitute a ground directors, assistant district directors for which respondent’s removal shall be for dismissal of the appeal by the Board investigations, assistant district directed. The immigration judge is pursuant to § 3.1(d)(1–a) of this chapter. directors for examinations, officers in authorized to issue orders in the charge, chief patrol agents, service alternative or in combination as he or § 240.16 Application of new procedures or center directors, and assistant center she may deem necessary. termination of proceedings in old directors for examinations. proceedings pursuant to section 309(c) of (b) Conditions. The Service may § 240.13 Notice of decision. Public Law 104±208. attach to the granting of voluntary (a) Written decision. A written The Attorney General shall have the departure any conditions it deems decision shall be served upon the sole discretion to apply the provisions necessary to ensure the alien’s timely respondent and the Service counsel, of section 309(c) of Public Law 104–208, departure from the United States, together with the notice referred to in which provides for the application of including the posting of a bond, § 3.3 of this chapter. Service by mail is new removal procedures to certain cases continued detention pending departure, complete upon mailing. in exclusion or deportation proceedings and removal under safeguards. The and for the termination of certain cases (b) Oral decision. An oral decision alien shall be required to present to the in exclusion or deportation proceedings shall be stated by the immigration judge Service, for inspection and and initiation of new removal in the presence of the respondent and photocopying, his or her passport or proceedings. The Attorney General’s the Service counsel, if any, at the other travel documentation sufficient to application of the provisions of section conclusion of the hearing. A copy of the assure lawful entry into the country to 309(c) shall become effective upon summary written order shall be which the alien is departing. The publication of a notice in the Federal furnished at the request of the Service may hold the passport or Register. However, if the Attorney respondent or the Service counsel. documentation for sufficient time to General determines, in the exercise of investigate its authenticity. A voluntary (c) Summary decision. When the his or her discretion, that the delay departure order permitting an alien to immigration judge renders a summary caused by publication would adversely depart voluntarily shall inform the alien decision as provided in § 240.12(b), he affect the interests of the United States of the penalties under section 240B(d) of or she shall serve a copy thereof upon or the effective enforcement of the the Act. the respondent and the Service counsel immigration laws, the Attorney (c) Decision. The authorized officer, in at the conclusion of the hearing. General’s application shall become his or her discretion, shall specify the (d) Decision to remove. If the effective immediately upon issuance, period of time permitted for voluntary immigration judge decides that the and shall be published in the Federal departure, and may grant extensions respondent is removable and orders the Register as soon as practicable thereof, except that the total period respondent to be removed, the thereafter. allowed, including any extensions, shall immigration judge shall advise the not exceed 120 days. Every decision respondent of such decision, and of the §§ 240.17Ð240.19 [Reserved] regarding voluntary departure shall be consequences for failure to depart under Subpart BÐCancellation of removal communicated in writing on Form I– the order of removal, including civil and 210, Notice of Action—Voluntary criminal penalties described at sections § 240.20 Cancellation of removal and Departure. Voluntary departure may not 274D and 243 of the Act. Unless appeal adjustment of status under section 240A of be granted unless the alien requests from the decision is waived, the the Act. such voluntary departure and agrees to respondent shall be furnished with (a) Jurisdiction. An application for the its terms and conditions. Form EOIR–26, Notice of Appeal, and exercise of discretion under section (d) Application. Any alien who advised of the provisions of § 240.15. 240A of the Act shall be submitted on believes himself or herself to be eligible 10372 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations for voluntary departure under this Act and is not deportable under section (ii) The alien is, and has been, a section may apply therefor at any office 237(a)(4). person of good moral character for at of the Service. After the commencement (ii) The judge may not grant voluntary least five years immediately preceding of removal proceedings, the application departure under section 240B(a) of the the application; may be communicated through the Act beyond 30 days after the master (iii) The alien has not been convicted Service counsel. If the Service agrees to calendar hearing at which the case is of a crime described in section voluntary departure after proceedings initially calendared for a merits hearing, 101(a)(43) of the Act and is not have commenced, it may either: except pursuant to a stipulation under deportable under section 237(a)(4); and (1) Join in a motion to terminate the paragraph (b)(2) of this section. (iv) The alien has established by clear proceedings, and if the proceedings are (2) Stipulation. At any time prior to and convincing evidence that the alien terminated, grant voluntary departure; the completion of removal proceedings, has the means to depart the United or the Service counsel may stipulate to a States and has the intention to do so. (2) Join in a motion asking the grant of voluntary departure under (2) Travel documentation. Except as immigration judge to permit voluntary section 240B(a) of the Act. otherwise provided in paragraph (b)(3) departure in accordance with § 240.26. (3) Conditions. (i) The judge may of this section, the clear and convincing (e) Appeals. An appeal shall not lie impose such conditions as he or she evidence of the means to depart shall from a denial of an application for deems necessary to ensure the alien’s include in all cases presentation by the voluntary departure under this section, timely departure from the United States, alien of a passport or other travel but the denial shall be without including the posting of a voluntary documentation sufficient to assure prejudice to the alien’s right to apply to departure bond to be canceled upon lawful entry into the country to which the immigration judge for voluntary proof that the alien has departed the the alien is departing. The Service shall departure in accordance with § 240.26 United States within the time specified. have full opportunity to inspect and or for relief from removal under any The alien shall be required to present to photocopy the documentation, and to provision of law. the Service, for inspection and challenge its authenticity or sufficiency (f) Revocation. If, subsequent to the photocopying, his or her passport or before voluntary departure is granted. granting of an application for voluntary other travel documentation sufficient to (3) Conditions. The judge may impose departure under this section, it is assure lawful entry into the country to such conditions as he or she deems ascertained that the application should which the alien is departing, unless: necessary to ensure the alien’s timely not have been granted, that grant may be (A) A travel document is not departure from the United States. In all revoked without advance notice by any necessary to return to his or her native cases under section 240B(b) of the Act, officer authorized to grant voluntary country or to which country the alien is the alien shall be required to post a departure under § 240.25(a). Such departing; or voluntary departure bond, in an amount revocation shall be communicated in (B) The document is already in the necessary to ensure that the alien writing, citing the statutory basis for possession of the Service. departs within the time specified, but in (ii) The Service may hold the passport revocation. No appeal shall lie from no case less than $500. The voluntary or documentation for sufficient time to revocation. departure bond shall be posted with the investigate its authenticity. If such district director within 5 business days § 240.26 Voluntary departureÐauthority of documentation is not immediately of the immigration judge’s order the Executive Office for Immigration available to the alien, but the granting voluntary departure, and the Review. immigration judge is satisfied that the district director may, at his or her (a) Eligibility: general. An alien alien is making diligent efforts to secure discretion, hold the alien in custody previously granted voluntary departure it, voluntary departure may be granted until the bond is posted. If the bond is under section 240B of the Act, including for a period not to exceed 120 days, not posted within 5 business days, the by the Service under § 240.25, and who subject to the condition that the alien voluntary departure order shall vacate fails to depart voluntarily within the within 60 days must secure such automatically and the alternate order of time specified, shall thereafter be documentation and present it to the removal will take effect on the following ineligible, for a period of ten years, for Service. The Service in its discretion day. In order for the bond to be voluntary departure or for relief under may extend the period within which the canceled, the alien must provide proof sections 240A, 245, 248, and 249 of the alien must provide such documentation. of departure to the district director. Act. If the documentation is not presented (d) Alternate order of removal. Upon (b) Prior to completion of removal within the 60-day period or any granting a request made for voluntary proceedings.—(1) Grant by the extension thereof, the voluntary departure either prior to the completion immigration judge. (i) An alien may be departure order shall vacate of proceedings or at the conclusion of granted voluntary departure by an automatically and the alternate order of proceedings, the immigration judge immigration judge pursuant to section removal will take effect, as if in effect shall also enter an alternate order or 240B(a) of the Act only if the alien: on the date of issuance of the removal. (A) Makes such request prior to or at immigration judge order. (e) Periods of time. If voluntary the master calendar hearing at which (c) At the conclusion of the removal departure is granted prior to the the case is initially calendared for a proceedings.—(1) Required findings. An completion of removal proceedings, the merits hearing; immigration judge may grant voluntary immigration judge may grant a period (B) Makes no additional requests for departure at the conclusion of the not to exceed 120 days. If voluntary relief (or if such requests have been removal proceedings under section departure is granted at the conclusion of made, such requests are withdrawn 240B(b) of the Act, if he or she finds proceedings, the immigration judge may prior to any grant of voluntary departure that: grant a period not to exceed 60 days. pursuant to this section); (i) The alien has been physically (f) Extension of time to depart. (C) Concedes removability; present in the United States for period Authority to extend the time within (D) Waives appeal of all issues; and of at least one year preceding the date which to depart voluntarily specified (E) Has not been convicted of a crime the Notice to Appear was served under initially by an immigration judge or the described in section 101(a)(43) of the section 239(a) of the Act; Board is within the sole jurisdiction of Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10373 the district director. An immigration the public, including the press, be motions, appeals, and other papers filed judge or the Board may reinstate permitted to attend; in that event, the in the proceeding shall constitute the voluntary departure in a removal hearing shall be open, provided that the record in the case. The hearing shall be proceeding that has been reopened for a alien states for the record that he or she recorded verbatim except for statements purpose other than solely making an is waiving the requirement in section made off the record with the permission application for voluntary departure if 236 of the Act that the inquiry shall be of the immigration judge. reopening was granted prior to the kept separate and apart from the public. expiration of the original period of When the hearing is to be open, § 240.33 Applications for asylum or voluntary departure. In no event can the depending upon physical facilities, withholding of deportation. total period of time, including any reasonable limitation may be placed (a) If the alien expresses fear of extension, exceed 120 days or 60 days upon the number in attendance at any persecution or harm upon return to his as set forth in section 240B of the Act. one time, with priority being given to or her country of origin or to a country (g) Administrative Appeals. No appeal the press over the general public. The to which the alien may be deported after shall lie regarding the length of a period immigration judge shall ascertain a determination of excludability from of voluntary departure (as distinguished whether the applicant for admission is the United States pursuant to this from issues of whether to grant the person to whom Form I–122 was subpart, and the alien has not been voluntary departure). previously delivered by the examining referred to the immigration judge by an (h) Reinstatement of voluntary immigration officer as provided in 8 asylum officer in accordance with departure. An immigration judge or the CFR part 235; enter a copy of such form § 208.14(b) of this chapter, the Board may reinstate voluntary departure in evidence as an exhibit in the case; immigration judge shall: in a removal proceeding that has been inform the applicant of the nature and (1) Advise the alien that he or she reopened for a purpose other than solely purpose of the hearing; advise him or may apply for asylum in the United making application for voluntary her of the privilege of being represented States or withholding of deportation to departure, if reopening was granted by an attorney of his or her own choice that other country; and prior to the expiration of the original at no expense to the Government, and (2) Make available the appropriate period of voluntary departure. In no of the availability of free legal services application forms. event can the total period of time, programs qualified under 8 CFR part 3 (b) An application for asylum or including any extension, exceed 120 and organizations recognized pursuant withholding of deportation must be days or 60 days as set forth in section to § 292.2 of this chapter located in the filed with the Immigration Court, 240B of the Act and paragraph (a) of this district where his or her exclusion pursuant to § 208.4(c) of this chapter. section. hearing is to be held; and shall ascertain Upon receipt of an application that has that the applicant has received a list of not been referred by an asylum officer, §§ 240.27±240.29 [Reserved] such programs; and request him or her the Immigration Court shall forward a copy to the Department of State Subpart DÐExclusion of Aliens (for to ascertain then and there whether he or she desires representation; advise pursuant to § 208.11 of this chapter and proceedings commenced prior to April shall calendar the case for a hearing. 1, 1997) him or her that he or she will have a reasonable opportunity to present The reply, if any, from the Department § 240.30 Proceedings prior to April 1, 1997. evidence in his or her own behalf, to of State, unless classified under the Subpart D of 8 CFR part 240 applies examine and object to evidence against applicable Executive Order, shall be to exclusion proceedings commenced him or her, and to cross-examine given to both the applicant and to the prior to April 1, 1997, pursuant to the witnesses presented by the Government; Service counsel representing the former section 236 of the Act. An and place the applicant under oath. government. exclusion proceeding is commenced by (b) Procedure. The immigration judge (c) Applications for asylum or the filing of Form I–122 with the shall receive and adduce material and withholding of deportation so filed will Immigration Court, and an alien is relevant evidence, rule upon objections, be decided by the immigration judge considered to be in exclusion and otherwise regulate the course of the pursuant to the requirements and proceedings only upon such filing. All hearing. standards established in 8 CFR part 208 references to the Act contained in this (c) Attorney for the Service. The after an evidentiary hearing that is subpart are references to the Act in Service shall assign an attorney to each necessary to resolve material factual effect prior to April 1, 1997. case in which an applicant’s nationality issues in dispute. An evidentiary is in issue and may assign an attorney hearing extending beyond issues related § 240.31 Authority of immigration judges. to any case in which such assignment is to the basis for a mandatory denial of In determining cases referred for deemed necessary or advantageous. The the application pursuant to § 208.13(c) further inquiry as provided in section duties of the Service counsel include, of this chapter is not necessary once the 235 of the Act, immigration judges shall but are not limited to, the presentation immigration judge has determined that have the powers and authority conferred of evidence and the interrogation, such denial is required. upon them by the Act and this chapter. examination, and cross-examination of (1) Evidentiary hearings on Subject to any specific limitation the applicant and other witnesses. applications for asylum or withholding prescribed by the Act and this chapter, Nothing contained in this section of deportation will be closed to the immigration judges shall also exercise diminishes the authority of an public unless the applicant expressly the discretion and authority conferred immigration judge to conduct requests that it be open pursuant to upon the Attorney General by the Act as proceedings under this part. § 236.3 of this chapter. is appropriate and necessary for the (d) Depositions. The procedures (2) Nothing in this section is intended disposition of such cases. specified in § 240.48(e) shall apply. to limit the authority of the immigration (e) Record. The hearing before the judge properly to control the scope of § 240.32 Hearing. immigration judge, including the any evidentiary hearing. (a) Opening. Exclusion hearings shall testimony, exhibits, applications, (3) During the exclusion hearing, the be closed to the public, unless the alien proffers, and requests, the immigration applicant shall be examined under oath at his or her own instance requests that judge’s decision, and all written orders, on his or her application and may 10374 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations present evidence and witnesses on his decision in accordance with § 3.37 of under the provisions of section 217 of or her own behalf. The applicant has the this chapter. the Act. All references to the Act burden of establishing that he or she is (b) Advice to alien ordered excluded. contained in this subpart pertain to the a refugee as defined in section An alien ordered excluded shall be Act as in effect prior to April 1, 1997. 101(a)(42) of the Act pursuant to the furnished with Form I–296, Notice to standard set forth in § 208.13 of this Alien Ordered Excluded by Immigration § 240.41 Immigration judges. chapter. Judge, at the time of an oral decision by (a) Authority. In any proceeding (4) The Service counsel for the the immigration judge or upon service conducted under this part the government may call witnesses and of a written decision. immigration judge shall have the present evidence for the record, (c) Holders of refugee travel authority to determine deportability and including information classified under documents. Aliens who are the holders to make decisions, including orders of the applicable Executive Order, of valid unexpired refugee travel deportation, as provided by section provided the immigration judge or the documents may be ordered excluded 242(b) and 242B of the Act; to reinstate Board has determined that such only if they are found to be inadmissible orders of deportation as provided by information is relevant to the hearing. under section 212(a)(2), 212(a)(3), or section 242(f) of the Act; to determine The applicant shall be informed when 212(a)(6)(E) of the Act, and it is applications under sections 208, 212(k), the immigration judge receives such determined that on the basis of the acts 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245 classified information. The agency that for which they are inadmissible there and 249 of the Act; to determine the provides the classified information to are compelling reasons of national country to which an alien’s deportation the immigration judge may provide an security or public order for their will be directed in accordance with unclassified summary of the exclusion. If the immigration judge section 243(a) of the Act; to order information for release to the applicant finds that the alien is inadmissible but temporary withholding of deportation whenever it determines it can do so determines that there are no compelling pursuant to section 243(h) of the Act; consistently with safeguarding both the reasons of national security or public and to take any other action consistent classified nature of the information and order for exclusion, the immigration with applicable law and regulations as its source. The summary should be as judge shall remand the case to the may be appropriate. An immigration detailed as possible, in order that the district director for parole. judge may certify his or her decision in applicant may have an opportunity to any case to the Board of Immigration § 240.36 Finality of order. offer opposing evidence. A decision Appeals when it involves an unusually based in whole or in part on such The decision of the immigration judge complex or novel question of law or classified information shall state that shall become final in accordance with fact. Nothing contained in this part shall such information is material to the § 3.37 of this chapter. be construed to diminish the authority decision. § 240.37 Appeals. conferred on immigration judges under (d) The decision of an immigration Except for temporary exclusions section 103 of the Act. judge to grant or deny asylum or under section 235(c) of the Act, an (b) Withdrawal and substitution of withholding of deportation shall be appeal from a decision of an immigration judges. The immigration communicated to the applicant and to Immigration Judge under this part may judge assigned to conduct the hearing the Service counsel for the government. be taken by either party pursuant to shall at any time withdraw if he or she An adverse decision will state why § 3.38 of this chapter. deems himself or herself disqualified. If asylum or withholding of deportation an immigration judge becomes was denied. § 240.38 Fingerprinting of excluded aliens. unavailable to complete his or her § 240.34 Renewal of application for Every alien 14 years of age or older duties within a reasonable time, or if at adjustment of status under section 245 of who is excluded from admission to the any time the respondent consents to a the Act. United States by an immigration judge substitution, another immigration judge An adjustment application by an alien shall be fingerprinted, unless during the may be assigned to complete the case. paroled under section 212(d)(5) of the preceding year he or she has been The new immigration judge shall Act, which has been denied by the fingerprinted at an American consular familiarize himself or herself with the district director, may be renewed in office. record in the case and shall state for the record that he or she has done so. exclusion proceedings under section § 240.39 [Reserved] 236 of the Act (as in effect prior to April § 240.42 Representation by counsel. 1, 1997) before an immigration judge Subpart EÐProceedings to Determine under the following two conditions: Deportability of Aliens in the United The respondent may be represented at first, the denied application must have States: Hearing and Appeal (for the hearing by an attorney or other been properly filed subsequent to the proceedings commenced prior to April representative qualified under 8 CFR applicant’s earlier inspection and 1, 1997) part 292. admission to the United States; and § 240.43 Incompetent respondents. second, the applicant’s later absence § 240.40 Proceedings commenced prior to April 1, 1997. from and return to the United States When it is impracticable for the must have been under the terms of an Subpart E of 8 CFR part 240 applies respondent to be present at the hearing advance parole authorization on Form only to deportation proceedings because of mental incompetency, the I–512 granted to permit the applicant’s commenced prior to April 1, 1997. A guardian, near relative, or friend who absence and return to pursue the deportation proceeding is commenced was served with a copy of the order to previously filed adjustment application. by the filing of Form I–221 (Order to show cause shall be permitted to appear Show Cause) with the Immigration on behalf of the respondent. If such a § 240.35 Decision of the immigration Court, and an alien is considered to be person cannot reasonably be found or judge; notice to the applicant. in deportation proceedings only upon fails or refuses to appear, the custodian (a) Decision. The immigration judge such filing, except in the case of an of the respondent shall be requested to shall inform the applicant of his or her alien admitted to the United States appear on behalf of the respondent. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10375

§ 240.44 Interpreter. she desires representation; advise the any unresolved issues, except that no Any person acting as interpreter in a respondent of the availability of free further evidence need be received as to hearing before an immigration judge legal services programs qualified under any facts admitted during the pleading. under this part shall be sworn to 8 CFR part 3 and organizations The respondent shall provide a court interpret and translate accurately, recognized pursuant to § 292.2 of this certified copy of a Judicial unless the interpreter is an employee of chapter, located in the district where the Recommendation Against Deportation the United States Government, in which deportation hearing is being held; (JRAD) to the immigration judge when event no such oath shall be required. ascertain that the respondent has such recommendation will be the basis received a list of such programs, and a of denying any charge(s) brought by the § 240.45 Postponement and adjournment copy of Form I–618, Written Notice of Service in the proceedings against the of hearing. Appeal Rights; advise the respondent respondent. No JRAD is effective against After the commencement of the that he or she will have a reasonable a charge of deportability under section hearing, the immigration judge may opportunity to examine and object to 241(a)(11) of the Act or if the JRAD was grant a reasonable adjournment either at the evidence against him or her, to granted on or after November 29, 1990. his or her own instance or, for good present evidence in his or her own (d) Additional charges. The Service cause shown, upon application by the behalf and to cross-examine witnesses may at any time during a hearing lodge respondent or the Service. presented by the Government; place the additional charges of deportability, respondent under oath; read the factual including factual allegations, against the § 240.46 Evidence. allegations and the charges in the order respondent. Copies of the additional (a) Sufficiency. A determination of to show cause to the respondent and factual allegations and charges shall be deportability shall not be valid unless it explain them in nontechnical language, submitted in writing for service on the is found by clear, unequivocal, and and enter the order to show cause as an respondent and entry as an exhibit in convincing evidence that the facts exhibit in the record. Deportation the record. The immigration judge shall alleged as grounds for deportation are hearings shall be open to the public, read the additional factual allegations true. except that the immigration judge may, and charges to the respondent and (b) Use of prior statements. The in his or her discretion and for the explain them to him or her. The immigration judge may receive in purpose of protecting witnesses, immigration judge shall advise the evidence any oral or written statement respondents, or the public interest, respondent if he or she is not that is material and relevant to any issue direct that the general public or represented by counsel that he or she in the case previously made by the particular individuals shall be excluded may be so represented and also that he respondent or any other person during from the hearing in any specific case. or she may have a reasonable time any investigation, examination, hearing, Depending upon physical facilities, within which to meet the additional or trial. reasonable limitation may be placed factual allegations and charges. The (c) Testimony. Testimony of witnesses upon the number in attendance at any respondent shall be required to state appearing at the hearing shall be under one time, with priority being given to then and there whether he or she desires oath or affirmation administered by the the press over the general public. a continuance for either of these immigration judge. (b) Pleading by respondent. The reasons. Thereafter, the provisions of (d) Depositions. The immigration immigration judge shall require the paragraph (b) of this section shall apply judge may order the taking of respondent to plead to the order to show to the additional factual allegations and depositions pursuant to § 3.35 of this cause by stating whether he or she lodged charges. chapter. admits or denies the factual allegations and his or her deportability under the § 240.49 Ancillary matters, applications. § 240.47 Contents of record. charges contained therein. If the (a) Creation of the status of an alien The hearing before the immigration respondent admits the factual lawfully admitted for permanent judge, including the testimony, exhibits, allegations and admits his or her residence. The respondent may apply to applications, proffers, and requests, the deportability under the charges and the the immigration judge for suspension of immigration judge’s decision, and all immigration judge is satisfied that no deportation under section 244(a) of the written orders, motions, appeals, briefs, issues of law or fact remain, the Act; for adjustment of status under and other papers filed in the immigration judge may determine that section 245 of the Act, or under section proceedings shall constitute the record deportability as charged has been 1 of the Act of November 2, 1966, or in the case. The hearing shall be established by the admissions of the under section 101 or 104 of the Act of recorded verbatim except for statements respondent. The immigration judge October 28, 1977; or for the creation of made off the record with the permission shall not accept an admission of a record of lawful admission for of the immigration judge. In his or her deportability from an unrepresented permanent residence under section 249 discretion, the immigration judge may respondent who is incompetent or of the Act. The application shall be exclude from the record any arguments under age 16 and is not accompanied by subject to the requirements of 8 CFR made in connection with motions, a guardian, relative, or friend; nor from parts 240, 245, and 249. The approval of applications, requests, or objections, but an officer of an institution in which a any application made to the in such event the person affected may respondent is an inmate or patient. immigration judge under section 245 of submit a brief. When, pursuant to this paragraph, the the Act by an alien spouse (as defined immigration judge may not accept an in section 216(g)(1) of the Act) or by an § 240.48 Hearing. admission of deportability, he or she alien entrepreneur (as defined in section (a) Opening. The immigration judge shall direct a hearing on the issues. 216A(f)(1) of the Act), shall result in the shall advise the respondent of his or her (c) Issues of deportability. When alien’s obtaining the status of lawful right to representation, at no expense to deportability is not determined under permanent resident on a conditional the Government, by counsel of his or the provisions of paragraph (b) of this basis in accordance with the provisions her own choice authorized to practice in section, the immigration judge shall of section 216 or 216A of the Act, the proceedings and require him or her request the assignment of a Service whichever is applicable. However, the to state then and there whether he or counsel, and shall receive evidence as to Petition to Remove the Conditions on 10376 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Residence required by section 216(c) of him or her into its territory, or fails to 101(a)(42) of the Act pursuant to the the Act or the Petition by Entrepreneur furnish timely notice of acceptance, or standard set forth in § 208.13 of this to Remove Conditions required by if the respondent declines to designate chapter. section 216A(c) of the Act shall be made a country. (iv) The Service counsel for the to the director in accordance with 8 CFR (2) If the alien expresses fear of government may call witnesses and part 216. In conjunction with any persecution or harm upon return to any present evidence for the record, application for creation of status of an of the countries to which the alien including information classified under alien lawfully admitted for permanent might be deported pursuant to the applicable Executive Order, residence made to an immigration paragraph (c)(1) of this section, and the provided the immigration judge or the judge, if the respondent is inadmissible alien has not previously filed an Board has determined that such under any provision of section 212(a) of application for asylum or withholding information is relevant to the hearing. the Act and believes that he or she of deportation that has been referred to When the immigration judge receives meets the eligibility requirements for a the immigration judge by an asylum such classified information he or she waiver of the ground of inadmissibility, officer in accordance with § 208.14(b) of shall inform the applicant. The agency he or she may apply to the immigration this chapter, the immigration judge that provides the classified information judge for such waiver. The immigration shall: to the immigration judge may provide judge shall inform the respondent of his (i) Advise the alien that he or she may an unclassified summary of the or her apparent eligibility to apply for apply for asylum in the United States or information for release to the applicant, any of the benefits enumerated in this withholding of deportation to those whenever it determines it can do so paragraph and shall afford the countries; and consistently with safeguarding both the respondent an opportunity to make (ii) Make available the appropriate classified nature of the information and application therefor during the hearing. application forms. its source. The summary should be as In exercising discretionary power when (3) An application for asylum or detailed as possible, in order that the considering an application under this withholding of deportation must be applicant may have an opportunity to paragraph, the immigration judge may filed with the Immigration Court, offer opposing evidence. A decision consider and base the decision on pursuant to § 208.4(b) of this chapter. based in whole or in part on such information not contained in the record Upon receipt of an application that has classified information shall state and not made available for inspection not been referred by an asylum officer, whether such information is material to by the respondent, provided the the Immigration Court shall forward a the decision. Commissioner has determined that such copy to the Department of State (5) The decision of an immigration information is relevant and is classified pursuant to § 208.11 of this chapter and judge to grant or deny asylum or under the applicable Executive Order as shall calendar the case for a hearing. withholding of deportation shall be requiring protection from unauthorized The reply, if any, of the Department of communicated to the applicant and to disclosure in the interest of national State, unless classified under the the Service counsel for the government. security. Whenever the immigration applicable Executive Order, shall be An adverse decision will state why judge believes that he or she can do so given to both the applicant and to the asylum or withholding of deportation while safeguarding both the information Service counsel representing the was denied. and its source, the immigration judge government. (d) Application for relief under should inform the respondent of the (4) Applications for asylum or sections 241(a)(1)(H) and general nature of the information in withholding of deportation so filed will 241(a)(1)(E)(iii) of the Act. The order that the respondent may have an be decided by the immigration judge respondent may apply to the opportunity to offer opposing evidence. pursuant to the requirements and immigration judge for relief from A decision based in whole or in part on standards established in 8 CFR part 208 deportation under sections 241(a)(1)(H) such classified information shall state after an evidentiary hearing that is and 241(a)(1)(E)(iii) of the Act. that the information is material to the necessary to resolve factual issues in (e) General. An application under this decision. dispute. An evidentiary hearing section shall be made only during the (b) Voluntary departure. The extending beyond issues related to the hearing and shall not be held to respondent may apply to the basis for a mandatory denial of the constitute a concession of alienage or immigration judge for voluntary application pursuant to § 208.13 or deportability in any case in which the departure in lieu of deportation § 208.16 of this chapter is not necessary respondent does not admit his alienage pursuant to section 244(e) of the Act once the immigration judge has or deportability. However, nothing in and § 240.56. determined that such a denial is this section shall prohibit the Service (c) Applications for asylum or required. from using information supplied in an withholding of deportation. (1) The (i) Evidentiary hearings on application for asylum or withholding immigration judge shall notify the applications for asylum or withholding of deportation submitted to an asylum respondent that if he or she is finally of deportation will be open to the public officer pursuant to § 208.2 of this ordered deported, his or her deportation unless the applicant expressly requests chapter on or after January 4, 1995, as will in the first instance be directed that it be closed. the basis for issuance of an order to pursuant to section 243(a) of the Act to (ii) Nothing in this section is intended show cause or a notice to appear to the country designated by the to limit the authority of the immigration establish alienage or deportability in a respondent and shall afford him or her judge properly to control the scope of case referred to an immigration judge an opportunity then and there to make any evidentiary hearing. under § 208.14(b) of this chapter. The such designation. The immigration (iii) During the deportation hearing, respondent shall have the burden of judge shall then specify and state for the the applicant shall be examined under establishing that he or she is eligible for record the country, or countries in the oath on his or her application and may any requested benefit or privilege and alternative, to which respondent’s present evidence and witnesses in his or that it should be granted in the exercise deportation will be directed pursuant to her own behalf. The applicant has the of discretion. The respondent shall not section 243(a) of the Act if the country burden of establishing that he or she is be required to pay a fee on more than of his or her designation will not accept a refugee as defined in section one application within paragraphs (a) Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10377 and (c) of this section, provided that the the trail attorney, if any, at the § 240.54 [Reserved] minimum fee imposed when more than conclusion of the hearing. Unless appeal one application is made shall be from the decision is waived, the Subpart FÐSuspension of Deportation and Voluntary Departure (for determined by the cost of the respondent shall be furnished with proceedings commenced prior to April application with the highest fee. Form EOIR–26, Notice of Appeal, and 1, 1997) Nothing contained in this section is advised of the provisions of § 240.53. A intended to foreclose the respondent printed copy of the oral decision shall § 240.55 Proceedings commenced prior to from applying for any benefit or be furnished at the request of the April 1, 1997. privilege which he or she believes respondent or the Service counsel. Subpart F of 8 CFR part 240 applies himself or herself eligible to receive in (c) Summary decision. When the to deportation proceedings commenced proceedings under this part. prior to April 1, 1997. A deportation immigration judge renders a summary proceeding is commenced by the filing § 240.50 Decision of the immigration decision as provided in § 240.51(b), he judge. of Form I–221 (Order to Show Cause) or she shall serve a copy thereof upon with the Immigration Court, and an (a) Contents. The decision of the the respondent at the conclusion of the alien is considered to be in deportation immigration judge may be oral or hearing. Unless appeal from the proceedings only upon such filing, written. Except when deportability is decision is waived, the respondent shall except in the case of an alien admitted determined on the pleadings pursuant be furnished with Form EOIR–26, to the United States under the to § 240.48(b), the decision of the Notice of Appeal, and advised of the provisions of section 217 of the Act. All immigration judge shall include a provisions of § 240.54. references to the Act contained in this finding as to deportability. The formal subpart are references to the Act in enumeration of findings is not required. § 240.52 Finality of order. effect prior to April 1, 1997. The decision shall also contain the The decision of the immigration judge reasons for granting or denying the § 240.56 Application. shall become final in accordance with request. The decision shall be Notwithstanding any other provision § 3.39 of this chapter. concluded with the order of the of this chapter, an alien who is immigration judge. § 240.53 Appeals. deportable because of a conviction on or (b) Summary decision. after November 18, 1988, for an Notwithstanding the provisions of (a) Pursuant to 8 CFR part 3, an aggravated felony as defined in section paragraph (a) of this section, in any case appeal shall lie from a decision of an 101(a)(43) of the Act, shall not be where deportability is determined on immigration judge to the Board, except eligible for voluntary departure as the pleadings pursuant to § 240.48(b) that no appeal shall lie from an order of prescribed in 8 CFR part 240 and and the respondent does not make an deportation entered in absentia. The section 244 of the Act. Pursuant to application under § 240.49, or the procedures regarding the filing of a subpart F of this part and section 244 of respondent applies for voluntary Form EOIR–26, Notice of Appeal, fees, the Act, an immigration judge may departure only and the immigration and briefs are set forth in §§ 3.3, 3.31, authorize the suspension of an alien’s judge grants the application, the and 3.38 of this chapter. An appeal shall deportation; or, if the alien establishes immigration judge may enter a summary be filed within 30 calendar days after that he or she is willing and has the decision on Form EOIR–7, Summary the mailing of a written decision, the immediate means with which to depart Order of Deportation, if deportation is stating of an oral decision, or the service promptly from the United States, an ordered, or on Form EOIR–6, Summary of a summary decision. The filing date immigration judge may authorize the Order of Voluntary Departure, if is defined as the date of receipt of the alien to depart voluntarily from the voluntary departure is granted with an Notice of Appeal by the Board. The United States in lieu of deportation alternate order of deportation. within such time as may be specified by reasons for the appeal shall be stated in (c) Order of the immigration judge. the immigration judge when first the Form EOIR–26, Notice of Appeal, in The order of the immigration judge shall authorizing voluntary departure, and direct the respondent’s deportation, or accordance with the provisions of under such conditions as the district the termination of the proceedings, or § 3.3(b) of this chapter. Failure to do so director shall direct. An application for such other disposition of the case as may constitute a ground for dismissal of suspension of deportation shall be made may be appropriate. When deportation the appeal by the Board pursuant to on Form EOIR–40. is ordered, the immigration judge shall § 3.1(d)(1-a) of this chapter. § 240.57 Extension of time to depart. specify the country, or countries in the (b) Prohibited appeals; legalization or alternate, to which respondent’s applications. An alien respondent Authority to reinstate or extend the time within which to depart voluntarily deportation shall be directed. The defined in § 245a.2(c)(6) or (7) of this specified initially by an immigration immigration judge is authorized to issue chapter who fails to file an application orders in the alternative or in judge or the Board is within the sole for adjustment of status to that of a jurisdiction of the district director, combination as he or she may deem temporary resident within the necessary. except that an immigration judge or the prescribed period(s), and who is Board may reinstate voluntary departure § 240.51 Notice of decision. thereafter found to be deportable by in a deportation proceeding that has (a) Written decision. A written decision of an immigration judge, shall been reopened for a purpose other than decision shall be served upon the not be permitted to appeal the finding solely making an application for respondent and the Service counsel, of deportability based solely on refusal voluntary departure. A request by an together with the notice referred to in by the immigration judge to entertain alien for reinstatement or an extension § 3.3 of this chapter. Service by mail is such an application in deportation of time within which to depart complete upon mailing. proceedings. voluntarily shall be filed with the (b) Oral decision. An oral decision district director having jurisdiction over shall be stated by the immigration judge the alien’s place of residence. Written in the presence of the respondent and notice of the district director’s decision 10378 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations shall be served upon the alien and no (c) Upon expiration of the time section 212(a) of the Act or removable appeal may be taken therefrom. allotted for an appeal if the respondent under section 237(a)(1)(C), 237(a)(2), or does not file an appeal within that time; 237(a)(4) of the Act, or who presents a Subpart GÐCivil Penalties for Failure (d) If certified to the Board or significant risk of noncompliance with to Depart [Reserved] Attorney General, upon the date of the the order of removal, beyond the subsequent decision ordering removal; removal period, as necessary, until 105. Part 241 is revised to read as (e) If an immigration judge orders an removal from the United States. If such follows: alien removed in the alien’s absence, an alien demonstrates by clear and PART 241ÐAPPREHENSION AND immediately upon entry of such order; convincing evidence that the release DETENTION OF ALIENS ORDERED or would not pose a danger to the REMOVED (f) If an immigration judge issues an community or a significant flight risk, alternate order of removal in connection the district director may, in the exercise Subpart AÐPost-hearing Detention and with a grant of voluntary departure, of discretion, order the alien released Removal upon overstay of the voluntary from custody on such conditions as the Sec. departure period except where the district director may prescribe, 241.1 Final order of removal. respondent has filed a timely appeal including bond in an amount sufficient 241.2 Warrant of removal. with the Board. In such a case, the order to ensure the alien’s appearance for 241.3 Detention of aliens during removal shall become final upon an order of removal. The district may consider, but period. removal by the Board or the Attorney is not limited to considering, the 241.4 Continued detention beyond the following factors: removal period. General, or upon overstay of any voluntary departure period granted or (1) The nature and seriousness of the 241.5 Conditions of release after removal alien’s criminal convictions; period. reinstated by the Board or the Attorney 241.6 Administrative stay of removal. General. (2) Other criminal history; 241.7 Self-removal. (3) Sentence(s) imposed and time 241.8 Reinstatement of removal orders. § 241.2 Warrant of removal. actually served; 241.9 Notice to transportation line of alien’s (a) Issuance of a warrant of removal. (4) History of failures to appear for removal. A Form I–205, Warrant of Removal, court (defaults); 241.10 Special care and attention of based upon the final administrative (5) Probation history; (6) Disciplinary problems while removable aliens. removal order in the alien’s case shall incarcerated; 241.11 Detention and removal of be issued by a district director. The stowaways. (7) Evidence of rehabilitative effort or 241.12 Nonapplication of costs of detention district director shall exercise the recidivism; and maintenance. authority contained in section 241 of the (8) Equities in the United States; and 241.13—241.19 [Reserved] Act to determine at whose expense the (9) Prior immigration violations and alien shall be removed and whether his Subpart BÐDeportation of Excluded Aliens history. (for hearings commenced prior to April 1, or her mental or physical condition (b) Continuation of custody for other 1997) requires personal care and attention en aliens. Any alien removable under any route to his or her destination. section of the Act other than section 241.20 Proceedings commenced prior to (b) Execution of the warrant of April 1, 1997. 212(a), 237(a)(1)(C), 237(a)(2), or 241.21 Stay of deportation of excluded removal. Any officer authorized by 237(a)(4) may be detained beyond the alien. § 287.5(e) of this chapter to execute removal period, in the discretion of the 241.22 Notice to surrender for deportation. administrative warrants of arrest may district director, unless the alien 241.23 Cost of maintenance not assessed. execute a warrant of removal. demonstrates to the satisfaction of the 241.24 Notice to transportation line of district director that he or she is likely alien’s exclusion. § 241.3 Detention of aliens during removal period. to comply with the removal order and 241.25 Deportation. is not a risk to the community. 241.26—241.29 [Reserved] (a) Assumption of custody. Once the § 241.5 Conditions of release after removal Subpart CÐDeportation of Aliens in the removal period defined in section period. United States (for hearings commenced 241(a)(1) of the Act begins, an alien in prior to April 1, 1997) the United States will be taken into (a) Order of supervision. An alien 241.30 Proceedings commenced prior to custody pursuant to the warrant of released pursuant to § 241.4 shall be April 1, 1997. removal. released pursuant to an order of 241.31 Final order of deportation. (b) Cancellation of bond. Any bond supervision. A district director, acting 241.32 Warrant of deportation. previously posted will be canceled district director, deputy district director, 241.33 Expulsion. unless it has been breached or is subject assistant district director for Authority: 8 U.S.C. 1103, 1223, 1227, 1251, to being breached. investigations, assistant district director 1253, 1255, and 1330; 8 CFR part 2. (c) Judicial stays. The filing of (or for detention and deportation, or officer intention to file) a petition or action in in charge may issue an order of Subpart AÐPost-hearing Detention a Federal court seeking review of the supervision on Form I–220B. The order and Removal issuance or execution of an order of shall specify conditions of supervision including, but not limited to, the § 241.1 Final order of removal. removal shall not delay execution of the Warrant of Removal except upon an following: An order of removal made by the affirmative order of the court. (1) A requirement that the alien report immigration judge at the conclusion of to a specified officer periodically and proceedings under section 240 of the § 241.4 Continued detention beyond the provide relevant information under oath Act shall become final: removal period. as directed; (a) Upon dismissal of an appeal by the (a) Continuation of custody for (2) A requirement that the alien Board of Immigration Appeals; inadmissible or criminal aliens. The continue efforts to obtain a travel (b) Upon waiver of appeal by the district director may continue in document and assist the Service in respondent; custody any alien inadmissible under obtaining a travel document; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10379

(3) A requirement that the alien report § 241.7 Self-removal. determination. The officer shall advise as directed for a mental or physical A district director may permit an the alien that he or she may make a examination or examinations as directed alien ordered removed (including an written or oral statement contesting the by the Service; alien ordered excluded or deported in determination. If the alien wishes to (4) A requirement that the alien obtain proceedings prior to April 1, 1997) to make such a statement, the officer shall advance approval of travel beyond depart at his or her own expense to a allow the alien to do so and shall previously specified times and destination of his or her own choice. consider whether the alien’s statement distances; and Any alien who has departed from the warrants reconsideration of the (5) A requirement that the alien United States while an order of determination. provide the Service with written notice deportation or removal is outstanding (c) Order. If the requirements of of any change of address on Form AR– shall be considered to have been paragraph (a) of this section are met, the 11 within ten days of the change. deported, excluded and deported, or alien shall be removed under the (b) Posting of bond. An officer removed, except that an alien who previous order of exclusion, authorized to issue an order of departed before the expiration of the deportation, or removal in accordance supervision may require the posting of voluntary departure period granted in with section 241(a)(5) of the Act. a bond in an amount determined by the connection with an alternate order of (d) Exception for withholding of officer to be sufficient to ensure deportation or removal shall not be removal. If an alien whose prior order compliance with the conditions of the considered to have been so deported or of removal has been reinstated under order, including surrender for removal. removed. this section expresses a fear of returning (c) Employment authorization. An to the country designated in that order, officer authorized to issue an order of § 241.8 Reinstatement of removal orders. the alien shall be immediately referred supervision may, in his or her (a) Applicability. An alien who to an asylum officer to determine discretion, grant employment illegally reenters the United States after whether the alien’s removal to that authorization to an alien released under having been removed, or having country must be withheld under section an order of supervision if the officer departed voluntarily, while under an 241(b)(3) of the Act. The alien’s claim specifically finds that: order of exclusion, deportation, or will be granted or denied by an asylum (1) The alien cannot be removed removal shall be removed from the officer in accordance with § 208.16 of because no country will accept the United States by reinstating the prior this chapter. If the alien has previously alien; or order. The alien has no right to a had a claim to withholding of (2) The removal of the alien is hearing before an immigration judge in deportation or removal denied, then that impracticable or contrary to public such circumstances. In establishing decision shall prevail unless the alien interest. whether an alien is subject to this can establish the existence of changed section, the immigration officer shall circumstances that materially affect the § 241.6 Administrative stay of removal. determine the following: Any request of an alien under a final alien’s eligibility for withholding. The (1) Whether the alien has been subject alien’s case shall not be referred to an order of deportation or removal for a to a prior order of removal. The stay of deportation or removal shall be immigration judge, and there is no immigration officer must obtain the appeal from the decision of the asylum filed on Form I–246, Stay of Removal, prior order of exclusion, deportation, or with the district director having officer. If the alien is found to merit removal relating to the alien. withholding of removal, the Service jurisdiction over the place where the (2) The identity of the alien, i.e., alien is at the time of filing. The district shall not enforce the reinstated order. whether the alien is in fact an alien who (e) Execution of reinstated order. director, in his or her discretion and in was previously removed, or who Execution of the reinstated order of consideration of factors such as are departed voluntarily while under an removal and detention of the alien shall listed in § 212.5 of this chapter and order of exclusion, deportation, or be administered in accordance with this section 241(c) of the Act, may grant a removal. In disputed cases, verification part. stay of removal or deportation for such of identity shall be accomplished by a time and under such conditions as he or comparison of fingerprints between § 241.9 Notice to transportation line of she may deem appropriate. Neither the those of the previously excluded, alien's removal. request nor the failure to receive notice deported, or removed alien contained in (a) An alien who has been ordered of disposition of the request shall delay Service records and those of the subject removed shall, immediately or as removal or relieve the alien from strict alien. In the absence of fingerprints in promptly as the circumstances permit, compliance with any outstanding notice a disputed case the alien shall not be be offered for removal to the owner, to surrender for deportation or removal. removed pursuant to this paragraph. agent, master, commanding officer, Denial by the district director of a (3) Whether the alien unlawfully person in charge, purser, or consignee of request for a stay is not appealable, but reentered the United States. In making the vessel or aircraft on which the alien such denial shall not preclude an this determination, the officer shall is to be removed, as determined by the immigration judge or the Board from consider all relevant evidence, district director, with a written notice granting a stay in connection with a including statements made by the alien specifying the cause of inadmissibility motion to reopen or a motion to and any evidence in the alien’s or deportability, the class of travel in reconsider as provided in 8 CFR part 3. possession. The immigration officer which such alien arrived and is to be The Service shall take all reasonable shall attempt to verify an alien’s claim, removed, and with the return of any steps to comply with a stay granted by if any, that he or she was lawfully documentation that will assist in an immigration judge or the Board. admitted, which shall include a check effecting his or her removal. If special However, such a stay shall cease to have of Service data systems available to the care and attention are required, the effect if granted (or communicated) after officer. provisions of § 241.10 shall apply. the alien has been placed aboard an (b) Notice. If an officer determines (b) Failure of the carrier to accept for aircraft or other conveyance for removal that an alien is subject to removal under removal an alien who has been ordered and the normal boarding has been this section, he or she shall provide the removed shall result in the carrier being completed. alien with written notice of his or her assessed any costs incurred by the 10380 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Service for detention after the carrier’s § 241.11 Detention and removal of for repairs to the vessel, and other failure to accept the alien for removal, stowaways. similar circumstances. If the owner, including the cost of any transportation (a) Presentation of stowaways. The agent, master, commanding officer, as required under section 241(e) of the owner, agent, master, commanding charterer, or consignee requests that he Act. The User Fee Account shall not be officer, charterer, or consignee of a or she be allowed to remove the assessed for expenses incurred because vessel or aircraft (referred to in this stowaway by other means, the Service of the carrier’s violation of the section as the carrier) bringing any alien shall favorably consider any such provisions of section 241 of the Act and stowaway to the United States is request, provided the carrier has required to detain the stowaway on this paragraph. The Service will, at the obtained, or will obtain in a timely board the vessel or aircraft, at the manner, any necessary travel documents carrier’s option, retain custody of the expense of the owner of the vessel or and has made or will make all alien for an additional 7 days beyond aircraft, until completion of the transportation arrangements. The the date of the removal order. If, after inspection of the alien by an owner, agent, master, commanding the third day of this additional 7-day immigration officer. If detention on officer, charterer, or consignee shall period, the carrier has not made all the board the vessel or aircraft pending transport the stowaway or arrange for necessary transportation arrangements inspection is not possible, the carrier secure escort of the stowaway to the for the alien to be returned to his or her shall advise the Service of this fact vessel or aircraft of departure to ensure point of embarkation by the end of the without delay, and the Service may that the stowaway departs the United additional 7-day period, the Service will authorize that the carrier detain the States. All expenses relating to removal make the arrangements and bill the stowaway at another designated shall be borne by the owner. Other than carrier for its costs. location, at the expense of the owner, requiring compliance with the detention until the immigration officer arrives. No and removal requirements contained in § 241.10 Special care and attention of notice to detain the alien shall be section 241(d)(2) of the Act, the Service removable aliens. required. Failure to detain an alien shall not impose additional conditions When, in accordance with section stowaway pending inspection shall on the carrier regarding security 241(c)(3) of the Act, a transportation result in a civil penalty under section arrangements. Failure to comply with an line is responsible for the expenses of an 243(c)(1)(A) of the Act. The owner, order to remove an alien stowaway shall inadmissible or deportable alien’s agent, master, commanding officer, result in a civil penalty under section removal, and the alien requires special charterer, or consignee of a vessel or 243(c)(1)(A) of the Act. aircraft must present the stowaway for (2) Detention of stowaways ordered care and attention, the alien shall be inspection, along with any documents removed. If detention of the stowaway is delivered to the owner, agent, master, or evidence of identity or nationality in required pending removal on other than commanding officer, person in charge, the possession of the alien or obtained the vessel or aircraft of arrival, or if the purser, or consignee of the vessel or by the carrier relating to the alien stowaway is to be removed on the vessel aircraft on which the alien will be stowaway, and must provide any or aircraft of arrival but departure of the removed, who shall be given Forms I– available information concerning the vessel or aircraft is not imminent and 287, I–287A, and I–287B. The reverse of alien’s boarding or apprehension. circumstances preclude keeping the Form I–287A shall be signed by the (b) Removal of stowaways from vessel stowaway on board the vessel or officer of the vessel or aircraft to whom or aircraft for medical treatment. The aircraft, the Service shall take the the alien has been delivered and district director may parole an alien stowaway into Service custody. The immediately returned to the stowaway into the United States for owner is responsible for all costs of immigration officer effecting delivery. medical treatment, but the costs of maintaining and detaining the Form I–287B shall be retained by the detention and treatment of the alien stowaway pending removal, including receiving officer and subsequently filled stowaway shall be at the expense of the costs for stowaways seeking asylum as out by the agents or persons therein owner of the vessel or aircraft, and such described in paragraph (d) of this designated and returned by mail to the removal of the stowaway from the vessel section. Such costs will be limited to district director named on the form. The or aircraft does not relieve the carrier of those normally incurred in the transportation line shall at its own the requirement to remove the detention of an alien by the Service, expense forward the alien from the stowaway from the United States once including, but not limited to, housing, such medical treatment has been foreign port of disembarkation to the food, transportation, medical expenses, completed. and other reasonable costs incident to final destination specified on Form I– (c) Repatriation of stowaways—(1) the detention of the stowaway. The 287. The special care and attention shall Requirements of carrier. Following Service may require the posting of a be continued to such final destination, inspection, an immigration officer may bond or other surety to ensure payment except when the foreign public officers order the owner, agent, master, of costs of detention. decline to allow such attendant to commanding officer, charterer, or (d) Stowaways claiming asylum—(1) proceed and they take charge of the consignee of a vessel or aircraft bringing Referral for credible fear determination. alien, in which case this fact shall be any alien stowaway to the United States A stowaway who indicates an intention recorded by the transportation line on to remove the stowaway on the vessel or to apply for asylum or a fear of the reverse of Form I–287B. If the aircraft of arrival, unless it is persecution shall be removed from the transportation line fails, refuses, or impracticable to do so or other factors vessel or aircraft of arrival in accordance neglects to provide the necessary special exist which would preclude removal on with § 208.5(b) of this chapter. The care and attention or comply with the the same vessel or aircraft. Such factors immigration officer shall refer the alien directions of Form I–287, the district may include, but are not limited to, to an asylum officer for a determination director shall thereafter and without sanitation, health, and safety concerns of credible fear in accordance with notice employ suitable persons, at the for the crew and/or stowaway, whether section 235(b)(1)(B) of the Act and expense of the transportation line, and the stowaway is a female or a juvenile, § 208.30 of this chapter. The stowaway effect such removal. loss of insurance coverage on account of shall be detained in the custody of the the stowaway remaining aboard, need Service pending the credible fear Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10381 determination and any review thereof. establish to the satisfaction of the submit affidavits and briefs to support Parole of such alien, in accordance with district director in charge of the port of its claim. section 212(d)(5) of the Act, may be arrival that such costs should not be permitted only when the Attorney applied. The district director shall § 241.24 Notice to transportation line of alien's exclusion. General determines, in the exercise of afford the owner a reasonable time discretion, that parole is required to within which to submit affidavits and (a) An excluded alien shall, meet a medical emergency or is briefs to support the claim. There is no immediately or as promptly as the necessary for a legitimate law appeal from the decision of the district circumstances permit, be offered for enforcement objective. A stowaway who director. deportation to the master, commanding has established a credible fear of officer, purser, person in charge, agent, persecution in accordance with § 208.30 §§ 241.13Ð241.19 [Reserved] owner, or consignee of the vessel or of this chapter may be detained or aircraft on which the alien is to be Subpart BÐDeportation of Excluded paroled pursuant to § 212.5 of this deported, as determined by the district Aliens (for hearings commenced prior chapter during any consideration of the director, with a written notice to April 1, 1997) asylum application. In determining specifying the cause of exclusion, the whether to detain or parole the alien, § 241.20 Proceedings commenced prior to class of travel in which such alien the Service shall consider the likelihood April 1, 1997. arrived and is to be deported, and with that the alien will abscond or pose a Subpart B of 8 CFR part 241 applies the return of any documentation that security risk. to exclusion proceedings commenced will assist in effecting his or her (2) Costs of detention of asylum- prior to April 1, 1997. All references to deportation. If special care and attention seeking stowaways. The owner of the the Act contained in this subpart are are required, the provisions of § 241.10 vessel or aircraft that brought the references to the Act in effect prior to shall apply. (b) Failure of the carrier to accept for stowaway to the United States shall April 1, 1997. reimburse the Service for the costs of removal an alien who has been ordered maintaining and detaining the § 241.21 Stay of deportation of excluded excluded and deported shall result in stowaway pending a determination of alien. the carrier being assessed any costs credible fear under section 235(b)(1)(B) The district director in charge of the incurred by the Service for detention of the Act, up to a maximum period of port of arrival may stay the immediate after the carrier’s failure to accept the 72 hours. The owner is also responsible deportation of an excluded alien alien for removal including the cost of for the costs of maintaining and pursuant to sections 237 (a) and (d) of any transportation. The User Fee detaining the stowaway during the the Act under such conditions as he or Account shall not be assessed for period in which the stowaway is she may prescribe. expenses incurred because of the pursuing his or her asylum application, carrier’s violation of the provisions of for a maximum period of 15 working § 241.22 Notice to surrender for section 237 of the Act and this days, excluding Saturdays, Sundays, deportation. paragraph. The Service will, at the and holidays. The 15-day period shall An alien who has been finally carrier’s option, retain custody of the begin on the day following the day in excluded pursuant to 8 CFR part 240, excluded alien for an additional 7 days which the alien is determined to have subpart D may at any time surrender beyond the date of the deportation/ a credible fear of persecution by the himself or herself to the custody of the exclusion order. If, after the third day of asylum officer, or by the immigration Service and shall surrender to such this additional 7-day period, the carrier judge if such review was requested by custody upon notice in writing of the has not made all the necessary the alien pursuant to section time and place for his or her surrender. transportation arrangements for the 235(b)(1)(B)(iii)(III) of the Act, but not The Service may take the alien into excluded alien to be returned to his or later than 72 hours after the stowaway custody at any time. An alien taken into her point of embarkation by the end of was initially presented to the Service for custody either upon notice to surrender the additional 7-day period, the Service inspection. Following the determination or by arrest shall not be deported less will make the arrangements and bill the of credible fear, if the stowaway’s than 72 hours thereafter without his or carrier for its costs. application for asylum is not her consent thereto filed in writing with adjudicated within 15 working days, the the district director in charge of the § 241.25 Deportation. Service shall pay the costs of detention place of his or her detention. An alien (a) Definitions of terms. For the beyond this time period. If the in foreign contiguous territory shall be purposes of this section, the following stowaway is determined not to have a informed that he or she may remain terms mean: credible fear of persecution, or if the there in lieu of surrendering to the (1) Adjacent island—as defined in stowaway’s application for asylum is Service, but that he or she will be section 101(b)(5) of the Act. denied, including any appeals, the deemed to have acknowledged the (2) Foreign contiguous territory—any carrier shall be notified and shall execution of the order of exclusion and country sharing a common boundary arrange for repatriation of the stowaway deportation in his or her case upon his with the United States. at the expense of the owner of the vessel or her failure to surrender at the time (3) Residence in foreign contiguous or aircraft on which the stowaway and place prescribed. territory or adjacent island—any arrived. physical presence, regardless of intent, § 241.23 Cost of maintenance not in a foreign contiguous territory or an § 241.12 Nonapplication of costs of assessed. adjacent island if the government of detention and maintenance. A claim pursuant to section 237(a)(1) such territory or island agrees to accept The owner of a vessel or aircraft of the Act shall be established to the the alien. bringing an alien to the United States satisfaction of the district director in (4) Aircraft or vessel—any conveyance who claims to be exempt from payment charge of the port of arrival, from whose and other mode of travel by which of the costs of detention and adverse decision no appeal shall lie. arrival is effected. maintenance of the alien pursuant to The district director shall afford the line (5) Next available flight—the carrier’s section 241(c)(3)(B) of the Act shall a reasonable time within which to next regularly scheduled departure to 10382 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations the excluded alien’s point of purposes of that section, an order of PART 242Ð[REMOVED AND embarkation regardless of seat deportation, including an alternate RESERVED] availability. If the carrier’s next order of deportation coupled with an regularly scheduled departure to the order of voluntary departure, made by 106. Part 242 is removed and excluded aliens point of embarkation is the immigration judge in proceedings reserved. full, the carrier has the option of under 8 CFR part 240 shall become final PART 243Ð[REMOVED AND arranging for return transportation on upon dismissal of an appeal by the RESERVED] other carriers which service the Board of Immigration Appeals, upon excluded aliens point of embarkation. waiver of appeal, or upon expiration of 107. Part 243 is removed and (b) Place to which deported. Any alien the time allotted for an appeal when no reserved. (other than an alien crewmember or an appeal is taken; or, if such an order is alien who boarded an aircraft or vessel issued by the Board or approved by the PART 244ÐTEMPORARY PROTECTED in foreign contiguous territory or an Board upon certification, it shall be final STATUS FOR NATIONALS OF adjacent island) who is ordered as of the date of the Board’s decision. DESIGNATED STATES excluded shall be deported to the § 241.32 Warrant of deportation. 108. The heading for part 244 is country where the alien boarded the revised as set forth above. vessel or aircraft on which the alien A Form I–205, Warrant of 109. The authority citation for part arrived in the United States. If that Deportation, based upon the final 244 is revised to read as follows: country refuses to accept the alien, the administrative order of deportation in the alien’s case shall be issued by a Authority: 8 U.S.C. 1103, 1254, 1254a note, alien shall be deported to: 8 CFR part 2. (1) The country of which the alien is district director. The district director a subject, citizen, or national; shall exercise the authority contained in §§ 244.1 and 244.2 [Removed] (2) The country where the alien was section 243 of the Act to determine at 110. Sections 244.1 and 244.2 are born; whose expense the alien shall be removed. (3) The country where the alien has a deported and whether his or her mental residence; or or physical condition requires personal §§ 244.3 through 244.22 [Redesignated as (4) Any country willing to accept the care and attention en route to his or her §§ 244.1 through 244.20] alien. destination. 111. Newly designated §§ 244.3 (c) Contiguous territory and adjacent through 244.22 are further redesignated islands. Any alien ordered excluded § 241.33 Expulsion. as §§ 244.1 through 244.20, respectively. who boarded an aircraft or vessel in (a) Execution of order. Except in the foreign contiguous territory or in any exercise of discretion by the district PART 245ÐADJUSTMENT OF STATUS adjacent island shall be deported to director, and for such reasons as are set TO THAT OF PERSON ADMITTED FOR such foreign contiguous territory or forth in § 212.5(a) of this chapter, once PERMANENT RESIDENCE adjacent island if the alien is a native, an order of deportation becomes final, 112. The authority citation for part citizen, subject, or national of such an alien shall be taken into custody and 245 is revised to read as follows: foreign contiguous territory or adjacent the order shall be executed. For the island, or if the alien has a residence in purposes of this part, an order of Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2. such foreign contiguous territory or deportation is final and subject to adjacent island. Otherwise, the alien execution upon the date when any of 113. Section 245.1 is amended by: shall be deported, in the first instance, the following occurs: a. Removing the word ‘‘and’’ at the to the country in which is located the (1) A grant of voluntary departure end of the paragraph (c)(3); port at which the alien embarked for expires; b. Removing the ‘‘.’’ at the end of such foreign contiguous territory or (2) An immigration judge enters an paragraphs (c)(4) through (c)(7), and adjacent island. order of deportation without granting replacing it with a ‘‘;’’; (d) Land border pedestrian arrivals. voluntary departure or other relief, and c. Redesignating paragraph (c)(8) as Any alien ordered excluded who arrived the alien respondent waives his or her paragraph (c)(9); at a land border on foot shall be right to appeal; d. Adding a new paragraph (c)(8); e. Revising newly redesignated deported in the same manner as if the (3) The Board of Immigration Appeals enters an order of deportation on paragraph (c)(9) introductory text; alien had boarded a vessel or aircraft in f. Revising newly redesignated appeal, without granting voluntary foreign contiguous territory. paragraphs (c)(9)(i) through (c)(9)(iii); departure or other relief; or §§ 241.26±241.29 [Reserved] (4) A Federal district or appellate and by g. Revising paragraph (f), to read as court affirms an administrative order of follows: Subpart CÐDeportation of Aliens in deportation in a petition for review or the United States (for hearings habeas corpus action. § 245.1 Eligibility. commenced prior to April 1, 1997) (b) Service of decision. In the case of * * * * * § 241.30 Proceedings commenced prior to an order entered by any of the (c) * * * April 1, 1997. authorities enumerated above, the order (8) Any arriving alien who is in Subpart C of 8 CFR part 241 applies shall be executed no sooner than 72 removal proceedings pursuant to section to deportation proceedings commenced hours after service of the decision, 235(b)(1) or section 240 of the Act; and prior to April 1, 1997. All references to regardless of whether the alien is in (9) Any alien who seeks to adjust the Act contained in this subpart are Service custody, provided that such status based upon a marriage which references to the Act in effect prior to period may be waived on the knowing occurred on or after November 10, 1986, April 1, 1997. and voluntary request of the alien. and while the alien was in exclusion, Nothing in this paragraph shall be deportation, or removal proceedings, or § 241.31 Final order of deportation. construed, however, to preclude judicial proceedings relating thereto. Except as otherwise required by assumption of custody by the Service at (i) Commencement of proceedings. section 242(c) of the Act for the specific the time of issuance of the final order. The period during which the alien is in Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10383 deportation, exclusion, or removal consideration was given (other than to permit the applicant’s absence and proceedings or judicial proceedings an attorney for assistance in preparation return to pursue the previously filed relating thereto, commences: of a lawful petition) for the filing of a adjustment application. (A) With the issuance of the Form I– petition. * * * * * 221, Order to Show Cause and Notice of * * * * * (4) * * * Hearing prior to June 20, 1991; (f) Concurrent applications to (ii) Under section 245 of the Act. The (B) With the filing of a Form I–221, overcome grounds of inadmissibility. departure from the United States of an Order to Show Cause and Notice of Except as provided in 8 CFR parts 235 applicant who is under exclusion, Hearing, issued on or after June 20, and 249, an application under this part deportation, or removal proceedings 1991, with the Immigration Court; shall be the sole method of requesting shall be deemed an abandonment of the (C) With the issuance of Form I–122, the exercise of discretion under sections application constituting grounds for Notice to Applicant for Admission 212(g), (h), (i), and (k) of the Act, as they termination of the proceeding by reason Detained for Hearing Before relate to the inadmissibility of an alien of the departure. The departure of an Immigration Judge, prior to April 1, in the United States. No fee is required applicant who is not under exclusion, 1997, for filing an application to overcome the deportation, or removal proceedings (D) With the filing of a Form I–862, grounds of inadmissibility of the Act if shall be deemed an abandonment of his Notice to Appear, with the Immigration filed concurrently with an application or her application constituting grounds Court, or for adjustment of status under the for termination, unless the applicant (E) With the issuance and service of provisions of the Act of October 28, was previously granted advance parole Form I–860, Notice and Order of 1977, and of this part. by the Service for such absence, and Expedited Removal. * * * * * was inspected upon returning to the (ii) Termination of proceedings. The United States. If the application of an period during which the alien is in 114. Section 245.2 is amended by: a. Revising paragraph (a)(1); individual granted advance parole is exclusion, deportation, or removal subsequently denied, the applicant will proceedings, or judicial proceedings b. Revising paragraph (a)(4)(ii); c. Revising paragraph (a)(5)(ii) and be treated as an applicant for admission, relating thereto, terminates: and subject to the provisions of sections (A) When the alien departs from the (iii); and by 212 and 235 of the Act. United States while an order of d. Revising paragraph (c), to read as exclusion, deportation, or removal is follows: * * * * * (5) * * * outstanding or before the expiration of § 245.2 Application. the voluntary departure time granted in (ii) Under section 245 of the Act. If the (a) * * * (1) Jurisdiction. An alien connection with an alternate order of application is approved, the applicant’s who believes he or she meets the deportation or removal; permanent residence shall be recorded (B) When the alien is found not to be eligibility requirements of section 245 of as of the date of the order approving the inadmissible or deportable from the the Act or section 1 of the Act of adjustment of status. An application for United States; November 2, 1966, and § 245.1 shall adjustment of status, as a preference (C) When the Form I–122, I–221, I– apply to the director having jurisdiction alien, shall not be approved until an 860, or I–862 is canceled; over his or her place of residence unless immigrant visa number has been (D) When proceedings are terminated otherwise instructed in 8 CFR part 245, allocated by the Department of State, by the immigration judge or the Board or by the instruction on the application except when the applicant has of Immigration Appeals; or form. After an alien, other than an established eligibility for the benefits of (E) When a petition for review or an arriving alien, is in deportation or Public Law 101–238. No appeal lies action for habeas corpus is granted by a removal proceedings, his or her from the denial of an application by the Federal court on judicial review. application for adjustment of status director, but the applicant, if not an (iii) Exemptions. This prohibition under section 245 of the Act or section arriving alien, retains the right to renew shall no longer apply if: 1 of the Act of November 2, 1966 shall his or her application in proceedings (A) The alien is found not to be be made and considered only in those under 8 CFR part 240. Also, an inadmissible or deportable from the proceedings. An arriving alien, other applicant who is a parolee and meets United States; than an alien in removal proceedings, the two conditions described in (B) Form I–122, I–221, I–860, or I– who believes he or she meets the § 245.2(a)(1) may renew a denied 862, is canceled; eligibility requirements of section 245 of application in proceedings under 8 CFR (C) Proceedings are terminated by the the Act or section 1 of the Act of part 240 to determine admissibility. At immigration judge or the Board of November 2, 1966, and § 245.1 shall the time of renewal of the application, Immigration Appeals; apply to the director having jurisdiction an applicant does not need to meet the (D) A petition for review or an action over his or her place of arrival. An statutory requirement of section 245(c) for habeas corpus is granted by a adjustment application by an alien of the Act, or § 245.1(g), if, in fact, those Federal court on judicial review; paroled under section 212(d)(5) of the requirements were met at the time the (E) The alien has resided outside the Act, which has been denied by the renewed application was initially filed United States for 2 or more years director, may be renewed in removal with the director. Nothing in this following the marriage; or proceedings under 8 CFR part 240 only section shall entitle an alien to (F) The alien establishes the marriage if: proceedings under section 240 of the is bona fide by providing clear and (i) The denied application must have Act who is not otherwise so entitled. convincing evidence that the marriage been properly filed subsequent to the (iii) Under the Act of November 2, was entered into in good faith and in applicant’s earlier inspection and 1966. If the application is approved, the accordance with the laws of the place admission to the United States; and applicant’s permanent residence shall where the marriage took place, was not (ii) The applicant’s later absence from be recorded in accordance with the entered into for the purpose of and return to the United States was provisions of section 1. No appeal lies procuring the alien’s entry as an under the terms of an advance parole from the denial of an application by the immigrant, and no fee or other authorization on Form I–512 granted to director, but the applicant, if not an 10384 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations arriving alien, retains the right to renew Active Duty, from the appropriate (6) Remits the sum specified in his or her application in proceedings executive department for verification of section 245(i) of the Act, unless under 8 CFR part 240. Also, an the alien’s failure to maintain eligibility. payment of the sum is waived under applicant who is a parolee and meets * * * * * section 245(i) of the Act; and the two conditions described in 117. Section 245.9 is amended by * * * * * § 245.2(a)(1) may renew a denied revising paragraphs (d) and (m), to read (b) Payment of additional sum. An application in proceedings under 8 CFR as follows: applicant filing under the provisions of part 240 to determine admissibility. section 245(i) of the Act must pay the * * * * * § 245.9 Adjustment of Status of Certain standard adjustment of status filing fee, (c) Application under section 214(d) Nationals of the People's Republic of China as shown on Form I–485 and contained under Public Law 102±404. of the Act. An application for in § 103.7(b)(1) of this chapter. The permanent resident status pursuant to * * * * * applicant must also pay the additional section 214(d) of the Act shall be filed (d) Waivers of inadmissibility under sum specified in section 245(i) of the on Form I–485 with the director having section 212(a) of the Act. An applicant Act, unless at the time the application jurisdiction over the applicant’s place of for the benefits of the adjustment of for adjustment of status is filed, the residence. A separate application shall status provisions of Pub. L. 102–404 is alien is: automatically exempted from be filed by each applicant. If the * * * * * application is approved, the director compliance with the requirements of 119. Section 245.11 is amended by: shall record the lawful admission of the sections 212(a)(5) and 212(a)(7)(A) of a. Revising paragraph (a)(4)(ii)(B); applicant as of the date of approval. The the Act. A Pub. L. 102–404 applicant b. Revising paragraph (b)(1)(iii); applicant shall be notified of the may also apply for one or more waivers c. Revising the introductory text in decision and, if the application is of inadmissibility under section 212(a) paragraph (c); and by denied, of the reasons therefor. No of the Act, except for inadmissibility d. Revising paragraphs (h) and (i), to appeal shall lie from the denial of an under section 212(a)(2)(C), 212(a)(3)(A), read as follows: application by the director but such 212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E) denial shall be without prejudice to the of the Act. § 245.11 Adjustment of aliens in S alien’s right to renew his or her * * * * * nonimmigrant classification. application in proceedings under 8 CFR (m) Effect of enactment on family (a) * * * part 240. members other than qualified family (4) * * * 115. Section 245.5 is amended by members. The adjustment of status (ii) * * * revising the first sentence to read as benefits and waivers provided by Pub. (B) Be admissible to the United States follows: L. 102–404 do not apply to a spouse or as an immigrant, unless the ground of child who is not a qualified family inadmissibility has been waived; § 245.5 Medical examination. member as defined in paragraph (c) of * * * * * Pursuant to section 232(b) of the Act, this section. However, a spouse or child (b) * * * an applicant for adjustment of status whose relationship to the principal (1) * * * shall be required to have a medical alien was established prior to the (iii) The family member is not examination by a designated civil approval of the principal’s adjustment inadmissible from the United States as surgeon, whose report setting forth the of status application may be accorded a participant in Nazi persecution or findings of the mental and physical the derivative priority date and genocide as described in section condition of the applicant, including preference category of the principal 212(a)(3)(E) of the Act; compliance with section 212(a)(1)(A)(ii) alien, in accordance with the provisions * * * * * of the Act, shall be incorporated into the of section 203(d) of the Act. The spouse (c) Waivers of inadmissibility. An record. * * * or child may use the priority date and alien seeking to adjust status pursuant 116. Section 245.8 is amended by category when it becomes current, in to the provisions of section 101(a)(15)(S) revising paragraph (e), to read as accordance with the limitations set forth of the Act may not be denied adjustment follows: in sections 201 and 202 of the Act. of status for conduct or a condition that: § 245.8 Adjustment of status as a special Persons who are unable to maintain * * * * * immigrant under section 101(a)(27)(K) of the lawful nonimmigrant status in the (h) Removal under section 237 of the Act. United States and are not immediately Act. Nothing in this section shall * * * * * eligible to apply for adjustment of status prevent an alien adjusted pursuant to (e) Removal provisions of section 237 may request voluntary departure the terms of these provisions from being of the Act. If the Service is made aware pursuant to 8 CFR part 240. removed for conviction of a crime of by notification from the appropriate 118. Section 245.10 is amended by: moral turpitude committed within 10 executive department or by any other a. Revising paragraphs (a) (3) and (6); years after being provided lawful means that a section 101(a)(27)(K) and by permanent residence under this section special immigrant who has already been b. Revising introductory text in or for any other ground under section granted permanent residence fails to paragraph (b), to read as follows: 237 of the Act. complete his or her total active duty (i) Denial of application. In the event service obligation for reasons other than § 245.10 Adjustment of status upon the district director decides to deny an an honorable discharge, the alien may payment of additional sum under Public application on Form I–485 and an Law 103±317. become subject to the removal approved Form I–854 to allow an S provisions of section 237 of the Act, (a) * * * nonimmigrant to adjust status, the provided the alien is in one or more of (3) Is not inadmissible from the Assistant Attorney General, Criminal the classes of deportable aliens specified United States under any provision of Division, and the relevant LEA shall be in section 237 of the Act. The Service section 212 of the Act, or all grounds for notified in writing to that effect. The shall obtain a current Form DD–214, inadmissibility have been waived; Assistant Attorney General, Criminal Certificate of Release or Discharge from * * * * * Division, shall concur in or object to Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10385 that decision. Unless the Assistant behalf as may be relevant to the the respondent and other witnesses. The Attorney General, Criminal Division, rescission. Service counsel is authorized to appeal objects within 7 days, he or she shall be from a decision of the immigration deemed to have concurred in the § 246.2 Allegations admitted; no answer filed; no hearing requested. judge pursuant to § 246.7 and to move decision. In the event of an objection by for reopening or reconsideration If the answer admits the allegations in the Assistant Attorney General, pursuant to § 3.23 of this chapter. Criminal Division, the matter will be the notice, or if no answer is filed (b) Opening. The immigration judge expeditiously referred to the Deputy within the thirty-day period, or if no shall advise the respondent of the Attorney General for a final resolution. hearing is requested within such period, the district director shall rescind the nature of the proceeding and the legal In no circumstances shall the alien or adjustment of status previously granted, the relevant LEA have a right of appeal authority under which it is conducted; and no appeal shall lie from his from any decision to deny. A denial of advise the respondent of his or her right decision. an adjustment application under this to representation, at no expense to the paragraph may not be renewed in § 246.3 Allegations contested or denied; Government, by counsel or subsequent removal proceedings. hearing requested. representative of his or her own choice If, within the prescribed time qualified under part 292 of this chapter 120. Part 246 is revised to read as and require him or her to state then and follows: following service of the notice pursuant to § 246.1, the respondent has filed an there whether he or she desires PART 246ÐRESCISSION OF answer which contests or denies any representation; advise the respondent ADJUSTMENT OF STATUS allegation in the notice, or a hearing is that he or she will have a reasonable requested, a hearing pursuant to § 246.5 opportunity to examine and object to Sec. shall be conducted by an immigration the evidence against him or her, to 246.1 Notice. judge, and the requirements contained present evidence in his or her own 246.2 Allegations admitted; no answer in §§ 240.3, 240.4, 240.5, 240.6, 240.7, behalf, and to cross-examine witnesses filed; no hearing requested. and 240.9 of this chapter shall be presented by the Government; place the 246.3 Allegations contested or denied; respondent under oath; read the hearing requested. followed. 246.4 Immigration judge’s authority; allegations in the notice to the § 246.4 Immigration judge's authority; respondent and explain them in withdrawal and substitution. withdrawal and substitution. nontechnical language, and enter the 246.5 Hearing. In any proceeding conducted under 246.6 Decision and order. notice and respondent’s answer, if any, this part, the immigration judge shall 246.7 Appeals. as exhibits in the record. have authority to interrogate, examine, 246.8 [Reserved] (c) Pleading by respondent. The 246.9 Surrender of Form I–551. and cross-examine the respondent and other witnesses, to present and receive immigration judge shall require the Authority: Authority: 8 U.S.C. 1103, 1254, evidence, to determine whether respondent to state for the record 1255, 1256, 1259; 8 CFR part 2. adjustment of status shall be rescinded, whether he or she admits or denies the § 246.1 Notice. to make decisions thereon, including an allegations contained in the notice, or appropriate order, and to take any other any of them, and whether he or she If it appears to a district director that action consistent with applicable concedes that his or her adjustment of a person residing in his or her district provisions of law and regulations as status should be rescinded. If the was not in fact eligible for the may be appropriate to the disposition of respondent admits all of the allegations adjustment of status made in his or her the case. Nothing contained in this part and concedes that the adjustment of case, a proceeding shall be commenced shall be construed to diminish the status in his or her case should be by the personal service upon such authority conferred on immigration rescinded under the allegations set forth person of a notice of intent to rescind judges by the Act. The immigration in the notice, and the immigration judge which shall inform him or her of the judge assigned to conduct a hearing is satisfied that no issues of law or fact allegations upon which it is intended to shall, at any time, withdraw if he or she remain, he or she may determine that rescind the adjustment of his or her deems himself or herself disqualified. If rescission as alleged has been status. In such a proceeding the person a hearing has begun but no evidence has established by the respondent’s shall be known as the respondent. The been adduced other than the notice and admissions. The allegations contained notice shall also inform the respondent answer, if any, pursuant to §§ 246.1 and in the notice shall be taken as admitted that he or she may submit, within thirty 246.2, or if an immigration judge when the respondent, without days from the date of service of the becomes unavailable to complete his or reasonable cause, fails or refuses to notice, an answer in writing under oath her duties within a reasonable time, or setting forth reasons why such attend or remain in attendance at the if at any time the respondent consents hearing. rescission shall not be made, and that he to a substitution, another immigration or she may, within such period, request judge may be assigned to complete the § 246.6 Decision and order. a hearing before an immigration judge in case. The new immigration judge shall The decision of the immigration judge support of, or in lieu of, his or her familiarize himself or herself with the may be oral or written. The formal written answer. The respondent shall record in the case and shall state for the enumeration of findings is not required. further be informed that he or she may record that he or she is familiar with the have the assistance of or be represented record in the case. The order shall direct either that the by counsel or representative of his or proceeding be terminated or that the her choice qualified under part 292 of § 246.5 Hearing. adjustment of status be rescinded. this chapter, at no expense to the (a) Service counsel. The Government Service of the decision and finality of Government, in the preparation of his or shall be represented at the hearing by a the order of the immigration judge shall her answer or in connection with his or Service counsel who shall have be in accordance with, and as stated in her hearing, and that he or she may authority to present evidence, and to §§ 240.13 (a) and (b) and 240.14 of this present such evidence in his or her interrogate, examine, and cross-examine chapter. 10386 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

§ 246.7 Appeals. application is denied, of the reasons exception, the vessel must either be a Pursuant to 8 CFR part 3, an appeal therefor. If the application is granted, a tanker or be transporting dry bulk cargo shall lie from a decision of an Form I–551, showing that the applicant that qualifies as hazardous. All tankers immigration judge under this part to the has acquired the status of an alien qualify for the hazardous cargo Board of Immigration Appeals. An lawfully admitted for permanent exception, except for a tanker that has appeal shall be taken within 30 days residence, shall not be issued until the been gas-freed to load non-hazardous after the mailing of a written decision or applicant surrenders any other dry bulk commodities. the stating of an oral decision. The document in his or her possession (A) To invoke the exception for reasons for the appeal shall be evidencing compliance with the alien tankers, the master or agent shall note specifically identified in the Notice of registration requirements of former or on the manifest that the vessel is a Appeal (Form EOIR 26); failure to do so existing law. No appeal shall lie from qualifying tanker. may constitute a ground for dismissal of the denial of an application by the (B) If the vessel is transporting dry the appeal by the Board. district director. However, an alien, bulk hazardous cargo, the master or other than an arriving alien, may renew § 246.8 [Reserved] agent shall note on the manifest that the the denied application in proceedings vessel’s dry bulk cargo is hazardous and § 246.9 Surrender of Form I±551. under 8 CFR part 240. shall show the immigration officer the A respondent whose status as a dangerous cargo manifest that is signed PART 251ÐARRIVAL MANIFESTS AND permanent resident has been rescinded by the master or an authorized LISTS: SUPPORTING DOCUMENTS in accordance with section 246 of the representative of the owner, and that Act and this part, shall, upon demand, 125. The authority citation for part under 46 CFR 148.02 must be kept in a promptly surrender to the district 251 is revised to read as follows: conspicuous place near the bridge director having administrative Authority: 8 U.S.C. 1103, 1182, 1221, 1281, house. jurisdiction over the office in which the 1282, 8 CFR part 2. (iv) If longshore work will be action under this part was taken, the performed under the prevailing practice 126. Section 251.1 is revised to read Form I–551 issued to him or her at the exception, the master or agent shall note as follows: time of the grant of permanent resident on the manifest each port at which status. § 251.1 Arrival manifests and lists. longshore work will be performed under (a) Vessels—(1) General. The master this exception. Additionally, for each PART 248ÐCHANGE OF port the master or agent shall note either NONIMMIGRANT CLASSIFICATION or agent of every vessel arriving in the United States from a foreign place or an that: 121. The authority citation for part outlying possession of the United States (A) The practice of nonimmigrant 248 continues to read as follows: shall present to the immigration officer crewmen doing longshore work is in Authority: 8 U.S.C. 1101, 1103, 1184, 1187, at the port where the immigration accordance with all collective 1258; 8 CFR part 2. inspection is performed a manifest of all bargaining agreements covering 30 percent or more of the longshore 122. Section 248.1 is amended by crewmen on board on Form I–418, workers in the port; revising paragraph (b)(4) to read as Passenger List and Crew List, in follows: accordance with the instructions (B) The port has no collective contained thereon. bargaining agreement covering 30 § 248.1 Eligibility. (2) Longshore work notations. The percent or more of the longshore * * * * * master or agent of the vessel shall workers in the port and an attestation (b) * * * indicate in writing immediately below has been filed with the Secretary of (4) The alien is not the subject of the name of the last alien listed on the Labor; removal proceedings under 8 CFR part Form I–418 whether or not crewmen (C) An attestation that was previously 240. aboard the vessel will be used to filed is still valid and the vessel * * * * * perform longshore work at any United continues to comply with the conditions States port before the vessel departs the stated in that attestation; or PART 249ÐCREATION OF RECORDS United States. (D) The longshore work consists of OF LAWFUL ADMISSION FOR (i) If no longshore work will be operating an automated, self-unloading PERMANENT RESIDENCE performed, no further notation regarding conveyor belt or a vacuum-actuated longshore work is required. system. 123. The authority citation for part (ii) If longshore work will be 249 is revised to read as follows: performed, the master or agent shall (v) If longshore work will be Authority: 8 U.S.C. 1103, 1182, 1259; 8 note which exception listed in section performed under the reciprocity CFR part 2. 258 of the Act permits the work. The exception, the master or agent shall note on the manifest that the work will be 124. Section 249.2 is amended by exceptions are: done under the reciprocity exception, revising the first sentence in paragraph (A) The hazardous cargo exception; and will note the nationality of the (a) and by revising paragraph (b), to read (B) The prevailing practice exception vessel’s registry and the nationality or as follows: in accordance with a port’s collective bargaining agreements; nationalities of the holders of a majority § 249.2 Application. (C) The prevailing practice exception of the ownership interest in the vessel. (a) Jurisdiction. An application by an at a port where there is no collective (3) Exception for certain Great Lakes alien, other than an arriving alien, who bargaining agreement, but for which the vessels. (i) A manifest shall not be has been served with a notice to appear vessel files an attestation; required for a vessel of United States, or warrant of arrest shall be considered (D) The prevailing practice exception Canadian, or British registry engaged only in proceedings under 8 CFR part for automated vessels; and solely in traffic on the Great Lakes or the 240. * * * (E) The reciprocity exception. St. Lawrence River and connecting (b) Decision. The applicant shall be (iii) If longshore work will be waterways, herein designated as a Great notified of the decision and, if the performed under the hazardous cargo Lakes vessel, unless: Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10387

(A) The vessel employs nonimmigrant of United States citizen crewmembers 418 completed in accordance with the crewmen who will do longshore work at and total number of alien crewmembers. instructions on the form. Submission of a port in the United States; or (c) Additional documents. The a Form I–418 that lacks any required (B) The vessel employs crewmen of master, captain, or agent shall prepare endorsement shall be regarded as lack of other than United States, Canadian, or as a part of the manifest, when one is compliance with section 251(c) of the British citizenship. required for presentation to an Act. (ii) In either situation, the master shall immigration officer, a completely (b) Exception for certain Great Lakes note the manifest in the manner executed set of Forms I–95, Conditional vessels. The required list need not be prescribed in paragraph (a)(2) of this Landing Permit, for each nonimmigrant submitted for Canadian or British section. alien crewman on board, except: crewmembers of Great Lakes vessels (iii) After submission of a manifest on (1) A Canadian or British citizen described in § 251.1(a)(3). the first voyage of a calendar year, a crewman serving on a vessel plying 129. Section 251.4 is revised to read manifest shall not be required on solely between Canada and the United as follows: subsequent arrivals unless a States; or nonimmigrant crewman of other than (2) A nonimmigrant crewman who is § 251.4 Departure manifests and lists for Canadian or British citizenship is in possession of an unmutilated Form I– aircraft. employed on the vessel who was not 184, Alien Crewman Landing Permit (a) United States Customs Service aboard and listed on the last prior and Identification Card, or an Form 7507 or International Civil manifest, or a change has occurred unmutilated Form I–95 with space for Aviation Organization’s General regarding the performance of longshore additional endorsements previously Declaration. The captain or agent of work in the United States by issued to him or her as a member of the every aircraft departing from the United nonimmigrant crewmen, or a change has crew of the same vessel or an aircraft of States for a foreign place or an outlying occurred in the exception that the the same line on his or her last prior possession of the United States, except master or agent of the vessel wishes to arrival in the United States, following on a flight departing for and terminating invoke which was not noted on the last which he or she departed from the in Canada, shall submit to the prior manifest. United States as a member of the crew immigration officer at the port from (4) The master or agent of a vessel that of the same vessel or an aircraft of the which such aircraft is to depart a only bunkers at a United States port en same line. completed United States Customs route to another United States port shall 127. Section 251.2 is revised to read Service Form 7507 or the International annotate Form I–418 presented at the as follows: Civil Aviation Organization’s General onward port to indicate the time, date, Declaration. The form shall contain a and place of bunkering. § 251.2 Notification of illegal landings. list of all alien crewmen on board, (5) If documentation is required to As soon as discovered, the master or including alien crewmen who arrived in support an exception, as described in agent of any vessel from which an alien the United States as crewmen on an § 258.2 of this chapter, it must crewman has illegally landed or aircraft of the same line and who are accompany the manifest. deserted in the United States shall departing as passengers. The surname, (b) Aircraft. The captain or agent of inform the immigration officer in charge given name, and middle initial of each every aircraft arriving in the United of the port where the illegal landing or such alien crewman listed shall be States from a foreign place or from an desertion occurred, in writing, of the shown. In addition, the captain or agent outlying possession of the United States, name, nationality, passport number and, of the aircraft shall indicate the total except an aircraft arriving in the United if known, the personal description, number of alien crewmembers and the States directly from Canada on a flight circumstances and time of such illegal total number of United States citizen originating in that country, shall present landing or desertion of such alien crewmembers. to the immigration officer at the port crewman, and furnish any other (b) Notification of changes in where the inspection is performed a information and documents that might employment for aircraft. The agent of manifest on United States Customs aid in his or her apprehension, the air transportation line shall Service Form 7507 or on the including any passport surrendered immediately notify in writing the International Civil Aviation pursuant to § 252.1(d) of this chapter. nearest immigration office of the Organization’s General Declaration of all Failure to file notice of illegal landing termination of employment in the the alien crewmembers on board, or desertion and to furnish any United States of each alien employee of including alien crewmembers who are surrendered passport within 24 hours of the line furnishing the name, birth date, returning to the United States after the time of such landing or desertion birthplace, nationality, passport taking an aircraft of the same line from becomes known shall be regarded as number, and other available information the United States to a foreign place or lack of compliance with section 251(d) concerning such alien. The procedure to alien crewmembers who are entering the of the Act. follow in obtaining permission to pay United States as passengers solely for 128. Section 251.3 is revised to read off or discharge an alien crewman in the the purpose of taking an aircraft of the as follows: United States after initial immigration same line from the United States to a inspection, other than an alien lawfully foreign port. The captain or agent of an § 251.3 Departure manifests and lists for admitted for permanent residence, is set vessels. aircraft that only refuels at the United forth in § 252.1(f) of this chapter. States en route to another United States (a) Form I–418, Passenger List-Crew 130. Section 251.5 is revised to read port must annotate the manifest List. The master or agent of every vessel as follows: presented at the onward port to indicate departing from the United States shall the time, date, and place of refueling. submit to the immigration officer at the § 251.5 Exemptions for private vessels and The surname, given name, and middle port from which such vessel is to depart aircraft. initial of each alien crewman listed also directly to some foreign place or The provisions of this part relating to shall be shown on the manifest. In outlying possession of the United States, submission of arrival and departure addition, the captain or agent of the except when a manifest is not required manifests and lists shall not apply to a aircraft shall indicate the total number pursuant to § 251.1(a), a single Form I– private vessel or a private aircraft not 10388 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations engaged directly or indirectly in the § 252.2 Revocation of conditional landing company during the current calendar carriage of persons or cargo for hire. permits; removal. year. (a) Revocation and removal while (b) Canadian or British vessels or PART 252ÐLANDING OF ALIEN vessel is in the United States. A tugboats. An alien crewman need not be CREWMEN crewman whose landing permit is presented for inspection if the alien 131. The authority citation for part subject to revocation pursuant to section crewman: (1) Serves aboard a Great Lakes vessel 252 is revised to read as follows: 252(b) of the Act may be taken into custody by any immigration officer of Canadian or British registry or aboard Authority: 8 U.S.C. 1103, 1184, 1258, 1281, a tugboat of Canadian or British registry 1282; 8 CFR part 2. without a warrant of arrest and be transferred to the vessel of arrival, if the arriving at a United States port-of-entry 132. Section 252.1 is amended by vessel is in any port in the United States from Canada; (2) Seeks admission for a period of revising paragraphs (a) through (c) to and has not departed foreign since the read as follows: less than 29 days; crewman was issued his or her (3) Has, during the current calendar § 252.1 Examination of crewmen. conditional landing permit. Detention year, been inspected and admitted by an (a) Detention prior to examination. and removal of the crewman shall be at immigration officer as a member of the All persons employed in any capacity the expense of the transportation line on crew of the same vessel or tugboat, or on board any vessel or aircraft arriving which the crewman arrived. Removal of any other vessel or tugboat of the in the United States shall be detained on may be effected on the vessel of arrival same company; board the vessel or at the airport of or, if the master of the vessel has (4) Is either a British or Canadian arrival by the master or agent of such requested in writing, by alternate means citizen or is in possession of a valid vessel or aircraft until admitted or if removal on the vessel of arrival is Form I–95 previously issued to him or otherwise permitted to land by an impractical. her as a member of the crew of the same officer of the Service. (b) Revocation and removal after vessel or tugboat, or of any other vessel (b) Classes of aliens subject to vessel has departed the United States. A or tugboat of the same company; examination under this part. The crewman who was granted landing (5) Does not request or require landing examination of every nonimmigrant privileges prior to April 1, 1997, and privileges in the United States beyond alien crewman arriving in the United who has not departed foreign on the the time the vessel or tugboat will be in States shall be in accordance with this vessel of arrival, or on another vessel or port; and, part except that the following classes of aircraft if such permission was granted (6) Will depart to Canada with the persons employed on vessels or aircraft pursuant to § 252.1(f), is subject to vessel or tugboat. shall be examined in accordance with removal proceedings under section 240 135. Section 252.4 is revised to read the provisions of 8 CFR parts 235 and of the Act as an alien deportable as follows: 240: pursuant to section 237(a)(1)(C)(i) of the § 252.4 Permanent landing permit and (1) Canadian or British citizen Act. A crewman who was granted identification card. crewmen serving on vessels plying landing privileges on or after April 1, A Form I–184 is valid until revoked. solely between Canada and the United 1997, and who has not departed foreign It shall be revoked when an immigration States; or on the vessel of arrival, or on another officer finds that the crewman is in the (2) Canadian or British citizen vessel or aircraft if such permission was United States in willful violation of the crewmen of aircraft arriving in a State granted pursuant to § 252.1(f), shall be terms and conditions of his or her of the United States directly from removed from the United States without permission to land, or that he or she is Canada on flights originating in that a hearing, except as provided in inadmissible to the United States. On country. The crew of a vessel arriving at § 208.2(b)(1) of this chapter. In either revocation, the Form I–184 shall be a United States port that may not case, if the alien is removed within 5 surrendered to an immigration officer. require inspection by or clearance from years of the date of landing, removal of No appeal shall lie from the revocation the United States Customs Service is, the crewman shall be at the expense of of Form I–184. nevertheless, subject to examination the owner of the vessel. In the case of 136. Section 252.5 is revised to read under this part; however, the master of a crewman ordered removed more than as follows: such a vessel is not required to present 5 years after the date of landing, Form I–95 for any crewman who is not removal shall be at the expense of the § 252.5 Special procedures for deserters an applicant for a conditional landing appropriation for the enforcement of the from Spanish or Greek ships of war. permit. Act. (a) General. Under E.O. 11267 of (c) Requirements for landing permits. 134. Section 252.3 is revised to read January 19, 1966 (31 FR 807) and 28 Every alien crewman applying for as follows: CFR 0.109, and E.O. 11300 of August 17, landing privileges in the United States 1966, (31 FR 11009), and 28 CFR 0.110, must make his or her application in § 252.3 Great Lakes vessels and tugboats the Commissioner and immigration person before an immigration officer, arriving in the United States from Canada; officers (as defined in § 103.1(j) of this present whatever documents are special procedures. chapter) are designated as ‘‘competent required, be photographed and (a) United States vessels and tugboats. national authorities’’ on the part of the fingerprinted as the district director may An immigration examination shall not United States within the meaning of require, and establish to the satisfaction be required of any crewman aboard a Article XXIV of the 1903 Treaty of of the immigration officer that he or she Great Lakes vessel of United States Friendship and General Relations is not inadmissible under any provision registry or a tugboat of United States between the United States and Spain (33 of the law and is entitled clearly and registry arriving from Canada at a port Stat. 2105, 2117), and ‘‘local beyond doubt to landing privileges in of the United States who has been authorities’’ and ‘‘competent officers’’ the United States. examined and admitted by an on the part of the United States within * * * * * immigration officer as a member of the the meaning of Article XIII of the 133. Section 252.2 is revised to read crew of the same vessel or tugboat or of Convention between the United States as follows: any other vessel or tugboat of the same and Greece (33 Stat. 2122, 2131). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10389

(b) Application for restoration. On arrange for his or her departure from the § 274a.12 Classes of aliens authorized to application of a Consul General, Consul, United States. accept employment. Vice-Consul, or Consular-Agent of the (d) Timely departure not effected. If (a) * * * Spanish or Greek Government, made in the Spanish authorities delay in sending (10) An alien granted withholding of writing pursuant to Article XXIV of the the individual home for more than 3 deportation or removal for the period of treaty, or Article XIII of the Convention, months, or if the Greek authorities delay time in that status, as evidenced by an respectively, stipulating for the in sending the individual home for more employment authorization document restoration of crewmen deserting, than 2 months, from the day of his or issued by the Service; stating that the person named therein her arrest, the individual shall be dealt * * * * * has deserted from a ship of war of that with as any other alien unlawfully in (12) An alien granted Temporary government, while in any port of the the United States under the removal Protected Status under section 244 of United States, and on proof by the provisions of the Act, as amended. the Act for the period of time in that exhibition of the register, crew list, or (e) Commission of crime. If the status, as evidenced by an employment official documents of the vessel, or a individual has committed any crime or authorization document issued by the copy or extract therefrom, duly certified, offense in the United States, he or she Service; or that the person named belonged, at the shall not be placed at the disposal of the * * * * * time of desertion, to the crew of such consul until after the proper tribunal (c) * * * vessel, such person shall be taken into having jurisdiction in his or her case (8) An alien who has filed a complete custody by any immigration officer shall have pronounced sentence, and application for asylum or withholding without a warrant of arrest. Written such sentence shall have been executed. of deportation or removal pursuant to 8 notification of charges shall be served PART 253—PAROLE OF ALIEN CFR part 208, whose application: on the alien when he or she is taken into (i) Has not been decided, and who is CREWMEN custody or as soon as practical eligible to apply for employment thereafter. 137. The authority citation for part authorization under § 208.7 of this (c) Examination. Within a reasonable 253 is revised to read as follows: chapter because the 150-day period set period of time after the arrest, the alien Authority: 8 U.S.C. 1103, 1182, 1282, 1283, forth in that section has expired. shall be accorded an examination by the 1285; 8 CFR part 2. Employment authorization may be district director, acting district director, granted according to the provisions of 138. In § 253.1, paragraph (f) is or the deputy district director having § 208.7 of this chapter in increments to revised to read as follows: jurisdiction over the place of arrest. The be determined by the Commissioner and alien shall be informed that he or she § 253.1 Parole. shall expire on a specified date; or may have the assistance of or be * * * * * (ii) Has been recommended for represented by a counsel or approval, but who has not yet received representative of his or her choice (f) Crewman, stowaway, or alien removable under section 235(c) alleging a grant of asylum or withholding or qualified under 8 CFR part 292 without deportation or removal; expense to the Government, and that he persecution. Any alien crewman, * * * * * or she may present such evidence in his stowaway, or alien removable under section 235(c) of the Act who alleges (10) An alien who has filed an or her behalf as may be relevant to this application for suspension of proceeding. If, upon the completion of that he or she cannot return to his or her country of nationality or last habitual deportation under section 244 of the Act such examination, it is determined that: (as it existed prior to April 1, 1997) or (1) The individual sought by the residence (if not a national of any cancellation of removal pursuant to Spanish or Greek authorities had country) because of fear of persecution section 240A of the Act. Employment deserted from a Spanish or Greek ship in that country on account of race, authorization shall be granted in of war in a United States port; religion, nationality, membership in a (2) The individual actually arrested particular social group, or political increments not exceeding one year and detained is the person sought; opinion, is eligible to apply for asylum during the period the application is (3) The individual is not a citizen of or withholding of removal under 8 CFR pending (including any period when an the United States; and part 208. Service officers shall take administrative appeal or judicial review (4) The individual had not previously particular care to ensure that the is pending) and shall expire on a been arrested for the same cause and set provisions of § 208.5(b) of this chapter specified date; at liberty because he or she had been regarding special duties toward aliens * * * * * detained for more than 3 months, or aboard certain vessels are closely (12) An alien granted benefits under more than 2 months in the case of a followed. the Family Unity provisions of section deserter from a Greek ship of war, from * * * * * 301 of IMMACT 90 and the provisions the day of his or her arrest without the of part 236, Subpart B of this chapter. Spanish or Greek authorities having PART 274aÐCONTROL OF * * * * * found an opportunity to send him or her EMPLOYMENT OF ALIENS (18) An alien against whom a final home, the individual shall be served order of deportation or removal exists 139. The authority citation for part with a copy of the findings, from which and who is released on an order of 274a continues to read as follows: no appeal shall lie, and be surrendered supervision under the authority forthwith to the Spanish or Greek Authority: 8 U.S.C. 1101, 1103, 1324a; 8 contained in section 241(a)(3) of the Act authorities if they are prepared to CFR part 2. may be granted employment remove him or her from the United 140. Section 274a.12 is amended by: authorization in the discretion of the States. On written request of the a. Revising paragraphs (a)(10) and district director only if the alien cannot Spanish or Greek authorities, the (12); be removed due to the refusal of all individual shall be detained, at their b. Revising paragraphs (c)(8) and (10); countries designated by the alien or expense, for a period not exceeding 3 c. Revising paragraph (c)(12); and by under section 241 of the Act to receive months or 2 months, respectively, from d. Revising paragraph (c)(18), to read the alien, or because the removal of the the day of arrest to afford opportunity to as follows: alien is otherwise impracticable or 10390 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations contrary to the public interest. arrested alien was entering, attempting § 287.5 Exercise of power by immigration Additional factors which may be to enter, or is present in the United officers. considered by the district director in States in violation of the immigration * * * * * adjudicating the application for laws, the examining officer will refer the (b) Power and authority to patrol the employment authorization include, but case to an immigration judge for further border. The following immigration are not limited to, the following: inquiry in accordance with 8 CFR parts officers who have successfully (i) The existence of economic 235, 239, or 240, order the alien completed basic immigration law necessity to be employed; removed as provided for in section enforcement training are hereby (ii) The existence of a dependent 235(b)(1) of the Act and § 235.3(b) of authorized and designated to exercise spouse and/or children in the United this chapter, or take whatever other the power to patrol the border conferred States who rely on the alien for support; action may be appropriate or required by section 287(a)(3) of the Act: and under the laws or regulations applicable (1) Border patrol agents, including (iii) The anticipated length of time to the particular case. aircraft pilots; before the alien can be removed from (c) Notifications and information. (2) Special agents; the United States. Except in the case of an alien subject to (3) Immigration inspectors (seaport * * * * * the expedited removal provisions of operations only); section 235(b)(1)(A) of the Act, an alien (4) Adjudications officers and PART 286ÐIMMIGRATION USER FEE arrested without warrant and placed in deportation officers when in the formal proceedings under section 238 or uniform of an immigration inspector 141. The authority citation for part and performing inspections or 286 continues to read as follows: 240 of the Act will be advised of the reasons for his or her arrest and the right supervising other immigration Authority: 8 U.S.C. 1103, 1356; 8 CFR part to be represented at no expense to the inspectors performing inspections 2. Government. The examining officer will (seaport operations only); 142. In § 286.9, paragraph (b)(3) is provide the alien with a list of the (5) Supervisory and managerial revised to read as follows: available free legal services provided by personnel who are responsible for organizations and attorneys qualified supervising the activities of those § 286.9 Fee for processing applications under 8 CFR part 3 and organizations officers listed in this paragraph; and and issuing documentation at land border (6) Immigration officers who need the Ports-of-Entry. recognized under § 292.2 of this chapter that are located in the district where the authority to patrol the border under * * * * * hearing will be held. The examining section 287(a)(3) of the Act in order to (b) * * * effectively accomplish their individual (3) A Mexican national in possession officer shall note on Form I–862 that such a list was provided to the alien. missions and who are designated, of a valid nonresident alien border individually or as a class, by the crossing card or nonimmigrant B–1/B–2 The officer will also advise the alien that any statement made may be used Commissioner. visa who is required to be issued Form (c) Power and authority to arrest—(1) against him or her in a subsequent I–94, Arrival/Departure Record, Arrests of aliens under section 287(a)(2) proceeding. pursuant to § 235.1(f) of this chapter, of the Act for immigration violations. must remit the required fee for issuance (d) Custody procedures. Unless The following immigration officers who of Form I–94 upon determination of voluntary departure has been granted have successfully completed basic admissibility. pursuant to subpart C of 8 CFR part 240, immigration law enforcement training a determination will be made within 24 * * * * * are hereby authorized and designated to hours of the arrest whether the alien exercise the arrest power conferred by PART 287ÐFIELD OFFICERS; will be continued in custody or released section 287(a)(2) of the Act and in POWERS AND DUTIES on bond or recognizance and whether a accordance with § 287.8(c): notice to appear and warrant of arrest as (i) Border patrol agents, including 143. The authority citation for part prescribed in 8 CFR parts 236 and 239 aircraft pilots; 287 continues to read as follows: will be issued. (ii) Special agents; Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 145. In § 287.4, paragraph (d) is (iii) Deportation officers; 1251, 1252, 1357; 8 CFR part 2. revised to read as follows: (iv) Immigration inspectors; (v) Adjudications officers; 144. Section 287.3 is revised to read § 287.4 Subpoena. as follows: (vi) Supervisory and managerial * * * * * personnel who are responsible for § 287.3 Disposition of cases of aliens (d) Invoking aid of court. If a witness supervising the activities of those arrested without warrant. neglects or refuses to appear and testify officers listed in this paragraph; and (a) Examination. An alien arrested as directed by the subpoena served (vii) Immigration officers who need without a warrant of arrest under the upon him or her in accordance with the the authority to arrest aliens under authority contained in section 287(a)(2) provisions of this section, the officer or section 287(a)(2) of the Act in order to of the Act will be examined by an immigration judge issuing the subpoena effectively accomplish their individual officer other than the arresting officer. If shall request the United States Attorney missions and who are designated, no other qualified officer is readily for the district in which the subpoena individually or as a class, by the available and the taking of the alien was issued to report such neglect or Commissioner. before another officer would entail refusal to the United States District (2) Arrests of persons under section unnecessary delay, the arresting officer, Court and to request such court to issue 287(a)(4) of the Act for felonies if the conduct of such examination is a an order requiring the witness to appear regulating the admission or removal of part of the duties assigned to him or her, and testify and to produce the books, aliens. The following immigration may examine the alien. papers, or documents designated in the officers who have successfully (b) Determination of proceedings. If subpoena. completed basic immigration law the examining officer is satisfied that 146. In § 287.5, paragraphs (b) through enforcement training are hereby there is prima facie evidence that the (f) are revised to read as follows: authorized and designated to exercise Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10391 the arrest power conferred by section enforcement of the immigration laws at the United States in violation of law. 287(a)(4) of the Act and in accordance the time of the arrest; When making an arrest, the designated with § 287.8(c): (C) There is a likelihood of the person immigration officer shall adhere to the (i) Border patrol agents, including escaping before a warrant can be provisions of the enforcement standard aircraft pilots; obtained for his or her arrest; and governing the conduct of arrests in (ii) Special agents; (D) The immigration officer has been § 287.8(c). (iii) Deportation officers; certified as successfully completing a (ii) The following immigration officers (iv) Immigration inspectors; training program that covers such who have successfully completed basic (v) Adjudications officers; arrests and the standards with respect to immigration law enforcement training (vi) Supervisory and managerial the enforcement activities of the Service are authorized and designated to personnel who are responsible for as defined in § 287.8. exercise the arrest power conferred by supervising the activities of those (ii) The following immigration officers section 274(a) of the Act: officers listed in this paragraph; and who have successfully completed basic (A) Border patrol agents, including (vii) Immigration officers who need immigration law enforcement training aircraft pilots; the authority to arrest persons under are hereby authorized and designated to (B) Special agents; section 287(a)(4) of the Act in order to exercise the arrest power conferred by (C) Deportation officers; effectively accomplish their individual section 287(a)(5)(B) of the Act and in (D) Immigration inspectors; missions and who are designated, accordance with § 287.8(c): (E) Adjudications officers when in the individually or as a class, by the (A) Border patrol agents, including uniform of an immigration inspector Commissioner with the approval of the aircraft pilots; and performing inspections or Deputy Attorney General. (B) Special agents; supervising other immigration (3) Arrests of persons under section (C) Deportation officers; inspectors performing inspections; 287(a)(5)(A) of the Act for any offense (D) Immigration inspectors (F) Supervisory and managerial against the United States. The following (permanent full-time immigration personnel who are responsible for immigration officers who have inspectors only); supervising the activities of those successfully completed basic (E) Adjudications officers when in the officers listed in this paragraph; and immigration law enforcement training uniform of an immigration inspector (G) Immigration officers who need the are hereby authorized and designated to and performing inspections or authority to arrest persons under section exercise the arrest power conferred by supervising other immigration 274(a) of the Act in order to effectively section 287(a)(5)(A) of the Act and in inspectors performing inspections; accomplish their individual missions accordance with § 287.8(c): (F) Supervisory and managerial and who are designated, individually or (i) Border patrol agents, including personnel who are responsible for as a class, by the Commissioner with the aircraft pilots; supervising the activities of those (ii) Special agents; approval of the Deputy Attorney officers listed in this paragraph; and General. (iii) Deportation officers; (G) Immigration officers who need the (iv) Immigration inspectors (6) Custody and transportation of authority to arrest persons under section (permanent full-time immigration previously arrested persons. In addition 287(a)(5)(B) of the Act in order to inspectors only); to the authority to arrest pursuant to a (v) Adjudications officers when in the effectively accomplish their individual warrant of arrest in paragraph (e)(3)(iv) uniform of an immigration inspector missions and who are designated, of this section, detention enforcement and performing inspections or individually or as a class, by the officers who have successfully supervising other immigration Commissioner with the approval of the completed basic immigration law inspectors performing inspections; Deputy Attorney General. enforcement training are hereby (vi) Supervisory and managerial (iii) Notwithstanding the authorized and designated to take and personnel who are responsible for authorization and designation set forth maintain custody of and transport any supervising the activities of those in paragraph (c)(4)(ii) of this section, no person who has been arrested by an officers listed in this paragraph; and immigration officer is authorized to immigration officer pursuant to (vii) Immigration officers who need make an arrest for any felony under the paragraphs (c)(1) through (c)(5) of this the authority to arrest persons under authority of section 287(a)(5)(B) of the section. section 287(a)(5)(A) of the Act in order Act until such time as he or she has (d) Power and authority to conduct to effectively accomplish their been certified by the Director of searches. The following immigration individual missions and who are Training as successfully completing a officers who have successfully designated, individually or as a class, by training course encompassing such completed basic immigration law the Commissioner with the approval of arrests and the standards for enforcement training are hereby the Deputy Attorney General. enforcement activities as defined in authorized and designated to exercise (4) Arrests of persons under section § 287.8. Such certification shall be valid the power to conduct searches conferred 287(a)(5)(B) of the Act for any felony. (i) for the duration of the immigration by section 287(c) of the Act: Section 287(a)(5)(B) of the Act officer’s continuous employment, unless (1) Border patrol agents, including authorizes designated immigration it is suspended or revoked by the aircraft pilots; officers, as listed in paragraph (c)(4)(iii) Commissioner or the Commissioner’s (2) Special agents; of this section, to arrest persons, designee for just cause. (3) Deportation officers; without warrant, for any felony (5) Arrests of persons under section (4) Immigration inspectors; cognizable under the laws of the United 274(a) of the Act who bring in, (5) Adjudications officers; States if: transport, or harbor certain aliens, or (6) Supervisory and managerial (A) The immigration officer has induce them to enter. (i) Section 274(a) personnel who are responsible for reasonable grounds to believe that the of the Act authorizes designated supervising the activities of those person to be arrested has committed or immigration officers, as listed in officers listed in this paragraph; and is committing such a felony; paragraph (c)(5)(ii) of this section, to (7) Immigration officers who need the (B) The immigration officer is arrest persons who bring in, transport, authority to conduct searches under performing duties relating to the or harbor aliens, or induce them to enter section 287(c) of the Act in order to 10392 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations effectively accomplish their individual 287(a) of the Act to execute warrants of they are individually qualified by missions and who are designated, arrest for administrative immigration training and experience to handle and individually or as a class, by the violations issued under section 236 of safely operate the firearms they are Commissioner. the Act or to execute warrants of permitted to carry, maintain proficiency (e) Power and authority to execute criminal arrest issued under the in the use of such firearms, and adhere warrants—(1) Search warrants. The authority of the United States: to the provisions of the enforcement following immigration officers who (i) Border patrol agents, including standard governing the use of force in have successfully completed basic aircraft pilots; § 287.8(a): immigration law enforcement training (ii) Special agents; (1) Border patrol agents, including are hereby authorized and designated to (iii) Deportation officers; aircraft pilots; exercise the power conferred by section (iv) Detention enforcement officers (2) Special agents; 287(a) of the Act to execute a search (warrants of arrest for administrative (3) Deportation officers; warrant: immigration violations only); (4) Detention enforcement officers; (i) Border patrol agents, including (v) Immigration inspectors; (5) Immigration inspectors; (6) Adjudications officers when in the aircraft pilots; (vi) Adjudications officers when in (ii) Special agents; the uniform of an immigration inspector uniform of an immigration inspector (iii) Supervisory and managerial and performing inspections or and performing inspections or personnel who are responsible for supervising other immigration supervising other immigration supervising the activities of those inspectors performing inspections; inspectors performing inspections; (7) Supervisory and managerial officers listed in this paragraph, and (vii) Supervisory and managerial personnel who are responsible for (iv) Immigration officers who need the personnel who are responsible for supervising the activities of those authority to execute search warrants supervising the activities of those officers listed in this paragraph; and under section 287(a) of the Act in order officers listed in this paragraph; and (8) Immigration officers who need the to effectively accomplish their (viii) Immigration officers who need authority to carry firearms under section individual missions and who are the authority to execute arrest warrants 287(a) of the Act in order to effectively designated, individually or as a class, by for immigration violations under section accomplish their individual missions the Commissioner with the approval of 287(a) of the Act in order to effectively and who are designated, individually or the Deputy Attorney General. accomplish their individual missions as a class, by the Commissioner with the (2) Issuance of arrest warrants for and who are designated, individually or approval of the Deputy Attorney immigration violations. A warrant of as a class, by the Commissioner, for General. arrest may be issued only by the warrants of arrest for administrative immigration violations, and with the 147. Section 287.7 is revised to read following immigration officers: as follows: (i) District directors (except foreign); approval of the Deputy Attorney (ii) Deputy district directors (except General, for warrants of criminal arrest. § 287.7 Detainer provisions under section foreign); (4) Service of warrant of arrests for 287(d)(3) of the Act. (iii) Assistant district directors for non-immigration violations. The (a) Detainers in general. Detainers are investigations; following immigration officers who issued pursuant to sections 236 and 287 (iv) Deputy assistant district directors have successfully completed basic of the Act and this chapter. Any for investigations; immigration law enforcement training authorized Service official may at any (v) Assistant district directors for are hereby authorized and designated to time issue a Form I–247, Immigration deportation; exercise the power to execute warrants Detainer-Notice of Action, to any other (vi) Deputy assistant district directors of criminal arrest for non-immigration Federal, State, or local law enforcement for deportation; violations issued under the authority of agency. A detainer serves to advise (vii) Assistant district directors for the United States: another law enforcement agency that the examinations; (i) Border patrol agents, including Service seeks custody of an alien (viii) Deputy assistant district aircraft pilots; presently in the custody of that agency, directors for examinations; (ii) Special agents; for the purpose of arresting and (iii) Deportation officers; (ix) Officers in charge (except foreign); removing the alien. The detainer is a (iv) Supervisory and managerial (x) Assistant officers in charge (except request that such agency advise the personnel who are responsible for foreign); Service, prior to release of the alien, in supervising the activities of those (xi) Chief patrol agents; order for the Service to arrange to (xii) Deputy chief patrol agents; officers listed in this paragraph; and (v) Immigration officers who need the assume custody, in situations when (xiii) Associate chief patrol agents; gaining immediate physical custody is (xiv) Assistant chief patrol agents; authority to execute warrants of arrest for non-immigration violations under either impracticable or impossible. (xv) Patrol agents in charge; (b) Authority to issue detainers. The section 287(a) of the Act in order to (xvi) The Assistant Commissioner, following officers are authorized to effectively accomplish their individual Investigations; issue detainers: (xvii) Institutional Hearing Program missions and who are designated, (1) Border patrol agents, including directors; individually or as a class, by the aircraft pilots; (xviii) Area port directors; Commissioner with the approval of the (2) Special agents; (xix) Port directors; or Deputy Attorney General. (3) Deportation officers; (xx) Deputy port directors. (f) Power and authority to carry (4) Immigration inspectors; (3) Service of warrant of arrests for firearms. The following immigration (5) Adjudications officers; immigration violations. The following officers who have successfully (6) Supervisory and managerial immigration officers who have completed basic immigration personnel who are responsible for successfully completed basic enforcement training are hereby supervising the activities of those immigration law enforcement training authorized and designated to exercise officers listed in this paragraph; and are hereby authorized and designated to the power conferred by section 287(a) of (7) Immigration officers who need the exercise the power pursuant to section the Act to carry firearms provided that authority to issue detainers under Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10393 section 287(d)(3) of the Act in order to Service to issue a detainer for an alien 149. Section 299.1 is amended by: effectively accomplish their individual not otherwise detained by a criminal a. Revising the entries for Forms ‘‘I– missions and who are designated justice agency, such agency shall 147’’, ‘‘I–205’’, ‘‘I–246’’, ‘‘I–247’’, ‘‘I– individually or as a class, by the maintain custody of the alien for a 259’’, ‘‘I–284’’, ‘‘I–286’’, ‘‘I–291’’, ‘‘I– Commissioner. period not to exceed 48 hours, 296’’, ‘‘I–408’’, ‘‘I–541’’, ‘‘I–589’’, ‘‘I– (c) Availability of records. In order for excluding Saturdays, Sundays, and 775’’, ‘‘I–851’’, and ‘‘I–851A’’; the Service to accurately determine the holidays in order to permit assumption propriety of issuing a detainer, serving of custody by the Service. b. Removing the entries for Forms I– a notice to appear, or taking custody of (e) Financial responsibility for 122’’, ‘‘I–221’’, ‘‘I–259C’’, ‘‘I–290A’’, and an alien in accordance with this section, detention. No detainer issued as a result ‘‘I–444’’, and by the criminal justice agency requesting of a determination made under this c. Adding the entries for Forms ‘‘I– such action or informing the Service of chapter shall incur any fiscal obligation 94T’’, ‘‘I–99’’, ‘‘I–148’’, ‘‘I–160’’, ‘‘I– a conviction or act that renders an alien on the part of the Service, until actual 210’’, ‘‘I–213’’, ‘‘I–217’’, ‘‘I–220A’’, ‘‘I– inadmissible or removable under any assumption of custody by the Service, 220B’’, ‘‘I–241’’, ‘‘I–261’’, ‘‘I–270’’, ‘‘I– provision of law shall provide the except as provided in paragraph (d) of 275’’, ‘‘I–294’’, ‘‘I–407’’, ‘‘I–546’’, ‘‘I– Service with all documentary records this section. 701’’, ‘‘I–770’’, ‘‘I–771’’, ‘‘I–826’’, ‘‘I– and information available from the 827B’’, ‘‘I–860’’, ‘‘I–862’’, ‘‘I–863’’, ‘‘I– agency that reasonably relates to the PART 299ÐIMMIGRATION FORMS 867AB’’, and ‘‘I–869’’ in proper alien’s status in the United States, or numerical sequence, to the listing of that may have an impact on conditions 148. The authority citation for part forms, to read as follows: of release. 299 continues to read as follows: (d) Temporary detention at Service Authority: 8 U.S.C. 1101, 1103; 8 CFR part § 299.1 Prescribed forms. request. Upon a determination by the 2. * * * * *

Form No. Edition date Title

******* I±94T ...... 09±22±87 ...... Arrival-Departure Record (Transit without visa). ******* I±99 ...... 04±01±97 ...... Notice of Revocation and Penalty. ******* I±147 ...... 04±01±97 ...... Notice of Temporary Inadmissibility to U.S. I±148 ...... 04±01±97 ...... Notice of Permanent Inadmissibility. I±160 ...... 04±01±97 ...... Notice of Parole/Lookout Intercept. ******* I±205 ...... 04±01±97 ...... Warrant of Removal. I±210 ...... 04±01±97 ...... Notice of ActionÐVoluntary Departure. ******* I±213 ...... 04±01±97 ...... Record of Deportable/Inadmissible Alien. I±217 ...... 04±01±97 ...... Information for Travel Document or Passport. I±220A ...... 04±01±97 ...... Order of Release on Recognizance. I±220B ...... 04±01±97 ...... Order of Supervision. ******* I±241 ...... 04±01±97 ...... Request for Travel Document to Country Designated by Alien. ******* I±246 ...... 04±01±97 ...... Application for Stay of Removal. I±247 ...... 04±01±97 ...... Immigration DetainerÐNotice of Action. I±259 ...... 04±01±97 ...... Notice to Detain, Deport, Remove, or Present Aliens. ******* I±261 ...... 04±01±97 ...... Additional Charges of Removability. I±270 ...... 04±01±97 ...... Request for Consent to Return Person to Canada. I±275 ...... 04±01±97 ...... Withdrawal of Application/Consular Notification. I±284 ...... 04±01±97 ...... Notice to Transportation Line Regarding Deportation and Detention Expenses of De- tained Alien. I±286 ...... 04±01±97 ...... Notification to Alien of Conditions of Release or Detention. ******* I±291 ...... 04±01±97 ...... Decision on Application for Status as Permanent Resident. ******* I±294 ...... 04±01±97 ...... Notice of Country to Which Deportation has been Directed and Penalty for Reentry without Permission. I±296 ...... 04±01±97 ...... Notice to Alien Ordered Removed. ******* I±407 ...... 04±01±97 ...... Abandonment by Alien of Status as Lawful Permanent Resident. I±408 ...... 04±01±97 ...... Application to Pay Off or Discharge Alien Crewman. 10394 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Form No. Edition date Title

******* I±541 ...... 04±01±97 ...... Order of Denial of Application for Extension of Stay or Student Employment or Student Transfer. ******* I±546 ...... 04±01±97 ...... Order to AppearÐDeferred Inspection. ******* I±589 ...... 04±01±97 ...... Application for Asylum and Withholding of Removal. ******* I±701 ...... 04±01±97 ...... Detainee Transfer Worksheet. ******* I±770 ...... 04±01±97 ...... Notice of Rights and Request for Disposition. I±771 ...... 04±01±97 ...... Bond Computation Worksheet. I±775 ...... 04±01±97 ...... Visa Waiver Pilot Program Agreement. ******* I±826 ...... 04±01±97 ...... Notice of Rights and Request for Disposition I±851 ...... 04±01±97 ...... Notice of Intent to Issue Final Administrative Removal Order. I±851A ...... 04±01±97 ...... Final Administrative Removal Order. ******* I±860 ...... 04±01±97 ...... Notice and Order of Expedited Removal. I±862 ...... 04±01±97 ...... Notice to Appear. I±863 ...... 04±01±97 ...... Notice of Referral to Immigration Judge. I±867AB ...... 04±01±97 ...... Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act. I±869 ...... 04±01±97 ...... Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. *******

150. Section 299.5 is amended by: a. Removing the entry for Form ‘‘I–259C’’; and by b. Revising the entries for Forms ‘‘I–246’’ and ‘‘I–589’’, and to read as follows: § 299.5 Display of control numbers. * * * * *

Currently assigned INS form no. INS form title OMB con- trol no.

******* I±246 Application for Stay of Removal ...... 1115±0055 ******* I±589 Application for Asylum and Withholding of Removal ...... 1115±0086 *******

PART 316ÐGENERAL status as a lawful permanent resident CFR part 239 (including a charging REQUIREMENTS FOR and, therefore, disrupts the continuity of document issued to commence NATURALIZATION residence for purposes of this part. proceedings under sections 236 or 242 * * * * * of the Act prior to April 1, 1997) shall 151. The authority citation for part be regarded as a warrant of arrest. 316 is revised to read as follows: PART 318ÐPENDING REMOVAL Authority: 8 U.S.C. 1103, 1181, 1182, 1443, PROCEEDINGS PART 329ÐSPECIAL CLASSES OF 1447; 8 CFR part 2. PERSONS WHO MAY BE 153. The heading for part 318 is NATURALIZED: NATURALIZATION 152. Section 316.5 is amended by revised as set forth above. BASED UPON ACTIVE DUTY SERVICE revising paragraph (c)(3) to read as 154. The authority citation for part IN THE UNITED STATES ARMED follows: 318 is revised to read as follows: FORCES DURING SPECIFIED § 316.5 Residence in the United States. Authority: 8 U.S.C. 1103, 1252, 1429, 1443; PERIODS OF HOSTILITIES * * * * * 8 CFR part 2. (c) * * * 155. Section 318.1 is revised to read 156. The authority citation for part (3) Removal and return. Any as follows: 329 is revised to read as follows: departure from the United States while Authority: 8 U.S.C. 1103, 1440, 1443; 8 under an order of removal (including § 318.1 Warrant of arrest. CFR part 2. previously issued orders of exclusion or For the purposes of section 318 of the deportation) terminates the applicant’s Act, a notice to appear issued under 8 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10395

159 Section 329.2 is amended by revising paragraph (e)(3) to read as follows: § 329.2 Eligibility. * * * * * (e) * * * (3) The applicant may be naturalized even if an outstanding notice to appear pursuant to 8 CFR part 239 (including a charging document issued to commence proceedings under sections 236 or 242 of the Act prior to April 1, 1997) exists. Dated: February 26, 1997. Janet Reno, Attorney General. [FR Doc. 97–5250 Filed 2–28–97; 3:29 pm] BILLING CODE 4410±10±P federal register March 6,1997 Thursday Direct GrantPrograms;FinalRule 34 CFRPart75,etal. Education Department of Part III 10397 10398 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

DEPARTMENT OF EDUCATION elsewhere in this preamble. The other Moreover, these two commenters changes are minor editorial and believed that the new approach would 34 CFR Parts 75, 206, 231, 235, 369, technical revisions. Some of these result in lower quality applications and 371, 373, 375, 376, 378, 380, 381, 385, revisions required that certain sections projects. They objected to the approach 386, 387, 388, 389, 390, 396, 610, 612, be renumbered or relettered, and, unless on the grounds that, without a set of and 630 otherwise noted, references to these permanently established criteria, sections elsewhere in this preamble use applicants could not begin to prepare RIN 1880±AA74 the new numbers and letters, as applications in advance of the Direct Grant Programs appropriate. announcement of a competition. They Potential applicants are reminded that also believed the general menu of AGENCY: Department of Education. selection criteria, including any specific selection criteria would not provide ACTION: Final regulations. factors under those criteria, for a enough program-specific information for particular program will be announced in an applicant to prepare a quality SUMMARY: The Secretary amends the the application package or in a notice application. Finally, they believed that Education Department General published in the Federal Register. the new approach would favor large Administrative Regulations (EDGAR) applicant organizations with a general that govern discretionary grant programs Analysis of Comments and Changes mission able to engage in general administered directly by the In response to the Secretary’s activities. Department. These amendments reduce invitation to comment in the NPRM, Discussion: The Department believes the need for specific regulations fewer than 10 parties submitted that potential grant applicants will have governing individual programs while comments on the proposed regulations. an adequate opportunity to comment on ensuring that proposed projects meet An analysis follows of the comments its choice of selection criteria for a the highest standards of professional and of the changes in the regulations particular program under the excellence. These amendments establish since publication of the NPRM. procedures required by the Paperwork Reduction Act (PRA). Comments new selection criteria and make Major issues are grouped according to submitted under the PRA will be additional changes to allow these new subject, with appropriate sections of the reviewed not only by the Department, selection criteria to be used in a variety regulations referenced in parentheses. but also by the Office of Management of circumstances. Also, these Technical and other minor changes— and Budget (OMB), and they will be amendments would remove a number of and suggested changes that the given careful consideration. Moreover, regulations made unnecessary by the Secretary is not legally authorized to the Department welcomes comments amendments. make under the applicable statutory and suggestions on selection criteria, EFFECTIVE DATE: These regulations take authority or are outside the scope of the and the application process generally, effect April 7, 1997, except the removal NPRM—generally are not addressed. of 34 CFR Part 630 which takes effect on apart from the specific requirements of October 1, 1997. New Approach to Selection Criteria the PRA and formal opportunity to (§ 75.200 and § 75.210) comment. Potential applicants, grantees, FOR FURTHER INFORMATION CONTACT: program beneficiaries, and others are Margo Anderson, U.S. Department of Comment: The majority of encouraged to advise the program about Education, 555 New Jersey Avenue, commenters favored the changes to their experience with the selection NW., Washington, D.C. 20208-5530. EDGAR and the Department’s efforts to criteria, and to provide Telephone: (202) 219–2005. Individuals improve the general selection criteria. recommendations for criteria for future who use a telecommunications device Some commenters praised specific competitions at any time, for the for the deaf (TDD) may call the Federal additions and others lauded generally program office’s use in designing Information Relay Service (FIRS) at 1– the new approach to tailoring selection selection criteria. 800–877–8339, between 8 a.m. and 8 criteria for each particular competition. Fears that the new approach will p.m., Eastern time, Monday through These commenters agreed that the new allow the Secretary to supersede Friday. approach would result in improvements statutory provisions or program-specific SUPPLEMENTARY INFORMATION: On July in the grant application and evaluation regulations are misplaced. The Secretary 16, 1996, the Secretary published a process. is bound by statutory provisions. In notice of proposed rulemaking (NPRM) There were two commenters, evaluating applications, the Department for these amendments in the Federal however, who disagreed with the must adhere to selection criteria or other Register (61 FR 37184). proposed menu approach to selection provisions related to the evaluation of The NPRM explained why the criteria. These commenters criticized applications required by statute. In Department developed a new approach the approach because the public would addition, the Department intends that to EDGAR selection criteria and how the not be afforded the opportunity to programs will use the new approach in Department would use the new criteria. comment formally on the Department’s conjunction with the statute and Also, the NPRM discussed other choice of selection criteria for a program-specific regulations, not changes the Secretary believes are particular competition. These instead of them. necessary to permit full use of the commenters believed that the public’s Rather than leading to arbitrary flexibility available through the new opportunity to comment under the decision-making, the new approach approach to EDGAR selection criteria. Paperwork Reduction Act of 1995 should lead to better focused and higher For a more detailed discussion of the would be inadequate. Also, they were quality decision-making. Because the major issues concerning these concerned that the new menu approach current EDGAR selection criteria are so amendments, see pages 37184–37186 of could lead to arbitrary decision-making general, the Department sometimes has the NPRM. by the Department’s program managers difficulty distinguishing those projects These final regulations contain one or that the Secretary would use the new that will best address statutory purposes significant change from the NPRM and flexibility to supersede statutory and Departmental priorities from those this change is fully explained in the provisions or program-specific that merely will address them. On the Analysis of Comments and Changes regulations. other hand, program-specific criteria Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10399 have often proved too narrow and weights to criteria on a competition by suffice. Although factor (xvi) does inflexible. By using the new approach, competition basis. These commenters encompass factors (xiv) and (xv), the the Department will be able to tailor the did not give any reasons in addition to Department would expect only one of selection criteria to favor projects that those already given for their opposition these factors to be used in a set of best address the purposes of the statute to the new menu approach to selection selection criteria for a particular and any priorities the Department may criteria. competition. The Secretary believes establish. The commenters in support of the (xiv) and (xv) are needed to emphasize The Secretary believes that the new entire approach also did not give any certain priorities in different program approach will lead to the selection of specific reasons for their support of the areas. Also, the need criterion higher quality projects and will not flexible allocation of points and (§ 75.210(a), as renumbered) and favor large applicant organizations. The weights. significance criterion (§ 75.210(b), as selection criteria are more focused on One commenter, however, specifically renumbered) are similar, but the need important project attributes than the recommended against limiting the criterion is better suited to programs existing EDGAR general selection number or percentage of points that that provide services, and the criteria. The Secretary believes that, if could be assigned to any particular significance criterion to programs that considered in the context of a specific criterion or factor. This commenter carry out demonstration projects. In a program and in conjunction with any thought that point weighting should be small number of cases, both criteria may applicable statutory provisions and flexible to address the priorities of a apply. program regulations, the selection particular grant program. The Secretary agrees that criteria will be clear and will give an Discussion: These amendments add §§ 75.210(b)(2)(ii)(xv) (as renumbered) applicant enough direction to prepare a only the flexibility of distributing and 388.20(a)(2)(iii) should be revised. quality application. Therefore, the weights among criteria and factors. The Changes: The Secretary changes and Secretary believes that large applicant Secretary previously amended the clarifies §§ 75.210(b)(2)(ii)(xv) and organizations that can carry out general EDGAR regulations to allow for the 388.20(a)(2)(iii). activities will not have an advantage. flexible allocation of points and for Application reviewers using the focused establishing a total maximum score on 34 CFR Parts 637, 658, 660, 661, and selection criteria in conjunction with a competition by competition basis (see 669 applicable statutory provisions and 60 FR 63872, December 12, 1995, Direct Comments: None. regulations will evaluate whether these Grant Programs). In promulgating that Discussion: In the NPRM, the large organizations can carry out the rule, the Secretary did not receive any Secretary proposed to remove the kind of high quality activities that best negative comments regarding points. selection criteria from 34 CFR parts 637 address the specific purposes and Some programs used the authority for (Minority Science Improvement priorities of the statute and the flexible point allocation and total Program), 658 (Undergraduate Department. maximum score and did not receive International Studies and Foreign The Secretary does not believe that negative comments. The Secretary Language Program), 660 (The the new approach will prevent potential believes this flexibility should continue. International Research and Studies applicants from beginning to prepare Changes: None. Program), 661 (Business and applications in advance of an International Education Program), and Similar or Overlapping Criteria and application announcement. Applicants 669 (Language Resource Centers Factors (§ 75.210) may begin work on the basis of statutory Program). The Secretary proposed purposes and requirements. In addition, Comments: A few commenters stated instead that these programs would use it is unlikely that the selection criteria that particular criteria were redundant, the new EDGAR menu of selection used in evaluating applications will overlap, or may only have subtle criteria to evaluate applications. Also, change from one year to the next for differences. Some of those commenters the Secretary proposed to make most programs. thought the criteria and factors should corresponding changes in other sections Additionally, in reviewing the be organized differently. Commenters of these parts to reflect the use of the proposed regulations, the Secretary made suggestions for rewording various EDGAR selection criteria. determined that it would be helpful to factors. The Secretary published a notice of make some minor clarifications to Commenters also pointed out factors proposed rulemaking (NPRM) in the § 75.200(b)(3) regarding what selection that were unclear or could be improved. Federal Register proposing that parts criteria the Secretary could use in Commenters stated that 637, 661, and 669 should be removed evaluating applications for new grants. § 75.210(b)(2)(xv) (as renumbered) was completely and that additional sections The Secretary further determined that overly restrictive and that the meaning in parts 658 and 660 should be § 75.200(b)(3)(iii) and § 75.210(a) (as of § 388.20(a)(2)(iii) was unclear. eliminated. (61 FR 52399, October 7, numbered in the NPRM) were Discussion: The Secretary has 1996). The Secretary currently is redundant. reworded and reorganized the criteria to reviewing the public comments on that Changes: The Secretary revises focus on an evaluation of the project to NPRM. Therefore, the Secretary has not § 75.200(b)(3) to clarify the selection be implemented and of key attributes of included changes to parts 637, 658, 660, criteria the Secretary may use in the project, rather than on an evaluation 661 and 669 in these final regulations. evaluating applications for new grants of how well the application is written. Changes: The Secretary is removing and removes redundant language from Although the entire menu of criteria all references to changes to 34 CFR parts § 75.210. and factors may seem to overlap or 637, 658, 660, 661, and 669. contain factors with only subtle New Approach to Allocating Points or differences, the Department will not use Clarifications Regarding Using the Weights (§ 75.201) all of the criteria and factors at one time. Selection Criteria (§ 75.201 and Comment: The commenters who did For example, one commenter thought § 75.210) not support the new menu approach to factors (xiv), (xv), and (xvi) of Comments: None. selection criteria also did not support § 75.210(b)(2)(as renumbered) were Discussion: In reviewing the proposed the approach of assigning points or redundant and that factor (xvi) should regulations, the Secretary determined 10400 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations that it would be helpful to make some any other agency or authority of the 34 CFR Part 381 minor clarifications regarding the use of United States. the selection criteria. The Secretary Based on the response to the proposed Advocacy, Disabled, Grants believes it is necessary to note in the rules and on its own review, the program—education. regulations that the Secretary informs Department has determined that the 34 CFR Part 385 applicants of the selection criteria regulations in this document do not chosen and the factors selected for require transmission of information that Disabled, Grants program—education, considering the selection criteria, if any, is being gathered by or is available from Occupational training, Training in the application package or a notice any other agency or authority of the programs, Vocational rehabilitation. published in the Federal Register. This United States. 34 CFR Part 386 information was included in the List of Subjects preamble to the NPRM, but not in the Disabled, Grants program—education, regulations. 34 CFR Part 75 Occupational training, Training The Secretary also believes it would Administrative practice and programs, Vocational education, be helpful to clarify in the regulations procedure, Continuation funding, Vocational rehabilitation. that certain factors are mandatory Education, Grant programs—education, 34 CFR Part 387 (§ 75.210 (d)(2) and (e)(2), as Grants administration, Incorporation by renumbered) if the applicable selection reference, Performance reports, Disabled, Grants program—education, criterion is chosen. Reporting and recordkeeping Occupational training, Training Changes: The Secretary amends the requirements, Unobligated funds. programs, Vocational education, language in § 75.201 to add a new Vocational rehabilitation. 34 CFR Part 206 paragraph specifying that the Secretary 34 CFR Part 388 informs applicants of the selection Administrative practice and criteria chosen and the factors selected procedure, Colleges and universities, Disabled, Grants program—education, for considering the selection criteria, if Educational study programs, Grants Occupational training, Training any, in the application package or a program—education, Migrant labor, programs, Vocational education, notice published in the Federal Students, Vocational education. Vocational rehabilitation. Register. Also, the Secretary amends the 34 CFR Part 231 34 CFR Part 390 language in § 75.210 to clarify that factors § 75.210 (d)(2) and (e)(2) (as Drug abuse, Elementary and Disabled, Grants program—education, renumbered) are mandatory factors that secondary education, Grants program— Occupational training, Training are always considered if selection education. programs, Vocational education, criteria § 75.210 (d) and (e) are chosen. 34 CFR Part 235 Vocational rehabilitation. Paperwork Reduction Act of 1995 Drug abuse, Elementary and 34 CFR Part 396 secondary education, Grants program— Blind, Deaf, Disabled, Grants Under the Paperwork Reduction Act education. of 1995, no persons are required to program—education, Occupational respond to a collection of information 34 CFR Part 369 training, Training programs, Vocational unless it displays a valid OMB control American Indians, Disabled, Grants education. number. The valid OMB control number program—education, Vocational 34 CFR Part 610 assigned to the collection of information rehabilitation. in these final regulations is displayed at Colleges and universities, Elementary the end of the affected section of the 34 CFR Part 371 and secondary education, Education of regulations. American Indians, Disabled, disadvantaged, Education of students Employment, Grants program— Intergovernmental Review with disabilities, Grant programs— education, Vocational rehabilitation. education. Many programs affected by these 34 CFR Part 373 regulations are subject to the 34 CFR Part 612 requirements of Executive Order 12372 Blind, Deaf, Disabled, Grants Colleges and universities, Drug abuse, and the regulations in 34 CFR Part 79. program—education, Vocational Grant programs—education. The objective of the Executive order is rehabilitation. 34 CFR Part 630 to foster an intergovernmental partner- 34 CFR Part 375 ship and a strengthened federalism by Disabled, Grants program—education, Colleges and universities, Grant relying on processes developed by State programs—education. and local governments for coordination Migrant labor, Vocational rehabilitation. Dated: February 26, 1997. and review of proposed Federal 34 CFR Part 376 financial assistance. (Catalog of Federal Domestic Assistance Disabled, Grants program—education, Number does not apply.) In accordance with the order, this Vocational rehabilitation, Youth. document is intended to provide early Richard W. Riley, notification of the Department’s specific 34 CFR Part 378 Secretary of Education. plans and actions for these programs. Arts and crafts, Disabled, Grants In accordance with general rulemaking authority under 20 U.S.C. Assessment of Educational Impact program—education, Hobbies, Recreation and recreation areas, 3474 adn 1221e–3, The Secretary In the notice of proposed rulemaking, Vocational rehabilitation. amends Parts 75, 206, 231, 235, 369, the Secretary requested comments on 371, 373, 375, 376, 378, 380, 381, 385, whether the proposed regulations would 34 CFR Part 380 386, 387, 388, 389, 390, 396, 610, 612, require transmission of information that Disabled, Grants program—education, and 630 of Title 34 of the Code of is being gathered by or is available from Vocational rehabilitation. Federal Regulations as follows: Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10401

PART 75ÐDIRECT GRANT § 75.210 General selection criteria. (vi) The potential contribution of the PROGRAMS In determining the selection criteria to proposed project to the development be used in each grant competition, the and advancement of theory, knowledge, 1. The authority citation for Part 75 Secretary may select one or more of the and practices in the field of study. continues to read as follows: following criteria and may select from (vii) The potential for generalizing Authority: 20 U.S.C. 1221–3 and 3474, among the list of optional factors under from the findings or results of the unless otherwise noted. each criterion. However, paragraphs proposed project. 2. Section 75.200(b)(3) is revised to (d)(2) and (e)(2) of this section are (viii) The extent to which the read as follows: mandatory factors under their respective proposed project is likely to yield criteria: findings that may be utilized by other § 75.200 How applications for new grants (a) Need for project. (1) The Secretary appropriate agencies and organizations. and cooperative agreements are selected considers the need for the proposed (ix) The extent to which the proposed for funding; standards for use of project. project is likely to build local capacity cooperative agreements. (2) In determining the need for the to provide, improve, or expand services * * * * * proposed project, the Secretary that address the needs of the target (b) * * * considers one or more of the following population. (3) To evaluate the applications for factors: (x) The extent to which the proposed new grants under the program the (i) The magnitude or severity of the project involves the development or Secretary may use: problem to be addressed by the demonstration of promising new (i) Selection criteria established under proposed project. strategies that build on, or are § 75.209. (ii) The magnitude of the need for the alternatives to, existing strategies. (xi) The likely utility of the products (ii) Selection criteria in program- services to be provided or the activities (such as information, materials, specific regulations. to be carried out by the proposed processes, or techniques) that will result (iii) Selection criteria established project. from the proposed project, including the under § 75.210. (iii) The extent to which the proposed potential for their being used effectively (iv) Any combination of criteria from project will provide services or in a variety of other settings. paragraphs (b)(3)(i), (b)(3)(ii), and otherwise address the needs of students (xii) The extent to which the results (b)(3)(iii) of this section. at risk of educational failure. of the proposed project are to be * * * * * (iv) The extent to which the proposed disseminated in ways that will enable 3. Section 75.201 is revised to read as project will focus on serving or others to use the information or follows: otherwise addressing the needs of strategies. disadvantaged individuals. § 75.201 How the selection criteria will be (xiii) The potential replicability of the used. (v) The extent to which specific gaps proposed project or strategies, or weaknesses in services, (a) In the application package or a including, as appropriate, the potential infrastructure, or opportunities have notice published in the Federal for implementation in a variety of been identified and will be addressed by Register, the Secretary informs settings. the proposed project, including the applicants of— (xiv) The importance or magnitude of nature and magnitude of those gaps or (1) The selection criteria chosen; and the results or outcomes likely to be weaknesses. (2) The factors selected for attained by the proposed project, (vi) The extent to which the proposed considering the selection criteria, if any. especially improvements in teaching project will prepare personnel for fields (b) If points or weights are assigned to and student achievement. in which shortages have been the selection criteria, the Secretary (xv) The importance or magnitude of demonstrated. informs applicants in the application the results or outcomes likely to be (b) Significance. (1) The Secretary package or a notice published in the attained by the proposed project, considers the significance of the Federal Register of— especially improvements in proposed project. (1) The total possible score for all of employment, independent living (2) In determining the significance of the criteria for a program; and services, or both, as appropriate. the proposed project, the Secretary (2) The assigned weight or the (xvi) The importance or magnitude of considers one or more of the following maximum possible score for each the results or outcomes likely to be factors: criterion or factor under that criterion. attained by the proposed project. (i) The national significance of the (c) If no points or weights are assigned (c) Quality of the project design. (1) proposed project. to the selection criteria and selected The Secretary considers the quality of (ii) The significance of the problem or factors, the Secretary evaluates each the design of the proposed project. issue to be addressed by the proposed criterion equally and, within each (2) In determining the quality of the project. criterion, each factor equally. design of the proposed project, the (iii) The potential contribution of the Secretary considers one or more of the (Authority: 20 U.S.C. 1221e–3 and 3474) proposed project to increased following factors: knowledge or understanding of (i) The extent to which the goals, § 75.209 [Amended] educational problems, issues, or objectives, and outcomes to be achieved 4. Section 75.209(a) is amended by effective strategies. by the proposed project are clearly removing ‘‘If a discretionary grant (iv) The potential contribution of the specified and measurable. program does not have implementing proposed project to increased (ii) The extent to which the design of regulations or has implementing knowledge or understanding of the proposed project is appropriate to, regulations that do not include selection rehabilitation problems, issues, or and will successfully address, the needs criteria, the’’ and by adding, instead, effective strategies. of the target population or other ‘‘The’’. (v) The likelihood that the proposed identified needs. 5. Section 75.210 is revised to read as project will result in system change or (iii) The extent to which there is a follows: improvement. conceptual framework underlying the 10402 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations proposed research or demonstration with similar or related efforts, and with practice among the recipients of those activities and the quality of that other appropriate community, State, and services. framework. Federal resources. (vi) The extent to which the training (iv) The extent to which the proposed (xvii) The extent to which the or professional development services to activities constitute a coherent, proposed project will establish linkages be provided by the proposed project are sustained program of research and with other appropriate agencies and likely to alleviate the personnel development in the field, including, as organizations providing services to the shortages that have been identified or appropriate, a substantial addition to an target population. are the focus of the proposed project. ongoing line of inquiry. (xviii) The extent to which the (vii) The likelihood that the services (v) The extent to which the proposed proposed project is part of a to be provided by the proposed project activities constitute a coherent, comprehensive effort to improve will lead to improvements in the sustained program of training in the teaching and learning and support achievement of students as measured field. rigorous academic standards for against rigorous academic standards. (vi) The extent to which the proposed students. (viii) The likelihood that the services project is based upon a specific research (xix) The extent to which the to be provided by the proposed project design, and the quality and proposed project encourages parental will lead to improvements in the skills appropriateness of that design, involvement. necessary to gain employment or build including the scientific rigor of the (xx) The extent to which the proposed capacity for independent living. studies involved. project encourages consumer (ix) The extent to which the services (vii) The extent to which the proposed involvement. to be provided by the proposed project research design includes a thorough, (xxi) The extent to which performance involve the collaboration of appropriate high-quality review of the relevant feedback and continuous improvement partners for maximizing the literature, a high-quality plan for are integral to the design of the effectiveness of project services. research activities, and the use of proposed project. (x) The extent to which the technical appropriate theoretical and (xxii) The quality of the methodology assistance services to be provided by the methodological tools, including those of to be employed in the proposed project. proposed project involve the use of (xxiii) The extent to which fellowship a variety of disciplines, if appropriate. efficient strategies, including the use of recipients or other project participants (viii) The extent to which the design technology, as appropriate, and the are to be selected on the basis of of the proposed project includes a leveraging of non-project resources. thorough, high-quality review of the academic excellence. (d) Quality of project services. (1) The (xi) The extent to which the services relevant literature, a high-quality plan to be provided by the proposed project for project implementation, and the use Secretary considers the quality of the services to be provided by the proposed are focused on those with greatest of appropriate methodological tools to needs. ensure successful achievement of project. (2) In determining the quality of the (xii) The quality of plans for project objectives. providing an opportunity for (ix) The quality of the proposed services to be provided by the proposed participation in the proposed project of demonstration design and procedures project, the Secretary considers the students enrolled in private schools. for documenting project activities and quality and sufficiency of strategies for (e) Quality of project personnel. (1) results. ensuring equal access and treatment for (x) The extent to which the design for eligible project participants who are The Secretary considers the quality of implementing and evaluating the members of groups that have the personnel who will carry out the proposed project will result in traditionally been underrepresented proposed project. information to guide possible based on race, color, national origin, (2) In determining the quality of replication of project activities or gender, age, or disability. project personnel, the Secretary strategies, including information about (3) In addition, the Secretary considers the extent to which the the effectiveness of the approach or considers one or more of the following applicant encourages applications for strategies employed by the project. factors: employment from persons who are (xi) The extent to which the proposed (i) The extent to which the services to members of groups that have development efforts include adequate be provided by the proposed project are traditionally been underrepresented quality controls and, as appropriate, appropriate to the needs of the intended based on race, color, national origin, repeated testing of products. recipients or beneficiaries of those gender, age, or disability. (xii) The extent to which the proposed services. (3) In addition, the Secretary project is designed to build capacity and (ii) The extent to which entities that considers one or more of the following yield results that will extend beyond the are to be served by the proposed factors: period of Federal financial assistance. technical assistance project demonstrate (i) The qualifications, including (xiii) The extent to which the design support for the project. relevant training and experience, of the of the proposed project reflects up-to- (iii) The extent to which the services project director or principal date knowledge from research and to be provided by the proposed project investigator. effective practice. reflect up-to-date knowledge from (ii) The qualifications, including (xiv) The extent to which the research and effective practice. relevant training and experience, of key proposed project represents an (iv) The likely impact of the services project personnel. exceptional approach for meeting to be provided by the proposed project (iii) The qualifications, including statutory purposes and requirements. on the intended recipients of those relevant training and experience, of (xv) The extent to which the proposed services. project consultants or subcontractors. project represents an exceptional (v) The extent to which the training or (f) Adequacy of resources. (1) The approach to the priority or priorities professional development services to be Secretary considers the adequacy of established for the competition. provided by the proposed project are of resources for the proposed project. (xvi) The extent to which the sufficient quality, intensity, and (2) In determining the adequacy of proposed project will be coordinated duration to lead to improvements in resources for the proposed project, the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10403

Secretary considers one or more of the (h) Quality of the project evaluation. PART 206ÐSPECIAL EDUCATIONAL following factors: (1) The Secretary considers the quality PROGRAMS FOR STUDENTS WHOSE (i) The adequacy of support, including of the evaluation to be conducted of the FAMILIES ARE ENGAGED IN MIGRANT facilities, equipment, supplies, and proposed project. AND OTHER SEASONAL other resources, from the applicant (2) In determining the quality of the FARMWORKÐHIGH SCHOOL organization or the lead applicant evaluation, the Secretary considers one EQUIVALENCY PROGRAM AND organization. COLLEGE ASSISTANCE MIGRANT or more of the following factors: (ii) The relevance and demonstrated PROGRAM commitment of each partner in the (i) The extent to which the methods proposed project to the implementation of evaluation are thorough, feasible, and 7. The authority citation for Part 206 and success of the project. appropriate to the goals, objectives, and continues to read as follows: (iii) The extent to which the budget is outcomes of the proposed project. Authority: 20 U.S.C. 1070d-2, unless adequate to support the proposed (ii) The extent to which the methods otherwise noted. project. of evaluation are appropriate to the 8. Section 206.30 is revised to read as (iv) The extent to which the costs are context within which the project follows: reasonable in relation to the objectives, operates. design, and potential significance of the § 206.30 How does the Secretary evaluate proposed project. (iii) The extent to which the methods an application? (v) The extent to which the costs are of evaluation provide for examining the The Secretary evaluates an reasonable in relation to the number of effectiveness of project implementation application under the procedures in 34 persons to be served and to the strategies. CFR Part 75. anticipated results and benefits. (iv) The extent to which the methods (Authority: 20 U.S.C. 1070d-2(a) and (e)) (vi) The potential for continued of evaluation include the use of support of the project after Federal objective performance measures that are § 206.31 [Removed] funding ends, including, as appropriate, clearly related to the intended outcomes 9. Section 206.31 is removed. the demonstrated commitment of of the project and will produce appropriate entities to such support. quantitative and qualitative data to the PART 231Ð[REMOVED] (vii) The potential for the extent possible. incorporation of project purposes, 10. Part 231 is removed. (v) The extent to which the methods activities, or benefits into the ongoing PART 235Ð[REMOVED] program of the agency or organization at of evaluation will provide timely the end of Federal funding. guidance for quality assurance. 11. Part 235 is removed. (g) Quality of the management plan. (vi) The extent to which the methods (1) The Secretary considers the quality of evaluation will provide performance PART 369ÐVOCATIONAL of the management plan for the feedback and permit periodic REHABILITATION SERVICE proposed project. assessment of progress toward achieving PROJECTS (2) In determining the quality of the intended outcomes. 12. The authority citation for Part 369 management plan for the proposed (vii) The extent to which the is revised to read as follows: project, the Secretary considers one or evaluation will provide guidance about more of the following factors: Authority: 29 U.S.C. 711(c), 732, 750, effective strategies suitable for (i) The adequacy of the management 777(a)(1), 777b, 777f and 795g, unless replication or testing in other settings. otherwise noted. plan to achieve the objectives of the proposed project on time and within (Approved by the Office of Management and § 369.1 [Amended] budget, including clearly defined Budget under control number 1875–0102) 13. Section 369.1 is amended by responsibilities, timelines, and (Authority: 20 U.S.C. 1221e-3 and 3474) removing paragraphs (b)(2) and (b)(4), milestones for accomplishing project 6. A new § 75.211 is added to read as by removing in paragraph (b)(3) ‘‘(34 tasks. CFR part 373)’’, in paragraph (b)(5) ‘‘(34 follows: (ii) The adequacy of procedures for CFR part 375)’’, and in paragraph (b)(7) ensuring feedback and continuous § 75.211 Selection criteria for unsolicited ‘‘(34 CFR part 378)’’, and by improvement in the operation of the applications. redesignating paragraphs (b)(3), (b)(5), proposed project. (b)(6), (b)(7), and (b)(8) as paragraphs (iii) The adequacy of mechanisms for (a) If the Secretary considers an (b)(2), (b)(3), (b)(4), (b)(5), and (b)(6) ensuring high-quality products and unsolicited application under 34 CFR respectively. services from the proposed project. 75.222(a)(2)(ii), the Secretary uses the (iv) The extent to which the time selection criteria and factors, if any, § 369.2 [Amended] commitments of the project director and used for the competition under which 14. Section 369.2 is amended by principal investigator and other key the application could have been funded. removing paragraphs (b) and (d) and by project personnel are appropriate and (b) If the Secretary considers an redesignating paragraphs (c), (e), (f), (g), adequate to meet the objectives of the unsolicited application under 34 CFR and (h) as paragraphs (b), (c), (d), (e), proposed project. 75.222(a)(2)(iii), the Secretary selects and (f) respectively. (v) How the applicant will ensure that from among the criteria in 75.210(b), a diversity of perspectives are brought to § 369.21 [Amended] and may select from among the specific bear in the operation of the proposed 15. Section 369.21 is amended by factors listed under each criterion, the project, including those of parents, removing ‘‘under 34 CFR parts 372, 373, teachers, the business community, a criteria that are most appropriate to 374, 375, 376, 378, or 379’’, and adding, variety of disciplinary and professional evaluate the activities proposed in the in its place, ‘‘covered by this part’’. fields, recipients or beneficiaries of application. 16. Section 369.30 is revised to read services, or others, as appropriate. (Authority: 20 U.S.C. 1221e-3 and 3474) as follows: 10404 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

§ 369.30 How does the Secretary evaluate PART 380ÐSPECIAL PROJECTS AND 35. Section 385.31 is revised to read an application? DEMONSTRATIONS FOR PROVIDING as follows: SUPPORTED EMPLOYMENT The Secretary evaluates an § 385.31 How does the Secretary evaluate application under the procedures in 34 SERVICES TO INDIVIDUALS WITH THE an application? CFR Part 75. MOST SEVERE DISABILITIES AND TECHNICAL ASSISTANCE PROJECTS (a) The Secretary evaluates (Authority: 29 U.S.C. 711(c)) applications under the procedures in 34 27. The authority citation for Part 380 CFR Part 75. § 369.31 [Removed] continues to read as follows: (b) The Secretary evaluates each application using selection criteria 17. Section 369.31 is removed. Authority: 29 U.S.C. 711(c) and 777a(c), unless otherwise noted. identified in parts 386, 387, 388, 389 § 369.32 [Amended] and 390, as appropriate. 28. Section 380.10 is revised to read (c) In addition to the selection criteria 18. Section 369.32 is amended by as follows: described in paragraph (b) of this removing ‘‘listed in § 369.31 and 34 CFR section, the Secretary evaluates each parts 371, 372, 373, 374, 375, 376, 378, § 380.10 How does the Secretary evaluate an application? application using— and 379’’, in the introductory text and (1) Selection criteria in 34 CFR adding, in its place, ‘‘used in The Secretary evaluates an 75.210; application under the procedures in 34 accordance with the procedures in 34 (2) Selection criteria established CFR Part 75. CFR part 75’’. under 34 CFR 75.209; or (Authority: 29 U.S.C. 777a(c)) (3) A combination of selection criteria § 369.42 [Amended] established under 34 CFR 75.209 and §§ 380.11, 380.12, and 380.13 [Removed] selection criteria in 34 CFR 75.210. 19. Section 369.42 paragraph (b) is 29. Sections 380.11, 380.12, and (Authority: 29 U.S.C. 711(c)) amended by removing ‘‘34 CFR parts 380.13 are removed. 371, 372, 373, 374, 375, 376, 378, or 30. Section 380.14 is revised to read § 385.32 [Removed] 379’’, and adding, in its place, ‘‘a as follows: 36. Section 385.32 is removed. program covered by this part’’. § 380.14 What other factors does the § 385.33 [Amended] PART 371ÐVOCATIONAL Secretary consider in reviewing an 37. Section 385.33 is amended by application? REHABILITATION SERVICE removing the number ‘‘385.32’’ in the PROJECTS FOR AMERICAN INDIANS In addition to the selection criteria introductory text and adding in its place WITH DISABILITIES used in accordance with the procedures the number ‘‘75.210’’. in 34 CFR Part 75, the Secretary, in 20. The authority citation for Part 371 making awards under this part, PART 386ÐREHABILITATION continues to read as follows: considers the geographical distribution TRAINING: REHABILITATION LONG- of projects in each program category Authority: 29 U.S.C. 711(c) and 750, unless TERM TRAINING throughout the country. otherwise noted. 38. The authority citation for Part 386 (Authority: 29 U.S.C. 777a(a)(1) and 777a(c)) continues to read as follows: § 371.30 [Removed] PART 381ÐPROTECTION AND Authority: 29 U.S.C. 711(c) and 774, unless 21. Section 371.30 is removed. ADVOCACY OF INDIVIDUAL RIGHTS otherwise noted. 39. Section 386.20 is revised to read PART 373Ð[REMOVED] 31. The authority citation for Part 381 as follows: continues to read as follows: 22. Part 373 is removed. Authority: 29 U.S.C. 794e, unless § 386.20 What additional selection criteria are used under this program? PART 375Ð[REMOVED] otherwise noted. 32. Section 381.20 is revised to read In addition to the criteria in 34 CFR 385.31(c), the Secretary uses the 23. Part 375 is removed. as follows: following additional selection criteria to PART 376ÐSPECIAL PROJECTS AND § 381.20 How does the Secretary evaluate evaluate an application: DEMONSTRATIONS FOR PROVIDING an application? (a) Relevance to State-Federal rehabilitation service program. (1) The TRANSITIONAL REHABILITATION In any fiscal year in which the Secretary reviews each application for SERVICES TO YOUTH WITH amount appropriated for the PAIR information that shows that the DISABILITIES program is less than $5,500,000, the Secretary evaluates applications under proposed project appropriately relates to the mission of the State-Federal 24. The authority citation for Part 376 the procedures in 34 CFR Part 75. rehabilitation service program. continues to read as follows: (Authority: 29 U.S.C. 711(c) and 794e (b) and (2) The Secretary looks for (f)) Authority: 29 U.S.C. 777a(b), unless information that shows that the project otherwise noted. § 380.21 [Removed] can be expected either— 33. Section 381.21 is removed. (i) To increase the supply of trained § 376.31 [Removed] personnel available to State and other 25. Section 376.31 is removed. PART 385ÐREHABILITATION public or nonprofit agencies involved in TRAINING the rehabilitation of individuals with PART 378Ð[REMOVED] physical or mental disabilities through 34. The authority citation for Part 385 degree or certificate granting programs; 26. Part 378 is removed. continues to read as follows: or Authority: 29 U.S.C. 711(c), 772, and 774, (ii) To improve the skills and quality unless otherwise noted. of professional personnel in the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10405 rehabilitation field in which the training rehabilitation of individuals with employment outcomes or otherwise is to be provided through the granting disabilities; or contribute to more effective of a degree or certificate. (ii) To maintain and improve the management of the State unit program; (b) Nature and scope of curriculum. skills and quality of rehabilitation (ii) That the State unit in-service (1) The Secretary reviews each workers. training plan responds to needs application for information that (b) Nature and scope of curriculum. identified in their training needs demonstrates the adequacy of the (1) The Secretary reviews each assessment and the proposed training proposed curriculum. application for information that relates to the unit’s State plan, (2) The Secretary looks for demonstrates the adequacy and scope of particularly the requirements in section information that shows— the proposed curriculum. 101(a)(7) of the Rehabilitation Act for (i) The scope and nature of the (2) The Secretary looks for each designated State unit to develop a coursework reflect content that can be information that shows that— comprehensive system of personnel expected to enable the achievement of (i) The scope and nature of the development; the established project objectives; training content can be expected to (iii) The need for in-service training (ii) The curriculum and teaching enable the achievement of the methods and materials that will methods provide for an integration of established project objectives of the improve the effectiveness of services to theory and practice relevant to the training project; individuals with disabilities assisted educational objectives of the program; (ii) The curriculum and teaching under the Rehabilitation Act and ensure (iii) There is evidence of methods provide for an integration of employment outcomes; and educationally focused practical and theory and practice relevant to the (iv) The State has conducted a needs other field experiences in settings that educational objectives of the program; assessment of the in-service training ensure student involvement in the (iii) There is evidence of needs for all of the State unit provision of vocational rehabilitation, educationally focused practicum or employees. supported employment, or independent other field experiences in settings that (b) [Reserved.] assure student involvement in the living rehabilitation services to (Authority: 29 U.S.C. 711(c), 770, and 771a) individuals with disabilities, especially provision of vocational rehabilitation or individuals with severe disabilities; independent living rehabilitation PART 389ÐREHABILITATION (iv) The coursework includes student services to individuals with disabilities, CONTINUING EDUCATION exposure to vocational rehabilitation, especially individuals with severe PROGRAMS supported employment, or independent disabilities; and living rehabilitation processes, (iv) The didactic coursework includes 44. The authority citation for Part 389 concepts, programs, and services; and student exposure to vocational continues to read as follows: (v) If applicable, there is evidence of rehabilitation or independent living Authority: 29 U.S.C. 711(c) and 774, unless current professional accreditation by the rehabilitation processes, concepts, otherwise noted. designated accrediting agency in the programs, and services. 45. Section 389.30 is revised to read professional field in which grant (Authority: 29 U.S.C. 711(c) and 774) as follows: support is being requested. PART 388ÐSTATE VOCATIONAL § 389.30 What additional selection (Authority: 29 U.S.C. 711(c) and 771a) REHABILITATION UNIT IN-SERVICE criterion is used under this program? PART 387ÐEXPERIMENTAL AND TRAINING In addition to the criteria in 34 CFR INNOVATIVE TRAINING 385.31(c), the Secretary uses the 42. The authority citation for Part 388 following additional selection criterion 40. The authority citation for Part 387 continues to read as follows: to evaluate an application: continues to read as follows: Authority: 29 U.S.C. 711(c) and 774, unless (a) Relevance to State-Federal otherwise noted. rehabilitation service program. Authority: 29 U.S.C. 711(c) and 774, unless 43. Section 388.20 is revised to read otherwise noted. (1) The Secretary reviews each as follows: application for information that shows 41. Section 387.30 is revised to read that the proposed project appropriately as follows: § 388.20 What additional selection criterion is used under this program? relates to the mission of the State- Federal rehabilitation service programs. § 387.30 What additional selection criteria In addition to the selection criteria in are used under this program? 34 CFR 385.31(c), the Secretary uses the (2) The Secretary reviews each In addition to the criteria in 34 CFR following additional selection criteria to application for information that shows 385.31(c), the Secretary uses the evaluate an application: that the proposed project includes an following additional selection criteria to (a) Evidence of need. (1) The Secretary assessment of the potential of existing evaluate an application: reviews each application for programs within the geographical area (a) Relevance to State-Federal information that shows that the need for (including State vocational rehabilitation service program. (1) The the in-service training has been rehabilitation unit in-service training) to Secretary reviews each application for adequately justified. meet the needs for which support is information that shows that the (2) The Secretary looks for sought. proposed project appropriately relates to information that shows— (3) The Secretary looks for the mission of the State-Federal (i) How the proposed project relates to information that shows that the rehabilitation service program. the mission of the State-Federal proposed project can be expected to (2) The Secretary looks for rehabilitation service program and can improve the competence of professional information that shows that the project be expected to improve the competence and other personnel in the rehabilitation can be expected either— of all State vocational rehabilitation agencies serving individuals with severe (i) To increase the supply of trained personnel in providing vocational disabilities. personnel available to public and rehabilitation services to individuals (6) [Reserved.] private agencies involved in the with disabilities that will result in (Authority: 29 U.S.C. 711(c)) 10406 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

PART 390ÐREHABILITATION SHORT- Authority: 29 U.S.C. 771a(f), unless (2) The training is appropriate to the TERM TRAINING otherwise noted. needs of both individuals who are deaf 49. Section 396.30 is revised to read and individuals who are deaf-blind and 46. The authority citation for Part 390 as follows: to the needs of public and private continues to read as follows: agencies that provide services to either § 396.30 How does the Secretary evaluate Authority: 29 U.S.C. 711(c) and 774, unless individuals who are deaf or individuals otherwise noted. an application? who are deaf-blind in the geographical (a) The Secretary evaluates 47. Section 390.30 is revised to read area to be served by the training project; as follows: applications under the procedures in 34 CFR Part 75. (3) There is a working relationship § 390.30 What additional selection (b) The Secretary evaluates each between the interpreter training project criterion is used under this program? application using selection criteria in and service providers; and In addition to the criteria in 34 CFR § 396.31. (4) There are opportunities for 385.31(c), the Secretary uses the (c) In addition to the selection criteria individuals who are deaf and following additional selection criterion described in paragraph (b) of this individuals who are deaf-blind to be to evaluate an application: section, the Secretary evaluates each involved in the training project. (a) Relevance to State-Federal application using— rehabilitation service program. (1) The (1) Selection criteria in 34 CFR (Authority: 29 U.S.C. 771a(f)) Secretary reviews each application for 75.210; information that shows that the (2) Selection criteria established § 396.32 [Amended] proposed project appropriately relates to under 34 CFR 75.209; or 51. Section 396.32 is amended by the mission of the State-Federal (3) A combination of selection criteria adding after the number ‘‘396.31’’ the rehabilitation service programs. established under 34 CFR 75.209 and cross-reference ‘‘and 34 CFR 75.210’’. (2) The Secretary looks for selection criteria in 34 CFR 75.210. information that shows that the (Authority: 29 U.S.C. 771a(f)) PART 610Ð[REMOVED] proposed project can be expected to improve the skills and competence of— 50. Section 396.31 is revised to read 52. Part 610 is removed. (i) Personnel engaged in the as follows: administration or delivery of § 396.31 What additional selection criteria PART 612Ð[REMOVED] rehabilitation services; and are used under this program? (ii) Others with an interest in the 53. Part 612 is removed. delivery of rehabilitation services. In addition to the criteria in 34 CFR (b) [Reserved.] 396.30(c), the Secretary uses the PART 630Ð[REMOVED] following additional selection criterion (Authority: 29 U.S.C. 711(c) and 774) to evaluate an application: 54. Part 630 is removed, effective (a) Demonstrated relationships with PART 396ÐTRAINING OF October 1, 1997. INTERPRETERS FOR INDIVIDUALS service providers and consumers. The Secretary reviews each application to [FR Doc. 97–5242 Filed 3–5–97; 8:45 am] WHO ARE DEAF AND INDIVIDUALS BILLING CODE 4000±01±P WHO ARE DEAF-BLIND determine the extent to which— (1) The proposed interpreter training 48. The authority citation for Part 396 project was developed in consultation continues to read as follows: with service providers; federal register March 6,1997 Thursday Iran Emergency Notice ofMarch5,1997ÐContinuation The President Part IV 10407

10409

Federal Register Presidential Documents Vol. 62, No. 44

Thursday, March 6, 1997

Title 3— Notice of March 5, 1997

The President Continuation of Iran Emergency

On March 15, 1995, by Executive Order 12957, I declared a national emer- gency with respect to Iran pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706) to deal with the threat to the national security, foreign policy, and economy of the United States constituted by the actions and policies of the Government of Iran, including its support for international terrorism, efforts to undermine the Middle East peace proc- ess, and acquisition of weapons of mass destruction and the means to deliver them. On May 6, 1995, I issued Executive Order 12959 imposing more comprehensive sanctions to further respond to this threat. Because the actions and policies of the Government of Iran continue to threaten the national security, foreign policy, and economy of the United States, the national emergency declared on March 15, 1995, must continue in effect beyond March 15, 1997. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing the national emergency with respect to Iran. Because the emergency declared by Executive Order 12957 constitutes an emergency separate from that de- clared on November 14, 1979, by Executive Order 12170, this renewal is distinct from the emergency renewal of October 1996. This notice shall be published in the Federal Register and transmitted to the Congress. œ–

THE WHITE HOUSE, March 5, 1997. [FR Doc. 97–5817 Filed 3–5–97; 11:46 am] Billing code 3195–01–P i

Reader Aids Federal Register Vol. 62, No. 44 Thursday, March 6, 1997

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MARCH

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 237...... 10312 For additional information 523±5227 238...... 10312 Presidential Documents Proclamations: 239...... 10312 6974...... 9677 240...... 10312 Executive orders and proclamations 523±5227 6975...... 9905 The United States Government Manual 523±5227 241...... 10312 6976...... 9907 242...... 10312 Executive Orders: 243...... 10312 Other Services 12958 (See Order of 244...... 10312 February 26, Electronic and on-line services (voice) 523±4534 245...... 10312 1997) ...... 9349 246...... 10312 Privacy Act Compilation 523±3187 13037...... 10185 248...... 10312 523±5229 TDD for the hearing impaired 12957 (Continued by 249...... 10312 Notice of March 5, 251...... 10312 ELECTRONIC BULLETIN BOARD 1997) ...... 10185 252...... 10312 12959 (See Notice of 253...... 10312 Free Electronic Bulletin Board service for Public Law numbers, March 5, 1997)...... 10185 274a...... 10312 Federal Register finding aids, and list of documents on public Administrative Orders: 286...... 10312 inspection. 202±275±0920 Order of February 21, 287...... 10312 FAX-ON-DEMAND 1997 ...... 9903 299...... 10312 Order of February 26, 316...... 10312 You may access our Fax-On-Demand service. You only need a fax 1997 ...... 9349 318...... 10312 machine and there is no charge for the service except for long Notice of March 5, 329...... 10312 distance telephone charges the user may incur. The list of 1997 ...... 10185 documents on public inspection and the daily Federal Register’s 9 CFR table of contents are available using this service. The document 5 CFR 78...... 10192 numbers are 7050-Public Inspection list and 7051-Table of Proposed Rules: Proposed Rules: Contents list. The public inspection list will be updated 551...... 9995 immediately for documents filed on an emergency basis. 92...... 9387 7 CFR 130...... 9387 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON FILE AND NOT THE ACTUAL DOCUMENT. Documents on 210...... 10187 12 CFR 220...... 10187 public inspection may be viewed and copied in our office located 208...... 9909 225...... 10187 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 226...... 10193 226...... 10187 telephone number is: 301±713±6905 344...... 9915 1910...... 9351 350...... 10199 1951...... 10118 FEDERAL REGISTER PAGES AND DATES, MARCH 1956...... 10118 14 CFR 9349±9678...... 3 1962...... 10118 1965...... 10118 21...... 9923 9679±9904...... 4 39 ...... 9359, 9361, 9679, 9925, Proposed Rules: 9905±10184...... 5 10201 1131...... 9381 10185±10410...... 6 71 ...... 9363, 9681, 9928 1717...... 9382 95...... 10202 8 CFR 97...... 9681, 9683 1...... 10312 Proposed Rules: 3...... 10312 39 ...9388, 9390, 10224, 10226, 103...... 10312 10228, 10231, 10233, 10236, 204...... 10312 10237, 10240 207...... 10312 71 ...... 9392, 9393, 9394, 9395, 208...... 10312 9396, 9397, 9398, 9399, 209...... 10312 9400, 9720, 9995 211...... 10312 15 CFR 212...... 10312 213...... 10312 746...... 9364 214...... 10312 216...... 10312 18 CFR 217...... 10312 284...... 10204 221...... 10312 223...... 10312 19 CFR 232...... 10312 Proposed Rules: 233...... 10312 7...... 9401 234...... 10312 10...... 9401 235...... 10312 145...... 9401 236...... 10312 173...... 9401 ii Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Reader Aids

174...... 9401 920...... 9932 385...... 10398 47 CFR 181...... 9401 925...... 9932 386...... 10398 1...... 9636 191...... 9401 926...... 9932 387...... 10398 2...... 9636 931...... 9932 388...... 10398 27...... 9636 21 CFR 934...... 9932 389...... 10398 32...... 10220 178...... 9365 935...... 9932 390...... 10398 53...... 10220, 10221 341...... 9684 936...... 9932 396...... 10398 59...... 9704 522...... 10219 938...... 9932 610...... 10398 68...... 9989 524...... 10220 943...... 9932 612...... 10398 73 ...... 9374, 9375, 9989, 9990, 558...... 9929 944...... 9932 630...... 10398 10222 Proposed Rules: 946...... 9932 97...... 9636 948...... 9932 35 CFR Chapter I...... 9721 Proposed Rules: 950...... 9932 2...... 10242 Proposed Rules: 36...... 9408 101...... 9826 Proposed Rules: 103...... 9997 51...... 9408 56...... 9404 161...... 9826 61...... 9408 57...... 9404 38 CFR 501...... 9826 69...... 9408 62...... 9404 1...... 9969 73 .....9408, 9409, 9410, 10010, 70...... 9404 23 CFR 10011 71...... 9404 657...... 10178 40 CFR 76...... 10011 202...... 10247 658...... 10178 52...... 9970 206...... 10247 80...... 9872 24 CFR 48 CFR 31 CFR 141...... 10168 203...... 9930 180 ...... 9974, 9979, 9984 234...... 9990 536...... 9959 Proposed Rules: 300...... 9370, 9371 239...... 9375 Ch. I ...... 10247 33 CFR Proposed Rules: 242...... 9990 52 ...... 10000, 10001, 10002 252...... 9990 28 CFR 100...... 9367 110...... 9368 70...... 10002 Proposed Rules: 117...... 9369, 9370 141...... 10168 49 CFR 268...... 10004 511...... 10164 334...... 9968 1002...... 9714 372...... 10006 524...... 10164 Proposed Rules: 1180...... 9714 100...... 9405 29 CFR 44 CFR Proposed Rules: 117...... 9406 223...... 10248 64...... 9372 102...... 9685, 9930 207...... 9996 239...... 10248 Proposed Rules: 65...... 9685, 9687 1910...... 9402 34 CFR 67...... 9690 50 CFR 75...... 10398 Proposed Rules: 30 CFR 206...... 10398 67...... 9722 285...... 9376 901...... 9932 231...... 10398 622...... 9718 45 CFR 902...... 9932 235...... 10398 648...... 9377 904...... 9932 369...... 10398 Proposed Rules: 649...... 9993 906...... 9932 371...... 10398 16...... 10009 679 ....9379, 9718, 9994, 10222 913...... 9932 373...... 10398 74...... 10009 Proposed Rules: 914...... 9932 375...... 10398 75...... 10009 17...... 9724, 10016 915...... 9932 376...... 10398 95...... 10009 600...... 10249 916...... 9932 378...... 10398 630...... 9726 917...... 9932 380...... 10398 46 CFR 679...... 10016 918...... 9932 381...... 10398 586...... 9696 697...... 10020 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Reader Aids iii

REMINDERS TRANSPORTATION comments due by 3-10- Oregon; comments due by The items in this list were DEPARTMENT 97; published 2-14-97 3-10-97; published 1-27- editorially compiled as an aid Surface Transportation ENVIRONMENTAL 97 to Federal Register users. Board PROTECTION AGENCY Texas; comments due by 3- Inclusion or exclusion from Practice and procedure: Air programs: 10-97; published 1-27-97 this list has no legal Ambient air quality Utah; comments due by 3- significance. Motor carrier of property finance transactions, standards, national-- 10-97; published 1-27-97 exemptions; CFR part Ozone and particulate Washington; comments due RULES GOING INTO removed; published 2-4-97 matter, etc.; comments by 3-10-97; published 1- EFFECT TODAY Tariffs and schedules: due by 3-12-97; 24-97 published 2-20-97 Household goods carriers; Wisconsin; comments due Air quality implementation ENVIRONMENTAL tariff requirements; by 3-10-97; published 1- plans; approval and PROTECTION AGENCY published 2-4-97 24-97 Toxic substances: promulgation; various FEDERAL RESERVE Significant new uses-- States: SYSTEM Substituted COMMENTS DUE NEXT Alaska; comments due by Bank holding companies and cyclohexyldiamino ethyl WEEK 3-13-97; published 2-11- change in bank control esters; published 2-4-97 97 (Regulation Y): FEDERAL AGRICULTURE Illinois; comments due by 3- Nonbank subsidiaries; COMMUNICATIONS DEPARTMENT 13-97; published 2-11-97 limitations on underwriting COMMISSION Agricultural Marketing Air quality implementation and dealing in securities; √ √ Common carrier services: Service plans; A approval and review; comments due by promulgation; various Reporting requirements Vegetables; import regulations: 3-10-97; published 1-17- applicable to States; air quality planning 97 Banana/fingerling potatoes, purposes; designation of interexchange carriers, Consumer leasing (Regulation etc.; removal and areas: Bell Operating M): Companies, other local exemption; comments due Louisiana; comments due by Official staff commentary; telephone companies and by 3-13-97; published 2- 3-10-97; published 2-6-97 record carriers; published 11-97 revision; comments due Superfund program: by 3-13-97; published 2- 2-4-97 AGRICULTURE National oil and hazardous 19-97 Telecommunications Act of DEPARTMENT substances contingency 1996; implementation-- Animal and Plant Health plan-- FEDERAL TRADE COMMISSION In-region, interstate, Inspection Service National priorities list domestic interLATA Trade regulation rules: Interstate transportation of update; comments due services by Bell animals and animal products by 3-12-97; published Textile wearing apparel and Operating companies; (quarantine): 2-10-97 piece goods; care non-accounting labeling; comments due Brucellosis in cattle and National priorities list safeguards, etc.; by 3-10-97; published 2-6- bison-- update; comments due correction; published 3- 97 6-97 State and area by 3-12-97; published 2-10-97 HEALTH AND HUMAN FEDERAL DEPOSIT classifications; Toxic substances: SERVICES DEPARTMENT INSURANCE CORPORATION comments due by 3-11- Food and Drug FDIC-insured State 97; published 1-10-97 Significant new uses-- Alkenoic acid, Administration nonmember banks; COMMERCE DEPARTMENT disclosure of financial and trisubstituted-benzyl- Food for human consumption: National Oceanic and disubstituted-phenyl Food labeling-- other information; published Atmospheric Administration 3-6-97 ester, etc.; comments Free glutamate content of Fishery conservation and HEALTH AND HUMAN due by 3-13-97; foods; label information management: SERVICES DEPARTMENT published 2-11-97 requirements; comments Food and Drug Northeastern United States FEDERAL due by 3-12-97; Administration fisheries-- COMMUNICATIONS published 11-13-96 Animal drugs, feeds, and New England and Mid- COMMISSION Nutrient content claims; related products: Atlantic Fishery Radio stations; table of general principles; New drug applications-- Management Councils; assignments: comments due by 3-10- Gentamicin topical spray; public hearings; Arizona; comments due by 97; published 1-24-97 published 3-6-97 comments due by 3-14- 3-10-97; published 1-27- Medical devices: Sarafloxacin hydrochloride; 97; published 2-21-97 97 Investigational devices; published 3-6-97 DEFENSE DEPARTMENT Arkansas; comments due by export requirements TRANSPORTATION Acquisition regulations: 3-10-97; published 1-21- streamlining; comments 97 DEPARTMENT Information Technology due by 3-10-97; published Federal Aviation Management Reform Act California; comments due by 1-7-97 Administration of 1996; implementation; 3-10-97; published 1-27- HEALTH AND HUMAN Airworthiness directives: comments due by 3-10- 97 SERVICES DEPARTMENT Auxiliary Power International 97; published 1-8-97 Colorado; comments due by Health Care Financing Corp.; published 2-19-97 3-10-97; published 1-21- Administration ENERGY DEPARTMENT 97 Jetstream; published 2-19- Medicaid: 97 Energy Efficiency and Idaho; comments due by 3- Redetermination due to TRANSPORTATION Renewable Energy Office 10-97; published 1-24-97 welfare reform; comments DEPARTMENT Energy efficiency program for Louisiana; comments due by due by 3-14-97; published certain commercial and 3-10-97; published 1-27- National Highway Traffic 1-13-97 Safety Administration industrial equipment: 97 Civil monetary penalties; Electric motors; test Nevada; comments due by INTERIOR DEPARTMENT inflation adjustment; procedures, labeling, and 3-10-97; published 1-27- Land Management Bureau published 2-4-97 certification requirements; 97 Minerals management: iv Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Reader Aids

Oil and gas leasing-- SMALL BUSINESS Hiller Aircraft Corp.; inventions; comment Stripper oil properties; ADMINISTRATION comments due by 3-10- request; comments due royalty rate reduction; Small business investment 97; published 1-7-97 by 3-13-97; published comments due by 3-14- companies: Pratt & Whitney; comments 12-13-96 97; published 1-13-97 Examination fees; comments due by 3-10-97; published TRANSPORTATION due by 3-13-97; published 1-9-97 DEPARTMENT INTERIOR DEPARTMENT 2-11-97 Airworthiness standards: Surface Transportation Fish and Wildlife Service SOCIAL SECURITY Special conditions-- Board Endangered and threatened ADMINISTRATION Ballistic Recovery Rate procedures: species: Supplemental security income: Systems, Inc.; Cirrus Simplified rail rate Bruneau hot springsnail; Aged, blind, and disabled-- SR-20 model; reasonableness comments due by 3-10- Institutionalized children; comments due by 3-10- proceedings; expedited 97; published 1-23-97 comments due by 3-10- 97; published 2-6-97 procedures; comments INTERIOR DEPARTMENT 97; published 1-8-97 Class E airspace; comments due by 3-14-97; published TRANSPORTATION due by 3-10-97; published 2-12-97 Surface Mining Reclamation DEPARTMENT 1-24-97 and Enforcement Office VETERANS AFFAIRS Federal Aviation Class E airspace; correction; DEPARTMENT Permanent program and Administration comments due by 3-11-97; Vocational rehabilitation and abandoned mine land published 2-12-97 Airworthiness directives: education: reclamation plan TRANSPORTATION submissions: Airbus; comments due by 3- Veterans education-- 10-97; published 1-29-97 DEPARTMENT Montana; comments due by State approving agencies; Boeing; comments due by National Highway Traffic 3-11-97; published 1-10- school catalog 3-10-97; published 2-12- Safety Administration 97 submission; comments 97 Motor vehicle safety due by 3-10-97; NUCLEAR REGULATORY Bombardier; comments due standards: published 1-8-97 COMMISSION by 3-14-97; published 2-3- Lamps, reflective devices, Survivors and dependents Uranium enrichment facilities; 97 and associated education; eligibility certification and licensing; Fokker; comments due by equipment-- period extension; comments due by 3-14-97; 3-14-97; published 2-28- Auxiliary signal lamps and comments due by 3-10- published 2-12-97 97 safety lighting 97; published 1-9-97