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2 III

Contents Federal Register Vol. 62, No. 91

Monday, May 12, 1997

Agricultural Marketing Service Noramco of Delaware, Inc., 25972 RULES North Pacific Trading Co., 25972 Cotton classing, testing, and standards: Penick Corp., 25972 Classification services to growers; 1997 user fees, 25799– Research Triangle Institute, 25972–25973, 25973 25800 Roberts Laboratories, Inc., 25973 Roche Diagnostic Systems, Inc., 25974 Agriculture Department See Agricultural Marketing Service Economic Development Administration See Cooperative State Research, Education, and Extension NOTICES Service Grants and cooperative agreements; availability, etc.: See Food and Consumer Service Unemployment and underemployment in economically See Forest Service distressed areas (FY 1997), 26180–26198 Air Force Department NOTICES Education Department Agency information collection activities: NOTICES Proposed collection; comment request, 25928–25929 Grants and cooperative agreements; availability, etc.: Elementary and secondary education— Arms Control and Disarmament Agency Technology innovation challenge grants program, NOTICES 26176–26178 Meetings: Director’s Advisory Committee, 25887–25888 Energy Department See Energy Efficiency and Renewable Energy Office Centers for Disease Control and Prevention See Federal Energy Regulatory Commission RULES See Hearings and Appeals Office, Energy Department Medicare, Medicaid, and clinical laboratories improvement: NOTICES Clinical laboratory requirements; effective dates Electricity export and import authorizations, permits, etc.: extension, 25855–25858 Aquila Power Corp., 25929–25930 NOTICES Utility-Trade Corp., 25930 Agency information collection activities: Grants and cooperative agreements; availability, etc.: Submission for OMB review; comment request, 25955– Integrated renewable/hydrogen electric generation 25956 systems development, 25930–25931 Meetings: Meetings: Hospital Infection Control Practices Advisory Committee, International Energy Agency Industry Advisory Board, 25956 25931–25932 ICD-9-CM Coordination and Maintenance Committee, 25956 Energy Efficiency and Renewable Energy Office Commerce Department RULES Consumer products; energy conservation program: See Economic Development Administration Furnaces/boilers, vented home heating equipment, and See Export Administration Bureau pool heaters; test procedures, 26140–26165 See International Trade Administration See National Oceanic and Atmospheric Administration Environmental Protection Agency Cooperative State Research, Education, and Extension RULES Service Hazardous waste: RULES Land disposal restrictions— Small business innovation research grants program; Wood preserving wastes treatment standards; administrative provisions, 26168–26174 paperwork reduction and streamlining, etc. (Phase IV), 25998–26040 Defense Department PROPOSED RULES See Air Force Department Air pollutants, hazardous; national emission standards: See Navy Department Hazardous air pollutants list; additions and deletions— PROPOSED RULES Research and development facilities, 25877–25879 Freedom of Information Act; implementation, 25875–25876 Air programs: Fuels and fuel additives— Drug Enforcement Administration Gasoline produced by foreign refiners; baseline NOTICES requirements; hearing, 25879–25880 Applications, hearings, determinations, etc.: Hazardous waste: Astra USA, Inc., 25970 Land disposal restrictions— Lipomed, Inc., 25971 Metal wastes and mineral processing wastes treatment Lonza Riverside, 25971 standards, etc. (Phase IV), 26041–26084 IV Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Contents

Solid wastes: Federal Energy Regulatory Commission Hazardous waste combustors, etc.; maximum achievable RULES control technologies performance standards; Natural Gas Policy Act: correction, 25877 Interstate natural gas pipelines— NOTICES Business practices standards, 25842–25844 Superfund; response and remedial actions, proposed PROPOSED RULES settlements, etc.: Practice and procedure: A.E. Schnieder Scrap Yard Site, WI, 25947 Hydroelectric projects; relicensing procedures; Scientific Chemical Processing Site, NJ, 25947–25948 rulemaking petition, 25874 NOTICES Executive Office of the President Agency information collection activities: See Presidential Documents Proposed collection; comment request, 25932–25933 See Trade Representative, Office of United States Electric rate and corporate regulation filings: Tapal Energy Ltd. et al., 25939–25942 Export Administration Bureau Meetings; Sunshine Act, 25942–25944 NOTICES Applications, hearings, determinations, etc.: Export privileges, actions affecting: Algonquin Gas Transmission Co. et al., 25933 Prasad, Aluru J., 25888–25889 Amerada Hess Corp., 25933–25934 Canyon Creek Compression Co., 25934 Farm Credit Administration El Paso Natural Gas Co., 25934 RULES Mojave Pipeline Co., 25934–25935 Federal regulatory reform; correction, 25831 Natural Gas Pipeline Co. of America, 25935 Ozark Gas Transmission System, 25935 Federal Aviation Administration Poco Marketing Ltd., 25936 RULES Poco Petroleum, Inc., 25936 Airworthiness directives: Southern Natural Gas Co., 25937 Boeing, 25837–25839 South Georgia Natural Gas Co., 25936–25937 Construcciones Aeronauticas, S.A. (CASA), 25833–25836 Tennessee Gas Pipeline Co., 25937 Israel Aircraft Industries, Ltd., 25832–25833 Trailblazer Pipeline Co., 25937–25938 Jetstream, 25836–25837 TransColorado Gas Transmission Co., 25938 McDonnell Douglas, 25839–25840 Williams Natural Gas Co., 25938, 25939 Young Gas Storage Co. Ltd., 25939 Federal Bureau of Investigation NOTICES Federal Reserve System Agency information collection activities: NOTICES Submission for OMB review; comment request, 25974 Banks and bank holding companies: Change in bank control, 25952–25953 Federal Communications Commission Formations, acquisitions, and mergers, 25953 RULES Permissible nonbanking activities, 25953–25954 Television broadcasting: Cable Television Consumer Protection and Competition Fish and Wildlife Service Act of 1992— NOTICES Leased commercial access, 25865 Endangered and threatened species permit applications, NOTICES 25965–25966 Agency information collection activities: Meetings: Submission for OMB review; comment request, 25948 Garrison Diversion Unit Federal Advisory Council, 25967 Applications, hearings, determinations, etc.: MobileMedia Corp., 25948–25949 Food and Consumer Service NOTICES Federal Deposit Insurance Corporation Food distribution programs: NOTICES Donated chicken substitution with commercial chicken; Foreign exchange activities in commercial banks; uniform demonstration project, 25885–25886 guideline on internal control; rescission, 25949–25950 Meetings; Sunshine Act, 25950 Forest Service NOTICES Federal Emergency Management Agency Meetings: RULES Klamath Provincial Advisory Committee, 25886–25887 Flood elevation determinations: Southwest Oregon Provincial Interagency Executive Arizona et al., 25858–25862 Committee Advisory Committee, 25887 PROPOSED RULES Water Rights Task Force, 25887 Flood elevation determinations: Connecticut et al., 25880–25884 General Services Administration NOTICES RULES Agency information collection activities: Acquisition regulations: Proposed collection; comment request, 25950–25951 Board of Contract Appeals; procedure rules— Submission for OMB review; comment request, 25951– Transportation rate cases, 25865–25868 25952 Travel and relocation expenses cases, 25868–25870 Meetings: Travel and relocation expenses reimbursement, 25870– Technical Mapping Advisory Council, 25952 25872 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Contents V

NOTICES International Trade Administration Environmental statements; availability, etc.: PROPOSED RULES American Red Cross Chapter House site, Washington, DC; Uruguay Round Agreements Act (URAA): development alternatives and/or mitigation measures; Antidumping and countervailing duties; conformance hearing, 25954 and Federal regulatory review, 25874–25875 Environmental statements; notice of intent: NOTICES Washington Metropolitan Area; exterior security of Antidumping: federally occupied buildings, 25954 Brass sheet and strip from— Netherlands, 25891–25895 Geological Survey Collated roofing nails from— NOTICES China, 25899–25904 Agency information collection activities: Korea, 25895–25898 Proposed collection; comment request, 25967 Taiwan, 25904–25908 Oil country tubular goods from— Health and Human Services Department Japan, 25889–25891 See Centers for Disease Control and Prevention Porcelain-on-steel cookware from— See Health Care Financing Administration Mexico, 25908–25915 See Substance Abuse and Mental Health Services Stainless steel wire rods from— Administration France, 25915–25917 NOTICES Sulfanilic acid from— Meetings: China, 25917–25920 Vital and Health Statistics National Committee, 25954– Titanium sponge from— 25955 Russian Federation, 25920–25923 Organization, functions, and authority delegations: Countervailing duties: Program Support Center, 25955 Magnesium, pure and alloy, from— Canada, 25924–25926 Health Care Financing Administration Stainless steel cooking ware from— RULES Korea, 25926–25927 Medicare: Applications, hearings, determinations, etc.: Individual claims under Part A or B; appeal procedures, Norfolk State University, 25923 25844–25855 Oregon Graduate Institute of Science and Technology et Medicare, Medicaid, and clinical laboratories improvement: al., 25923–25924 Clinical laboratory requirements; effective dates University of— extension, 25855–25858 Chicago, 25924 NOTICES Medicaid: Justice Department Demonstration project proposals, new and pending— See Drug Enforcement Administration March, 25957 See Federal Bureau of Investigation Medicare and Medicaid: Program issuances and coverage decisions; quarterly Land Management Bureau listing, 25957–25964 NOTICES Meetings: Hearings and Appeals Office, Energy Department Resource advisory councils— NOTICES Lower Snake River District, 25968 Cases filed, 25944–25945 Upper Snake River Districts, 25968 Decisions and orders, 25945–25947 Oil and gas leases: Utah, 25968–25969 Hearings and Appeals Office, Interior Department Realty actions; sales, leases, etc.: Wyoming, 25969 NOTICES Organization, functions, and authority delegations: Withdrawal and reservation of lands: Waiver of debts arising from erroneous payments, 25967– Montana, 25969–25970 25968 Legal Services Corporation RULES Housing and Urban Development Department Fund recipients: NOTICES Attorneys’ fees, 25862–25865 Agency information collection activities: Proposed collection; comment request; correction, 25996 Merit Systems Protection Board Grants and cooperative agreements; availability, etc.: NOTICES Historically black colleges and universities program, Agency information collection activities: 26180–26189 Submission for OMB review; comment request, 25974– 25975 Interior Department See Fish and Wildlife Service National Oceanic and Atmospheric Administration See Geological Survey RULES See Hearings and Appeals Office, Interior Department Fishery conservation and management: See Land Management Bureau West Coast States and Western Pacific fisheries— See Surface Mining Reclamation and Enforcement Office Chinook salmon, 25872–25873 VI Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Contents

NOTICES Small Business Administration Permits: PROPOSED RULES Endangered and threatened species, 25927–25928 Business loan policy: Unguaranteed portions of loans, financing and Navy Department securitization; retainage, etc. NOTICES Hearing, 25874 Privacy Act: NOTICES Systems of records; correction, 25996 Agency information collection activities: Proposed collection; comment request, 25986–25987 Nuclear Regulatory Commission Disaster loan areas: RULES Florida, 25987 Nuclear power reactors, standard design certifications; and Meetings: combined licences; early site permits: National Small Business Development Center Advisory Boiler water reactors— Board, 25988 Standard design certification approval, 25800–25831 Meetings; district and regional advisory councils: NOTICES Wisconsin, 25988 Environmental statements; availability, etc.: Applications, hearings, determinations, etc.: General Electric Co., 25975–25978 Norwest Equity Partners VI, L.P., 25987 Meetings: Reactor Safeguards Advisory Committee, 25979 State Department Regulatory guides; issuance, availability, and withdrawal, NOTICES 25979–25980 Climate action report; availability and comment request, Applications, hearings, determinations, etc.: 25988–25989 Public Service Co. of Colorado, 25975 Meetings: Overseas Schools Advisory Council, 25989 Office of United States Trade Representative See Trade Representative, Office of United States Substance Abuse and Mental Health Services Personnel Management Office Administration NOTICES NOTICES Agency information collection activities: Agency information collection activities: Submission for OMB review; comment request, 25980 Proposed collection; comment request, 25964–25965 Submission for OMB review; comment request, 25965 Postal Service RULES Surface Mining Reclamation and Enforcement Office Domestic Mail Manual: PROPOSED RULES Special services reform; implementation standards, Permanent program and abandoned mine land reclamation 26086–26098 plan submissions: PROPOSED RULES Indiana, 25875 Domestic Mail Manual: NOTICES Information based indicia Agency information collection activities: Correction, 25876–25877 Proposed collection; comment request, 25970 NOTICES Domestic mail classification and rates, 26099–26137 Trade Representative, Office of United States Privacy Act: NOTICES Systems of records, 25980–25981 North American Free Trade Agreement (NAFTA): Accelerated tariff eliminations— Presidential Documents First round implementation, 25989–25992 PROCLAMATIONS Second round initiation, 25992–25995 Special observances: Jewish Heritage Week (Proc. 7001), 26203 Transportation Department Peace Officers Memorial Day and Police Week (proc. See Federal Aviation Administration 7000), 26201–26202 RULES Procedural and special regulations: Public Health Service Air and foreign air carriers compliance with Consumer See Centers for Disease Control and Prevention Credit Protection Act; update; inspection and See Substance Abuse and Mental Health Services copying of DOT records, etc.; CFR part removed, Administration 25840–25842 Securities and Exchange Commission NOTICES Agency information collection activities: Separate Parts In This Issue Submission for OMB review; comment request, 25981– 25982 Part II Self-regulatory organizations; proposed rule changes: Environmental Protection Agency, 25998–26084 American Stock Exchange, Inc., 25982–25984 New York Stock Exchange, Inc., 25984–25985 Part III Philadelphia Stock Exchange, Inc., 25985–25986 Postal Service, 26086–26138 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Contents VII

Part IV Department of Energy, Energy Efficiency and Renewable Energy Office, 26140–26165

Part V Department of Agriculture, Cooperative State Research, Education, and Extension Service, 26168–26174

Part VI Department of Education, 26176–26178

Part VII Department of Housing and Urban Development, 26180– 26189

Part VIII Department of Commerce, Economic Development Administration, 26192–26198

Part IX The President, 26199–26203

Reader Aids Additional information, including a list of public laws, telephone numbers, reminders, and finding aids, appears in the Reader Aids section at the end of this issue.

Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of documents on public inspection is available on 202–275– 1538 or 275–0920. VIII Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Contents

CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR 45 CFR Proclamations: 1642...... 25862 7000...... 26201 47 CFR 7001...... 26203 76...... 25865 7 CFR 48 CFR 28...... 25799 6103...... 25865 3403...... 26168 6104 (2 documents) ...... 25868, 10 CFR 25870 52...... 25800 6105...... 25870 430...... 26140 50 CFR 12 CFR 660...... 25872 614...... 25831 618...... 25831 13 CFR Proposed Rules: 120...... 25874 14 CFR 39 (6 documents) ...... 25832, 25833, 25834, 25836, 25837, 25839 310...... 25840 374...... 25840 18 CFR 284...... 25842 Proposed Rules: 4...... 25874 375...... 25874 19 CFR Proposed Rules: 351...... 25874 30 CFR Proposed Rules: 914...... 25875 32 CFR Proposed Rules: 285...... 25875 39 CFR 111...... 26086 Proposed Rules: 111...... 25876 502...... 25876 40 CFR 148...... 25998 261...... 25998 268...... 25998 271...... 25998 Proposed Rules: 60...... 25877 63 (2 documents) ...... 25877 80...... 25879 148...... 26041 260...... 25877 261 (2 documents) ...... 25877, 26041 264...... 25877 265...... 25877 266...... 25877 268...... 26041 270...... 25877 271 (2 documents) ...... 25877, 26041 42 CFR 405...... 25844 417...... 25844 473...... 25844 493...... 25855 44 CFR 67...... 25858 Proposed Rules: 67...... 25880 25799

Rules and Regulations Federal Register Vol. 62, No. 91

Monday, May 12, 1997

This section of the FEDERAL REGISTER This final rule has been reviewed The changes will be made effective contains regulatory documents having general under Executive Order 12988, Civil July 1, 1997, as provided by the Cotton applicability and legal effect, most of which Justice Reform. It is not intended to Statistics and Estimates Act. are keyed to and codified in the Code of have retroactive effect. This rule would Fees for Classification Under the Cotton Federal Regulations, which is published under not preempt any state or local laws, 50 titles pursuant to 44 U.S.C. 1510. Statistics and Estimates Act of 1927 regulations, or policies unless they The Code of Federal Regulations is sold by present an irreconcilable conflict with The user fee charged to cotton the Superintendent of Documents. Prices of this rule. There are no administrative producers for High Volume Instrument new books are listed in the first FEDERAL procedures which must be exhausted (HVI) classification services under the REGISTER issue of each week. prior to any judicial challenge to the Cotton Statistics and Estimates Act (7 provisions of this rule. U.S.C. 473a) was $1.50 per bale during The Administrator, Agricultural the 1996 harvest season as determined DEPARTMENT OF AGRICULTURE Marketing Service (AMS), has by using the formula provided in the considered the economic impact of this Uniform Cotton Classing Fees Act of Agricultural Marketing Service proposal on small entities pursuant to 1987, as amended by Public Law 102– 237. The fees cover salaries, costs of 7 CFR Part 28 the requirements set forth in the Regulatory Flexibility Act (RFA) (5 equipment and supplies, and other [CN±97±001] U.S.C. 601 et seq.). It has been overhead costs, including costs for determined that the implementation of administration, supervision, and Revision of User Fees for 1997 Crop this rule will not have a significant development and maintenance of cotton Cotton Classification Services to economic impact on a substantial standards. This rule establishes the user fee Growers number of small businesses. charged to producers for HVI The purpose of the RFA is to fit AGENCY: Agricultural Marketing Service, classification at $1.40 per bale during regulatory actions to the scale of USDA. the 1997 harvest season. businesses subject to such actions in ACTION: Final rule. Public Law 102–237 amended the order that small businesses will not be formula in the Uniform Cotton Classing disproportionately burdened. There are SUMMARY: The Agricultural Marketing Fees Act of 1987 for establishing the Service (AMS) is reducing user fees for an estimated 40,000 cotton growers in producer’s classification fee so that the cotton producers for 1997 crop cotton the U.S. who voluntarily use the AMS producer’s fee is based on the prevailing classification services under the Cotton cotton classing services annually, and method of classification requested by Statistics and Estimates Act in the majority of these cotton growers are producers during the previous year. HVI accordance with the formula provided small businesses under the criteria classing was the prevailing method of in the Uniform Cotton Classing Fees Act established by the Small Business cotton classification requested by of 1987. The 1996 user fee for this Administration (13 CFR 121.601). The producers in 1996. Therefore, the 1997 classification service was $1.50 per bale. Administrator of AMS has certified that producer’s user fee for classification This rule would reduce the fee for the this action will not have a significant service is based on the 1996 base fee for 1997 crop to $1.40 per bale. The economic impact on a substantial HVI classification. reduction in fees resulted from number of small entities as defined in The fee was calculated by applying increased efficiency in classing the RFA because: the formula specified in the Uniform operations. The fee is sufficient to (1) The fee reduction reflects a Cotton Classing Fees Act of 1987, as recover the costs of providing decrease in the cost-per-unit currently amended by Public Law 102–237. The classification services, including costs borne by those entities utilizing the 1996 base fee for HVI classification for administration, supervision, and services (the 1996 user fee for exclusive of adjustments, as provided by development and maintenance of classification services was $1.50 per the Act, was $2.04 per bale. A two standards. bale; the fee for the 1997 crop will be percent, or four cents per bale increase reduced to $1.40 per bale; the 1997 crop due to the implicit price deflator of the EFFECTIVE DATE: July 1, 1997. is estimated at 17,587,000 bales); gross domestic product added to the FOR FURTHER INFORMATION CONTACT: Lee (2) The cost reduction will not affect $2.04 results in a 1997 base fee of $2.08 Cliburn, 202–720–2145. competition in the marketplace; and per bale. The formula in the Act SUPPLEMENTARY INFORMATION: A (3) The use of classification services is provides for the use of the percentage proposed rule detailing the revisions voluntary. change in the implicit price deflator of was published in the Federal Register In compliance with OMB regulations the gross national product (as indexed on March 17, 1997, (62 FR 12577). A 30- (5 CFR part 1320) which implement the for the most recent 12-month period for day comment period was provided for Paperwork Reduction Act (PRA) of 1980 which statistics are available). However, interested persons to respond to the (44 U.S.C. 3501 et seq.), the information this has been replaced by the gross proposed rule: No comments were collection requirements contained in the domestic product by the Department of received. provisions to be amended by this Commerce as a more appropriate This final rule has been determined to proposed rule have been previously measure for the short-term monitoring be not significant for purposes of approved by OMB and were assigned and analysis of the U.S. economy. Executive Order 12866, and it has not OMB control number 0581–0009 under The number of bales to be classed by been reviewed by the Office of the Paperwork Reduction Act of 1980 the United States Department of Management and Budget (OMB). (44 U.S.C. 3501 et seq.). Agriculture from the 1997 crop is 25800 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations estimated at 17,587,000. The 1997 base For the reasons set forth in the FOR FURTHER INFORMATION CONTACT: Jerry fee was decreased 15 percent based on preamble, 7 CFR Part 28 is amended as N. Wilson, Office of Nuclear Reactor the estimated number of bales to be follows: Regulation, telephone (301) 415–3145 or classed (one percent for every 100,000 Geary S. Mizuno, Office of the General bales or portion thereof above the base PART 28Ð[AMENDED] Counsel, telephone (301) 415–1639, U.S. of 12,500,000, limited to a maximum 1. The authority citation for Part 28 Nuclear Regulatory Commission, adjustment of 15 percent). This continues to read as follows: Washington, DC 20555–0001. percentage factor amounts to a 31 cents SUPPLEMENTARY INFORMATION: per bale reduction and was subtracted Authority: 7 U.S.C. 471–476. from the 1997 base fee of $2.08 per bale, 2. In § 28.909, paragraph (b) is revised Table of Contents resulting in a fee of $1.77 per bale. to read as follows: I. Background. With a fee of $1.77 per bale, the II. Public comment summary and resolution. § 28.909 Costs. projected operating reserve would be A. Principal Issues. 41.93 percent. The Act specifies that the * * * * * 1. Finality. Secretary shall not establish a fee (b) The cost of High Volume 2. Tier 2 Change Process. which, when combined with other Instrument (HVI) cotton classification 3. Need for Additional Applicable sources of revenue, will result in a service to producers is $1.40 per bale. Regulations. projected operating reserve of more than * * * * * B. Responses to specific requests for comment from proposed rule. 25 percent. Accordingly, the fee of $1.77 3. In § 28.911, the last sentence of C. Other Issues. was reduced by 37 cents per bale, to paragraph (a) is revised to read as 1. NRC Verification of ITAAC $1.40 per bale, to provide an ending follows: Determinations. accumulated operating reserve for the 2. DCD Introduction. fiscal year of 25 percent of the projected § 28.911 Review classification. 3. Duplicate documentation in design cost of operating the program. This (a) * * * The fee for review certification rule. establishes the 1997 season fee at $1.40 classification is $1.40 per bale. 4–7. OCRE comments. per bale. * * * * * III. Section-by-section discussion. Dated: May 6, 1997. A. Introduction (Section I). Accordingly, § 28.909, paragraph (b) B. Definitions (Section II). will be revised to reflect the reduction Lon Hatamiya, C. Scope and contents (Section III). in the HVI classification fees. Administrator. D. Additional requirements and As provided for in the Uniform Cotton [FR Doc. 97–12345 Filed 5–9–97; 8:45 am] restrictions (Section IV). Classing Fees Act of 1987, as amended, BILLING CODE 3410±02±P E. Applicable regulations (Section V). a five cent per bale discount will F. Issue resolution (Section VI). continue to be applied to voluntary G. Duration of this appendix (Section VII). H. Processes for changes and departures centralized billing and collecting agents NUCLEAR REGULATORY as specified in § 28.909(c). (Section VIII). COMMISSION I. Inspections, tests, analyses, and Growers or their designated agents acceptance criteria (Section IX). will continue to incur no additional fees 10 CFR Part 52 J. Records and Reporting (Section X). if only one method of receiving RIN 3150ÐAE87 IV. Finding of no significant environmental classification data is requested. The fee impact: availability. for each additional method of receiving Standard Design Certification for the V. Paperwork Reduction Act statement. classification data in § 28.910 will U.S. Advanced Boiling Water Reactor VI. Regulatory analysis. VII. Regulatory Flexibility Act certification. remain at five cents per bale, and it will Design be applied even if the same method is VIII. Backfit analysis. requested. The fee in § 28.910(b) for an AGENCY: Nuclear Regulatory I. Background owner receiving classification data from Commission. the central database will remain at five ACTION: Final rule. On September 29, 1987, General cents per bale, and the minimum charge Electric Company applied for of $5.00 for services provided per SUMMARY: The Nuclear Regulatory certification of the U.S. ABWR standard monthly billing period will remain the Commission (NRC or Commission) is design with the NRC. The application same. The provisions of § 28.910(c) amending its regulations to certify the was made in accordance with the concerning the fee for new classification U.S. Advanced Boiling Water Reactor procedures specified in 10 CFR Part 50, memoranda issued from the central (ABWR) design. The NRC is adding a Appendix O, and the Policy Statement database for the business convenience of new provision to its regulations that on Nuclear Power Plant an owner without reclassification of the approves the U.S. ABWR design by Standardization, dated September 15, cotton will remain the same. rulemaking. This action is necessary so 1987. The application was docketed on The fee for review classification in that applicants for a combined license February 22, 1988 (Docket No. STN 50– § 28.911 will be reduced from $1.50 per that intend to construct and operate the 605). bale to $1.40 per bale. U.S. ABWR design may do so by The NRC added 10 CFR Part 52 to its The fee for returning samples after appropriately referencing this regulations to provide for the issuance classification in § 28.911 will remain at regulation. The applicant for of early site permits, standard design 40 cents per sample. certification of the U.S. ABWR design certifications, and combined licenses for was GE Nuclear Energy. nuclear power reactors. Subpart B of 10 List of Subjects in 7 CFR Part 28 EFFECTIVE DATE: The effective date of CFR Part 52 established the process for Administrative practice and this rule is June 11, 1997. The obtaining design certifications. A major procedures, Cotton, Cotton samples, incorporation by reference of certain purpose of this rule was to achieve early Grades, Market news, Reporting and publications listed in the regulations is resolution of licensing issues and to recordkeeping requirements, Standards, approved by the Director of the Federal enhance the safety and reliability of Staples, Testing, Warehouses. Register as of June 11, 1997. nuclear power plants. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25801

On December 20, 1991, GE Nuclear April 7, 1995 (60 FR 17902), the NRC NRC, which submitted a copy of the Energy (GE), an operating component of published a proposed rule in the Executive Summary of their public General Electric Company’s power Federal Register which invited public comment letter, and a May 11, 1995 systems business, requested that its comment and provided the public with letter, which provided suggestions on application, originally submitted the opportunity to request an informal finality, secondary references, and other pursuant to 10 CFR Part 50, Appendix hearing before an Atomic Safety and explanatory material. Also, the NRC O, be considered as an application for Licensing Board. The period within received a second letter from the design approval and subsequent design which an informal hearing could be General Electric Company, which certification pursuant to Subpart B of 10 requested expired on August 7, 1995. commented on the comments provided CFR Part 52. Notice of receipt of this The NRC did not receive any requests by OCRE. request was published in the Federal for an informal hearing during this On February 6, 1996, the NRC staff Register on March 20, 1992 (57 FR period. The NRC staff conducted public issued SECY–96–028, ‘‘Two Issues for 9749), and a new docket number (52– meetings on the development of this Design Certification Rules,’’ which 001) was assigned. design certification rule on November requested the Commission’s approval of The NRC staff issued a final safety 23, 1993, May 11 and December 4, 1995, the staff’s position on two major issues evaluation report (FSER) related to the and May 2 and July 15, 1996, in order raised by NEI in its comments on the certification of the U.S. ABWR design in to enhance public participation. proposed design certification rules. The July 1994 (NUREG–1503). The FSER The Commission has considered the NRC staff issued this paper because of documents the results of the NRC staff’s comments received and made fundamental disagreements with the safety review of the U.S. ABWR design appropriate modifications to this design nuclear industry on the need for against the requirements of 10 CFR Part certification rule, as discussed in applicable regulations and the matters 52, Subpart B, and delineates the scope Sections II and III, and revised the to be considered in verifying of the technical details considered in numbering system used in the proposed inspections, tests, analyses, and evaluating the proposed design. rule. With these modifications, the acceptance criteria (ITAAC). Both NEI Subsequently, the applicant submitted Commission adopts as final this design and DOE commented on SECY–96–028 changes to the U.S. ABWR design and certification rule, Appendix A to 10 CFR in letters dated March 5 and 13, 1996, the NRC staff evaluated these design Part 52, for the U.S. ABWR design. respectively. changes in a supplement to the FSER On March 8, 1996, the Commission II. Public Comment Summary and (NUREG–1503, Supplement No. 1). A conducted a public meeting in which Resolution copy of the FSER and Supplement No. industry representatives and NRC staff 1 may be obtained from the The public comment period for the presented their views on SECY–96–028. Superintendent of Documents, U. S. proposed design certification rule, the During this meeting, NEI and the NRC Government Printing Office, Mail Stop design control document, and the staff both indicated agreement on the SSOP, Washington, DC 20402–9328 or environmental assessment for the U.S. ITAAC verification issue. Subsequently, the National Technical Information ABWR design expired on August 7, in a staff requirements memorandum Service, Springfield, VA 22161. A final 1995. The NRC received twenty letters (SRM) dated March 21, 1996, the design approval (FDA) was issued for containing public comments on the Commission requested the NRC staff to the U.S. ABWR design on July 13, 1994 proposed rule. The most extensive meet again with industry to try to and revised on November 23, 1994 to comments were provided by the Nuclear resolve the issue of applicable provide a 15 year duration. An FDA, Energy Institute (NEI), in a letter dated regulations. The NRC staff met with which incorporates the design changes, August 4, 1995, which provided representatives of Combustion will be issued to supersede the current comments on behalf of the nuclear Engineering, Inc. (ABB–CE), GE, and FDA after issuance of this final design industry. In general, NEI commended NEI in a public meeting on March 25, certification rule. the NRC for its efforts to provide 1996 and were unable to reach The NRC staff originally proposed a standard design certifications but agreement. As a result, the NRC staff conceptual design certification rule for expressed serious concerns about provided revised resolutions of evolutionary standard plant designs in aspects of the proposed rule that would, applicable regulations and ITAAC SECY–92–287, ‘‘Form and Content for a in NEI’s view, undermine the goals of determinations in SECY–96–077, Design Certification Rule.’’ design certification. These concerns are ‘‘Certification of Two Evolutionary Subsequently, the NRC staff modified addressed in the following responses to Designs,’’ dated April 15, 1996, that the draft rule language proposed in the public comments. Fourteen utilities superseded the proposals in SECY–96– SECY–92–287 to incorporate and three vendors also provided 028. SECY–96–077 addressed the Commission guidance and published a comments. All of these comment letters comments on the proposed design draft-proposed design certification rule endorsed the NEI comments of August certification rules and provided final in the Federal Register on November 3, 4, 1995, and some provided additional design certification rules for the 1993 (58 FR 58665), as an Advanced comments. The Department of Energy Commission’s consideration. Notice of Proposed Rulemaking (ANPR) and the Ohio Citizens for Responsible Subsequently, notice of a 30 day for public comment. In accordance with Energy, Inc. (OCRE) also submitted comment period for SECY–96–077 was the Administrative Procedure Act of comment letters. OCRE provided two published in the Federal Register (61 1947 (APA), as amended, 10 CFR Part sets of comments, the first addressed the FR 18099), and the comment period was 52 provides the opportunity for the NRC’s specific requests for comment extended for an additional 60 days (61 public to submit written comments on and the second addressed OCRE’s FR 27027) at the request of NEI. proposed design certification rules. concerns about certain aspects of the In response to the supplementary However, Part 52 went beyond the U.S. ABWR design. comment period, ABB–CE, GE Nuclear requirements of the APA by providing The NRC received other letters that Energy, and NEI submitted additional the public with an opportunity to were entered into the docket and are comments on the final design request a hearing before an Atomic part of the record of the rulemaking certification rules in letters dated July Safety and Licensing Board in a design proceeding, including an August 4, 1995 23, 1996. Westinghouse also submitted certification rulemaking. Therefore, on letter from NEI to the Chairman of the comments in a letter dated July 24, 25802 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

1996. NEI sent an unsolicited letter, additional documents include would be little regulatory certainty and dated September 23, 1996, to the ‘‘secondary references’’ (i.e., DCD stability associated with a design Director of the Office of Nuclear Reactor references to documents and certification. The underlying benefits of Regulation on three design certification information which are not contained in certification of individual designs by issues. NEI also sent a letter, dated the DCD, including secondary rulemaking, e.g., early Commission September 16, 1996, to Chairman references containing proprietary and consideration and resolution of design Jackson that provided additional safeguards information), docketed issues and early Commission information in response to questions material, and the entire rulemaking consideration and agreement on the that were asked by the Commission in record (refer to GE Comments, methods and criteria for demonstrating its August 27, 1996 briefing on design Attachment A, pp. 2–3; NEI Comments completion of detailed design and certification rulemaking. dated August 4, 1995, Attachment B, pp. construction in compliance with the The following discussion is separated 6–9). certified design, would be virtually into three groups: (1) Resolution of the The Commission has reconsidered its negated. Thus, in accord with the views principal issues raised by the position and decided that the ambit of of the applicant and NEI, the commenters, (2) resolution of the NRC’s issues resolved by this rulemaking Commission clarifies and makes explicit specific requests for comment from the should be the information that is its previously implicit determination proposed rule, and (3) resolution of reviewed and approved in the design that the scope of issues resolved in other issues raised by the commenters. certification rulemaking, which connection with the design certification includes the rulemaking record for the rulemaking includes the lack of need for A. Principal Issues standard design. This position reflects alternative, additional or modified 1. Finality the Commission’s SRM on SECY–90– design criteria, design features, 377, dated February 15, 1991. Also, the structures, systems, components, or Comment Summary. The applicant Commission concludes that the set of and NEI submitted extensive comments inspections, tests, analyses, acceptance issues resolved should be those that criteria or justifications, and such on the scope of issues that were were addressed (or could have been proposed to be accorded finality under matters may not be raised in subsequent addressed if they were considered NRC proceedings. 10 CFR 52.63(a)(4), i.e. are not subject significant) as part of the design In the statements of consideration to re-review by the NRC or re-litigation certification rulemaking process. (SOC) for the proposed rule, the in hearings. In summary, both However, the Commission does not commenters argued that: agree that all matters submitted on the Commission proposed that issues • The scope of issues accorded docket for design certification should be associated with ‘‘requirements’’ in finality is too narrow; accorded finality under 10 CFR secondary references, not specifically • Changes made in accordance with 52.63(a)(4). Some of this information approved for incorporation by reference the change process are not accorded was neither reviewed nor approved and by the Office of the Federal Register finality; some was not directly related to the (OFR) because they contained • Changes approved by the NRC scope of issues resolved by this proprietary or safeguards information, should have protection under 10 CFR rulemaking. Therefore, the final rule would not be considered resolved in the 52.63(a)(4); provides finality for all nuclear safety design certification rulemaking within • The rule does not provide finality issues associated with the information the meaning of 10 CFR 52.63(a)(4) (See in all subsequent proceedings; in the FSER and Supplement No. 1, the 60 FR 17902, 17911). Both GE and NEI • The rule should be clarified generic DCD, including referenced took exception to this position, arguing regarding finality of SAMDA information that is intended as that issues arising from secondary evaluations; requirements, and the rulemaking references should be included in the set • A de novo review is not required for record. of issues resolved (See GE Comments, design certification renewal; In adopting this final design Attachment A, pp. 2–3; NEI Comments • Finality for Technical certification rulemaking, the dated August 4, 1995, Attachment B, pp. Specifications; and Commission also finds that the design 6–9). The Commission has determined • Finality for Operational certification does not require any that the set of issues resolved by this Requirements. additional or alternative design criteria, rulemaking embraces those issues These comments are found in GE design features, structures, systems, arising from secondary references that Comments dated August 3, 1995, components, testing, analyses, are requirements for the certified design, Attachment A, pp. 2–4; NEI Comments acceptance criteria, or additional including those containing proprietary dated August 4, 1995, Attachment B, pp. justifications in support of these and safeguards information. This is 1–23; NEI Comments dated July 23, matters. Inherent in the concept of consistent with the intent of 10 CFR Part 1996, pp. 1–21; and NEI letter dated design certification by rulemaking is 52 that issues related to the design September 16, 1996. that all these issues which were certification should be considered and Response: Scope of issues accorded addressed, or could have been resolved in the design certification finality. The applicant and NEI took addressed, in this rulemaking are rulemaking. However, since OFR does issue with the proposed rule’s language resolved and therefore, may not be not approve of ‘‘incorporation by limiting the scope of nuclear safety raised in a subsequent NRC proceeding. reference’’ of proprietary and safeguards issues resolved to those issues If this were not the case and one could information, even though it was ‘‘associated with’’ the information in the always argue in a subsequent available to potential commenters on FSER or Design Control Document proceeding that an additional, this proposed design certification rule (DCD). Each argued that there were alternative, or modified system, (see 60 FR 17902 at 17920–21; April 7, many other documents which included structure or component of a previously- 1995), the Commission has included in and/or addressed issues whose status certified design was needed, or VI.E of this appendix, a process for should be regarded as ‘‘resolved in additional justification was necessary, obtaining proprietary and safeguards connection with’’ this design or a modification to the testing and information at the time that notice of a certification rulemaking. These acceptance criteria is necessary, there hearing in connection with issuance of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25803 a combined license is published in the licensee, must logically result in action is needed. Neither the applicant Federal Register. Such persons will departures which are both ‘‘within the nor NEI provided compelling reasons have actual notice of the requirements envelope’’ of the Commission’s safety why contentions alleging that applicants contained in the proprietary and finding for the design certification rule or licensees have not properly safeguards information and, therefore, and for which the Commission has no implemented the departure process will be subject to the issue finality safety concern. Therefore, it follows that (VIII.B.5) should be entirely precluded provisions of Section VI of this properly implemented departures from from consideration in an appropriate appendix. Tier 2 should continue to be accorded licensing proceeding where they are Changes made in accordance with the the same extent of issue resolution as relevant to the subject of the proceeding. ‘‘50.59-like’’ change process. The that of the original Tier 2 information Although the Commission disagrees proposed design certification rule from which it was ‘‘derived.’’ As a with the applicant and NEI over the included a change process similar to result, Section VI of this appendix has admissibility of contentions alleging that provided in 10 CFR 50.59. been amended to reflect the incorrect implementation of the Specifically, proposed Section 8(b)(5) Commission’s determination on issue departure process, the Commission provided ‘‘that such changes open the resolution for Tier 2 changes made in acknowledges that they have a valid possibility for challenge in a hearing’’ accordance with the departure process concern regarding whether the scope of for Tier 2 changes in accordance with and to provide backfit protection for the contentions will incorrectly focus on the Commission’s guidance in its SRM changes made in accordance with the the substance of correctly-performed on SECY–90–377, dated February 15, processes of Section VIII of this departures and the possible lengthened 1991. The NRC also believed that appendix. time necessary to litigate such matters providing an opportunity for a hearing in a hearing (See, e.g., Transcript of However, the converse of this would serve to discourage changes that December 4, 1995, Public Meeting, p. reasoning leads the Commission to could erode the benefits of 47). Therefore, the Commission has reject the applicant’s and NEI’s standardization. The applicant and NEI included an expedited review process contention that no part of the argued that Tier 2 departures under the (VIII.B.5.f), similar to that provided in applicant’s or licensee’s implementation ‘‘§ 50.59-like’’ process should not be 10 CFR 2.758, for considering the of the departure process (VIII.B.5) subject to any opportunity for hearing admissibility of such contentions. should be open to challenge in a but may only be challenged via a 10 Persons who seek a hearing on whether subsequent licensing proceeding, but CFR 2.206 petition; and, therefore, an applicant has departed from Tier 2 should be subject to the special backfit instead should be raised as a petition for information in noncompliance with the restrictions of 10 CFR 52.63(a). For enforcement action under 10 CFR 2.206. applicable requirements must submit a purposes of brevity, this discussion Because § 2.206 applies to holders of petition, together with information refers to both generic changes and plant- licenses and is considered a request for required by 10 CFR 2.714(b)(2), to the specific departures as ‘‘changes.’’ enforcement action (thereby presenting presiding officer. If the presiding officer The Commission has reconsidered some potential difficulties when concludes that a prima facie case has and revised its position on issue attempting to apply this in the context been presented, he or she shall certify resolution in connection with Tier 2 of a combined license applicant), it is the petition and the responses to the departures under the ‘‘§ 50.59-like’’ unclear why an applicant or licensee Commission for final determination as process. Section 50.59 was originally who departs from the design to admissibility. adopted by the Commission to afford a certification rule in noncompliance with Subsequently, in its comments dated Part 50 operating license holder greater the process (VIII.B.5) should July 23, 1996, NEI requested the flexibility in changing the facility as nonetheless reap the benefits of issue Commission to modify VIII.B.5.f to described in the FSAR while still resolution stemming from the design clarify that a ‘‘50.59-like’’ change is not assuring that safety-significant changes certification rule. An incorrect subject to a hearing under § 52.103 or of the facility would be subject to prior departure from the requirements of this § 50.90 unless the change bears directly NRC review and approval [refer to 27 FR appendix essentially places the on an asserted ITAAC noncompliance or 5491, 5492 (first column); June 9, 1962]. departure outside of the scope of the the requested amendment, respectively. The ‘‘unreviewed safety question’’ Commission’s safety finding in the The Commission determined that NEI’s definition was intended by the design certification rulemaking. It proposed wording correctly stated its Commission to exclude from prior follows that properly-founded intention regarding the opportunity for regulatory consideration those licensee- contentions alleging such incorrectly- a hearing on ‘‘50.59-like’’ departures initiated changes from the previously implemented departures cannot be after a license is issued and, therefore, NRC-approved FSAR that could not be considered ‘‘resolved’’ by this VIII.B.5.f of this appendix has been viewed as having safety significance rulemaking. The industry also appears appropriately modified. sufficient to warrant prior NRC to oppose an opportunity for a hearing Changes approved by the NRC should licensing review and approval. To put it on the basis that there is no ‘‘remedy’’ have protection under § 52.63. NEI, in another way, any change properly available to the Commission in a its comments dated July 23, 1996, implemented pursuant to § 50.59 should licensing proceeding that would not requested the Commission to provide continue to be regarded as within the also constitute a violation of the Tier 2 the special backfit protection of § 52.63 envelope of the original safety finding backfitting restrictions applicable to the to all changes to Tier 1, Tier 2*, and by the NRC. Moreover, the departure Commission and that in a comparable changes to Tier 2 that involve an process for Tier 2 information, as situation with an operating plant the unreviewed safety question or a change specified in VIII.B of this appendix, proper remedy is enforcement action. in the technical specifications. The includes additional restrictions derived However, for purposes of issue finality special provision in § 52.63(a)(4) states from 10 CFR 52.63(b)(2), viz., the Tier 2 the focus should be on the initial that ‘‘* * * the Commission shall treat change must not involve a change to licensing proceeding where the result of as resolved those matters resolved in Tier 1 information. Thus, the departure an improper change evaluation would connection with the issuance or renewal process (VIII.B.5), if properly simply be that the change is not of a design certification.’’ The implemented by an applicant or considered resolved and no enforcement Commission stated, in its SRM on 25804 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

SECY–90–377, that ‘‘* * * the process is accorded ‘‘issue finality’’ does not NEI’s proposed modification would provides issue finality on all eliminate changes properly made under shift the burden of demonstrating the information provided in the application the change restrictions in Section VIII of acceptability of the exemption from the that is reviewed and approved in the this appendix. Therefore, the licensee. Moreover, it would be difficult design certification rulemaking.’’ The Commission declines to adopt in its to extend the NEPA review to all Commission also stated that ‘‘* ** entirety the industry proposal that issue available sites without any qualification. changes to the design reviewed and finality should extend to all subsequent Therefore, the Commission decided not approved by the staff should be NRC proceedings. to change Section VI.B.7 of this minimized * * *.’’ Based on this In its comments dated July 23, 1996, appendix but did explain in section III.F guidance, the Commission decided that NEI requested the Commission to of this SOC that requests for litigation the special backfit provision should be modify the last phrase of Section 6(b), must meet § 2.714 requirements. extended to generic changes made to the of SECY–96–077, to reflect the NRC A de novo review is not required for DCD that are approved by rulemaking. staff’s intent regarding finality in design certification renewal. In its Also, for departures that are approved enforcement proceedings. Section 6(b) comments dated July 23, 1996, NEI by license amendment or exemption, stated that the DCD has finality in requested the Commission to extend the Commission decided that the enforcement proceedings ‘‘where these finality to design certification renewal licensee of that plant should receive the proceedings reference this appendix.’’ proceedings and to define a review special backfit protection. However, any NEI was concerned that this phrase procedure for renewal applications that other licensee that references the same could be construed as depriving finality would limit the scope of review. DCD should not have finality for that to plants that reference the design Subsequently, NEI stated in a letter plant-specific departure, unless it was certification rules in enforcement dated September 23, 1996, that again approved by license amendment proceedings that do not explicitly principles for renewal reviews can and or exemption for that licensee. reference the design certification rule. should be established in the design Finality in all subsequent The intent of the phrase was to limit certification rules. The extension of proceedings. GE and NEI requested that finality of the information in the design finality to a renewal proceeding would Section 6 of the proposed rule be certification rule to enforcement produce the illogical result that the expanded to include a more detailed proceedings involving a plant NRC’s conclusion in the original design statement regarding the findings, issues referencing the rule. Therefore, the certification rulemaking, that the design resolved, and restrictions on the Commission replaced the wording, provided adequate protection and was Commission’s ability to ‘‘backfit’’ this ‘‘where these proceedings reference this in compliance with the applicable appendix. The Commission agrees that appendix,’’ with ‘‘involving plants regulations, would also apply to the the industry’s proposal has some merit, referencing this appendix’’ in Section renewal review even though the and has revised Section VI of this VI.B of the final rules. regulations in Part 52 require another appendix, beginning with the general Finality regarding SAMDA review and finding at the renewal stage subjects embodied in NEI’s proposed evaluations. In its comments dated July 15 years later. The effect of this redraft, but restructured the NEI 23, 1996, NEI requested the Commission extension would be to extend the design proposal into three sections to reflect to extend finality for the SAMDA certification for another 15 years (for a the scope of issues resolved, change evaluation when an exemption from a total of 30 years) instead of the intended process, and rulemaking findings, site parameter specified in the 15 years. thereby conforming the language to evaluation has been approved. Section The NRC staff agrees with NEI that the reflect the conventions of the appendix VI.B.7 of this appendix accords finality renewal review must be conducted (e.g., generic changes versus plant- to severe accident mitigation design against the Commission’s regulations specific departures), and making minor alternatives (SAMDAs) for plants applicable and in effect at the time of editorial changes for clarity and referencing the design certification rules the original certification, and that the consistency. However, one area in ‘‘whose site parameters are within those backfit limitations in § 52.59 must be which the Commission declines to specified in the Technical Support satisfied in order to require a change to adopt the industry’s proposal is the Document’’ (TSD). NEI is concerned that the certified design. However, the NRC inclusion of a statement that extends the last phrase could open all SAMDAs staff disagrees with NEI’s position that issue finality to all subsequent to re-review and re-litigation during a the information to be considered in the proceedings. subsequent proceeding where the renewal review is limited to ‘‘an Section 52.63(a)(4) explicitly states licensee has requested an exemption evaluation of experience between the that issues resolved in a design from a site parameter specified in the time of certification and the renewal certification rulemaking have finality in DCD, even though the exemption has no application,’’ as well as NEI’s combined license proceedings, impact on the SAMDAs. NEI also stated implication that the scope of the design proceedings under § 52.103, and that a clarification to the SOC was not for which new information can be operating license proceedings. There are sufficient and believed that a considered is limited to those areas other NRC proceedings not mentioned modification to the rule language was which the design certification applicant in § 52.63(a)(4), e.g., combined license needed. concedes there is new information or amendment proceedings and The NRC staff agrees that it was not proposes a modification. The effect of enforcement proceedings, in which the the intent to re-litigate SAMDA issues NEI’s position would be to preclude the design certification should logically be under such circumstances. The intent NRC from considering new information afforded issue resolution and, therefore, was that an intervenor in any which could have altered the are included in Section VI of this subsequent proceeding could challenge Commission’s consideration and appendix. However, NEI listed NRC a SAMDA based on an exemption to a approval of the design had it been proceedings such as design certification TSD site parameter only after bringing known at the time of the original renewal proceedings, for which issue forward evidence demonstrating that the certification review, and to cede control finality would not be appropriate. SAMDA analysis was invalidated. of the scope of the renewal review to the Moreover, it should be understood that However, the NRC staff does not agree design certification applicant. to say that this design certification rule that the wording should be changed. Furthermore, the review procedure for a Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25805 renewal application is not dependent on the NRC included the technical requirements as requested by NEI, rather whether the applicant proposed changes specifications for the standard designs the Commission supports the proposal to the previously certified design. The in the generic DCD in order to maximize to treat the technical specifications in underlying philosophy was that new the standardization of the technical Chapter 16 of the DCD as a special safety requirements and issues that specifications for plants that reference category of information, as described in arose during the duration of the design this design certification. As a result, a the NRC staff’s comment analyses dated certification rule could not be applied to plant that references this design August 13 and October 21, 1996. The the certified design (unless the adequate certification would have two sets of purpose of design certification is to protection standard was met). However, technical specifications associated with review and approve design information. these issues could be raised for its license: (1) Technical specifications There is no provision in Subpart B of 10 consideration at the renewal stage and from Chapter 16 of Tier 2 of the generic CFR Part 52 for review and approval of applied to the application for renewal if DCD and applicable to the standardized purely operational matters. The the backfit standard in § 52.59 was met. portion of the plant, and (2) those Commission approves a revised Section Therefore, any portion of the certified technical specifications applicable to VIII.C of this appendix that would apply design could be reviewed (subject to the site-specific portion for the plant. to the technical specifications, bases for § 52.59) to ensure that the applicable While each portion of the technical the technical specifications, and other regulations for the certified design are specifications would be subject to a operational requirements in the DCD; being met based on consideration of different change process, the substantive that would provide for use of § 52.63 new information (e.g. operating aspects of the change processes would only to the extent the design is changed; experience, research, or analysis) be essentially the same. and that would use § 2.758 and § 50.109 resulting from the previous 15 years of In the design certification rule that to the extent an NRC safety conclusion experience with the design. was attached to SECY–96–077, the is being modified or changed but no The Commission rejects NEI’s technical specifications were removed design change is required. In applying proposal to apply the finality provision from Tier 2 for two reasons. First, the § 2.758 and § 50.109, it will be necessary of § 52.63 to the review of renewal removal from Tier 2 responded to NEI’s to determine from the certification applications because this would suggest comment regarding a single change rulemaking record what safety issues improperly that NRC, in its renewal process. NEI’s proposal to include the were considered and resolved. This is review, is bound by previous safety technical specifications in Tier 2 prior because § 2.758 will not bar review of a conclusions in the initial certification to issuance of a combined license (COL), safety matter that was not considered review. The type of renewal review was and then remove them after COL and resolved in the design certification resolved by the Commission during the issuance is not acceptable. If the rulemaking. There would be no backfit development of 10 CFR Part 52. At that technical specifications are included in restriction under § 50.109 because no time, the Commission determined that Tier 2 by the design certification prior position was taken on this safety the backfit standard in § 52.59(a) rulemaking, they would remain there matter. After the COL is issued, the set controls the development of new and be controlled by the Tier 2 change of technical specifications for the COL requirements during the review of process for the life of the facility. (the combination of plant-specific and applications for renewal. Therefore, the Second, the NRC staff wanted the ability DCD derived) would be subject to the Commission disagrees with NEI’s to impose future operational backfit provisions in § 50.109 (assuming proposed revision to Section 6(b), in its requirements and standards (distinct no Tier 1 or Tier 2 changes are letter dated September 23, 1996, and from design matters) on the technical involved). NEI’s proposal for a new Section 6(e) is specifications for a plant that referenced Finality for operational requirements. unnecessary because this process is the certified design and Section 4(c) of A new provision was included in the already correctly covered in § 52.59. the rule in SECY–96–077 provided that design certification rules, set forth in The Commission does not plan or ability. However, Section 4(c) would not Section 4(c), that were attached to expect to be able to conduct a de-novo be used to backfit design features (i.e. SECY–96–077. The reason for this review of the entire design if a hardware changes) unless the criteria of provision was that the operational certification renewal application is filed § 52.63 were met. requirements in the DCD had not under § 52.59. It expects that the review In its comments dated July 23, 1996, received a complete and comprehensive focus would be on changes to the design NEI requested the Commission to review. Therefore, the new Section 4(c) that are proposed by the applicant and extend finality to the technical was needed to reserve the right of the insights from relevant operating specifications in Chapter 16 of the DCD. Commission to impose operational experience with the certified design or NEI stated that the technical requirements on plants referencing this other designs, or other material new specifications in the DCDs should appendix, such as license conditions for information arising after the NRC staff’s remain part of the design certification portions of the plant within the scope of review of the design certification. The and be accorded finality because they this design certification, e.g. start-up Commission will defer consideration of have been reviewed and approved by and power ascension testing. NEI specific design certification renewal the NRC. NEI also proposed that, after claimed, in its comments dated July 23, procedures until after it has issued this the license is granted, the technical 1996, that the backfit provisions in appendix. specifications in the DCD would no Section 4(c) contradicted 10 CFR 52.63 Finality for Technical Specifications. longer have any relevance to the license and were incompatible with the purpose In its comments dated August 4, 1995, and there would be a single set of of 10 CFR Part 52. Attachment B (pp. 124–129), NEI technical specifications that will be NEI’s claim that Section 4(c) requested that the NRC establish a controlled by the 10 CFR 50.90 license contradicts 10 CFR 52.63 and enables single set of integrated technical amendment process and subject to the the NRC to impose changes to the specifications governing the operation backfit provisions in 10 CFR 50.109. design information in the DCD without of each plant that references this design The Commission does not support regard to the special backfit provisions certification and that the technical extension of the special backfit of § 52.63 is wrong. Section 4(c) clearly specifications be controlled by a single provisions of § 52.63 to technical referred to ‘‘facility operation’’ not change process. In the proposed rule, specifications and other operational ‘‘facility design.’’ The purpose of 25806 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

Section 4(c) was to ensure that any change process in Section 8(b) of the should be used to ensure that departures necessary operational requirements proposed rule provided for generic from Tier 2 information do not impact could be applied to plants that reference changes, plant-specific changes, and Tier 1 information. For these reasons, these certified designs because plant exemptions similar to the provisions in the Commission rejects the contention operational matters were not finalized 10 CFR 52.63, except that some of the that the severe accident resolutions are in the design certification review. It was standards for plant-specific orders and contained in Section 19.8 of the generic also clear that the NRC staff considered exemptions are different. Section 8(b) DCD. resolved design matters to be final. Refer also had a provision similar to 10 CFR Subsequently, in its comments dated to SECY–96–077 which states: ‘‘Most 50.59 that allows for departures from July 23, 1996, NEI requested the importantly, a provision has been Tier 2 information by an applicant or Commission to expand the scope of included in Section 4 to provide that the licensee, without prior NRC approval, design information that is controlled by final rules do not resolve any issues subject to certain restrictions, in the special change process for severe regarding conditions needed for safe accordance with the Commission’s SRM accident issues to all of the information operation (as opposed to safe design).’’ on SECY–90–377, dated February 15, in Chapter 19 of the DCD. The NRC staff This is consistent with the goal of 1991. intended that this special change design certification, which is to preserve Scope of the change process in process be limited to severe accident the resolution of design features, which VIII.B.5. In its comments dated August design features, where the intended are explicitly discussed or inferred from 4, 1995, Attachment B, pp. 67–82, NEI function of the design feature is relied the DCD. The backfit provisions in raised a concern regarding application upon to resolve postulated accidents Sections VIII.A and VIII.B of this of the § 50.59-like change process to when the reactor core has melted and appendix control design changes. severe accident information, and stated: exited the reactor vessel and the containment is being challenged (severe Subsequently, in its comments of Instead of applying the § 50.59-like process September 23, 1996, NEI requested that to all of Chapter 19, we propose (1) that the accidents). These design features are all DCD requirements, including process be applied only to those sections that identified in Section 19.11 of the operational-related and other non- identify features that contribute significantly System 80+ DCD and Section 19E of the hardware requirements, be accorded to the mitigation or prevention of severe ABWR DCD. This special change finality under § 52.63. The Commission accidents (i.e., Section 19.8 for the ABWR process was not intended for design has determined that NEI’s proposal to and Section 19.15 for the System 80+), and features that are discussed in Chapter 19 assign finality to operational (2) that changes in these sections should for other reasons, such as resolution of constitute unreviewed safety questions only requirements is unacceptable, because generic safety issues. However, the NRC if they would result in a substantial increase staff recognizes that the severe accident operational matters were not in the probability or consequences of a severe comprehensively reviewed and accident. design features identified in Section 19E finalized for design certification (refer to are described in other areas of the DCD, The Commission agrees that section III.F of this SOC). Although the i.e. the Lower Drywell Flooder is departures from Tier 2 information that information in the DCD that is related to described in Section 9.5.12 of the describe the resolution of severe operational requirements was necessary ABWR DCD. Therefore, the location of accident issues should use criteria that to support the NRC’s safety review of design information is not important to is different from the criteria in 10 CFR the standard designs, the review of this the application of the special change 50.59 for determining if a departure information was not sufficient to process for severe accident issues and it constitutes an unreviewed safety conclude that the operational is not specified in Section VIII.B.5. The question (USQ). Because of the requirements are fully resolved and importance of this provision is that it be increased uncertainty in severe accident ready to be assigned finality under limited to the severe accident design issue resolutions, the NRC has included § 52.63. Therefore, the Commission features. In addition, the Commission is ‘‘substantial increase’’ criteria in retained the former Section 4(c), but cognizant of certain design features that VIII.B.5.c of this appendix for Tier 2 reworded this provision on operational have intended functions to meet ‘‘design information that is associated with the requirements and placed it in Section basis’’ requirements and to resolve resolution of severe accident issues. The VI.C of this appendix with the other ‘‘severe accidents.’’ These design (§ 50.59-like) criteria in VIII.B.5.b of this provisions on finality (also refer to features will be reviewed under either appendix, for determining if a departure Section VIII.C of this appendix). VIII.B.5.b or VIII.B.5.c depending upon constitutes a USQ, will apply to the the design function being changed. 2. Tier 2 Change Process remaining Tier 2 information. If the Finally, the Commission rejects NEI’s Comment Summary. NEI submitted proposed departure from Tier 2 request to expand the scope of design many comments on the following information involves the resolution of information that is controlled by the aspects of the Tier 2 change process: other safety issues in addition to the special change process for severe • Scope of the change process in severe accident issues, then the USQ accident issues. VIII.B.5; determination must be based on the Post-design certification rulemaking • Post-design certification rulemaking criteria in VIII.B.5.b of this appendix. changes to Tier 2 information. In its changes to Tier 2 information; However, NEI misidentified the comments dated August 4, 1995, • Restrictions on Tier 2* information; sections of the DCD that describe the Attachment B, pp. 83–89, NEI requested and resolutions of the severe accident issues. that the NRC add a § 50.59-like • Additional aspects of the change Section 19.8 for the U.S. ABWR and provision to the change process that process. Section 19.15 for the System 80+ design would allow design certification Response. The proposed design identify important features that were applicants to make generic changes to certification rule provided a change derived from various analyses of the Tier 2 information prior to the first process for Tier 2 information that had design, such as seismic analyses, fire license application. These applicant- the same elements as the Tier 1 change analyses, and the probabilistic risk initiated, post-certification Tier 2 process in order to implement the two- assessment. This information was used changes would be binding upon all tiered rule structure that was requested in preparation of the Tier 1 information referencing applicants and licensees by industry. Specifically, the Tier 2 and, as stated in the proposed rule, it (i.e., referencing applicants and Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25807 licensees must comply with all such provide its proposed changes to a COL development of the Tier 1 information, changes) and would continue to enjoy applicant who could seek approval as the applicant for design certification ‘‘issue preclusion’’ (i.e., issues with part of its COL application review. The requested that the amount of respect to the adequacy of the change Commission regards these regulatory information in Tier 1 be minimized to could not be raised in a subsequent approaches to be preferable to the NEI provide additional flexibility for an proceeding as a matter of right). proposal. However, if NEI is requesting applicant or licensee who references However, the changes would not be that the Commission change its this design certification. Also, many subject to public notice and comment. preliminary determination, as set forth codes, standards, and design processes, Instead NEI proposed that the changes in its February 15, 1991 SRM on SECY– which were not specified in Tier 1, that would be considered resolved and final 90–377, that generic Tier 2 rulemaking are acceptable for meeting ITAAC were (not subject to further NRC review) six changes be subject to the same specified in Tier 2. The result of these months after submission, unless the restrictive standard as generic Tier 1 actions is that certain significant NRC staff informs the design changes, the Commission declines to do information only exists in Tier 2 and the certification applicant that it disagrees so. The Commission believes that Commission does not want this with the determination that no maintaining a high standard for generic significant information to be changed unreviewed safety question exists. changes to both Tier 1 and Tier 2 will without prior NRC approval. This Tier The Commission declines to adopt the ensure that the benefits of 2* information is identified in the NEI proposal. The applicant-initiated standardization are appropriately generic DCD with italicized text and Tier 2 changes proposed by NEI have achieved. brackets. the essential attributes of a ‘‘rule,’’ and Subsequently, in its comments dated Although the Tier 2* designation was the process of NRC review and July 23, 1996, NEI requested the originally intended to last for the ‘‘approval’’ (negative consent) would Commission to modify this SOC to lifetime of the facility, like Tier 1 appear to be ‘‘rulemaking,’’ as these reflect NRC openness to discuss a post- information, the NRC staff reevaluated terms are defined in Section 551 of the design certification change process and the duration of the change restriction for APA. Section 553(b) of the APA requires related issues after the design Tier 2* information during the public notice in the Federal Register certification rules are completed. The preparation of the proposed rule. The and an opportunity for public comment Commission has determined that NRC staff determined that some of the for all rulemakings, except in certain vendors who submit a design, which is Tier 2* information could expire when situations delineated in Section subsequently certified by rulemaking, the plant first achieves full (100%) 553(b)(A) and (B) which are not may not make changes under a ‘‘50.59- power, after the finding required by 10 applicable to applicant-initiated like’’ process and that NEI’s request is CFR 52.103(g), while other Tier 2* changes. The NEI proposal conflicts outside the scope of this rulemaking. information must remain in effect with the rulemaking requirements of the The Commission believes that vendors throughout the life of the plant that APA. If the NEI proposal is based upon should be limited in making changes to references this rule. The determining a desire to permit the applicant to rulemaking to amend the certification factors were the Tier 1 information that disseminate worthwhile Tier 2 changes, and that this appendix provides an would govern these areas after first full there are three alternatives already appropriate process for making generic power and the NRC staff’s judgement on afforded by Part 52 and this appendix. changes to the DCD (refer to the SRM on whether prior approval was required The applicant (as any member of the SECY–90–377 and the SOC for 10 CFR before implementation of the change public) may submit a petition for Part 52, Section II.1.h). This process is due to the significance of the rulemaking pursuant to Subpart H of 10 available to everyone and the standard information. As a result of NEI’s comments, the CFR Part 2, to modify this design for changes is the same for NRC, the NRC again reevaluated the duration of certification rule to incorporate the applicant, and the public. This the Tier 2* change restrictions. The NRC proposed changes to Tier 2. If the restrictive change process is consistent agrees with NEI that expiration of Tier Commission grants the petition and with the NRC’s goal of achieving and 2* information for the two evolutionary adopts a final rule, the change is preserving resolutions of safety issues to designs should be consistent, unless binding on all referencing applicants provide a stable and predictable there is a design-specific reason for a and licensees in accordance with licensing process. different treatment. The NRC decided VIII.B.2 of this appendix. Also, the Restrictions on Tier 2* information. In that the Tier 2* restrictions for applicant could develop acceptable its comments dated August 4, 1995, equipment seismic qualification documentation to support a Tier 2 Attachment B, pp. 119–123, and in methods and piping design acceptance departure in accordance with VIII.B of subsequent comments dated July 23, criteria could expire at first full power, this appendix. This documentation 1996, pp. 50–54, NEI requested that the because the approved versions of the could be submitted for NRC staff review restriction on departures from all Tier ASME code provide sufficient control of and approval, similar to the manner in 2* information expire at first full power Tier 2* changes for these two areas. which the NRC staff reviews topical and, in any event, the expiration of the reports. 1 Finally, the applicant could Also, the Tier 2* restriction for the restrictions should be consistent for ABWR human factors engineering both the U.S. ABWR and System 80+ 1 Topical reports, which are usually submitted by design and implementation process can designs. The Commission stated in the expire at first full power because the vendors such as GE, Westinghouse, and proposed design certification rule that Combustion Engineering, request NRC staff review NRC staff concluded that step 6 of the and approval of generic information and the restriction on changing Tier 2* Tier 1 implementation process requires approaches for addressing one or more of the information resulted from the that any changes made to the Main Commission’s requirements. If the topical report is development of the Tier 1 information approved by the NRC staff, it issues a safety Control Room and Remote Shutdown evaluation setting forth the bases for the staff’s in the generic DCD. During the System conform with the Human- approval together with any limitations on System Design Implementation Process. referencing by individual applicants and licensees. their applications or responses to requests for Applicants and licensees may incorporate by information. However, limitations in NRC resources However, the fuel design evaluation reference topical reports in their applications, in may affect review schedules for these topical information and the licensing order to facilitate timely review and approval of reports. acceptance criteria for fuel must remain 25808 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations designated as Tier 2* in the U.S. ABWR not expire for the lifetime of a consistent with the Commission’s intent DCD in order to clarify the acceptance referencing facility. that permitted departures from Tier 2* criteria for reviewing changes to the NEI also stated in its comments dated under VIII.B of this appendix should not current fuel design. As discussed in July 23, 1996, that to the extent the also require an exemption, unless Section 4.2 of the U.S. ABWR FSER Commission does not adopt its otherwise required by, or implied by 10 (NUREG–1503), the criteria were based recommendation that all Tier 2* CFR Part 52, Subpart B and, on previous work with GE Nuclear restrictions expire at first full power, the accordingly, has revised paragraph Energy to define the licensing SOC should be modified to reflect the VIII.B.6 of this appendix. As discussed acceptance criteria for core reload NRC staff’s intent that Tier 2* material above, the technical specifications in calculations. in the DCD may be superseded by Chapter 16 of the generic DCD are not Recent industry proposals for information submitted with a license in Tier 2 and, in its comments dated currently operating core fuel designs application or amendment. The September 23, 1996, NEI proposed that have indicated a desire to modify the Commission decided that, if certain Tier requested departures from Chapter 16 fuel burnup limit design parameter. 2* information is changed in a generic by an applicant for a COL require an However, operational experience with rulemaking, the category of the new exemption. The Commission agrees fuel with extended fuel burnup has information (Tier 1, 2*, or 2) would also with NEI’s new position and included indicated that cores should not be be determined in the rulemaking and this provision in Section VIII.C of this allowed to operate beyond the burnup the appropriate process for future appendix. NEI also raised a concern changes would apply. If certain Tier 2* limits specified in the generic DCDs with the requirement for quarterly information is changed on a plant- without NRC approval. This experience reporting of design changes during the specific basis, then the appropriate is summarized in a Commission construction period. This issue is modification to the change process memorandum from James M. Taylor, discussed in section III.J of this SOC. would apply only to that plant. Finally, NEI raised a concern with the ‘‘Reactivity Transients and High Burnup Additional aspects of the change status of 10 CFR 52.63(b)(2) in the two- Fuel,’’ dated September 13, 1994, process. In its comments dated August tiered rule structure that has been including Information Notice (IN) 94– 4, 1995, Attachment B, pp. 109–118, implemented in this appendix and 64, ‘‘Reactivity Insertion Transient and NEI raised some additional concerns claimed that 10 CFR 52.63(b) clearly Accident Limits for High Burnup Fuel,’’ with the Tier 2 change process. The first embodies a two-tier structure. NEI’s dated August 31, 1994. Experimental concern was with the process for claim is not correct. The Commission data on the performance of high burnup determining if a departure from Tier 2 adopted a two-tiered design certification fuel under reactivity insertion information constituted an unreviewed rule structure (Commission SRM on conditions became available in mid- safety question. Specifically, NEI SECY–90–377, dated February 15, 1991) 1993. The NRC issued IN 94–64 and IN identified the following statement in and created a change process for Tier 2 94–64, Supplement 1, on April 6, 1995, section III.H of the SOC for the proposed information that has the same elements to inform industry of the data. The rule. ‘‘* * * if the change involves an as the Tier 1 change process. In unexpectedly low energy deposition to issue that the NRC staff has not addition, the Tier 2 change process initiation of fuel failure in the first test previously approved, then NRC includes a provision that is similar to 10 rod (at 62 GWd/MTU) led to a re- approval is required.’’ A clarification of CFR 50.59, namely VIII.B.5 of this evaluation of the licensing basis this statement was provided in the May appendix. Therefore, as stated in section assumptions in the NRC’s standard 11, 1995 public meeting on design II (Topic 6) of the proposed rule, there review plan (SRP). The NRC performed certification (pp. 12–14 of meeting is no need for 10 CFR 52.63(b)(2) in the a preliminary safety assessment and transcript), when the NRC staff stated two-tiered change process that has been concluded that there was no immediate that the NRC was not creating a new implemented for this appendix. safety issue for currently operating cores criterion for determining unreviewed Subsequently, in its comments dated because of the low to medium burnup safety questions but was explaining July 23, 1996, NEI requested the status of the fuel (refer to Commission existing criteria. A further discussion of Commission to modify Section VIII.B.4 Memorandum from James M. Taylor, this statement took place between the of this appendix so that exemption ‘‘Reactivity Transients and Fuel Damage staff and counsel to GE Nuclear Energy requests are only subject to an Criteria for High Burnup Fuel,’’ dated at the December 4, 1995 public meeting opportunity for a hearing. The November 9, 1994, including an NRR on design certification (pp. 53–56 of Commission decided that NEI’s safety assessment and the joint NRR/ meeting transcript), in which counsel proposal was consistent with the intent RES action plan). Therefore, the NRC for GE Nuclear Energy agreed that a of this appendix and modified Section has determined that additional actions departure which creates an issue that VIII.B.4, accordingly. Also, NEI by industry are not needed to justify was not previously reviewed by the requested the Commission to modify current burnup limits for operating NRC would be evaluated against the Section VIII.B.6.b of this appendix to reactor fuel designs. However, the NRC existing criteria for determining whether restrict the need for a license has determined that it needs to carefully there was an unreviewed safety amendment and an opportunity for a consider any proposed changes to the question. The Commission does not hearing to those Tier 2* changes fuel burnup parameter in the generic believe there is a need for a change to involving unreviewed safety questions. DCDs for these fuel designs until further the language of this appendix. The NEI claimed that a hearing opportunity experience is gained with extended fuel statement above was not included in for Tier 2* changes was unnecessary burnup characteristics. Requests for section III.H of this SOC. and should be provided only if the extension of these burnup limits will be NEI also requested that Section 8(b) of change involves an unreviewed safety evaluated based on supporting the proposed rule be revised to state that question. The Commission disagrees experimental data and analyses, as exemptions are not required for changes with NEI because of the safety appropriate, for current and advanced to the technical specifications or Tier 2* significance of the Tier 2* information. fuel designs. Therefore, the NRC has information that do not involve an The safety significance of the Tier 2* determined that the Tier 2* designation unreviewed safety question. The information was determined at the time for the fuel burnup parameters should Commission has determined that this is that the Tier 1 information was selected. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25809

Any changes to Tier 2* information will of these positions has corresponding 47 of Attachment 1 to SECY–96–077). require a license amendment with the NRC staff approved provisions in the The Commission has removed those appropriate hearing opportunity. respective design control documents requirements from Section IV and has (DCD) and these provisions already reserved the right to impose these 3. Need for Additional Applicable serve the purpose of applicable operational requirements on applicants Regulations regulations for all of the situations and licensees who reference this Comment Summary. NEI and the identified by the NRC staff. In response, appendix (refer to VI.C of this other industry commenters criticized the NRC staff stated that NEI’s statement appendix). The additional applicable Section 5(c) of the proposed design that information in the DCD will regulations that are applicable to certification rule, which designated constitute an applicable regulation applicants or licensees who reference additional applicable regulations for the confuses the difference between design this appendix are specified in the purposes of 10 CFR 52.48, 52.54, 52.59, descriptions approved by rulemaking generic DCD as COL license and 52.63 (refer to NEI Comments dated and the regulations (safety standards) information. August 4, 1995, Attachment B, pp. 24– that are used as the basis to approve the NEI stated that the proposed 57; NEI Comments dated July 23, 1996, design. Furthermore, during a meeting additional applicable regulations were pp. 27–34; and NEI letter dated on April 25, 1994, and in a letter from viewed as penalizing advanced plants September 16, 1996). Mr. Dennis Crutchfield (NRC) to Mr. for incorporating design features that Response. NEI raised many issues in William Rasin (NEI), dated July 25, enhance safety and could impact the its comments. These comments have 1994, the NRC staff stated that design regulatory threshold for currently been consolidated into the following information cannot function as a operating plants. NEI also stated that groups to facilitate documentation of the surrogate for the new (design-specific) applicable regulations are not needed to NRC staff’s responses. applicable regulations because this permit the NRC to deny an exemption NEI stated that there is no information describes only one method request for a design feature that is requirement in 10 CFR Part 52 that for meeting the regulation and would subject to an applicable regulation. The compels the Commission to adopt these not provide a basis for evaluating Commission decided not to codify the new applicable regulations, that the new proposed changes to the previously additional applicable regulations that applicable regulations are not necessary approved design descriptions. were identified in section 5(c) of the for adequate protection or to improve NEI was also concerned that ‘‘broadly proposed rule. Instead, the Commission the safety of the standard designs, and stated’’ applicable regulations could be adopted the following position relative that the applicable regulations are used in the future by the NRC staff to to the proposed additional applicable inconsistent with the Commission’s impose backfits on applicants and regulations. SRM, dated September 14, 1993. NEI licensees that could not otherwise be Although it is the Commission’s also stated that the adoption of new justified on the basis of adequate intent in 10 CFR Part 52 to promote applicable regulations is contrary to the protection of public health and safety, standardization and design stability of purpose of design certification and thereby eroding licensing stability. power reactor designs, standardization Commission policy. The NRC staff However, NEI acknowledged in its and design stability are not exclusive developed the new applicable comments that the NRC staff did not goals. The Commission recognized that regulations in accordance with the goals intend to reinterpret the applicable there may be special circumstances of 10 CFR Part 52, Commission regulations to impose compliance when it would be appropriate for guidance, and to achieve the purposes backfits and because implementation of applicants or licensees to depart from of 10 CFR 52.48, 52.54, 52.59, and 52.63 the applicable regulations was approved the referenced certified designs. (refer to SECY–96–028, dated February in the DCD, the NRC staff could not However, there is a desire of the 6, 1996, and the History of Applicable impose a backfit on the approved Commission to maintain Regulations in Attachment 9 to SECY– implementation without meeting the standardization across a group of 96–077, dated April 15, 1996). The standards in the change process. Also, reactors of a given design. Nevertheless, Commission chose design-specific NEI claimed that the additional Part 52 provides for changes to a rulemaking rather than generic applicable regulations were vague and, certified design in carefully defined rulemaking for the new technical and in some cases, inconsistent with circumstances, and one of these severe accident issues. The Commission previous Commission directions. In circumstances is the option provided to adopted this approach early in the response to NEI’s comments, the NRC applicants and licensees referencing design certification review process staff proposed revised wording and a certified designs to request an because it was concerned that generic special provision for compliance exemption from one or more elements of rulemakings would cause significant backfits to the additional applicable the certified design, e.g., 10 CFR delay in the design certification reviews regulations (refer to SECY–96–077). 52.63(b)(1). The final design and it was thought that the new However, in subsequent comments, NEI certification rule references this requirements would be design-specific stated that the proposed wording provision for Tier 1 and includes a (refer to SRMs on SECY–91–262 and changes and backfit provision did not similar provision for Tier 2. The criteria SECY–93–226). Furthermore, the SOC mitigate its concerns. for NRC review of requests for an discussion for Part 52, Section II.1.e, NEI commented in 1995 that some of exemption from Tier 1 and Tier 2 in the ‘‘Applicability of Existing Standards,’’ the additional applicable regulations are final rule are the same as those for NRC states that new standards may be requirements on an applicant or review of rule exemption requests under required and that these new standards licensee who references this appendix, 10 CFR Part 50 directed at non-certified may be developed in a design-specific and requested in 1996 that these designs, except that the final rule rulemaking. requirements be deleted from the final requires consideration of an additional NEI stated that the applicable rule. The NRC staff moved these factor for Tier 1 exemptions—whether regulations are unnecessary because the requirements from Section 5 of the special circumstances outweigh any NRC staff has applied these technical proposed rules to Section 4 of the rules decrease in safety that may result from positions in reviewing and approving set forth in SECY–96–077, in response the reduction in standardization caused the standard designs. In addition, each to NEI’s 1995 comment (refer to pp. 46– by the exemption. It has been the 25810 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations practice of the Commission to require unless a question of adequate protection Comment Summary. OCRE agreed that there be no significant decrease in or compliance would be presented or, in that the requirements of 10 CFR 52.63(c) the level of safety provided by the the case of renewals, unless the should be added to a new 10 CFR regulations when exemptions from the restoration offers cost-justified, 52.79(e) and NEI had no objection, as regulations in Part 50 are requested. The substantive additional protection. Thus, long as the substantive requirements in Commission believes that a similar unlike the case of exemptions where a § 52.63(c) were not changed. practice should be followed when policy of maintaining enhanced safety Response. Because there is no exemptions from one or more elements can be enforced consistent with the objection to adding the requirements of of a certified design are requested, that basic structure of Part 52, in the case of 10 CFR 52.63(c) to Subpart C of Part 52, is, the granting of an exemption under renewals and new information, as 10 CFR 52.79(e), the Commission will 10 CFR 50.12 or 52.63(b)(1) should not implementation of such a policy over consider this amendment as part of a result in any significant decrease in the industry objections would require future review of Part 52. This future level of safety provided by the design changes to the basic structure of Part 52. review will also consider lessons (Tier 1 and Tier 2). The exemption The Commission has been and still is learned from this rulemaking and will standards in sections VIII.A.4 and unwilling to make fundamental changes determine if 10 CFR 52.63(c) should be VIII.B.4 of the final rule have been to Part 52 because this would introduce deleted from Subpart B of Part 52. modified from the proposed rule to great uncertainty and defeat industry’s 2. Are there other words or phrases codify this practice. reasonable expectation of a stable that should be defined in Section 2 of In adopting this policy the regulatory framework. Nevertheless, the the proposed rule? Commission recognizes that the ABWR Commission on its part also has a Comment Summary. Neither NEI nor design not only meets the Commission’s reasonable expectation that vendors and OCRE suggested other words or phrases safety goals for internal events, but also utilities will cooperate with the that need to be added to the definition offers a substantial overall enhancement Commission in assuring that the level of section. However, NEI recommended in safety as compared, generally, with enhanced safety believed to be achieved expanded definitions for specific terms the current generation of operating with this design will be reasonably in Section 2 of the proposed rule. power reactors. See, e.g. NUREG–1503 maintained for the period of the Response. The Commission has at Section 19.1. The Commission certification (including renewal). revised Section II of this appendix as a recognizes that the safety enhancement This expectation that industry will result of comments from NEI and DOE. is the result of many elements of the cooperate with NRC in maintaining the A discussion of these changes is design, and that much but not all of it safety level of the certified designs provided in sections II.C.2 and II.C.3 of is reflected in the results of the applies to design changes suggested by this SOC. probabilistic risk assessment (PRA) new information, to renewals, and to 3. What change process should apply performed and documented for them. In changes under section VIII.B.5 of the to design-related information developed adopting a rule that the safety final rule. If this reasonable expectation by a combined license (COL) applicant enhancement should not be eroded is not realized, the Commission would or holder that references this design significantly by exemption requests, the carefully review the underlying reasons certification rule? Commission recognizes and expects that and, if the circumstances were Comment Summary. OCRE this will require both careful analysis sufficiently persuasive, consider the recommended the change process in and sound judgment, especially need to reexamine the backfitting and Section 8(b)(5)(i) of the proposed rule considering uncertainties in the PRA renewal standards in Part 52 and the and stated that it is essential that any and the lack of a precise, quantified criteria for Tier 2 changes under section design-related COL information definition of the enhancement which VIII.B.5. At this time there is no reason including the plant-specific PRA (and would be used as the standard. Also, in to believe that cooperation will not be changes thereto) developed by the COL some cases scientific proof that a safety forthcoming and, therefore, no reason to applicant or holder not have issue margin has or has not been eroded may change the regulations. With this belief preclusion and be subject to litigation in be difficult or even impossible. For this and stated Commission policy (and the any COL hearing. NEI recommended reason, it is appropriate to express the exemption standard discussed above), that the COL information be controlled Commission’s policy preference there is no need for the proposed by 10 CFR 50.54 and 50.59 but regarding the grant of exemptions in the additional applicable regulations to be recognized that the COL applicant or form of a qualitative, risk informed embedded in the final rule because the holder must also consider impacts on standard, in section VIII of the final objective of the additional applicable Tier 1 and Tier 2 information. rule, and inappropriate to express the regulations—maintaining the enhanced Subsequently, in its comments dated policy in a quantitative legal standard as level of safety—should be achieved July 23, 1996, NEI requested the part of the additional applicable without them. Commission to modify the response to regulations. this question that was set forth in There are three other circumstances B. Responses to Specific Requests for SECY–96–077. Specifically, NEI stated where the enhanced safety associated Comment that plant-specific changes should be with the ABWR design could be eroded: Only two commenters addressed the implemented under § 50.59 or § 50.90, by design changes introduced by GE at specific requests for comments that as appropriate. The Commission did not the certification renewal stage; by were set forth in section IV of the SOC significantly modify its former response operational experience or other new for the proposed rule. These because the change process must information suggesting that safety commenters were NEI and the Ohio consider the effect on information in the margins believed to be achieved are not Citizens for Responsible Energy, Inc. DCD, as NEI previously acknowledged. in fact present; and by applicant or (OCRE). The following discussion Response. The Commission will licensee design changes under section provides a summary of the comments develop a change process for the plant- VIII.B.5 of the final rule (for changes to and the Commission’s response. specific information submitted in a COL Tier 2 only). In the first two cases Part 1. Should the requirements of 10 CFR application that references this 52 limits NRC’s ability to require that 52.63(c) be added to a new 10 CFR appendix as part of a future review of the safety enhancement be restored, 52.79(e)? Part 52. The Commission expects that Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25811 the change process for the plant-specific hearing. Rather, NEI argued that any 1994) which raises the generic matter of portion of the COL application will be person who wished to challenge the public access to licensee-held similar to VIII.B.5 of this appendix. This change should raise the matter in a information. In view of the generic approach is generally consistent with petition for an enforcement action under nature of OCRE’s concern and the the recommendations of OCRE and NEI. 10 CFR 2.206. pendency of OCRE’s petition, which The Commission agrees with OCRE Response. The Commission has independently raises this matter, the that the plant-specific portion of the determined that an interested person Commission concludes that this COL application will not have issue should be provided the opportunity to rulemaking should not address this preclusion in the licensing hearing. A challenge, in an appropriate licensing matter. discussion of the information that will proceeding, whether the applicant or 7. What is the preferred regulatory have issue preclusion is provided in licensee properly complied with the process (including opportunities for sections II.A.1 and III.F of this SOC. Tier 2 departure process. Therefore, public participation) for NRC review of 4. Are each of the applicable VIII.B.5 of this appendix has been proposed changes to Tier 2 * regulations set forth in Section 5(c) of modified to include a provision for information and the commenter’s basis the proposed rule justified? challenging Tier 2 departures. The for recommending a particular process? Comment Summary. OCRE found scope of finality for plant-specific Comment Summary. OCRE each of the applicable regulations to be departures is discussed in greater detail recommends either an amendment to justified and stated that these in section II.A.1 of this SOC. the license application or an requirements are responsive to issues 6. How should the determinations amendment to the license, with the arising from operating experience and made by an applicant or licensee that requisite hearing rights. NEI will greatly reduce the risk of severe changes may be made under Section recommends NRC approval by letter accidents for plants using these 8(b)(5)(i) of the proposed rule, without with an opportunity for public hearing standard designs. NEI believes that none prior NRC approval, be made available only for those Tier 2 * changes that also of the applicable regulations are to the public in order for those involve either a change in Tier 1 or justified and stated that they are legally determinations to be challenged or for technical specifications, or an and technically unnecessary, could give the changes themselves to be unreviewed safety question. rise to unwarranted backfits, are challenged? Response. The Commission has destabilizing and, therefore, contrary to Comment Summary. OCRE developed a change process for Tier 2 * the purpose of 10 CFR Part 52. recommends that the determinations information, as described in sections Response. The Commission has and descriptions of the changes be set II.A.2 and III.H of this SOC, which determined that it is not necessary to forth in the COL application and that essentially treats the proposed departure codify the new applicable regulations, they should be submitted to the NRC as a request for a license amendment as explained in section II.A.3 of this after COL issuance. Any person wishing with an opportunity for hearing. Since SOC. to challenge the determinations or Tier 2 * departures require NRC review 5. Section 8(b)(5)(i) of the proposed changes should file a petition pursuant and approval, and involve a licensee rule authorizes an applicant or licensee to 10 CFR 2.206. NEI recommends departing from the requirements of this who references the design certification submitting periodic reports that appendix, the Commission regards such to depart from Tier 2 information summarize departures made under requests for departures as analogous to without prior NRC approval if the Section 8(b)(5) to the NRC pursuant to license amendments. Accordingly, applicant or licensee makes a Section 9(b) of the proposed design VIII.B.6 of this appendix specifies that determination that the change does not certification rules, consistent with the such requests will be treated as requests involve a change to Tier 1 or Tier 2 * existing process for NRC notifications for license amendments after the license information, as identified in the DCD; by licensees under 10 CFR 50.59. These is issued, and that the Tier 2 * departure the technical specifications; or an reports will be available in the NRC’s shall not be considered to be matters unreviewed safety question, as defined Public Document Room. resolved by this rulemaking prior to a in Sections 8(b)(5)(ii) and (iii). Where Response. The Tier 2 departure license being issued. Section 8(b)(5)(i) states that a change process in Section 8(b)(5) and the 8. Should determinations of whether made pursuant to that paragraph will no respective reporting requirements in proposed changes to severe accident longer be considered as a matter Section 9(b) of the proposed design issues constitute an unreviewed safety resolved in connection with the certification rule (VIII.B.5 and X.B of question use different criteria than for issuance or renewal of a design this appendix) were based on 10 CFR other safety issues resolved in the certification within the meaning of 10 50.59. It therefore seems reasonable that design certification review and, if so, CFR 52.63(a)(4), should this mean that the information collection and reporting what should those criteria be? the determination may be challenged as requirements that should be used to Comment Summary. OCRE supports not demonstrating that the change may control Tier 2 departures made in the concept behind the criteria in the be made without prior NRC approval or accordance with VIII.B.5 of this proposed rule for determining if a that the change itself may be challenged appendix should generally follow the proposed change to severe accident as not complying with the regulatory scheme in 10 CFR 50.59 issues constitutes an unreviewed safety Commission’s requirements? (except that the requirements should question, but proposes changes to the Comment Summary. OCRE believes also be applied to COL applicants), criteria. NEI agrees with the criteria in that the process for plant-specific absent countervailing considerations the proposed rule but recommends an departures from Tier 2, as well as the unique to the design certification and expansion of the scope of information substantive aspect of the change itself, combined license regulatory scheme in that would come under the special should be open to challenge, although Part 52. OCRE’s proposal raises policy criteria for determining an unreviewed OCRE believes that the second aspect is considerations which are not unique to safety question. the more important. By contrast, NEI this design certification, but are equally Response. The Commission disagrees argued that neither the departure applicable to the Part 50 licensing with the recommendations of both NEI process nor the change should be scheme. In fact, OCRE has submitted a and OCRE. The Commission has subject to litigation in any licensing petition (see 59 FR 30308; June 13, decided to retain the special change 25812 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations process for severe accident information, referenced a design certification rule set forth in Section IV.B of this as described in sections II.A.2 and III.H should be allowed to reference the appendix. of this SOC. design certification. In the operating 9. (a) (1) Should construction permit license hearing, issues would be limited C. Other Issues applicants under 10 CFR Part 50 be to whether the ITAAC have been met. 1. NRC Verification of ITAAC allowed to reference design certification Requiring a construction permit Determinations rules to satisfy the relevant applicant to reference the ITAAC would requirements of 10 CFR Part 50? not be the same as a combined license Comment Summary. In Attachment B (2) What, if any, issue preclusion applicant under 10 CFR Part 52, in of its comments dated August 4, 1995 exists in a subsequent operating license OCRE’s view, apparently because the (pp. 58–66), NEI raised an industry stage and NRC enforcement, after the specific hearing provisions of 10 CFR concern regarding the matters to be Commission authorizes a construction 52.103 would not be employed. Finally, considered by the NRC in verifying permit applicant to reference a design OCRE argued that resolution of these inspections, tests, analyses, and certification rule? issues could be safely deferred because acceptance criteria (ITAAC) (3) Should construction permit the circumstances with which these determinations pursuant to 10 CFR applicants referencing a design issues attend are not likely to be faced. 52.99, specifically citing quality certification rule be either permitted or NEI also argued that a construction assurance and quality control (QA/QC) required to reference the ITAAC? If so, permit applicant should be allowed to deficiencies. Although this issue was what are the legal consequences, in reference design certifications. not specifically addressed in the terms of the scope of NRC review and However, NEI believed that the proposed rule, the following response is approval and the scope of admissible applicant should be permitted, but not provided because of its importance contentions, at the subsequent operating required, to reference the ITAAC. If the relative to future considerations of the license proceeding? applicant did not reference the ITAAC, successful performance of ITAAC for a (4) What would distinguish the ‘‘old’’ nuclear power facility. Subsequently, in 10 CFR Part 50 2-step process from the then ‘‘construction-related issues’’ would be subject to both NRC review its comments dated July 23, 1996, NEI 10 CFR Part 52 combined license requested the Commission to delete process if a construction permit and an opportunity for hearing at the operating license stage in the same significant portions of the NRC’s applicant is permitted to reference a response, which was originally set forth design certification rule and the final manner as construction-related issues in current Part 50 operating license in SECY–96–077 (refer to pages 33–36 of design and ITAAC are given full issue Attachment 1). preclusion in the operating license proceedings. NEI reiterated its view that proceeding? To the extent this design certification issues should be Response. The Commission decided circumstance approximates a combined considered resolved in all subsequent to delete the responses in SECY–96–077 license, without being one, is it NRC proceedings. With respect to on licensee documentation of ITAAC inconsistent with Section 189(b) of the deferring a Commission decision on the verification; NRC inspection; and Atomic Energy Act (added by the matter, NEI suggested that these issues facility ITAAC verification; because Energy Policy Act of 1992) providing be resolved now because the industry they do not directly relate to the design specifically for combined licenses? wishes to ‘‘reinforce’’ the permissibility certification rulemakings. However, the (b)(1) Should operating license of using a design certification in a Part NRC disagrees with NEI’s assertion that applicants under 10 CFR Part 50 be 50 proceeding. Further, NEI argues that QA/QC deficiencies have no relevance allowed to reference design certification deletion of all mention of construction to the NRC determination of whether rules to satisfy the relevant permits and operating licenses in the ITAAC have been successfully requirements of 10 CFR Part 50? design certification rule could be completed. Simply confirming that an (2) What should be the legal construed as indicating the ITAAC had been performed in some consequences, from the standpoints of Commission’s desire to preclude a manner and a result obtained apparently issue resolution in the operating license construction permit or operating license showing that the acceptance criteria had proceeding, NRC enforcement, and applicant from referencing a design been met would not be sufficient to licensee operation if a design certification. support a determination that the ITAAC certification rule is referenced by an Response. Although 10 CFR Part 52 had been successfully completed. The applicant for an operating license under provides for referencing of design manner in which an ITAAC is 10 CFR Part 50? certification rules in Part 50 performed can be relevant and material (c) Is it necessary to resolve these applications and licenses, the to the results of the ITAAC. For issues as part of this design certification, Commission wishes to reserve for future example, in conducting an ITAAC to or may resolution of these issues be consideration the manner in which a verify a pump’s flow rate, it is logical, deferred without adverse consequence Part 50 applicant could be permitted to even if not explicitly specified in the (e.g., without foreclosing alternatives for reference this design certification and ITAAC, that the gauge used to verify the future resolution). whether it should be permitted or pump flow rate must be calibrated in Comment Summary. OCRE proposed required to reference the ITAAC. This accordance with relevant QA/QC that a construction permit applicant decision is due to the manner in which requirements and that the test should be allowed to reference design ITAAC were developed for this configuration is representative of the certifications and that the applicant be appendix and recognition of the lack of final as-built plant conditions (i.e. valve required to reference ITAAC because experience with design certifications in or system line-ups, gauge locations, they are Tier 1. OCRE indicated that in combined licenses, in particular the system pressures or temperatures). a construction permit hearing, those implementation of ITAAC. Therefore, Otherwise, the acceptance criteria for issues representing a challenge to the the Commission has decided that it is pump flow rate in the ITAAC could design certification rule would be appropriate for the final rule to have apparently be met while the actual flow prohibited pursuant to 10 CFR 2.758. At some uncertainty regarding the manner rate in the system could be much less the operating license stage, only an in which this appendix could be than that required by the approved applicant whose construction permit referenced in a Part 50 proceeding, as design. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25813

The NRC has determined that a QA/ significance of ITAAC related to careful discussion and negotiation QC deficiency may be considered in verification of the facility, the licensee between the NRC staff, NRC’s Office of determining whether an ITAAC has will implement similar QA processes for the General Counsel, and been successfully completed if: (1) The ITAAC activities that are not safety- representatives of the applicant and QA/QC deficiency is directly and related. NEI. They, therefore, suggested that the materially related to one or more aspects During the ITAAC development, the definition of the DCD in Section 2(a) of of the relevant ITAAC (or supporting design certification applicants the proposed rule be amended to Tier 2 information); and (2) the determined that it was impossible (or explicitly include the DCD Introduction deficiency (considered by itself, with extremely burdensome) to provide all and that Section 4(a) of the proposed other deficiencies, or with other details relevant to verifying all aspects rule be amended to generally require information known to the NRC) leads of ITAAC (e.g., QA/QC) in Tier 1 or Tier that applicants or licensees comply with the NRC to question whether there is a 2. Therefore, the NRC staff accepted the the entire DCD. However, in the event reasonable basis for concluding that the applicants’ proposal that top-level that the Commission rejected their relevant aspect of the ITAAC has been design information be stated in the suggestion, NEI alternatively argued that successfully completed. This approach ITAAC to ensure that it was verified, the substantive provisions of the DCD is consistent with the NRC’s current with an emphasis on verification of the Introduction be directly incorporated methods for verifying initial test design and construction details in the into the design certification rule’s programs. The NRC recognizes that ‘‘as-built’’ facility. To argue that language (refer to NEI Comments dated there may be programmatic QA/QC consideration of underlying information August 4, 1995, Attachment B, pp. 90– deficiencies that are not relevant to one which is relevant and material to 108, and July 23, 1996, pp. 43–49; GE or more aspects of a given ITAAC under determining whether ITAAC have been Comments, Attachment A, pp. 10–11). review and, therefore, should not be successfully completed, ignores the Response. The DCD Introduction was relevant to or considered in the NRC’s history of ITAAC development. In created to be a convenient explanation determination as to whether an ITAAC summary, the Commission concludes of some provisions of the design has been successfully completed. that information such as QA/QC certification rule and was not intended Similarly, individual QA/QC deficiencies which are relevant and to become rule language itself. deficiencies unrelated to an aspect of material to ITAAC may be considered Therefore, the Commission declines the the ITAAC in question would not form by the NRC in determining whether the suggestion to incorporate the DCD the basis for an NRC determination that ITAAC have been successfully introduction, but adopted NEI’s an ITAAC has not been met. Using the completed. Despite this conclusion, the alternative suggestion of incorporating ITAAC for pump flow rate example, a Commission has decided to add a substantive procedural and specific QA deficiency in the calibration provision to this appendix (IX.B.1), administrative requirements into the of pump gauges would not preclude an which was requested by NEI. This design certification rule. It is the NRC determination of successful ITAAC provision requires the NRC’s findings Commission’s view that the procedural completion if the licensee could (that the prescribed acceptance criteria and administrative provisions described demonstrate that the original deficiency have been met) to be based solely on the in the DCD Introduction should be was properly corrected (e.g., analysis, inspections, tests, and analyses. The included in, and be an integrated part scope of effect, root cause Commission has added this provision, of, the design certification rule. As a determination, and corrective actions as which is fully consistent with 10 CFR result, Sections II, III, IV, VI, VIII, and X of this appendix have been revised appropriate), or that the deficiency Part 52, with the understanding that it and Section IX was created to adopt could not have materially affected the does not affect the manner in which the appropriate provisions from the DCD test in question. NRC intends to implement 10 CFR 52.99 and 52.103(g), as described above. Introduction. In some cases, the Furthermore, although Tier 1 wording of these provisions has been information was developed to focus on 2. DCD Introduction modified, as appropriate, to achieve the performance of the structures, Comment Summary. The proposed clarity or to conform with the final systems, and components of the design, design certification rule language. the information contains implicit rule incorporated Tier 1 and Tier 2 quality standards. For example, the information into the DCD but did not 3. Duplicate Documentation in Design design descriptions for reactor and fluid include the introduction to the DCD. Certification Rule The SOC for the proposed rule indicated systems describe which systems are Comment Summary. On page 4 of its that this was a deliberate decision, ‘‘safety-related;’’ important piping comments, dated August 7, 1995, the stating: systems are classified as ‘‘Seismic Department of Energy (DOE) Category I’’ and identify the ASME Code The introduction to the DCD is neither Tier recommended that the process for Class; and important electrical and 1 nor Tier 2 information, and is not part of preparing the design certification rule instrumentation and control systems are the information in the DCD that is be simplified by eliminating the DCD, classified as ‘‘Class 1E.’’ The use of incorporated by reference into this design which DOE claims is essentially a certification rule. Rather, the DCD these terms by the evolutionary plant introduction constitutes an explanation of repetition of the Standard Safety designers was meant to ensure that the requirements and other provisions of this Analysis Report (SSAR). DOE’s concern, systems would be built and maintained design certification rule. If there is a conflict which was further clarified during a to the appropriate standards. Quality between the explanations in the DCD public meeting on December 4, 1995, is assurance deficiencies for these systems introduction and the explanations of this that the NRC will require separate would be assessed for their impact on design certification rule in these statements copies of the DCD and SSAR to be the performance of the ITAAC, based on of consideration (SOC), then this SOC is maintained. During the public meeting, their safety significance to the system. controlling. DOE also expressed a concern that The QA requirements of 10 CFR Part 50, Both the applicant and NEI took § 52.79(b) could be confusing to an Appendix B, apply to safety-related strong exception to this statement. They applicant for a combined license activities. Therefore, the Commission both argued that the language of the because it currently states: ‘‘The final anticipates that, because of the special DCD introduction was the subject of safety analysis report and other required 25814 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations information may incorporate by leakage. NRC classified this concern as in substantial occupational exposures reference the final safety analysis report a generic issue (C–8). An NRC study of with little safety benefit. Therefore, the for a certified standard design.’’ Generic Issue C–8 showed that neither Commission declines to adopt OCRE’s Response. The NRC does not require the installation or removal of the recommendation that a positive- duplicate documentation for this design MSIVLCS could be justified. Operating pressure MSIVLCS be incorporated into certification rule. The DCD is the only experience with these systems has the U.S. ABWR design. document that is incorporated by shown that the MSIVLCS has required reference into this appendix in order to substantial maintenance and resulted in 5. In its Comments, Dated August 12, meet the requirements of Subpart B of substantial worker radiation exposure. 1995, OCRE Stated Part 52. The SSAR supports the final The BWR Owners Group subsequently The ABWR Standby Liquid Control System design approval (FDA) that was issued proposed a resolution that would requires simultaneous parallel, two-pump under Appendix O to 10 CFR Part 52. eliminate the safety-related MSIVLCS operation to achieve 100 gpm flow rate, The DCD was developed to meet the and take cognizance of the fact that necessary to comply with 10 CFR 50.62(c)(4). requirements for incorporation by plate-out and holdup of fission products However, a single failure rendering one train reference and to conform with requests leaking past the main steam isolation inoperable would only yield a flow of 50 from the industry such as deletion of the valves will occur in the main steam gpm, which does not comply with the ATWS quantitative portions of the design- lines and condenser. For the purpose of rule. OCRE recommends increasing the specific probabilistic risk assessment. giving credit to iodine holdup and plate- capacity of each SLCS train to 100 gpm, so Because the DCD terminology was not out in the main steam lines and that the SLCS can perform its ATWS envisioned at the time that Part 52 was condensers, the NRC requires that the mitigation function even with a single developed, the Commission will main steam piping (including its failure. consider modifying § 52.79(b), as part of associated piping to the condenser) and its future review of Part 52, in order to the condenser remain structurally intact Response. The ATWS rule (10 CFR clarify the use of the term ‘‘final safety following a safe shutdown earthquake 50.62) requires the following with analysis report.’’ In the records and (Refer to NRC Commission paper, regard to the SLCS for a boiling water reporting requirements in Section X of SECY–93–087, ‘‘Policy, Technical, and reactor: ‘‘Each boiling water reactor this appendix, additional terms were Licensing Issues Pertaining to must have a standby liquid control Evolutionary and Advanced Light-Water used to distinguish between the system (SLCS) with the capability of Reactor (ALWR) Designs,’’ dated April documents to be maintained by the injecting into the reactor pressure vessel 2, 1993). The BWR Owners Group applicant for this design certification a borated water solution at such a flow rule and the document to be maintained submitted a topical report that proposed to eliminate the MSIVLCS and increase rate, level of boron concentration and by an applicant or licensee who boron-10 isotope enrichment, and references this appendix. These new the allowable MSIV leakage rates by taking credit for the holdup and plate- accounting for reactor pressure vessel terms are defined in Section II of this volume, that the resulting reactivity appendix and further described in the out of fission products. The NRC has control is at least equivalent to that section-by-section discussion on records already approved plant specific resulting from injection of 86 gallons and reporting in section III.J of this SOC. technical specification changes to per minute of 13 weight percent sodium The applicant chose to continue to eliminate the MSIVLCS for the Hatch, reference the SSAR as the supporting Duane Arnold, and Limerick plants. pentaborate decahydrate solution at the document for its FDA. As a result, the The U.S. ABWR design was evaluated natural boron-10 isotope abundance into applicant must maintain the SSAR for against a number of design basis a 251-inch inside diameter reactor the duration of the FDA. accidents and was approved without a pressure vessel for a given core design.’’ MSIVLCS. For the U.S. ABWR, fission For the U.S. ABWR design with a 278 4. In its Comments, Dated August 12, product holdup and plate-out in inch inside diameter vessel, the ATWS 1995, OCRE Stated components of the main steam system rule is satisfied with injection of 100 Although the ABWR will use the same type was justified and, therefore, was gpm of 13.4 weight percent of natural of Main Steam Isolation Valves as are used assumed in NRC’s design basis analyses. boron solution. in operating BWRs, it will not have a MSIV However, for the main steam line break, Leakage Control System. Instead, GE is taking the NRC assumed that one of the four The Commission has previously credit for fission product retention in the main steam lines ruptured between the concluded, as part of the ATWS main steam lines and main condenser. outer isolation valve and turbine control rulemaking, that a single-failure need However, in a main steam line break outside valves, and did not take credit for not be assumed in the evaluation of the of containment, a design basis event, such retention of iodine and noble gases in SLCS. The statements of consideration fission product retention will not occur. the coolant released through the break. for the ATWS rule 10 CFR 50.62 (49 FR Given the excessive leakage experience of MSIVs in operating BWRs, it would be Any leakage through the MSIV after 26036; June 26, 1984), under the prudent to incorporate a MSIVLCS into the isolation was also assumed to be heading ‘‘Considerations Regarding ABWR design. OCRE would recommend a released directly to the atmosphere. The System and Equipment Criteria,’’ states: positive pressure MSIVLCS, which would contribution of this leakage is ‘‘In view of the redundancy provided in pressurize the main steam lines between the insignificant when compared to the existing reactor trip systems, the inboard and outboard MSIVs after MSIV amount of reactor coolant lost through equipment required by this amendment closure to a pressure above that in the reactor the break prior to automatic isolation of does not have to be redundant within pressure vessel. Thus, any leakage through the MSIV. In summary, the U.S. ABWR the inboard MSIV will be into the reactor. itself.’’ OCRE presented no information represents an improved boiling water which would lead the Commission to Response. The NRC had concerns reactor design that reduces worker reconsider and change its previous with the effectiveness of the main steam radiation exposure, and meets the determination with respect to a single- isolation valve leakage collection system requirements of 10 CFR Part 100 failure and the Commission declines to (MSIVLCS) to perform its intended without the need for a MSIVLCS. adopt OCRE’s proposal. function under conditions of high MSIV Inclusion of an MSIVLCS would result Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25815

6. In its Comments, Dated August 12, Therefore, they are not subject to the accident. The NRC staff required that 1995, OCRE Stated motor operator failure mode and due to the U.S. ABWR design must be able to In the ABWR, the drywell to wetwell the reduced frequency of surveillance ensure that safe shutdown can be vacuum breakers consist of a single vacuum testing and position indication, these achieved assuming that all equipment in breaker valve in each line. In operating check valves are less likely to be stuck any one fire area will be rendered BWRs, there are two vacuum breaker valves open when needed during an accident. inoperable by fire and that reentry into in series in each line. The ABWR design thus A single failure of the vacuum breaker the fire area for repairs and operator is vulnerable to a single failure, a stuck-open in the stuck-open position is, however, actions is not possible. Because of its vacuum breaker, which would result in considered in the evaluation of severe physical configuration, the control room suppression pool bypass, which can accident mitigation capability. The is excluded from this approach and the overpressurize the containment in both analysis performed by GE indicates that U.S. ABWR is provided with an design basis and severe accidents. Having the the various containment spray systems independent alternative shutdown containment function vulnerable to a single are capable of mitigating the failure is unacceptable. OCRE recommends capability that is physically and the addition of a second vacuum breaker consequences of this scenario. In electrically independent of the control valve in series with the one proposed in the addition to the normal containment room. In the reactor containment design. spray system, the containment spray building, the safety divisions are widely header can be supplied with water from Response. The wetwell to drywell separated around containment so that a the AC independent water addition vacuum breaker system of operating single fire will not cause the failure of system (fire system) to mitigate bypass BWRs varies. Some operating BWRs any combination of active components for severe accidents. that could prevent safe shutdown. have a single check valve per line GE performed an evaluation of many (typically Mark I’s), others have two Additionally, the U.S. ABWR potential enhancements, including containment is inerted with nitrogen check valves in series (typically Mark adding a second vacuum breaker valve II’s), and still others have a check valve during power operation which will in series (Technical Support Document prevent propagation of any potential fire in series with a motor operated valve for the ABWR). This evaluation (typically Mark III’s). The main concern inside containment. concludes that the potential safety Evaluation of fire protection using with the number of valves per vacuum enhancement of a second vacuum breaker line focuses on the suppression this guidance assures an acceptable breaker valve in series is minimal due level of safety for the U.S. ABWR. pool bypass capability of the to the existing design features. The NRC containment design. In the evaluation of Instead of trying to protect equipment in evaluated GE’s analysis of various the fire area, the enhanced guidance the suppression pool bypass capability, design alternatives and concurs with a number of factors other than the requires that equipment needed for safe GE’s conclusion. Although OCRE’s shutdown be located in separate areas of number of valves in each line must be suggested design change (the addition of considered to determine the the plant so that one fire will not a second vacuum breaker valve in damage enough equipment to jeopardize acceptability of the design. These factors series) could minimally enhance safety, are specified in the Standard Review safe shutdown. While the use of the costs of such a change are not armored electrical cable may provide Plan Section 6.2.1.1.C, Appendix A justified in view of the marginal (NUREG–0800) and include the some protection to the electrical cables increase in safety (refer to section IV of in the fire area, it does not ensure that capability of containment sprays, this SOC). Accordingly, the Commission periodic bypass leakage testing and the cables will not be affected by the declines to adopt OCRE’s proposal. heat generated by the fire. In addition, surveillance, and vacuum relief valve 7. In its comments, dated August 12, following a fire or other event that could position indication. A complete 1995, OCRE referred to additional affect the cables, it would be impossible discussion of all these factors is remarks made in a letter from the included in the NRC’s NUREG–1503, Advisory Committee on Reactor to inspect the cables to determine if they Volume 1, ‘‘Final Safety Evaluation Safeguards (ACRS), dated July 18, 1989, were damaged by the event. Therefore, Report Related to the Certification of the on proposed NRC staff actions regarding the NRC staff does not agree that the Advanced Boiling Water Reactor the fire risk scoping study (NUREG/CR– ABWR should be required to use Design,’’ Sections 6.2.1.5, 6.2.1.8, 5088). OCRE believes that the armored electrical cables. 19.1.3.5.3, 19.2.3.3.5, and 20.5.1. recommendation, from two ACRS III. Section-by-Section Discussion The U.S. ABWR wetwell to drywell members, that the NRC staff require the vacuum breaker system consists of eight use of armored electrical cable in A. Introduction lines, with a single check valve per line. advanced light-water reactors is sound The purpose of Section I of Appendix For design basis accidents, a single advice. OCRE recommended that the A to 10 CFR Part 52 (‘‘this appendix’’) failure of the vacuum breaker in the NRC require the use of armored cable in is to identify the standard plant design stuck-open position is not required to be the U.S. ABWR and in all future nuclear that is approved by this design considered for the U.S. ABWR. The U.S. power plants. certification rule and the applicant for ABWR vacuum breakers are biased Response. In reviewing the U.S. certification of the standard design. closed due to gravity and have ABWR design, the NRC staff used the Identification of the design certification redundant position indication and enhanced guidance described in SECY– applicant is necessary to implement this alarm in the control room. Operating 90–016, ‘‘Evolutionary Light Water appendix, for two reasons. First, the plants have experienced stuck-open Reactor (LWR) Certification Issues and implementation of 10 CFR 52.63(c) vacuum breakers as a result of monthly Their Relationships to Current depends on whether an applicant for a stroke testing of the vacuum breakers. Regulatory Requirements,’’ dated combined license (COL) contracts with Most of these failures have been related January 12, 1990. The Commission the design certification applicant to to the motor-operators installed for the approved the NRC staff’s position in provide the generic DCD and supporting purpose of surveillance testing. The U.S. SECY–90–016. This guidance was used design information. If the COL applicant ABWR vacuum breakers do not have to resolve fire protection issues to does not use the design certification motor operators and are subject to minimize fire as a significant applicant to provide this information, functional testing every 18 months. contributor to the likelihood of a severe then the COL applicant must meet the 25816 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations requirements in 10 CFR 52.63(c). Also, of a facility referencing the design 2 do not negate the requirement in X.A.1 of this appendix imposes a certification. The ITAAC verify that the Section III.B to reference Tier 2. NEI requirement on the design certification as-built facility conforms with the requested the Commission, in its applicant to maintain the generic DCD approved design and applicable comments dated July 23, 1996, to throughout the time period in which regulations. In accordance with 10 CFR include several statements on this appendix may be referenced. 52.103(g), the Commission must find compliance with Tier 2 in the definitions of Tier 1 and Tier 2. The B. Definitions that the acceptance criteria in the ITAAC are met before operation. After Commission determined that inclusion The terms Tier 1, Tier 2, Tier 2*, and the Commission has made the finding of those statements in the Tier 2 COL action items (license information) required by 10 CFR 52.103(g), the definition was appropriate, but to also are defined in this appendix because ITAAC do not constitute regulatory include them in the Tier 1 definition these concepts were not envisioned requirements for licensees or for would be unnecessarily redundant. when 10 CFR Part 52 was developed. renewal of the COL. However, Certain Tier 2 information has been The design certification applicants and subsequent modifications to the facility designated in the generic DCD with the NRC staff used these terms in must comply with the design brackets and italicized text as ‘‘Tier 2*’’ implementing the two-tiered rule descriptions in the plant-specific DCD information and, as discussed in greater structure that was proposed by industry unless changes are made in accordance detail in the section-by-section after the issuance of 10 CFR Part 52. In with the change process in Section VIII explanation for Section VIII, a plant- addition, during consideration of the of this appendix. The Tier 1 interface specific departure from Tier 2* comments received on the proposed requirements are the most significant of information requires prior NRC rule, the Commission determined that it the interface requirements for systems approval. However, the Tier 2* would be useful to distinguish between that are wholly or partially outside the designation expires for some of this the ‘‘plant-specific DCD’’ and the scope of the standard design, which information when the facility first ‘‘generic DCD,’’ the latter of which is were submitted in response to 10 CFR achieves full power after the finding incorporated by reference into this 52.47(a)(1)(vii) and must be met by the required by 10 CFR 52.103(g). The appendix and remains unaffected by site-specific design features of a facility process for changing Tier 2* plant-specific departures. This that references the design certification. information and the time at which its distinction is necessary in order to The Tier 1 site parameters are the most status as Tier 2* expires is set forth in clarify the obligations of applicants and significant site parameters, which were VIII.B.6 of this appendix. licensees that reference this appendix. submitted in response to 10 CFR A definition of ‘‘combined license Also, the technical specifications that 52.47(a)(1)(iii). An application that (COL) action items’’ (COL license are located in Chapter 16 of the generic information) has been added to clarify references this appendix must DCD were designated as ‘‘generic that COL applicants are required to demonstrate that the site parameters technical specifications’’ to facilitate the address these matters in their license (both Tier 1 and Tier 2) are met at the special treatment of this information in application, but the COL action items proposed site (refer to discussion in the final rule (refer to section II.A.1 of are not the only acceptable set of III.D of this SOC). this SOC). Therefore, appropriate information. An applicant may depart definitions for these additional terms Tier 2 is the portion of the design- from or omit these items, provided that are included in the final rule. related information contained in the the departure or omission is identified The Tier 1 portion of the design- DCD that is approved by this appendix and justified in the FSAR. After related information contained in the but is not certified. Tier 2 information issuance of a construction permit or DCD is certified by this appendix and, is subject to the backfit provisions in COL, these items are not requirements therefore, subject to the special backfit VIII.B of this appendix. Tier 2 includes for the licensee unless such items are provisions in VIII.A of this appendix. the information required by 10 CFR restated in its FSAR. An applicant who references this 52.47, with the exception of generic In developing the proposed design appendix is required to incorporate by technical specifications and conceptual certification rule, the Commission reference and comply with Tier 1, under design information, and supporting contemplated that there would be both III.B and IV.A.1 of this appendix. This information on the inspections, tests, generic (master) DCDs maintained by information consists of an introduction and analyses that will be performed to the NRC and the design certification to Tier 1, the design descriptions and demonstrate that the acceptance criteria applicant, as well as individual plant- corresponding ITAAC for systems and in the ITAAC have been met. As with specific DCDs, maintained by each structures of the design, design material Tier 1, III.B and IV.A.1 of this appendix applicant and licensee who references applicable to multiple systems of the require an applicant who references this this design certification rule. The design, significant interface appendix to incorporate Tier 2 by generic DCDs (identical to each other) requirements, and significant site reference and to comply with Tier 2 would reflect generic changes to the parameters for the design. The design (except for the COL action items and version of the DCD approved in this descriptions, interface requirements, conceptual design information). The design certification rulemaking. The and site parameters in Tier 1 were definition of Tier 2 makes clear that Tier generic changes would occur as the derived entirely from Tier 2, but may be 2 information has been determined by result of generic rulemaking by the more general than the Tier 2 the Commission, by virtue of its Commission (subject to the change information. The NRC staff’s evaluation inclusion in this appendix and its criteria in Section VIII of this appendix). of the Tier 1 information, including a designation as Tier 2 information, to be In addition, the Commission understood description of how this information was an approved (‘‘sufficient’’) method for that each applicant and licensee developed is provided in Section 14.3 of meeting Tier 1 requirements. However, referencing this Appendix would be the FSER. Changes to or departures from there may be other acceptable ways of required to submit and maintain a plant- the Tier 1 information must comply complying with Tier 1. The appropriate specific DCD. This plant-specific DCD with VIII.A of this appendix. criteria for departing from Tier 2 would contain (not just incorporate by The Tier 1 design descriptions serve information are set forth in Section VIII reference) the information in the generic as design commitments for the lifetime of this appendix. Departures from Tier DCD. The plant-specific DCD would be Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25817 updated as necessary to reflect the legal effect of incorporation by reference considered to be part of this appendix. generic changes to the DCD that the is that the material is treated as if it were The conceptual design information is Commission may adopt through published in the Federal Register. This for those portions of the plant that are rulemaking, any plant-specific material, like any other properly-issued outside the scope of the standard design departures from the generic DCD that regulation, has the force and effect of and are intermingled throughout Tier 2. the Commission imposed on the law. Tier 1 and Tier 2 information, as As provided by 10 CFR 52.47(a)(1)(ix), licensee by order, and any plant-specific well as the generic technical these conceptual designs are not part of departures that the licensee chose to specifications have been combined into this appendix and, therefore, are not make in accordance with the relevant a single document, called the generic applicable to an application that processes in Section VIII of this design control document (DCD), in references this appendix. Therefore, the appendix. Thus, the plant-specific DCD order to effectively control this applicant does not need to conform with would function akin to an updated Final information and facilitate its the conceptual design information that Safety Analysis Report, in the since that incorporation by reference into the rule. was provided by the design certification it would provide the most complete and The generic DCD was prepared to meet applicant. The conceptual design accurate information on a plant’s the requirements of the OFR for information, which consists of site- licensing basis for that part of the plant incorporation by reference (1 CFR Part specific design features, was required to within the scope of this appendix. 51). One of the requirements of OFR for facilitate the design certification review. However, the proposed rule defined incorporation by reference is that the Conceptual design information is only the concept of the ‘‘master’’ DCD. design certification applicant must neither Tier 1 nor Tier 2. The The Commission continues to believe make the DCD available upon request introduction to Tier 2 identifies the that there should be both a generic DCD after the final rule becomes effective. location of the conceptual design and plant-specific DCDs. To clarify this The applicant requested the National information. The Technical Support matter, the proposed rule’s definition of Technical Information Service (NTIS) to Document provides GE’s evaluation of DCD has been redesignated as the distribute the generic DCD for them. various design alternatives to prevent ‘‘generic DCD,’’ a new definition of Therefore, paragraph A states that and mitigate severe accidents, and does ‘‘plant-specific DCD’’ has been added, copies of the DCD can be obtained from not constitute design requirements. The and conforming changes have been NTIS, 5285 Port Royal Road, Commission’s assessment of this made to the remainder of the rule. Springfield, VA 22161. The NTIS order information is discussed in section IV of Further information on exemptions or numbers for paper or CD–ROM copies of this SOC on environmental impacts. departures from information in the DCD the ABWR DCD are PB97–147847 or Paragraph B also states that the cross is provided in section III.H below. The PB97–502090, respectively. references from certain locations in Tier Final Safety Analysis Report (FSAR) The generic DCD (master copy) for 2 of the DCD to portions of the that is required by § 52.79(b) will this design certification will be archived probabilistic risk assessment (PRA) in consist of the plant-specific DCD, the at NRC’s central file with a matching the ABWR Standard Safety Analysis site-specific portion of the FSAR, and copy at OFR. Copies of the up-to-date Report (SSAR) do not incorporate the the plant-specific technical DCD will also be available at the NRC’s PRA into Tier 2. These cross references specifications. Public Document Room. Questions were included to clarify the format of During the resolution of comments on concerning the accuracy of information the DCD. The detailed methodology and the final rules in SECY–96–077, the in an application that references this quantitative portions of the design- Commission decided to treat the appendix will be resolved by checking specific probabilistic risk assessment technical specifications in Chapter 16 of the generic DCD in NRC’s central file. If (PRA), as required by 10 CFR the DCD as a special category of a generic change (rulemaking) is made 52.47(a)(1)(v), were not included in the information and to designate them as to the DCD pursuant to the change DCD, as requested by NEI and the generic technical specifications (refer to process in Section VIII of this appendix, applicant for design certification. The II.A.1 of SOC). A COL applicant must then at the completion of the NRC agreed with the request to delete submit plant-specific technical rulemaking the NRC will request this information because conformance specifications that consist of the generic approval of the Director, OFR for the with the deleted portions of the PRA is technical specifications, which may be changed incorporation by reference and not necessary. Also, the NRC’s position modified under Section VIII.C of this change its copies of the generic DCD appendix, and the remaining plant- and notify the OFR and the design is predicated in part upon NEI’s specific information needed to complete certification applicant to change their acceptance, in conceptual form, of a the technical specifications, including copies. The Commission is requiring future generic rulemaking that will bracketed values. that the design certification applicant require a COL applicant or licensee to maintain an up-to-date copy under have a plant-specific PRA that updates C. Scope and Contents X.A.1 of this appendix because it is and supersedes the design-specific PRA The purpose of Section III of this likely that most applicants intending to supporting this rulemaking and appendix is to describe and define the reference the standard design will maintain it throughout the operational scope and contents of this design obtain the generic DCD from the design life of the facility. Cross references from certification and to set forth how certification applicant. Plant-specific Tier 2 to the proprietary and safeguards documentation discrepancies or changes to and departures from the information in the ABWR SSAR do inconsistencies are to be resolved. generic DCD will be maintained by the incorporate that information into Tier 2 Paragraph A is the required statement of applicant or licensee that references this (refer to discussion on secondary the Office of the Federal Register (OFR) appendix in a plant-specific DCD, under references). for approval of the incorporation by X.A.2 of this appendix. Paragraphs C and D set forth the reference of Tier 1, Tier 2, and the In addition to requiring compliance manner in which potential conflicts are generic technical specifications into this with this appendix, paragraph B to be resolved. Paragraph C establishes appendix and paragraph B requires COL clarifies that the conceptual design the Tier 1 description in the DCD as applicants and licensees to comply with information and the ‘‘Technical Support controlling in the event of an the requirements of this appendix. The Document for the ABWR’’ are not inconsistency between the Tier 1 and 25818 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

Tier 2 information in the DCD. exemptions from the generic DCD as of references this appendix, as required by Paragraph D establishes the generic DCD the time of submission of the Subpart C of 10 CFR Part 52. An as the controlling document in the event application. The Commission expects applicant may depart from or omit these of an inconsistency between the DCD that the plant-specific DCD will become items, provided that the departure or and either the application for the plant’s final safety analysis report omission is identified and justified in its certification of the standard design, (FSAR), by including within its pages, at application (FSAR). Paragraph A.2.f referred to as the Standard Safety the appropriate points, information such requires that the application include the Analysis Report, or the final safety as site-specific information for the information required by 10 CFR 52.47(a) evaluation report for the certified design portions of the plant outside the scope that is not within the scope of this rule, and its supplement. of the referenced design, including such as generic issues that must be Paragraph E makes it clear that design related ITAAC, and other matters addressed by an applicant that activities that are wholly outside the required to be included in an FSAR by references this rule. Paragraph A.3 scope of this design certification may be 10 CFR 50.34. Integration of the plant- requires the applicant to physically performed using site-specific design specific DCD and remaining site-specific include, not simply reference, the parameters, provided the design information into the plant’s FSAR, will proprietary and safeguards information activities do not affect Tier 1 or Tier 2, result in an application that is easier to referenced in the U.S. ABWR DCD, or its or conflict with the interface use and should minimize ‘‘duplicate equivalent, to assure that the applicant requirements in the DCD. This provision documentation’’ and the attendant has actual notice of these requirements. applies to site-specific portions of the possibility for confusion (refer to Paragraph IV.B reserves to the plant, such as the service water intake sections II.C.3 and III.J of this SOC). Commission the right to determine in structure. NEI requested insertion of this Paragraph A.2.a is also intended to what manner this design certification clarification into the final rule (refer to make clear that the initial application may be referenced by an applicant for a its comments on the Tier 1 definition must include the reports on departures construction permit or operating license dated July 23, 1996). Because this and exemptions as of the time of under 10 CFR Part 50. This statement is not a definition, the submission of the application. determination may occur in the context Commission decided that the Paragraph A.2.b requires that the of a subsequent rulemaking modifying appropriate location is in Section III of application include the reports required 10 CFR Part 52 or this design the final rule. by paragraph X.B of this appendix for certification rule, or on a case-by-case exemptions and departures proposed by basis in the context of a specific D. Additional Requirements and the applicant as of the date of application for a Part 50 construction Restrictions submission of its application. Paragraph permit or operating license. This Section IV of this appendix sets forth A.2.c requires submission of plant- provision was necessary because the additional requirements and restrictions specific technical specifications for the evolutionary design certifications were imposed upon an applicant who plant that consists of the generic not implemented in the manner that references this appendix. Paragraph technical specifications from Chapter 16 was originally envisioned at the time IV.A sets forth the information of the DCD, with any changes made that Part 52 was created. The requirements for these applicants. This under Section VIII.C of this appendix, Commission’s concern is with the appendix distinguishes between and the technical specifications for the manner in which ITAAC were information and/or documents which site-specific portions of the plant that developed and the lack of experience must actually be included in the are either partially or wholly outside the with design certifications in license application or the DCD, versus those scope of this design certification, such proceedings (refer to section II.B.9 of which may be incorporated by reference as the ultimate heat sink. The applicant this SOC). Therefore, it is appropriate (i.e., referenced in the application as if must also provide the plant-specific for the final rule to have some the information or documents were information designated in the generic uncertainty regarding the manner in actually included in the application), technical specifications, such as which this appendix could be thereby reducing the physical bulk of bracketed values. Paragraph A.2.d referenced in a Part 50 licensing the application. Any incorporation by makes it clear that the applicant must proceeding. reference in the application should be provide information demonstrating that E. Applicable Regulations clear and should specify the title, date, the proposed site falls within the site edition, or version of a document, and parameters for this appendix and that The purpose of Section V of this the page number(s) and table(s) the plant-specific design complies with appendix is to specify the regulations containing the relevant information to the interface requirements, as required that were applicable and in effect at the be incorporated by reference. by 10 CFR 52.79(b). time that this design certification was Paragraph A.1 requires an applicant If the proposed site has a approved. These regulations consist of who references this appendix to characteristic that exceeds one or more the technically relevant regulations incorporate by reference this appendix of the site parameters in the DCD, then identified in paragraph A, except for the in its application. The legal effect of the proposed site is unacceptable for regulations in paragraph B that are not such incorporation by reference is that this design unless the applicant seeks an applicable to this certified design. this appendix is legally binding on the exemption under Section VIII of this Paragraph A identifies the regulations applicant or licensee. Paragraph A.2.a is appendix and justifies why the certified in 10 CFR Parts 20, 50, 73, and 100 that intended to make clear that the initial design should be found acceptable on are applicable to the U.S. ABWR design. application must include a plant- the proposed site. Paragraph A.2.e After the NRC staff completed its FSER specific DCD. This assures, among other requires submission of information for the U.S. ABWR design (July 1994), things, that the applicant commits to addressing COL Action Items, which are the Commission amended several complying with the DCD. This identified in the generic DCD as COL existing regulations and adopted several paragraph also requires the plant- License Information, in the application. new regulations in those Parts of Title specific DCD to use the same format as The COL Action Items (COL License 10 of the Code of Federal Regulations. the generic DCD and to reflect the Information) identify matters that need The Commission has reviewed these applicant’s proposed departures and to be addressed by an applicant that regulations to determine if they are Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25819 applicable to this design and, if so, to submitted to the NRC. The Commission 10 CFR Parts 50, 70, and 72, Physical determine if the design meets these has determined that these requirements Security Plan Format (60 FR 53507; regulations. The Commission finds that will be addressed in the COL applicant’s October 16, 1995) the U.S. ABWR design either meets the operational radiation protection The objective of this revised requirements of these regulations or that program. Therefore, no additional regulation is to eliminate the these regulations are not applicable to actions are required for this design. requirement for applicants for power the design, as discussed below. The reactor, Category I fuel cycle, and spent Commission’s determination of the 10 CFR 50, Technical Specifications (60 fuel storage licenses to submit physical applicable regulations was made as of FR 36953; July 19, 1995) security plans in two parts. This action the date specified in paragraph V.A of The objective of this revised is necessary to allow for a quicker and this appendix. The specified date is the regulation is to codify criteria for more efficient review of the physical date that this appendix was approved by determining the content of technical security plans. The Commission has the Commission and signed by the specification (TS). The four criteria were determined that this revised regulation Secretary of the Commission. first adopted and discussed in detail in will be addressed in the COL applicant’s 10 CFR Part 73, Protection Against the Final Policy Statement on Technical site-specific security plan. Therefore, no Malevolent Use of Vehicles at Nuclear Specification Improvements for Nuclear additional action is required for this Power Plants (59 FR 38889; August 1, Power Reactors (58 FR 39132; July 22, design. 1994) 1993). The Commission has determined 10 CFR Part 50, Fracture Toughness The objective of this regulation is to that these requirements will be Requirements for Light Water Reactor modify the design basis threat for addressed in the COL applicant’s Pressure Vessels (60 FR 65456; radiological sabotage to include use of a technical specifications. Therefore, no December 19, 1995) land vehicle by adversaries for additional actions are required for this transporting personnel and their hand- design. The objective of this revised carried equipment to the proximity of regulation is to clarify several items 10 CFR 73, Changes to Nuclear Power vital areas and to include a land vehicle related to fracture toughness Plant Security Requirements Associated bomb. This regulation also requires requirements for reactor pressure With Containment Access Control (60 reactor licensees to install vehicle vessels (RPV). This regulation clarifies FR 46497; September 7, 1995) control measures, including vehicle the pressurized thermal shock (PTS) requirements, makes changes to the barrier systems, to protect against the The objective of this revised fractures toughness requirements and malevolent use of a land vehicle. The regulation is to delete certain security the reactor vessel material surveillance Commission has determined that this requirements for controlling the access program requirements, and provides regulation will be addressed in the COL of personnel and materials into reactor applicant’s site-specific security plan. new requirements for thermal annealing containment during periods of high of a reactor pressure vessel. The Therefore, no additional actions are traffic such as refueling and major required for this design. Commission has determined that 10 maintenance. This action relieves CFR 50.61 only applies to pressurized 10 CFR 19 and 20, Radiation Protection nuclear power plant licensees of water reactors for which an operating Requirements: Amended Definitions requirement to separately control access license has been issued. Likewise, 10 and Criteria (60 FR 36038; July 13, 1995) to reactor containments during these CFR 50.66 applies only to those light- The objective of this regulation is to periods. The Commission has water reactors where neutron radiation revise the radiation protection training determined that this regulation will be has reduced the fracture toughness of requirement so that it applies to workers addressed in the COL applicant’s site- the reactor vessel materials. Because the who are likely to receive, in a year, an specific security plan. Therefore, no U.S. ABWR design is not a pressurized occupational dose in excess of 100 additional actions are required for this water reactor and has not been licensed, mrem (1 mSv); revise the definition of design. neither §§ 50.61 nor 50.66 apply to this the ‘‘Member of the public’’ to include 10 CFR Part 50, Primary Reactor design or to applicants referencing this anyone who is not a worker receiving an Containment Leakage Testing for Water- appendix. occupational dose; revise the definition Cooled Power Reactors (60 FR 49495; 10 CFR Parts 21, 50, 52, 54, and 100, of ‘‘Occupational Dose’’ to delete September 26, 1995) reference to location so that the Reactor Site Criteria Including Seismic occupational dose limit applies only to The objective of this revised and Earthquake Engineering Criteria for workers whose assigned duties involve regulation is to provide a performance- Nuclear Power Plants (61 FR 65157; exposure to radiation and not to based option for leakage-rate testing of December 11, 1996) members of the public; revise the containments of light-water-cooled The objective of this regulation is to definition of the ‘‘Public Dose’’ to apply nuclear power plants. This update the criteria used in decisions to doses received by members of the performance-based option, option B to regarding power reactor siting, public from material released by a Appendix J, is available for voluntary including geologic, seismic, and licensee or from any other source of adoption by licensees in lieu of earthquake engineering considerations radiation under control of the licensee; compliance with the prescriptive for future nuclear power plants. Two assure that prior dose is determined for requirements contained in the current sections of this regulation apply to anyone subject to the monitoring regulation. Appendix J includes two applications for design certification. requirements in 10 CFR Part 20, or in options, A and B, either of which can be With regard to the revised design basis other words, anyone likely to receive, in chosen for meeting the requirements of accident radiation dose acceptance a year, 10 percent of the annual this appendix. The Commission has criteria in 10 CFR 50.34, the occupational dose limit; and retain a determined that option B to Appendix Commission has determined that the requirement that known overexposed J has no impact on the U.S. ABWR ABWR design meets the new dose individuals receive copies of any reports design because GE elected to comply criteria, based on the NRC staff’s of the exposure that are required to be with option A. radiological consequence analyses, 25820 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations provided that the site parameters are not on a separate ‘‘console.’’ GE has made gases in accordance with the revised. With regard to the revised the following commitments in the requirements of 10 CFR 50.34(f)(2)(viii) earthquake engineering criteria for generic DCD: and Item III.B.3 of NUREG–0737. In nuclear power plants in Appendix S to • Section 18.2(6) states that the SECY–93–087, the NRC staff also 10 CFR Part 50, the Commission has functions of the SPDS will be integrated recommended that the Commission determined that the ABWR design meets into the design, Section 18.4.2.1(14) approve the deviation from the the new single earthquake design states that the SPDS function will be requirements of Item II.B.3 of NUREG– requirements based on the NRC staff’s part of the plant summary information 0737 with regard to the requirements for evaluation in NUREG–1503. Therefore, which is continuously displayed on the sampling reactor coolant for boron the Commission has determined that the fixed-position displays on the large concentration and activity ABWR design meets the applicable display panel, measurements using the PASS in requirements of this new regulation. • Section 18.4.2.8 states that the evolutionary and passive ALWRs. The information presented in the fixed- modified requirement would require the 10 CFR Parts 20 and 35, Criteria for the position displays includes the critical capability to take boron concentration Release of Individuals Administered plant parameter information, and samples and activity measurements 8 Radioactive Material (62 FR 4120; • Section 18.4.2.11 describes the hours and 24 hours, respectively, January 29, 1997) SPDS for the ABWR and states that the following the accident. In its April 2, The objective of this revised displays of critical plant variables 1993, SRM, the Commission approved regulation is to specifically state that the sufficient to provide information to the recommendation to require the limitation on dose to individual plant operators about the following capability to take boron concentration members of the public in 10 CFR Part critical safety functions are samples and activities measurements 8 20 does not include doses received by continuously displayed on the large hours and 24 hours, respectively, individuals exposed to patients who display panel as an integral part of the following the accident. were administered radioactive materials fixed-position displays: The U.S. ABWR design will have and released under the new criteria in (a) Reactivity control, PASS which meets the requirements of 10 CFR Part 35. This revision to Part 20 (b) Reactor core cooling and heat 10 CFR 50.34(f)(2)(viii) and Item II.B.3 is not applicable to the design or removal from the primary system, of NUREG–0737 with the modifications operation of nuclear power plants and, (c) Reactor coolant system integrity, d) described in SECY–93–087. The system therefore, does not affect the safety Radioactivity control, and will have the capability to sample and findings for this design. (e) Containment conditions. analyze for activity in the reactor In paragraph V.B of this appendix, the In view of the above, the Commission coolant and containment atmosphere 24 Commission identified the regulations has determined that an exemption from hours following the accident. This that do not apply to the U.S. ABWR the requirement for an SPDS ‘‘console’’ information is needed for evaluating the design. The Commission has is justified based upon (1) the conditions of the core and will be determined that the U.S. ABWR design description in the generic DCD of the provided during the accident should be exempt from portions of 10 intent to incorporate the SPDS function management phase by the containment CFR 50.34(f), as described in the FSER as part of the plant status summary high-range area monitor, the (NUREG–1503) and summarized below: information which is continuously containment hydrogen monitor and the displayed on the fixed-position displays reactor vessel water level indicator. The (1) Paragraph (f)(2)(iv) of 10 CFR on the large display panel; and (2) a need for PASS activity measurements 50.34—Separate Plant Safety Parameter separate ‘‘console’’ is not necessary to will arise only during the accident Display Console achieve the underlying purpose of the recovery phase and therefore, 24 hours 10 CFR 50.34(f)(2)(iv) requires that an SPDS rule which is to display to sampling time is adequate. PASS will application provide a plant safety operators a minimum set of parameters also be able to determine boron parameter display console that will defining the safety status of the plant. concentration in the reactor coolant. It display to operators a minimum set of Therefore, the Commission concludes will be capable of making this parameters defining the safety status of that an exemption from 10 CFR determination within 8 hours following the plant, be capable of displaying a full 50.34(f)(2)(iv) is justified by the special the accident. Knowledge of the range of important plant parameters and circumstances set forth in 10 CFR concentration of boron is required for data trends on demand, and be capable 50.12(a)(2)(ii). providing insights for accident of indicating when process limits are (2) Paragraph (f)(2)(viii) of 10 CFR mitigation measures. Immediately after being approached or exceeded. the accident this information will be 50.34—Post-Accident Sampling for The purpose of the requirement for a obtained by the neutron flux monitoring Boron, Chloride, and Dissolved Gases safety parameter display system (SPDS), instrumentation which is designed to as stated in NUREG–0737, ‘‘Clarification In SECY–93–087, the NRC staff comply with the criteria of RG 1.97, and of TMI Action Plan Requirements,’’ recommended that the Commission which has fully qualified redundant Supplement 1, is to ‘‘* * * provide a approve its position that for channels capable of monitoring flux concise display of critical plant evolutionary and passive ALWRs of over the full power range. Boron variables to the control room operators boiling water reactor design there would concentration measurements therefore to aid them in rapidly and reliably be no need for the post-accident will not be required for the first 8 hours determining the safety status of the sampling system (PASS) to analyze after the accident. plant. * * * and in assessing whether dissolved gases in accordance with the For the U.S. ABWR, whenever core abnormal conditions warrant corrective requirements of 10 CFR 50.34(f)(2)(viii) uncovering is suspected, the reactor action by operators to avoid a degraded and Item III.B.3 of NUREG–0737. In its vessel is depressurized to approximately core.’’ April 2, 1993, SRM, the Commission the pressure within the wetwell and the GE committed to meet the intent of approved the recommendation to drywell which results in partial release this requirement. However, the exempt the PASS for the evolutionary of the dissolved gases. Under these functions of the SPDS will be integrated and passive ALWRs of boiling water conditions, pressurized samples would into the control room design rather than reactor design from analyzing dissolved not yield meaningful data. Therefore, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25821 application of the regulation in this system (COPS) precludes the need for a and should not be viewed as binding in particular circumstance would not serve dedicated penetration equivalent in size this instance. Therefore, the the underlying purpose of the rule. to a single 0.91-m (3-ft) diameter Commission has determined that there During accidents when the reactor opening. The COPS is part of the is no need for an exemption from vessel has not been depressurized (such atmospheric control system and is paragraph (b)(3) of 10 CFR 50.49 and as when a small amount of cladding discussed in DCD Section 6.2.5.6. The has removed it from V.B of this damage has occurred), reactor coolant COPS consists of two 200-mm (8-in.) appendix. samples can be obtained by the process diameter rupture disks mounted in F. Issue Resolution sampling system. series in a 250-mm (10-in.) line and is With regard to the need for chloride sized to allow 35 kg/sec (15.86 lbm/sec) The purpose of Section VI of this analysis, determination of chloride of steam flow at the opening pressure of appendix is to identify the scope of concentrations is of a secondary 6.3 kg/cm2g (90 psig), which issues that are resolved by the importance because it is needed only for corresponds to an energy flow of about Commission in this rulemaking and; determining the likelihood of 2.4 percent of rated power. The DCD therefore, are ‘‘matters resolved’’ within accelerated primary system corrosion states that the COPS is capable of the meaning and intent of 10 CFR which is a slow-occurring phenomenon. keeping containment pressures below 52.63(a)(4). The section is divided into Chloride analyses can be performed on ASME Service Level C limits for an five parts: (A) The Commission’s safety the samples taken by the process anticipated transient without scram findings in adopting this appendix, (B) sampling system. In this case, the (ATWS) event with failure of the the scope and nature of issues which are intended purpose of the rule can be standby liquid control system (SLCS) resolved by this rulemaking, (C) issues achieved without the need for the PASS and containment heat removal systems. which are not resolved by this to have chloride sampling capabilities. Although the diameter of the COPS rulemaking, (D) the backfit restrictions Accordingly, the Commission has pathway is only 200 mm (8 in.), the applicable to the Commission with determined that special circumstances NRC staff determined that this respect to this appendix, and (E) required by 10 CFR 50.12(2)(ii) exist for exception from the requirement of a availability of secondary references. the U.S. ABWR in that the regulation 0.91-m (3-ft) diameter opening is Paragraph A describes in general would not serve the underlying purpose acceptable because: (1) The limiting terms the nature of the Commission’s of the rule in one circumstance and is diameter of the COPS pathway is findings, and makes the finding not necessary in the other circumstance adequate to permit the needed vent required by 10 CFR 52.54 for the because the intent of rule could be met relief path, and (2) a need for venting Commission’s approval of this final with alternate design requirements capability beyond that provided by the design certification rule. Furthermore, proposed by the applicant. On this COPS has not been identified. The paragraph A explicitly states the basis, the Commission concludes that Commission has determined that GE’s Commission’s determination that this the exemption from analyzing dissolved approach adequately addresses the design provides adequate protection to gases and chlorides in the reactor requirements of this TMI item for the the public health and safety. coolant sample is justified. ABWR design. Therefore, an exemption Paragraph B sets forth the scope of issues which may not be challenged as (3) Paragraph (f)(3)(iv) of 10 CFR in accordance with 10 CFR 50.12(a)(2)(ii) is justified because the a matter of right in subsequent 50.34—Dedicated Containment proceedings. The introductory phrase of Penetration COPS provides sufficient venting capability to preclude the need for a paragraph B clarifies that issue Paragraph (3)(iv) of 10 CFR 50.34(f) 0.91 m (3-ft) diameter equivalent resolution as described in the remainder requires one or more dedicated dedicated containment penetration. of the paragraph extends to the containment penetrations, equivalent in delineated NRC proceedings referencing size to a single .91 m (3 ft) diameter Paragraph (b)(3) of 10 CFR 50.49— this appendix. The remaining portion of opening, in order not to preclude future Environmental Qualification of Post- paragraph B describes the general installation of systems to prevent Accident Monitoring Equipment categories of information for which containment failure such as a filtered In the generic DCD, GE stated that the there is issue resolution. vented containment system. This design of the information systems Specifically, paragraph B.1 provides requirement is intended to ensure important to safety will be in that all nuclear safety issues arising provision of a containment vent design conformance with the guidelines of from the Atomic Energy Act of 1954, as feature with sufficient safety margin Regulatory Guide (RG) 1.97, amended, that are associated with the well ahead of a need that may be ‘‘Instrumentation for Light-Water- information in the NRC staff’s FSER perceived in the future to mitigate the Cooled Nuclear Power Plants to Assess (NUREG–1503) and Supplement No. 1, consequences of a severe accident Plant and Environs Conditions During the Tier 1 and Tier 2 information, and situation. The NRC staff’s evaluation of and Following an Accident,’’ Revision the rulemaking record for this appendix ABWR compliance with the 3. The footnote for § 50.49(b)(3) are resolved within the meaning of requirement is limited to the effective references Revision 2 of RG 1.97 for § 52.63(a)(4). These issues include the penetration size for venting provided in selection of the types of post-accident information referenced in the DCD that the U.S. ABWR primary containment monitoring equipment. As a result, the are requirements (i.e., ‘‘secondary design. proposed design certification rule references’’), as well as all issues arising The NRC staff found that the size of provided an exemption to this from proprietary and safeguards the primary containment penetration requirement. In section C.1 of its information which are intended to be that could be used during a severe comments, dated August 4, 1995, ABB- requirements. Paragraph B.2 provides accident for venting the containment CE stated that it did not believe that an for issue preclusion of proprietary and was smaller than the specific size exemption from paragraph (b)(3) of 10 safeguards information. As discussed in identified in the previous paragraph. CFR 50.49 is needed or required. The section II.A.1 of this SOC, the inclusion However, in the generic DCD (Section Commission agrees with ABB-CE’s of proprietary and safeguards 19A.2.44), GE states that the assertion that Revision 2 of RG 1.97 is information within the scope of issues containment overpressure protection identified in footnote 4 of 10 CFR 50.49 resolved within the meaning of 25822 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

§ 52.63(a)(4) represents a change from operational change required a forth in paragraph E, access must first be the Commission’s intent during the consequential change to an ABWR sought from the design certification proposed rule. Paragraphs B.3, B.4, B.5, design feature, then the temperature applicant. If GE Nuclear Energy refuses and B.6 clarify that approved changes to limit backfit would be restricted by to provide the information, the person and departures from the DCD which are § 52.63. However, changes to other seeking access shall request access from accomplished in compliance with the operational issues, such as in-service the Commission or the presiding officer, relevant procedures and criteria in testing and in-service inspection as applicable. Access to the proprietary Section VIII of this appendix continue programs, post-fuel load verification and safeguards information may be to be matters resolved in connection activities, and shutdown risk that do not ordered by the Commission, but must be with this rulemaking (refer to the require a design change would not be subject to an appropriate non-disclosure discussion in section II.A.1 of this SOC). restricted by § 52.63. agreement. Paragraph C allows the NRC to Paragraph B.7 provides that, for those G. Duration of this Appendix plants located on sites whose site impose future operational requirements parameters do not exceed those (distinct from design matters) on The purpose of Section VII of this assumed in Revision 1 of the Technical applicants who reference this design appendix is in part to specify the time Support Document (December 1994), all certification. Also, license conditions period during which this design issues with respect to severe accident for portions of the plant within the certification may be referenced by an mitigation design alternatives scope of this design certification, e.g. applicant for a combined license, (SAMDAs) arising under the National start-up and power ascension testing, pursuant to 10 CFR 52.55. This section Environmental Policy Act of 1969 are not restricted by § 52.63. The also states that the design certification associated with the information in the requirement to perform these testing remains valid for an applicant or Environmental Assessment for this programs is contained in Tier 1 licensee that references the design design and the information regarding information. However, ITAAC cannot be certification until the application is SAMDAs in Revision 1 of the specified for these subjects because the withdrawn or the license expires. applicant’s Technical Support matters to be addressed in these license Therefore, if an application references Document (December 1994) are also conditions cannot be verified prior to this design certification during the 15- resolved within the meaning and intent fuel load and operation, when the year period, then the design certification of § 52.63(a)(4). Refer to the discussion ITAAC are satisfied. Therefore, another continues in effect until the application is withdrawn or the license issued on in section II.A.1 of this SOC regarding regulatory vehicle is necessary to ensure that application expires. Also, the finality of SAMDAs in the event an that licensees comply with the matters design certification continues in effect exemption from a site parameter is contained in the license conditions. for the referencing license if the license granted. The exemption applicant has License conditions for these areas is renewed. The Commission intends for the initial burden of demonstrating that cannot be developed now because this this appendix to remain valid for the life the original SAMDA analysis still requires the type of detailed design of the plant that references the design applies to the actual site parameters but, information that will be developed after certification to achieve the benefits of if the exemption is approved, requests design certification. In the absence of standardization and licensing stability. for litigation at the COL stage must meet detailed design information to evaluate This means that changes to or plant- the requirements of § 2.714 and present the need for and develop specific post- fuel load verifications for these matters, specific departures from information in sufficient information to create a the Commission is reserving the right to the plant-specific DCD must be made genuine controversy in order to obtain impose license conditions by rule for pursuant to the change processes in a hearing on the site parameter post-fuel load verification activities for Section VIII of this appendix for the life exemption. portions of the plant within the scope of of the plant. Paragraph C reserves the right of the this design certification. In its comments, dated August 3, Commission to impose operational Paragraph D reiterates the restrictions 1995, GE noted that the proposed design requirements on applicants that (contained in 10 CFR 52.63 and Section certification rule for the U.S. ABWR reference this appendix. This provision VIII of this appendix) placed upon the design indicated that the duration was reflects the fact that operational Commission when ordering generic or for a period of 15 years from May 8, requirements, including technical plant-specific modifications, changes or 1995, which is inconsistent with the specifications, were not completely or additions to structures, systems or provisions of 10 CFR Part 52. The date comprehensively reviewed at the design components, design features, design of May 8, 1995, was inserted into the certification stage. Therefore, the special criteria, and ITAAC (VI.D.3 addresses proposed rule as a result of an backfit provisions of § 52.63 do not ITAAC) within the scope of the certified administrative error by the Office of the apply to operational requirements. design. Although the Commission does Federal Register. The duration in the However, all design changes would be not believe that this language is final rule is for a period of 15 years from restricted by the appropriate provision necessary, the Commission has included the date of effectiveness of the final rule, in Section VIII of this appendix (refer to this language to provide a concise which is in accordance with 10 CFR section III.H of this SOC). Although the statement of the scope and finality of Part 52. information in the DCD that is related to this rule in response to comments from operational requirements was necessary NEI. H. Processes for Changes and to support the NRC staff’s safety review Paragraph E provides the procedure Departures of this design, the review of this for an interested member of the public The purpose of Section VIII of this information was not sufficient to to obtain access to proprietary and appendix is to set forth the processes for conclude that the operational safeguards information for the U.S. generic changes to or plant-specific requirements are fully resolved and ABWR design, in order to request and departures (including exemptions) from ready to be assigned finality under participate in proceedings identified in the DCD. The Commission adopted this § 52.63. As a result, if the NRC wanted VI.B of this appendix, viz., proceedings restrictive change process in order to to change a temperature limit on the involving licenses and applications achieve a more stable licensing process ABWR suppression pool and that which reference this appendix. As set for applicants and licensees that Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25823 reference this design certification rule. an opportunity for hearing with respect change process for that new information Section VIII is divided into three to the proposed change, as required by would apply (refer to II.A.2 of this SOC). paragraphs, which correspond to Tier 1, 10 CFR 52.63(a)(1), and the Commission Departures from Tier 2 may occur in Tier 2, and Operational requirements. expects such hearings to be conducted five ways: (1) the Commission may The language of Section VIII in accordance with 10 CFR Part 2, order a plant-specific departure, as set distinguishes between generic changes Subpart H. Departures from Tier 1 may forth in paragraph B.3; (2) an applicant to the DCD versus plant-specific occur in two ways: (1) The Commission or licensee may request an exemption departures from the DCD. Generic may order a licensee to depart from Tier from a Tier 2 requirement as set forth in changes must be accomplished by 1, as provided in paragraph A.3; or (2) paragraph B.4; (3) a licensee may make rulemaking because the intended an applicant or licensee may request an a departure without prior NRC approval subject of the change is the design exemption from Tier 1, as provided in in accordance with paragraph B.5 [the certification rule itself, as is paragraph A.4. If the Commission seeks ‘‘§ 50.59-like’’ process]; (4) the licensee contemplated by 10 CFR 52.63(a)(1). to order a licensee to depart from Tier may request NRC approval for proposed Consistent with 10 CFR 52.63(a)(2), any 1, paragraph A.3 requires that the departures which do not meet the generic rulemaking changes are Commission find both that the requirements in paragraph B.5 as applicable to all plants, absent departure is necessary for adequate provided in paragraph B.5.d; and (5) the circumstances which render the change protection or for compliance, and that licensee may request NRC approval for (‘‘modification’’ in the language of special circumstances are present. a departure from Tier 2 * information, in § 52.63(a)(2)) ‘‘technically irrelevant.’’ Paragraph A.4 provides that exemptions accordance with paragraph B.6. By contrast, plant-specific departures from Tier 1 requested by an applicant or Similar to Commission-ordered Tier 1 could be either a Commission-issued licensee are governed by the departures and generic Tier 2 changes, order to one or more applicants or requirements of 10 CFR 52.63(b)(1) and Commission-ordered Tier 2 departures licensees; or an applicant or licensee- 52.97(b), which provide an opportunity cannot be imposed except where initiated departure applicable only to for a hearing. In addition, the necessary either to bring the that applicant’s or licensee’s plant(s), Commission will not grant requests for certification into compliance with the i.e., a § 50.59-like departure or an exemptions that may result in a Commission’s regulations applicable exemption. significant decrease in the level of safety and in effect at the time of approval of Because these plant-specific otherwise provided by the design (refer the design certification or to ensure departures will result in a DCD that is to discussion in II.A.3 of this SOC). adequate protection of the public health unique for that plant, Section X of this and safety or common defense and appendix requires an applicant or Tier 2 security, as set forth in paragraph B.3. However, the special circumstances for licensee to maintain a plant-specific The change processes for the three the Commission-ordered Tier 2 DCD. For purposes of brevity, this different categories of Tier 2 departures do not have to outweigh any discussion refers to both generic information, viz., Tier 2, Tier 2 *, and changes and plant-specific departures as decrease in safety that may result from Tier 2 * with a time of expiration are set ‘‘change processes.’’ the reduction in standardization caused forth in paragraph VIII.B. The change Both Section VIII of this appendix and by the plant-specific order, as required this SOC refer to an ‘‘exemption’’ from process for Tier 2 has the same elements by 10 CFR 52.63(a)(3). The Commission one or more requirements of this as the Tier 1 change process, but some determined that it was not necessary to appendix and the criteria for granting an of the standards for plant-specific orders impose an additional limitation similar exemption. The Commission cautions and exemptions are different. The to that imposed on Tier 1 departures by that where the exemption involves an Commission also adopted a ‘‘§ 50.59- 10 CFR 52.63(a)(3) and (b)(1). This type underlying substantive requirement like’’ change process in accordance with of additional limitation for (applicable regulation), then the its SRMs on SECY–90–377 and SECY– standardization would unnecessarily applicant or licensee requesting the 92–287A. restrict the flexibility of applicants and exemption must also show that an The process for generic Tier 2 changes licensees with respect to Tier 2, which exemption from the underlying (including changes to Tier 2 * and Tier by its nature is not as safety significant applicable requirement meets the 2 * with a time of expiration) tracks the as Tier 1. criteria of 10 CFR 50.12. process for generic Tier 1 changes. As An applicant or licensee may request set forth in paragraph B.1, generic Tier an exemption from Tier 2 information as Tier 1 2 changes are accomplished by set forth in paragraph B.4. The applicant The change processes for Tier 1 rulemaking amending the generic DCD, or licensee must demonstrate that the information are covered in paragraph and are governed by the standards in 10 exemption complies with one of the VIII.A. Generic changes to Tier 1 are CFR 52.63(a)(1). This provision provides special circumstances in 10 CFR accomplished by rulemaking that that the Commission may not modify, 50.12(a). In addition, the Commission amends the generic DCD and are change, rescind or impose new will not grant requests for exemptions governed by the standards in 10 CFR requirements by rulemaking except that may result in a significant decrease 52.63(a)(1). This provision provides that where necessary either to bring the in the level of safety otherwise provided the Commission may not modify, certification into compliance with the by the design (refer to discussion in change, rescind, or impose new Commission’s regulations applicable II.A.3 of this SOC). However, the special requirements by rulemaking except and in effect at the time of approval of circumstances for the exemption do not where necessary either to bring the the design certification or to assure have to outweigh any decrease in safety certification into compliance with the adequate protection of the public health that may result from the reduction in Commission’s regulations applicable and safety or common defense and standardization caused by the and in effect at the time of approval of security. If a generic change is made to exemption. If the exemption is the design certification or to ensure Tier 2 * information, then the category requested by an applicant for a license, adequate protection of the public health and expiration, if necessary, of the new the exemption is subject to litigation in and safety or common defense and information would also be determined the same manner as other issues in the security. The rulemakings must include in the rulemaking and the appropriate license hearing, consistent with 10 CFR 25824 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

52.63(b)(1). If the exemption is (refer to discussion in II.A.2 of this tables were developed only for key plant requested by a licensee, then the SOC). These design features are safety analyses for the design. GE exemption is subject to litigation in the identified in Section 19.11 of the provided more detailed cross-references same manner as a license amendment. System 80+ DCD and Section 19E of the to Tier 1 for these analyses in a letter Paragraph B.5 allows an applicant or ABWR DCD, but may be described in dated March 31, 1994. licensee to depart from Tier 2 other sections of the DCD. Therefore, the If a proposed departure from Tier 2 information, without prior NRC location of design information in the involves a change to or departure from approval, if the proposed departure does DCD is not important to the application Tier 1 or Tier 2* information, technical not involve a change to or departure of this special procedure for severe specifications, or otherwise constitutes a from Tier 1 or Tier 2 * information, accident issues. However, the special USQ, then the applicant or licensee technical specifications, or involves an procedure in B.5.c does not apply to must obtain NRC approval through the unreviewed safety question (USQ) as design features that resolve so-called appropriate process set forth in this defined in B.5.b and B.5.c of this beyond design basis accidents or other appendix before implementing the paragraph. The technical specifications low probability events. The important proposed departure. The NRC does not referred to in B.5.a and B.5.b of this aspect of this special procedure is that endorse NSAC–125, ‘‘Guidelines for 10 paragraph are the technical it is limited solely to severe accident CFR 50.59 Safety Evaluations,’’ for specifications in Chapter 16 of the design features, as defined above. Some performing safety evaluations required generic DCD, including bases, for design features of the evolutionary by VIII.B.5 of this appendix. However, departures made prior to issuance of the designs have intended functions to meet the NRC will work with industry, if it COL. After issuance of the COL, the both ‘‘design basis’’ requirements and to is desired, to develop an appropriate plant-specific technical specifications resolve ‘‘severe accidents.’’ If these guidance document for processing are controlling under paragraph B.5 design features are reviewed under proposed changes under VIII.B of this (refer to discussion in II.A.1 of this SOC paragraph VIII.B.5, then the appropriate appendix. on Finality for Technical criteria from either B.5.b or B.5.c are A party to an adjudicatory proceeding Specifications). The bases for the plant- selected depending upon the design (e.g., for issuance of a combined license) specific technical specifications will be function being changed. who believes that an applicant or controlled by the bases control licensee has not complied with VIII.B.5 An applicant or licensee that plans to procedures for the plant-specific when departing from Tier 2 information, depart from Tier 2 information, under technical specifications (analogous to may petition to admit such a contention the bases control provision in the VIII.B.5, must prepare a safety into the proceeding. As set forth in B.5.f, Improved Standard Technical evaluation which provides the bases for the petition must comply with the Specifications). The definition of a USQ the determination that the proposed requirements of § 2.714(b)(2) and show in paragraph B.5.b is similar to the change does not involve an unreviewed that the departure does not comply with definition in 10 CFR 50.59 and it safety question, a change to Tier 1 or paragraph B.5. Any other party may file applies to all information in Tier 2 Tier 2* information, or a change to the a response to the petition. If on the basis except for the information that resolves technical specifications, as explained of the petition and any responses, the the severe accident issues. The process above. In order to achieve the presiding officer in the proceeding for evaluating proposed tests or Commission’s goals for design determines that the required showing experiments not described in Tier 2 will certification, the evaluation needs to has been made, the matter shall be be incorporated into the change process consider all of the matters that were certified to the Commission for its final for the portion of the design that is resolved in the DCD, such as generic determination. In the absence of a outside the scope of this design issue resolutions that are relevant to the proceeding, petitions alleging non- certification. Although paragraph B.5 proposed departure. The benefits of the conformance with paragraph B.5 does not specifically state, the early resolution of safety issues would requirements applicable to Tier 2 Commission has determined that be lost if departures from the DCD were departures will be treated as petitions departures must also comply with all made that violated these resolutions for enforcement action under 10 CFR applicable regulations unless an without appropriate review. The 2.206. exemption or other relief is obtained. evaluation of the relevant matters needs Paragraph B.6 provides a process for The Commission believes that it is to consider the proposed departure over departing from Tier 2* information. important to preserve and maintain the the full range of power operation from This provision is bifurcated because of resolution of severe accident issues just startup to shutdown, as it relates to the expiration of some Tier 2* like all other safety issues that were anticipated operational occurrences, information. The Commission resolved during the design certification transients, design basis accidents, and determined that the Tier 2* designation review (refer to SRM on SECY–90–377). severe accidents. The evaluation must should expire for some Tier 2* However, because of the increased also include a review of all relevant information in response to comments uncertainty in severe accident issue secondary references from the DCD from NEI (refer to section II.A.2 of this resolutions, the Commission has because Tier 2 information intended to SOC). Therefore, certain Tier 2* adopted separate criteria in B.5.c for be treated as requirements is contained information listed in B.6.c is no longer determining whether a departure from in the secondary references. The designated as Tier 2* information after information that resolves severe evaluation should consider the tables in full power operation is first achieved accident issues constitutes a USQ. For Sections 14.3 and 19.8 of the DCD to following the Commission finding in 10 purposes of applying the special criteria ensure that the proposed change does CFR 52.103(g). Thereafter, that in B.5.c, severe accident resolutions are not impact Tier 1. These tables contain information is deemed to be Tier 2 limited to design features when the various cross-references from the plant information that is subject to the intended function of the design feature safety analyses in Tier 2 to the departure requirements in paragraph is relied upon to resolve postulated important parameters that were B.5. By contrast, the Tier 2* information accidents where the reactor core has included in Tier 1. Although many identified in B.6.b retains its Tier 2* melted and exited the reactor vessel and issues and analyses could have been designation throughout the duration of the containment is being challenged cross-referenced, the listings in these the license, including any period of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25825 renewal. Any requests for departures or other operational requirements in the (refer to sections II.A.1 and II.B.3 of this from Tier 2* information that affect Tier generic DCD is accomplished by SOC). The bases for the generic 1 must also comply with the rulemaking and governed by the backfit technical specifications will be requirements in VIII.A of this appendix. standards in 10 CFR 50.109. The controlled by the change process in If Tier 2* information is changed in a determination of whether the generic Section VIII.C of this appendix. After a generic rulemaking, the designation of technical specifications and other license is issued, the bases will be the new information (Tier 1, 2*, or 2) operational requirements were controlled by the bases change would also be determined in the completely reviewed and approved in provision set forth in the administrative rulemaking and the appropriate process the design certification rulemaking is controls section of the plant-specific for future changes would apply. If a based upon the extent to which an NRC technical specifications. plant-specific departure is made from safety conclusion in the FSER or its I. Inspections, Tests, Analyses, and Tier 2* information, then the new supplement is being modified or Acceptance Criteria (ITAAC) designation would apply only to that changed. If it cannot be determined that plant. If an applicant who references the technical specification or The purpose of Section IX of this this design certification makes a operational requirement was appendix is to set forth how the ITAAC departure from Tier 2* information, the comprehensively reviewed and in Tier 1 of this design certification rule new information is subject to litigation finalized in the design certification are to be treated in a license proceeding. in the same manner as other plant- rulemaking, then there is no backfit Paragraph A restates the responsibilities specific issues in the licensing hearing restriction under 10 CFR 50.109 because of an applicant or licensee for (refer to B.6.a). If a licensee makes a no prior position was taken on this performing and successfully completing departure, it will be treated as a license safety matter. Some generic technical ITAAC, and notifying the NRC of such amendment under 10 CFR 50.90 and the specifications contain bracketed values, completion. Paragraph A.1 makes it finality is in accordance with paragraph which clearly indicate that the NRC clear that an applicant may proceed at VI.B.5 of this appendix. staff’s review was not complete. Generic its own risk with design and procurement activities subject to Operational Requirements changes made under VIII.C.1 are applicable to all applicants or licensees, ITAAC, and that a licensee may proceed The change process for technical unless the change is irrelevant because at its own risk with design, specifications and other operational of a plant-specific departure (refer to procurement, construction, and requirements is set forth in paragraph VIII.C.2). preoperational testing activities subject VIII.C. This change process has Plant-specific departures may occur to an ITAAC, even though the NRC may elements similar to the Tier 1 and Tier by either a Commission order under not have found that any particular 2 change process in paragraphs VIII.A VIII.C.3 or an applicant’s exemption ITAAC has been successfully and VIII.B, but with significantly request under VIII.C.4. The basis for completed. Paragraph A.2 requires the different change standards (refer to the determining if the technical licensee to notify the NRC that the explanation in II.A.1 of this SOC). The specification or operational requirement required inspections, tests, and analyses Commission did not support NEI’s was completely reviewed and approved in the ITAAC have been completed and request to extend the special backfit is the same as for VIII.C.1 above. If the that the acceptance criteria have been provisions of 10 CFR 52.63 to technical technical specification or operational met. specifications and other operational requirement was comprehensively Paragraphs B.1 and B.2 essentially requirements (refer to explanation in reviewed and finalized in the design reiterate the NRC’s responsibilities with III.F of this SOC). Rather, the certification rulemaking, then the respect to ITAAC as set forth in 10 CFR Commission decided to designate a Commission must demonstrate that 52.99 and 52.103(g) [refer to explanation special category of information, special circumstances are present before in section II.C.1 of this SOC]. Finally, consisting of the technical specifications ordering a plant-specific departure. If paragraph B.3 states that ITAAC do not, and other operational requirements, not, there is no restriction on plant- by virtue of their inclusion in the DCD, with its own change process in specific changes to the technical constitute regulatory requirements after paragraph VIII.C. The key to using the specifications or operational the licensee has received authorization change processes in Section VIII is to requirements, prior to issuance of a to load fuel or for renewal of the license. determine if the proposed change or license, provided a design change is not However, subsequent modifications departure requires a change to a design required. Although the generic technical must comply with the design feature described in the generic DCD. If specifications were reviewed by the descriptions in the DCD unless the a design change is required, then the NRC staff to facilitate the design applicable requirements in 10 CFR appropriate change process in paragraph certification review, the Commission 52.97 and Section VIII of this appendix VIII.A or VIII.B applies. However, if a intends to consider the lessons learned have been complied with. As discussed proposed change to the technical from subsequent operating experience in sections II.B.9 and III.D of this SOC, specifications or other operational during its licensing review of the plant- the Commission will defer a requirements does not require a change specific technical specifications. The determination of the applicability of to a design feature in the generic DCD, process for petitioning to intervene on a ITAAC and their effect in terms of issue then paragraph VIII.C applies. The technical specification or operational resolution in 10 CFR Part 50 licensing language in paragraph VIII.C also requirement is similar to other issues in proceedings to such time that a Part 50 distinguishes between generic and a licensing hearing, except that the applicant decides to reference this plant-specific technical specifications to petitioner must also demonstrate why appendix. account for the different treatment and special circumstances are present (refer finality accorded technical to VIII.C.5). J. Records and Reporting specifications before and after a license Finally, the generic technical The purpose of Section X of this is issued. specifications will have no further effect appendix is to set forth the requirements The process in C.1 for making generic on the plant-specific technical for maintaining records of changes to changes to the generic technical specifications after the issuance of a and departures from the generic DCD, specifications in Chapter 16 of the DCD license that references this appendix which are to be reflected in the plant- 25826 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations specific DCD. Section X also sets forth but that the changes are also reflected in Paragraph B.3.c requires that the the requirements for submitting reports the plant-specific DCD. Therefore, reports be submitted quarterly during (including updates to the plant-specific records of generic changes to the DCD the period of facility construction. This DCD) to the NRC. This section of the will be required to be maintained by increase in frequency of summary appendix is similar to the requirements both entities to ensure that both entities reports of departures from the plant- for records and reports in 10 CFR Part have up-to-date DCDs. specific DCD is in response to the 50, except for minor differences in Section X.A of this appendix does not Commission’s guidance on reporting information collection and reporting place record-keeping requirements on frequency in its SRM on SECY–90–377, requirements, as discussed in section V site-specific information that is outside dated February 15, 1991. NEI stated in of this SOC. Paragraph X.A.1 of this the scope of this rule. As discussed in its comments dated August 4, 1995 appendix requires that a generic DCD section III.D of this SOC, the final safety (Attachment B, p. 116) that * * * ‘‘the and the proprietary and safeguards analysis report required by 10 CFR requirement for quarterly reporting information referenced in the generic 52.79 will contain the plant-specific imposes unnecessary additional DCD be maintained by the applicant for DCD and the site-specific information burdens on licensees and the NRC.’’ NEI this rule. The generic DCD was for a facility that references this rule. recommended that the Commission developed, in part, to meet the The phrase ‘‘site-specific portion of the adopt a ‘‘less onerous’’ requirement requirements for incorporation by final safety analysis report’’ in (e.g., semi-annual reports). The reference, including availability paragraph X.B.3.d of this appendix Commission disagrees with the NEI requirements. Therefore, the proprietary refers to the information that is request because it does not provide for and safeguards information could not be contained in the final safety analysis sufficiently timely notification of design included in the generic DCD because it report for a facility (required by 10 CFR changes during the critical period of is not publicly available. However, the 52.79) but is not part of the plant- facility construction. Also, the proprietary and safeguards information specific DCD (required by IV.A of this Commission disagrees that the reports was reviewed by the NRC and, as stated appendix). Therefore, this rule does not are an onerous burden because they are in paragraph VI.B.2 of this appendix, require that duplicate documentation be only summary reports, which describe the Commission considers the maintained by an applicant or licensee the design changes, rather than detailed information to be resolved within the that references this rule, because the evaluations of the changes and meaning of 10 CFR 52.63(a)(4). Because plant-specific DCD is part of the final determinations. The detailed this information is not in the generic safety analysis report for the facility evaluations remain available for audit DCD, the proprietary and safeguards (refer to section II.C.3 of this SOC). on site, consistent with the information, or its equivalent, is Paragraphs B.1 and B.2 establish requirements of 10 CFR Part 50. Quarterly reporting of design changes required to be provided by an applicant reporting requirements for applicants or during the period of construction is for a license. Therefore, to ensure that licensees that reference this rule that are this information will be available, a necessary to closely monitor the status similar to the reporting requirements in and progress of the construction of the requirement for the design certification 10 CFR Part 50. For currently operating applicant to maintain the proprietary plant. To make its finding under 10 CFR plants, a licensee is required to maintain 52.99, the NRC must monitor the design and safeguards information was added records of the basis for any design to paragraph X.A.1 of this appendix. changes made in accordance with changes to the facility made under 10 Section VIII of this appendix. The The acceptable version of the CFR 50.59. Section 50.59(b)(2) requires ITAAC verify that the as-built facility proprietary and safeguards information a licensee to provide a summary report conforms with the approved design and is identified in the version of the DCD of these changes to the NRC annually, emphasizes design reconciliation and that is incorporated into this rule. The or along with updates to the facility design verification. Quarterly reporting generic DCD and the acceptable version final safety analysis report under 10 of design changes is particularly of the proprietary and safeguards CFR 50.71(e). Section 50.71(e)(4) important in times where the number of information must be maintained for the requires that these updates be submitted design changes could be significant, period of time that this appendix may annually, or 6 months after each such as during the procurement of be referenced. refueling outage if the interval between components and equipment, detailed Paragraphs A.2 and A.3 place record- successive updates does not exceed 24 design of the plant at the start of keeping requirements on the applicant months. construction, and during pre- or licensee that references this design The reporting requirements vary operational testing. The frequency of certification to maintain its plant- according to four different time periods updates to the plant-specific DCD is not specific DCD to accurately reflect both during a facilities’ lifetime as specified increased during facility construction. generic changes to the generic DCD and in paragraph B.3. Paragraph B.3.a After the facility begins operation, the plant-specific departures made pursuant requires that if an applicant that frequency of reporting reverts to the to Section VIII of this appendix. The references this rule decides to make requirement in paragraph X.B.3.d, term ‘‘plant-specific’’ was added to departures from the generic DCD, then which is consistent with the paragraph A.2 and other Sections of this the departures and any updates to the requirement for plants licensed under appendix to distinguish between the plant-specific DCD must be submitted 10 CFR Part 50. generic DCD that is incorporated by with the initial application for a license. reference into this appendix, and the Under B.3.b, the applicant may submit IV. Finding of No Significant plant-specific DCD that the applicant is any subsequent reports and updates Environmental Impact: Availability required to submit under IV.A of this along with its amendments to the The Commission has determined appendix. The requirement to maintain application provided that the submittals under the National Environmental the generic changes to the generic DCD are made at least once per year. Because Policy Act of 1969, as amended (NEPA), is explicitly stated to ensure that these amendments to an application are and the Commission’s regulations in 10 changes are not only reflected in the typically made more frequently than CFR Part 51, Subpart A, that this design generic DCD, which will be maintained once a year, this should not be an certification rule is not a major Federal by the applicant for design certification, excessive burden on the applicant. action significantly affecting the quality Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25827 of the human environment and, needed, and completing and reviewing 13 CFR Part 121. Thus, this rule does therefore, an environmental impact the collection of information. Send not fall within the purview of the act. statement (EIS) is not required. The comments on any aspect of this VIII. Backfit Analysis basis for this determination, as collection of information, including documented in the final environmental suggestions for reducing the burden, to The Commission has determined that assessment, is that this amendment to the Information and Records the backfit rule, 10 CFR 50.109, does not 10 CFR Part 52 does not authorize the Management Branch (T–6 F33), U.S. apply to this final rule because these siting, construction, or operation of a Nuclear Regulatory Commission, amendments do not impose facility using the U.S. ABWR design; it Washington, DC 20555–0001, or by requirements on existing 10 CFR Part 50 only codifies the U.S. ABWR design in Internet electronic mail at licensees. Therefore, a backfit analysis a rule. The NRC will evaluate the [email protected]; and to the Desk was not prepared for this rule. environmental impacts and issue an EIS Officer, Office of Information and List of Subjects in 10 CFR Part 52 as appropriate in accordance with NEPA Regulatory Affairs, NEOB–10202, as part of the application(s) for the (3150–0151), Office of Management and Administrative practice and construction and operation of a facility. Budget, Washington, DC 20503. procedure, Antitrust, Backfitting, In addition, as part of the final Combined license, Early site permit, environmental assessment for the U.S. Public Protection Notification Emergency planning, Fees, ABWR design, the NRC reviewed GE’s The NRC may not conduct or sponsor, Incorporation by reference, Inspection, evaluation of various design alternatives and a person is not required to respond Limited work authorization, Nuclear to prevent and mitigate severe accidents to, a collection of information unless it power plants and reactors, Probabilistic that was submitted in GE’s ‘‘Technical displays a currently valid OMB control risk assessment, Prototype, Reactor Support Document for the ABWR,’’ Rev. number. siting criteria, Redress of site, Reporting 1, dated December 1994. The and record keeping requirements, Commission finds that GE’s evaluation VI. Regulatory Analysis Standard design, Standard design certification. provides a sufficient basis to conclude The NRC has not prepared a that there are no additional severe regulatory analysis for this final rule. For the reasons set out in the accident design alternatives beyond The NRC prepares regulatory analyses preamble and under the authority of the those currently incorporated into the for rulemakings that establish generic Atomic Energy Act of 1954, as amended; U.S. ABWR design which are cost- regulatory requirements applicable to all the Energy Reorganization Act of 1974, beneficial, whether considered at the licensees. Design certifications are not as amended; and 5 U.S.C. 552 and 553; time of the approval of the U.S. ABWR generic rulemakings in the sense that the NRC is adopting the following design certification or in connection design certifications do not establish amendments to 10 CFR Part 52. with the licensing of a future facility standards or requirements with which 1. The authority citation for 10 CFR referencing the U.S. ABWR design all licensees must comply. Rather, Part 52 continues to read as follows: certification, where the plant Authority: Secs. 103, 104, 161, 182, 183, referencing this appendix is located on design certifications are Commission approvals of specific nuclear power 186, 189, 68 Stat. 936, 948, 953, 954, 955, a site whose site parameters are within 956, as amended, sec. 234, 83 Stat. 1244, as those specified in the Technical Support plant designs by rulemaking. Furthermore, design certification amended (42 U.S.C. 2133, 2201, 2232, 2233, Document. These issues are considered 2236, 2239, 2282); secs. 201, 202, 206, 88 resolved for the U.S. ABWR design. rulemakings are initiated by an Stat. 1243, 1244, 1246, 1246, as amended (42 The final environmental assessment, applicant for a design certification, U.S.C. 5841, 5842, 5846). upon which the Commission’s finding rather than the NRC. Preparation of a regulatory analysis in this circumstance 2. In § 52.8, paragraph (b) is revised to of no significant impact is based, and read as follows: the Technical Support Document for the would not be useful because the design U.S. ABWR design are available for to be certified is proposed by the § 52.8 Information collection examination and copying at the NRC applicant rather than the NRC. For these requirements: OMB approval. Public Document Room, 2120 L Street, reasons, the Commission concludes that * * * * * NW. (Lower Level), Washington, DC. preparation of a regulatory analysis is (b) The approved information Single copies are also available from Mr. neither required nor appropriate. collection requirements contained in Dino C. Scaletti, Mailstop O–11 H3, U.S. VII. Regulatory Flexibility Act this part appear in §§ 52.15, 52.17, Nuclear Regulatory Commission, Certification 52.29, 52.45, 52.47, 52.57, 52.75, 52.77, Washington, DC 20555, (301) 415–1104. 52.78, 52.79, Appendix A, and In accordance with the Regulatory V. Paperwork Reduction Act Statement Appendix B. Flexibility Act of 1980, 5 U.S.C. 605(b), 3. A new Appendix A to 10 CFR Part This final rule amends information the Commission certifies that this 52 is added to read as follows: collection requirements that are subject rulemaking will not have a significant to the Paperwork Reduction Act of 1995 economic impact upon a substantial Appendix A To Part 52—Design Certification Rule for the U.S. Advanced Boiling Water (44 U.S.C. 3501 et seq.). These number of small entities. The rule Reactor requirements were approved by the provides certification for a nuclear Office of Management and Budget, power plant design. Neither the design I. Introduction approval number 3150–0151. Should an certification applicant nor prospective Appendix A constitutes the standard application be received, the additional nuclear power plant licensees who design certification for the U.S. Advanced public reporting burden for this reference this design certification rule Boiling Water Reactor (ABWR) design, in collection of information, above those fall within the scope of the definition of accordance with 10 CFR Part 52, Subpart B. contained in Part 52, is estimated to ‘‘small entities’’ set forth in the The applicant for certification of the U.S. ABWR design was GE Nuclear Energy. average 8 hours per response, including Regulatory Flexibility Act, 15 U.S.C. the time for reviewing instructions, 632, or the Small Business Size II. Definitions searching existing data sources, Standards set out in regulations issued A. Generic design control document gathering and maintaining the data by the Small Business Administration in (generic DCD) means the document 25828 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations containing the Tier 1 and Tier 2 information G. All other terms in this appendix have technical specifications, that are required by and generic technical specifications that is the meaning set out in 10 CFR 50.2, 10 CFR 10 CFR 50.36 and 50.36a; incorporated by reference into this appendix. 52.3, or Section 11 of the Atomic Energy Act d. Information demonstrating compliance B. Generic technical specifications means of 1954, as amended, as applicable. with the site parameters and interface the information, required by 10 CFR 50.36 requirements; III. Scope and Contents and 50.36a, for the portion of the plant that e. Information that addresses the COL is within the scope of this appendix. A. Tier 1, Tier 2, and the generic technical action items; and C. Plant-specific DCD means the document, specifications in the U.S. ABWR Design f. Information required by 10 CFR 52.47(a) maintained by an applicant or licensee who Control Document, GE Nuclear Energy, that is not within the scope of this appendix. references this appendix, consisting of the Revision 4 dated March 1997, are approved 3. Physically include, in the plant-specific information in the generic DCD, as modified for incorporation by reference by the Director DCD, the proprietary information and and supplemented by the plant-specific of the Office of the Federal Register in safeguards information referenced in the U.S. departures and exemptions made under accordance with 5 U.S.C. 552(a) and 1 CFR ABWR DCD. Section VIII of this appendix. Part 51. Copies of the generic DCD may be B. The Commission reserves the right to D. Tier 1 means the portion of the design- obtained from the National Technical determine in what manner this appendix related information contained in the generic Information Service, 5285 Port Royal Road, may be referenced by an applicant for a Springfield, VA 22161. A copy is available DCD that is approved and certified by this construction permit or operating license for examination and copying at the NRC appendix (hereinafter Tier 1 information). under 10 CFR Part 50. The design descriptions, interface Public Document Room, 2120 L Street NW. requirements, and site parameters are derived (Lower Level), Washington, DC 20555. V. Applicable Regulations from Tier 2 information. Tier 1 information Copies are also available for examination at A. Except as indicated in paragraph B of includes: the NRC Library, 11545 Rockville Pike, this section, the regulations that apply to the 1. Definitions and general provisions; Rockville, Maryland 20582 and the Office of U.S. ABWR design are in 10 CFR Parts 20, 2. Design descriptions; the Federal Register, 800 North Capitol 50, 73, and 100, codified as of May 2, 1997, 3. Inspections, tests, analyses, and Street, NW., Suite 700, Washington DC. that are applicable and technically relevant, B. An applicant or licensee referencing this acceptance criteria (ITAAC); as described in the FSER (NUREG–1503) and appendix, in accordance with Section IV of 4. Significant site parameters; and Supplement No. 1. this appendix, shall incorporate by reference 5. Significant interface requirements. B. The U.S. ABWR design is exempt from and comply with the requirements of this E. Tier 2 means the portion of the design- portions of the following regulations: appendix, including Tier 1, Tier 2, and the related information contained in the generic 1. Paragraph (f)(2)(iv) of 10 CFR 50.34— generic technical specifications except as DCD that is approved but not certified by this Separate Plant Safety Parameter Display otherwise provided in this appendix. appendix (hereinafter Tier 2 information). Console; Conceptual design information, as set forth in Compliance with Tier 2 is required, but 2. Paragraph (f)(2)(viii) of 10 CFR 50.34— the generic DCD, and the ‘‘Technical Support generic changes to and plant-specific Post-Accident Sampling for Boron, Chloride, Document for the ABWR’’ are not part of this departures from Tier 2 are governed by and Dissolved Gases; and Section VIII of this appendix. Compliance appendix. Tier 2 references to the probabilistic risk assessment (PRA) in the 3. Paragraph (f)(3)(iv) of 10 CFR 50.34— with Tier 2 provides a sufficient, but not the ABWR Standard Safety Analysis Report do Dedicated Containment Penetration. only acceptable, method for complying with not incorporate the PRA into Tier 2. Tier 1. Compliance methods differing from VI. Issue Resolution C. If there is a conflict between Tier 1 and Tier 2 must satisfy the change process in A. The Commission has determined that Tier 2 of the DCD, then Tier 1 controls. Section VIII of this appendix. Regardless of the structures, systems, components, and D. If there is a conflict between the generic these differences, an applicant or licensee design features of the U.S. ABWR design DCD and either the application for design must meet the requirement in Section III.B to comply with the provisions of the Atomic certification of the U.S. ABWR design or reference Tier 2 when referencing Tier 1. Tier Energy Act of 1954, as amended, and the NUREG–1503, ‘‘Final Safety Evaluation 2 information includes: Report related to the Certification of the applicable regulations identified in Section V 1. Information required by 10 CFR 52.47, Advanced Boiling Water Reactor Design,’’ of this appendix; and therefore, provide with the exception of generic technical (FSER) and Supplement No. 1, then the adequate protection to the health and safety specifications and conceptual design generic DCD controls. of the public. A conclusion that a matter is information; E. Design activities for structures, systems, resolved includes the finding that additional 2. Information required for a final safety and components that are wholly outside the or alternative structures, systems, analysis report under 10 CFR 50.34; scope of this appendix may be performed components, design features, design criteria, 3. Supporting information on the using site-specific design parameters, testing, analyses, acceptance criteria, or inspections, tests, and analyses that will be provided the design activities do not affect justifications are not necessary for the U.S. performed to demonstrate that the acceptance the DCD or conflict with the interface ABWR design. criteria in the ITAAC have been met; and requirements. B. The Commission considers the 4. Combined license (COL) action items following matters resolved within the (COL license information), which identify IV. Additional Requirements and Restrictions meaning of 10 CFR 52.63(a)(4) in subsequent certain matters that shall be addressed in the A. An applicant for a license that wishes proceedings for issuance of a combined site-specific portion of the final safety to reference this appendix shall, in addition license, amendment of a combined license, or analysis report (FSAR) by an applicant who to complying with the requirements of 10 renewal of a combined license, proceedings references this appendix. These items CFR 52.77, 52.78, and 52.79, comply with the held pursuant to 10 CFR 52.103, and constitute information requirements but are following requirements: enforcement proceedings involving plants not the only acceptable set of information in 1. Incorporate by reference, as part of its referencing this appendix: the FSAR. An applicant may depart from or application, this appendix; 1. All nuclear safety issues, except for the omit these items, provided that the departure 2. Include, as part of its application: generic technical specifications and other or omission is identified and justified in the a. A plant-specific DCD containing the operational requirements, associated with the FSAR. After issuance of a construction same information and utilizing the same information in the FSER and Supplement No. permit or COL, these items are not organization and numbering as the generic 1, Tier 1, Tier 2 (including referenced requirements for the licensee unless such DCD for the U.S. ABWR design, as modified information which the context indicates is items are restated in the FSAR. and supplemented by the applicant’s intended as requirements), and the F. Tier 2* means the portion of the Tier 2 exemptions and departures; rulemaking record for certification of the U.S. information, designated as such in the b. The reports on departures from and ABWR design; generic DCD, which is subject to the change updates to the plant-specific DCD required by 2. All nuclear safety and safeguards issues process in VIII.B.6 of this appendix. This X.B of this appendix; associated with the information in designation expires for some Tier 2* c. Plant-specific technical specifications, proprietary and safeguards documents, information under VIII.B.6. consisting of the generic and site-specific referenced and in context, are intended as Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25829 requirements in the generic DCD for the U.S. the request must be filed no later than 15 a. A modification is necessary to secure ABWR design; days after publication in the Federal Register compliance with the Commission’s 3. All generic changes to the DCD pursuant of the notice required either by 10 CFR 52.85 regulations applicable and in effect at the to and in compliance with the change or 10 CFR 52.103. If GE Nuclear Energy time this appendix was approved, as set forth processes in Sections VIII.A.1 and VIII.B.1 of declines to provide the information sought, in Section V of this appendix, or to assure this appendix; GE Nuclear Energy shall send a written adequate protection of the public health and 4. All exemptions from the DCD pursuant response within ten (10) days of receiving the safety or the common defense and security; to and in compliance with the change request to the requesting person setting forth and processes in Sections VIII.A.4 and VIII.B.4 of with particularity the reasons for its refusal. b. Special circumstances as defined in 10 this appendix, but only for that proceeding; The person may then request the CFR 50.12(a) are present. 5. All departures from the DCD that are Commission (or presiding officer, if a 4. An applicant or licensee who references approved by license amendment, but only for proceeding has been established) to order this appendix may request an exemption that proceeding; disclosure. The person shall include copies from Tier 2 information. The Commission 6. Except as provided in VIII.B.5.f of this of the original request (and any subsequent may grant such a request only if it determines appendix, all departures from Tier 2 clarifying information provided by the that the exemption will comply with the pursuant to and in compliance with the requesting party to the applicant) and the requirements of 10 CFR 50.12(a). The change processes in VIII.B.5 of this appendix applicant’s response. The Commission and Commission will deny a request for an that do not require prior NRC approval; presiding officer shall base their decisions exemption from Tier 2, if it finds that the 7. All environmental issues concerning solely on the person’s original request design change will result in a significant severe accident mitigation design alternatives (including any clarifying information decrease in the level of safety otherwise associated with the information in the NRC’s provided by the requesting person to GE provided by the design. The grant of an final environmental assessment for the U.S. Nuclear Energy), and GE Nuclear Energy’s exemption to an applicant must be subject to ABWR design and Revision 1 of the response. The Commission and presiding litigation in the same manner as other issues Technical Support Document for the U.S. officer may order GE Nuclear Energy to material to the license hearing. The grant of ABWR, dated December 1994, for plants provide access to some or all of the requested an exemption to a licensee must be subject referencing this appendix whose site to an opportunity for a hearing in the same parameters are within those specified in the information, subject to an appropriate non- disclosure agreement. manner as license amendments. Technical Support Document. 5.a. An applicant or licensee who C. The Commission does not consider VII. Duration of This Appendix references this appendix may depart from operational requirements for an applicant or Tier 2 information, without prior NRC licensee who references this appendix to be This appendix may be referenced for a approval, unless the proposed departure matters resolved within the meaning of 10 period of 15 years from July 11, 1997 except involves a change to or departure from Tier CFR 52.63(a)(4). The Commission reserves as provided for in 10 CFR 52.55(b) and 1 information, Tier 2* information, or the the right to require operational requirements 52.57(b). This appendix remains valid for an technical specifications, or involves an for an applicant or licensee who references applicant or licensee who references this unreviewed safety question as defined in this appendix by rule, regulation, order, or appendix until the application is withdrawn license condition. or the license expires, including any period paragraphs B.5.b and B.5.c of this section. D. Except in accordance with the change of extended operation under a renewed When evaluating the proposed departure, an processes in Section VIII of this appendix, license. applicant or licensee shall consider all matters described in the plant-specific DCD. the Commission may not require an applicant VIII. Processes for Changes and Departures or licensee who references this appendix to: b. A proposed departure from Tier 2, other 1. Modify structures, systems, components, A. Tier 1 information. than one affecting resolution of a severe or design features as described in the generic 1. Generic changes to Tier 1 information accident issue identified in the plant-specific DCD; are governed by the requirements in 10 CFR DCD, involves an unreviewed safety question 2. Provide additional or alternative 52.63(a)(1). if— structures, systems, components, or design 2. Generic changes to Tier 1 information (1) The probability of occurrence or the features not discussed in the generic DCD; or are applicable to all applicants or licensees consequences of an accident or malfunction 3. Provide additional or alternative design who reference this appendix, except those for of equipment important to safety previously criteria, testing, analyses, acceptance criteria, which the change has been rendered evaluated in the plant-specific DCD may be or justification for structures, systems, technically irrelevant by action taken under increased; components, or design features discussed in paragraphs A.3 or A.4 of this section. (2) A possibility for an accident or the generic DCD. 3. Departures from Tier 1 information that malfunction of a different type than any E.1. Persons who wish to review are required by the Commission through evaluated previously in the plant-specific proprietary and safeguards information or plant-specific orders are governed by the DCD may be created; or other secondary references in the DCD for the requirements in 10 CFR 52.63(a)(3). (3) The margin of safety as defined in the U.S. ABWR design, in order to request or 4. Exemptions from Tier 1 information are basis for any technical specification is participate in the hearing required by 10 CFR governed by the requirements in 10 CFR reduced. 52.85 or the hearing provided under 10 CFR 52.63(b)(1) and § 52.97(b). The Commission c. A proposed departure from Tier 2 52.103, or to request or participate in any will deny a request for an exemption from affecting resolution of a severe accident issue other hearing relating to this appendix in Tier 1, if it finds that the design change will identified in the plant-specific DCD, involves which interested persons have adjudicatory result in a significant decrease in the level of an unreviewed safety question if— hearing rights, shall first request access to safety otherwise provided by the design. (1) There is a substantial increase in the such information from GE Nuclear Energy. B. Tier 2 information. probability of a severe accident such that a The request must state with particularity: 1. Generic changes to Tier 2 information particular severe accident previously a. The nature of the proprietary or other are governed by the requirements in 10 CFR reviewed and determined to be not credible information sought; 52.63(a)(1). could become credible; or b. The reason why the information 2. Generic changes to Tier 2 information (2) There is a substantial increase in the currently available to the public in the NRC’s are applicable to all applicants or licensees consequences to the public of a particular public document room is insufficient; who reference this appendix, except those for severe accident previously reviewed. c. The relevance of the requested which the change has been rendered d. If a departure involves an unreviewed information to the hearing issue(s) which the technically irrelevant by action taken under safety question as defined in paragraph B.5 person proposes to raise; and paragraphs B.3, B.4, B.5, or B.6 of this of this section, it is governed by 10 CFR d. A showing that the requesting person section. 50.90. has the capability to understand and utilize 3. The Commission may not require new e. A departure from Tier 2 information that the requested information. requirements on Tier 2 information by plant- is made under paragraph B.5 of this section 2. If a person claims that the information specific order while this appendix is in effect does not require an exemption from this is necessary to prepare a request for hearing, under §§ 52.55 or 52.61, unless: appendix. 25830 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

f. A party to an adjudicatory proceeding for (13) Self-test system design testing features of the admissibility of the contention. All either the issuance, amendment, or renewal and commitments. other issues with respect to the plant-specific of a license or for operation under 10 CFR (14) Human factors engineering design and technical specifications or other operational 52.103(a), who believes that an applicant or implementation process. requirements are subject to a hearing as part licensee who references this appendix has d. Departures from Tier 2* information that of the license proceeding. not complied with VIII.B.5 of this appendix are made under paragraph B.6 of this section 6. After issuance of a license, the generic when departing from Tier 2 information, may do not require an exemption from this technical specifications have no further effect petition to admit into the proceeding such a appendix. on the plant-specific technical specifications contention. In addition to compliance with C. Operational requirements. and changes to the plant-specific technical the general requirements of 10 CFR 1. Generic changes to generic technical specifications will be treated as license 2.714(b)(2), the petition must demonstrate specifications and other operational amendments under 10 CFR 50.90. that the departure does not comply with requirements that were completely reviewed VIII.B.5 of this appendix. Further, the and approved in the design certification IX. Inspections, Tests, Analyses, and petition must demonstrate that the change rulemaking and do not require a change to a Acceptance Criteria (ITAAC) bears on an asserted noncompliance with an design feature in the generic DCD are A.1 An applicant or licensee who ITAAC acceptance criterion in the case of a governed by the requirements in 10 CFR references this appendix shall perform and 10 CFR 52.103 preoperational hearing, or that 50.109. Generic changes that do require a demonstrate conformance with the ITAAC the change bears directly on the amendment change to a design feature in the generic DCD before fuel load. With respect to activities request in the case of a hearing on a license are governed by the requirements in subject to an ITAAC, an applicant for a amendment. Any other party may file a paragraphs A or B of this section. license may proceed at its own risk with response. If, on the basis of the petition and 2. Generic changes to generic technical design and procurement activities, and a any response, the presiding officer specifications and other operational licensee may proceed at its own risk with determines that a sufficient showing has been requirements are applicable to all applicants design, procurement, construction, and made, the presiding officer shall certify the or licensees who reference this appendix, preoperational activities, even though the matter directly to the Commission for except those for which the change has been NRC may not have found that any particular determination of the admissibility of the rendered technically irrelevant by action ITAAC has been satisfied. contention. The Commission may admit such taken under paragraphs C.3 or C.4 of this 2. The licensee who references this a contention if it determines the petition section. appendix shall notify the NRC that the raises a genuine issue of fact regarding 3. The Commission may require plant- required inspections, tests, and analyses in compliance with VIII.B.5 of this appendix. specific departures on generic technical the ITAAC have been successfully completed 6.a. An applicant who references this specifications and other operational and that the corresponding acceptance appendix may not depart from Tier 2* requirements that were completely reviewed criteria have been met. information, which is designated with and approved, provided a change to a design 3. In the event that an activity is subject italicized text or brackets and an asterisk in feature in the generic DCD is not required to an ITAAC, and the applicant or licensee the generic DCD, without NRC approval. The and special circumstances as defined in 10 who references this appendix has not departure will not be considered a resolved issue, within the meaning of Section VI of CFR 2.758(b) are present. The Commission demonstrated that the ITAAC has been this appendix and 10 CFR 52.63(a)(4). may modify or supplement generic technical satisfied, the applicant or licensee may either b. A licensee who references this appendix specifications and other operational take corrective actions to successfully may not depart from the following Tier 2* requirements that were not completely complete that ITAAC, request an exemption matters without prior NRC approval. A reviewed and approved or require additional from the ITAAC in accordance with Section request for a departure will be treated as a technical specifications and other operational VIII of this appendix and 10 CFR 52.97(b), or request for a license amendment under 10 requirements on a plant-specific basis, petition for rulemaking to amend this CFR 50.90. provided a change to a design feature in the appendix by changing the requirements of (1) Fuel burnup limit (4.2). generic DCD is not required. the ITAAC, under 10 CFR 2.802 and 52.97(b). (2) Fuel design evaluation (4.2.3). 4. An applicant who references this Such rulemaking changes to the ITAAC must (3) Fuel licensing acceptance criteria appendix may request an exemption from the meet the requirements of paragraph VIII.A.1 (Appendix 4B). generic technical specifications or other of this appendix. c. A licensee who references this appendix operational requirements. The Commission B.1 The NRC shall ensure that the may not, before the plant first achieves full may grant such a request only if it determines required inspections, tests, and analyses in power following the finding required by 10 that the exemption will comply with the the ITAAC are performed. The NRC shall CFR 52.103(g), depart from the following Tier requirements of 10 CFR 50.12(a). The grant verify that the inspections, tests, and 2* matters except in accordance with of an exemption must be subject to litigation analyses referenced by the licensee have been paragraph B.6.b of this section. After the in the same manner as other issues material successfully completed and, based solely plant first achieves full power, the following to the license hearing. thereon, find the prescribed acceptance Tier 2* matters revert to Tier 2 status and are 5. A party to an adjudicatory proceeding criteria have been met. At appropriate thereafter subject to the departure provisions for either the issuance, amendment, or intervals during construction, the NRC shall in paragraph B.5 of this section. renewal of a license or for operation under publish notices of the successful completion (1) ASME Boiler & Pressure Vessel Code, 10 CFR 52.103(a), who believes that an of ITAAC in the Federal Register. Section III. operational requirement approved in the 2. In accordance with 10 CFR 52.99 and (2) ACI 349 and ANSI/AISC N–690. DCD or a technical specification derived from 52.103(g), the Commission shall find that the (3) Motor-operated valves. the generic technical specifications must be acceptance criteria in the ITAAC for the (4) Equipment seismic qualification changed may petition to admit into the license are met before fuel load. methods. proceeding such a contention. Such petition 3. After the Commission has made the (5) Piping design acceptance criteria. must comply with the general requirements finding required by 10 CFR 52.103(g), the (6) Fuel system and assembly design (4.2), of 10 CFR 2.714(b)(2) and must demonstrate ITAAC do not, by virtue of their inclusion except burnup limit. why special circumstances as defined in 10 within the DCD, constitute regulatory (7) Nuclear design (4.3). CFR 2.758(b) are present, or for compliance requirements either for licensees or for (8) Equilibrium cycle and control rod with the Commission’s regulations in effect renewal of the license; except for specific patterns (App. 4A). at the time this appendix was approved, as ITAAC, which are the subject of a Section (9) Control rod licensing acceptance set forth in Section V of this appendix. Any 103(a) hearing, their expiration will occur criteria (App. 4C). other party may file a response thereto. If, on upon final Commission action in such (10) Instrument setpoint methodology. the basis of the petition and any response, proceeding. However, subsequent (11) EMS performance specifications and the presiding officer determines that a modifications must comply with the Tier 1 architecture. sufficient showing has been made, the and Tier 2 design descriptions in the plant- (12) SSLC hardware and software presiding officer shall certify the matter specific DCD unless the licensee has qualification. directly to the Commission for determination complied with the applicable requirements of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25831

10 CFR 52.97 and Section VIII of this Dated at Rockville, Maryland, this 2nd day PART 614ÐLOAN POLICIES AND appendix. of May, 1997. OPERATIONS X. Records and Reporting For the Nuclear Regulatory Commission. A. Records. John C. Hoyle, 1. The authority citation for part 614 1. The applicant for this appendix shall Secretary of the Commission. continues to read as follows: maintain a copy of the generic DCD that [FR Doc. 97–11968 Filed 5–9–97; 8:45 am] Authority: 42 U.S.C. 4012a, 4014a, 4104b, includes all generic changes to Tier 1 and BILLING CODE 7590±01±P 4106, and 4128; secs. 1.3, 1.5, 1.6, 1.7, 1.9, Tier 2. The applicant shall maintain the 1.10, 2.0, 2.2, 2.3, 2.4, 2.10, 2.12, 2.13, 2.15, proprietary and safeguards information 3.0, 3.1, 3.3, 3.7, 3.8, 3.10, 3.20, 3.28, 4.12, referenced in the generic DCD for the period FARM CREDIT ADMINISTRATION that this appendix may be referenced, as 4.12A, 4.13, 4.13B, 4.14, 4.14A, 4.14C, 4.14D, 4.14E, 4.18, 4.19, 4.36, 4.37, 5.9, 5.10, 5.17, specified in Section VII of this appendix. 12 CFR Parts 614 and 618 2. An applicant or licensee who references 7.0, 7.2, 7.6, 7.7, 7.8, 7.12, 7.13, 8.0, 8.5 of this appendix shall maintain the plant- RIN 3052±AB61 the Farm Credit Act (12 U.S.C. 2011, 2013, specific DCD to accurately reflect both 2014, 2015, 2017, 2018, 2019, 2071, 2073, generic changes to the generic DCD and Organization and Functions; Privacy 2074, 2075, 2091, 2093, 2094, 2096, 2121, plant-specific departures made pursuant to Act Regulations; Organization; Loan 2122, 2124, 2128, 2129, 2131, 2141, 2149, Section VIII of this appendix throughout the Policies and Operations; Funding and 2183, 2184, 2199, 2201, 2202, 2202a, 2202c, period of application and for the term of the Fiscal Affairs, Loan Policies and 2202d, 2202e, 2206, 2206a, 2207, 2219a, license (including any period of renewal). Operations, and Funding Operations; 2219b, 2243, 2244, 2252, 2279a, 2279a-2, 3. An applicant or licensee who references 2279b, 2279b-1, 2279b-2, 2279f, 2279f-1, this appendix shall prepare and maintain General Provisions; Definitions; Correction 2279aa, 2279aa-5); sec. 413 of Pub. L. 100– written safety evaluations which provide the 233, 101 Stat. 1568, 1639. bases for the determinations required by AGENCY: Farm Credit Administration. Section VIII of this appendix. These ACTION: Correcting amendments. Subpart NÐLoan Servicing evaluations must be retained throughout the Requirements; State Agricultural Loan period of application and for the term of the SUMMARY: Mediation Programs; Right of First license (including any period of renewal). The Farm Credit B. Reporting. Administration (FCA) published an Refusal 1. An applicant or licensee who references interim rule (62 FR 67181, December 20, § 614.4516 [Corrected] this appendix shall submit a report to the 1996) that amended the regulations to NRC containing a brief description of any eliminate unnecessary, outdated, 2.The introductory text of § 614.4516 departures from the plant-specific DCD, duplicative, or burdensome regulatory is amended by adding the words ‘‘in including a summary of the safety evaluation requirements, to replace outdated accordance’’ immediately after the word of each. This report must be filed in regulatory language with more current ‘‘accomplished’’. accordance with the filing requirements terminology, and to clarify the intended applicable to reports in 10 CFR 50.4. 2. An applicant or licensee who references meaning of certain regulatory PART 618ÐGENERAL PROVISIONS this appendix shall submit updates to its provisions. This document corrects plant-specific DCD, which reflect the generic nonsubstantive errors in the interim 3. The authority citation for part 618 changes to the generic DCD and the plant- rule. continues to read as follows: specific departures made pursuant to Section EFFECTIVE DATE: March 4, 1997. Authority: Secs. 1.5, 1.11, 1.12, 2.2, 2.4, VIII of this appendix. These updates shall be FOR FURTHER INFORMATION CONTACT: 2.5, 2.12, 3.1, 3.7, 4.12, 4.13A, 4.25, 4.29, 5.9, filed in accordance with the filing Cindy R. Nicholson, Paralegal 5.10, 5.17 of the Farm Credit Act (12 U.S.C. requirements applicable to final safety 2013, 2019, 2020, 2073, 2075, 2076, 2093, analysis report updates in 10 CFR 50.4 and Specialist, Office of Policy Development 2122, 2128, 2183, 2200, 2211, 2218, 2243, 50.71(e). and Risk Control, Farm Credit 3. The reports and updates required by Administration, McLean, VA 22102– 2244, 2252). paragraphs B.1 and B.2 of this section must 5090, 703) 883–4498, TDD (703) 883– be submitted as follows: 4444. Subpart GÐReleasing Information a. On the date that an application for a SUPPLEMENTARY INFORMATION: In § 618.8320 [Corrected] license referencing this appendix is identifying commenters on the interim submitted, the application shall include the rule, the FCA inadvertently failed to 4. Paragraph (b)(5) of § 618.8320 is report and any updates to the plant-specific revised to read as follows. DCD. note receipt of a comment letter b. During the interval from the date of provided by the Farm Credit Council * * * * * application to the date of issuance of a (FCC) during the public comment (b) * * * license, the report and any updates to the period. plant-specific DCD must be submitted (5) Impersonal information based annually and may be submitted along with List of Subjects solely on transactions or experience amendments to the application. 12 CFR Part 614 with a borrower, such as amounts of c. During the interval from the date of loans, terms, and payment records, may issuance of a license to the date the Agriculture, Banks, banking, Foreign be given by a bank or association to any Commission makes its findings under 10 CFR trade, Reporting and recordkeeping reliable organization for its confidential 52.103(g), the report must be submitted requirements, Rural areas. use in contemplation of the extension of quarterly. Updates to the plant-specific DCD 12 CFR Part 618 credit or to a consumer reporting must be submitted annually. agency. d. After the Commission has made its Agriculture, Archives and records, finding under 10 CFR 52.103(g), reports and Banks, banking, Insurance, Reporting * * * * * updates to the plant-specific DCD may be and recordkeeping requirements, Rural Dated: May 6, 1997. submitted annually or along with updates to areas, Technical assistance. Floyd Fithian, the site-specific portion of the final safety Secretary, Farm Credit Administration Board. analysis report for the facility at the intervals Accordingly, 12 CFR parts 614 and required by 10 CFR 50.71(e), or at shorter 618 are corrected by making the [FR Doc. 97–12347 Filed 5–9–97; 8:45 am] intervals as specified in the license. following correcting amendments: BILLING CODE 6705±01±P 25832 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION 1601 Lind Avenue, SW., Renton, States, on the relationship between the Washington 98055–4056; telephone national government and the States, or Federal Aviation Administration (425) 227–2141; fax (425) 227–1149. on the distribution of power and SUPPLEMENTARY INFORMATION: A responsibilities among the various 14 CFR Part 39 proposal to amend part 39 of the Federal levels of government. Therefore, in [Docket No. 96±NM±96±AD; Amendment Aviation Regulations (14 CFR part 39) to accordance with Executive Order 12612, 39±10018; AD 97±10±06] include an airworthiness directive (AD) it is determined that this final rule does not have sufficient federalism RIN 2120±AA64 that is applicable to certain Israel Aircraft Industries (IAI), Ltd. Model implications to warrant the preparation Airworthiness Directives; Israel 1125 Westwind Astra series airplanes of a Federalism Assessment. Aircraft Industries (IAI), Ltd. Model was published in the Federal Register For the reasons discussed above, I 1125 Westwind Astra Series Airplanes on February 19, 1997 (62 FR 7385). That certify that this action (1) Is not a action proposed to require repetitive ‘‘significant regulatory action’’ under AGENCY: Federal Aviation visual inspections to detect loose or Executive Order 12866; (2) is not a Administration, DOT. fretted rivets that fasten the support ‘‘significant rule’’ under DOT ACTION: Final rule. beam to the fuselage frame at station Regulatory Policies and Procedures (44 452.00. Should any loose or fretted rivet FR 11034, February 26, 1979); and (3) SUMMARY: This amendment adopts a be detected, that action proposed to will not have a significant economic new airworthiness directive (AD), require modification of the attachment impact, positive or negative, on a applicable to certain IAI Model 1125 between the beam and the fuselage by substantial number of small entities Westwind Astra series airplanes, that the installation of additional fasteners. under the criteria of the Regulatory requires repetitive inspections to detect Additionally, that action proposed to Flexibility Act. A final evaluation has loose or damaged rivets that fasten a require that this modification be been prepared for this action and it is certain support beam to the frame of the installed eventually on all affected contained in the Rules Docket. A copy fuselage; and modification of the airplanes. of it may be obtained from the Rules attachment between the support beam Interested persons have been afforded Docket at the location provided under and fuselage by installation of an opportunity to participate in the the caption ADDRESSES. additional fasteners, if necessary. This making of this amendment. No List of Subjects in 14 CFR Part 39 amendment also will require the comments were submitted in response eventual accomplishment of this to the proposal or the FAA’s Air transportation, Aircraft, Aviation modification on all airplanes, which determination of the cost to the public. safety, Incorporation by reference, will terminate the repetitive Safety. inspections. This amendment is Conclusion Adoption of the Amendment prompted by reports indicating that the The FAA has determined that air attachment between this beam and the safety and the public interest require the Accordingly, pursuant to the fuselage has become loose on several adoption of the rule as proposed. authority delegated to me by the airplanes. Movement of this beam could Administrator, the Federal Aviation restrict the movement of the elevator Cost Impact Administration amends part 39 of the and rudder controls that run through the The FAA estimates that 58 IAI Model Federal Aviation Regulations (14 CFR bellcranks attached to it. The actions 1125 Westwind Astra series airplanes of part 39) as follows: specified by this AD are intended to U.S. registry will be affected by this AD. prevent movement of this beam, which It will take approximately 1 work PART 39ÐAIRWORTHINESS could restrict movement of the elevator hour per airplane to accomplish the DIRECTIVES and rudder controls, and consequently required visual inspection, at an average labor rate of $60 per work hour. Based 1. The authority citation for part 39 lead to reduced controllability of the continues to read as follows: airplane. on these figures, the cost impact of the Authority: 49 U.S.C. 106(g), 40113, 44701. DATES: Effective June 16, 1997. required inspection on U.S. operators is The incorporation by reference of estimated to be $3,480, or $60 per § 39.13 [Amended] airplane, per inspection. certain publications listed in the 2. Section 39.13 is amended by regulations is approved by the Director It will take approximately 8 work hours per airplane to accomplish the adding the following new airworthiness of the Federal Register as of June 16, directive: 1997. required terminating modification, at an average labor rate of $60 per work hour. 97–10–06 Israel Aircraft Industries (IAI), ADDRESSES: The service information The cost of parts is minimal. Based on Ltd.: Amendment 39–10018. Docket 96– referenced in this AD may be obtained these figures, the cost impact of the NM–96–AD. from Technical Publications, Astra Jet required modification on U.S. operators Applicability: Model 1125 Westwind Astra Corporation, 77 McCullough Drive, is estimated to be $27,840, or $480 per series airplanes, as listed in IAI Service Suite 11, New Castle, Delaware 19720. airplane. Bulletin SB 1125–53–135, dated April 26, This information may be examined at The cost impact figures discussed 1995; certificated in any category. the Federal Aviation Administration above are based on assumptions that no Note 1: This AD applies to each airplane (FAA), Transport Airplane Directorate, operator has yet accomplished any of identified in the preceding applicability Rules Docket, 1601 Lind Avenue, SW., the requirements of this AD action, and provision, regardless of whether it has been Renton, Washington; or at the Office of otherwise modified, altered, or repaired in that no operator would accomplish the area subject to the requirements of this the Federal Register, 800 North Capitol those actions in the future if this AD Street, NW., suite 700, Washington, DC. AD. For airplanes that have been modified, were not adopted. altered, or repaired so that the performance FOR FURTHER INFORMATION CONTACT: Tim Regulatory Impact of the requirements of this AD is affected, the Dulin, Aerospace Engineer, owner/operator must request approval for an Standardization Branch, ANM–113, The regulations adopted herein will alternative method of compliance in FAA, Transport Airplane Directorate, not have substantial direct effects on the accordance with paragraph (c) of this AD. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25833

The request should include an assessment of Washington; or at the Office of the Federal the Federal Register, 800 North Capitol the effect of the modification, alteration, or Register, 800 North Capitol Street, NW., suite Street, NW., suite 700, Washington, DC. repair on the unsafe condition addressed by 700, Washington, DC. this AD; and, if the unsafe condition has not (f) This amendment becomes effective on FOR FURTHER INFORMATION CONTACT: Greg been eliminated, the request should include June 16, 1997. Dunn, Aerospace Engineer, specific proposed actions to address it. Issued in Renton, Washington, on May 2, Standardization Branch, ANM–113, Compliance: Required as indicated, unless 1997. FAA, Transport Airplane Directorate, accomplished previously. S.R. Miller, 1601 Lind Avenue, SW., Renton, To prevent movement of the support beam Acting Manager, Transport Airplane Washington 98055–4056; telephone attached to the fuselage frame at station (425) 227–2799; fax (425) 227–1149. 452.00, which could restrict movement of the Directorate, Aircraft Certification Service. elevator and rudder controls, and [FR Doc. 97–12041 Filed 5–9–97; 8:45 am] SUPPLEMENTARY INFORMATION: A consequently lead to reduced controllability BILLING CODE 4910±13±U proposal to amend part 39 of the Federal of the airplane, accomplish the following: Aviation Regulations (14 CFR part 39) to (a) Within 50 hours time-in-service after include an airworthiness directive (AD) the effective date of this AD, conduct a visual DEPARTMENT OF TRANSPORTATION inspection to detect loose or damaged that is applicable to certain CASA Model CN–235 series airplanes was (‘‘fretted’’) rivets that fasten the support beam Federal Aviation Administration to the fuselage frame at station 452.000, in published in the Federal Register on accordance with Part A of IAI Service 14 CFR Part 39 February 19, 1997 (62 FR 7378). That Bulletin SB 1125–53–135, dated April 26, action proposed to require, first, 1995. [Docket No. 96±NM±144±AD; Amendment disabling the brake control valve of the (1) If no loose or fretted rivet is detected, 39±10019; AD 97±10±07] propeller. Then, prior to restoring repeat this inspection thereafter at intervals propeller brake operation, the action not to exceed 250 hours time-in-service until RIN 2120±AA64 the modification required by paragraph (b) of proposed to require replacement of this AD is accomplished. Airworthiness Directives; certain propeller brake control units (2) If any loose or fretted rivet is detected, Construcciones Aeronauticas, S.A. with certain new propeller brake control prior to further flight, modify the support (CASA) Model CN±235 Series units. beam in accordance with Part B of IAI Airplanes Interested persons have been afforded Service Bulletin SB 1125–53–135, dated an opportunity to participate in the April 26, 1995. After this modification is AGENCY: Federal Aviation making of this amendment. No accomplished, no further action is required Administration, DOT. by paragraph (a) or (b) of this AD. comments were submitted in response (b) Within 500 hours time-in-service after ACTION: Final rule. to the proposal or the FAA’s the effective date of this AD, modify the determination of the cost to the public. support beam in accordance with Part B of SUMMARY: This amendment adopts a IAI Service Bulletin SB 1125–53–135, dated new airworthiness directive (AD), Conclusion applicable to certain CASA Model CN– April 26, 1995. Accomplishment of this The FAA has determined that air modification constitutes terminating action 235 series airplanes, that requires safety and the public interest require the for the repetitive inspections required by disabling the brake control valve of the adoption of the rule as proposed. paragraph (a)(1) of this AD. propeller. This amendment also requires (c) An alternative method of compliance or that, prior to restoring propeller brake Cost Impact adjustment of the compliance time that operation, the propeller brake control provides an acceptable level of safety may be The FAA estimates that 2 CASA used if approved by the Manager, unit be replaced with a certain new propeller brake control unit. This Model CN–235 series airplanes of U.S. Standardization Branch, ANM–113, FAA, registry will be affected by this AD. Transport Airplane Directorate. Operators amendment is prompted by reports of shall submit their requests through an uncommanded activation of the It will take approximately 3 work appropriate FAA Principal Maintenance propeller brake system on in-service hours per airplane to accomplish the Inspector, who may add comments and then airplanes during flight, due to the required disabling of the brake control send it to the Manager, Standardization existing design of the brake control valve, at an average labor rate of $60 per Branch, ANM–113. valve. The actions specified by this AD work hour. Based on these figures, the Note 2: Information concerning the are intended to prevent in-flight cost impact of this required action on existence of approved alternative methods of U.S. operators is estimated to be $360, compliance with this AD, if any, may be uncommanded activation of the obtained from the Standardization Branch, propeller brake system, which could or $180 per airplane. ANM–113. result in in-flight shutdown of the It will take approximately 8 work (d) Special flight permits may be issued in engine. hours per airplane to accomplish the accordance with sections 21.197 and 21.199 DATES: Effective June 16, 1997. required replacement, at an average of the Federal Aviation Regulations (14 CFR The incorporation by reference of labor rate of $60 per work hour. 21.197 and 21.199) to operate the airplane to certain publications listed in the Required parts will be supplied by the a location where the requirements of this AD regulations is approved by the Director manufacturer at no cost to the operators. can be accomplished. Based on these figures, the cost impact (e) The inspections and modification shall of the Federal Register as of June 16, be done in accordance with IAI Service 1997. of this required action on U.S. operators Bulletin SB 1125–53–135, dated April 26, ADDRESSES: The service information is estimated to be $960, or $480 per 1995. This incorporation by reference was referenced in this AD may be obtained airplane. approved by the Director of the Federal from Construcciones Aeronauticas, S.A., The cost impact figures discussed Register in accordance with 5 U.S.C. 552(a) Getafe, Madrid, Spain. This information above are based on assumptions that no and 1 CFR part 51. Copies may be obtained may be examined at the Federal operator has yet accomplished any of from Technical Publications, Astra Jet Corporation, 77 McCullough Drive, Suite 11, Aviation Administration (FAA), the requirements of this AD action, and New Castle, Delaware 19720. Copies may be Transport Airplane Directorate, Rules that no operator would accomplish inspected at the FAA, Transport Airplane Docket, 1601 Lind Avenue, SW., those actions in the future if this AD Directorate, 1601 Lind Avenue, SW., Renton, Renton, Washington; or at the Office of were not adopted. 25834 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

Regulatory Impact owner/operator must request approval for an Revision level Date shown on alternative method of compliance in Page No. shown on page page The regulations adopted herein will accordance with paragraph (c) of this AD. not have substantial direct effects on the The request should include an assessment of 3±11 ...... Original ...... October 11, States, on the relationship between the the effect of the modification, alteration, or 1994. national government and the States, or repair on the unsafe condition addressed by on the distribution of power and this AD; and, if the unsafe condition has not This incorporation by reference was responsibilities among the various been eliminated, the request should include approved by the Director of the Federal levels of government. Therefore, in specific proposed actions to address it. Register in accordance with 5 U.S.C. 552(a) accordance with Executive Order 12612, Compliance: Required as indicated, unless and 1 CFR part 51. Copies may be obtained it is determined that this final rule does accomplished previously. from Construcciones Aeronauticas, S.A., not have sufficient federalism To prevent in-flight uncommanded Getafe, Madrid, Spain. Copies may be activation of the propeller brake system, inspected at the FAA, Transport Airplane implications to warrant the preparation Directorate, 1601 Lind Avenue, SW., Renton, of a Federalism Assessment. which could result in in-flight shutdown of the engine, accomplish the following: Washington; or at the Office of the Federal For the reasons discussed above, I (a) Within 10 days after the effective date Register, 800 North Capitol Street, NW., suite certify that this action (1) is not a of this AD, disable the brake control valve of 700, Washington, DC. ‘‘significant regulatory action’’ under the propeller in accordance with Annex 1 of (f) This amendment becomes effective on Executive Order 12866; (2) is not a CASA Communication COM 235–82, June 16, 1997. ‘‘significant rule’’ under DOT Revision 3, dated January 31, 1995. Issued in Renton, Washington, on May 2, Regulatory Policies and Procedures (44 (b) Prior to restoring propeller brake 1997. FR 11034, February 26, 1979); and (3) operation, replace the propeller brake control S.R. Miller, unit having part number (P/N) HP1410100– will not have a significant economic Acting Manager, Transport Airplane 5 or HP1410100–7, with a new propeller impact, positive or negative, on a Directorate, Aircraft Certification Service. brake control unit having P/N HP1410100–9, substantial number of small entities in accordance with CASA Service Bulletin [FR Doc. 97–12042 Filed 5–9–97; 8:45 am] under the criteria of the Regulatory SB–235–61–01, dated October 11, 1994; or BILLING CODE 4910±13±U Flexibility Act. A final evaluation has CASA Service Bulletin SB–235–61–01M, been prepared for this action and it is Revision 2 (for military airplanes), dated contained in the Rules Docket. A copy January 25, 1996; as applicable. DEPARTMENT OF TRANSPORTATION of it may be obtained from the Rules Accomplishment of this replacement Docket at the location provided under constitutes terminating action for the Federal Aviation Administration the caption ADDRESSES. requirements of paragraph (a) of this AD. (c) An alternative method of compliance or 14 CFR Part 39 List of Subjects in 14 CFR Part 39 adjustment of the compliance time that provides an acceptable level of safety may be [Docket No. 96±NM±138±AD; Amendment Air transportation, Aircraft, Aviation used if approved by the Manager, 39±10020; AD 97±10±08] safety, Incorporation by reference, Standardization Branch, ANM–113, FAA, RIN 2120±AA64 Safety. Transport Airplane Directorate. Operators Adoption of the Amendment shall submit their requests through an Airworthiness Directives; appropriate FAA Principal Maintenance Construcciones Aeronauticas, S.A. Accordingly, pursuant to the Inspector, who may add comments and then (CASA) Model CN±235 Series send it to the Manager, Standardization authority delegated to me by the Airplanes Administrator, the Federal Aviation Branch, ANM–113. Administration amends part 39 of the Note 2: Information concerning the AGENCY: Federal Aviation Federal Aviation Regulations (14 CFR existence of approved alternative methods of Administration, DOT. compliance with this AD, if any, may be part 39) as follows: ACTION: Final rule. obtained from the Standardization Branch, PART 39ÐAIRWORTHINESS ANM–113. SUMMARY: This amendment adopts a DIRECTIVES (d) Special flight permits may be issued in new airworthiness directive (AD), accordance with sections 21.197 and 21.199 applicable to certain CASA Model CN– 1. The authority citation for part 39 of the Federal Aviation Regulations (14 CFR 235 series airplanes, that requires continues to read as follows: 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD replacement of the guide hooks of the Authority: 49 U.S.C. 106(g), 40113, 44701. can be accomplished. cargo doors with new, improved guide (e) Disabling the brake control valve of the hooks. This amendment is prompted by § 39.13 [Amended] propeller shall be done in accordance with fatigue cracking found in the guide 2. Section 39.13 is amended by Annex 1 of CASA Communication COM 235– hooks of the cargo door. The actions adding the following new airworthiness 82, Revision 3, dated January 31, 1995. The specified by this AD are intended to directive: replacement shall be done in accordance prevent such fatigue cracking, which with CASA Service Bulletin SB–235–61–01, 97–10–07 Construcciones Aeronauticas, could result in reduced structural dated October 11, 1994; or CASA Service integrity of the cargo door and, S.A., CASA: Amendment 39–10019. Bulletin SB–235–61–01M, Revision 2, dated Docket 96–NM–144–AD. January 25, 1996; as applicable. CASA consequently, lead to rapid Applicability: All Model CN–235, CN–235– Service Bulletin SB–235–61–01M, Revision decompression of the airplane. 100, and CN–235–200 series airplanes; 2, dated January 25, 1996, contains the DATES: Effective June 16, 1997. certificated in any category. following list of effective pages: The incorporation by reference of Note 1: This AD applies to each airplane certain publications listed in the identified in the preceding applicability Page No. Revision level Date shown on regulations is approved by the Director provision, regardless of whether it has been shown on page page of the Federal Register as of June 16, otherwise modified, altered, or repaired in 1997. the area subject to the requirements of this 1 ...... 1 ...... November 27, AD. For airplanes that have been modified, 1995. ADDRESSES: The service information altered, or repaired so that the performance 2 ...... 2 ...... January 25, referenced in this AD may be obtained of the requirements of this AD is affected, the 1996. from Construcciones Aeronauticas, S.A., Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25835

Getafe, Madrid, Spain. This information implications to warrant the preparation Compliance: Required as indicated, unless may be examined at the Federal of a Federalism Assessment. accomplished previously. Aviation Administration (FAA), For the reasons discussed above, I To prevent fatigue-related cracking in the Transport Airplane Directorate, Rules guide hooks of the cargo door, which could certify that this action (1) is not a result in reduced structural integrity of the Docket, 1601 Lind Avenue, SW., ‘‘significant regulatory action’’ under cargo door and, consequently, lead to rapid Renton, Washington; or at the Office of Executive Order 12866; (2) is not a decompression of the airplane, accomplish the Federal Register, 800 North Capitol ‘‘significant rule’’ under DOT the following: Street, NW., suite 700, Washington, DC. Regulatory Policies and Procedures (44 (a) Replace the guide hooks of the cargo FOR FURTHER INFORMATION CONTACT: Greg FR 11034, February 26, 1979); and (3) doors with new, improved guide hooks, in Dunn, Aerospace Engineer, will not have a significant economic accordance with CASA Service Bulletin SB– Standardization Branch, ANM–113, impact, positive or negative, on a 235–52–23, Revision 2, dated June 9, 1994, FAA, Transport Airplane Directorate, or CASA Service Bulletin SB–235–52–23M, substantial number of small entities dated March 17, 1994; at the time specified 1601 Lind Avenue, SW., Renton, under the criteria of the Regulatory in paragraph (a)(1) or (a)(2) of this AD, as Washington 98055–4056; telephone Flexibility Act. A final evaluation has applicable. (425) 227–2799; fax (425) 227–1149. been prepared for this action and it is Note 2: Replacements accomplished prior SUPPLEMENTARY INFORMATION: A contained in the Rules Docket. A copy to the effective date of this AD in accordance proposal to amend part 39 of the Federal of it may be obtained from the Rules with CASA Service Bulletin SB–235–52–23, Aviation Regulations (14 CFR part 39) to Docket at the location provided under dated June 16, 1993, or Revision 1, dated include an airworthiness directive (AD) the caption ADDRESSES. April 13, 1994, are considered acceptable for that is applicable to certain CASA compliance with the requirements of List of Subjects in 14 CFR Part 39 Model CN–235 series airplanes was paragraph (a) of this AD. published in the Federal Register on Air transportation, Aircraft, Aviation (1) For airplanes listed in CASA Service February 19, 1997 (62 FR 7382). That safety, Incorporation by reference, Bulletin SB–235–52–23: Replace prior to the action proposed to require replacement Safety. accumulation of 17,000 total landings. of the guide hooks of the cargo doors (2) For airplanes listed in CASA Service Adoption of the Amendment Bulletin SB–235–52–23M: Replace prior to with new, improved guide hooks. the accumulation of 15,000 total landings. Interested persons have been afforded Accordingly, pursuant to the (b) An alternative method of compliance or an opportunity to participate in the authority delegated to me by the adjustment of the compliance time that making of this amendment. No Administrator, the Federal Aviation provides an acceptable level of safety may be comments were submitted in response Administration amends part 39 of the used if approved by the Manager, to the proposal or the FAA’s Federal Aviation Regulations (14 CFR Standardization Branch, ANM–113, FAA, determination of the cost to the public. part 39) as follows: Transport Airplane Directorate. Operators shall submit their requests through an Conclusion PART 39ÐAIRWORTHINESS appropriate FAA Principal Maintenance The FAA has determined that air DIRECTIVES Inspector, who may add comments and then safety and the public interest require the send it to the Manager, Standardization adoption of the rule as proposed. 1. The authority citation for part 39 Branch, ANM–113. continues to read as follows: Note 3: Information concerning the Cost Impact existence of approved alternative methods of Authority: 49 U.S.C. 106(g), 40113, 44701. The FAA estimates that 1 airplane of compliance with this AD, if any, may be U.S. registry will be affected by this AD, obtained from the Standardization Branch, § 39.13 [Amended] ANM–113. that it will take approximately 150 work 2. Section 39.13 is amended by hours per airplane to accomplish the (c) Special flight permits may be issued in adding the following new airworthiness accordance with sections 21.197 and 21.199 required actions, and that the average directive: of the Federal Aviation Regulations (14 CFR labor rate is $60 per work hour. 21.197 and 21.199) to operate the airplane to Required parts will cost approximately 97–10–08 Construcciones Aeronauticas, a location where the requirements of this AD $6,100 per airplane. Based on these S.A., CASA: Amendment 39–10020. can be accomplished. figures, the cost impact of the AD on Docket 96–NM–138–AD. (d) The replacement shall be done in U.S. operators is estimated to be $15,100 Applicability: Model CN–235 series accordance with CASA Service Bulletin SB– per airplane. airplanes, as listed in CASA Service Bulletin 235–52–23, Revision 2, dated June 9, 1994, The cost impact figure discussed SB–235–52–23, Revision 2, dated June 9, or CASA Service Bulletin SB–235–52–23M, 1994, and CASA Service Bulletin SB–235– dated March 17, 1994. CASA Service Bulletin above is based on assumptions that no 52–23M, dated March 17, 1994; certificated operator has yet accomplished any of SB–235–52–23, Revision 2, dated June 1994, in any category. contains the following list of effective pages: the requirements of this AD action, and Note 1: This AD applies to each airplane that no operator would accomplish identified in the preceding applicability Page No. Revision level Date shown on those actions in the future if this AD provision, regardless of whether it has been shown on page page were not adopted. otherwise modified, altered, or repaired in the area subject to the requirements of this 1 ...... 1 ...... April 13, 1994. Regulatory Impact AD. For airplanes that have been modified, 2 ...... 2 ...... June 9, 1994. The regulations adopted herein will altered, or repaired so that the performance 3±9 ...... Original ...... June 16, 1993. not have substantial direct effects on the of the requirements of this AD is affected, the States, on the relationship between the owner/operator must request approval for an This incorporation by reference was national government and the States, or alternative method of compliance in approved by the Director of the Federal on the distribution of power and accordance with paragraph (b) of this AD. Register in accordance with 5 U.S.C. 552(a) The request should include an assessment of and 1 CFR part 51. Copies may be obtained responsibilities among the various the effect of the modification, alteration, or from Construcciones Aeronauticas, S.A., levels of government. Therefore, in repair on the unsafe condition addressed by Getafe, Madrid, Spain. Copies may be accordance with Executive Order 12612, this AD; and, if the unsafe condition has not inspected at the FAA, Transport Airplane it is determined that this final rule does been eliminated, the request should include Directorate, 1601 Lind Avenue, SW., Renton, not have sufficient federalism specific proposed actions to address it. Washington; or at the Office of the Federal 25836 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

Register, 800 North Capitol Street, NW., suite the Federal Register, 800 North Capitol Regulatory Impact 700, Washington, DC. Street, NW., suite 700, Washington, DC. (e) This amendment becomes effective on The regulations adopted herein will June 16, 1997. FOR FURTHER INFORMATION CONTACT: not have substantial direct effects on the Issued in Renton, Washington, on May 2, William Schroeder, Aerospace Engineer, States, on the relationship between the 1997. Standardization Branch, ANM–113, national government and the States, or S.R. Miller, FAA, Transport Airplane Directorate, on the distribution of power and 1601 Lind Avenue, SW., Renton, responsibilities among the various Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. Washington 98055–4056; telephone levels of government. Therefore, in (425) 227–2148; fax (425) 227–1149. accordance with Executive Order 12612, [FR Doc. 97–12043 Filed 5–9–97; 8:45 am] it is determined that this final rule does BILLING CODE 4910±13±U SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal not have sufficient federalism Aviation Regulations (14 CFR part 39) to implications to warrant the preparation DEPARTMENT OF TRANSPORTATION include an airworthiness directive (AD) of a Federalism Assessment. that is applicable to certain Jetstream For the reasons discussed above, I Federal Aviation Administration Model 4101 airplanes was published in certify that this action (1) Is not a the Federal Register on February 14, ‘‘significant regulatory action’’ under 14 CFR Part 39 1997 (62 FR 6888). That action proposed Executive Order 12866; (2) is not a to require repetitive detailed visual ‘‘significant rule’’ under DOT [Docket No. 96±NM±168±AD; Amendment Regulatory Policies and Procedures (44 39±10021; AD 97±10±09] inspections to detect cracks on frame 179 at the attachment bracket for the FR 11034, February 26, 1979); and (3) RIN 2120±AA64 door restraint cable, and various follow- will not have a significant economic on actions. That action also proposed to impact, positive or negative, on a Airworthiness Directives; Jetstream require installation of new doublers and substantial number of small entities Model 4101 Airplanes stress pads on frame 179, which would under the criteria of the Regulatory Flexibility Act. A final evaluation has AGENCY: Federal Aviation constitute terminating action for the repetitive inspection requirements. been prepared for this action and it is Administration, DOT. contained in the Rules Docket. A copy ACTION: Final rule. Interested persons have been afforded of it may be obtained from the Rules an opportunity to participate in the Docket at the location provided under SUMMARY: This amendment adopts a making of this amendment. No the caption ADDRESSES. new airworthiness directive (AD), comments were submitted in response applicable to certain Jetstream Model to the proposal or the FAA’s List of Subjects in 14 CFR Part 39 4101 airplanes, that requires repetitive determination of the cost to the public. Air transportation, Aircraft, Aviation detailed visual inspections to detect Conclusion safety, Incorporation by reference, cracks on frame 179 at the attachment Safety. bracket for the door restraint cable, and The FAA has determined that air various follow-on actions. This safety and the public interest require the Adoption of the Amendment amendment also requires installation of adoption of the rule as proposed. Accordingly, pursuant to the new doublers and stress pads on frame authority delegated to me by the Cost Impact 179, which would terminate the Administrator, the Federal Aviation repetitive inspections. This amendment The FAA estimates that 49 Jetstream Administration amends part 39 of the is prompted by reports of cracks in Model 4101 airplanes of U.S. registry Federal Aviation Regulations (14 CFR frame 179 of the fuselage at the will be affected by this AD. part 39) as follows: attachment bracket for the door restraint The required inspection will take cable on in-service airplanes due to approximately 2 work hours per PART 39ÐAIRWORTHINESS improper rigging of the door restraint airplane to accomplish, at an average DIRECTIVES system. The actions specified by this AD labor rate of $60 per work hour. Based 1. The authority citation for part 39 are intended to prevent such cracking, on these figures, the cost impact of the continues to read as follows: which could result in structural failure inspection required by this AD on U.S. Authority: 49 U.S.C. 106(g), 40113, 44701. of the fuselage and consequent rapid operators is estimated to be $5,880, or decompression of the pressurized $120 per airplane, per inspection cycle. § 39.13 [Amended] section of the fuselage. The required installation will take 2. Section 39.13 is amended by DATES: Effective June 16, 1997. approximately 8 work hours per adding the following new airworthiness The incorporation by reference of airplane to accomplish, at an average directive: certain publications listed in the labor rate of $60 per work hour. 97–10–09 Jetstream Aircraft Limited: regulations is approved by the Director Required parts will be supplied by the Amendment 39–10021. Docket 96–NM– of the Federal Register as of June 16, manufacturer at no cost to the operators. 168–AD. 1997. Based on these figures, the cost impact Applicability: Model 4101 airplanes, ADDRESSES: The service information of the installation required by this AD constructors numbers 41004 through 41086 referenced in this AD may be obtained on U.S. operators is estimated to be inclusive; certificated in any category. from Jetstream Aircraft, Inc., P.O. Box $23,520, or $480 per airplane. Note 1: This AD applies to each airplane 16029, Dulles International Airport, The cost impact figures discussed identified in the preceding applicability Washington, DC 20041–6029. This above are based on assumptions that no provision, regardless of whether it has been information may be examined at the operator has yet accomplished any of modified, altered, or repaired in the area subject to the requirements of this AD. For Federal Aviation Administration (FAA), the requirements of this AD action, and airplanes that have been modified, altered, or Transport Airplane Directorate, Rules that no operator would accomplish repaired so that the performance of the Docket, 1601 Lind Avenue, SW., those actions in the future if this AD requirements of this AD is affected, the Renton, Washington; or at the Office of were not adopted. owner/operator must request approval for an Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25837 alternative method of compliance in discrepancy in accordance with the alert the override mechanism and the switch accordance with paragraph (d) of this AD. service bulletin. handle are operational, and replacement The request should include an assessment of (d) An alternative method of compliance or of the EFSS, if necessary. This action the effect of the modification, alteration, or adjustment of the compliance time that also requires, for certain airplanes, repair on the unsafe condition addressed by provides an acceptable level of safety may be installation of a collar on a specific this AD; and, if the unsafe condition has not used if approved by the Manager, been eliminated, the request should include Standardization Branch, ANM–113. circuit breaker of the standby power specific proposed actions to address it. Operators shall submit their requests through management panel, and installation of Compliance: Required as indicated, unless an appropriate FAA Principal Maintenance placards to advise the flightcrew that accomplished previously. Inspector, who may add comments and then the override mechanism must be pushed To prevent cracking in frame 179 of the send it to the Manager, Standardization in order to pull the fire switch. This fuselage, which could result in structural Branch, ANM–113. amendment is prompted by a report failure of the fuselage and consequent rapid Note 2: Information concerning the indicating that a solenoid and an decompression of the pressurized section of existence of approved alternative methods of override mechanism of the EFSS were the fuselage, accomplish the following: compliance with this AD, if any, may be not operational due to overheating of (a) Prior to the accumulation of 3,000 total obtained from the Standardization Branch, flight cycles, or within 300 flight cycles after the solenoid. The actions specified in ANM–113. this AD are intended to prevent damage the effective date of this AD, whichever (e) Special flight permits may be issued in occurs later, perform a detailed visual to the EFSS solenoid and to the override accordance with sections 21.197 and 21.199 mechanism, and consequent failure of inspection to detect cracks on frame 179 at of the Federal Aviation Regulations (14 CFR the attachment bracket for the door restraint 21.197 and 21.199) to operate the airplane to the EFSS due to overheating of the cable, in accordance with Part 1 of the a location where the requirements of this AD solenoid; such failure of the EFSS could Accomplishment Instructions of Jetstream can be accomplished. result in the inability of the flightcrew Alert Service Bulletin J41–A53–024, dated (f) Certain actions shall be done in to discharge the fire extinguishing agent April 26, 1996. accordance with Jetstream Alert Service (1) If no crack is detected, repeat the visual in the event of an engine fire. Bulletin J41–A53–024, dated April 26, 1996. inspection thereafter at intervals not to DATES: Effective May 27, 1997. This incorporation by reference was exceed 1,000 flight cycles. After each The incorporation by reference of approved by the Director of the Federal inspection, perform the actions specified in certain publications listed in the Register in accordance with 5 U.S.C. 552(a) paragraph (c) of this AD. regulations is approved by the Director (2) If any crack is detected, prior to further and 1 CFR part 51. Copies may be obtained from Jetstream Aircraft, Inc., P.O. Box 16029, of the Federal Register as of May 27, flight, repair it in accordance with a method 1997. approved by the Manager, Standardization Dulles International Airport, Washington, DC 20041–6029. Copies may be inspected at the Comments for inclusion in the Rules Branch, ANM–113, FAA, Transport Airplane Docket must be received on or before Directorate. After repair, perform the actions FAA, Transport Airplane Directorate, 1601 specified in paragraph (c) of this AD. Lind Avenue, SW., Renton, Washington; or at July 11, 1997. (b) Within 24 months after the effective the Office of the Federal Register, 800 North ADDRESSES: Submit comments in date of this AD, perform the visual inspection Capitol Street, NW., suite 700, Washington, triplicate to the Federal Aviation specified in paragraph (a) of this AD in DC. Administration (FAA), Transport accordance with Part 2 of the (g) This amendment becomes effective on June 16, 1997. Airplane Directorate, ANM–103, Accomplishment Instructions of Jetstream Attention: Rules Docket No. 97–NM– Issued in Renton, Washington, on May 2, Alert Service Bulletin J41–A53–024, dated 90–AD, 1601 Lind Avenue, SW., April 26, 1996; and accomplish the 1997. Renton, Washington 98055–4056. applicable follow-on actions specified in S.R. Miller, paragraph (b)(1) or (b)(2) of this AD. The service information referenced in Acting Manager, Transport Airplane this AD may be obtained from Boeing (1) If no crack is detected, prior to further Directorate, Aircraft Certification Service. flight, install new doublers and stress pads Commercial Airplane Group, P.O. Box on frame 179 in accordance with the alert [FR Doc. 97–12044 Filed 5–9–97; 8:45 am] 3707, Seattle, Washington 98124–2207. service bulletin. Immediately after BILLING CODE 4910±13±U This information may be examined at installation, perform the actions specified in the FAA, Transport Airplane paragraph (c) of this AD. Accomplishment of Directorate, 1601 Lind Avenue, SW., DEPARTMENT OF TRANSPORTATION these actions constitutes terminating action Renton, Washington; or at the Office of for the repetitive inspection requirements of the Federal Register, 800 North Capitol paragraph (a)(1) of this AD. Federal Aviation Administration (2) If any crack is detected, prior to further Street, NW., suite 700, Washington, DC. flight, repair it in accordance with a method 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: approved by the Manager, Standardization Larry Reising, Aerospace Engineer, [Docket No. 97±NM±90±AD; Amendment Branch, ANM–113. Prior to further flight 39±10023; AD 97±10±11] Propulsion Branch, ANM–140S, FAA, following accomplishment of the repair, Seattle Aircraft Certification Office, install new doublers and stress pads on frame RIN 2120±AA64 1601 Lind Avenue, SW., Renton, 179 in accordance with the alert service Washington; telephone (425) 227–2683; bulletin; and then perform the actions Airworthiness Directives; Boeing fax (425) 227–1181. specified in paragraph (c) of this AD. Model 777 Series Airplanes Accomplishment of these actions constitutes SUPPLEMENTARY INFORMATION: The FAA terminating action for the repetitive AGENCY: Federal Aviation has received a report indicating that a inspection requirements of paragraph (a)(1) Administration, DOT. solenoid and an override mechanism of of this AD. ACTION: Final rule; request for the engine fire shutoff switch (EFSS) (c) Prior to further flight following comments. were not operational. Investigation accomplishment of the actions as specified in revealed that an overheating condition paragraph (a)(1), (a)(2), (b)(1), or (b)(2) of this SUMMARY: This amendment adopts a in the solenoid damaged the solenoid AD, perform a test to verify proper adjustment of the restraint cable, in new airworthiness directive (AD) that is and the override mechanism of the accordance with Jetstream Alert Service applicable to all Boeing Model 777 EFSS. Further investigation revealed Bulletin J41–A53–024, dated April 26, 1996. series airplanes. This action requires that the overheating condition of the If the restraint cable has been improperly repetitive testing of the engine fire solenoid may be caused when power is adjusted, prior to further flight, correct the shutoff switch (EFSS) to determine that applied to the EFSS solenoid for long 25838 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations periods of time, such as when the are required to be accomplished in States, on the relationship between the airplane is on the ground with the accordance with the alert service national government and the States, or power on and the engine fuel control bulletin described previously. on the distribution of power and switch is in the ‘‘Cutoff’’ position. responsibilities among the various Interim Action Damage to the EFSS solenoid and to the levels of government. Therefore, in override mechanism due to overheating This is considered to be interim accordance with Executive Order 12612, of the solenoid could result in failure of action until final action is identified, at it is determined that this final rule does the EFSS. Such failure, if not corrected, which time the FAA may consider not have sufficient federalism could result in the inability of the further rulemaking. implications to warrant the preparation flightcrew to discharge the fire Determination of Rule’s Effective Date of a Federalism Assessment. extinguishing agent in the event of an The FAA has determined that this engine fire. Since a situation exists that requires regulation is an emergency regulation the immediate adoption of this that must be issued immediately to Explanation of Relevant Service regulation, it is found that notice and Information correct an unsafe condition in aircraft, opportunity for prior public comment and that it is not a ‘‘significant The FAA has reviewed and approved hereon are impracticable, and that good regulatory action’’ under Executive Boeing Alert Service Bulletin 777– cause exists for making this amendment Order 12866. It has been determined 26A0012, dated May 1, 1997, which effective in less than 30 days. further that this action involves an describes procedures for repetitive Comments Invited emergency regulation under DOT testing of the EFSS of both the left- and Regulatory Policies and Procedures (44 right-hand engines to determine if the Although this action is in the form of FR 11034, February 26, 1979). If it is override mechanism and the switch a final rule that involves requirements determined that this emergency handle are operational, and replacement affecting flight safety and, thus, was not regulation otherwise would be of the EFSS, if necessary. For any preceded by notice and an opportunity significant under DOT Regulatory airplanes on which a collar on circuit for public comment, comments are Policies and Procedures, a final breaker C26612 of panel P310 of the invited on this rule. Interested persons regulatory evaluation will be prepared standby power management panel has are invited to comment on this rule by and placed in the Rules Docket. A copy not been installed, the alert service submitting such written data, views, or of it, if filed, may be obtained from the bulletin also describes procedures to arguments as they may desire. Rules Docket at the location provided Communications shall identify the perform that installation, and to install under the caption ADDRESSES. placards near the EFSS of both engines Rules Docket number and be submitted and near the auxiliary power unit (APU) in triplicate to the address specified List of Subjects in 14 CFR Part 39 EFSS to advise the flightcrew that the under the caption ADDRESSES. All Air transportation, Aircraft, Aviation override mechanism must be pushed in communications received on or before safety, Incorporation by reference, order to pull the fire switch. Installation the closing date for comments will be Safety. of the collar on circuit breaker C26612 considered, and this rule may be of panel P310, which is the circuit amended in light of the comments Adoption of the Amendment breaker that supplies power to the EFSS received. Factual information that Accordingly, pursuant to the solenoids, will prevent damage to the supports the commenter’s ideas and authority delegated to me by the EFSS due to overheating of the solenoid. suggestions is extremely helpful in Administrator, the Federal Aviation Explanation of the Requirements of the evaluating the effectiveness of the AD Administration amends part 39 of the Rule action and determining whether Federal Aviation Regulations (14 CFR additional rulemaking action would be part 39) as follows: Since an unsafe condition has been needed. identified that is likely to exist or Comments are specifically invited on PART 39ÐAIRWORTHINESS develop on other Boeing Model 777 the overall regulatory, economic, DIRECTIVES series airplanes of the same type design, environmental, and energy aspects of 1. The authority citation for part 39 this AD is being issued to prevent the rule that might suggest a need to continues to read as follows: damage to the EFSS solenoid and to the modify the rule. All comments override mechanism and consequent submitted will be available, both before Authority: 49 U.S.C. 106(g), 40113, 44701. failure of the EFSS due to overheating and after the closing date for comments, § 39.13 [Amended] of the solenoid; such failure could result in the Rules Docket for examination by 2. Section 39.13 is amended by in the inability of the flightcrew to interested persons. A report that adding the following new airworthiness discharge the fire extinguishing agent in summarizes each FAA-public contact directive: the event of an engine fire. This AD concerned with the substance of this AD requires repetitive testing of the EFSS of will be filed in the Rules Docket. 97–10–11 Boeing: Amendment 39–10023. both the left- and right-hand engines to Commenters wishing the FAA to Docket 97–NM–90–AD. determine if the override mechanism acknowledge receipt of their comments Applicability: All Model 777 series and the switch handle are operational, submitted in response to this rule must airplanes, certificated in any category. and replacement of the EFSS, if submit a self-addressed, stamped Note 1: This AD applies to each airplane necessary. For certain airplanes, this AD postcard on which the following identified in the preceding applicability requires installation of a collar on statement is made: ‘‘Comments to provision, regardless of whether it has been circuit breaker C26612 of panel P310 of Docket Number 97–NM–90–AD.’’ The modified, altered, or repaired in the area the standby power management panel, subject to the requirements of this AD. For postcard will be date stamped and airplanes that have been otherwise modified, and installation of placards near the returned to the commenter. altered, or repaired so that the performance EFSS of both engines and near the APU Regulatory Impact of the requirements of this AD is affected, the EPSS to advise the flightcrew that the owner/operator must request approval for an override mechanism must be pushed in The regulations adopted herein will alternative method of compliance in order to pull the fire switch. The actions not have substantial direct effects on the accordance with paragraph (c) of this AD. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25839

The request should include an assessment of (e) The actions shall be done in accordance The incorporation by reference of the effect of the modification, alteration, or with Boeing Alert Service Bulletin 777– certain publications listed in the repair on the unsafe condition addressed by 26A0012, dated May 1, 1997. This regulations is approved by the Director this AD; and, if the unsafe condition has not incorporation by reference was approved by of the Federal Register as of June 16, been eliminated, the request should include the Director of the Federal Register in specific proposed actions to address it. accordance with 5 U.S.C. 552(a) and 1 CFR 1997. Compliance: Required as indicated, unless part 51. Copies may be obtained from Boeing ADDRESSES: The service information accomplished previously. Commercial Airplane Group, P.O. Box 3707, referenced in this AD may be obtained To prevent damage to the engine fire Seattle, Washington 98124–2207. Copies may from McDonnell Douglas Corporation, be inspected at the FAA, Transport Airplane shutoff switch (EFSS) solenoid and to the 3855 Lakewood Boulevard, Long Beach, override mechanism, and consequent failure Directorate, 1601 Lind Avenue, SW., Renton, of the EFSS, which could result in the Washington; or at the Office of the Federal California 90846, Attention: Technical inability of the flightcrew to discharge the Register, 800 North Capitol Street, NW., suite Publications Business Administration, fire extinguishing agent in the event of an 700, Washington, DC. Department C1–L51 (2–60). This engine fire, accomplish the following: (f) This amendment becomes effective on information may be examined at the (a) For all airplanes: Within 14 days after May 27, 1997. Federal Aviation Administration (FAA), the effective date of this AD, perform a test Issued in Renton, Washington, on May 5, Transport Airplane Directorate, Rules of the EFSS of both the left-and right-hand 1997. Docket, 1601 Lind Avenue, SW., engines to determine if the override S.R. Miller, Renton, Washington; or at the FAA, mechanism and the switch handle are operational, in accordance with Boeing Alert Acting Manager, Transport Airplane Transport Airplane Directorate, Los Service Bulletin 777–26A0012, dated May 1, Directorate, Aircraft Certification Service. Angeles Aircraft Certification Office, 1997. [FR Doc. 97–12249 Filed 5–9–97; 8:45 am] 3960 Paramount Boulevard, Lakewood, (1) If the override mechanism and the BILLING CODE 4910±13±U California; or at the Office of the Federal switch handle of the EFSS are operational, Register, 800 North Capitol Street, NW., prior to further flight, accomplish the suite 700, Washington, DC. requirements of paragraph (a)(1)(i) or (a)(1)(ii) DEPARTMENT OF TRANSPORTATION of this AD, as applicable, in accordance with FOR FURTHER INFORMATION CONTACT: the alert service bulletin. Federal Aviation Administration Brett Portwood, Aerospace Engineer, (i) For Group 1 airplanes identified in the Systems and Equipment Branch, ANM– alert service bulletin: Install a collar on 14 CFR Part 39 130L, FAA, Transport Airplane circuit breaker C26612 of panel P310 of the Directorate, Los Angeles Aircraft standby power management panel. Following [Docket No. 96±NM±283±AD; Amendment Certification Office, 3960 Paramount accomplishment of this installation, prior to 39±10024; AD 97±10±12] further flight, install placards near the EFSS Boulevard, Lakewood, California 90712; of both engines and near the auxiliary power RIN 2120±AA64 telephone (562) 627–5350; fax (562) unit (APU) EFSS to advise the flightcrew that 627–5210. the override mechanism must be pushed in Airworthiness Directives; McDonnell SUPPLEMENTARY INFORMATION: order to pull the fire switch. Douglas Model MD±11 Series A (ii) For Group 2 airplanes identified in the Airplanes proposal to amend part 39 of the Federal alert service bulletin: Ensure that a collar is Aviation Regulations (14 CFR part 39) to installed on circuit breaker C26612 of panel AGENCY: Federal Aviation include an airworthiness directive (AD) P310 of the standby power management Administration, DOT. that is applicable to certain McDonnell panel. If a collar is not installed, prior to ACTION: Final rule. Douglas Model MD–11 series airplanes further flight, install a collar on circuit was published in the Federal Register breaker C26612 of panel P310 of the standby SUMMARY: This amendment adopts a on February 18, 1997 (62 FR 7182). That power management panel. new airworthiness directive (AD), action proposed to require a one-time (2) If the override mechanism or the switch applicable to certain McDonnell handle of the EFSS is not operational, prior inspection to detect riding, chafing, or Douglas Model MD–11 series airplanes, damage of the wire bundles adjacent to to further flight, replace the EFSS with a new that requires a one-time inspection to or serviceable EFSS, in accordance with the the disconnect panel bracket of the alert service bulletin. detect riding, chafing, or damage of the observer’s station. That action also (b) For all airplanes: Repeat the wire bundles adjacent to the disconnect proposed to require repair or requirements of paragraph (a) of this AD panel bracket of the observer’s station. replacement of damaged wires with new thereafter at intervals not to exceed 500 flight This amendment also requires repair or or serviceable wires; installation of anti- hours. replacement of damaged wires with new chafing sleeving on the wire bundles, if (c) An alternative method of compliance or or serviceable wires; installation of anti- adjustment of the compliance time that necessary; and installation of grommet chafing sleeving on the wire bundles, if along the entire upper aft edge of the provides an acceptable level of safety may be necessary; and installation of grommet used if approved by the Manager, Seattle disconnect panel bracket. Aircraft Certification Office (ACO), FAA, along the entire upper aft edge of the disconnect panel bracket. This Interested persons have been afforded Transport Airplane Directorate. Operators an opportunity to participate in the shall submit their requests through an amendment is prompted by a report appropriate FAA Principal Maintenance indicating that the circuit breakers making of this amendment. Due Inspector, who may add comments and then tripped on a Model MD–11 series consideration has been given to the two send it to the Manager, Seattle ACO. airplane due to inflight arcing behind comments received. Note 2: Information concerning the the avionics circuit breaker panel as a Both commenters support the existence of approved alternative methods of result of chafing of the wire bundles proposal. compliance with this AD, if any, may be adjacent to the disconnect panel bracket Conclusion obtained from the Seattle ACO. assembly. The actions specified by this (d) Special flight permits may be issued in AD are intended to detect and correct After careful review of the available accordance with sections 21.197 and 21.199 such chafing, which could result in a of the Federal Aviation Regulations (14 CFR data, including the comments noted 21.197 and 21.199) to operate the airplane to fire in the wire bundles and smoke in above, the FAA has determined that air a location where the requirements of this AD the cockpit. safety and the public interest require the can be accomplished. DATES: Effective June 16, 1997. adoption of the rule as proposed. 25840 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

Cost Impact PART 39ÐAIRWORTHINESS provides an acceptable level of safety may be DIRECTIVES used if approved by the Manager, Los There are approximately 86 Angeles Aircraft Certification Office (ACO), McDonnell Douglas Model MD–11 1. The authority citation for part 39 FAA, Transport Airplane Directorate. series airplanes of the affected design in continues to read as follows: Operators shall submit their requests through an appropriate FAA Principal Maintenance the worldwide fleet. The FAA estimates Authority: 49 U.S.C. 106(g), 40113, 44701. Inspector, who may add comments and then that 45 airplanes of U.S. registry will be send it to the Manager, Los Angeles ACO. affected by this AD, that it will take § 39.13 [Amended] Note 2: Information concerning the approximately 3 work hours per 2. Section 39.13 is amended by adding the following new airworthiness existence of approved alternative methods of airplane to accomplish the required compliance with this AD, if any, may be actions, and that the average labor rate directive: obtained from the Los Angeles ACO. is $60 per work hour. Based on these 97–10–12 McDonnell Douglas: Amendment (c) Special flight permits may be issued in figures, the cost impact of the AD on 39–10024. Docket 96–NM–283–AD. accordance with sections 21.197 and 21.199 U.S. operators is estimated to be $8,100, Applicability: Model MD–11 series of the Federal Aviation Regulations (14 CFR or $180 per airplane. airplanes, as listed in McDonnell Douglas 21.197 and 21.199) to operate the airplane to Service Bulletin MD11–24–111, dated a location where the requirements of this AD The cost impact figure discussed December 3, 1996; certificated in any can be accomplished. above is based on assumptions that no category. (d) The actions shall be done in accordance operator has yet accomplished any of Note 1: This AD applies to each airplane with McDonnell Douglas Service Bulletin the requirements of this AD action, and identified in the preceding applicability MD11–24–111, dated December 3, 1996. This that no operator would accomplish provision, regardless of whether it has been incorporation by reference was approved by those actions in the future if this AD modified, altered, or repaired in the area the Director of the Federal Register in were not adopted. subject to the requirements of this AD. For accordance with 5 U.S.C. 552(a) and 1 CFR airplanes that have been modified, altered, or part 51. Copies may be obtained from Regulatory Impact repaired so that the performance of the McDonnell Douglas Corporation, 3855 requirements of this AD is affected, the Lakewood Boulevard, Long Beach, California The regulations adopted herein will owner/operator must request approval for an 90846, Attention: Technical Publications not have substantial direct effects on the alternative method of compliance in Business Administration, Department C1-L51 accordance with paragraph (b) of this AD. (2–60). Copies may be inspected at the FAA, States, on the relationship between the The request should include an assessment of national government and the States, or Transport Airplane Directorate, 1601 Lind the effect of the modification, alteration, or Avenue, SW., Renton, Washington; or at the on the distribution of power and repair on the unsafe condition addressed by FAA, Transport Airplane Directorate, Los responsibilities among the various this AD; and, if the unsafe condition has not Angeles Aircraft Certification Office, 3960 levels of government. Therefore, in been eliminated, the request should include Paramount Boulevard, Lakewood, California; accordance with Executive Order 12612, specific proposed actions to address it. or at the Office of the Federal Register, 800 it is determined that this final rule does Compliance: Required as indicated, unless North Capitol Street, NW., suite 700, not have sufficient federalism accomplished previously. Washington, DC. To detect and correct chafing of the wire implications to warrant the preparation (e) This amendment becomes effective on bundles adjacent to the disconnect panel June 16, 1997. of a Federalism Assessment. bracket assembly and consequent inflight Issued in Renton, Washington, on May 5, For the reasons discussed above, I arcing behind the avionics circuit breaker, 1997. certify that this action (1) is not a which could result in a fire in the wire bundles and smoke in the cockpit, S.R. Miller, ‘‘significant regulatory action’’ under accomplish the following: Acting Manager, Transport Airplane Executive Order 12866; (2) is not a (a) Within 6 months after the effective date Directorate, Aircraft Certification Service. ‘‘significant rule’’ under DOT of this AD: Perform a one-time inspection to [FR Doc. 97–12250 Filed 5–9–97; 8:45 am] detect riding, chafing, or damage of the wire Regulatory Policies and Procedures (44 BILLING CODE 4910±13±U FR 11034, February 26, 1979); and (3) bundles adjacent to the disconnect panel will not have a significant economic bracket of the observer’s station, in impact, positive or negative, on a accordance with McDonnell Douglas Service Bulletin MD11–24–111, dated December 3, DEPARTMENT OF TRANSPORTATION substantial number of small entities 1996. under the criteria of the Regulatory (1) Condition 1. If any riding or chafing is Office of the Secretary Flexibility Act. A final evaluation has found, and if any damage is found: Prior to been prepared for this action and it is further flight, repair or replace any damaged 14 CFR Parts 310 and 374 contained in the Rules Docket. A copy wires with new or serviceable wires; install of it may be obtained from the Rules anti-chafing sleeving on the wire bundles; RIN 2105±AC64 Docket at the location provided under and install a grommet along the entire upper aft edge of the disconnect panel bracket; in the caption ADDRESSES. Inspection and Copying of Department accordance with the service bulletin. of Transportation Opinions, Orders, List of Subjects in 14 CFR Part 39 (2) Condition 2. If any riding or chafing is and Records and Implementation of found, but no damage is found: Prior to further flight, install anti-chafing sleeving on the Consumer Credit Protection Act Air transportation, Aircraft, Aviation With Respect to Air Carriers and safety, Incorporation by reference, the wire bundles, and install a grommet along the entire upper aft edge of the Foreign Air Carriers Safety. disconnect panel bracket, in accordance with AGENCY: Office of the Secretary, DOT. Adoption of the Amendment the service bulletin. (3) Condition 3. If no riding, chafing, or ACTION: Final rule. Accordingly, pursuant to the damage is found: Prior to further flight, install a protective grommet along the entire authority delegated to me by the SUMMARY: This final rule removes upper aft edge of the disconnect panel Administrator, the Federal Aviation bracket in accordance with the service regulations on the inspection and Administration amends part 39 of the bulletin. copying of DOT opinions, orders, and Federal Aviation Regulations (14 CFR (b) An alternative method of compliance or records in 14 CFR Part 310 and amends part 39) as follows: adjustment of the compliance time that regulations on the implementation of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25841 the Consumer Credit Protection Act Department and the correct statutory List of Subjects with respect to air carriers and foreign provisions being implemented by the 14 CFR Part 310 air carriers in 14 CFR Part 374. The rule. The changes are editorial and not Department is revoking 14 CFR Part 310 substantive. Administrative practice and because the provisions of the regulation procedure, Freedom of information, are outdated and already encompassed III. Waiver of Proposed Rulemaking Records. in 49 CFR Part 7 which adequately In developing this final rule, we are 14 CFR Part 374 provides for the inspection and copying dispensing with the usual notice of Administrative practice and of all relevant DOT opinions, orders, proposed rulemaking and public and records. With regard to 14 CFR Part procedure, Air carriers, Consumer comment procedures set forth in the 374, the Department is revising the protection, Enforcement. Administrative Procedure Act (APA) (5 regulation to update both the agency Accordingly, the Department of U.S.C. 553). The APA provides an references and statutory citations. These Transportation removes 14 CFR Part 310 actions are taken in response to the exception to the notice and comment and amends 14 CFR Part 374 as set forth President’s Regulatory Reinvention procedures when an agency finds there below: is good cause for dispensing with such Initiative. CHAPTER IIÐOFFICE OF THE SECRETARY, procedures on the basis that they are DATES: This rule is effective on June 11, DEPARTMENT OF TRANSPORTATION 1997. impracticable, unnecessary or contrary (AVIATION PROCEEDINGS) to the public interest. We have FOR FURTHER INFORMATION CONTACT: PART 310ÐINSPECTION AND Dayton Lehman, Office of Aviation determined that under 5 U.S.C. 553 COPYING OF DOT OPINIONS, Enforcement and Proceedings (C–70), good cause exists for dispensing with ORDERS, AND RECORDS [REMOVED] Department of Transportation, 400 the notice of proposed rulemaking and Seventh Street, SW., Washington, DC public comment procedures for this rule 1. Under the Authority of 49 U.S.C. 20590, (202) 366–9342. because the changes are purely editorial 40113, Part 310 is removed. and administrative in nature. SUPPLEMENTARY INFORMATION: PART 374ÐIMPLEMENTATION OF THE IV. Regulatory Statements I. Inspection and Copying of DOT CONSUMER CREDIT PROTECTION Opinions, Orders, and Records Executive Order 12866 ACT WITH RESPECT TO AIR In an effort to eliminate duplication of CARRIERS AND FOREIGN AIR This final rule is considered CARRIERS [AMENDED] its regulations in the Code of Federal nonsignificant under DOT’s Policies and Regulations (CFR) and to eliminate Procedures. The rule would have no B. Part 374 is amended as set forth outdated information, the Department is economic impact and no further below: removing 14 CFR Part 310. Part 310 regulatory evaluation was prepared. The 1. The authority citation for Part 374 provides for the inspection and copying rule merely eliminates the duplicative is revised to read as follows: of certain DOT opinions, orders, and and outdated provisions of 14 CFR Part Authority: 15 U.S.C. 1601–1693r; 49 U.S.C. records. An outdated list of certain Subtitle VII; and 12 CFR parts 202 and 226. materials once made available by the 310 and amends the provisions of 14 Civil Aeronautics Board is contained in CFR Part 374 to reflect current agency 2. Section 374.1 is revised to read as the rule. However, materials are already responsibilities and statutory authority. follows: The elimination of 14 CFR Part 310 will made available to the general public § 374.1 Purpose. have no affect on the general public under the DOT Public Availability of The purpose of this part is to state the Information provisions (49 CFR Part 7), since there are other readily available methods of obtaining DOT records, and Department of Transportation’s the Freedom of Information Act (5 responsibility to enforce air carrier and a regulation governing those methods. U.S.C. 552), and through the DOT foreign air carrier compliance with Likewise, this rule’s revision to 14 CFR Docket Section. Continuing to have two Subchapters I, III, IV, V and VI of the Part 374 will have no substantive regulations that perform the same Consumer Credit Protection Act and impact on its provisions. It was not function is not necessary and 14 CFR Regulations B and Z of the Board of Part 310 is therefore being removed. reviewed by the Office of Management Governors of the Federal Reserve and Budget (OMB) under Executive II. Implementation of the Consumer System. Order 12866. Credit Protection Act With Respect to 3. Section 374.3 revised to read as Air Carriers and Foreign Air Carriers Regulatory Flexibility Act follows: The Department is amending 14 CFR § 374.3 Compliance with the Consumer This rulemaking will have no impact Part 374 to update both the language of Credit Protection Act and regulations. on small entities for the reasons stated the regulation and the references to the above. Under the provisions of the (a) Each air carrier and foreign air statutory provisions that it implements. carrier shall comply with the Regulatory Flexibility Act (5 U.S.C. Since the regulation was first adopted, requirements of the Consumer Credit 601–612), I certify that this rule will not the Department of Transportation has Protection Act, 15 U.S.C. 1601–1693r. have a significant economic impact on replaced the Civil Aeronautics Board Any violation of the following a substantial number of small entities, (CAB) as the agency with enforcement requirements of that Act will be a and that a regulatory flexibility analysis responsibility under the regulation. violation of 49 U.S.C. Subtitle VII, Thus, the regulation is being amended is not required for this rulemaking. enforceable by the Department of to reflect this change. In addition, some Paperwork Reduction Act Transportation: of the statutory citations in the (1) The Truth in Lending Act, as regulation are outdated and are being This final rule imposes no new supplemented by the Fair Credit Billing revised in this final rule. Overall, the reporting or record-keeping Act, 15 U.S.C. 1601–1667, requiring amended regulation will accurately requirements necessitating clearance by disclosure of credit terms to the reflect both the current role of the OMB. consumer and prohibiting inaccurate or 25842 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations unfair credit billing and credit card DATES: Pipeline implementation of the contractor, La Dorn Systems practices. Internet requirements runs from April 1, Corporation. La Dorn Systems (2) The Fair Credit Reporting Act, 15 1997 to June 1, 1997, according to a Corporation is also located in the Public U.S.C. 1681–1681 setting forth staggered schedule established in Order Reference Room at 888 First Street, NE, requirements to be met by consumer No. 587. Washington, DC 20426. credit reporting agencies and persons ADDRESSES: Federal Energy Regulatory ORDER DENYING REHEARING AND who use consumer credit reports. Commission, 888 First Street, NE, REQUEST FOR WAIVER (b) Each air carrier and foreign air Washington DC, 20426. carrier shall comply with the Before Commissioners: Elizabeth Anne requirements of Regulation B, 12 CFR FOR FURTHER INFORMATION CONTACT: Moler, Chair; Vicky A. Bailey, James J. Hoecker, William L. Massey, and Donald F. part 202, and Regulation Z, 12 CFR part Michael Goldenberg, Office of the Santa, Jr. 226, of the Board of Governors of the General Counsel, Federal Energy Federal Reserve Board. Any violation of Regulatory Commission, 888 First On March 3, 1997, Natural Gas the requirements of those regulations Street, NE, Washington, DC 20426, Clearinghouse (NGC) and Ozark Gas will be a violation of 49 U.S.C. Subtitle (202) 208–2294. Transmission System (Ozark) filed VII, enforceable by the Department of Marvin Rosenberg, Office of Economic requests for rehearing of Order No. 587– 1 Transportation. Policy, Federal Energy Regulatory B, and, in the case of Ozark, an 4. Section 374.4 is revised to read as Commission, 888 First Street, NE, alternative request for a waiver. For the follows: Washington, DC 20426, (202) 208– reasons discussed below, the requests for rehearing and waiver are denied. § 374.4 Enforcement procedure. 1283. The statutes and regulations referred Kay Morice, Office of Pipeline Background Regulation, Federal Energy Regulatory to in § 374.3 may be enforced by an 2 Commission, 888 First Street, NE, In Order No. 587, the Commission enforcement procedure as set forth in incorporated by reference consensus part 302 of this chapter or by the Washington, DC 20426 (202) 208– 0507. standards developed by the Gas assessment of civil penalties under 49 Industry Standards Board (GISB) SUPPLEMENTARY INFORMATION: In U.S.C. 46301. covering certain industry business addition to publishing the full text of Issued in Washington, DC on March 24, practices—Nominations, Flowing Gas, this document in the Federal Register, 1997. Invoicing, and Capacity Release—as the Commission provides all interested Rodney E. Slater, well as datasets that detailed the data persons an opportunity to inspect or requirements needed to conduct Secretary of Transportation. copy the contents of this document business transactions in these areas. In [FR Doc. 97–9783 Filed 5–9–97; 8:45 am] during normal business hours in Room Order No. 587–B, the Commission BILLING CODE 4910±62±M 2A, 888 First Street, NE, Washington incorporated by reference GISB D.C. 20426. standards establishing the protocols and The Commission Issuance Posting procedures for exchanging these files DEPARTMENT OF ENERGY System (CIPS), an electronic bulletin over the Internet, with implementation board service, provides access to the to follow a staggered schedule beginning Federal Energy Regulatory texts of formal documents issued by the April 1, 1997. Commission Commission. CIPS is available at no At the same time that GISB passed the 18 CFR Part 284 charge to the user and may be accessed using a personal computer with a standards for transacting business [Docket Nos. RM96±1±005, RP97±276±000; modem by dialing 202–208–1397 if transactions over the Internet, it passed Order No. 587±E] dialing locally or 1–800–856–3920 if two standards, 4.3.5 and 4.3.6, requiring dialing long distance. To access CIPS, pipelines to provide additional Standards for Business Practices of set your communications software to information on an Internet World Wide Interstate Natural Gas Pipelines 3 19200, 14400, 12000, 9600, 7200, 4800, Web homepage (homepage). GISB recommended an August 1, 1997 Issued May 6, 1997. 2400, or 1200 bps, full duplex, no implementation date for the two World AGENCY: Federal Energy Regulatory parity, 8 data bits and 1 stop bit. The Wide Web standards. GISB also Commission, DOE. full text of this order will be available on CIPS in ASCII and WordPerfect 5.1 approved revisions and additions to its ACTION: Final rule; Order denying business practices standards, with a rehearing and request for waiver. format. CIPS user assistance is available at 202–208–2474. recommendation for tariff filings SUMMARY: The Federal Energy CIPS is also available on the Internet beginning May 1997 and Regulatory Commission is denying through the Fed World system. Telnet implementation in November 1997. requests for rehearing of Order No. 587– software is required. To access CIPS via B (62 FR 5521, Feb. 6, 1997). Order No. the Internet, point your browser to the 1 Standards For Business Practices Of Interstate Natural Gas Pipelines, Order No. 587–B, 62 FR 5521 587–B incorporated by reference URL address: http://www.fedworld.gov (Feb. 6, 1997), III FERC Stats. & Regs. Regulations standards promulgated by the Gas and select the ‘‘Go to the FedWorld Preambles ¶ 31,046 (Jan. 30, 1997). Industry Standards Board requiring Telnet Site’’ button. When your Telnet 2 Standards For Business Practices Of Interstate interstate pipelines to exchange data software connects you, log on to the Natural Gas Pipelines, Order No. 587, 61 FR 39053 necessary to conduct certain business FedWorld system, scroll down and (Jul. 26, 1996), III FERC Stats. & Regs. Regulations Preambles ¶ 31,038 (Jul. 17, 1996), reh’g denied, transactions across the Internet select FedWorld by typing: 1 and at the Order No. 587–A, 61 FR 55208 (Oct. 25, 1996), 77 according to protocols established in the command line and type: /go FERC. FERC ¶ 61,061 (Oct. 21, 1996). standards. The format for the data was FedWorld may also be accessed by 3 This information includes notices (critical adopted by the Commission in Order Telnet at the address fedworld.gov. notices, operation notices, system-wide notices); Order No. 566 affiliated marketer information No. 587. 61 FR 39053 (Jul. 26, 1996). Finally, the complete text on diskette (affiliate allocation log, discount postings); The order clarifies pipelines’ obligations in WordPerfect format may be operationally available and unsubscribed capacity; in implementing the standards. purchased from the Commission’s copy Index of Customers; and the pipeline’s tariff. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25843

The Commission did not adopt the incorporate Standard 4.3.5 when GISB available to any party, including a two World Wide Web standards (or the develops the required download VAN.9 supplemental business practices formats. In Order No. 587, the Commission standards) in Order No. 587–B, because removed section 284.8(b)(5) from its B. Requirements That Pipelines the proposed implementation schedule regulations. In its place, the Continue to Maintain EBBs for these standards was not as imminent Commission substituted the Capacity as for the standards to be implemented NGC and Ozark seek rehearing of the Release Standards promulgated by on April 1, 1997. The Commission Commission’s statements in Order No. GISB, which revised and updated the stated the World Wide Web and the 587–B that the Commission would not formats previously required by the supplemental business practices eliminate its requirement for pipelines section 284.8(b)(5) standards. The standards would be addressed in a later to provide certain information on EBBs, standards adopted in Order No. 587–B order. On March 4, 1997, the while the Internet standards are being also require pipelines to provide these Commission issued Order No. 587–C 4 implemented.5 NGC and Ozark contend files through Internet communications. addressing the World Wide Web that the Commission is requiring Thus, once pipelines implement the standards and the revised and new pipelines to provide three methods of GISB Internet standards, they will no business practices standards. communication: an EBB, a file longer be required to support other NGC maintains the Commission erred download capability through Electronic methods of transmitting these files, such by not adopting the World Wide Web Data Interchange (EDI) using Valued as to a VAN. standards in Order No. 587–B Added Networks (VANs) (citing 18 CFR 2. Continuation of the EBB Requirement (Standards 4.3.5 and 4.3.6). NGC and 284.8(b)(5)), and the new Internet NGC and Ozark also contend that the Ozark claim error in the Commission’s communications. They maintain that requirement that pipelines maintain Commission should not be continuing maintaining three systems is to require pipelines to maintain EBBs. their Electronic Bulletin Boards (EBBs) unnecessarily costly and wasteful. in addition to the Internet requirements They argue that maintenance of two of Order No. 587–B. In the event the If its request for rehearing is denied, systems—EBBs and Internet Commission does not grant its rehearing Ozark requests a waiver of the communications—is wasteful and request, Ozark requests a waiver of any requirement to maintain an EBB and the unnecessary and at odds with GISB’s requirements to maintain an EBB. requirement to support EDI-based goal of moving away from proprietary transmission of data through a VAN. It EBBs to standardized Internet Public Notice, Interventions, and states that all of its current EBB communications. Protests functions will be available on a Web- NGC’s and Ozark’s rehearing requests Public notice of Ozark’s request for based system.6 evidence confusion about the waiver was issued on March 13, 1997, 1. Downloads to VANs Commission’s EBB requirements that with notices and motions to intervene or require clarification. The rehearing protests due by March 20, 1997. No With the implementation of the GISB requests raise two issues that need to be motions to intervene or protests were standards for Internet communication, considered separately. The first is filed. the Commission regulations no longer whether a waiver is necessary for require pipelines to provide file pipelines to replace their current dial- Discussion downloads to a VAN. Thus, NGC and up EBBs with Internet communications. A. Adoption of World Wide Web Ozark already have received the relief The second is whether the Commission Standards they request. should remove its requirement for NGC’s request that the Commission In Order No. 563,7 the Commission pipelines to maintain EBBs and adopt the standards requiring pipelines added section 284.8(b)(5) to its substitute the standardized to provide information on World Wide regulations, which required pipelines to communication methods developed by Web homepages (Standards 4.3.5 and adhere to standards providing for GISB. A subsidiary issue is whether, 4.3.6) is moot. The Commission adopted downloads of information about and under what circumstances, Standard 4.3.6 in Order No. 587–C. The capacity release transactions, available pipelines are permitted to eliminate Commission did not adopt Standard capacity, and system-wide notices in their EBBs and replace them with 4.3.5 in Order No. 587–C, only because standardized EDI file formats.8 At that standardized communication methods. On the first question, pipelines can GISB had not completed the work time, the Commission standards now replace their dial-up EBBs with needed to implement the standard. required that the information be made Internet communications, without the Standard 4.3.5 provides that documents need for a waiver. The term EBB, as maintained on a pipeline’s homepage 5 62 FR, at 5524; III FERC Stats. & Regs. used in the Commission’s regulations, will be downloadable in a specified Regulations Preambles, at 30,169–70. 6 does not refer to any specific electronic structure, and GISB has not It states that it will still support the use of facsimile transmission for nominations and technological method of yet promulgated the electronic capacity release offers or bids. communication.10 An EBB refers to a structure. The Commission, however, 7 Standards For Electronic Bulletin Boards continuous computer connection stated, in Order No. 587–C, that the Required Under Part 284 of the Commission’s between a pipeline’s computer and a ability to download information is Regulations, Order No. 563, 59 FR 516 (Jan. 5, user’s computer in which the critical for customers who do not want 1994), III FERC Stats. & Regs. Preambles ¶ 30,988 (Dec. 23, 1993), order on reh’g, Order No. 563–A, information from the pipeline’s to read the information on-line or who 59 FR 23624 (May 6, 1994), III FERC Stats. & Regs. computer is displayed visually on the want the information in computer- Preambles ¶ 30,994 (May 2, 1994), reh’g denied, user’s computer and the user can enter readable form, and urged GISB to adopt Order No. 563-B, 68 FERC ¶ 61,002 (1994). the required electronic structure 8 In contrast to an EBB, where the user at a keyboard interacts with the pipeline’s computer, a 9 A VAN is a communications or information quickly. The Commission intends to file download provides for the transfer in system providing an aggregation, routing, and computerized format of a file from the pipeline’s delivery service. In effect, a VAN provides a user 4 Order No. 587–C, 62 FR 10684 (Mar. 10, 1997), computer to the user’s computer. The user can use with an electronic mailbox for receiving III FERC Stats. & Regs. Regulations Preambles its own internal computer programs to manipulate information. ¶ 31,050 (Mar. 4, 1997). the data. 10 See Section 284.10(a). 25844 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations data to the pipeline’s computer.11 When standardized much of these data, a few In its waiver request, Ozark did not the EBB requirement was first imposed still remain. For instance, the GISB make clear whether it is intending to in Order No. 636, the technology was to standards do not provide standards for substitute GISB’s Internet server model use direct telephone modem submitting offers to release capacity and for its EBB to conduct the relevant connections to dial-up a pipeline EBB. bids via the Internet, nor do they business transactions or whether every The dial-up system was non- provide standards for downloading the one of the business transactions and standardized, with each pipeline Index of Customers in the specified communication now provided using its requiring the use of different software format. Nor have standards been EBB will be provided using the Internet packages and log-on procedures to developed to cover the myriad other communications. As discussed above, access the pipelines’ computers. As information and business transactions the Commission’s regulations do not technology has changed, however, (not covered by the Commission require such transactions to be provided pipelines can now provide the same regulations) that many pipelines on an EBB, so no waiver of the interactive service using more current provide using EBBs.14 As GISB has regulations is needed. However, if Ozark and standardized technological methods recognized, until the standardization previously provided such services on an that are consistent with the GISB effort is complete, pipelines should not EBB, it cannot dispense with those standards, such as an Internet or Web- be forced to discontinue their services through a filing to comply with based system. Using an Internet-based proprietary EBB systems.15 Order No. 587, but will need to make a system removes many of the Maintenance of existing systems section 4 filing. idiosyncracies in log-on procedures that during the transition to standardized The Commission orders: plagued the dial-up systems, since each communications should not result in (A) The requests for rehearing are user can access each pipeline’s World significant added costs or burden. denied. Wide Web site using the same Internet Pipelines, however, should not expend (B) Ozark’s request for waiver is connection and Web browser. Thus, significant resources to expand or denied. pipelines are not prohibited by enhance the functionality of proprietary By the Commission. Commission regulations from using a systems. These resources and efforts Web-based EBB in place of a dial-up would be better spent on completing the Lois D. Cashell, EBB. process of developing standardized Secretary. However, even moving pipeline EBBs systems as quickly as possible. [FR Doc. 97–12398 Filed 5–9–97; 8:45 am] to the Internet may not necessarily Given the importance of developing BILLING CODE 6717±01±P create the open and standardized standardized communications, the communication system that is required. Commission expects GISB and the For instance, standards may need to industry to move forward rapidly to DEPARTMENT OF HEALTH AND delineate the minimum Web browser complete the standardization process so HUMAN SERVICES and encryption levels that are needed to that the Commission can substitute access pipeline Web sites, the basic standardized communication modalities Health Care Financing Administration organization of the Web site, and the for the requirement for pipelines to format in which data will be presented. maintain EBBs. The Commission 42 CFR Parts 405, 417, 473 requests a report by GISB, and by others Moreover, as happened with the [BPD±453±FC] standardization of business transactions, who may wish to comment, by communication efficiency may require September 1, 1997 on the extent of their RIN 0938±AG18 that standards be developed to specify progress and the contemplated specific file formats for the exchange of completion date. Medicare Program; Medicare Appeals business information. In the meantime, as discussed above, of Individual Claims GISB too has recognized that there is the Commission regulations do not AGENCY: further need to standardize all EBB require pipelines to use EBBs to conduct Health Care Financing functions and information within a the business transactions standardized Administration (HCFA), HHS. reasonable amount of time.12 But, at the in Order No. 587. Thus, pipelines can ACTION: Final rule with comment period. present time, the standardization effort file tariff revisions under section 4 of SUMMARY: Under section 1869 of the is not complete. Standards still have not the Natural Gas Act when they are ready Social Security Act, Medicare been developed to cover all the to discontinue using EBBs to provide beneficiaries and, under certain information the Commission requires to these services and, instead, rely upon circumstances, providers or suppliers of be posted on EBBs.13 Although GISB has the standardized methodologies. health care services may appeal adverse 11 See Standards For Electronic Bulletin Boards FERC Stats. & Regs. ¶ 30,939, at 30,415 (1992)); determinations regarding claims for Required Under Part 284 Of The Commission’s information about pipeline affiliate transactions benefits under Medicare Part A or Part Regulations, Order No. 563, 59 FR 516 (Jan. 5, 1994) (sections 161.3(h) and 250.16(c)); and an index of B. This rule expands our regulations to FERC Stats. & Regs. Regulation Preambles [Jan. customers (section 284.106). Section 284.10 of the recognize the right of Part B appellants 1991–June 1996], ¶ 30,988, at 31,001 n.10 (Dec. 23, Commission’s regulations establishes certain 1993). features that pipeline EBBs, whether required by to a hearing before an administrative 12 Electronic Delivery Mechanism Standard 4.3.6. the regulations or the pipeline’s tariff, must law judge (ALJ) for claims if at least 13 Commission regulations require the use of EBBs support. $500 remains in dispute and the right to only for limited purposes: to provide equal and 14 This process was begun in Order Nos. 587, judicial review of an adverse ALJ timely access to information relevant to the 587–B, and 587–C, in which the Commission decision if at least $1,000 remains in availability of transportation service, including the approved GISB standards requiring pipelines to provision of a capacity release system involving a transact some of these business transactions controversy. Also, this rule codifies in posting and bidding mechanism to facilitate (nominations, flowing gas, invoicing, and capacity regulations: Limitations on the review capacity reallocations (Sections 284.8(b)(3) and release) using standardized file formats that would by ALJs and the courts of certain 284.9(b)(3); Pipeline Service Obligations and be exchanged according to the Internet protocols national coverage determinations, and Revisions to Regulations Governing Self- established by GISB. However, these standards do Implementing Transportation; and Regulation of not cover all of the information and transactions the statutory authority for an expedited Natural Gas Pipelines After Partial Wellhead currently performed on pipeline EBBs. appeals process under Part A and Part Decontrol, [Regs. Preambles Jan. 1991–June 1996] 15 Electronic Delivery Mechanism Standard 4.3.6. B. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25845

DATES: Effective Date: This final rule is many other public and academic A claims that have reached the ALJ effective June 11, 1997. libraries throughout the country that hearing level have been conducted by Comment Date: Comments will be receive the Federal Register. ALJs employed by the SSA’s Office of considered if we receive them at the This Federal Register document is Hearings and Appeals (OHA). Our appropriate address, as provided below, also available from the Federal Register regulations generally address appeals of no later than 5 p.m. on July 11, 1997. online database through GPO Access, a claims arising under Part A at 42 CFR ADDRESSES: Mail written comments (an service of the U.S. Government Printing part 405, subpart G and appeals of original and 3 copies) to the following Office. Free public access is available on claims under Part B at 42 CFR part 405, address: Health Care Financing a Wide Area Information Server (WAIS) subpart H. Administration, Department of Health through the Internet and via Peer review organizations (PROs) also and Human Services, Attention: BPD– asynchronous dial-in. Internet users can make certain types of Part A and Part B 453–FC, P.O. Box 26676, Baltimore, MD access the database by using the World determinations. Section 1155 of the Act 21207–0476. Wide Web; the Superintendent of establishes beneficiary rights to ALJ If you prefer, you may deliver your Documents home page address is http:/ hearings and judicial review of certain l written comments (an original and 3 /www.access.gpo.gov/su docs/, by Medicare issues (mostly inpatient copies) to one of the following using local WAIS client software, or by hospital service denials) adjudicated addresses: telnet to swais.access.gpo.gov, then initially by PROs. In order for a PRO Room 309–G, Hubert H. Humphrey login as guest (no password required). appellant to qualify for an ALJ hearing Dial-in users should use and judicial review, the amount in Building, 200 Independence Avenue, communications software and modem controversy must be at least $200 and SW., Washington, DC 20201, or Room C5–09–26, 7500 Security to call (202) 512–1661; type swais, then $2,000, respectively. (However, appeals Boulevard, Baltimore, MD 21244– login as guest (no password required). on PRO determinations involving 1850. For general information about GPO limitation of liability follow the appeals Access, contact the GPO Access User provisions in subparts G and H of part Comments may also be submitted Support Team by sending Internet e- 405, requiring an amount in controversy electronically to the following e-mail mail to [email protected] gpo.gov; by at the ALJ level of $100 for Part A address: [email protected]. E-mail faxing to (202) 512–1262; or by calling claims and $500 for Part B claims, and comments must include the full name (202) 512–1530 between 7 a.m. and 5 an amount in controversy of $1,000 for and address of the sender and must be p.m. Eastern time, Monday through judicial review.) Our regulations submitted to the referenced address in Friday, except for Federal holidays. address this subject at 42 CFR part 473, order to be considered. All comments FOR FURTHER INFORMATION CONTACT: subpart B. must be incorporated in the e-mail Morton Marcus, (410) 786–4477. For enrollees of health maintenance message because we may not be able to organizations (HMOs), competitive access attachments. Electronically SUPPLEMENTARY INFORMATION: medical plans (CMPs), and health care submitted comments will be available I. Background prepayment plans (HCPPs), the HMO/ for public inspection at the CMP/HCPP is responsible for making Independence Avenue address, below. A. Appeals under Part A and Part B the organization determination, which Because of staffing and resource The Social Security Administration is the equivalent of the initial limitations, we cannot accept comments (SSA) makes determinations concerning determination made by the carriers and by facsimile (FAX) transmission. In basic entitlement to Medicare Part A intermediaries. Section 1876(c)(5)(B) of commenting, please refer to file code and Part B. Other determinations the Act establishes beneficiary rights to BPD–453–P. Comments received timely concerning Medicare payment of ALJ hearings and judicial review of will be available for public inspection as individual claims are made initially by certain Part A and Part B claims they are received, generally beginning Medicare contractors. Fiscal submitted by or on behalf of enrollees approximately 3 weeks after publication intermediaries make most Part A and of HMOs/CMPs/HCPPs. Limited appeal of a document, in Room 309–G of the some Part B determinations; carriers rights also exist for an HMO/CMP/ Department’s offices at 200 make most Part B determinations. (For HCPP. If the beneficiary requests, and is Independence Avenue, SW., purposes of this preamble discussion granted an ALJ hearing, the HMO/CMP/ Washington, DC, on Monday through and regulations set forth at 42 CFR part HCPP must be made a party to the Friday of each week from 8:30 a.m. to 405, subpart H, the term ‘‘carrier’’ also hearing and the HMO/CMP/HCPP then 5 p.m. (phone: (202) 690–7890). refers to intermediaries authorized to has the same appeals rights as the Copies: To order copies of the Federal make determinations with respect to beneficiary to further administrative or Register containing this document, send Part B benefits.) judicial review. In order for an HMO/ your request to: New Orders, Section 1869 of the Social Security CMP/HCPP appellant to qualify for an Superintendent of Documents, P.O. Box Act (the Act) grants Medicare ALJ hearing and judicial review, the 371954, Pittsburgh, PA 15250–7954. beneficiaries who are dissatisfied with amount in controversy must be at least Specify the date of the issue requested certain Medicare determinations the $100 and $1,000, respectively. Our and enclose a check or money order right to a hearing before an regulations address this subject at 42 payable to the Superintendent of administrative law judge (ALJ) and the CFR 417.600 through 417.638. Documents, or enclose your Visa or right to judicial review under certain For the following discussion, the term Master Card number and expiration circumstances. In general, a hearing ‘‘provider’’ has the meaning given in date. Credit card orders can also be before an ALJ is available to resolve sections 1861(u) and 1866(e) of the Act placed by calling the order desk at (202) disputes concerning: (1) An individual’s and in 42 CFR 400.202. That is, a 512–1800 or by faxing to (202) 512– basic entitlement to benefits under Part provider is a hospital, rural primary care 2250. The cost for each copy is $8.00. A or Part B of Medicare, and (2) the hospital, skilled nursing facility, home As an alternative, you can view and amount of benefits due. Since the health agency, comprehensive photocopy the Federal Register inception of the Medicare program, outpatient rehabilitation facility, or a document at most libraries designated hearings on all Part A or Part B hospice that has in effect an agreement as Federal Depository Libraries and at entitlement questions and Medicare Part to participate in Medicare, or a clinic, a 25846 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations rehabilitation agency, or a public health amount of Part B benefits, except under national coverage determinations are agency that has a similar agreement, but section 1876 of the Act pertaining to referred to as ‘‘national coverage only to furnish outpatient physical HMO/CMP/HCPP denials, and except decisions’’ in our manuals and therapy or speech pathology services. for certain PRO matters as authorized by regulations. Consequently, in The term ‘‘supplier’’ is defined in section 1155 of the Act. Instead, as discussions below, we use the latter § 400.202 and means a physician or specified in section 1842(b)(3)(C) of the phrase. The first limitation is that an other practitioner, or an entity other Act and our regulations at part 405, ALJ has no authority to review such a than a ‘‘provider,’’ that furnishes health subpart H, Medicare carriers processed decision, except to determine whether care services under Medicare. Although claims for Part B benefits and made an the national coverage decision applies ‘‘supplier’’ encompasses physicians, our initial determination, either approving to a specific claim for benefits. The ALJ usual phraseology is ‘‘physician or or denying the claim, in whole or in may also determine whether the supplier.’’ part. A beneficiary, or a physician, or a national coverage decision has been Under section 1879(d) of the Act, a supplier that accepted assignment and, applied correctly to the claim at issue. provider, or a physician or supplier that that disagreed with an initial For example, when a national coverage accepts assignment has, under certain determination, could obtain a review by decision permits coverage if certain limited circumstances, the same appeal the carrier that denied the claim. (Under criteria are met, the ALJ may reach a rights as that of an individual certain circumstances, a provider could different factual conclusion (from lower beneficiary when the issue in dispute also obtain a Part B review or fair level adjudicators) regarding whether involves a service that is excluded from hearing with the same limited appeal those criteria were met for the claim at coverage under section 1862(a)(1) of the rights for Part B initial determinations issue. Second, a national coverage Act, custodial care, home health denials as they have for Part A.) Following the decision may not be held unlawful or involving the failure to meet review determination, if the amount set aside solely on the grounds that the homebound or intermittent skilled remaining in controversy was $100 or decision was not published in nursing care requirements, or certain more, the final appeal under Part B was accordance with the notice and supplier refunds required under section a hearing before a hearing officer comment procedures of the 1879(h) of the Act. Moreover, by appointed by the carrier. Administrative Procedure Act (5 U.S.C. regulation, we have always provided 553) or section 1871(b) of the Act. B. Appeals Provisions of the Omnibus that a physician or supplier that has Third, in any case in which a court Budget Reconciliation Act of 1986 taken assignment of a Medicare claim determines that the record is incomplete under Part B has the same appeal rights Section 9341(a)(1) of OBRA ’86 or otherwise lacks adequate information as the beneficiary has on that claim. amended section 1869 of the Act to to support the validity of a national Additionally, we have been providing permit hearings before ALJs and judicial coverage decision, it must remand the appeal rights for providers in cases review of claims for benefits under Part matter to the Secretary for additional decided under section 1879(e) of the B. The law provided that, for a Part B proceedings to supplement the record. Act. ALJ hearing, the amount in controversy The court may not determine that an Under section 1842(l) of the Act, a must be at least $500, and for judicial item or service is covered except upon physician who does not accept review of a Part B dispute, the amount review of the supplemented record. assignment must refund to the in controversy must be at least $1,000. Section 9341(a)(1)(D) of OBRA ’86 beneficiary any amounts collected for Section 9341(a)(2) of OBRA ’86 also added section 1869(b)(4) to the Act. services found to be not reasonable and amended section 1842(b)(3)(C) of the This provision prohibits judicial review necessary under section 1862(a)(1). A Act to provide for a hearing before a of regulations or instructions issued refund is not required if the physician carrier hearing officer if the amount in prior to January 1, 1981, that relate to did not know, and could not reasonably controversy is at least $100, but not a method for determining the amount of have been expected to know, that more than $500. (Prior to OBRA ’86, a payment under Part B. Medicare would not pay for the services claimant qualified for a hearing before a The appeals amendments contained or if the beneficiary was appropriately carrier hearing officer by having at least in section 9341 of OBRA ’86 apply to informed in advance that Medicare $100 in controversy.) items and services furnished on or after would not pay for the services and A portion of section 9341(a)(1)(C) of January 1, 1987. agreed in writing to pay for them. Our OBRA ’86 amended section 1869(b)(2) Section 9313(a)(1) of OBRA ’86 regulation at 42 CFR 411.408 provides of the Act to provide for the aggregation amended section 1869(b)(1) of the Act to that if payment is denied for unassigned of claims under certain specific permit representation of beneficiaries in claims because the services are found to circumstances to reach the threshold Medicare appeals by the individuals be not reasonable and necessary, the minimum amount in controversy who have furnished items or services to physician who does not accept needed for an ALJ hearing. This those beneficiaries. (This statutory assignment has the same appeal rights aggregation provision was implemented provision effectively invalidated certain as the physician who submits claims on by regulations (including 42 CFR HCFA manual instructions in effect at an assignment-related basis, as 405.815) published in the Federal the time that barred providers from described in subpart H of part 405 and Register on March 16, 1994 (59 FR representing beneficiaries in Medicare subpart B of part 473. 12172). Part A appeals.) Section 1869(b)(1) also Before the enactment of the Omnibus Section 9341(a)(1)(D) of OBRA ’86 limits representation under the Budget Reconciliation Act of 1986 added section 1869(b)(3) to the Act limitation on liability provisions under (OBRA ’86, Pub. L. 99–509) on October placing several limitations on the section 1879 of the Act, which applies 21, 1986, section 1869 of the Act review of national coverage when the appeal involves: A service that provided for ALJ hearings and judicial determinations made under section is excluded from coverage under section review of claims for entitlement to 1862(a)(1) of the Act concerning 1862(a)(1) of the Act; custodial care; Medicare Parts A and B and of disputes whether a particular type or class of home health denials, if the individual is over claims for benefits under Part A. items or services is covered. Although determined to be not homebound or There was no provision for ALJ hearings the legislation uses the phrase ‘‘national does not or did not need skilled nursing or judicial review for disputes over the coverage determinations,’’ Medicare care on an intermittent basis; certain Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25847 supplier refunds required under section June 1, 1988, at 52 FR 20023, stating Section 9341(a)(2) of OBRA ’86 1879(h) of the Act; or cases decided that ALJ hearings (and Appeals Council amended section 1842(b)(3)(C) of the under section 1879(e) of the Act. In any review) under Part B would be governed Act to provide an individual with the of the above situations, the provider, to the extent possible by existing SSA opportunity for a carrier hearing when physician, or supplier cannot represent regulations at 20 CFR part 404, subparts the amount in controversy was ‘‘at least the beneficiary in an appeal unless the J and R, and existing Part A regulations $100, but not more than $500.’’ In 1987, provider or other supplier of services at 42 CFR part 405, subpart G. The we amended our Medicare Carriers waives in writing any rights for payment notice provided that, prior to having an Manual (§ 12005) to require that a from the beneficiary with respect to ALJ hearing under Part B, an appellant carrier hearing precede an ALJ hearing those items or services, including the must complete the carrier regardless of the amount in controversy. right to any deductible or coinsurance administrative review process set forth HCFA and SSA restated this in connection with the service(s) at in 42 CFR part 405, subpart H. This requirement in their 1988 joint notice, issue. The requirement that a provider process calls for a carrier review and a referenced above. or supplier representative must waive carrier hearing officer hearing. The The Secretary’s authority to require his or her right to payment is intended notice also stated that ALJ hearings will that appellants whose claims exceed to ensure against a potential conflict of be held for Medicare Part B claims that $500 complete the carrier hearing interest between the beneficiary and the meet the amount in controversy process before obtaining an ALJ hearing person who furnished the items or requirement established by section 9341 was affirmed by a decision of the U.S. services to the beneficiary. Further, a of OBRA ’86. Court of Appeals for the Second Circuit provider, physician, or supplier in Isaacs v. Bowen, 865 F.2d 468 (2d To date, Part B appeals are being representative is not entitled to charge Cir. 1989). The Court noted that processed under the provisions of the the beneficiary a fee for services following our 1987 revision to the June 1, 1988, general notice and the furnished in connection with Medicare Carriers Manual, Congress implementing instructions we issued to representation. The representation rules held hearings concerning the Medicare Medicare contractors (Medicare Carriers contained in section 9313(a)(1) of OBRA appeals process, in which it heard Manual (HCFA Pub. 14–3), section ’86 were effective on October 21, 1986, testimony concerning our decision to and only affect appeals arising under 12000ff and Medicare Intermediary require carrier hearings in all section 1869 of the Act. They are the Manual (HCFA Pub. 13–3), section circumstances. Congress subsequently subject of a separate regulation 3700ff). enacted OBRA ’87, which addressed the document under development. II. Revisions to the Rules carrier hearing procedures in two respects. First, the language of section C. Appeals Provisions of the Omnibus A. Overview 1842(b)(3)(C) describing the monetary Budget Reconciliation Act of 1987 It is our intention to develop a rule amount for a carrier hearing was Section 4082(b) of the Omnibus establishing in title 42 all Medicare changed by substituting the phrase ‘‘less Budget Reconciliation Act of 1987 hearings and appeals procedures, than $500’’ for the phrase ‘‘not more (OBRA ’87, Pub. L. 100–203) enacted on including the relevant procedures than $500.’’ Second, Congress December 22, 1987, added subparagraph currently found in SSA’s regulations in authorized the General Accounting (b)(5) to section 1869 of the Act to title 20. As an interim measure to ensure Office (GAO) to conduct a cost- provide for the expedited review of a effectiveness study of the Secretary’s uniform application of the Part A and case by an ALJ when the appellant requirement for carrier hearings prior to Part B appeals regulations, this rule, for alleges that there are no material issues an ALJ hearing. In light of these the most part, amends subparts G and H of fact in dispute. The provision is provisions, the U.S. Court of Appeals in of part 405 to incorporate the various intended to bring disputes that are the Second Circuit found that Congress appeals provisions found in section beyond the authority of the ALJ (and by its actions had ratified the Secretary’s 9341(a) of OBRA ’86 and section 4082(b) which thus need court intervention) to decision to require carrier hearings in of OBRA ’87. (As noted earlier, we do a quicker settlement. The provision was cases exceeding $500. not address section 9313(a)(1) of OBRA’ effective with requests for ALJ hearings Accordingly, we are specifying, in 86 regarding representation of filed as of February 20, 1988. § 405.801(a), that a carrier hearing Section 4085(i)(5) of OBRA ’87 beneficiaries or the portion of section always precede an ALJ hearing, amended section 1842(b)(3)(C) of the 9341(a) that deals with the aggregation including cases in which the amount in Act by substituting the phrase ‘‘less than of claims to establish amount in controversy at the carrier hearing level $500’’ for ‘‘not more than $500,’’ thereby controversy requirements for ALJ exceeds $500. We believe that the clarifying the amount in controversy hearings.) We also make clarifying continuation of the current carrier requirement for a carrier hearing. This changes to subparts G and H of part 405 hearing process serves a valuable provision is discussed further in section and to parts 417 and 473. function by assembling evidence, II.B. of this preamble. B. Specific Revisions defining issues, and identifying cases of carrier error or determinations that D. Implementation of OBRA Appeals Carrier Fair Hearing—Prior to OBRA should be changed due to the Amendments Prior to the Promulgation ’86, an individual could request a presentation of new evidence, or for of Regulations carrier fair hearing (hereinafter, carrier other reasons. Therefore, those cases With the additional review rights hearing) following the carrier’s review that reach the ALJ hearing level will granted by OBRA ’86 and OBRA ’87, determination if there was at least $100 involve actual disputes of fact or law appellants under Part B have essentially in controversy. The hearing provided by and the issues before the ALJ are clearly the same appeal rights as appellants the carrier represented the final level of defined. By ensuring the development under Part A. To implement the appeals appeal of a Part B determination. In of a complete record, the carrier hearing provisions prior to the publication of 1982, the U.S. Supreme Court, in the reduces the need for time-consuming regulations, HCFA and SSA (the agency case of Schweiker v. McClure, 456 U.S. and costly development at the ALJ level. responsible for conducting ALJ 188 (1982), upheld the constitutionality Retention of the carrier hearing process hearings) published a joint notice on of the carrier hearing process. results in a substantial reduction in the 25848 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations number of cases that would otherwise determination to exclude or limit a coverage decision. Under section have been appealed to the ALJ level, service is made under another statutory 1869(b)(3)(C) of the Act, if, upon a and more expeditious processing of authority—for example, the dental court’s initial review of a national cases at the ALJ level. Beneficiaries, exclusion under section 1862(a)(12) or coverage decision, the court determines providers, and suppliers, and the the cosmetic surgery exclusion under that ‘‘the record is incomplete or Federal government all benefit from this section 1862(a)(10)—that statutory otherwise lacks adequate information to process. Finally, we would like to note authority for exclusion or limitation support the validity’’ of the decision, that in its Report dated July 16, 1990 constitutes the sole basis for that then the court must remand the matter (HRD–90–57), GAO stated that: determination, unless otherwise to the Secretary for additional The congressional intent in establishing a specified. An exclusion under section proceedings to supplement the record $500 threshold for ALJ appeals is unclear. 1862(a)(1) of the Act is applicable only and the court may not determine that an Court opinions initially differed on whether if no other statutory basis for exclusion item or service is covered except upon the Congress intended such claims to bypass exists. review of the supplemented record. If a carrier fair hearings. However, a recent Section 9341(a)(1)(D) of OBRA ’86 court remands a national coverage federal district court appeal decision (Isaacs added section 1869(b)(3) to the Act to decision to the Secretary because the v. Bowen) concluded that HCFA’s provide that ALJs may not review a record is incomplete or inadequate, the instructions requiring claimants with national coverage decision (NCD) made disputed amounts of at least $500 to go Secretary will remand the case to HCFA through a carrier fair hearing before under section 1862(a)(1) of the Act for further development. On remand proceeding to the ALJ were valid. concerning whether a particular type or from the Secretary, we have the class of items or services is covered opportunity to supplement the record to National Coverage Decisions—The under Medicare. This provision was term ‘‘national coverage decision’’ include new, updated evidence, and effective for services furnished issue a revised decision, if necessary. (NCD) refers to a statement regarding the beginning January 1, 1987. coverage status of specific medical We then are able to defend the initial All national coverage decisions made national coverage decision or a revised services or items that HCFA makes and under section 1862(a)(1) of the Act are issues as national policy as provided for decision based on state-of-the-art subject to the review limitations of technology and evidence. Because ALJs in section 1871(a)(2) of the Act. We section 1869(b)(3). Thus, an ALJ may publish national coverage decisions in have no role in making agency policy, not disregard, set aside, or otherwise remand to an ALJ is not appropriate for the Medicare Coverage Issues Manual review any national coverage decision (HCFA Pub. 6) and may also publish additional proceedings to supplement (that grants or limits coverage, or the record that was used by us to them in other HCFA program manuals, excludes an item or service from including the Medicare Intermediary promulgate the national coverage coverage) made under section decision NCD). When on remand, we Manual and Medicare Carriers Manual, 1862(a)(1). Section 1869(b)(3), however, decide not to revise the NCD, the or in the Federal Register as a does not apply to cases involving supplemented record is returned to the regulation, notice, or HCFA Ruling. All national coverage decisions made under court that issued the remand order. national coverage decisions are binding a statutory authority other than When on remand, we decide to revise upon Medicare carriers, fiscal 1862(a)(1), such as the exclusion of an the NCD, an ALJ will issue a new intermediaries, PROs, HMOs, CMPs, item of durable medical equipment decision applying the revised NCD to and HCPPs. Prior to OBRA ’86, because it does not meet the the facts of the claim(s) under however, national coverage decisions, requirements of section 1861(n) of the consideration. The ALJ’s decision will except those published as HCFA Act. However, an ALJ will be bound by then be subject to a Departmental Rulings, were not binding upon ALJs. a national coverage decision made (ALJs are bound by the provisions of the under such other statutory authority Appeals Board (DAB) review and, Medicare law, Departmental regulations when contained in a regulation or in a ultimately, judicial review. When an and SSA regulations incorporated by HCFA Ruling. Moreover, while an ALJ individual case is on court remand, the Departmental regulations, and other may not disregard, set aside, or proceedings must be conducted on an issuances as provided for by law or otherwise review a national coverage expedited basis. regulation (such as HCFA Rulings decision based upon section 1862(a)(1), This final rule amends subpart G, by described in 42 CFR 401.108(c), SSA an ALJ remains free to review the facts adding a new § 405.732, and Subpart H, Rulings in 20 CFR 422.406(b)(1), and of a particular case to determine by adding a new § 405.860, to national coverage decisions based on whether the national coverage decision incorporate the review limitations on section 1862(a)(1) of the Act)). applies to a specific claim for benefits national coverage decisions described On August 21, 1989, we published a and, if so, to determine whether the above. notice in the Federal Register (54 FR national coverage decision has been Review of Payment Methodologies— 34555) listing those current national applied correctly to the claim at issue. Section 9341(a)(1)(D) of OBRA ’86 also coverage decisions that had been issued In OBRA ’86, Congress also limited added section 1869(b)(4) to the Act to in the Medicare Coverage Issues judicial review of national coverage prohibit the Federal courts from Manual. In that notice, we explained decisions in two significant ways. First, reviewing certain payment that unless another statutory basis in section 1869(b)(3)(B), Congress methodologies established by the applies, national coverage decisions are provided that a court may not hold Secretary. Specifically, a court is not made under the authority of section unlawful or set aside a national permitted to review a regulation or 1862(a)(1) of the Act which, among coverage decision on the ground that it instruction that relates to a method for other things, prohibits payment under was not issued in accordance with the determining the amount of payment the Medicare program for expenses notice and comment procedures of the under Part B if the regulation was incurred for services that are not Administrative Procedure Act or section promulgated, or the instruction issued, reasonable and necessary for the 1871(b) of the Social Security Act. prior to January 1, 1981. We are adding diagnosis or treatment of illness or Second, Congress expressly prescribed § 405.857(b) to codify the statutory injury or to improve the functioning of the extent to which a Federal court may amendment barring judicial review of a malformed body member. If a review a challenge to a national pre-1981 Part B payment methodologies. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25849

Departmental Appeals Board—The ALJs may resolve factual disputes and v. Salfi, 422 U.S. 749 (1975), which level of administrative review between resolve cases by applying the pertinent indicated that the Secretary had the the ALJ hearing and judicial review is statutory and regulatory (standards). authority to determine in particular now known as Departmental Appeals However, they do not have authority to cases that full exhaustion of declare statutes or regulations invalid. That administrative remedies was not Board (DAB) review. The review of ALJ is the responsibility of the Federal courts. If decisions in Medicare cases had been a claimant wishes to challenge the legality of necessary for a decision to be ‘‘final’’ performed by the SSA Appeals Council, a regulation or the constitutionality of a within the meaning of the Act. The along with the review of all other SSA statute, and there are no factual issues in Court’s decision left it to the Secretary cases. However with the establishment contention, the claimant should not have to to determine when and how the of an independent SSA, it was decided expend the resources and endure the delay expedited review might be initiated. that the Medicare functions of the entailed in completing an ALJ review that Although the § 405.718 review will not resolve the case and will not Appeals Council should be exercised procedures are a reasonable exercise of contribute to its resolution. In that situation, the Secretary’s authority, they are within the Department of Health and the claimant should be able to present its Human Services (DHHS). That appellate inconsistent in some respects with the case expeditiously to a Federal court. In expedited review process that the function was assigned to the DAB, order not to waste the time of the Federal which has experience in conducting court, however, there needs to be some Secretary is required to provide under section 1869(b)(5) of the Act. The hearings and appeals for DHHS. We are assurance that there are no questions of fact current regulation (§ 405.718) allows a specifying that the regulations currently in contention, since the resolution of the Part A appellant to request expedited in place regarding SSA Appeals Council factual dispute might either resolve the case entirely or have an important influence on review after a reconsideration review, beginning at 20 CFR 404.967, the proper framing of the legal issues. The determination has been issued, but does apply to Medicare appeals handled by Committee bill establishes a procedure for not specifically require that the the DAB. In appealing Part A claims expediting judicial review in appropriate appellant must first file a request for an under subpart G of the regulations, cases. It permits a claimant to allege that ALJ hearing. This is inconsistent with appellants must request the DAB to there are no factual disputes before the ALJ, section 1869(b)(5) of the Act, which and to request the ALJ to make an expedited review an ALJ’s decision before the case clearly contemplates that the expedited can be taken to court (§ 405.724). determination to that effect. If the ALJ made such a determination, he would close the review process will be initiated as part Although DAB review is not specifically case quickly and permit the claimant to go of the ALJ hearing process and that, for referred to in the OBRA ’86 expansion immediately to Federal court. cases pending at the ALJ level, the ALJ of the Part B appeals process, we believe will make the expedited determination this level of review should also apply to H.R. Report No. 391, 100th Cong., 1st Sess. 429 (October 26, 1987). as to whether there are any material the appeal of Part B claims. Therefore, issues of fact in dispute. Accordingly, we are adding a new § 405.856 to In light of the above legislative subpart G and subpart H need to be provide DAB review as the intermediate history, we believe that the Congress revised. We are revising the regulations level of appeal between the ALJ hearing intended section 1869(b)(5) to provide to conform to section 1869(b)(5) of the and judicial review for the appeal of an expedited review process for all Act and to specify that, in order for an Part B claims. If dissatisfied with the cases in which the ALJ has no authority appellant to qualify for expedited ALJ hearing decision or dismissal, an to grant the relief requested by the review, a request for an ALJ hearing appellant may request that the DAB appellant, that is, when the only must be filed and the amount in review that action or the DAB may material issue is the constitutionality of controversy for court review must be initiate a review at its discretion. The a statute or the validity of a regulation, met. Thus, in cases in which a DAB may deny, dismiss, or grant the HCFA Ruling, or national coverage reconsideration determination or a appellant’s request for review. If the decision based on section 1862(a)(1) of carrier hearing decision has been made, DAB grants the request for review, or the Act that the ALJ is bound to apply an expedited appeals process may be elects to review the ALJ decision at its to the case. However, the expedited used in lieu of an ALJ hearing and DAB own discretion, it may affirm, reverse, review process would not apply to a review (expedited review may also be or modify a decision or dismissal made challenge to a manual instruction or a initiated at the DAB level) if the by an ALJ, and/or remand the case to an policy statement. (ALJs are, among other appellant asserts, and the ALJ or DAB, ALJ for further action. The DAB’s things, required to apply the as appropriate, agrees that the only issue authority includes, but is not limited to, Department’s regulations, HCFA in controversy in the matter is the Rulings, and national coverage the authority to take any action that the constitutionality of a statutory provision decisions based on section 1862(a)(1) of ALJ could have taken. or the validity of a regulatory provision, the Act, but are not bound by HCFA HCFA Ruling, or a national coverage Expedited Review—Section 4082(b) of manuals or other operating guidelines— decision based on section 1862(a)(1) of OBRA ’87 added section 1869(b)(5) to see 20 CFR 422.406(b)(1)). the Act. The ALJ’s or DAB’s the Act to provide for the expedited We are amending subparts G and H of determination to this effect exhausts the review of cases by ALJs when an part 405 of the regulations to include appellant’s administrative remedies. appellant alleges that there are no expedited review of cases in which the The appellant may then file a civil material issues of fact in dispute. The appellant challenges the action in a Federal district court. ALJ must make an expedited constitutionality of a statute or the Clarifying Revisions—We are making determination as to whether such facts validity of a regulation, HCFA Ruling, or other clarifying changes to part 405, are in dispute and, if not, must then national coverage decision based on subparts G and H; part 417, subpart Q, determine the case expeditiously so that section 1862(a)(1) of the Act, and there and part 473, as identified below: the appellant is given an expedited are no material issues of fact in dispute. • We define ‘‘after receipt of the opportunity to seek judicial review on An expedited appeals process is already notice’’, to mean that an appellant is the issue of law raised. The House in place for part A appellants under presumed to have received a notice from Report accompanying OBRA ’87 § 405.718. That provision was issued in the carrier, the ALJ, or the DAB 5 days described the purpose of section 4082(b) November 1975 in response to the U.S. after the date on the notice, unless it is as follows: Supreme Court’s decision in Weinberger shown that the notice was received 25850 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations earlier or later (§ 405.802). The purpose and Quality Control Peer Review In § 405.806 we removed the reference of this addition is to provide a Organizations (PRO) Reconsiderations to a ‘‘final’’ decision and made minor definition that is consistent with the and Appeals.’’ editorial changes to improve readability. terminology used in subpart G. We redesignated and revised In § 405.821, we removed an incorrect • We add the word ‘‘carrier’’ to §§ 405.718 and 405.718a through cross-reference. various provisions in subpart H to 405.718e to modify the procedures for In § 405.831, we revised the heading clearly distinguish between carrier using an expedited review process in by adding the words ‘‘at carrier hearings and ALJ hearings. accordance with section 1869(b)(5) of hearing’’. • For consistency with the Part A the Act, and to improve readability. In § 405.832, we revised paragraph appeals provisions in subpart G We revised § 405.724 to specify that (c)(1) to correct a statutory reference. (§ 405.701(c)), § 405.801(c) is revised to the SSA regulations governing Appeals We revised § 405.833 to make minor indicate that subparts J and R of 20 CFR Council review, apply to Medicare editorial changes. part 404 are also applicable to ALJ, appeals handled by the DAB, the level We amended § 405.834 by DAB, and judicial review conducted of appeal between the ALJ hearing and reorganizing the material in list form under subpart H, except to the extent judicial review. and, in accordance with the that specific provisions are contained in We revised § 405.730 to update a requirements of section 1869(b)(2)(B) of subpart H. statutory reference and to make minor the Act, we added a requirement that • One concern arising from a decision editorial changes. the carrier hearing officer’s decision of the Supreme Court in Darby v. We added a new § 405.732 to includes notification to the parties of Cisneros, 113 S.Ct. 2539 (1993), is that implement the OBRA ’86 provision their right to an ALJ hearing if at least where regulations deem agency action regarding the limitations imposed on $500 remains in controversy following to be ‘‘final,’’ a court could find that ALJs and courts in their review of the carrier hearing. action to be immediately reviewable We revised § 405.835 to state that a national coverage decisions issued by even if the agency action is an initial carrier hearing officer’s decision is not HCFA under section 1862(a)(1) of the determination or an intermediate appeal binding if a request for an ALJ hearing Act. step. Therefore, because the term ‘‘final’’ is made. decision has been construed to mean We revised § 405.801(a) to reference In § 405.841 we amended paragraph that an administrative decision may be the statutory provisions allowing Part B (b) to correct a regulatory cross subject to immediate judicial review, we claimants to seek an ALJ hearing if the reference. have removed in subparts G and H of amount remaining in controversy after We redesignated § 405.860 as part 405, subpart Q of part 417, and part the carrier hearing is at least $500 and § 405.836. We made minor editorial 473 all references to ‘‘final’’ decisions to seek judicial review if the amount changes to the section. (except for those decisions made at the remaining in controversy after the ALJ We added a new § 405.853 titled DAB level, which are final and hearing is at least $1,000. This revision ‘‘Expedited review’’ to explain the immediately reviewable by the courts). conforms the regulations to current procedure under which a case may go The regulations state that non-final carrier manual instructions that require to court using the expedited appeals administrative decisions (for example, an appellant to complete the carrier fair process, in accordance with section initial determinations, review/ hearing process before proceeding to an 1869(b)(5) of the Act. reconsideration determinations and ALJ hearing. We added a new § 405.855 titled ‘‘ALJ carrier hearing decisions) are ‘‘binding’’ In § 405.801(b), we moved the hearing’’ to incorporate the provisions on the appellants, unless appealed in a definition of ‘‘with reasonable of section 9341 of OBRA ’86 that timely fashion. promptness’’ to the section on amended section 1869(b) of the Act to • We replace the terms ‘‘Social definitions at § 405.802 and replaced it provide Part B appellants with the right Security Administration’’ and ‘‘Health with a section stating our longstanding to an ALJ hearing. This section specifies Care Financing Administration’’ with policy on appeal rights for physicians the procedures for requesting an ALJ ‘‘SSA’’ or ‘‘HCFA’’, as appropriate. and suppliers who accept assignment hearing. We also make a number of technical and the appeal rights for non- We added a new § 405.856 to specify revisions for consistency and participating physicians who meet the that the SSA regulations governing clarification, as included in the refund provisions under section Appeals Council review, apply to following summary. 1842(l)(1)(A) of the Act. Medicare appeals handled by the DAB, We revised § 405.801(c) to improve the level of appeal between the ALJ III. Summary of Revisions readability and to indicate that subparts hearing and judicial review. Current regulations concerning J and R of 20 CFR part 404 are (Corresponding changes are also made appeals of Part A claims determinations applicable to ALJ, DAB, and judicial in §§ 417.634 and 473.46). are at 42 CFR part 405, subpart G, review conducted under subpart H, We added a new § 405.857 titled ‘‘Reconsiderations and Appeals Under except to the extent that specific ‘‘Court review’’ that: (1) Specifies the Medicare Part A.’’ Regulations provisions are contained in subpart H. general requirements for requesting concerning appeals of Part B claims We revised § 405.802 to define ‘‘after judicial review; and (2) codifies section determinations are at 42 CFR part 405, receipt of the notice’’ as being 5 days 1869(b)(4) of the Act prohibiting judicial subpart H, ‘‘Appeals under the Medicare after the date on the notice, unless it is review of regulations or instructions Part B Program.’’ We revised these two shown that the notice was received issued prior to January 1, 1981, that subparts to incorporate the OBRA ’86 earlier or later. Also, we moved the relate to a method for determining the and OBRA ’87 appeals provisions and to definition of ‘‘with reasonable amount of payment under Part B. make additional clarifying changes. promptness’’ from § 405.801(b) to this In a new § 405.860, we specify the Corresponding clarifying changes are section. provisions of section 1869(b)(3) of the made to regulations at 42 CFR part 417, We revised § 405.803 to update the Act limiting review by ALJs and the subpart Q, ‘‘Beneficiary Appeals’’ (for cross-references, and to reorganize the courts of national coverage decisions enrollees of HMOs/CMPs/HCPPs) and material in list form to improve issued by us under section 1862(a)(1) of 42 CFR part 473, subpart B, ‘‘Utilization readability. the Act. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25851

We revised several sections in v. Bowen, 865 F.2d 468 (2d Cir. 1989). Second Circuit in Issacs v. Bowen, 865 subparts G and H of part 405, and in The rule also makes clarifying changes F. 2d 468 (2d Cir. 1989). The carrier parts 417 and 473 of the regulations to to subparts G and H of part 405 and to hearing has proven beneficial to remove the references to ‘‘final’’ parts 417 and 473. In addition, these appellants and the government by decisions. This change removes any changes to the regulations have no reducing the number of time-consuming implication that a lower administrative impact on program costs. Therefore, we and costly cases forwarded to the ALJs. decision is immediately appealable to a find good cause to waive the notice of Additionally, in order to provide Part B court. The affected sections are: 405.708 proposed rulemaking and to issue this appellants with the same rights as Part (a) and (b), 405.717, 405.750, 405.806, final rule with comment period. A appellants, we propose to include 405.812, 405.832(a), 405.835, We will consider comments we DAB review as an additional level of 405.842(b), 417.612, 417.626, 473.38, receive by the date and time specified review for Part B claims. and 473.48. in the DATES section of this preamble For these reasons, we are not Additionally, we made several from anyone who believes that in preparing analyses for either the RFA or technical changes throughout the making these changes we have deviated section 1102(b) of the Act because we subpart and substituted ‘‘SSA’’ or from the provisions of the statute or the have determined, and we certify, that ‘‘HCFA’’ where the words ‘‘Social existing agency practices referenced this rule will not have a significant Security Administration’’ or ‘‘Health above. Although we cannot respond to economic impact on a substantial Care Financing Administration’’ comments individually, if we change number of small entities or a significant appeared in the affected sections. In a these rules as a result of comments, and, impact on the operations of a substantial few sections, we inserted ‘‘he or she’’ if we proceed with a subsequent number of small rural hospitals. instead of ‘‘he’’ to make those particular document, we will respond to the In accordance with the provisions of sections gender neutral. Other technical comments in the preamble to that Executive Order 12866, this regulation changes made reflect current document. was not reviewed by the Office of nomenclature and conform with our Management and Budget. V. Regulatory Impact Statement style requirements. Consistent with the Regulatory List of Subjects IV. Waiver of Proposed Rulemaking Flexibility Act (RFA) (5 U.S.C. 601 42 CFR Part 405 We ordinarily publish a notice of through 612), we prepare a regulatory Administrative practice and proposed rulemaking in the Federal flexibility analysis unless we certify that procedure, Health facilities, Health Register and invite prior public a rule would not have a significant professions, Kidney diseases, Medicare, comment on proposed rules. The notice economic impact on a substantial Reporting and recordkeeping of proposed rulemaking includes a number of small entities. For purposes requirements, Rural areas, X-rays. reference to the legal authority under of the RFA, all providers and suppliers which the rule is proposed and either are considered to be small entities. 42 CFR Part 417 the terms and substances of the Individuals and States are not included Administrative practice and proposed rule or a description of the in the definition of a small entity. procedure, Grant programs-health, subjects and issues involved. The notice Also, section 1102(b) of the Act Health care, Health facilities, Health of proposed rulemaking can be waived, requires us to prepare a regulatory insurance, Health maintenance however, if an agency finds good cause impact analysis if a rule may have a organizations (HMO), Loan programs- that a notice-and-comment procedure is significant impact on the operations of health, Medicare, Reporting and impracticable, unnecessary, or contrary a substantial number of small rural recordkeeping requirements. to the public interest and incorporates a hospitals. Such an analysis must statement of the finding and its reasons conform to the provisions of section 603 42 CFR Part 473 in the rule issued. of the RFA. For purposes of section Administrative practice and Since this rule merely codifies 1102(b) of the Act, we define a small procedure, Health care, Health provisions of the Social Security Act rural hospital as a hospital that is professions, Peer Review Organizations and existing agency practices that have located outside of a Metropolitan (PRO), Reporting and recordkeeping been upheld by the U.S. Court of Statistical Area and has fewer than 50 requirements. Appeals for the Second Circuit and beds. 42 CFR Chapter IV is amended as makes various clarifying changes to The provisions of this rule codify follows: existing regulations, we believe that it is statutory requirements regarding unnecessary to publish a proposed rule. appeals rights for Part A and Part B PART 405ÐFEDERAL HEALTH Specifically, this rule codifies the appellants and limitations on the review INSURANCE FOR THE AGED AND various appeal provisions found in of national coverage decisions by ALJs DISABLED section 9341(a) of the Omnibus and the courts. A. Part 405, is amended as set forth Reconciliation Act of 1986 and section Because the appeals provisions of this below: 4082(b) of the Omnibus Reconciliation final rule with comment period have Act of 1987. These two provisions been implemented through the 1988 Subpart GÐReconsiderations and contain limitations on the review by Federal Register notice and manual Appeals Under Medicare Part A ALJs and the courts of national coverage instructions issued to the Medicare decisions and the statutory authority for carriers, we do not believe that the 1. The authority citation for subpart G an expedited appeals process under Part publication of this rule will have any continues to read as follows: A and Part B. This rule also expands our significant effect on the appeals process. Authority: Secs. 1102, 1151, 1154, 1155, regulations to require that appellants The provision in § 405.801(a) 1869(b), 1871, 1872 and 1879 of the Social whose claims exceed $500 complete the requiring a carrier hearing prior to an Security Act (42 U.S.C. 1302, 1320, 1320c, carrier hearing process before obtaining ALJ hearing regardless of the amount in 1320c-3, 1320c-4, 1395ff(b), 1395hh, 1395ii an ALJ hearing, a long-standing agency controversy is not statutory, but a long- and 1395pp). practice upheld by the U.S. Court of standing practice that has been affirmed 2. Section 405.717 is revised to read Appeals for the Second Circuit in Issacs by the U.S. Court of Appeals for the as follows: 25852 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

§ 405.717 Effect of a reconsidered (2) Time of filing request. The party treats the request as a request for determination. may file a request for the EAP— hearing or DAB review, as appropriate. The reconsidered determination is (i) If the party has requested a hearing, 4. Section 405.724 is revised to read binding upon all parties unless— at any time prior to receipt of the notice as follows: (a) A request for a hearing is filed of the ALJ’s decision; with SSA or HCFA within 60 days after § 405.724 Departmental Appeals Board (ii) Within 60 days after the date of (DAB) Review. the date of receipt of notice of the receipt of notice of the ALJ’s decision or reconsidered determination by the dismissal, unless the time is extended in Regulations beginning at 20 CFR parties (for purposes of this section, the accordance with the standards set out in 404.967 regarding SSA Appeals Council date of receipt of notice of the 20 CFR 404.925(c). For purposes of this Review are also applicable to DAB reconsidered determination is presumed section, the date of receipt of the notice review of matters addressed by this to be 5 days after the date of the notice, is presumed to be 5 days after the date subpart. unless it is shown that the notice was on the notice, unless it is shown that the 5. Section 405.730 is revised to read received earlier or later); or notice was received later; or as follows: (b) The reconsidered determination is (iii) If the party has requested DAB § 405.730 Court review. revised in accordance with § 405.750; or review, at any time prior to receipt of (a) To the extent authorized by (c) The expedited appeals process is notice of the Board’s decision. used in accordance with § 405.718. sections 1869, 1876(c)(5)(B), and (d) Parties to the EAP. The parties to 1879(d) of the Act, a party to a §§ 405.718a through 405.718e [Removed] the EAP are the persons who were Departmental Appeals Board (DAB) 3. Sections 405.718a through 405.718e parties to the reconsideration decision or an ALJ decision if the DAB are removed and § 405.718 is revised to determination and, if appropriate, to the does not review the ALJ decision, may read as follows: hearing. obtain a court review if the amount (e) Determination on request for EAP. remaining in controversy is $1,000 or § 405.718 Expedited appeals process. (1) For EAP requests initiated at the ALJ more. A party may obtain court review (a) Conditions for use of expedited level, an ALJ determines whether all by filing a civil action in a district court appeals process (EAP). A party may use conditions of paragraphs (a) and (b) of of the United States in accordance with the EAP to request court review in place this section are met. the provisions of section 205(g) of the of an administrative law judge (ALJ) (2) If a hearing decision has been Act. The filing procedure is set forth at hearing or Departmental Appeals Board issued, the DAB determines whether all 20 CFR 422.210. (DAB) review if the following conditions of paragraphs (a) and (b) of (b) A party to a reconsidered conditions are met: this section are met. determination or an ALJ hearing (1) HCFA has made a reconsideration (f) ALJ or DAB certification for the decision may obtain a court review if determination; an ALJ has made a EAP. If the party meets the requirements the amount in controversy is $1,000 or hearing decision; or DAB review has for the EAP, the ALJ or the DAB, as more, and he or she requests and meets been requested, but a final decision has appropriate, certifies the case in writing the conditions for the expedited appeals not been issued. stating that: process set forth in § 405.718. (2) The filing entity is a party referred (1) The facts involved in the claim are 6. Section 405.732 is added to read as to in § 405.718(d). not in dispute; follows: (3) The party has filed a request for an (2) Except as indicated in paragraph ALJ hearing in accordance with (f)(3) of this section, HCFA’s § 405.732 Review of national coverage § 405.722, or DAB review in accordance interpretation of the law is not in decisions (NCDs). with 20 CFR 404.968. dispute; (a) General. (1) HCFA makes NCDs (4) The amount remaining in (3) The sole issue(s) in dispute is the either granting, limiting, or excluding controversy is $1,000 or more. constitutionality of a statutory provision Medicare coverage for a specific medical (5) If there is more than one party to or the validity of a regulation, HCFA service, procedure or device. NCDs are the reconsideration determination or Ruling, or national coverage decision made under section 1862(a)(1) of the hearing decision, each party concurs, in based on section 1862(a)(1) of the Act. Act or other applicable provisions of the writing, with the request for the EAP. (4) Except for the provision (b) Content of the request for EAP. Act. An NCD is binding on all Medicare challenged, the right(s) of the party is The request for the EAP: carriers, fiscal intermediaries, PROs, (1) Alleges that there are no material established; and HMOs, CMPs, and HCPPs when issues of fact in dispute; and (5) The determination or decision published in HCFA program manuals or (2) Asserts that the only factor made by the ALJ or DAB is final for the Federal Register. precluding a decision favorable to the purposes of seeking judicial review. (2) Under section 1869(b)(3) of the party is a statutory provision that is (g) Effect of ALJ or DAB certification. Act, only NCDs made under section unconstitutional or a regulation, (1) Following the issuance of the 1862(a)(1) of the Act are subject to the national coverage decision under certification described in paragraph (f) conditions of paragraphs (b) through (d) section 1862(a)(1) of the Act, or HCFA of this section, the party waives of this section. Ruling that is invalid. completion of the remaining steps of the (b) Review by ALJ. (1) An ALJ may not (c) Place and time for requesting an administrative appeals process. disregard, set aside, or otherwise review EAP.—(1) Place for filing request. The (2) The 60-day period for filing a civil an NCD. person must file a written request— suit in a Federal district court begins on (2) An ALJ may review the facts of a (i) At an office of SSA or HCFA; or the date of receipt of the ALJ or DAB particular case to determine whether an (ii) If the person is in the Philippines, certification. NCD applies to a specific claim for at the Veterans Administration Regional (h) Effect of a request for EAP that benefits and, if so, whether the NCD has Office or with an ALJ; or does not result in certification. If a been applied correctly to the claim. (iii) If the person is a qualified request for the EAP does not meet all (c) Review by Court. (1) A court’s railroad retirement beneficiary, at an the conditions for use of the process, the review of an NCD is limited to whether office of the Railroad Retirement Board. ALJ or DAB so advises the party and the record is incomplete or otherwise Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25853 lacks adequate information to support 9. Section 405.801 is revised to read it is shown that the notice was received the validity of the decision, unless the as follows: earlier or later. case has been remanded to the Secretary * * * * * to supplement the record regarding the § 405.801 Part B appealsÐgeneral description. With reasonable promptness means NCD. The court may not invalidate an within a period of 60 consecutive days NCD except upon review of the (a) The Medicare carrier makes an after the receipt by the carrier of a supplemented record. initial determination when a request for request for payment. (2) A Federal court may not hold payment for Part B benefits is 11. Section 405.803 is revised to read unlawful or set aside an NCD because it submitted. If an individual beneficiary as follows: was not issued in accordance with the is dissatisfied with the initial notice and comment procedures of the determination, he or she may request, § 405.803 Initial determination. Administrative Procedure Act (5 U.S.C. and the carrier will perform, a review of (a) Carriers make initial 553) or section 1871(b) of the Act. the claim. Following the carrier’s review determinations regarding claims for (d) Remands—(1) Secretary’s action. determination, the beneficiary may benefits under Medicare Part B. When a court remands an NCD matter obtain a carrier hearing if the amount (b) An initial determination for to the Secretary because the record in remaining in controversy is at least purposes of this subpart includes support of the NCD is incomplete or $100. The beneficiary is also entitled to determinations such as the following: otherwise lacks adequate information, a carrier hearing without the benefit of (1) Whether services furnished are the Secretary remands the case to HCFA a review determination when the initial covered. in order to supplement the record. request for payment is not being acted (2) Whether the deductible has been (2) Remand to HCFA. HCFA upon with reasonable promptness (as met. supplements the record with new or defined in § 405.802). Following the (3) Whether the receipted bill or other updated evidence, including additional carrier hearing, the beneficiary may evidence of payment is acceptable. information from other sources, and obtain a hearing before an ALJ if the (4) Whether the charges for services may issue a revised NCD. amount remaining in controversy is at furnished are reasonable. (3) Final Actions. (i) The proceedings least $500. If the beneficiary is (5) If the services furnished to a to supplement the record are expedited. dissatisfied with the decision of the ALJ, beneficiary by a physician or a supplier (ii) When HCFA does not issue a he or she may request the Departmental pursuant to an assignment under revised NCD, it returns the Appeals Board (DAB) to review the case. § 424.55 of this chapter are not covered supplemented record to the court for Following the action of the DAB, the because they are determined to be not review. beneficiary may file suit in Federal reasonable and necessary under (iii) When HCFA issues a revised district court if the amount remaining in § 411.15(k) of this chapter, whether the NCD, it forwards the case to an ALJ who controversy is at least $1,000. beneficiary, physician or supplier, or a issues a new decision applying the (b) The rights of a beneficiary under physician who meets the requirements revised NCD to the facts of the claim(s) paragraph (a) of this section to appeal of § 411.408, knew or could reasonably under consideration. The ALJ’s decision the carrier’s initial determination are have been expected to know at the time is subject to DAB review and, granted also to— the services were furnished that the ultimately, judicial review. (1) A physician or supplier that services were not covered. 7. In § 405.750, the heading and furnishes services to a beneficiary and (c) The following are not initial paragraph(b) introductory text are that accepts an assignment from the determinations for purposes of this revised to read as follows: beneficiary, or subpart: § 405.750 Time period for reopening initial, (2) A physician who meets the (1) Any issue or factor for which SSA revised, or reconsidered determinations conditions of section 1842(l)(1)(A) of the or HCFA has sole responsibility, for and decisions or revised decisions of an Act pertaining to refund requirements example, whether an independent ALJ or the Departmental Appeals Board for nonparticipating physicians who laboratory meets the conditions for (DAB); binding effect of determination and coverage of services; whether a decisions. have not taken assignment on the claim(s) at issue. Medicare overpayment claim should be * * * * * (c) Procedures governing the compromised, or collection action (b) Reopenings concerning a request determinations by SSA as to whether an terminated or suspended. for payment. An initial, revised, or individual has met basic Part B (2) Any issue or factor which relates reconsidered determination of HCFA, or entitlement requirements are covered in to hospital insurance benefits under a decision or revised decision of an ALJ subpart G of this part and 20 CFR part Medicare Part A. or of the DAB, with respect to an 404, subpart J. Subparts J and R of 20 12. Section 405.806 is revised to read individual’s right concerning a request CFR part 404 are also applicable to ALJ, as follows: for payment under Medicare Part A, DAB, and judicial review conducted which is otherwise binding under 20 § 405.806 Effect of Initial Determination. under subpart H, except to the extent CFR 404.955 or 404.981 and §§ 405.708 The initial determination is binding that specific provisions are contained in or 405.717 of this subpart may be upon all parties to the claim for benefits this subpart. reopened: unless the determination is— 10. In § 405.802, the undesignated * * * * * (a) Reviewed in accordance with introductory text is republished and two §§ 405.810 through 405.812; or Subpart HÐAppeals Under the new definitions are added, in (b) Revised as a result of a reopening Medicare Part B Program alphabetical order, to read as follows: in accordance with § 405.841. § 405.802 Definitions. 13. Section 405.833 is revised to read 8. The authority citation for subpart H as follows: continues to read as follows: As used in subpart H of this part, the § 405.833 Record of carrier hearing. Authority: Secs. 1102, 1842(b)(3)(C), and term— 1869(b) of the Social Security Act (42 U.S.C. After receipt of the notice means 5 A complete record of the proceedings 1302, 1395u(b)(3)(C), 1395ff(b)). days after the date on the notice, unless at the carrier hearing is made. The 25854 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations testimony is transcribed and copies of hearing decision; or DAB review has § 405.857 Court review. other documentary evidence are been requested, but a final decision has (a) General rule. To the extent reproduced in any case when directed not been issued. authorized by sections 1869, by the hearing officer, the carrier, or (2) The filing entity is a party referred 1876(c)(5)(B), and 1879(d) of the Act, a HCFA. The record will also be to in § 405.718(d) of this chapter. party to a DAB decision, or an ALJ transcribed and reproduced at the (3) The party has filed a request for an decision if the DAB does not review the request of any party to the hearing ALJ hearing in accordance with ALJ’s decision, may obtain a court provided the requesting party bears the § 405.855, or DAB review in accordance review if the amount remaining in cost. with 20 CFR 404.968. controversy is $1,000 or more. A party 14. Section 405.834 is revised to read (4) The amount remaining in may obtain court review by filing a civil as follows: controversy is $1,000 or more. action in a district court of the United (5) If there is more than one party to States in accordance with the provisions § 405.834 Carrier hearing officer's the hearing decision, each party decision. of section 205(g) of the Act. The filing concurs, in writing, with the request for procedure is set forth in 20 CFR (a) As soon as practicable after the an EAP. 422.210. close of a carrier hearing, the carrier (b) Content of the request for EAP. (b) Prohibition against court review of hearing officer issues a decision in the The request for an EAP: certain Part B regulations or case based upon the evidence presented (1) Alleges that there are no material instructions. Under section 1869(b)(4) of at the hearing or otherwise included in issues of fact in dispute; and the Act, a court may not review a (2) Asserts that the only factor the hearing record. The decision is regulation or instruction that relates to precluding a decision favorable to the issued as a written notice to the parties a method of payment under Part B if the party is a statutory provision that is and contains— regulation was promulgated, or the unconstitutional or a regulation, (1) Findings of fact, instruction issued, before January 1, (2) A statement of reasons, and national coverage decision under 1981. (3) Notification to the parties of their section 1862(a)(1) of the Act, or HCFA 21. Section 405.860 is added to read right to an ALJ hearing when the Ruling that is invalid. as follows: amount remaining in controversy is at 18. Section 405.855 is added to read least $500. as follows: § 405.860 Review of national coverage (b) A copy of the decision is mailed decisions (NCDs). § 405.855 ALJ hearing. to the parties to the hearing at their last (a) General. (1) HCFA makes NCDs known addresses. (a) Right to hearing. A party to the either granting, limiting, or excluding 15. Section 405.835 is revised to read carrier hearing has a right to a hearing Medicare coverage for a specific medical as follows: before an ALJ if— service, procedure or device. NCDs are (1) The party files a written request made under section 1862(a)(1) of the § 405.835 Effect of carrier hearing officer's for an ALJ hearing within 60 days after decision. Act or other applicable provisions of the receipt of the notice of the carrier Act. An NCD is binding on all Medicare The carrier hearing officer’s decision hearing decision; and carriers, fiscal intermediaries, PROs, is binding upon all parties to the (2) The amount remaining in HMOs, CMPs, and HCPPs when hearing unless— controversy is $500 or more. published in HCFA program manuals or (a) A request for an ALJ hearing is (b) Place of filing hearing request. The the Federal Register. filed in accordance with § 405.855, or request for an ALJ hearing must be made (2) Under section 1869(b)(3) of the (b) The decision is revised in in writing and filed with the carrier that Act, only NCDs made under section accordance with § 405.841. issued the decision, a Social Security 1862(a)(1) of the Act are subject to the 16. Section 405.860 is redesignated as office, or, in the case of a qualified conditions of paragraphs (b) through (d) § 405.836 and revised to read as follows: railroad retirement beneficiary, an office of this section. of the Railroad Retirement Board. § 405.836 Authority of the carrier hearing (b) Review by ALJ. (1) An ALJ may not (c) Effect of ALJ hearing decision. (1) officer. disregard, set aside, or otherwise review An ALJ’s decision is binding on all The carrier hearing officer, in an NCD. parties to the hearing unless— (2) An ALJ may review the facts of a adjudicating Medicare Part B claims, (i) The DAB reviews the ALJ decision; particular case to determine whether an complies with all of the provisions of, (ii) The DAB does not review the ALJ NCD applies to a specific claim for and regulations issued under, title XVIII decision, and the party requests judicial benefits and, if so, whether the NCD has of the Act, as well as with HCFA review; Rulings, national coverage decisions, (iii) The decision is revised by the been applied correctly to the claim. (c) Review by Court. (1) A court’s and other policy statements, DAB or an ALJ in accordance with the review of an NCD is limited to whether instructions, and guides issued by provisions of § 405.750 of this chapter; the record is incomplete or otherwise HCFA. or 17. Section 405.853 is added to read (iv) The expedited appeals process is lacks adequate information to support as follows: used. the validity of the decision, unless the case has been remanded to the Secretary § 405.853 Expedited appeals process. 19. Section 405.856 is added to read as follows: to supplement the record regarding the (a) Conditions for use of expedited NCD. The court may not invalidate an appeals process (EAP). A party may use § 405.856 Departmental Appeals Board NCD except upon review of the the EAP set forth in § 405.718 of this (DAB) review. supplemented record. chapter to request court review in place Regulations beginning at 20 CFR (2) A Federal court may not hold of the ALJ hearing or Departmental 404.967 regarding SSA Appeals Council unlawful or set aside an NCD because it Appeals Board (DAB) review if the Review are applicable to DAB review of was not issued in accordance with the following conditions are met: matters addressed by this subpart. notice and comment procedures of the (1) The carrier hearing officer has 20. Section 405.857 is added to read Administrative Procedure Act (5 U.S.C. made a decision; an ALJ has made a as follows: 553) or section 1871(b) of the Act. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25855

(d) Remands—(1) Secretary’s action. § 473.46 Departmental Appeals Board (b) In paragraph (a), the words ‘‘final When a court remands an NCD matter (DAB) and judicial review. and’’ are removed. to the Secretary because the record in (a) The circumstances under which support of the NCD is incomplete or the DAB will review an ALJ hearing § 473.48 [Amended] otherwise lacks adequate information, decision or dismissal are the same as 9. a. In § 473.48, in paragraphs (a)(1) the Secretary remands the case to HCFA those set forth at 20 CFR 404.970, and (a)(2), the word ‘‘final’’ is removed in order to supplement the record. (‘‘Cases the Appeals Council will and ‘‘binding’’ is added in its place. (2) Remand to HCFA. HCFA review’’). b. In paragraph (b), the word ‘‘final’’ supplements the record with new or * * * * * is removed. updated evidence, including additional D. Technical Amendments. (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital information from other sources, and §§ 405.711, 405.712, 405.714, 405.715, may issue a revised NCD. Insurance; and Program No. 93.774, 405.716, 405.720, 405.722, 405.750, 405.807, Medicare—Supplementary Medical (3) Final Actions. (i) The proceedings 405.841, 405.871 [Amended] Insurance Program) to supplement the record, are expedited. 1. In §§ 405.711, 405.712, 405.714, Dated: March 7, 1997. (ii) When HCFA does not issue a 405.715, 405.716, 405.720, 405.722, Bruce C. Vladeck, revised NCD, it returns the 405.750(a), 405.807(b), and 405.871, the Administrator, Health Care Financing supplemented record to the court for following changes are made: Administration. a. The words ‘‘Social Security review. [FR Doc. 97–12263 Filed 5–9–97; 8:45 am] Administration’’ are removed wherever (iii) When HCFA issues a revised BILLING CODE 4120±01±P NCD, it forwards the case to an ALJ who they appear, and ‘‘SSA’’ is added in issues a new decision applying the their place. revised NCD to the facts of the claim(s) b. The words ‘‘Health Care Financing DEPARTMENT OF HEALTH AND under consideration. The ALJ’s decision Administration’’ are removed wherever HUMAN SERVICES is subject to DAB review and, they appear, and ‘‘HCFA’’ is added in ultimately, judicial review. their place. Health Care Financing Administration § 405.708, 405.812, 405.832, 405.842, Centers for Disease Control and PART 417ÐHEALTH MAINTENANCE 417.612, 417.626 [Amended] ORGANIZATIONS, COMPETITIVE Prevention 2. In §§ 405.708(a) and (b), 405.812, MEDICAL PLANS, AND HEALTH CARE 405.832(a), 405.842(b), 417.612(a) and PREPAYMENT PLANS 42 CFR Part 493 417.626 the word ‘‘final’’ or the words [HSQ±237±FC] B. Part 417 is amended as set forth ‘‘final and’’ are removed wherever they below: appear. RIN 0938±AH84 1. The authority citation for part 417 §§ 405.722, 405.747, 417.632 [Amended] Medicare, Medicaid, and CLIA continues to read as follows: 3. Sections 405.722, 405.747, and Programs; Clinical Laboratory Authority: Secs. 1102 and 1871 of the 417.632(b) are amended by removing RequirementsÐExtension of Certain Social Security Act (42 U.S.C. 1302 and the term ‘‘presiding officer’’ wherever it Effective Dates for Clinical Laboratory 1395hh), secs. 1301, 1306, and 1310 of the appears and adding, in its place, ‘‘ALJ’’. Requirements Under CLIA Public Health Service Act (42 U.S.C. 300e, 300e–5, and 300e–9); and 31 U.S.C. 9701. § 405.821 [Amended] AGENCY: Centers for Disease Control and 4. In § 405.821, paragraph (c), is Prevention (CDC) and Health Care 2. Section 417.634 is revised to read amended by removing the parenthetical Financing Administration (HCFA), as follows: phrase ‘‘(see § 405.801)’’. HHS. § 417.634 Departmental Appeals Board ACTION: Final rule with comment period. § 405.831 [Amended] (DAB) review. 5. In § 405.831, the heading is SUMMARY: This final rule extends certain Any party to the hearing, including amended by adding the words ‘‘at effective dates for clinical laboratory the HMO or CMP, who is dissatisfied carrier hearing’’ before the word ‘‘and’’. requirements in regulations published with the hearing decision, may request on February 28, 1992, and subsequently § 405.832 [Amended] the DAB to review the ALJ’s decision or revised December 6, 1994, that dismissal. Regulations beginning at 20 6. In § 405.832, paragraph (c)(1) is implemented provisions of the Clinical CFR 404.967 regarding SSA Appeals amended by removing the reference to Laboratory Improvement Amendments Council Review are applicable to DAB ‘‘section 1842(b)(3)(c)’’ and adding in its of 1988 (CLIA). This rule extends the review for matters addressed by this place, ‘‘section 1842(b)(3)(C)’’. phase-in date of the quality control subpart. § 405.841 [Amended] requirements applicable to moderate PART 473ÐRECONSIDERATIONS AND 7. In § 405.841, paragraph (b) is and high complexity tests and extends APPEALS amended by removing the parenthetical the date by which an individual with a reference ‘‘(see 20 CFR 404.958)’’ and doctoral degree must possess board C. Part 473 is amended as set forth adding in its place the parenthetical certification to qualify as a director of a below: reference ‘‘(see 20 CFR 404.988(b) and laboratory that performs high 1. The authority citation for part 473 404.989)’’. complexity testing. continues to read as follows: These effective dates are extended to § 473.38 [Amended] allow the Department additional time to Authority: Secs. 1102 and 1871 of the 8. In § 473.38 the following changes issue revised quality control Social Security Act (42 U.S.C. 1302 and requirements and to ensure laboratory 1395hh). are made: (a) The heading is amended by directors are able to complete 2. In § 473.46, paragraph (a) is revised removing the word ‘‘Finality’’ and certification requirements. These to read as follows: adding in its place ‘‘Effect’’. effective date extensions do not reduce 25856 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations the current requirements for quality test as Federal Depository Libraries and at Health and Human Services from performance. many other public and academic establishing the process to review DATES: These regulations are effective libraries throughout the country that manufacturers’ test system quality on May 12, 1997. receive the Federal Register. control instructions for CLIA Comment date: Comments will be This Federal Register document is compliance and the inability of many considered if we receive them at the also available from the Federal Register laboratory directors to complete appropriate address, as provided below, online database through GPO Access, a certification requirements within the no later than 5:00 p.m. on July 11, 1997. service of the U.S. Government Printing time period originally specified. Office. Free public access is available on ADDRESSES: Mail written comments (1 II. Revisions to the Regulations original and 3 copies) to the following a Wide Area Information Server (WAIS) address: Centers for Disease Control and through the Internet and via The date extensions provided by the Prevention, Department of Health and asynchronous dial-in. Internet users can December 6, 1994 rule have proven to Human Services, Attention: HSQ–237– access the database by using the World be inadequate for the reasons set forth FC, 4770 Buford Hwy., NE., MS F11, Wide Web; the Superintendent of below. In addition, based on our Atlanta, Georgia 30341–3724. Documents home page address is http:/ evaluation of comments submitted in If you prefer, you may deliver your /www.access.gpo.gov/suldocs/, by response to the December 6, 1994 rule written comments (1 original and 3 using local WAIS client software, or by and on advice from the Clinical copies) to the following addresses: telnet to swais.access.gpo.gov, then log Laboratory Improvement Advisory Room 309–G, Hubert H. Humphrey in as guest (no password required). Dial- Committee (CLIAC) concerning the Building, 200 Independence Avenue, in users should use communications quality control requirements SW., Washington, DC 20201, or software and modem to call (202) 512– appropriate to ensure quality testing and Room C5–09–26, Central Building, 7500 1661; type swais, then log in as guest the qualification requirements for Security Boulevard, Baltimore, MD (no password required). laboratory directors, we have found it 21244–1850. FOR FURTHER INFORMATION CONTACT: necessary to make the following Comments may also be submitted Rhonda S. Whalen (CDC), (770) 488– revisions to our regulations: • electronically to the following e-mail 7655. We are extending from September 1, 1996 to July 31, 1998 the current address: [email protected]. E-mail SUPPLEMENTARY INFORMATION: comments must include the full name phase-in quality control requirements and address of the sender. All I. Background for moderate and high complexity tests. comments must be incorporated in the On February 28, 1992, we published The phase-in quality control e-mail message because we may not be final regulations with an opportunity for requirements for unmodified, moderate able to access attachments. public comment in the Federal Register, complexity tests cleared by the Food Electronically submitted comments will at 57 FR 7002, setting forth the and Drug Administration (FDA) be available for public inspection at the requirements for laboratories that are (through 510(k) or premarket approval Independence Avenue address below. subject to the Clinical Laboratory processes, unrelated to CLIA), are less Because of staffing and resource Improvement Amendments of 1988 stringent than the requirements limitations, we cannot accept comments (CLIA). These regulations established applicable to high complexity and other by facsimile (FAX) transmission. In uniform requirements for all moderate complexity tests. commenting, please refer to file code laboratories regardless of location, size, • We are extending from September HSQ–237–FC. Written comments or type. In developing the regulations, 1, 1996 to July 31, 1998 the date for received timely will be available for we included requirements that would laboratories to meet certain CLIA quality public inspection as they are received, ensure the quality of laboratory services control requirements by following generally beginning approximately 3 and be in the best interest of the public manufacturers’ FDA CLIA-cleared test weeks after publication of a document, health. We recognized that a rule of this system instructions. in Room 309-G of the Department’s scope required time for laboratories to • We are extending from September offices at 200 Independence Avenue, understand and to implement the new 1, 1996 to July 31, 1998 the date by SW., Washington, DC, on Monday requirements. Therefore, certain which individuals with doctoral degrees through Friday of each week from 8:30 requirements were phased-in and given must obtain board certification to a.m. to 5:00 p.m. (phone: (202) 690– prospective effective dates. We also qualify as director of a laboratory that 7890). planned to address the comments we performs high complexity tests. Copies: To order copies of the Federal received on the February 28, 1992 rule These revisions are discussed in more Register containing this document, send and make modifications, if necessary, in detail below. your request to: New Orders, a subsequent final rule. A. Quality Control Requirements Superintendent of Documents, P.O. Box On December 6, 1994, we published 371954, Pittsburgh, PA 15250–7954. a final rule with opportunity for 42 CFR § 493.1202 contains the Specify the date of the issue requested comment in the Federal Register at 59 quality control requirements applicable and enclose a check or money order FR 62606. This revision to the February to moderate and high complexity tests payable to the Superintendent of 28, 1992 final rule included provisions and allows a laboratory that performs Documents, or enclose your Visa or that extended the phase-in of the quality tests of moderate complexity, using test Master Card number and expiration control requirements applicable to systems cleared by the FDA through the date. Credit card orders can also be moderate and high complexity tests and section 510(k) or premarket approval placed by calling the order desk at (202) the date by which an individual with a processes, until September 1, 1996 to 512–7800 (or toll free at 1–888–293– doctoral degree must possess board comply with the quality control 6498) or by faxing to (202) 512–2250. certification to qualify as a director of a provisions of part 493 subpart K by The cost for each copy is $8.00. As an laboratory that performs high meeting less stringent quality control alternative, you can view and complexity testing. These changes were requirements, as long as the laboratory photocopy the Federal Register made due to the resource constraints has not modified the instrument, kit, or document at most libraries designated that had prevented the Department of test system’s procedure. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25857

Section 493.1203, effective beginning to ensure that a laboratory director with the subjects and issues involved. This September 1, 1996, establishes a a doctoral degree had sufficient time to procedure can be waived, however, if an mechanism for laboratories using successfully complete the requirements agency finds good cause that a notice- commercial, unmodified tests to fulfill for board certification. and-comment procedure is certain quality control requirements by In 1992, we expected that an adequate impracticable, unnecessary, or contrary following manufacturers’ test system number of certification boards would to the public interest and incorporates a instructions that have been reviewed apply and be approved. On that basis, statement of the finding and its reasons and determined by the FDA to meet we required board certification by in the rule issued. applicable CLIA quality control September 1, 1994. This date was These revisions are essential, because requirements. Implementation of this extended to September 1, 1996 due to if these dates for quality control review process, however, depended much slower progress than anticipated. requirements are not extended, many upon the availability of sufficient While the Department has announced laboratories performing moderate additional resources necessary to meet the approval of two additional complexity testing will be faced the projected workload. certification boards in a Federal unnecessarily with meeting more Comments received on the February Register notice published July 8, 1996, stringent and burdensome quality 1992 final rule expressed opposition to at 61 FR 35762, additional requests for control requirements at a time when we the quality control phase-in provision. board approval are currently under are considering revisions to these same Following the publication of the review. We believe a further extension quality control requirements. Since we December 1994 final rule, we received of the September 1, 1996 date is in plan to publish revised quality control additional comments indicating order. requirements in future rulemaking, to continued concerns about the quality As stated previously in the preamble impose more stringent requirements control phase-in. A final rule addressing to the December 1994 final rule, a when these regulations are currently quality control issues raised by number of commenters on the February under review is unreasonable. With commenters on the February 1992 and 1992 final rule suggested that board respect to the personnel standards December 6, 1994 rules is still under certification not be a mandatory addressed in this rule, if the date for development. Therefore, we are requirement for currently employed board certification of individuals with extending the September 1, 1996 sunset individuals. In addition, CLIAC has doctoral degrees is not extended, those date for quality control standards in suggested, and we are still considering, individuals qualified as laboratory § 493.1202 to July 31, 1998 and the development of alternative extending the effective date for provisions to qualify currently directors through their doctoral degree § 493.1203 from September 1, 1996 to employed individuals with a doctoral and certification by a board currently July 31, 1998 to allow laboratories to degree on the basis of laboratory under review by us could be continue to meet current regulations training or experience, in lieu of disenfranchised until they have an until we make further determinations requiring board certification. opportunity to be certified by an regarding these requirements. To assist We are extending the date by which approved board. Although these us in determining the types of quality an individual with a doctoral degree directors have shown competency control requirements necessary to must possess board certification to through certification by a professional monitor laboratory test performance, we qualify as a director of a laboratory that board, we have not yet completed our have solicited advice from the CLIAC performs high complexity testing to July review of all boards that have applied. and, in addition, we held a two-day 31, 1998. This extension will allow time Extending the date under these public meeting in September 1996 for for the approval of additional boards, regulations governing laboratory manufacturers and others to make and to remove the inadvertent director requirements will provide the presentations on quality control. disqualification of doctoral-degreed opportunity for completion of these We recognize that these revisions may individuals with laboratory training and reviews without forcing the removal of have substantive implications for those experience as high complexity individuals who have already shown laboratories performing only laboratory directors. Between the their ability to fulfill the tasks we ask of unmodified, moderate complexity present time and the July 1998 date, we laboratory directors. Accordingly, we testing previously cleared through the will review the qualifications required believe that it is impracticable, FDA’s section 510(k) or premarket for laboratory directors to ensure that unnecessary, and not in the public approval processes. We are, therefore, they are appropriate and determine interest to engage in proposed maintaining the provisions for these whether modifications should be made rulemaking and believe there is good tests, as listed in § 493.1202(c), until for inclusion in the final rule being cause for doing so and to issue this final July 31, 1998. We expect to revise the developed to address other CLIA issues rule with a 60-day comment period. existing quality control regulations by raised by commenters on the February Also, because the September 1, 1996 this date. 1992 final rule. date has caused these regulations to In summary, we are extending the expire, additional urgency has been B. Laboratory Director Qualifications phase-in period in § 493.1443(b)(3) from placed on the implementation of this Section 493.1443(b)(3) provides that a September 1, 1996 to July 31, 1998. rule. We, therefore, believe there is good director of a laboratory performing high cause to waive a delay in the effective complexity testing, who has an earned III. Waiver of Proposed Rulemaking date of these rules. To do otherwise doctoral degree in chemical, physical, and Delayed Effective Date would create unnecessary confusion biological, or clinical laboratory science We ordinarily publish a notice of among laboratories in understanding the from an accredited institution, must be proposed rulemaking in the Federal requirements they must meet with certified by a board recognized by the Register and invite public comment on respect to quality control and laboratory Department as of September 1, 1996. proposed rules. The notice of proposed director qualifications. It could also The phase-in, revised from 2 to 4 years, rulemaking includes a reference to the impose unnecessary burdens on was designed to allow the Department legal authority under which the rule is laboratories and hardships on adequate time to review requests for proposed, and the terms and substance individuals affected by these approval of certification programs and of the proposed rule or a description of requirements. 25858 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

IV. Regulatory Impact Statement and, if we proceed with a subsequent FEDERAL EMERGENCY Consistent with the Regulatory document, we will respond to the MANAGEMENT AGENCY Flexibility Act (RFA) (5 U.S.C. 601 comments in the preamble to that 44 CFR Part 67 through 612), we prepare a regulatory document. flexibility analysis unless we certify that List of Subjects in 42 CFR Part 493 Final Flood Elevation Determinations a rule will not have a significant economic impact on a substantial Grant programs—health, Health AGENCY: Federal Emergency number of small entities. For purposes facilities, Laboratories, Medicaid, Management Agency (FEMA). of the RFA, all laboratories are Medicare, Reporting and recordkeeping ACTION: Final rule. considered to be small entities. requirements. SUMMARY: Base (1% annual chance) Individuals and states are not included 42 CFR chapter IV is amended as flood elevations and modified base in the definition of a small entity. follows: In addition, section 1102(b) of the Act flood elevations are made final for the requires us to prepare a regulatory PART 493ÐLABORATORY communities listed below. The base impact analysis if a rule may have a REQUIREMENTS flood elevations and modified base significant impact on the operations of flood elevations are the basis for the a substantial number of small rural 1. The authority citation for part 493 floodplain management measures that hospitals. That analysis must conform to is revised to read as follows: each community is required either to the provisions of section 604 of the adopt or to show evidence of being Authority: Sec. 353 of the Public Health already in effect in order to qualify or RFA. For purposes of section 1102(b) of Service Act, secs. 1102, 1861(e), and the the Act, we define a small rural hospital sentence following sections 1861(s)(11) remain qualified for participation in the as a hospital that is located outside of through 1861(s)(16) of the Social Security Act National Flood Insurance Program a Metropolitan Statistical Area and has (42 U.S.C. 263a, 1302, 1395x(e), and the (NFIP). fewer than 50 beds. sentence following 1395x(s)(11) through EFFECTIVE DATE: The date of issuance of Extending the phase-in periods will 1395x(s)(16)). the Flood Insurance Rate Map (FIRM) continue the quality control showing base flood elevations and § 493.1202 [Amended] requirements in effect prior to modified base flood elevations for each September 1, 1996, allow additional 2. In § 493.1202, in the section community. This date may be obtained time to make further determinations heading, remove ‘‘September 1, 1996.’’ by contacting the office where the FIRM regarding revision to the quality control and add in its place ‘‘July 31, 1998.’’. is available for inspection as indicated requirements, and not change costs, in the table below. § 493.1203 [Amended] savings, burden, or opportunities to ADDRESSES: The final base flood manufacturers, laboratories, individuals 3. In § 493.1203, in the section elevations for each community are administering tests, or patients receiving heading, remove ‘‘September 1, 1996.’’ available for inspection at the office of the tests. and add in its place ‘‘July 31, 1998.’’. the Chief Executive Officer of each For these reasons, we have community. The respective addresses determined, and the Secretary certifies, § 493.1443 [Amended] are listed in the table below. that this regulation does not result in a 4. Section 493.1443 is amended as set significant impact on a substantial FOR FURTHER INFORMATION CONTACT: forth below: number of small entities and does not Frederick H. Sharrocks, Jr., Chief, have a significant effect on the a. In § 493.1443(b)(3)(ii) introductory Hazard Identification Branch, Mitigation operations of a substantial number of text, remove ‘‘September 1, 1996,’’ and Directorate, 500 C Street SW., small rural hospitals. Therefore, we are add in its place ‘‘July 31, 1998,’’. Washington, DC 20472, (202) 646–2796. not preparing analyses for either the b. In § 493.1443(b)(3)(ii)(C), remove SUPPLEMENTARY INFORMATION: The RFA or section 1102(b) of the Act ‘‘September 1, 1996,’’ and add in its Federal Emergency Management Agency because we have determined, and we place ‘‘July 31, 1998,’’. makes final determinations listed below certify, that this rule will not have a of base flood elevations and modified (Catalog of Federal Domestic Assistance significant economic impact on a base flood elevations for each Program No. 93.778, Medical Assistance community listed. The proposed base substantial number of small entities or Program; Catalog of Federal Domestic a significant impact on the operations of Assistance Program No. 93.773, Medicare— flood elevations and proposed modified a substantial number of small rural Hospital Insurance; and Program No. 93.774, base flood elevations were published in hospitals. Medicare—Supplementary Medical newspapers of local circulation and an In accordance with the provisions of Insurance Program) opportunity for the community or Executive Order 12866, this regulation Dated: December 17, 1996. individuals to appeal the proposed was reviewed by the Office of David Satcher, determinations to or through the community was provided for a period of Management and Budget. Director, Centers for Disease Control and Prevention. ninety (90) days. The proposed base V. Response to Comments flood elevations and proposed modified Because of the large number of items Dated: December 20, 1996. base flood elevations were also of correspondence we normally receive Bruce C. Vladeck, published in the Federal Register. on Federal Register documents Administrator, Health Care Financing This final rule is issued in accordance published for comment, we are not able Administration. with Section 110 of the Flood Disaster to acknowledge or respond to them Protection Act of 1973, 42 U.S.C. 4104, individually. However, we will consider Dated: January 28, 1997. and 44 CFR Part 67. all comments we receive on the date Donna E. Shalala, FEMA has developed criteria for extensions described in this rule by the Secretary. floodplain management in floodprone date and time specified in the [FR Doc. 97–12271 Filed 5–9–97; 8:45 am] areas in accordance with 44 CFR Part ADDRESSES section of this preamble, BILLING CODE 4120±01±P 60. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25859

Interested lessees and owners of real #Depth in #Depth in property are encouraged to review the feet above feet above proof Flood Insurance Study and FIRM ground. ground. Source of flooding and location *Elevation Source of flooding and location *Elevation available at the address cited below for in feet in feet each community. (NGVD). (NGVD). The base flood elevations and modified base flood elevations are made ARIZONA ÐÐÐ final in the communities listed below. Santa Cruz County (Unincor- Elevations at selected locations in each Apache County (Unincor- porated Areas) (FEMA community are shown. porated Areas) (FEMA Docket No. 7188) Docket No. 7198) Santa Cruz River: National Environmental Policy Act Nutrioso Creek: At Santa Cruz-Pima County This rule is categorically excluded At Nelson Reservoir ...... *7,416 limits ...... *3,029 from the requirements of 44 CFR Part At confluence of Milk Creek At confluence with Sopori (limit of detailed study) ...... *7,777 Wash ...... *3,035 10, Environmental Consideration. No Colter Creek: environmental impact assessment has Approximately 600 feet up- At County Road 2112 ...... *7,595 stream of confluence with been prepared. Approximately 10,800 feet up- Sopori Wash ...... *3,037 Regulatory Flexibility Act stream of County Road 2112 *7,772 Approximately 800 feet down- Maps are available for inspec- stream of convergence with The Executive Associate Director for tion at 75 West Cleveland, St. flow east of Southern Pacific Mitigation certifies that this rule is Johns, Arizona. Railroad ...... *3,040 exempt from the requirements of the ÐÐÐ At convergence with flow east Regulatory Flexibility Act because final Pima County (Unincorporated of Southern Pacific Railroad *3,042 or modified base flood elevations are Areas) (FEMA Docket No. Sopori Wash: required by the Flood Disaster 7181) At confluence with Santa Cruz Protection Act of 1973, 42 U.S.C. 4104, River ...... *3,036 Santa Cruz River: Approximately 250 feet up- and are required to establish and Just upstream of Pima Mine stream of Santa Cruz River *3,036 maintain community eligibility in the Road ...... *2,668 Approximately 530 feet up- NFIP. No regulatory flexibility analysis 4,650 feet upstream of Pima stream of Santa Cruz River *3,036 has been prepared. Mine Road ...... *2,673 Maps are available for inspec- 3,850 feet downstream of tion at the Santa Cruz County Regulatory Classification Sahura Rita Road ...... *2,698 Flood Control District and This final rule is not a significant Just upstream of Sahura Rita Flood Plain Administration, regulatory action under the criteria of Road ...... *2,711 2150 North Congress Drive, 1,870 feet upstream of Sahura Nogales, Arizona. Section 3(f) of Executive Order 12866 of Rita Road ...... *2,716 ÐÐÐ September 30, 1993, Regulatory 3,350 feet downstream of U.S. Planning and Review, 58 FR 51735. Highway 89 ...... *2,741 Tucson (City), Pima County (FEMA Docket No. 7198) Executive Order 12612, Federalism Just upstream of U.S. Highway 89 ...... *2,751 Anklam Wash: This rule involves no policies that 1,770 feet upstream of U.S. Approximately 2,750 feet up- have federalism implications under Highway 89 ...... *2,758 stream of confluence with Executive Order 12612, Federalism, 11,270 feet upstream of U.S. Silvercroft Wash ...... *2,345 dated October 26, 1987. Highway 89 ...... *2,790 At Greasewood Road ...... *2,398 5,010 feet downstream of Con- ``A'' Wash: Executive Order 12778, Civil Justice tinental Road ...... *2,829 Approximately 750 feet up- Reform 370 feet upstream of Continen- stream of confluence with tal Road ...... *2,850 Anklam Wash ...... *2,357 This rule meets the applicable 7,340 feet upstream of Con- Approximately 2,000 feet up- standards of Section 2(b)(2) of Executive tinental Road ...... *2,869 stream of confluence with Order 12778. 12,410 feet upstream of Con- Anklam Wash ...... *2,379 Maps are available for inspec- List of Subjects in 44 CFR Part 67 tinental Road ...... *2,888 21,540 feet upstream of Con- tion at the Tucson City Engi- Administrative practice and tinental Road ...... *2,924 neer's Office, County-City Pub- procedure, Flood insurance, Reporting 19,800 feet downstream of lic Works Building, 201 North and recordkeeping requirements. Pima County-Santa Cruz Stone Avenue, Third Floor, Tucson, Arizona. Accordingly, 44 CFR Part 67 is County corporate limits ...... *2,960 7,128 feet downstream of Pima amended to read as follows: County-Santa Cruz County CALIFORNIA PART 67Ð[AMENDED] corporate limits ...... *3,004 500 feet downstream of Pima Alameda County (Unincor- 1. The authority citation for Part 67 County-Santa Cruz County porated Areas) (FEMA Docket No. 7188) continues to read as follows: corporate limits ...... *3,029 Just downstream of Pima Arroyo Mocho: Authority: 42 U.S.C. 4001 et seq.; County-Santa Cruz County At corporate limit with City of Reorganization Plan No. 3 of 1978, 3 CFR, corporate limits ...... *3,030 Pleasanton (500 feet up- 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Maps are available for inspec- stream of confluence of Ar- 3 CFR, 1979 Comp., p. 376. tion at the Pima County De- royo Las Positas) ...... *351 partment of Transportation and Just upstream of El Charro § 67.11 [Amended] Flood Control District, Public Road ...... *357 2. The tables published under the Works Building, 201 North Arroyo Las Positas: authority of § 67.11 are amended as Stone Avenue, Tucson, Ari- At confluence with Arroyo follows: zona. Mocho ...... *345 25860 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

#Depth in #Depth in #Depth in feet above feet above feet above ground. ground. ground. Source of flooding and location *Elevation Source of flooding and location *Elevation Source of flooding and location *Elevation in feet in feet in feet (NGVD). (NGVD). (NGVD).

Just downstream of El Charro ÐÐÐ Approximately 150 feet down- Road ...... *355 Madera County (Unincor- stream of Seventh Street ..... *248 Collier Canyon Creek: porated Areas) (FEMA Just downstream of 12th Street *267 # At confluence of Collier Can- Docket No. 7206) At Garcia Street ...... 3 Profile Base Line No. 3: yon Tributary at Las Positas Fresno River: College Road ...... *443 Approximately 400 feet down- Just upstream of State High- stream of Orchard Street ..... None Approximately 5,000 feet up- way 41 ...... *2,253 stream of Las Positas Col- Approximately 200 feet up- Approximately 1,100 feet up- stream of Gatewood Lane ... None lege Road ...... *490 stream of Road 426 ...... *2,262 Collier Canyon Tributary: Maps for the City of Santa China Creek: Paula are available for in- Approximately 1,000 feet up- Approximately 500 feet up- spection at 200 South Tenth, stream of confluence with stream of confluence with Santa Paula, California, and Collier Canyon Creek ...... *455 Fresno River ...... *2,256 for the unincorporated areas of Approximately 500 feet south Approximately 4,160 feet up- Ventura County at 800 South of bend in Hartman Road .... *534 stream of Road 425±B ...... *2,363 Victoria Avenue, Ventura, Cali- Maps are available for inspec- Oak Creek: fornia. tion at the Alameda County At confluence with Fresno ÐÐÐ Public Works Agency, 399 River ...... *2,262 Simi Valley (City), Ventura Elmhurst Street, Hayward, Just upstream of Road 428 ..... *2,342 California. County (FEMA Docket No. Oak Creek Tributary: 7194) ÐÐÐ Approximately 500 feet up- Arroyo Simi: Dublin (City), Alameda County stream of confluence with Oak Creek ...... *2,310 Approximately 2,800 feet (FEMA Docket No. 7188) downstream of Madera Road *680 Approximately 1,100 feet up- Dublin Creek: Approximately 4,450 feet up- stream of confluence with stream of Rockingham Drive *1,118 Just west of I±580 and I±680 Oak Creek ...... *2,315 At intersection of Tierra Rejada Interchange ...... *332 Maps are available for inspec- and Madera Roads ...... #2 Just upstream of Donlon Way *380 tion at the Madera County De- At intersection of Moreland and Approximately 1,000 feet up- partment of Engineering and Madera Roads ...... #3 stream of Donlon Way ...... *382 General Service, 135 West Yo- At intersection of Los Angeles Line J±1: semite Avenue, Madera, Cali- Avenue and Sinaloa Road ... #1 At confluence with Alamo fornia. Canal ...... *328 At intersection of Royal Ave- ÐÐÐ nue and Fourth Street ...... #2 Approximately 300 feet up- Modoc County (Unincor- Bus Canyon:. stream of Bellina Street ...... *405 porated Areas) (FEMA Approximately 350 feet down- Line J±3: Docket No. 7206) stream of Los Angeles Ave- At confluence with Line J±1 nue ...... *746 (just north of Amador Valley Bidwell Creek: Approximately 2,300 feet Approximately 225 feet up- Boulevard) ...... *339 stream of Bennet Street ...... *836 Just upstream of Silvergate downstream of Fee Street ... *4,497 ÐÐÐ Drive ...... *420 Approximately 1,800 feet up- stream of North Street ...... *4,595 Line J±4: Bus Canyon Tributary: Maps are available for inspec- At Village Court ...... *781 At confluence with Line J±3 .... *359 tion at the Modoc County Approximately 2,000 feet up- At Silvergate Drive (extended) *362 Planning Department, 202 stream of Dakin Avenue ...... *809 Line J±5: West Fourth Street, Alturas, At Fourth Street ...... #2 Just west of Ramon Road ...... *386 California. Dry Canyon: Maps are available for inspec- ÐÐÐ At confluence with Arroyo Simi *832 tion at the City of Dublin Build- Approximately 1,150 feet up- Santa Paula (City) and Ven- ing Department, City Hall, 100 stream of Alamo Street ...... *1,012 tura County (Unincor- Civic Plaza, Dublin, California. Erringer Creek: porated Areas) (FEMA At Erringer Road ...... *821 ÐÐÐ Docket No. 7206) Livermore (City), Alameda Approximately 1,600 feet up- Santa Paula Creek: stream of Fitzgerald Road ... *862 County (FEMA Docket No. At Southern Pacific Railroad 7188) Las Llajas Canyon: (SPRR) ...... *319 At confluence with Arroyo Simi *966 Collier Canyon Creek: Approximately 4,500 feet up- Approximately 11,100 feet up- Just north of Interstate 580 stream of SPRR ...... *400 stream of Alamo Street ...... *1,141 frontage road ...... *412 Approximately 3,500 feet North Simi Drain: Just downstream of Collier downstream of Rafferty At confluence with Arroyo Simi *743 Canyon Road ...... *437 Road ...... *536 Approximately 300 feet up- At confluence of Collier Can- Profile Base Line No. 1: stream of Simi Valley Free- yon Tributary ...... *443 Approximately 550 feet down- way ...... *902 Maps are available for inspec- stream of Say Road ...... None Tapo Canyon: tion at the City of Livermore Approximately 2,450 feet up- At confluence with Arroyo Simi *860 Planning Department, 1052 stream of Hawthorne Street None Approximately 700 feet up- South Livermore Avenue, Profile Base Line No. 2: stream of Simi Valley Free- Livermore, California. At Outer Drive ...... *240 way ...... *995 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25861

#Depth in #Depth in #Depth in feet above feet above feet above ground. ground. ground. Source of flooding and location *Elevation Source of flooding and location *Elevation Source of flooding and location *Elevation in feet in feet in feet (NGVD). (NGVD). (NGVD).

White Oak Creek: Approximately 14,000 feet up- Approximately 250 feet down- At Simi Valley Freeway ...... *1,081 stream of State Highway 96 *1,648 stream of Sugar House Approximately 960 feet up- Surprise Creek: Road ...... *72 stream of Simi Valley Free- Approximately 600 feet down- Bayou Boeuf: way ...... *1,103 stream of American Road .... *1,662 At Interstate Highway 49 ...... *71 Arroyo Simi Overflow North of Just downstream of Taylor Approximately 1,000 feet SPRR: Street ...... *1,672 downstream of State High- At confluence with Las Llajas Salt Creek: way 488 ...... *74 Canyon ...... *978 Approximately 3,000 feet Approximately 1,600 feet Approximately 2,300 feet up- downstream of American downstream of Massina stream of confluence with Road ...... *1,655 Road ...... *80 Bayou Rapides Diversion Chan- Las Llajas Canyon ...... *986 Just downstream of American nel: Maps are available for inspec- Road ...... *1,666 tion at the City of Simi Valley At confluence with Bayou Maps are available for inspec- Public Works Department, Boeuf ...... *71 tion at the Rice County Court- 2929 Tapo Canyon Road, Simi At State Highway 488 ...... *72 house, 101 West Commercial, Valley, California. Approximately 7,000 feet Lyons, Kansas. downstream of State High- KANSAS ÐÐÐ way 28 ...... *73 Sterling (City), Rice County Bayou Rapides: Finney County (Unincor- (FEMA Docket No. 7206) At U.S. Highway 1 (Bolton Av- porated Areas) (FEMA enue) ...... *80 Arkansas River: Docket No. 7206) At confluence of Irish Ditch No. At Highway 96 ...... *1,637 Arkansas River: 2 ...... *81 Approximately 7,000 feet up- Approximately 2,500 feet Approximately 11,100 feet stream of Highway 96 ...... *1,642 downstream of confluence of downstream of Robinson Maps are available for inspec- Road ...... *82 Ditch No. 1 ...... *2799 tion at the City of Sterling City Approximately 5,000 feet up- Approximately 5,000 feet Hall, 114 North Broadway, downstream of Cooper Road *83 stream of Main Street ...... *2,890 Sterling, Kansas. Maps are available for inspec- Irish Ditch No. 2: At State Highway 498 ...... *81 tion at the Finney County LOUISIANA Courthouse, 425 North Eighth Approximately 500 feet down- Street, Garden City, Kansas. stream of Chapel Road ...... *82 Alexandria (City), Rapides Approximately 250 feet down- ÐÐÐ Parish (FEMA Docket No. 7166) stream of Harold Miles Park Garden City (City), Finney Bayou Rapides: Road ...... *83 County (FEMA Docket No. At Bolton Avenue (Route 1) .... *80 Big Bayou: 7206) Approximately 3,100 feet Approximately 2,500 feet Arkansas River: downstream of Plantation downstream of Jimmy Brown Approximately 3,700 feet Road ...... *81 Road ...... *83 downstream of U.S. Highway Irish Ditch No. 2: At confluence of Saline Bayou 83 ...... *2,829 At Airbase Road ...... *82 and Bayou Bertrand ...... *83 Approximately 6,000 feet up- At confluence of Big Bayou ..... *83 ÐÐÐ stream of U.S. Highway 83 .. *2,841 Big Bayou: Flagon Bayou: Maps are available for inspec- Approximately 5,200 feet up- Just downstream of Kansas tion at the City of Garden City stream of confluence with City Southern Railroad ...... *141 Administration Center, 301 Irish Ditch No. 2 ...... *83 Approximately 740 feet up- North Eighth Street, Garden Bayou Rapides Diversion Chan- stream of Hooper Road ...... *146 City, Kansas. nel: Approximately 4,200 feet up- ÐÐÐ At Dixie Lane extended ...... *71 stream of Hooper Road at Holcomb (City), Finney County Just downstream of Bayou Grant-Rapides Parish line .... *151 (FEMA Docket No. 7206) Rapides Road ...... *74 Big Creek: Arkansas River: Maps are available for inspec- At State Highway 115 ...... *62 At downstream corporate limit tion at the City of Alexandria Cainey Creek: (adjacent to Nunn Drive) ...... *2,873 Utility Building, 1546 Jackson At State Highway 1206 ...... *62 At upstream corporate limit ..... *2,885 Street, Second Floor, Alexan- Maps are available for inspec- Maps are available for inspec- dria, Louisiana. tion at the Rapides Parish tion at the City of Holcomb ÐÐÐ Planning Commission, 5610 City Hall, 200 North Lynch, East Coliseum Boulevard, Al- Rapides Parish (Unincor- exandria, Louisiana. Holcomb, Kansas. porated Areas) (FEMA ÐÐÐ Docket No. 7166) NEBRASKA Rice County (Unincorporated Chatlin Lake Canal: Areas) (FEMA Docket No. At Chaneyville-Echo Road ...... *58 Bayard (City), Morrill County 7206) Just upstream of State High- (FEMA Docket No. 7206) Arkansas River: way 457 ...... *63 Wildhorse Drain: Approximately 7,500 feet Approximately 2,200 feet Just upstream of Main Street .. *3,755 downstream of State High- downstream of State High- Just downstream of Eighth way 96 ...... *1,627 way 3170 ...... *67 Street ...... *3,762 25862 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

#Depth in #Depth in Federal Register with a request for feet above feet above comments. Source of flooding and location ground. Source of flooding and location ground. The interim rule was based, in part, *Elevation *Elevation on a prior version of 45 CFR part 1609, in feet in feet (NGVD). (NGVD). which included the Corporation’s regulations dealing with attorneys’ fees Maps are available for inspec- Approximately 200 feet up- in relation to fee-generating cases. The tion at the City of Bayard City stream of FM Road 3101 ..... *1,460 Corporation decided to treat fee- Hall, 445 Main Street, Bayard, South Fork Leon River: generating cases and attorneys’ fees in Nebraska. Approximately 100 feet down- two separate rules. Revisions to the stream of Bassett Street ...... *1,442 Corporation’s fee-generating rule (part NEW MEXICO Approximately 3,200 feet up- 1609) were published in a proposed rule stream of Bassett Street ...... *1,443 Chama (Village), Rio Arriba Maps are available for inspec- and provisions implementing the new County (FEMA Docket No. tion at 416 South Seaman restriction on attorneys’ fees (part 1642) 7198) Street, Eastland, Texas. were published as an interim rule on Rio Chama: August 29, 1996. A final version of the Approximately 5,000 feet (Catalog of Federal Domestic Assistance No. fee-generating rule (part 1609) was downstream of State High- 83.100, ‘‘Flood Insurance’’) published on April 21, 1997 (62 FR way 17 ...... *7,717 Dated: April 23, 1997. 19398). Approximately 700 feet up- Richard W. Krimm, The Corporation received 37 timely stream of Cumbers Toltec comments on the interim attorneys’ fees Railroad ...... *7,883 Executive Associate Director, Mitigation Directorate. rule and the Committee held public Rio Chamita: hearings on the rule on December 13, Approximately 2,200 feet [FR Doc. 97–12369 Filed 5–9–97; 8:45 am] 1996, and March 7, 1997. The downstream of State High- BILLING CODE 6718±04±P way 64 ...... *7,764 Committee made several revisions to the Approximately 2,100 feet up- interim rule before recommending the stream of Escondido Road .. *7,864 final rule to the Board. The Board Maps are available for inspec- LEGAL SERVICES CORPORATION adopted the Committee’s recommended tion at the Village of Chama 45 CFR Part 1642 version on March 8, 1997. Village Hall, 299 Fourth Street, The Corporation’s FY 1997 Chama, New Mexico. Attorneys' Fees appropriations act became effective on ÐÐÐ October 1, 1996, see Public Law 104– Rio Arriba County (Unincor- AGENCY: Legal Services Corporation. 208, 110 Stat. 3009. It incorporated by porated Areas) (FEMA ACTION: Final rule. reference the § 504 condition on LSC Docket No. 7198) grants included in the FY 1996 Rio Chama: SUMMARY: This final rule implements a appropriations act implemented by this Approximately 3,000 feet restriction in the Legal Services rule. Accordingly, the preamble and text downstream of County Road Corporation’s FY 1996 appropriations of this rule continue to refer to the 343 ...... *7,640 act that is currently incorporated by applicable section number of the FY Approximately 5,300 feet up- reference in the Corporation’s FY 1997 1996 appropriations act. stream of State Highway 17 *7,925 appropriations act that prohibits LSC Rio Chamita: A section-by-section discussion of At confluence with Rio Chama *7,678 recipients from seeking attorneys’ fees this final rule is provided below. in cases filed on or after April 26, 1996. Approximately 8,800 feet up- Section 1642.1 Purpose stream of Escondido Road .. *7,912 The rule clarifies the meaning of Maps are available for inspec- attorneys’ fees and provides guidance The purpose of this rule is to ensure tion at 810 North Riverside on the scope of the restriction. that LSC recipients and their employees Drive, Espanola, New Mexico. DATES: This final rule is effective on do not seek or retain attorneys’ fees June 11, 1997. awarded pursuant to Federal or State TEXAS law, including common law, permitting FOR FURTHER INFORMATION CONTACT: or requiring such fees. Eastland (City), Eastland Office of the General Counsel, (202) County (FEMA Docket No. 336–8817. Section 1642.2 Definitions 7198) SUPPLEMENTARY INFORMATION: On May This section first defines what is and North Fork Leon River: 19, 1996, the Operations and what is not included in the term At confluence with Tributary 1 *1,434 Approximately 600 feet up- Regulations Committee (‘‘Committee’’) ‘‘attorneys’ fees.’’ The definition of stream of confluence with of the Legal Services Corporation attorneys’ fees elicited much public Tributary 3 ...... *1,440 (‘‘LSC’’ or ‘‘the Corporation’’) Board of comment, mostly on the issue of Tributary 1: Directors (‘‘Board’’) requested the LSC whether Social Security fees should be At confluence with North Fork staff to prepare an interim rule to included. Strongly divergent views were Leon River ...... *1,434 implement section 504(a)(13) of the held by the commenters and there was Approximately 1,400 feet up- Corporation’s FY 1996 appropriations no consistent pattern among types of stream of U.S. Highway 80 .. *1,439 act, Public Law 104–134, 110 Stat. 1321 commenters, which generally included Tributary 2: (1996), prohibiting LSC recipients and private attorneys, legal services At confluence with North Fork Leon River ...... *1,435 their employees from claiming, or programs and bar associations. Some Approximately 5,200 feet up- collecting and retaining attorneys’ fees. argued that the statutory restriction was stream of Missouri Pacific The Committee held hearings on July 10 not intended to apply to attorneys’ fees Railroad ...... *1,461 and 19, and the Board adopted an in Social Security cases, because such Tributary 3: interim rule on July 20, which was fees are paid pursuant to an agreement At confluence with North Fork published on August 29, 1996, in the by the client to pay the fees out of the Leon River ...... *1,439 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25863 client’s back benefits and are not agreement with the attorney, there is Finally, paragraph (c)(4) clarifies that awarded by a court or administrative often oversight by the courts. For reimbursement of costs and expenses agency. They also stated that allowing example, in one Social Security case, a from an opposing party or from a client recipients to take such fees would court found that ‘‘the Court is not as permitted under § 1642.6 of this part provide additional funding for required to give ‘blind deference’ to a does not constitute attorneys’ fees. This financially strapped programs to contractual fee agreement and must provision was removed from provide more representation to the poor. ultimately be responsible for fixing a § 1642.3(c)(4) of the interim rule and Commenters who opposed allowing reasonable fee for the judicial phase of revised to cite § 1642.6. Fees are recipients to take Social Security fees the proceedings.’’ Kimball v. Shalala, compensation for an attorney’s time, stated that legal services clients should 826 F. Supp. 573 (D. Maine 1993). Other while costs and expenses are never have to pay any fee for their legal courts have determined that attorneys compensation for necessary outlays representation, especially out of their would not be permitted to receive the made in the course of preparation for back benefits. Others claimed that full 25 percent contingency fee allowed and/or litigation of a case. Some private attorneys would be unwilling or under the Social Security Act if the common types of costs and expenses reluctant to be part of a recipient’s attorney engaged in improper conduct are: document copying costs, travel Private Attorney Involvement (‘‘PAI’’) or was ineffective or the attorney would expenses such as airline tickets, court project for little or no fee if the program enjoy an undeserved windfall due to the reporter fees and other costs of started taking fees from their client’s client’s large back pay award or the depositions, expert witness fees, filing back benefits. attorney’s relatively minimal effort. fees and other court costs charged The Corporation did not include Hayes v. HHS, 916 F.2d 351 (6th Cir. litigants by the courts. Social Security fees in the interim rule’s 1990). Regardless of the scope of Court Based on experience in implementing definition because it was not clear to the involvement in any particular the interim rule, Corporation staff Corporation whether Congress intended agreement between a client and the recommended including in the final such fees to be included. However, the attorney, the Corporation is persuaded rule guidance on what it means to Corporation did seek comment on the that it is reasonable to interpret the ‘‘claim’’ attorneys’ fees. The Board issue and warned recipients in the statutory language as including social agreed and added a definition to clarify preamble to the interim rule that such security fees and that is what Congress that to ‘‘claim’’ attorneys’’ fees means to fees might be included in the final rule. intended. include a request for attorneys’ fees in After holding public hearings on both The final definition also continues to any pleading. the legal and policy implications of include fee-shifting fees, which are fees Section 1642.3 Prohibition including Social Security fees within paid by the losing party to compensate the definition, a reconsideration of the This section states the restriction on the attorney of the prevailing party. attorneys’ fees contained in Section legal arguments convinced the Board Such fees are generally awarded that Section 504(a)(13) was intended to 504(a)(13), which prohibits LSC pursuant to a fee-shifting statute or recipients from claiming, or collecting include Social Security fees. under common law. The accompanying The statutory restriction is on and retaining attorneys’ fees in any definition of ‘‘award’’ in this section is ‘‘attorneys’ fees pursuant to any Federal cases. This rule uses the term ‘‘cases’’ intended to underscore this meaning. or State law permitting or requiring the and does not refer to ‘‘matters,’’ as does The Board also decided to define in awarding of such fees.’’ Payment to an the underlying statute, because a new paragraph (c) what is not attorney from back Social Security attorneys’’ fees may only be derived included in the definition of attorneys’ benefits is expressly permitted by from cases. The interim rule included fees. Paragraph (c)(1) includes a Federal statute. Comments argued that additional provisions in this section provision that was moved from the such fees do not fall within the term, which provided exceptions and prohibition section in the interim rule because they are not ‘‘awarded’’ to the provisions explaining situations where (§ 1642.3(c)(2)), which clarifies that attorney; rather, they are paid pursuant the prohibition does not apply. All of compensation pursuant to court to an agreement between the attorney those provisions have been moved to appointments, as authorized by 42 and client. This is true in part. Such fees either § 1642.2 or § 1642.4 of this part. U.S.C. 2996e(d)(6) of the LSC Act, does are usually the result of a contingency not constitute attorneys’ fees. Section 1642.4 Applicability of fee agreement between the client and Restriction on Attorneys’ Fees the attorney. However, courts often Paragraph (c)(2) is a new provision oversee the agreement and sometimes which states that a payment by a Paragraph (a) provides that this part’s are involved in determining whether to governmental agency or other third prohibition does not apply to cases filed allow such fees to go to the attorney in party to a recipient to represent clients prior to April 26, 1996. For such cases, a particular situation. The Social is not an attorneys’ fee. Such payments recipients may file claims for attorneys’ Security Act in section 406(b)(1) are generally made under a grant or fees but are not allowed to accept fees provides in part that: contract and do not consist of an award for work done in connection with any ordered by a court or administrative new claims filed in pre-existing cases Whenever a court renders a judgment party that the unsuccessful party pay after April 26, 1996. This paragraph is favorable to a claimant under this subchapter attorneys’ fees to the prevailing party. who was represented before the Court by an authorized by the appropriations attorney, the Court may determine and allow Nor do they constitute fees from a statute, which expressly allows as part of its judgment a reasonable fee for client’s back statutory benefits. programs to seek and retain attorneys’ such representation, not in excess of 25 Paragraph (c)(3) has been revised and fees for cases filed prior to April 26, percent of the total of the past-due benefits moved from § 1642.3(c)(3) of the interim 1996, including Social Security cases. to which the claimant is entitled by reason rule. In response to comments, it now Paragraph (b) provides that unless the of such judgment * * * provides that attorneys’ fees do not case was filed prior to April 26, 1996, 42 U.S.C. 406(b)(1). This provision include sanctions imposed by court private attorneys who are paid by LSC clearly envisions court involvement. practices as well as court rules, and also recipients to handle cases for eligible Thus, although the norm is for the client do not include sanctions authorized by clients as part of a recipient’s PAI to enter into a contingency fee statute. program, under a contract or judicare 25864 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations arrangement, may not seek attorneys’ sufficient documentation to demonstrate the Federal Rules of Civil Procedure, or fees in those cases. The prohibition does compliance with this part. similar State court rules or practices, or not include pro bono attorneys who statutes; and List of Subjects in 45 CFR Part 1642 receive no compensation from a (4) Reimbursement of costs and recipient to handle cases, because they Attorneys’ fees; Grant programs; Legal expenses from an opposing party or are not receiving financial assistance services. from a client pursuant to § 1642.6. For reasons set forth in the preamble, from the recipient to provide the (c) An award is an order by a court 45 CFR part 1642 is revised to read as services. Thus, attorneys who are or an administrative agency that the follows: handling cases on behalf of eligible unsuccessful party pay the attorneys’ clients on a pro bono bases may seek PART 1642ÐATTORNEYS' FEES fees of the prevailing party or an order and collect attorneys’ fees. It is the by a court or administrative agency Corporation’s judgment that the Sec. approving a settlement agreement of the restrictions of this part would be a 1642.1 Purpose. parties which provides for payment of substantial impediment to the 1642.2 Definitions. attorneys’ fees by an adversarial party. recruitment of pro bono lawyers. 1642.3 Prohibition. 1642.4 Applicability of restriction on (d) To claim attorneys’ fees means to Section 1642.5 Accounting For and attorneys’ fees. include a request for attorneys’ fees in Use of Attorneys’ Fees 1642.5 Accounting for and use of attorneys’ any pleading. fees. § 1642.3 Prohibition. This section includes an accounting 1642.6 Acceptance of reimbursement from a requirement for attorneys’ fees that are client. Except as permitted by § 1642.4, no permitted under § 1642.4(a) of this part 1642.7 Recipient policies, procedures and recipient or employee of a recipient may that are received by a recipient. recordkeeping. claim, or collect and retain attorneys’ Recipients are required to allocate such Authority: 42 U.S.C. 2996e(d)(6); Pub. L. fees in any case undertaken on behalf of fees that are received from cases 104–208, 110 Stat. 3009; Pub. L. 104–134, a client of the recipient. supported in whole or in part with LSC 110 Stat 1321, section 504(a)(13). funds to the LSC fund in the same § 1642.4 Applicability of restriction on § 1642.1 Purpose. proportion that the case or matter was attorneys' fees. funded with LSC funds. Thus, if a This part is designed to insure that (a) The prohibition contained in particular case was funded 60 percent recipients or employees of recipients do § 1642.3 shall not apply to cases filed by LSC funds and 40 percent from non- not claim, or collect and retain prior to April 26, 1996, except that the LSC funds, a recipient would be attorneys’ fees available under any prohibition shall apply to any required to allocate 60 percent of the Federal or State law permitting or additional related claim for the client fees received to the LSC account. There requiring the awarding of attorneys’ made in such a case on or subsequent is no requirement that the program fees. to April 26, 1996. allocate the remaining 40 percent to any § 1642.2 Definitions. (b) Except as permitted in paragraph particular account. This is a change (a) Attorneys’ fees means an award to (a) of this section, the prohibition from current law that requires allocation compensate an attorney of the contained in § 1642.3 shall apply to any to the same fund to which expenses had prevailing party made pursuant to case undertaken by a private attorney on been charged. The change is based on a common law or Federal or State law behalf of an eligible client when the policy that, if a non-LSC funder does permitting or requiring the awarding of attorney receives compensation from a not require that its fund be reimbursed such fees or a payment to an attorney recipient to provide legal assistance to from attorneys’ fees awarded in from a client’s retroactive statutory such client under the recipient’s private litigation supported with its funds, LSC benefits. attorney involvement (PAI) program, should not dictate how those funds are (b) Attorneys’ fees do not include the judicare program, contract or other to be allocated. following: financial arrangement. (1) Payments made to a recipient or an Section 1642.6 Acceptance of § 1642.5 Accounting for and use of Reimbursement Rrom a Client employee of a recipient for a case in attorneys' fees. which a court appoints the recipient This section allows recipients to employee to provide representation (a) Attorneys’ fees received by a accept reimbursement from clients for pursuant to a statute or court rule or recipient pursuant to § 1642.4(a) for out-of-pocket costs and expenses practice equally applicable to all representation supported in whole or in incurred in connection with cases attorneys in the jurisdiction, and in part with funds provided by the where the client recovers damages or which the recipient or employee Corporation shall be allocated to the statutory benefits, provided that the receives compensation under the same fund in which the recipient’s LSC grant client has agreed in writing to reimburse terms and conditions as are applied is recorded in the same proportion that the recipient for such costs and generally to attorneys practicing in the the amount of Corporation funds expenses out of any recovery. This court in which the appointment is expended bears to the total amount section also authorizes recipients to made; expended by the recipient to support require clients who do not qualify for in (2) Payments made to a recipient or an the representation. forma pauperis to pay court costs. employee of a recipient pursuant to a (b) Attorneys’ fees received pursuant Section 1642.7 Recipient Policies, grant, contract or other agreement by a to § 1642.4(a) shall be recorded during Procedures and Recordkeeping governmental agency or other third the accounting period in which the party for representation of clients; money from the fee award is actually This section requires the recipient to (3) Payments received as a result of received by the recipient and may be establish written policies and sanctions imposed by a court for expended for any purpose permitted by procedures to guide the recipient’s staff violations of court rules or practices, or the LSC Act, regulations and other law to ensure compliance with this rule. statutes relating to court practice, applicable at the time the money is Recipients are also required to maintain including Rule 11 or discovery rules of received. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25865

§ 1642.6 Acceptance of reimbursement its leased commercial access rules, a SUMMARY: This document specifies the from a client. summary of which was published in the rules of procedure of the GSA Board of (a) When a case results in a recovery Federal Register. See 62 FR 11364, Contract Appeals applicable to the of damages or statutory benefits, a March 12, 1997. The Commission’s rule Board’s review of claims made by a recipient may accept reimbursement changes that did not impose new or carrier or freight forwarder pursuant to from the client for out-of-pocket costs modified information collection 31 U.S.C. 3726(g)(1). The rules are and expenses incurred in connection requirements became effective April 11, intended to implement section 201(o) of with the case, if the client has agreed in 1997. However, because they imposed the General Accounting Office Act of writing to reimburse the recipient for new or modified information collection 1996 (Pub. L. 104–316), which such costs and expenses out of any such requirements, the amendments to 47 transferred the authority to resolve these recovery. CFR 76.970 (c), (d), (e), (f), (g), (h), claims to the Administrator of General (b) A recipient may require a client to 76.971(f)(1), 76.975 (b) and (c) could not Services, who has redelegated that pay court costs when the client does not become effective until approved by the function to the Board. qualify to proceed in forma pauperis Office of Management and Budget EFFECTIVE DATE: This regulation is under the rules of the jurisdiction. (‘‘OMB’’), and no sooner than April 11, effective May 12, 1997. 1997. OMB approved these rule changes § 1642.7 Recipient policies, procedures FOR FURTHER INFORMATION CONTACT: and recordkeeping. on April 17, 1997. Margaret S. Pfunder, Deputy Chief 2. The Federal Register summary The recipient shall adopt written Counsel, GSA Board of Contract stated that the Commission would Appeals, telephone (202) 501–0272, policies and procedures to guide its staff publish a document establishing the in complying with this part and shall Internet address: effective date of the rule changes [email protected]. maintain records sufficient to document requiring OMB approval. This statement the recipient’s compliance with this suggests that further action by the SUPPLEMENTARY INFORMATION: part. Commission is necessary to establish A. Regulatory Flexibility Act Dated: May 7, 1997. the effective date, notwithstanding the The General Services Administration Victor M. Fortuno, preceding statement in the summary certifies that this rule will not have a General Counsel. that the rule changes imposing new or modified information collection significant economic impact on a [FR Doc. 97–12404 Filed 5–9–97; 8:45 am] substantial number of small entities BILLING CODE 7050±01±P requirements would become effective upon OMB approval. See 62 FR 11365, within the meaning of the Regulatory March 12, 1997. In order to resolve this Flexibility Act (5 U.S.C. 601 et seq.). FEDERAL COMMUNICATIONS matter in a manner that most B. Paperwork Reduction Act appropriately provides interested COMMISSION The Paperwork Reduction Act does parties with proper notice, the not apply because the rule does not amendments to 47 CFR 76.970 (c), (d), 47 CFR Part 76 impose recordkeeping or information (e), (f), (g), (h), 76.971(f)(1), 76.975 (b) collection requirements, or the [CS Docket No. 96±60; FCC 97±27] and (c) shall become effective May 12, collection of information from offerors, 1997. This publication satisfies the Cable Television Leased Commercial contractors, or members of the public statement that the Commission would Access which require the approval of OMB publish a document establishing the under 44 U.S.C. 3501 et seq. AGENCY: Federal Communications effective date of the rule changes Commission. requiring OMB approval. C. Effective Dates ACTION: Final rule; establishment of List of Subjects in 47 CFR Part 76 These rules are applicable to all effective date. transportation rate cases filed on or after Administrative practice and May 12, 1997. SUMMARY: The Commission’s procedure, Cable television, Reporting amendments to 47 CFR 76.970 (c), (d), and recordkeeping requirements. D. Background (e), (f), (g), (h), 76.971(f)(1), 76.975 (b) Federal Communications Commission On July 26, 1996, the Board published and (c), which contained information William F. Caton, in the Federal Register (61 FR 39096) an collection requirements, shall become Acting Secretary. interim rule specifying the rules of effective May 12, 1997. These procedure the Board would apply to its amendments, which were published in [FR Doc. 97–12279 Filed 5–9–97; 8:45 am] BILLING CODE 6712±01±U review of claims made by a carrier or the Federal Register of March 12, 1997, freight forwarder pursuant to 31 U.S.C. relate to implementation of the leased 3726(g)(1). The Board invited written commercial access provisions of the comments on the interim rules. The GENERAL SERVICES 1992 Cable Act. rules were intended to implement ADMINISTRATION EFFECTIVE DATE: The amendments to 47 section 211 of the Legislative Branch CFR 76.970 (c), (d), (e), (f), (g), (h), 48 CFR Part 6103 Appropriations Act, 1996 (Pub. L. 104– 76.971(f)(1), 76.975 (b) and (c) 53), which, effective June 30, 1996, published at 62 FR 11364 shall become RIN Number 3090±AG05 transferred certain functions of the effective May 12, 1997. Comptroller General to the Director of Board of Contract Appeals; Rules of FOR FURTHER INFORMATION CONTACT: Julie the Office of Management and Budget Procedure for Transportation Rate Buchanan, Cable Services Bureau, (202) (OMB), and authorized the Director to Cases 418–7200. delegate any of those functions to another agency or agencies. Effective the SUPPLEMENTARY INFORMATION: AGENCY: Board of Contract Appeals, General Services Administration. same date, the Director delegated the 1. On January 31, 1997, the function contained in 31 U.S.C. ACTION: Final rule. Commission adopted an order revising 3726(g)(1)—the authority to review rate 25866 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations claims of a carrier or freight forwarder— are provided, as are the Board’s working file a reply. The Board agrees, and has to the Administrator of General hours. increased the amount of time for a reply Services, who redelegated that function to 30 days, the amount of time given Section 6103.3 (Responses to Claims) to the GSA Board of Contract Appeals. OTA and the agency to file responses to On October 19, 1996, Congress The Board made three changes to this a claim. The Board also concluded that enacted the General Accounting Office section. First, the Board revised the rule it is appropriate to permit a reply in all Act of 1996 (Pub. L. 104–316). Section to increase from 30 to 60 calendar days cases, such that each judge need not 201(o) of that Act directly transfers the after docketing the time the agency has make a case-by-case determination. authority of the Comptroller General to to respond to the claim, if the agency Both commentators were concerned resolve transportation rate claims under office for which the services were that the exact date a carrier received the 31 U.S.C. 3726(g)(1) to the provided is located outside the United responses would not be known with Administrator of General Services, who States. In the Board’s experience, agency certainty by the Board, and that either has continued to delegate this function offices located outside the United States the date the response was mailed to the to the Board. In addition, the have generally needed this additional Board or the date shown in a certificate Administrator of General Services has time to receive and respond to claims. of service should be determinative. The delegated to the Board the authority to Second, the Board has redrafted Board did not incorporate either of these adopt and issue rules necessary for the Section 6103.3 to provide that all suggestions in the final rule; such resolution of these claims. This final responses submitted to the Board must formality is unnecessary, given the time rule has been adopted by vote of the indicate that a copy has been provided frames established in the rules. The Board’s judges. to the claimant. Both commentators carrier will be aware of its receipt stated that the rule should include some E. Summary of Comments and Changes date(s), and, therefore, can determine type of proof of service provision; one when a reply is due. The Board received written comments commentator wanted the rule to provide on the interim rules from three for sanctions in the event that a party Section 6103.5 (Proceedings) commentators. Commentators included failed to serve its submission on all The Board added paragraph (a) to this two motor freight carriers and an participants. The Board believes that the section to clarify that the claimant, association of motor freight carriers. The rule as revised is sufficient to ensure OTA, or the agency may request Board carefully considered these service on the claimant, and that more additional time to make any of the comments, and adopted a number of the formal proof of service requirements filings required or permitted by the suggestions made by the commentators. and specified sanctions are unnecessary. rules. However, the Board may not One commentator made no specific Should the need arise, the judge to expand time limits established by comments, but simply expressed whom a case is assigned may determine statute. Both commentators suggested approval of the transfer of transportation how to enforce the service requirements. that the rules should provide for rate claims from the Comptroller The Board has also added a parallel discovery, citing the carriers’ past General to the Administrator of General service of copy requirement to inability to obtain documents and other Services. The other two commentators paragraph (d) of Section 6103.2, which information possessed by the supported the interim rules and, in requires the claimant to send to OTA Government needed to prove general, suggested that some of the rules and the agency a copy of all material entitlement to payment. The be more detailed. Their comments and provided to the Board, and to indicate commentators and Board practice have any revisions made, are discussed below on all submissions to the Board that a not demonstrated a need for a rule on in a section-by-section format. copy has been provided to OTA and the discovery. Under Section 6103.5(c), Section 6103.2 (Filing Claims) agency. judges retain the flexibility to require Third, in order to expedite participants to submit necessary Two commentators suggested that the proceedings, Section 6103.3 now additional information. rule should state when a claim is timely provides that, if either OTA or the filed and/or provide a certain time by agency does not wish to file a response, Section 6103.6 (Decisions) which the Board must acknowledge it should so notify the Board and the In response to the suggestions made receipt of a claim. They also suggested claimant. If the Board knows that OTA by both commentators, this section that the rule permit filing a claim with and/or the agency is not filing a makes explicit that it has been and is the Board by facsimile transmission. In response, it may proceed with resolving the Board’s practice to furnish the response to these comments, the Board the claim rather than waiting for the participants with a copy of the Board’s has added paragraph (b) to Section response period to expire. decision. The revised rule also explains 6103.2, which provides that a claim is that the Board’s decisions are posted Section 6103.4 (Reply to OTA and filed when a written copy is received by weekly on the Internet, and provides the Agency Responses) the Office of the Clerk of the Board Board’s Internet address. during the Board’s working hours. This rule has been redrafted to require Filing has been and is permitted by a claimant wishing to reply to the OTA Section 6103.7 (Reconsideration of facsimile transmission. All Board cases and agency responses to file and serve Board Decision) are date-stamped upon receipt and the reply within 30 calendar days after Both commentators suggested that 15 docketed within one to two working receiving the responses (or within 60 calendar days after the date a decision days of receipt. In addition, the notice days if the claimant is located outside is issued was too short a time in which of docketing sent to the claimant, OTA, the United States). The interim rule to prepare a request for reconsideration. and the agency states the date the claim required a claimant first to notify the The Board agrees, and has lengthened was filed with the Board. A claimant Board within 10 days after receiving the the time to 30 days after the date the will thus be able to verify the date the responses that it wished to file a reply, decision was issued, or to 60 days if the Board received the claim. In order to and then to have the judge establish claimant or agency office making the facilitate the filing of claims, the address when the reply was due. One request is located outside the United and the telephone and facsimile commentator suggested that 10 days was States. One commentator suggested that machine numbers of the Clerk’s office too short a time to determine whether to all of the Board’s rules relating to Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25867 reconsideration of contract appeals be (b) Type of claim; review of claim. claimant shall indicate that a copy has incorporated into the rules for These procedures are applicable to the been provided to OTA and the agency. transportation rate cases. Neither the review of claims made by a carrier or statute nor the Board envisions these freight forwarder pursuant to 31 U.S.C. § 6103.3 Responses to claims [Rule 303]. cases as formal, judicial proceedings. 3726(g)(1). The Board will issue the (a) Content of responses. Within 30 Specifically structured reconsideration final agency decision on a claim based calendar days after docketing by the procedures are unnecessary. However, on the information submitted by the Board (or within 60 calendar days after as made clear in the revised rule, a claimant, the General Services docketing if the agency office for which request for reconsideration should not Administration Office of Transportation the services were provided is located be a routine practice in these cases. A Audits (OTA), and the department or outside the 50 states and the District of request for reconsideration must be agency (the agency) for which the Columbia), OTA and the agency for premised on more than reargument or services were provided. The burden is which the services were provided shall disagreement. on the claimant to establish the each submit to the Board: timeliness of its claim, the liability of (1) A simple, concise, and direct Section 6103.8 (Payment of Successful statement of its response to the claim; Claims) the agency, and the claimant’s right to payment. (2) Citations to applicable statutes, Both commentators suggested that regulations, and cases; and Section 6103.8 should provide that an § 6103.2 Filing claims [Rule 302]. (3) Any additional information agency must pay any amount found due (a) Form. A claim shall be in writing deemed necessary to the Board’s review by the Board within 30 days of the date and must be signed by the claimant or of the claim. of the Board’s decision. Such a by the claimant’s attorney or authorized (b) Service of copy. All responses requirement comports with the representative. No particular form is submitted to the Board shall indicate requirement of the Prompt Payment Act, required. The request should describe that a copy has been sent to the claimant 31 U.S.C. 3903, that payment is due 30 the basis for the claim and state the and to OTA or the agency, as days after the date the invoice is amount sought. The request should also appropriate. To expedite proceedings, if received by the agency. The Board include: either OTA or the agency will not file concludes that this matter is not (1) The name, address, telephone a response (e.g., it believes its reasons appropriately resolved by a rule of number, and facsimile machine number, for denying the claim were sufficiently procedure, and that an agency receiving if available, of the claimant; explained in the material filed by the the Board’s final administrative decision (2) The Government bill of lading or claimant), it should notify the Board, on a claim will in fact promptly pay any Government transportation request the claimant, and OTA or the agency, as amount found owing the claimant, in number; appropriate, that it does not intend to accordance with applicable statutes. (3) The claimant’s bill number; file a response. (4) The Government voucher number List of Subjects in 48 CFR Part 6103 and date of payment; § 6103.4 Reply to OTA and agency Administrative practice and (5) The OTA claim number; responses [Rule 304]. procedure, Freight forwarders, (6) The agency for which the services A claimant may file with the Board Government procurement. were provided; and and serve on OTA and the agency a For the reasons set out in the (7) Any other identifying information. reply to the OTA and agency responses preamble, 48 CFR Part 6103 is revised (b) When and where claims are filed. within 30 calendar days after receiving to read as follows: A claim is filed when it is received by the responses (or within 60 calendar the Office of the Clerk of the Board days after receiving the responses, if the PART 6103ÐRULES OF PROCEDURE during the Board’s working hours. claimant is located outside the 50 states FOR TRANSPORTATION RATE CASES Claims should be sent to the Board at and the District of Columbia). To the following address: Office of the expedite proceedings, if the claimant Sec. Clerk of the Board, Room 7022, General 6103.1 Scope [Rule 301]. does not wish to respond, the claimant 6103.2 Filing claims [Rule 302]. Services Administration Building, 1800 should so notify the Board, OTA, and 6103.3 Responses to claims [Rule 303]. F Street, NW, Washington, DC 20405. the agency. 6103.4 Reply to OTA and agency responses The Clerk’s telephone number is: (202) [Rule 304]. 501–0116. The Clerk’s facsimile § 6103.5 Proceedings [Rule 305]. 6103.5 Proceedings [Rule 305]. machine number is: (202) 501–0664. (a) Requests for additional time. The 6103.6 Decisions [Rule 306]. The Board’s working hours are 8:00 a.m. claimant, OTA, or the agency may 6103.7 Reconsideration of Board decision to 4:30 p.m., Eastern Time, on each day request additional time to make any [Rule 307]. other than a Saturday, Sunday, or filing. 6103.8 Payment of successful claims [Rule (b) Conferences. The judge will not 308]. federal holiday. (c) Notice of docketing. A claim will engage in ex parte communications Authority: 31 U.S.C. 3726(g)(1); 41 U.S.C. 601–613. Section 201(o), Pub. L. 104–316, be docketed by the Office of the Clerk involving the underlying facts or merits 110 Stat. 3826. of the Board, and a written notice of of the claim. The judge may hold a docketing will be sent promptly to the conference with the claimant, OTA, and § 6103.1 Scope [Rule 301]. claimant, the Director of OTA, and the the agency at any time, for any purpose. (a) Authority. Section 201(o) of the agency for which the services were The judge may provide the participants General Accounting Office Act of 1996, provided. The notice of docketing will a memorandum reflecting the results of Public Law 104–316, transfers certain identify the judge to whom the claim a conference. functions of the Comptroller General has been assigned. (c) Submissions. The judge may contained in 31 U.S.C. 3726(g)(1) to the (d) Service of copy. The claimant shall require the submission of additional Administrator of General Services, who send to OTA and the agency identified information at any time. The claimant, has redelegated those functions to the in paragraph (a)(6) of this section copies OTA, or the agency may request an General Services Administration Board of all material provided to the Board. opportunity to make additional of Contract Appeals. All submissions to the Board by a submissions; however, no such 25868 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations submission may be made unless relocation to a new duty station. The redelegated that function to the GSA authorized by the judge. rules are intended to implement section Board of Contract Appeals. 201(n)(3) of the General Accounting On October 19, 1996, Congress § 6103.6 Decisions [Rule 306]. Office Act of 1996 (Pub. L. 104–316), enacted the General Accounting Office The judge will issue a written which transferred the authority to Act of 1996 (Pub. L. 104–316). Section decision based upon the record, which resolve these claims to the 201(n)(3) of that Act directly transfers includes submissions by the claimant, Administrator of General Services, who the authority of the Comptroller General OTA, and the agency, and information has redelegated that function to the to resolve travel and relocation expenses provided during conferences. The Board. claims under 31 U.S.C. 3702 to the claimant, OTA, and the agency will EFFECTIVE DATE: This regulation is Administrator of General Services, who each be furnished a copy of the decision effective May 12, 1997. has continued to delegate this function by the Office of the Clerk of the Board. FOR FURTHER INFORMATION CONTACT: to the Board. In addition, the In addition, all Board decisions are Margaret S. Pfunder, Deputy Chief Administrator of General Services has posted weekly on the Internet. The Counsel, GSA Board of Contract delegated to the Board the authority to Board’s Internet address is: Appeals, telephone (202) 501–0272, adopt and issue rules necessary for the www.gsbca.gsa.gov. Internet address: resolution of these claims. This final § 6103.7 Reconsideration of Board [email protected]. rule has been adopted by vote of the decision [Rule 307]. Board’s judges. SUPPLEMENTARY INFORMATION: A request for reconsideration may be E. Summary of Comments and Changes made by the claimant, OTA, or the A. Regulatory Flexibility Act agency. Such requests must be received The General Services Administration The Board received no written by the Board within 30 calendar days certifies that this rule will not have a comments on the interim rules. The after the date the decision was issued significant economic impact on a Board’s judges, however, agreed on a (or within 60 calendar days after the substantial number of small entities number of revisions to the rules which date the decision was issued, if the within the meaning of the Regulatory should improve the current, interim claimant or agency office making the Flexibility Act (5 U.S.C. 601 et seq.). procedures used to resolve travel and request is located outside the 50 states relocation expenses claims filed with and the District of Columbia). The B. Paperwork Reduction Act the Board. These revisions are discussed request for reconsideration should state The Paperwork Reduction Act does below in a section-by-section format. the reasons why the Board should not apply because the rule does not Section 6104.1 (Scope) consider the request. Mere disagreement impose recordkeeping or information with a decision or re-argument of points collection requirements, or the Section 6104.1(a) has been changed to already made is not a sufficient ground collection of information from offerors, reference the current statutory authority for seeking reconsideration. contractors, or members of the public under which the Board resolves travel which require the approval of OMB and relocation expenses claims. § 6103.8 Payment of successful claims under 44 U.S.C. 3501 et seq. [Rule 308]. Section 6104.2 (Filing Claims) The agency for which the services C. Effective Date In order to facilitate the filing and were provided shall pay amounts the These rules are applicable to all travel processing of claims, Section Board determines are due the claimant. and relocation expenses cases filed on 6104.2(a)(3) now provides the Board’s Dated: May 7, 1997. or after May 12, 1997. mailing address and working hours. Section 6104.2(c) now requires that all Stephen M. Daniels, D. Background submissions to the Board by a claimant Chairman, GSA Board of Contract Appeals. On July 26, 1996, the Board published or an agency must indicate that a copy [FR Doc. 97–12382 Filed 5–9–97; 8:45 am] in the Federal Register (61 FR 39098) an has been provided to the other party. BILLING CODE 6820±34±P interim rule specifying the rules of This exchange of information provided procedure the Board would apply to its to the Board permits an informed and review of claims made by federal timely response or reply to a claim and GENERAL SERVICES civilian employees against the United an expeditious resolution of the claim. ADMINISTRATION States for reimbursement of expenses Section 6104.3 (Response to Claim) 48 CFR Part 6104 incurred while on temporary duty travel or in connection with relocation to a This rule has been revised in two RIN 3090±AG06 new duty station. The Board invited ways. First, if the agency office involved written comments on the interim rules. with a claim is located outside the 50 Board of Contract Appeals; Rules of The rules were intended to implement states and District of Columbia, the rule Procedure for Travel and Relocation section 211 of the Legislative Branch increases from 30 to 60 calendar days Expenses Cases Appropriations Act, 1996 (Pub. L. 104– after docketing the time an agency has AGENCY: Board of Contract Appeals, 53), which, effective June 30, 1996, to respond to the claim. In the Board’s General Services Administration. transferred certain functions of the experience, agencies located outside the ACTION: Final rule. Comptroller General to the Director of United States have generally needed the Office of Management and Budget this additional time to receive and SUMMARY: This document specifies the (OMB), and authorized the Director to respond to claims. Second, in order to rules of procedure of the GSA Board of delegate any of those functions to expedite proceedings, the rule now Contract Appeals applicable to the another agency or agencies. Effective the provides that the agency should notify Board’s review of claims made by same date, the Director delegated the the Board and the claimant if the agency federal civilian employees against the function contained in 31 U.S.C. 3702— does not intend to file a response; e.g., United States for reimbursement of the authority to review travel and the agency may believe that the Board expenses incurred while on temporary relocation expenses claims—to the has been provided all relevant material duty travel or in connection with Administrator of General Services, who (factual and legal) and that the agency’s Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25869 reasons for denying the claim are List of Subjects in 48 CFR Part 6104 submitted by the claimant and the sufficiently explained in the material Administrative practice and agency. filed by the claimant. If the Board procedure, Government procurement, § 6104.2 Filing claims [Rule 402]. knows that the agency is not filing a Travel and transportation expenses. (a) Filing claims. A claim may be sent response, it may proceed with resolving For the reasons set out in the to the Board in either of the following the claim rather than waiting for the preamble, 48 CFR Part 6104 is revised ways: response period to expire. to read as follows: Section 6104.4 (Reply to Agency (1) Claim filed by claimant. A claim Response) PART 6104ÐRULES OF PROCEDURE shall be in writing and must be signed FOR TRAVEL AND RELOCATION by the claimant or by the claimant’s This rule has been revised to increase EXPENSES CASES attorney or authorized representative. from 10 to 30 calendar days after No particular form is required. The receiving the agency response the time Sec. request should describe the basis for the in which a claimant may file a reply to 6104.1 Scope [Rule 401]. claim and state the amount sought. The the response (60 calendar days for a 6104.2 Filing claims [Rule 402]. request should also include: claimant located outside the United 6104.3 Response to claim [Rule 403]. 6104.4 Reply to agency response [Rule 404]. (i) The name, address, telephone States). The Board has concluded that number, and facsimile machine number, 10 days often is too short a time period 6104.5 Proceedings [Rule 405]. 6104.6 Decisions [Rule 406]. if available, of the claimant; for a reply, and that claimants located 6104.7 Reconsideration of Board decision (ii) The name, address, telephone outside the United States needed the [Rule 407]. longer time in which to receive number, and facsimile machine number, 6104.8 Payment of successful claims [Rule if available, of the agency employee who responses and submit replies. In 408]. denied the claim; addition, the rule now addresses the Authority: 31 U.S.C. 3702; 41 U.S.C. 601– situation in which the claim has been 613; Sec. 201(n)(3), Pub. L. 104–316, 110 (iii) A copy of the denial of the claim; forwarded by the agency on behalf of Stat. 3826. and the claimant (section 6104.2(a)(2)), and (iv) Any other information which the § 6104.1 Scope [Rule 401]. gives the claimant 30 calendar days claimant believes the Board should from the date the claim is docketed by (a) Authority. These procedures consider. the Board (60 calendar days if the govern the Board’s resolution of claims (2) Claim forwarded by agency on claimant is located outside the United by federal civilian employees for certain behalf of claimant. If an agency has States) to reply. Finally, in order that travel or relocation expenses that were denied a claim for travel or relocation the Board may proceed with resolving formerly settled by the Comptroller expenses, it may, at the claimant’s the claim rather than waiting for the General under 31 U.S.C. 3702. Section request, forward the claim to the Board. reply period to expire, the rule now 201(n)(3) of the General Accounting The agency shall include the provides that the claimant should notify Office Act of 1996, Public Law 104–316, information required by paragraph (a)(1) the Board and the agency if the claimant transfers the authority to resolve these of this section and by § 6104.3. does not wish to reply. claims to the Administrator of General (3) Where claims are filed. A claim Services, who has redelegated that Section 6104.5 (Proceedings) should be sent to the Board at the function to the General Services following address: Office of the Clerk of Section 6104.5(a) has been added to Administration Board of Contract the Board, Room 7022, General Services clarify that the claimant or the agency Appeals. The requirements contained in Administration Building, 1800 F Street, may request the Board to grant 31 U.S.C. 3702, including limitations on NW, Washington, DC 20405. The Clerk’s additional time to make any filing. the time within which claims may be telephone number is: (202) 501–0116. However, the Board may not expand filed, apply to the Board’s review of The Clerk’s facsimile machine number time limits established by statute. these claims. is: (202) 501–0664. The Board’s working (b) Types of claims. These procedures hours are 8:00 a.m. to 4:30 p.m., Eastern Section 6104.6 (Decisions) are applicable to the review of two types Time, on each day other than a In response to inquiries by claimants of claims made against the United States Saturday, Sunday, or federal holiday. as to whether decisions have been by federal civilian employees: issued and simply not forwarded, the (1) Claims for reimbursement of (b) Notice of docketing. A request for rule makes explicit that it has been and expenses incurred while on official review will be docketed by the Office of is the Board’s practice to furnish the temporary duty travel; and the Clerk of the Board. A written notice claimant and the agency each with a (2) Claims for reimbursement of of docketing will be sent promptly to copy of the decision. The rule also expenses incurred in connection with the claimant and the agency contact. explains that the Board’s decisions are relocation to a new duty station. The notice of docketing will identify the posted weekly on the Internet, and (c) Review of claims. Any claim for judge to whom the claim has been provides the Board’s Internet address. entitlement to travel or relocation assigned. expenses must first be filed with the (c) Service of copy. The claimant shall Section 6104.7 (Reconsideration of claimant’s own department or agency send to the agency employee identified Board Decision) (the agency). The agency shall initially in paragraph (a)(1)(ii) of this section, or The rule has been revised to increase adjudicate the claim. A claimant the individual otherwise identified by from 15 to 30 calendar days (or 60 disagreeing with the agency’s the agency to handle the claim, copies calendar days if the claimant or the determination may request review of the of all material provided to the Board. If agency making the request is located claim by the Board. The burden is on an agency forwards a claim to the Board, outside the United States) after the date the claimant to establish the timeliness it shall, at the same time, send to the the Board’s decision was issued the time of the claim, the liability of the agency, claimant a copy of all material sent to in which either a claimant or an agency and the claimant’s right to payment. The the Board. All submissions to the Board may request reconsideration of the Board will issue the final decision on a shall indicate that a copy has been decision. claim based on the information provided to the claimant or the agency. 25870 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

§ 6104.3 Response to claim [Rule 403]. provided during conferences. The FOR FURTHER INFORMATION CONTACT: (a) Content of response. When a claim claimant and the agency will each be Margaret S. Pfunder, Deputy Chief has been filed with the Board by a furnished a copy of the decision by the Counsel, GSA Board of Contract claimant, within 30 calendar days after Office of the Clerk of the Board. In Appeals, telephone (202) 501–0272, docketing by the Board (or within 60 addition, all Board decisions are posted Internet address: calendar days after docketing, if the weekly on the Internet. The Board’s [email protected]. Internet address is: www.gsbca.gsa.gov. agency office involved is located outside SUPPLEMENTARY INFORMATION: the 50 states and the District of § 6104.7 Reconsideration of Board A. Regulatory Flexibility Act Columbia), the agency shall submit to decision [Rule 407]. the Board: The General Services Administration A request for reconsideration may be (1) A simple, concise, and direct certifies that this rule will not have a made by the claimant or the agency. statement of its response to the claim; significant economic impact on a Such requests must be received by the (2) Citations to applicable statutes, substantial number of small entities Board within 30 calendar days after the regulations, and cases; and within the meaning of the Regulatory date the decision was issued (or within (3) Any additional information Flexibility Act (5 U.S.C. 601 et seq.). deemed necessary to the Board’s review 60 calendar days after the date the B. Paperwork Reduction Act of the claim. decision was issued, if the claimant or (b) Service of copy. A copy of these the agency office making the request is The Paperwork Reduction Act does submissions shall also be sent to the located outside the 50 states and the not apply because the proposed rule claimant. To expedite proceedings, if District of Columbia). The request for does not impose recordkeeping or the agency believes its reasons for reconsideration should state the reasons information collection requirements, or denying the claim were sufficiently why the Board should consider the the collection of information from explained in the material filed by the request. Mere disagreement with a offerors, contractors, or members of the claimant, it should notify the Board and decision or re-argument of points public which require the approval of the claimant that it does not intend to already made is not a sufficient ground OMB under 44 U.S.C. 3501 et seq. for seeking reconsideration. file a response. C. Effective Date § 6104.4 Reply to agency response [Rule § 6104.8 Payment of successful claims These rules are applicable to all [Rule 408]. 404]. Board-issued decisions authorized The agency shall pay amounts the A claimant may file a reply to the under 31 U.S.C. 3529 filed on or after Board determines are due the claimant. agency response within 30 calendar May 12, 1997. Dated: May 5, 1997 days after receiving the response (or D. Background within 60 calendar days after receiving Stephen M. Daniels, the response, if the claimant is located Chairman, GSA Board of Contract Appeals. On December 20, 1996, the Board published in the Federal Register (61 outside the 50 states and the District of [FR Doc. 97–12383 Filed 5–9–97; 8:45 am] FR 67241) an interim rule specifying the Columbia). If the claim has been BILLING CODE 6820±34±P forwarded by the agency, the claimant rules of procedure the Board would shall have 30 calendar days from the apply to the Board’s review of a request time the claim is docketed by the Board GENERAL SERVICES from an agency disbursing or certifying (or 60 calendar days after docketing, if ADMINISTRATION official, or agency head, for a Board the claimant is located outside the 50 decision on a question involving a states and the District of Columbia) to 48 CFR Parts 6104 and 6105 payment the official will make, or a voucher presented to a certifying official reply. To expedite proceedings, if the RIN 3090±AG29 claimant does not wish to reply, the for certification, which concerns a claim against the agency for reimbursement of claimant should so notify the Board and Board of Contract Appeals; Rules of expenses incurred by a federal civilian the agency. Procedure for Decisions Authorized employee while on official temporary Under 31 U.S.C. 3529 § 6104.5 Proceedings [Rule 405]. duty travel or in connection with (a) Requests for additional time. The AGENCY: Board of Contract Appeals, relocation to a new duty station. Such claimant or the agency may request General Services Administration. a decision is referred to by the rules as additional time to make any filing. ACTION: Final rule. a ‘‘Section 3529 decision.’’ The Board (b) Conferences. The judge will not invited written comments on the engage in ex parte communications SUMMARY: This document specifies the interim rules. involving the underlying facts or merits procedures the GSA Board of Contract The rules were intended to implement of the claim. The judge may hold a Appeals will apply to the Board’s section 204 of the General Accounting conference with the claimant and the review of a request from an agency Office Act of 1996 (Pub. L. 104–316) agency contact, at any time, for any disbursing or certifying official, or (GAO Act), which, by amending 31 purpose. The judge may provide the agency head, for a Board decision on a U.S.C. 3529, transferred the authority of participants a memorandum reflecting question involving a payment the the Comptroller General to make the results of a conference. official will make, or a voucher decisions on agency questions regarding (c) Additional submissions. The judge presented to a certifying official for payment or certification of vouchers may require the submission of certification, which concerns a claim which involved federal civilian additional information at any time. against the agency for reimbursement of employees’ travel and relocation expenses incurred by a federal civilian expenses, to the Administrator of § 6104.6 Decisions [Rule 406]. employee while on official temporary General Services, who redelegated that The judge will issue a written duty travel or in connection with function to the GSA Board of Contract decision based upon the record, which relocation to a new duty station. Appeals. When issued by the includes submissions by the claimant EFFECTIVE DATE: This regulation is Comptroller General, these decisions and the agency, and information effective May 12, 1997. were commonly known as ‘‘advance Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25871 decisions’’ since they were sought by Section 6105.1 (Scope) Section 6105.6 agency officials before making payments This section has been added to This rule describes how and under or certifying vouchers for payment. what circumstances an agency or Section 204 of the GAO Act amends describe explicitly the matters to which the rules apply and the authority under affected employee may request 31 U.S.C. 3529 by referencing an earlier reconsideration of a Board decision. transfer of functions from the which the Board reviews requests for Comptroller General to the Director of Section 3529 decisions. List of Subjects in 48 CFR Parts 6104 the Office of Management and Budget Section 6105.2 (Request for Decision) and 6105 authorized by section 211 of Legislative Administrative practice and Branch Appropriations Act, 1996 (Pub. This section comprises paragraphs (a), procedure, Government procurement, L. 104–53) (LBAA). Section 211 of the (b), and (c) of former section 6104.9. Travel and transportation expenses. Language has been added which: (1) LBAA also authorized the Director to For the reasons set out in the Explains that Section 3529 decisions delegate any of those functions to preamble, 48 CFR Chapter 61 is may be requested on matters which another agency or agencies. On June 30, amended as follows: 1996, the Director delegated some of the pertain to claims involving 1. The authority citation for Part 6104 functions contained in 31 U.S.C. 3702— reimbursement of travel and relocation continues to read as follows: the authority to review claims made expenses; (2) states the address and against the United States for working hours of the Office of the Clerk Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; reimbursement of expenses incurred by 41 U.S.C. 601–613; Secs 202(n), 204, Pub. L. of the Board; and (3) requires the agency 104–316, 110 Stat. 3826; Sec. 211, Pub. L. federal civilian employees while on to provide to the affected employee a 104–53, 109 Stat. 535. official temporary duty travel or in copy of all agency submissions to the connection with relocation to a new Board. 2. Section 6104.9 is redesignated as duty station—to the Administrator of part 6105 and revised to as follows: General Services, who redelegated that Section 6105.3 (Additional PART 6105ÐRULES OF PROCEDURE function to the GSA Board of Contract Submissions) FOR DECISIONS AUTHORIZED BY 31 Appeals. Formerly section 6104.9(d) of the U.S.C. 3529 With respect to a function transferred interim rule, this section has been to OMB under section 211 of the LBAA revised in two ways. First, the rule Sec. and delegated by OMB to another increases from 10 to 30 calendar days 6105.1 Scope [Rule 501]. agency, section 204 of the GAO Act after receiving the copy of the request 6105.2 Request for decision [Rule 502]. provides that the head of that agency for decision the time in which an 6105.3 Additional submissions [Rule 503]. has the authority to issue ‘‘advance 6105.4 Proceedings [Rule 504]. affected employee may submit any 6105.5 Decisions [Rule 505]. decisions’’ authorized by 31 U.S.C. 3529 additional information to the Board (60 on questions involving such functions. 6105.6 Reconsideration of Board decision calendar days for an affected employee [Rule 506]. Thus, the Administrator of General located outside the United States). The Services is authorized to issue ‘‘advance Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; Board found that 10 calendar days is 41 U.S.C. 601–613; Secs. 202(n), 204, Pub. L. decisions’’ on questions involving often too short a time period for 104–316, 110 Stat. 3826; Sec. 211, Pub. L. reimbursement of expenses incurred by employees to make an additional 104–53, 109 Stat. 535. federal civilian employees while on submission, and that employees located § 6105.1 Scope [Rule 501]. official temporary duty travel or in outside the United States often need a connection with relocation to a new longer time in which to receive and These procedures govern the Board’s duty station. The Administrator has respond to submissions. Second, to help issuance of decisions, upon the request redelegated that function to the Board, expedite resolution of these matters, of an agency disbursing or certifying along with the authority to adopt and rather than waiting for the additional official, or agency head, on questions issue rules necessary for the issuance of submission period to expire, the rule involving payment of travel or these decisions. This final rule has been now provides that the affected employee relocation expenses that were formerly adopted by vote of the Board’s judges. should notify the Board and the agency issued by the Comptroller General under 31 U.S.C. 3529. Section 204 of the E. Summary of Comments and Changes if the employee does not wish to make an additional submission. General Accounting Office Act of 1996, The Board received no written Public Law 104–316, transfers the comments on the interim rule. Section 6105.4 (Proceedings) authority to issue these decisions to the The Board’s judges, however, agreed Director of the Office of Management on a reorganization of the interim rule This rule has been added to cover and Budget, and authorizes the Director which necessitated a number of three aspects of proceeding: requests for to delegate the authority to perform that structural and textual revisions to the additional time; conferences; and function to another agency or agencies. rule. The interim rule was published as additional submissions. It parallels the The Director has delegated the authority 48 CFR 6104.9, the final section (and rule on proceedings in part 6104 (Rules to issue these decisions to the rule) of part 6104, which contains the of Procedure for Transportation and Administrator of General Services, who Board’s rules of procedure for travel and Relocation Expenses Cases). has redelegated that function to the relocation expenses cases. In reviewing Section 6105.5 (Decisions) General Services Administration Board the interim rule, the Board determined of Contract Appeals. that the procedures for Section 3529 This rule has been added to describe decisions could be simplified and made the record on which a judge will base § 6105.2 Request for decision [Rule 502]. clearer if the material in the interim rule a decision under this part. The rule also (a) Request for decision. (1) A was expanded to comprise its own part. provides that the Board will furnish the disbursing or certifying official of an Former interim rule 48 CFR 6104.9 has agency and the affected employee each agency, or the head of an agency, may therefore been renumbered as 48 CFR a copy of the decision, and gives the request from the Board a decision part 6105. The following revisions have Internet address at which all of the (referred to as a ‘‘Section 3529 been made: Board’s decisions are posted weekly. decision’’) on a question involving a 25872 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations payment the disbursing official or head the Board, he or she must submit such DEPARTMENT OF COMMERCE of agency will make, or a voucher information within 30 calendar days presented to a certifying official for after receiving the copy of the request National Oceanic and Atmospheric certification, which concerns the for decision and supporting material (or Administration following type of claim made against the within 60 calendar days after receiving United States by a federal civilian the copy, if the affected employee is 50 CFR Part 660 employee: located outside the 50 states and the [Docket No. 960429120±6120±01; I.D. (i) A claim for reimbursement of District of Columbia). To expedite 042997A] expenses incurred while on official proceedings, if the employee does not temporary duty travel; and wish to make an additional submission, Fisheries Off West Coast and Western (ii) A claim for reimbursement of the employee should so notify the Board Pacific States; West Coast Salmon expenses incurred in connection with and the agency. Fisheries; Closure from Point Lopez to relocation to a new duty station. Point Mugu, CA (2) A request for a Section 3529 § 6105.4 Proceedings [Rule 504]. decision shall be in writing; no (a) Requests for additional time. The AGENCY: National Marine Fisheries particular form is required. The request agency or the affected employee may Service (NMFS), National Oceanic and must refer to a specific payment or request additional time to make any Atmospheric Administration (NOAA), voucher; it may not seek general legal filing. Commerce. advice. The request should—— (b) Conferences. The judge will not ACTION: Closure; request for comments. (i) Explain why the official is seeking engage in ex parte communications a Section 3529 decision, rather than involving the underlying facts or merits SUMMARY: NMFS announces that the taking action on his or her own of the request. The judge may hold a commercial salmon fishery in the area regarding the matter; conference with the agency and the from Point Lopez to Point Mugu, CA, (ii) State the question presented and affected employee, at any time, for any was closed at 12 midnight (local time), include citations to applicable statutes, purpose. The judge may provide the April 22, 1997. The Regional regulations, and cases; participants a memorandum reflecting Administrator, Northwest Region, (iii) Include—— the results of a conference. NMFS, has determined that the (A) The name, address, telephone (c) Additional submissions. The judge commercial quota of 10,000 chinook number, and facsimile machine number may require the submission of salmon has been reached. This action is (if available) of the official making the additional information at any time. necessary to conform to the 1996 request; announcement of management measures § 6105.5 Decisions [Rule 505]. (B) The name, address, telephone for 1997 salmon seasons opening earlier number, and facsimile number (if The judge will issue a written than May 1 and is intended to ensure available) of the employee affected by decision based upon the record, which conservation of chinook salmon. the specific payment or voucher; and includes submissions by the agency and DATES: (C) Any other information which the the affected employee, and information Effective 2400 hours local time, official believes the Board should provided during conferences. The April 22, 1997, through 2400 hours local consider; and agency and the affected employee will time April 30, 1997. Comments will be (iv) Be sent to the Office of the Clerk each be furnished a copy of the decision accepted through May 27, 1997. of the Board, Room 7022, General by the Office of the Clerk of the Board. ADDRESSES: Comments may be mailed to Services Administration Building, 1800 In addition, all Board decisions are William Stelle, Jr., Regional F Street, NW., Washington, DC 20405. posted weekly on the Internet. The Administrator, Northwest Region, The Clerk’s telephone number is: (202) Board’s Internet address is: NMFS, 7600 Sand Point Way NE., 501–0116. The Clerk’s facsimile www.gsbca.gsa.gov. Seattle, WA 98115–0070, or William machine number is (202) 501–0664. The Hogarth, Acting Regional Administrator, Board’s working hours are 8:00 a.m. to § 6105.6 Reconsideration of Board Southwest Region, NMFS, 501 W. 4:30 p.m., Eastern Time, on each day decision [Rule 506]. Ocean Blvd., Suite 4200, Long Beach, other than a Saturday, Sunday, or A request for reconsideration may be CA 90802–4132. Information relevant to federal holiday. made by the agency or the affected this notice is available for public review (b) Notice of docketing. A request for employee. Such requests must be during business hours at the Office of a Section 3529 decision will be received by the Board within 30 the Regional Administrator, Northwest docketed by the Office of the Clerk of calendar days after the date the decision Region, NMFS. the Board. A written notice of docketing was issued (or within 60 calendar days FOR FURTHER INFORMATION CONTACT: will be sent promptly to the official and after the date the decision was issued, William Robinson, 206–526–6140, or the affected employee. The notice of if the agency or the affected employee Rodney McInnis, 562–980–4030. docketing will identify the judge to making the request is located outside SUPPLEMENTARY INFORMATION: whom the request has been assigned. the 50 states and the District of (c) Service of copy. The official Columbia). The request for Regulations governing the ocean salmon submitting a request for a Section 3529 reconsideration should state the reasons fisheries at 50 CFR 660.409(a)(1) state decision shall send to the affected why the Board should consider the that when a quota for the commercial or employee copies of all material request. Mere disagreement with a the recreational fishery, or both, for any provided to the Board. All submissions decision or re-argument of points salmon species in any portion of the to the Board shall indicate that a copy already made is not a sufficient ground fishery management area is projected by has been provided to the affected for seeking reconsideration. the Regional Administrator to be employee. reached on or by a certain date, NMFS Dated: May 5, 1997. will, by an inseason action issued under § 6105.3 Additional submissions [Rule Stephen M. Daniels, 50 CFR 660.411, close the commercial 503]. Chairman, GSA Board of Contract Appeals. or recreational fishery, or both, for all If the affected employee wishes to [FR Doc. 97–12384 Filed 5–9–97; 8:45 am] salmon species in the portion of the submit any additional information to BILLING CODE 6820±AL±P fishery management area to which the Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25873 quota applies as of the date the quota is Management Council and the California exists for this action to be issued projected to be reached. Department of Fish and Game in making without affording a prior opportunity In the 1996 management measures for this determination. The State of for public comment. This action does 1997 ocean salmon fisheries opening California will manage the commercial not apply to other fisheries that may be earlier than May 1 (61 FR 20175, May fishery in state waters adjacent to this operating in other areas. 6, 1996), NMFS announced that the area of the exclusive economic zone in April 1997 commercial fishery in the accordance with this Federal action. As Classification area between Point Lopez and Point provided by the inseason action This action is authorized by 50 CFR Mugu, CA, would open on April 15 and procedures of 50 CFR 660.411, actual continue through April 28 or attainment notice to fishermen of this action was 660.409 and 660.411 and is exempt from of the 10,000 chinook salmon quota, given prior to 2400 hours local time, review under E.O. 12866. whichever occurred first. April 22, 1997, by telephone hotline Authority: 16 U.S.C. 1801 et seq. The best available information on number 206–526–6667 or 800–662–9825 Dated: May 5, 1997. April 21 indicated that catch and effort and by U.S. Coast Guard Notice to data and projections supported closure Mariners broadcasts on Channel 16 Bruce Morehead, of the commercial fishery in this area at VHF-FM and 2182 kHz. Because of the Acting Director, Office of Sustainable 12 midnight, April 22. The Regional need for immediate action to stop the Fisheries, National Marine Fisheries Service. Administrator consulted with fishery upon achievement of the quota, [FR Doc. 97–12211 Filed 5–9–97; 8:45 am] representatives of the Pacific Fishery NMFS has determined that good cause BILLING CODE 3510±22±F 25874

Proposed Rules Federal Register Vol. 62, No. 91

Monday, May 12, 1997

This section of the FEDERAL REGISTER permits both depository and non- (61 FR 64031, December 3, 1996) contains notices to the public of the proposed depository lenders to pledge or sell the proposing revisions to its regulations for issuance of rules and regulations. The unguaranteed portions of SBA the relicensing of hydropower projects. purpose of these notices is to give interested guaranteed loans. SBA noted in the The date for filing reply comments is persons an opportunity to participate in the interim final rule that it expects to give being extended at the request of the rule making prior to the adoption of the final rules. favorable review to any transaction National Hydropower Association. which complies with the retainage DATES: Reply comments shall be filed on requirements in the proposed rule. or before June 4, 1997. SMALL BUSINESS ADMINISTRATION To assure the widest possible public ADDRESSES: Federal Energy Regulatory participation, SBA will hold a public Commission, 888 First Street, NE., 13 CFR Part 120 hearing on this proposal in Washington, Washington, DC 20426. DC at the Small Business Public Meeting FOR FURTHER INFORMATION CONTACT: Administration Office at 409 3rd Street, Lois D. Cashell, Secretary, 202–208– SW., Washington, DC 20416. The AGENCY: Small Business Administration. 0400. meeting will be held on May 28, 1997, ACTION: Lois D. Cashell, Public meeting on financing and from 2 p.m. to 5 p.m. securitizing the unguaranteed portion of Interested parties will be given a Secretary. SBA loans made under Section 7(a) of reasonable time for an oral presentation [FR Doc. 97–12302 Filed 5–9–97; 8:45 am] the Small Business Act. and may submit written statements of BILLING CODE 6717±01±M SUMMARY: On February 26, 1997, SBA their oral presentation in advance. If published in the Federal Register a you wish to make a presentation, please notice of proposed rulemaking to contact Betty Smith at (202) 205–6490 at DEPARTMENT OF COMMERCE least 5 days before the hearing. If a large modify its rules regarding financing and International Trade Administration securitizing the unguaranteed portions number of participants desire to make statements, a time limitation on each of its loans made under Section 7(a) of 19 CFR Part 351 the Small Business Act. On April 2, presentation will be imposed. 1997, SBA published in the Federal Members of the hearing panel may ask Countervailing Duties; Extension of Register an interim final rule on this questions of the speaker, but speakers Deadline To File Public Comments on matter and extended the time for public will not be allowed to question each Proposed Countervailing Duty comments on the proposed regulation. other. Please submit questions in Regulations Because of the unusually great interest writing in advance, if possible, to the AGENCY: shown, SBA will hold a public hearing Chair. If the Chair determines them to Import Administration, on the proposed rulemaking. be relevant, the Chair will direct them International Trade Administration, to the appropriate panel member. Department of Commerce. DATES: May 28, 1997, 2 p.m. to 5 p.m. Dated: May 7, 1997. ACTION: Extension of deadline to file ADDRESSES: Eisenhower Conference Jeanne Sclater, public comments on proposed Room, U.S. Small Business countervailing duty regulations. Administration, 409 3rd Street, SW., Acting Associate Deputy Administrator for Washington, DC 20416. Economic Development. SUMMARY: The Department of Commerce FOR FURTHER INFORMATION CONTACT: [FR Doc. 97–12408 Filed 5–9–97; 8:45 am] (‘‘the Department’’) is extending the James Hammersley, Acting Deputy BILLING CODE 8025±01±P deadline to file public comments on the Associate Administrator for Financial proposed countervailing duty Assistance, (202) 205–7505. regulations containing changes resulting DEPARTMENT OF ENERGY SUPPLEMENTARY INFORMATION: The issues from the Uruguay Round Agreements for the hearing are contained in the Act (the URAA). The deadline for filing Federal Energy Regulatory comments on the proposed regulations Supplementary Information published Commission in the Federal Register on February 26, is now May 27, 1997. 1997 (62 FR 8640) and April 2, 1997 (62 18 CFR Parts 4 and 375 DATES: The comment deadline has been FR 15601). Previously, SBA regulations extended to May 27, 1997. [Docket No. RM95±16±000] provided non-depository lenders the ADDRESSES: Address written comments opportunity to finance and securitize Regulations for the Relicensing of to the following: Robert S. LaRussa, the unguaranteed portion of SBA Hydropower Projects; Notice of Acting Assistant Secretary for Import Section 7(a) guaranteed loans. The Extension of Time Administration, Central Records Unit, proposed rule, published on February Room 1870, U.S. Department of 26, 1997, would permit both depository Issued May 5, 1997. Commerce, Pennsylvania Avenue and and non-depository lenders to pledge or AGENCY: Federal Energy Regulatory 14th Street NW., Washington, DC 20230. securitize the unguaranteed portions of Commission. The address should also include the SBA guaranteed loans. The proposed ACTION: Notice of extension of time. following: Attention: Proposed rule also describes certain retainage Regulations/Uruguay Round requirements to protect the safety and SUMMARY: On November 26, 1996, the Agreements Act—Countervailing Duties. soundness of the program. The interim Federal Energy Regulatory Commission Each person submitting a comment is final rule, published on April 2, 1997, issued a Notice of Proposed Rulemaking requested to include his or her name Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 25875 and address, and give reasons for any DEPARTMENT OF THE INTERIOR Dated: May 2, 1997. recommendation. Allen D. Klein, Office of Surface Mining Reclamation Regional Director, Appalachian Regional FOR FURTHER INFORMATION CONTACT: and Enforcement Coordinating Center. Jennifer A. Yeske at (202) 482–0189. [FR Doc. 97–12260 Filed 5–9–97; 8:45 am] 30 CFR Part 914 SUPPLEMENTARY INFORMATION: On BILLING CODE 4310±05±M February 26, 1997, the Department published proposed countervailing duty [SPATS No. IN±110±FOR, Amendment No. regulations (62 FR 8818). We requested 93±7] DEPARTMENT OF DEFENSE written comments from the public to be Indiana Regulatory Program submitted by April 28, 1997. On April Office of the Secretary 23, 1997, we published a notification of AGENCY: Office of Surface Mining 32 CFR Part 285 extension of the deadline for filing Reclamation and Enforcement (OSM), comments to May 12, 1997 (62 FR Interior. DOD Freedom of Information Act 19719). We have further extended the ACTION: Proposed rule; withdrawal of (FOIA) Program deadline to May 27, 1997. proposed amendment. AGENCY: Office of the Secretary, Proposed Regulations Department of Defense (DOD). SUMMARY: OSM is announcing the ACTION: Proposed rule. The proposed regulations are withdrawal of part of a proposed available on the Internet at the following amendment to the Indiana regulatory SUMMARY: This proposed revision to the address: http://www.ita.doc.gov/ program (hereinafter the ‘‘Indiana DOD Freedom of Information Act importladmin/records/ program’’) under the Surface Mining (FOIA) Program provides substantive In addition, the proposed regulations Control and Reclamation Act of 1977 and administrative changes. It conforms are available to the public on 3.5′′ (SMCRA). The proposed amendment to the requirements of the Electronic diskettes, with specific instructions for that is being withdrawn is the second Freedom of Information Act accessing compressed data, at cost, and part of a larger amendment submitted by Amendments of 1996, as amended by paper copies available for reading and Indiana. The first part of the amendment Public Law 104–231. photocopying in Room B–099 of the was previously approved by OSM. The DATES: Comments must be received by amendments being withdrawn pertain Central Records Unit. Any questions July 11, 1997. to permit revisions. Indiana is concerning file formatting, document ADDRESSES: Forward comments to withdrawing this amendment because it conversion, access on the Internet, or ASD(PA), Room 2C757, 1400 Defense was recalled by the Indiana Attorney Pentagon, Washington, DC 20301–1400. other file requirements should be General. addressed to Andrew Lee Beller, FOR FURTHER INFORMATION CONTACT: Mr. Director of Central Records, (202) 482– DATES: This proposed amendment is C. Talbott, 703–697–1180. 0866. withdrawn May 12, 1997. SUPPLEMENTARY INFORMATION: Format and Number of Copies FOR FURTHER INFORMATION CONTACT: Executive Order 12866, ‘‘Regulatory Andrew R. Gilmore, Director, Planning and Review’’ To simplify the processing and Indianapolis Field Office, Telephone: It has been determined that 32 CFR distribution of the public comments (317) 226–6700. part 285 is not a significant regulatory pertaining to the Department’s proposed SUPPLEMENTARY INFORMATION: action. The rule does not: regulations, parties are encouraged to By letter dated December 30, 1993 (1) Have an annual effect to the submit documents in electronic form (Administrative Record No. IND–1322), economy of $100 million or more or accompanied by an original and three Indiana submitted proposed amendment adversely affect in a material way the paper copies. All documents filed in number 93–7 to its program pursuant to economy; a section of the economy; electronic form must be on DOS productivity; competition; jobs; the ′′ SMCRA. The amendment concerned formatted 3.5 diskettes, and must be revisions to numerous sections of the environment; public health or safety; or prepared in either WordPerfect format Indiana rules to address OSM State, local, or tribal governments or or a format that the WordPerfect Regulatory Reform I, II, and III issues. communities; program can convert and import into Indiana subsequently subdivided the (2) Create a serious inconsistency or WordPerfect. If possible, the Department amendment, and OSM approved Part I otherwise interfere with an action taken would appreciate the documents being on November 9, 1995 (60 FR 56516). or planned by another Agency; filed in either ASCII format or (3) Materially alter the budgetary On April 30, 1997 (Administrative impact of entitlements, grants, user fees, WordPerfect, and containing generic Record No. IND–1568), Indiana codes. The Department would also or loan programs, or the rights and requested that Part II of amendment 93– obligations of recipients thereof; or appreciate the use of descriptive 7 be withdrawn. Indiana intends to filenames. (4) Raise novel legal or policy issues revise the amendment prior to arising out of legal mandates, the Dated: May 8, 1997. resubmitting it for formal review and President’s priorities, or the principles Robert S. LaRussa, approval by OSM. Therefore, set forth in this Executive Order. amendment 93–7 Part II as announced Acting Assistant Secretary for Import Public Law 96–354, ‘‘Regulatory Administration. in the December 20, 1995, Federal Register (60 FR 65611) is withdrawn. Flexibility Act’’ (5 U.S.C. 601) [FR Doc. 97–12490 Filed 5–9–97; 8:45 am] List of Subjects in 30 CFR Part 914 It has been certified that this rule is BILLING CODE 3510±DS±P not subject to the Regulatory Flexibility Intergovernmental relations, Surface Act (5 U.S.C. 601) because it would not, mining, Underground mining. if promulgated, have a significant 25876 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules economic impact on a substantial Defense, consistent with DOD’s prescribed by this part or by other number of small entities. This rule responsibility to ensure national issuances of the ASD(PA). For the implements the Freedom of Information security. guidance of the public, the information Act (5 U.S.C. 552), a statute concerning (b) Allow a requester to obtain agency specified in 5 U.S.C. 552(a)(1) shall be the release of Federal Government records from the Department of Defense published in accordance with DOD records, and does not economically that are available through other public Directive 5400.93. impact Federal Government relations information services without invoking (2) Conduct training on the provisions with the private sector. the FOIA. of this part, 5 U.S.C. 552, and 32 CFR (c) Make available, under the part 286 for officials and employees Public Law 96–511, ‘‘Paperwork procedures established by 32 part 286, who implement the FOIA. Reduction Act’’ (44 U.S.C. Chapter 35) those agency records that are requested (3) Submit the report prescribed in It has been certified that this part does by a member of the general public who Chapter 7 of DOD 5400.7–R.4 not impose any reporting or cites the FOIA. (4) Make available for public recordkeeping requirements under the (d) Answer promptly all other inspection and copying in an Paperwork Reduction Act of 1995. requests for information, agency appropriate facility or facilities, in List of Subjects in 32 CFR Part 285 records, objects, and articles under accordance with rules published in the established procedures and practices. Federal Register the records specified in Freedom of Information. (e) Release agency records to the 5 U.S.C. 552(a)(2) unless such records Accordingly, 32 CFR part 285 is public unless those records are exempt are published and copies are offered for proposed to be revised to read as from mandatory disclosure as outlined sale. follows: in 5 U.S.C. 552. (5) Maintain and make available for (f) Process requests by individuals for public in inspection and copying PART 285ÐDOD FREEDOM OF access to records about themselves current indices of these records are INFORMATION ACT (FOIA) PROGRAM under the Privacy Act procedures as required by U.S.C. 552. Sec. implemented by DOD Directive 1 § 285.5 Information requirements. 285.1 Purpose. 5400.11 , and procedures outlined in 285.2 Applicability and scope. this part as amplified by 32 CFR part The reporting requirements in 285.3 Policy. 286. Chapter 7 of DOD 5400.7–R have been 252.4 Responsibilities. assigned Report Control Symbol DD– 285.5 Information requirements. § 285.4 Responsibilities. PA(A) 1365. Authority: 5 U.S.C. 552. (a) The Assistant Secretary of Defense Dated: April 29, 1997. for Public Affairs (ASD (PA)) shall: L.M. Bynum, § 285.1 Purpose. (1) Direct and administer the DOD This part: Alternate OSD Federal Register Liaison FOIA Program to ensure compliance Officer. (a) Update policies and with policies and procedures that [FR Doc. 97–11599 Filed 5–9–97; 8:45 am] responsibilities for the implementation govern the administration of the of the DOD FOIA Program under 5 program. BILLING CODE 5000±04±M U.S.C. 552. (2) Issue a DOD FOIA regulation and (b) Continues to delegate authorities other discretionary instructions and and responsibilities for the effective guidance to ensure timely and POSTAL SERVICE administration of the FOIA program. reasonably uniform implementation of the FOIA in the Department of Defense. 39 CFR Parts 111 and 502 § 285.2 Applicability and scope. (3) Internally administer the FOIA Manufacture, Distribution, and Use of (a) This part applies to the Office of Program for OSD, the Chairman of the the Secretary of Defense (OSD), the Postal Security Devices and Joint Chiefs of Staff and, as an exception Information Based Indicia Military Departments, the Chairman of to DOD Directive 5100.3 2, the the Joint Chiefs of Staff, the Combatant Combatant Commands. AGENCY: Postal Service. Commands, the Inspector General of the (4) As the designee of the Secretary of Department of Defense (IG, DoD), the ACTION: Correction to notice of proposed Defense, serve as the sole appellate rule. Defense Agencies, and the DoD Field authority for appeals to decisions of Activities (hereafter referred to respective Initial Denial Authorities SUMMARY: The original document (62 FR collectively as ‘‘the DoD Components’’). within OSD, the Chairman of the Joint 14833; March 28, 1997) included an (b) National Security Agency/Central Chiefs of Staff, the Combatant incorrect date and an incorrect Security Service records are subject to Commands, and the DOD Field statement of reference. this part unless the records are exempt Activities. DATES: Comments on the proposed under 50 U.S.C. 401 note. The records (b) The General Counsel, Department of the Defense Intelligence Agency, policies must be received on or before of Defense shall provide uniformity in June 30, 1997. National Reconnaissance Office, and the the legal interpretation of this part. National Imagery and Mapping Agency SUPPLEMENTARY INFORMATION: For (c) The Heads of DOD Components purposes of clarification, the proposed are also subject to this part unless the shall: records are exempt under 10 U.S.C. 424. policies and regulations apply to all (1) Publish in the Federal Register computer based (open) systems. In § 285.3 Policy. any instructions necessary for the addition, they apply to all other It is DoD policy to: internal administration of this part technologies that could incorporate the (a) Promote public trust by making the within a DOD Component that are not new secure features of an Information maximum amount of information Based Indicia, and are specifically 1 Copies may be obtained, at cost, from the available to the public, in both hardcopy National Technical Information Service, 5285 Port and electronic formats, on the operation Royal Road, Springfield, VA 22161. 3 See footnote 1 to § 285.3(f) and activities of the Department of 2 See footnote 1 to § 285.3 (f). 4 See footnote 1 to § 285.3(f) Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 25877 submitted as such to the Postal Service Correction Correction by a Product/Service Provider. In the Federal Register issue of May Section 502.30 Provider Infrastructure In the Federal Register issue of May 2, 1997, in FR Vol. 62, No. 85, on page (published in the Federal Register of 2, 1997, in FR Vol. 62, No. 85, insert the 24232, in the last paragraph, correct the March 28, 1997, on page 14842, following four paragraphs of text number 33 to read: 47. incorrectly references the Information between the last paragraph on page Based Indicia Program Product/Service 24240 and the first paragraph on page Correction Provider Infrastructure Specifications. 24241: Option 1: Eliminate DRE Testing In the Federal Register issue of May The first sentence of § 502.30 is hereby 2, 1997, in FR Vol. 62, No. 85, on page corrected as follows: ‘‘The Provider Except for Potentially Problematic 24233, in the first partial paragraph, must establish and maintain an interface Sources. Under this option, DRE testing correct the number 15 to read: 20. to USPS systems.’’ would be waived for all sources, except These proposed regulation changes those that are considered to be Correction are not intended to change any of the potentially problematic—sources that In the Federal Register issue of May current published requirements for the inject hazardous waste into the 2, 1997, in FR Vol. 62, No. 85, on page approval and distribution of postage combustor at locations other than the 24233, in the third full paragraph, meters (closed systems). flame zone. Thus, for example, the correct the number 15 to read: 20. The rest of the document was correct source discussed above that injected as published. waste into an unfired afterburner (and Correction Stanley F. Mires, failed to achieve 99.99% DRE at low CO In the Federal Register issue of May Chief Counsel, Legislative. and HC levels) would be required to 2, 1997, in FR Vol. 62, No. 85, on page [FR Doc. 97–12268 Filed 5–9–97; 8:45 am] perform DRE testing under this option. 24233, in the third full paragraph, BILLING CODE 7710±12±U Option 2: Single DRE Test for All correct the number 33 to read: 47. Sources or Only for Potentially Problematic Sources. Under this option, Dated: May 5, 1997. Elizabeth Cotsworth, ENVIRONMENTAL PROTECTION either all or only potentially AGENCY problematic sources (as defined above) Acting Director, Office of Solid Waste. would be required to perform a single [FR Doc. 97–12377 Filed 5–9–97; 8:45 am] 40 CFR Parts 60, 63, 260, 261, 264, 265, DRE test, unless the facility undergoes BILLING CODE 6560±50±P 266, 270, and 271 a major modification of pollution [FRL±5824±3] control equipment, process change, or waste feed composition that could ENVIRONMENTAL PROTECTION Revised Technical Standards for significantly affect combustion AGENCY performance. We request comment on Hazardous Waste Combustion 40 CFR Part 63 Facilities; Correction how to determine when such a change is about to occur and thus trigger the ACTION: Notice of data availability; need for a DRE test. One approach is to [AD±FRL±5824±5] correction. rely on the requirements for applying National Emission Standards for SUMMARY: The Environmental Protection for a revised Title V or RCRA permit Hazardous Air Pollutants: Source Agency published a notice of data modification (Class 2 or 3) to identify Category List availability and invitation for comment changes warranted a DRE re-test. in the Federal Register of May 2, 1997, Option 3: Periodic DRE Testing for All AGENCY: Environmental Protection on the following information pertaining Sources or Only for Potentially Agency (EPA). to the proposed revised standards for Problematic Sources. Under this option, ACTION: Advance notice of proposed hazardous waste combustors (61 FR all or specific sources must perform a rulemaking (ANPR). 17358 (April 19, 1996)): Report on the periodic demonstration of DRE. status of setting national emission Potential frequencies under SUMMARY: The Clean Air Act (Act) standards for hazardous air pollutants consideration are a five, ten or twenty requires the EPA to list (for regulation (NESHAPS) based on the revised year frequency. The purpose of these under section 112 of the Act) all emissions database; report on the tests would be to confirm that the unit categories of major sources of hazardous selection of pollutants and source is still achieving a high level of air pollutants (HAP’s), and categories of categories, including area and major combustion performance over the life of area sources if they present a threat of sources; report on the status of various the unit. As for option 2, a DRE test adverse effects to human health or the implementation issues, including would have to be performed at any time environment. The EPA has listed many compliance dates, compliance that a major change to the facility sources categories, but has yet to list or requirements, performance testing, and occurred that could significantly affect regulate research and development notification and reporting requirements; combustion performance. (R&D) facilities. Today’s notice provides and report on the status of permit The Agency specifically invites advance notice that the EPA intends to requirements, including waste comment on these options for waiving list R&D, and solicits comments and minimization incentives. The notice DRE testing. In addition, note that these information on the best way to list and inadvertently omitted four paragraphs options are not mutually exclusive. regulate such sources. and contained six incorrect numbers. DATES: Comments. Comments must be Correction FOR FURTHER INFORMATION CONTACT: received on or before June 11, 1997. Larry Denyer, Office of Solid Waste In the Federal Register issue of May ADDRESSES: Comments. Comments (5302W), U.S. Environmental Protection 2, 1997, in FR Vol. 62, No. 85, on page should be submitted (in duplicate) to: Agency, 401 M Street, SW., Washington, 24232, in the last paragraph, in two Air and Radiation Docket and DC 20460, 703–308–8770, e-mail different sentences, correct the number Information Center (6102), Attention: address: [email protected]. 15 to read: 20. Docket No. A–97–11, U.S. 25878 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

Environmental Protection Agency, 401 facilities); the EPA does not believe this required to be listed and regulated, M Street, SW, Washington, DC 20460. section of the Act provides the Agency other than those associated with sources Docket. Docket No. A–97–11 is with discretion regarding whether to list already included in listed source available for public inspection and R&D major sources. The EPA welcomes categories. Although the EPA is not copying from 8:00 a.m. to 5:30 p.m. other interpretations (with legal basis) aware of other R&D sources that need to Monday through Friday, at the EPA’s regarding the discretion of the EPA in be added to the source category list, Air and Radiation Docket and listing R&D major sources. such sources may exist, and the EPA is Information Center, Waterside Mall, Research and development (R&D) is seeking information about them. For Room M–1500, Ground Floor, 401 M performed at many sources which are example, what Federal, State, or private Street SW, Washington, DC 20460. A already included in listed source research facilities, hospitals, reasonable fee may be charged for categories. For example, R&D is universities, military facilities, etc. copying. performed in the synthetic organic require listing? FOR FURTHER INFORMATION CONTACT: For chemical manufacturing industry Since R&D is performed in many information concerning this ANPR, (SOCMI), an industry which is different industries, the EPA is contact Mr. Mark Morris at (919) 541– addressed by the Hazardous Organic considering various ways of listing and 5416, Organic Chemicals Group, NESHAP (HON). The HON does not addressing R&D. R&D major sources Emission Standards Division (MD–13), apply to R&D operations, regardless of could be listed as one category covering U.S. Environmental Protection Agency, whether they are located on the same all R&D operations in all industries. Research Triangle Park, North Carolina site as a commercial chemical However, it may be difficult in this case 27711. manufacturing process. In the preamble to develop standards general enough for to the proposed HON rule, the EPA the variety of sources, and to ensure the SUPPLEMENTARY INFORMATION: The Clean stated it had limited information on the standards are consistent with the Air Act (Act) requires that EPA evaluate operations of R&D facilities and the minimum control requirements and control emissions of hazardous air appropriate controls for them. The EPA (‘‘floors’’) required by the Act. R&D pollutants (HAP’s). The control of stated it was uncertain how to structure could also be listed as several (or many) HAP’s is achieved through a standard for R&D facilities, and different source categories to account for promulgation of emission standards concluded it would be appropriate to the significant differences between under section 112 of the Act for sources establish a separate source category sources. The source categories already that emit HAP’s. The Act requires the covering R&D facilities to ensure listed could provide a guide for listing EPA to publish a list of all categories equitable treatment of them. For reasons the R&D sources of the associated and subcategories of sources of HAP’s. similar to those given in the HON, R&D industries, that is, for each listed source This list is required to be revised (no has been exempted from other category, a corresponding source less often than every 8 years), if NESHAP’s. category for R&D operations could be appropriate, in response to public The EPA is now considering adding listed. comment or new information. The EPA major R&D sources to the source The EPA is seeking comments on the published an initial list of source category list. The term ‘‘major source’’ is advantages and disadvantages of the categories on July 16, 1992. The list was defined as any stationary source or different ways to list R&D facilities last revised on June 14, 1996 (correction group of stationary sources located described above, as well as any other notice on July 18, 1996). within a contiguous area and under options for listing. The EPA is also Section 112(c)(7) of the Act requires common control that emits or has the seeking information on R&D sources so the EPA to ‘‘establish a separate potential to emit (considering controls), it can assess the most reasonable and category covering research or laboratory in the aggregate, 10 tons per year or practical way to list and regulate R&D. facilities, as necessary to assure the more of any HAP or 25 tons per year of Such information includes descriptions equitable treatment of such facilities.’’ any combination of HAP’s. Sources that of R&D processes, magnitude of HAP Such language was included in the Act emit HAP’s in amounts smaller than emissions and methods of HAP because Congress was concerned that those of a major source are called area emission estimation, emission controls research and laboratory facilities should sources. and their costs, and any existing State not arbitrarily be included in Language in the Act specifying special or local regulations that may apply to regulations that cover manufacturing treatment of R&D facilities (section R&D facilities. The EPA also invites any operations. The Act defines research or 112(c)(7)), along with language in the trade groups associated with R&D laboratory facility as ‘‘any stationary legislative history of the Act, suggests operations to provide information and source whose primary purpose is to that Congress considered inequitable participate in the process of listing and conduct research and development into subjecting the R&D facilities of an regulating R&D. new processes and products, where industry to a standard designed for the such source is operated under the close commercial production processes of that Electronic Submission of Comments supervision of technically trained industry. The application of such a Comments may be submitted personnel and is not engaged in the standard may be inappropriate because electronically by sending electronic manufacture of products for commercial the wide range of R&D operations and mail (e-mail) to: a-and-r- sale in commerce, except in a de sizes, and the frequent changes in R&D [email protected]. Electronic minimis manner.’’ operations, may be significantly comments must be submitted as an The EPA has interpreted the Act as different from the typically large and ASCII file, avoiding the use of special requiring the listing of R&D major continuous production processes. characters and any form of encryption. sources. It is clear from section 112(c)(7) The Act requires the EPA to list all Comments will also be accepted on of the Act that Congress intended for categories of major sources of HAP’s, diskette in WordPerfect 5.1 or ASCII file R&D to receive special treatment. The and categories of area sources if they format. All comments in electronic form EPA has interpreted this section of the present a threat of adverse effects to must be identified by the docket number Act as requiring the creation of a human health or the environment. The A–97–11. No Confidential Business separate category for R&D (as necessary EPA has no information indicating there Information (CBI) should be submitted to ensure equitable treatment of such are major or area R&D sources that are through e-mail. Electronic comments Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 25879 may be filed online at many Federal ENVIRONMENTAL PROTECTION U.S. Environmental Protection Agency, Depository Libraries. AGENCY 401 M Street, SW, Washington, DC 20460. A copy should also be sent to Administrative Requirements 40 CFR Part 80 Karen Smith at U.S. Environmental Protection Agency, Office of Air and Because today’s notice is not a rule or [FRL±5825±3] a proposed rule, the EPA has not Radiation, 401 M Street, SW (6406J), prepared an economic impact analysis Regulations of Fuels and Fuel Washington, DC 20460. pursuant to section 317 of the Act, a Additives: Baseline Requirements for FOR FURTHER INFORMATION CONTACT: regulatory flexibility analysis pursuant Gasoline Produced by Foreign Karen Smith at U.S. Environmental to the Regulatory Flexibility Act, or a Refiners Protection Agency Office of Air and written statement under section 202 of Radiation, 401 M Street, SW (6406J), the Unfunded Mandates Act of 1995. AGENCY: Environmental Protection Washington, DC 20460, (202) 233–9674. Also, this notice does not contain any Agency (EPA). SUPPLEMENTARY INFORMATION: A copy of information collection requirements ACTION: Proposed rule; notice of public this notice is available on the OAQPS and, therefore, is not subject to the hearing. Technology Transfer Network Bulletin Paperwork Reduction Act. Board System (TTNBBS) and on the SUMMARY: This document announces the Office of Mobile Sources’ World Wide Under Executive Order 12866 [58 FR time and place for a public hearing 5173 (October 4, 1993)], the EPA must Web cite, http://www.epa.gov/ regarding EPA’s proposed rule to revise OMSWWW. determine whether the regulatory action the requirements for imported gasoline. is ‘‘significant’’ and therefore subject to The Agency is proposing that a foreign Procedures for Public Participation Office of Management and Budget refiner could choose to petition EPA to A. Comments and the Public Docket (OMB) review and the requirements of establish an individual baseline the Executive Order. The Executive reflecting the quality and quantity of The Agency is proposing that a Order defines ‘‘significant regulatory gasoline produced at a foreign refinery foreign refiner could choose to petition EPA to establish an individual baseline action’’ as one that is likely to result in in 1990 that was shipped to the United reflecting the quality and quantity of standards that may: States. The foreign refiner would be gasoline produced at a foreign refinery (1) Have an annual effect on the required to meet the same requirements in 1990 that was shipped to the United economy of $100 million or more or relating to the establishment and use of States. The foreign refiner would be adversely affect, in a material way, the individual refinery baselines as are met required to meet the same requirements economy, a sector of the economy, by domestic refiners. The agency relating to the establishment and use of productivity, competition, jobs, the published this proposed rule in the individual refinery baselines as are met environment, public health or safety, or Federal Register on May 6, 1997 (See 62 by domestic refiners. Additional State, local, or tribal governments or FR 24775 for further information on the requirements are also being proposed to communities; proposal). address issues that are unique to (2) Create a serious inconsistency or DATES: EPA will conduct a public refiners and refineries located outside otherwise interfere with an action taken hearing on the proposed rule from 9:00 the United States, related to tracking the or planned by another agency; a.m. on May 20, 1997, in Washington, movement of gasoline from the refinery (3) Materially alter the budgetary D.C. If you wish to testify at this public to the United States border, monitoring impact of entitlement, grants, user fees, hearing, contact Karen Smith at (202) compliance with the requirements that or loan programs or the rights and 233–9674 by Tuesday, May 13, 1997. If apply to parties outside the United obligations of recipients thereof; or there are no parties interested in States, and imposition of appropriate (4) Raise novel legal or policy issues testifying on this proposal, the hearing sanctions for violations. EPA is also arising out of legal mandates, the will be subject to cancellation without proposing that it would monitor the President’s priorities, or the principles further notification. If you want to know quality of imported gasoline, and if it set forth in the Executive Order. if the hearing has been canceled contact exceeded a specified benchmark, EPA the person named above. Pursuant to the terms of the Executive would apply appropriate remedial Order, the OMB has notified the EPA ADDRESSES: The public hearing will be action. EPA is proposing that the that it considers this a ‘‘significant held from 9:00 a.m. until noon at the baseline for gasoline imported from regulatory action’’ within the meaning The Wyndham Bristol Hotel, The refiners without an individual baseline of the Executive Order. The EPA Potomac Rooms 2430 Pennsylvania would be adjusted to remedy the submitted this action to the OMB for Avenue, N.W. Washington, D.C. 22037. exceedance. review. Changes made in response to If additional time is needed to hear Persons with comments containing suggestions or recommendations from testimony, the hearing will continue propriety information must distinguish the OMB were documented and from 1:00 until 5:00 p.m. in the same such information from other comments included in the public record. location. Materials relevant to this to the greatest extent and label it as document have been placed in Docket ‘‘Confidential Business Information.’’ If List of Subjects A–97–26. The docket is located at the a person making comments wants EPA Air pollution control, Hazardous air Air Docket Section, Mail Code 6102, to base the final rule in part on a pollutants, Research and development, U.S. Environmental Protection Agency, submission labeled as confidential Environmental protection. 401 M Street, SW, Washington, DC business information, then a non- 20460, in room M–1500 Waterside Mall. confidential version of the document Dated: May 2, 1997. Documents may be inspected from 8:00 which summarizes the key data or Richard Wilson, a.m. to 5:30 p.m. A reasonable fee may information should be placed in the Acting Assistant Administrator for Air and be charged for copying docket materials. public docket. Information covered by a Radiation. Written comments should be claim of confidentiality will be [FR Doc. 97–12376 Filed 5–9–97; 8:45 am] submitted (in duplicate, if possible) to disclosed by EPA only to the extent BILLING CODE 6560±50±P Air Docket Section, Mail Code 6102, allowed by the procedures set forth in 25880 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

40 CFR part 2. If no claim of the record of the public hearing and on with the floodplain management criteria confidentiality accompanies the any other relevant written submissions required by 44 CFR 60.3, are the submission when it is received by EPA, and other pertinent information. This minimum that are required. They it may be made available to the public information will be available for public should not be construed to mean that without further notice to the person inspection at the EPA Air Docket, the community must change any making comments. Docket No. A–97–26 (see ADDRESSES). existing ordinances that are more B. Public Participation Dated: May 8, 1997. stringent in their floodplain management requirements. The Any person desiring to present Mary D. Nichols, Assistant Administrator for Air and community may at any time enact testimony regarding this proposed rule stricter requirements of its own, or at the public hearing (see DATES) Radiation. [FR Doc. 97–12476 Filed 5–9–97; 8:45 am] pursuant to policies established by other should notify the contact person listed Federal, state or regional entities. These BILLING CODE 6560±50±P above of such intent as soon as possible. proposed elevations are used to meet A sign-up sheet will be available at the the floodplain management registration table the morning of the requirements of the NFIP and are also FEDERAL EMERGENCY hearing for scheduling testimony for used to calculate the appropriate flood MANAGEMENT AGENCY those who have not notified the contact insurance premium rates for new person. This testimony will be 44 CFR Part 67 buildings built after these elevations are scheduled on a first come, first served made final, and for the contents in these basis to follow the previously scheduled [Docket No. FEMA±7219] buildings. testimony. EPA suggests that approximately 50 Proposed Flood Elevation National Environmental Policy Act copies of the statement or material to be Determinations This proposed rule is categorically presented be brought to the hearing for AGENCY: Federal Emergency excluded from the requirements of 44 distribution to the audience. In Management Agency, FEMA. CFR Part 10, Environmental addition, EPA would find it helpful to ACTION: Proposed rule. Consideration. No environmental receive an advance copy of any impact assessment has been prepared. statement or material to be presented at SUMMARY: Technical information or Regulatory Flexibility Act the hearing in order to give EPA staff comments are requested on the adequate time to review such material proposed base (1% annual chance) flood The Executive Associate Director, before the hearing. Such advance copies elevations and proposed base flood Mitigation Directorate, certifies that this should be submitted to the contact elevation modifications for the proposed rule is exempt from the person listed previously. communities listed below. The base requirements of the Regulatory The official records of the hearing will flood elevations are the basis for the Flexibility Act because proposed or be kept open for 30 days following the floodplain management measures that modified base flood elevations are hearing to allow submission of rebuttal the community is required either to required by the Flood Disaster and supplementary testimony. All such adopt or to show evidence of being Protection Act of 1973, 42 U.S.C. 4104, submittals should be directed to the Air already in effect in order to qualify or and are required to establish and Docket, Docket No. A–97–26 (see remain qualified for participation in the maintain community eligibility in the ADDRESSES). National Flood Insurance Program. As a Mr. Charles Freed, Division Director National Flood Insurance Program result, a regulatory flexibility analysis of the Fuels and Energy Division, Office (NFIP). has not been prepared. of Mobile Sources, is hereby designated DATES: The comment period is ninety Presiding Officer of the hearing. The (90) days following the second Regulatory Classification publication of this proposed rule in a hearing will be conducted informally This proposed rule is not a significant and technical rules of evidence will not newspaper of local circulation in each community. regulatory action under the criteria of apply. Because a public hearing is section 3(f) of Executive Order 12866 of ADDRESSES: The proposed base flood designed to give interested parties an September 30, 1993, Regulatory elevations for each community are opportunity to participate in the Planning and Review, 58 FR 51735. proceeding, there are no adversary available for inspection at the office of parties as such. Statements by the Chief Executive Officer of each Executive Order 12612, Federalism participants will not be subject to cross community. The respective addresses This proposed rule involves no examination by other participants. A are listed in the following table. policies that have federalism written transcript of the hearing will be FOR FURTHER INFORMATION CONTACT: implications under Executive Order placed in the above docket for review. Frederick H. Sharrocks, Jr., Chief, 12612, Federalism, dated October 26, Anyone desiring to purchase a copy of Hazard Identification Branch, Mitigation 1987. the transcript should make individual Directorate, 500 C Street SW., arrangements with the court reporter Washington, DC 20472, (202) 646–2796. Executive Order 12778, Civil Justice Reform recording the proceeding. The Presiding SUPPLEMENTARY INFORMATION: The Officer is authorized to strike from the Federal Emergency Management Agency This proposed rule meets the record statements which he deems (FEMA or Agency) proposes to make applicable standards of section 2(b)(2) of irrelevant or repetitious and to impose determinations of base flood elevations Executive Order 12778. reasonable limits on the duration of the and modified base flood elevations for List of Subjects in 44 CFR Part 67 statement of any witness. EPA asks that each community listed below, in persons who testify attempt to limit accordance with section 110 of the Administrative practice and their testimony to ten minutes, if Flood Disaster Protection Act of 1973, procedure, Flood insurance, Reporting possible. The Administrator will base 42 U.S.C. 4104, and 44 CFR 67.4(a). and recordkeeping requirements. her decision with regard to the revised These proposed base flood and Accordingly, 44 CFR part 67 is requirements for imported gasoline on modified base flood elevations, together proposed to be amended as follows: Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 25881

PART 67Ð[AMENDED] Authority: 42 U.S.C. 4001 et seq.; § 67.4 [Amended] Reorganization Plan No. 3 of 1978, 3 CFR, 2. The tables published under the 1. The authority citation for part 67 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, authority of § 67.4 are proposed to be continues to read as follows: 3 CFR, 1979 Comp., p. 376. amended as follows:

#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) Existing Modified

Connecticut ...... New Britain (City) Willow Brook ...... Approximately 300 feet downstream of *63 *61 Hartford County. Willow Brook Park Road. Approximately 800 feet upstream of Res- *345 *344 ervoir Road. Mason Pond Brook ...... At confluence with Willow Brook ...... *168 *170 Approximately 75 feet upstream of Shut- *172 *171 tle Meadow Avenue. Schultz Pond Brook ...... At the confluence with Willow Brook ...... *175 *176 Approximately 815 feet upstream of Res- *345 *344 ervoir Road. Bass Brook ...... Approximately 1,600 feet downstream of *89 *90 East Street. *263 *267 Approximately 825 feet upstream of up- stream crossing of Lewis Road. Batterson Park Pond Approximately 400 feet downstream of *178 *177 Brook. Stanley Park Road. *207 *206 Approximately 115 feet upstream of Brit- tany Farms Road. Gaffney Brook ...... At Francis Street ...... *174 *176 Approximately 1,400 feet upstream of *179 *181 Francis Street. Sandy Brook ...... At corporate limits ...... *89 *90 Approximately 650 feet upstream of Ella None *131 Grasso Road. Maps available for inspection at the New Britain City Hall, Engineering DepartmentÐRoom 503, 27 West Main Street, New Britain, Connecti- cut. Send comments to The Honorable Lucian Pawlak, Mayor of the City of New Britain, New Britain City Hall, 27 West Main Street, New Britain, Connecticut 06051.

Connecticut ...... Wilton (Town) Fair- West Branch Saugatuck Approximately 840 feet upstream of *96 *95 field County. River. Westport/Wilton corporate limits. Approximately 800 feet upstream of *160 *159 Route 53 (Cedar Road). Maps available for inspection at the Inland Wetland Commission, Wilton Town Hall Annex, 238 Danbury Road, Wilton, Connecticut. Send comments to Mr. Bob Russell, First Selectman for the Town of Wilton, 238 Danbury Road, Wilton, Connecticut 06897.

Georgia ...... Rockdale County Yellow River ...... At confluence of Big Haynes Creek ...... *646 *652 (Unincorporated Approximately 200 feet downstream of *659 *660 Areas). Georgia Highway 138. Big Haynes Creek ...... At confluence with Yellow River ...... *646 *652 At confluence of Little Haynes Creek ...... None *661 Little Haynes Creek ...... At confluence with Big Haynes Creek ...... None *661 At county boundary ...... None *697 Maps available for inspection at Rockdale County Planning and Development Department, 2570 Old Covington Highway, Conyers, Georgia 30207. Send comments to Mr. Randolph W. Poynter, Chairman of the Rockdale County Board of Commissioners, 922 Court Street, P.O. Box 289, Conyers, Georgia 30207.

Michigan ...... Escanaba (Town- Little Bay De Noc ...... Entire shoreline within community ...... None *585 ship) Delta Coun- ty. Maps available for inspection at the Escanaba Township Hall, County 416, 20th Road, Gladstone, Michigan. Send comments to Mr. Kevin Dubord, Escanaba Township Supervisor, 3983 County 416, 20th Road, Gladstone, Michigan 49837.

Georgia ...... Trion (Town) Chattooga River ...... Approximately 1,400 feet downstream of *659 *656 Chattooga Coun- U.S. 27. ty. Approximately 0.75 mile upstream of con- *684 *682 fluence of Cane Creek. Cane Creek ...... At confluence with Chattooga River ...... *681 *679 Approximately 0.5 mile upstream of Wel- *681 *680 come Hill Road. Spring Branch ...... At confluence with Chappel Creek ...... *661 *659 25882 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) Existing Modified

Approximately 100 feet downstream of *664 *663 Central Avenue. Chappel Creek ...... At confluence with Chattooga River ...... *661 *659 Approximately 1,150 feet upstream of *661 *659 First Street. Trion Branch ...... At confluence with Chattooga River ...... *663 *661 Approximately 50 feet upstream of *663 *662 Allgood Street. Maps available for inspection at the Trion Town Hall, 128 Park Avenue, Trion, Georgia. Send comments to The Honorable Alan Plunkett, Mayor of the Town of Trion, Trion Town Hall, P.O. Box 727, Trion, Georgia 30753.

Michigan ...... Fairbanks (Town- Big Bay De Noc ...... Approximately 200 feet west and south of None *584 ship) Delta Coun- the intersection of 11 Road and 11 ty. Drive. Green Bay ...... In the vicinity of Sac Bay at the southern- None *585 most tip of Garden Peninsula. None *584 Lake Michigan ...... Entire shoreline within community ...... None *584 Maps available for inspection at the Fairbanks Township Hall, 4314 11 Road, Garden, Michigan. Send comments to Mr. John Latulip, Fairbanks Township Supervisor, 4677 LL Road, Garden, Michigan 49829.

Michigan ...... Garden (Township) Big Bay De Noc ...... Entire shoreline within community ...... None *585 Delta County. Lake Michigan ...... Entire shoreline within community ...... None *584 Maps available for inspection at the Garden Supervisor's Office, State Road, Garden, Michigan. Send comments to Mr. Gary Plant, Garden Township Supervisor, P.O. Box 82, Garden, Michigan 49835.

Michigan ...... Frankenmuth (City) Cass River ...... Approximately 0.6 mile downstream of *607 *612 Saginaw County. South Main Street. Approximately 1.1 miles upstream of *612 *614 South Main Street. Maps available for inspection at the Frankenmuth City Hall, 240 West Genesee Street, Frankenmuth, Michigan. Send comments to Mr. Charles Graham, Manager of the City of Frankenmuth, Frankenmuth City Hall, 240 West Genesee Street, Frankenmuth, Michigan 48743.

New York ...... Yonkers (City) Saw Mill River ...... Approximately 1,420 feet downstream of None *95 Westchester Ashburton Avenue. County. Approximately 0.4 mile upstream of *117 *115 Hearst Street. Crestwood Lake ...... None *161 Maps available for inspection at the Engineering Department, Room 313, Yonkers City Hall, Yonkers, New York. Send comments to The Honorable John D. Spencer, Mayor of the City of Yonkers, Yonkers City Hall, Yonkers, New York 10701.

North Carolina ...... North Topsail Atlantic Ocean ...... Approximately 225 feet south of the inter- *16 *19 Beach (Town) section of 14th Avenue and Ocean Onslow County. Boulevard (SR 1583). Just north of the intersection of Gray *7 *11 Street and North Carolina State Route 210. Stump Sound/Intracoastal Approximately 0.7 mile north of the inter- *7 *11 Waterway. section of Sand Piper Drive and New River Inlet Road. Approximately 0.5 mile northeast of con- *7 *11 fluence of Normans Creek and Old Sound Channel. Maps available for inspection at the North Topsail Beach Town Hall, 2008 Loggerhead Court, North Topsail Beach, North Carolina. Send comments to Ms. Ann Vause, Town of North Topsail Beach Manager, 2008 Loggerhead Court, North Topsail Beach, North Carolina 28460.

North Carolina ...... Surf City (Town) Atlantic Ocean ...... Approximately 250 feet south of the inter- *16 *19 Pender and section of NC 50 and Reachwood Onslow Counties. Drive. At intersection of Goldsboro Avenue and *7 *11 New River Drive. Topsail Sound ...... Approximately 1,250 feet northwest of the *7 *12 intersection of Pender Avenue and Shore Drive. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 25883

#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) Existing Modified

Approximately 1,400 feet northwest of the *10 *9 intersection of NC 50 and Reachwood Drive. Maps available for inspection at the Surf City Town Hall, P.O. Box 2475, Surf City, North Carolina. Send comments to The Honorable Vance Kee, Mayor of the Town of Surf City, P.O. Box 2475, Surf City, North Carolina 28445.

North Carolina ...... Topsail Beach Atlantic Ocean ...... Approximately 350 feet southeast of the *17 *20 (Town) Pender intersection of Clark Avenue and NC County. State Route 1554. At intersection of Humphrey Avenue and None *13 Shore Drive. Topsail Sound ...... Approximately 700 feet west of the inter- *14 *13 section of Shore Line Drive and God- win Avenue. Approximately 450 feet northwest of *9 *10 intersection of Fields Avenue and Shore Drive. Maps available for inspection at the Topsail Beach Town Hall, 820 South Anderson Boulevard, Topsail Beach, North Carolina. Send comments to Mr. Eric Peterson, Topsail Beach Town Manager, P.O. Box 3089, Topsail Beach, North Carolina 28445±9831.

Ohio ...... Clark County (Unin- Mad River ...... At CONRAIL ...... *889 *888 corporated Areas). Approximately 2,100 feet downstream of None *856 Snider Road. Maps available for inspection at the Clark County Building Department, 25 West Pleasant Street, Springfield, Ohio. Send comments to Mr. Roger Tackett, President of the Clark County Board of Commissioners, P.O. Box 2639, Springfield, Ohio 45501.

Pennsylvania ...... Hatfield (Township) West Branch Neshaminy Approximately 600 feet upstream of con- *288 *289 Montgomery Creek Tributary No. 2. fluence with West Branch Neshaminy County. Creek. Approximately 600 feet upstream of *303 *302 Lansdale Tributary. Maps available for inspection at the Hatfield Township Administration Building, 1950 School Road, Hatfield, Pennsylvania. Send comments to Ms. Jean R. Vandegrift, President of the Township of Hatfield Board of Commissioners, 1950 School Road, Hatfield, Pennsylvania 19440.

Pennsylvania ...... Lansdale (Borough) West Branch Neshaminy Approximately 250 feet upstream of *299 *301 Montgomery Creek Tributary No. 2 Schues Road. County. (previously Lansdale Tributary and Neshaminy Creek Branch). Approximately 650 feet upstream of West *324 *318 5th Street. Maps available for inspection at the Lansdale Borough Building, One Vine Street, Lansdale, Pennsylvania. Send comments to Mr. Lee Mangan, Lansdale Borough Manager, One Vine Street, Lansdale, Pennsylvania 19446.

Pennsylvania ...... Pike (Township) Bieber Creek ...... At a point approximately 730 feet up- None *398 Berks County. stream of Keim Road. At a point approximately 0.27 mile up- None *407 stream of Keim Road. Maps available for inspection at the Pike Township Building, Hill Church Road, Oley, Pennsylvania. Send comments to Mr. Timothy P. Korsak, Chairman of the Pike Township Board of Supervisors, R.D. #4, Box 280, Boyertown, Pennsylvania 19512.

Pennsylvania ...... Plains (Township) Mill Creek ...... Confluence with Susquehanna River ...... *551 *549 Luzerne County. Approximately 900 feet upstream from None *694 State Route 315. Unnamed Tributary to Mill Confluence with Mill Creek ...... None *680 Creek. Approximately 1,400 feet upstream of None *680 confluence with Mill Creek. Susquehanna River ...... At downstream corporate limits ...... *550 *549 Approximately 900 feet upstream of the *555 *553 upstream corporate limits. 25884 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) Existing Modified

Maps available for inspection at Plains Town Hall Municipal Building, 126 North Main Street, Plains, Pennsylvania. Send comments to Mr. Robert Stella, Chairman of the Township of Plains Board of Commissioners, Luzerne County, 126 North Main Street, Plains, Pennsylvania 18705.

Pennsylvania ...... Reynoldsville (Bor- Soldier Run ...... Approximately 600 feet upstream of *1,369 *1,368 ough). Worth Street. Jefferson County ... At corporate limits ...... *1,378 *1,376 Maps available for inspection at the Reynoldsville Municipal Building, 460 Main Street, Reynoldsville, Pennsylvania. Send comments to Mr. Richard R. Reed, President of the Reynoldsville Borough Council, P.O. Box 67, Reynoldsville, Pennsylvania 15851.

Pennsylvania ...... Winslow (Township) Soldier Run ...... Downstream corporate limits ...... *1,378 *1,376 Jefferson County ... Upstream corporate limits ...... None *1,482 Maps available for inspection at the Winslow Township Municipal Building, R.D. 1, Reynoldsville, Pennsylvania. Send comments to Mr. Kenneth J. Long, Chairman of the Township of Winslow Board of Supervisors, Township Municipal Building, R.D. 1, Box 4, Reynoldsville, Pennsylvania 15851.

Wisconsin ...... Eau Claire (City) Chippewa River ...... At Interstate 94 ...... *774 *773 Chippewa and Eau Claire Coun- ties. Upstream corporate limits *808 ...... *806 Sherman Creek ...... Confluence with Chippewa River ...... *778 *776 Approximately 1.0 mile upstream of *807 *808 Menomonie Street. Eau Claire River ...... At the confluence with Chippewa River ... *784 *782 Downstream side of Chicago and North- *784 *783 western Railroad spur. Maps available for inspection at the Eau Claire City Hall, Inspection Service Office, 203 South Farwell Street, Eau Claire, Wisconsin. Send comments to Mr. Don Norrell, Manager of the City of Eau Claire, 203 South Farwell Street, Call Box 5148, Eau Claire, Wisconsin 54707±5148.

(Catalog of Federal Domestic Assistance No. 83.100, ‘‘Flood Insurance.’’) Dated: April 23, 1997. Richard W. Krimm, Executive Associate Director, Mitigation Directorate. [FR Doc. 97–12370 Filed 5–9–97; 8:45 am] 25885

Notices Federal Register Vol. 62, No. 91

Monday, May 12, 1997

This section of the FEDERAL REGISTER provide a greater variety of processed changes designed to improve the State contains documents other than rules or end products to recipient agencies in a processing of donated foods. proposed rules that are applicable to the more timely manner at lower costs. public. Notices of hearings and investigations, Current Program Requirements DATES: The proposals described in this committee meetings, agency decisions and The State processing regulations at Notice may be submitted to FCS through rulings, delegations of authority, filing of § 250.30(f)(1)(i) currently allow for the June 30, 1998. Note that the petitions and applications and agency substitution of certain specified donated statements of organization and functions are demonstration project runs until June food items with commercial foods, with examples of documents appearing in this 30, 1999. section. the exception of meat and poultry. ADDRESSES: Proposals should be sent to Under the current regulations at Ellen Henigan, Chief, Schools and § 250.30(g), when donated meat or DEPARTMENT OF AGRICULTURE Institutions Branch, Food Distribution poultry products are processed or when Division, Food and Consumer Service, any commercial meat or poultry Food and Consumer Service U.S. Department of Agriculture, Park products are incorporated into an end Office Center, Room 501, 3101 Park product containing one or more donated Food Distribution Program: Center Drive, Alexandria, Virginia foods, all of the processing is required Substitution of Donated Poultry with 22302–1594. to be performed in plants under Commercial Poultry FOR FURTHER INFORMATION CONTACT: continuous Federal meat or poultry inspection or continuous State meat or AGENCY: Food and Consumer Service, David Brothers, Schools and Institutions poultry inspection in States certified to USDA. Branch, at (703) 305–2644. have programs at least equal to the ACTION: Notice. SUPPLEMENTARY INFORMATION: Federal inspection programs. In addition to Food Safety Inspection SUMMARY: This notice announces the Executive Order 12866 Service (FSIS) inspection, all donated Food and Consumer Service’s (FCS) This notice has been determined to be intent to continue and expand a meat and poultry processing must be not significant and therefore was not performed under Agricultural Marketing demonstration project to test program reviewed by the Office of Management Service (AMS) acceptance service changes designed to improve the State and Budget under Executive Order grading. processing of donated chicken by 12866. Traditionally only a few companies allowing the substitution of donated Executive Order 12372 have processed donated poultry. Those chicken supplied by the Department of processors have stated that the policy Agriculture (the Department) with This program is listed in the Catalog prohibiting the substitution of donated commercial chicken. The Department is of Federal Domestic Assistance under poultry reduces the quantity of donated currently operating a demonstration 10.550 and is subject to the provisions poultry they are able to accept and project that allows selected poultry of Executive Order 12372, which process during a given period. Poultry processors to substitute commercial requires intergovernmental consultation purchased by USDA for further chicken for donated chicken in the State with State and local officials (7 CFR part processing is bulk chill packed. processing of donated chicken. Only 3015, subpart V and final rule-related Processors must schedule production bulk pack chicken and chicken parts are notices published at 48 FR 29114, June around deliveries of the donated poultry eligible for substitution under the 24, 1983 and 49 FR 22675, May 31, since it is a highly perishable product. current demonstration project. Notice of 1984). Some of the processors must schedule the project, which operates from Regulatory Flexibility Act production around deliveries of donated February 1, 1996 through June 30, 1997, poultry for up to 30 individual States. was published in the Federal Register at This action is not a rule as defined by Vendors do not always deliver donated 61 FR 5373 on February 12, 1996. Under the Regulatory Flexibility Act (5 U.S.C. poultry to the processors as scheduled, the demonstration project, FCS invoked 601–612) and is thus exempt from the causing delays in production of end its authority under 7 CFR 250.30(t) to provisions of that Act. products. These delays may be waive the current prohibition at 7 CFR Background alleviated if the processors can 250.30 (f)(1)(I) against the substitution substitute their commercial poultry for of poultry items and to establish the Section 250.30 of the current Food donated poultry. criteria under which substitution will be Distribution Program regulations (7 CFR permitted. part 250) sets forth the terms and Demonstration Project The Department will continue to conditions under which distributing From July 1, 1997 to June 30, 1999, operate the demonstration project from agencies, subdistributing agencies, and the Department will continue to operate July 1, 1997 through June 30, 1999 and recipient agencies may enter into a demonstration project under which it will expand the project to include bulk contracts with commercial firms for will permit approved processors to pack turkey in addition to the bulk pack processing donated foods and prescribes substitute commercial poultry for chicken and chicken parts. The the minimum requirements to be donated poultry in the State processing Department will use the results of the included in such contracts. Section of donated poultry. In addition, it demonstration project to further 250.30(t) authorizes FCS to waive any of intends to expand the project to include examine whether allowing the the requirements contained in 7 CFR bulk pack turkey. Processors may additional substitution will result in part 250 for the purpose of conducting submit proposals and be approved to increased processor participation and demonstration projects to test program participate in the demonstration project 25886 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices during this time. FCS is invoking its may be turned over to processors for and AMS procurement has been authority under 7 CFR 250.30(t) to further processing at a later time.) positive. USDA is convinced that given waive the current prohibition in 7 CFR • Commercial poultry substituted for additional time, more chicken 250.30(f)(1)(i) against the substitution of donated poultry must be certified by an processors will decide to participate. poultry for purposes of this AMS grader as complying with all Processors in the turkey industry, who demonstration project. product specifications for the donated are subject to the same inspection The demonstration project will be poultry. standards as the chicken industry, have • limited to bulk pack chicken, chicken Substitution of commercial poultry expressed a strong desire to enter the parts, and bulk pack turkey because the may occur in advance of the actual demonstration. The limited processing of such items can be readily receipt of the donated poultry by the participation in the demonstration, to evaluated. There are a number of processor. However, no substitution date, has not provided FCS with reasons why poultry is preferable to may occur before the product is sufficient data to make an informed meat for purposes of this demonstration purchased by USDA and the contract is decision regarding benefits that might project. The definition of substitution in awarded. Lead time between the accrue to State processing programs § 250.3 requires the replacement of purchase and delivery of donated should the terms of the demonstration commercial product for donated food to poultry may be up to five weeks. Any be made permanent. Interested be of the same generic identity and variation between the amount of processors should submit a written equal or better quality. With bulk pack commercial poultry substituted and the proposal to FCS outlining how they chicken, chicken parts, and bulk pack amount of donated poultry received by plan to carry out the substitution while turkey these requirements can be met the processor will be adjusted according complying with the above conditions. easily and quickly, but requirements for to guidelines furnished by USDA. Processors who are currently • Any donated poultry not used in the substitution of meat would be more participating in the demonstration end products because of substitution complicated. For example, the USDA should apply to continue in the must only be used by the processor at specification for donated ground beef demonstration. The proposal must one of its facilities in other commercial calls for quality assurance provisions contain (1) a step-by-step description of processed products and cannot be sold and certification requirements how production will be monitored (2) a as an intact unit. However, in lieu of including: (1) Checking fresh chilled complete description of the records that processing the donated poultry, the beef for condition prior to grinding; (2) will be maintained for (a) the processor may use the product to fulfill commercial poultry substituted for the implementing a sampling program to other contracts with USDA provided all donated poultry (b) the disposition of determine if physchrotropic plate count terms of the other contract are met. levels exceed 100,000 bacteria per gram; • The only regulatory provision or the donated poultry delivered. All (3) assuring removal of bone and State processing contract term affected proposals will be reviewed by trimming defects; (4) complying with by the demonstration project is the representatives of the Food Distribution time and temperature requirements prohibition on substitution of poultry Division of FCS and by representatives during processing and storing; and (5) (§ 250.30(f)(1)(i) of the regulations). All of AMS Poultry Division’s Grading complying with fat content other regulatory and contract Branch. Companies approved for requirements. These requirements requirements remain unchanged and participation in the demonstration cannot be duplicated by many must still be met by processors project will be required to enter into an processors. Additionally, donated participating in the demonstration agreement with FCS and AMS which ground beef is delivered frozen. project. authorizes the processor to substitute Therefore, unlike bulk chilled poultry, The demonstration project will enable commercial bulk pack chicken, chicken immediate processing is not crucial. FCS to evaluate whether to amend parts, and bulk pack turkey in fulfilling Bulk pack turkey has been added to the program regulations to provide for the any current or future State processing original demonstration project that substitution of donated poultry with contracts during the demonstration allowed for the substitution of bulk pack commercial poultry in the State project period. Participation in the chicken and bulk pack chicken parts processing program. Particular attention demonstration project will not ensure because USDA graders can easily will be paid to whether such an the processor will receive any State determine if commercial turkey meets or amendment of the regulations would processing contracts. exceeds the specifications for donated probably increase the number of Dated: May 5, 1997. turkey. processors participating, and whether it George A. Braley, FCS is inviting interested poultry would probably increase the quantity of Associate Administrator, Food and Consumer processors to submit written proposals donated poultry that each processor Service. to participate in the demonstration accepts for processing. Further, FCS will [FR Doc. 97–12277 Filed 5–9–97; 8:45 am] project. The following basic attempt to determine whether the BILLING CODE 3410±30±U requirements will apply to the expected increase in competition and demonstration project: the expected increase in the quantity of • As with the processing of donated donated poultry accepted for processing DEPARTMENT OF AGRICULTURE poultry into end products, AMS graders enables processors to function more must monitor the processing of any efficiently, producing a greater variety Forest Service substituted commercial poultry to of processed poultry end products in a ensure program integrity is maintained. more timely manner at lower costs. Klamath Provincial Advisory • Only bulk pack chicken, chicken FCS has determined that the current Committee (PAC); Meeting parts, and bulk pack turkey delivered by demonstration project did not allow AGENCY: Forest Service, USDA. USDA vendors to the processor will be sufficient time for the poultry industry ACTION: Notice of meeting. eligible for substitution. No backhauled to consider the ramifications and product will be eligible. (Backhauled possible benefits of the demonstration. SUMMARY: The Klamath Provincial product is typically cut-up frozen The initial, but limited, data gathered Advisory Committee will meet on May poultry parts delivered to schools which from recipient agencies, AMS graders, 29 and May 30, 1997 at the Six Rivers Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25887

National Forest Conference Room, 1330 Dated: April 29, 1997. wish to bring water rights matters to the Broadway, Eureka, California. On May James T. Gladen, attention of the Task Force may file 29, the meeting will begin at 9:00 a.m. Acting Forest Supervisor, Designated Federal written statements with the Forest and adjourn at 5:00 p.m. The meeting Official. Service liaison at the address listed will reconvene at 8:00 a.m. on May 30 [FR Doc. 97–12407 Filed 5–9–97; 8:45 am] earlier in this notice, either before or and adjourn at 3:00 p.m. Agenda items BILLING CODE 3410±11±M after each meeting. to be covered include: (1) Klamath Dated: May 2, 1997. Province storm damage overview; (2) Valdis E. Mezainis, Aquatic Conservation Strategy, DEPARTMENT OF AGRICULTURE discussing its role in the Northwest Acting Chief. Forest Plan; (3) a Forest approach to Forest Service [FR Doc. 97–12278 Filed 5–9–97; 8:45 am] economic monitoring; (4) Subcommittee BILLING CODE 3410±11±M Water Rights Task Force Meeting Reports; and (5) public comment periods. All PAC meetings are open to AGENCY: Forest Service, USDA. the public. Interested citizens are ACTION: Notice of meetings. encouraged to attend. ARMS CONTROL AND DISARMAMENT SUMMARY: The Forest Service announces AGENCY FOR FURTHER INFORMATION CONTACT: meetings of the Water Rights Task Force Connie Hendryx, USDA, Klamath established on August 20, 1996, in The Director's Advisory Committee; National Forest, at 1312 Fairlane Road, accordance with the provisions of the Notice of Closed Meetings Yreka, California 96097; telephone 916– Federal Agricultural Improvement and 842–6131, (FTS) 700–467–1309. Reform Act of 1996, as amended. The May 7, 1997. Dated: May 6, 1997. chairman has scheduled the 10th, 11th, In accordance with the Federal Barbara Holder, and 12th meetings of the Task Force in advisory Committee Act, as amended 5 Denver, CO, on June 9–10, July 17–18, U.S.C. App. (1988), the U.S. Arms Forest Supervisor. and August 4–5, 1997, respectively. Control and Disarmament Agency [FR Doc. 97–12336 Filed 5–9–97; 8:45 am] DATES: The meetings will be held June announces the following Presidential BILLING CODE 3410±11±M 9 from 9:30 a.m. to 5:30 p.m.; June 10 Committee meetings: from 8:30 a.m. to 2:00 p.m.; July 17 from Name: The Director’s Advisory Committee DEPARTMENT OF AGRICULTURE 8:30 a.m. to 5:30 p.m.; July 18 from 8:30 (DirAC). a.m. to noon; August 4 from 9:30 a.m. Dates: May 27 and May 28, 1997. Forest Service to 5:30; and August 5 from 8:30 a.m. to Time: 8:30 a.m. 5:30 p.m. Place: State Department Building, 320 21st Southwest Oregon Provincial ADDRESSES: All three meetings will be Street, N.W., Room 4930, Washington, D.C. Interagency Executive Committee held in Conference Room D of the Type of Meetings: Closed. (PIEC), Advisory Committee Presidents Club, Continental Airlines, in Contact: Robert Sherman, Executive Concourse A of Denver International Director, Director’s Advisory Committee, AGENCY: Forest Service, USDA. Airport terminal. Room 5844, Washington, D.C. 20451, (202) 647–4622. ACTION: Notice of meeting. Send written comments to Eleanor Towns, FACA Liaison, Water Rights Purpose of Advisory Committee: To advise Task Force, c/o USDA Forest Service, the President, the Secretary of state, and the SUMMARY: The Southwest Oregon PIEC MAIL STOP 1124, P.O. Box 96090, Director of the U.S. Arms Control and Advisory Committee will meet on May Washington, DC 20090–6090. Disarmament Agency respecting scientific, 28, 1997 at the Oregon Department of Telephone (202) 205–1248; Fax: (202) technical, and policy matters affecting arms Fish and Wildlife Office at 4192 North 205–1604. control, nonproliferation, and disarmament. Umpqua Highway, Roseburg, Oregon. Purpose of the Meetings: The Committee The meeting will begin at 9:00 a.m. and FOR FURTHER INFORMATION CONTACT: will review specific arms control, continue until 4:30 p.m. Stephen Glasser, Watershed & Air nonproliferation, and verification issues. Management Staff, Telephone: (202) Agenda items to be covered include: Members will be briefed on current U.S. 205–1172; Fax: (202) 205–1096. policy and issues regarding negotiations such (1) Update on coarse woody material SUPPLEMENTARY INFORMATION: The Water as the Comprehensive Test Ban Treaty and standard; (2) Update on COHO listing; Rights Task Force is comprised of seven the Conventional Weapons Convention. (3) Update on Rogue and Umpqua Basin members appointed by Congress and the Members will also be briefed on issues Assessments; (4) Forest Service and Secretary of Agriculture to study and regarding the Chemical and Biological Bureau of Land Management local make recommendations on issues Weapons Conventions. Members will issues; (5) Interagency Executive pertaining to water rights. All meetings exchange information and concepts with key Committee issues and end results, and are open to the public. However, time ACDA personnel. Both of the meetings will (6) Public comments. All Province for the public to address the Task Force be held in Executive Session. Advisory committee meetings are open Reason for Closing: The DirAC members must be arranged prior to the meetings to the public. Interested citizens are will be reviewing and discussing matters by contacting either the Chairman, Mr. encouraged to attend. specifically authorized by Executive Order Bennett W. Raley, c/o Trout & Raley, 12958 to be kept secret in the interest of FOR FURTHER INFORMATION CONTACT: P.C., 1775 Sherman Street, Suite 1300, national defense or foreign policy. Direct questions regarding this meeting Denver, CO 80203, phone (303) 861– Authority to Close Meetings: The closing of to Chuck Anderson, Province Advisory 1963, extension 125, or Ms. Towns at the meetings is in accordance with a Committee staff, USDA, Forest Service, the address and phone number under determination by the Director of the U.S. Rogue River National Forest, 333 W. 8th ADDRESSES. Meeting discussion is Arms Control and Disarmament Agency Street, Medford, Oregon 97501, phone limited to the Task Force members and dated May 7, 1997 made pursuant to the 541–858–2322. Forest Service personnel. Persons who provisions of Section 10(d) of the Federal 25888 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Advisory Committee Act as amended (5 Commerce,2 no person convicted of B. Carrying on negotiations U.S.C. App.). violating the Espionage Act, or certain concerning, or ordering, buying, Cathleen Lawrence, other provisions of the United States receiving, using, selling, delivering, Director of Administration. Code, shall be eligible to apply for or storing, disposing of, forwarding, transporting, financing, or otherwise Determination to Close Meetings of the use any license, including any License Director’s Advisory Committee Exception, issued pursuant to, or servicing in any way, any transaction provided by, the Act or the Export involving any item exported or to be The Director’s Advisory Committee exported from the United States that is (DirAC) will hold meetings in Washington, Administration Regulations (61 FR D.C., on May 27 and 28, 1997. 12734–13041, March 25, 1996, to be subject to the Regulations, or in any The entire agenda of these meetings will be codified at 15 C.F.R. Parts 730–774) (the other activity subject to the Regulations; devoted to specific national security policy Regulations), for a period of up to 10 or and arms control issues. In accordance with years from the date of the conviction. In C. Benefiting in any way from any section 10(d) of the Federal Advisory addition, any license issued pursuant to transaction involving any item exported Committee Act (Pub. L. 92–463), it has been the Act in which such a person had any or to be exported from the United States determined that discussions during the interest at the time of conviction may be that is subject to the Regulations, or in meetings will necessarily involve revoked. any other activity subject to the consideration of matters recognized as not Pursuant to Sections 766.25 and Regulations. subject to public disclosure under 5 U.S.C. II. No person may directly or 552b(c)(1). Materials to be discussed at the 750.8(a) of the Regulations, upon notification that a person has been indirectly, do any of the following: meetings have been properly classified and A. Export or reexport to or on behalf are specifically authorized under criteria convicted of violating the Espionage established by Executive Order 12958 to be Act, the Director, Office of Exporter of the denied person any item subject to kept secret in the interests of national Services, in consultation with the the Regulations; B. Take any action that facilitates the defense and foreign policy. Director, Office of Export Enforcement, acquisition or attempted acquisition by Therefore, in accordance with section 10(d) shall determine whether to deny that the denied person of the ownership, of the Federal Advisory Committee Act, as person permission to apply for or use amended (5 U.S.C. App.), I have determined possession, or control of any item any license, including any License that, because of the need to protect the subject to the Regulations that has been Exception, issued pursuant to, or confidentiality of such national security or will be exported from the United provided by, the Act and the matters, the meetings should be closed to the States, including financing or other Regulations, and shall also determine public. support activities related to a whether to revoke any license John D. Holum, transaction whereby the denied person previously issued to such a person. Director. acquires or attempts to acquire such Having received notice of Prasad’s [FR Doc. 97–12420 Filed 5–7–97; 3:51 pm] ownership, possession or control; conviction for violating the Espionage BILLING CODE 6820±32±M C. Take any action to acquire from or Act, and following consultations with to facilitate the acquisition or attempted the Acting Director, Office of Export acquisition from the denied person of Enforcement, I have decided to deny DEPARTMENT OF COMMERCE any item subject to the Regulations that Prasad permission to apply for or use has been exported from the United Bureau of Export Administration any license, including any License States; Exception, issued pursuant to, or D. Obtain from the denied person in Action Affecting Export Privileges; provided by, the Act and the the United States any item subject to the Aluru J. Prasad; Order Denying Regulations, for a period of 10 years Regulations with knowledge or reason Permission To Apply for or Use Export from the date of his conviction. The 10- to know that the item will be, or is Licenses year period ends on December 9, 2006. intended to be, exported from the I have also decided to revoke all On December 9, 1996, following a United States; or licenses pursuant to the Act in which E. Engage in any transaction to service plea of no contest, Aluru J. Prasad Prasad had an interest at the time of his (Prasad) was convicted in the United any item subject to the Regulations that conviction. has been or will be exported from the States District Court for the District of Accordingly, it is hereby ordered; Massachusetts of violating Section United States and which is owned, I. Until December 9, 2006, Aluru J. possessed or controlled by the denied 793(b) of the Espionage Act (18 U.S.C.A. # Prasad, Road 10, Benjara Hills, person, or service any item, of whatever 792–799 (1976 & Supp. 1997)). Prasad Hyderabad, India, may not, directly or was convicted of knowingly and origin, that is owned, possessed or indirectly, participate in any way, in controlled by the denied person if such willfully attempting to obtain classified any transaction involving any information connected with the national service involves the use of any item commodity, software or technology subject to the Regulations that has been defense of the United States for the (hereinafter collectively referred to as Union of Soviet Socialist Republics. or will be exported from the United ‘‘item’’) exported or to be exported from States. For purposes of this paragraph, Section 11(h) of the Export the United States, that is subject to the Administration Act of 1979, as amended servicing means installation, Regulations, or in any other activity maintenance, repair, modification or (50 U.S.C.A. app. §§ 2401–2420 (1991 & subject to the Regulations, including but Supp. 1997)) (the Act,1 provides that, at testing. not limited to: III. After notice and opportunity for the discretion of the Secretary of A. Applying for, obtaining, or using comment as provided in Section 766.23 any license, License Exception, or 1 The Act expired on August 20, 1994. Executive of the Regulations, any person, firm, Order 12924 (3 C.F.R., 1994 Comp. 917 (1995)), export control document; corporation, or business organization extended by Presidential Notices of August 15, 1995 related to Prasad by affiliation, (3 C.F.R., 1995 Comp. 501 (1996)) and August 14, 2 Pursuant to appropriate delegations of authority, ownership, control, or position of 1996 (61 FR 42527, August 15, 1996), continued the the Director, Office of Exporter Services, in Export Administration Regulations in effect under consultation with the Director, Office of Export responsibility in the conduct of trade or the International Emergency Economic Powers Act Enforcement, exercises the authority granted to the related services may also be subject to (50 U.S.C.A. §§ 1701–1706 (1991 & Supp. 1997)). Secretary by Section 11(h) of the Act. the provisions of this Order. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25889

IV. This Order does not prohibit any EFFECTIVE DATE: May 12, 1997. 7305.20.80.00, 7306.20.10.30, export, reexport, or other transaction FOR FURTHER INFORMATION CONTACT: 7306.20.10.90, 7306.20.20.00, subject to the Regulations where the Steve Bezirganian or John Kugelman, 7306.20.30.00, 7306.20.40.00, only items involved that are subject to AD/CVD Enforcement Group III—Office 7306.20.60.10, 7306.20.60.50, the Regulations are the foreign- 8, Import Administration, International 7306.20.80.10, and 7306.20.80.50. produced direct product of U.S.-origin Trade Administration, U.S. Department Please note that many of these HTS technology. of Commerce, 14th Street and numbers have changed since the less- V. This Order is effective immediately Constitution Avenue, NW, Washington, than-fair value (LTFV) investigation. and shall remain in effect until D.C. 20230; telephone (202) 482–1395 or Although the Harmonized Tariff December 9, 2006. 482–0649, respectively. Schedule of the United States (HTSUS) VI. A copy of this Order shall be subheadings are provided for delivered to Prasad. Applicable Statute convenience and customs purposes, the This Order shall be published in the Unless otherwise indicated, all written description of the scope of this Federal Register. citations to the statute refer to the proceeding is dispositive. Dated: April 30, 1997. provisions effective January 1, 1995, the Background Eileen M. Albanese, effective date of the amendments made In its final determination of sales at Director, Office of Exporter Services. to the Tariff Act of 1930 (the Act), by the Uruguay Round Agreements Act. In LTFV on OCTG from Japan, 60 FR [FR Doc. 97–12322 Filed 5–9–97; 8:45 am] 33560 (June 28, 1995), the Department BILLING CODE 3510±DT±M addition, unless otherwise indicated, all citations to the Department’s regulations determined that the two respondents, are to the current regulations, as Nippon Steel Corp. and Sumitomo Metal Industries, Ltd., refused to DEPARTMENT OF COMMERCE amended by the intermim regulations published in the Federal Register on cooperate by failing to respond to the International Trade Administration May 11, 1995 (60 FR 25130). Department’s questionnaire. Therefore, in accordance with § 776(b) of the Act [A±588±835] SUPPLEMENTARY INFORMATION: and its standard practice, the Scope of the Review Department assigned the highest margin Oil Country Tubular Goods From in the petition, 44.20 percent, to both Japan; Notice of Partial Rescission of The merchandise covered by this respondents, and assigned the same rate Antidumping Duty Administrative order is oil country tubular goods to all others. Review and Preliminary Results of (OCTG), hollow steel products of On August 2, 1995, in accordance Antidumping Administrative Review circular cross-section, including only oil with section 735(d) of the Act, the U.S. AGENCY: Import Administration, well casing, tubing and drill pipe, of International Trade Commission (ITC) International Trade Administration, iron (other than cast iron) or steel (both notified the Department of its final Department of Commerce. carbon and alloy), whether seamless or determination in this investigation. In welded, whether or not conforming to ACTION: Notice of partial rescission and its determination the ITC found two like American Petroleum Institute (API) or preliminary results of antidumping duty products, (1) drill pipe, and (2) OCTG administrative review. non-API specifications, whether other than drill pipe (i.e., casing and finished or unfinished (including green tubing). The ITC determined that SUMMARY: The Department of Commerce tubes and limited service OCTG imports of drill pipe from Japan (the Department) is conducting an products). This scope does not cover threatened material injury to a U.S. administrative review of the casing, tubing, or drill pipe containing industry. However, the ITC did not antidumping duty order on oil country 10.5 percent or more of chromium. The determine that, but for the suspension of tubular goods from Japan. This review OCTG subject to this order are currently liquidation of entries of drill pipe from was initiated in response to requests by classified in the Harmonized Tariff Japan, the domestic industry would importers, Helmerich & Payne, Inc. Schedule of the United States (HTSUS) have been materially injured, pursuant (H&P) and Caprock Pipe and Supply under item numbers: 7304.29.10.10, to section 735(b)(4)(B) of the Act. (Caprock), for a review of NKK 7304.29.10.20, 7304.29.10.30, When the ITC finds threat of material Corporation of Japan (NKK) and HEBRA 7304.29.10.40, 7304.29.10.50, injury, and makes a negative ‘‘but for’’ AS (HEBRA), respectively. Although we 7304.29.10.60, 7304.29.10.80, finding, the ‘‘Special Rule’’ provision of initiated a review of both NKK and 7304.29.20.10, 7304.29.20.20, section 736(b)(2) of the Act applies. HEBRA, we are rescinding the review 7304.29.20.30, 7304.29.20.40, Therefore, all unliquidated entries of with respect to HEBRA because Caprock 7304.29.20.50, 7304.29.20.60, drill pipe from Japan, entered or timely withdrew its request for review. 7304.29.20.80, 7304.29.30.10, withdrawn from warehouse, for This review covers one producer/ 7304.29.30.20, 7304.29.30.30, consumption, on or after the date on exporter and entries of drill pipe during 7304.29.30.40, 7304.29.30.50, which the ITC published its notice of the period August 11, 1995 through July 7304.29.30.60, 7304.29.30.80, final determination of threat of material 31, 1996, and entries of oil country 7304.29.40.10, 7304.29.40.20, injury in the Federal Register, are liable tubular goods (OCTG) other than drill 7304.29.40.30, 7304.29.40.40, for the assessment of antidumping pipe during the period February 2, 1995 7304.29.40.50, 7304.29.40.60, duties. through July 31, 1996. 7304.29.40.80, 7304.29.50.15, On August 11, 1995, we published an Because NKK did not submit a 7304.29.50.30, 7304.29.50.45, antidumping duty order on the subject complete response to our questionnaire, 7304.29.50.60, 7304.29.50.75, merchandise (60 FR 41058). Pursuant to we have preliminarily determined that 7304.29.60.15, 7304.29.60.30, section 736(b)(2) of the Act, the facts available will be used. Interested 7304.29.60.45, 7304.29.60.60, Department directed the U.S. Customs parties who submit comments are 7304.29.60.75, 7304.21.30.00, Service to terminate the suspension of requested to submit with each comment 7304.21.60.30, 7304.21.60.45, liquidation for entries of drill pipe a statement of the issue and a brief 7304.21.60.60, 7305.20.20.00, imported from Japan and entered, or summary of the comment. 7305.20.40.00, 7305.20.60.00, withdrawn from warehouse, for 25890 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices consumption, before August 10, 1995, a response to the Department’s and constructed value for that product. the date on which the ITC published its questionnaire, and Caprock submitted a Our review of the information in the notice of final determination of threat of letter withdrawing its request for a original petition pertaining to the price material injury in the Federal Register, review. of the product and to the major inputs and to release any bond or other (e.g., iron ore, coke, scrap) and Use of Facts Otherwise Available security, and to refund any cash deposit, processes (ironmaking, steelmaking, and posted to secure the payment of NKK indicated that it did not sell or bloom and pipe production) used for the estimated antidumping duties with ship subject merchandise to the United production of the final merchandise did respect to entries of the merchandise States during the period of review not indicate that the analysis of the entered, or withdrawn from warehouse, (POR). Information on the record of this OCTG market in the petition is no for consumption, before that date. The review, however, indicates that there longer appropriate to use as a basis for Department also directed the U.S. were entries during the POR of subject facts available. Furthermore, nothing on Customs Service to suspend liquidation merchandise produced by NKK. the record of this review supports a for drill pipe from Japan with respect to Pursuant to § 751(a)(2) of the Act, these determination that the highest margin shipments entered, or withdrawn from entries are subject to review, regardless rate from the petition in the underlying warehouse, for consumption on or after of NKK’s assertions regarding sale and investigation does not represent reliable August 10, 1995. Regarding OCTG other shipment dates. NKK twice failed to and relevant information for purposes of than drill pipe, because the ITC answer the questions in the adverse facts available. Therefore, in determined that imports of such Department’s questionnaire, so the this proceeding, the highest margin from merchandise were materially injuring a Department must base the margin upon the petition is the most appropriate U.S. industry, in accordance with facts available. information on which to base a margin section 736(a) of the Act, the Where the Department must base the for this uncooperative respondent. Department directed the U.S. Customs entire dumping margin for a respondent Preliminary Results of the Review Service to continue to suspend in an administrative review on facts liquidation of such shipments entered, otherwise available because that As a result of the review, we or withdrawn from warehouse, for respondent failed to cooperate, section preliminarily determine that the consumption on or after February 2, 776(b) of the Act authorizes the use of following weighted-average dumping 1995, the date on which the Department an inference adverse to the interests of margin exists: published its LTFV preliminary that respondent in choosing the facts determination notice in the Federal available. Section 776(b) of the Act also Weighted- authorizes the Department to use as average Register (60 FR 6506). The Department Manufacturer/producer/exporter margin per- also directed the U.S. Customs Service adverse facts available information centage to require for all entries of OCTG from derived from the petition, the final Japan falling under the scope of the determination, a previous NKK ...... 44.20 order, effective August 11, 1995, a cash administrative review, or other deposit equal to the margin rate information placed on the record. Parties to this proceeding may request determined in the investigation. Section 776(c) of the Act provides that disclosure within five days of On August 12, 1996, we published a the Department shall, to the extent publication of this notice and any notice of opportunity to request an practicable, corroborate secondary interested party may request a hearing administrative review (61 FR 41768), information from independent sources within 10 days of publication. Any covering the period February 2, 1995 reasonably at its disposal. The hearing, if requested, will be held 44 through July 31, 1996 for OCTG other Statement of Administrative Action days after the date of publication, or the than drill pipe, and the period August (SAA) provides that ‘‘corroborate’’ first working day thereafter. Interested 11, 1995 through July 31, 1996 for drill means simply that the Department will parties may submit case briefs and/or pipe. On August 28, 1996, H&P, an satisfy itself that the secondary written comments no later than 30 days importer of drill pipe, requested an information to be used has probative after the date of publication. Rebuttal administrative review of sales of subject value. (See H.R. Doc. 316, Vol. 1, 103d briefs and rebuttals to written merchandise produced by NKK and Cong., 2d sess. 870 (1994).) comments, limited to issues raised in imported, or withdrawn from a foreign Consistent with Section 776(b) of the such briefs or comments, may be filed trade zone, by H&P during the review Act, we have assigned to NKK a rate no later than 37 days after the date of period for drill pipe (August 11, 1995, equal to the highest rate for any publication of this notice. The through July 31, 1996). On August 29, company for the same class or kind of Department will publish a notice of the 1996, Caprock, an importer of used merchandise from the same country final results of the administrative OCTG, requested an administrative from this or any prior segment of the review, including its analysis of issues review of OCTG produced by all proceeding, or from the petition. In this raised in any written comments or at a Japanese manufacturers. On September instance, we have used the highest rate hearing, not later than 120 days after the 4, 1996, Caprock clarified that the in the petition, the rate adopted by the date of publication of this notice. company to be reviewed was actually Department in the investigation Cash Deposit HEBRA (which Caprock identified as a underlying this order. Norwegian export company), rather than In accordance with section 776(c) of The following deposit requirements all Japanese manufacturers. the Act, to corroborate secondary will be effective upon completion of the The Department published a notice of information the Department will, to the final results of this administrative initiation of an administrative review extent practicable, examine the review for all shipments of OCTG from covering HEBRA and NKK on reliability and relevance of the Japan entered, or withdrawn from September 17, 1996 (61 FR 48882). information to be used—in this case, the warehouse, for consumption, on or after On September 19, 1996, we sent a highest rate from the petition. That rate the publication date of the final results questionnaire to NKK and HEBRA. On was based upon the difference between of this administrative review, as November 14, 1996, HEBRA submitted U.S. price of a representative OCTG provided by section 751(a)(1) of the Act a letter stating that it would not submit product sold by one Japanese company and 19 CFR 353.22: (1) the cash deposit Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25891 rate for NKK will be the rate established (the Department) is conducting an Verification in the final results of this administrative administrative review of the From February 24 through February review; (2) for previously reviewed or antidumping duty order on brass sheet 28, 1997, in accordance with section investigated companies not listed above, and strip from the Netherlands (A–421– 782(i) of the Act, we verified the cash deposit rate will continue to be 701). This review covers one information provided by OBV using the company-specific rate published for manufacturer/exporter of the subject standard verification procedures the most recent period; (3) if the merchandise to the United States during including on-site inspection of the exporter is not a firm covered in this the period August 1, 1995 through July manufacturer’s facilities, examination of review, a prior review, or the original 31, 1996. We preliminarily determine relevant sales and financial records, and LTFV investigation, but the that sales of brass sheet and strip (BSS) selection of original source manufacturer is, the cash deposit rate from the Netherlands have not been documentation containing relevant will be the rate established for the most made below the normal value (NV). If information. Our verification results are recent period for the manufacturer of these preliminary results are adopted in outlined in the verification report, the the merchandise; and (4) the cash our final results of administrative public version of which is available in deposit rate for all other manufacturers review, we will instruct the U.S. the Central Records Unit of the or exporters will be 44.20 percent, the Customs Service to assess antidumping Department of Commerce, Room B–099. ‘‘all others’’ rate established in the LTFV duties with respect to the entries of investigation. These deposit OBV. Interested parties are invited to Scope of the Review requirements, when imposed, shall comment on these preliminary results. Imports covered by this review are remain in effect until publication of the Parties who submit comments are brass sheet and strip, other than leaded final results of the next administrative requested to submit with the argument: and tin brass sheet and strip, from the review. (1) A statement of the issues; and (2) a Netherlands. The chemical composition This notice serves as a preliminary brief summary of the argument. reminder to importers of their of the products under review is responsibility under 19 CFR 353.26 to EFFECTIVE DATE: May 12, 1997. currently defined in the Copper Development Association (C.D.A.) 200 file a certificate regarding the FOR FURTHER INFORMATION CONTACT: Series or the Unified Numbering System reimbursement of antidumping duties Karla Whalen or Lisette Lach, Office of (U.N.S.) C20000 series. This review does prior to liquidation of the relevant Antidumping/Countervailing Duty not cover products the chemical entries during this review period. Enforcement, Group III, Import compositions of which are defined by Failure to comply with this requirement Administration, International Trade other C.D.A. or U.N.S. series. The could result in the Secretary’s Administration, U.S. Department of physical dimensions of the products presumption that reimbursement of Commerce, 14th Street and Constitution covered by this review are brass sheet antidumping duties occurred and the Avenue, NW., Washington, DC. 20230; and strip of solid rectangular cross subsequent assessment of double telephone: (202) 482–0408 or (202) 482– section over 0.006 inch (0.15 millimeter) antidumping duties. 6412, respectively. These administrative reviews and through 0.188 inch (4.8 millimeters) in SUPPLEMENTARY INFORMATION: notice are in accordance with section gauge, regardless of width. Coiled, Applicable Statute and Regulations: 751(a)(1) of the Act (19 U.S.C. wound-on-reels (traverse wound), and Unless otherwise indicated, all citations 1675(a)(1)) and 19 CFR 353.22. cut-to-length products are included. The to the Tariff Act of 1930, as amended merchandise under investigation is Dated: May 5, 1997. (the Tariff Act), are to the provisions currently classifiable under item Robert S. LaRussa, effective January 1, 1995, the effective 7409.21.00 and 7409.29.20 of the Acting Assistant Secretary for Import date of the amendments made to the Harmonized Tariff Schedule of the Administration. Tariff Act by the Uruguay Round United States (HTSUS). Although the [FR Doc. 97–12388 Filed 5–9–97; 8:45 am] Agreements Act (URAA). In addition, HTSUS subheading is provided for BILLING CODE 3510±DS±P unless otherwise indicated, all citations convenience and customs purposes, the to the Department’s regulations are to written description of the merchandise the current regulations, as amended by under investigation is dispositive. DEPARTMENT OF COMMERCE the interim regulations published in the Federal Register on May 11, 1995 (60 Level of Trade International Trade Administration FR 25130). To the extent practicable, we [A±421±701] Background determine NV for sales at the same level of trade as the U.S. sales (either export Brass Sheet and Strip From The On August 12, 1988, the Department price (EP) or constructed export price Netherlands; Preliminary Results of published in the Federal Register the (CEP)). When there are no sales at the Antidumping Duty Administrative antidumping duty order on BSS from same level of trade, we compare U.S. Review the Netherlands (53 FR 30455). On sales to home market (or, if appropriate, AGENCY: Import Administration, August 12, 1996, the Department third-country) sales at a different level- International Trade Administration, published the notice of ‘‘Opportunity to of-trade. The NV level of trade is that of Department of Commerce. Request Administrative Review’’ for the the starting-price sales in the home ACTION: Notice of preliminary results of period August 1, 1995 through July 31, market. When NV is based on CV, the antidumping duty administrative 1996 on BSS from the Netherlands (61 level of trade is that of the sales from review. FR 41768). In accordance with 19 CFR which we derive selling, SG&A and 353.22 (a)(1), OBV requested that we profit. SUMMARY: In response to a request by conduct a review of its sales. On For both EP and CEP, the relevant respondent Outokumpu Copper Strip September 17, 1996, we published in transaction for the level of trade analysis B.V. (OBV) and its United States affiliate the Federal Register a notice of is the sale (or constructed sale) from the Outokumpu Copper (USA), Inc. initiation of this antidumping exporter to the importer. While the (OCUSA), the Department of Commerce administrative review (61 FR 48882). starting price for CEP is that of a 25892 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices subsequent resale to an unaffiliated difference in the levels of trade. A including selling functions, class of buyer, the construction of the CEP different level of trade is characterized customer and selling expenses. In the results in a price that would have been by purchasers at different stages in the home market, OBV sold to two charged if the importer had not been chain of distribution and sellers categories of customers, end-users and affiliated. We calculate the CEP by performing qualitatively or trading companies. However, OBV’s HM removing from the first resale to an quantitatively different functions in sales were all manufactured to order independent U.S. customer the selling to them. and the merchandise was shipped expenses under section 772(d) of the When we compare U.S. sales to home directly from the mill to both types of Tariff Act and the profit associated with market sales at a different level of trade, customer. OBV’s packing process was these expenses. These expenses we make a level-of-trade adjustment if also similar for both markets, and the represent activities undertaken by the the difference in levels of trade affects selling expenses for the POR were affiliated importer. Because the price comparability. We determine any comparable for all sales, regardless of expenses deducted under section 772(d) effect on price comparability by the type of customer. Evidence on the represent selling activities in the United examining sales at different levels of record also demonstrates that OBV did States, the deduction of these expenses trade in a single market, the home not have a formal policy for providing normally yields a different level of trade market. Any price effect must be payment terms, including discounts to for the CEP than for the later resale manifested in a pattern of consistent different types of customers. Based (which we use for the starting price). price differences between home market upon this evidence, we determine that Movement charges, duties and taxes sales used for comparison and sales at the selling activities involved with these deducted under section 772(c) do not the equivalent level of trade of the sales were the same, and that OBV’s HM represent activities of the affiliated export transaction. To quantify the price sales were all made at the same level of importer, and we do not remove them differences, we calculate the difference trade. to obtain the CEP level of trade. in the average of the net prices of the OBV’s sales in the United States, all same models sold at different levels of To determine whether home market of which were EP sales, were also at the trade. We use the average difference in sales are at a different level of trade than same level of trade. All of OBV’s United net prices to adjust NV when NV is U.S. sales, we examine whether the States customers were end-users and the based on a level of trade different from home market sales are at different stages sales were all manufactured to order. that of the export sale. If there is a in the marketing process than the U.S. The packing process was basically the pattern of no consistent price same as that of the HM sales, as was sales. The marketing process in both differences, the difference in levels of markets begins with goods being sold by OBV’s customer-specific approach to trade does not have a price effect and, payment terms. Therefore, we conclude the producer and extends to the sale to therefore, no adjustment is necessary. the final user, regardless of whether the that no level of trade adjustment is The statute also provides for an warranted. final user is an individual consumer or adjustment to NV when NV is based on an industrial user. The chain of a level of trade different from that of the Export Price distribution between the producer and CEP if the NV level is more remote from For sales to the United States, we the final user may have many or few the factory than the CEP and if we are links, and each respondent’s sales occur used export price (EP) as defined in unable to determine whether the section 772(a) of the Act, because the somewhere along this chain. In the difference in levels of trade between United States, the respondent’s sales are subject merchandise was sold to an CEP level and NV level affects the unaffiliated U.S. purchaser prior to the generally to an importer, whether comparability of their prices. This latter independent or affiliated. We review date of importation and the use of situation can occur where there is no constructed export price was not and compare the distribution systems in home market level of trade equivalent to the home market and U.S. export indicated by the facts on the record. We the U.S. sales level or where there is an calculated EP as the packed, delivered markets, including selling functions, equivalent home market level but the class of customer, and the extent and price to unaffiliated purchasers in the data are insufficient to support a United States. In accordance with level of selling expenses for each conclusion on price effect. This claimed level of trade. Customer section 772(c)(2) of the Tariff Act, we adjustment, the CEP offset, is identified reduced this price by post-sale categories such as distributor, original in section 773(7)(B) of the Tariff Act and equipment manufacturer (OEM), or warehousing, international freight, is the lower of the following: inland and marine insurance, U.S. wholesaler are commonly used by • The indirect selling expenses on the brokerage and handling, U.S. duty, respondents to describe levels of trade, home market sale, or Customs Service fees, Department of but, without substantiation, they are • The indirect selling expenses Agriculture fees, and credit expenses, insufficient to establish that a claimed deducted from the starting price used to where appropriate. level of trade is valid. An analysis of the calculate CEP. The CEP offset is not chain of distribution and of the selling automatic each time we use CEP. The Normal Value functions substantiates or invalidates CEP offset is made only when the level A. Viability the claimed levels of trade. If the of trade of the home market sale is more claimed levels are different, the selling advanced than the level of trade of the Based upon (i) the Department’s functions performed in selling to each U.S. (CEP) sale and there is not an comparison of the aggregate quantity of level should also be different. appropriate basis for determining home market and U.S. sales, (ii) the Conversely, if levels of trade are whether there is an effect on price absence of any information that a nominally the same, the selling comparability. particular marketing situation in the functions performed should also be the In the present review, OBV did not Netherlands does not permit a proper same. Different levels of trade request an LOT adjustment. To ensure comparison, and (iii) the fact that OBV’s necessarily involve differences in that no such adjustment was necessary, quantity of sales in the home market selling functions, but differences in we examined information regarding exceeded five percent of its sales to the selling functions, even substantial ones, OVB’s distribution system in both the U.S. market, we determined that the are not alone sufficient to establish a United States and the Netherlands, quantity of foreign like product OBV Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25893 sold in the Netherlands was sufficient to the Tariff Act. To determine whether preliminary results, we have used permit a proper comparison with the such sales were at prices which would differences in merchandise adjustments sales of subject merchandise to the not permit the full recovery of all costs based on the difference in the variable United States pursuant to section 773(a) within a reasonable period of time, in cost of manufacturing between each of the Tariff Act. Therefore, in accordance with section 773(b)(2)(D) of U.S. model and its most similar home accordance with section 773(a)(1)(B)(i) the Tariff Act, we compared home market model. of the Tariff Act, we based NV on the market prices to the weighted-average prices at which the foreign like products COPs for the POR. D. Date of Sale were first sold for consumption in the The results of our cost test for OBV The Department examined a number Netherlands. indicated that for certain home market of distinct events in OBV’s sales process models less than twenty percent of the to determine the appropriate date of B. Cost-of-Production Analysis sales of the model were at prices below sale. These included the frame Because we disregarded sales below COP. We therefore retained all sales of agreement date, order entry date, and the cost of production in the most these models in our analysis and used invoice date. OBV’s sales listing recently completed review, we had them as the basis for determining NV, included data permitting use of any of reasonable grounds to believe or suspect where applicable. Our cost test also these for the date of sale. OBV argued that sales of the foreign like product indicated that within an extended that the appropriate date of sale under consideration for determining NV period of time (one year, in accordance methodology should be the order entry in this review may have been at prices with section 773(b)(2)(B) of the Tariff date. Petitioners 1 argued that the below the cost of production (COP), as Act) for certain other home market appropriate date of sale methodology provided in section 773(b)(2)(A)(ii) of models, more than twenty percent of the should be the date of the frame the Tariff Act. See Brass Sheet and Strip sales were at prices below COP which agreement, as that date was used in the From the Netherlands; Final Results of would not permit the full recovery of all immediately preceding review. Antidumping Duty Administrative costs within a reasonable period of time. However, for purposes of these Reviews (57 FR 9534, March 19, 1992). In accordance with section 773(b)(1) of preliminary results, the Department has Therefore, pursuant to section 773(b)(1) the Tariff Act, we therefore disregarded used the invoice date as the date of sale of the Tariff Act, we initiated a COP the below-cost sales of these models and in determining the appropriate sales investigation of sales by OBV. used the remaining above-cost sales as universe for comparison based upon the In accordance with section 773(b)(3) the basis for determining NV, where information provided by respondent of the Tariff Act, we calculated COP applicable. and our findings at verification. (See based on the sum of materials and In accordance with section 773(a)(4) Memorandum to the File Regarding fabrication employed in producing the of the Act, we used constructed value Verification, dated April 16, 1997, from foreign like product, plus selling, (CV) as the basis for NV when there Lisette Lach and Lisa Yarbrough; and general, and administrative expenses were no usable sales of the foreign like Analysis Memorandum to the File (SG&A) and the cost of all expenses product in the comparison market. We Regarding Preliminary Determination incidental to placing the foreign like calculated CV in accordance with Analysis, dated May 6, 1997, from product in condition packed ready for section 773(e) of the Act. We included Lisette Lach and Karla Whalen.) shipment. We relied on the home the cost of materials and fabrication, market sales and COP information OBV SG&A expenses and profit. In E. Home Market Prices provided in its questionnaire responses. accordance with section 773(e)(2)(A) of We based home market prices on the After calculating COP, we tested the Act, we based SG&A expenses and packed, ex-factory or delivered prices to whether home market sales of subject profit on the amounts incurred and unaffiliated purchasers in the home BSS were made at prices below COP realized by the respondent in market or on CV, where applicable. For within an extended period of time in connection with the production and sale matching to home market prices, we substantial quantities and whether such of the foreign like product in the made adjustments for differences in prices permitted the recovery of all costs ordinary course of trade for packing and for movement expenses in within a reasonable period of time. We consumption in the foreign country. For accordance with sections 773(a)(6)(A) compared model-specific COP to the selling expenses, we used the weighted and (B) of the Tariff Act. In addition, we reported home market prices less any average home market selling expenses. made adjustments for differences in cost applicable movement charges and post- Where appropriate, we made attributable to differences in physical sale price adjustments (reported as early adjustments to CV, in accordance with characteristics of the merchandise payments and credit adjustments), section 773(a)(8) of the Act and section pursuant to section 773(a)(6)(C)(ii) of where appropriate. 353.56(a) of the Department’s the Tariff Act, and for COS differences Pursuant to section 773(b)(2)(C) of the regulations, for circumstances of sale Tariff Act, where less than twenty in accordance with section (COS) differences. For comparisons to 773(a)(6)(C)(iii) of the Tariff Act and percent of home market sales for a EP, we made COS adjustments by model were at prices less than the COP, § 353.56(2) of the Department’s deducting home market direct selling regulations. we did not disregard any below-cost expenses and adding U.S. direct selling sales of that model because we expenses. Duty Absorption determined that the below cost sales On October 3, 1996, petitioners were not made within an extended C. Product Comparisons requested that the Department period of time in ‘‘substantial We compared OBV’s U.S. sales with quantities.’’ Where twenty percent or contemporaneous sales of the foreign 1 Hussey Copper, Ltd.; The Miller Company; Olin more of home market sales of a given like product in the home market. We Corporation; Revere Copper Products, Inc.; product were at prices less than the compared BSS based on the following International Association of Machinists and COP, we determined that such sales hierarchy of physical characteristics: (1) Aerospace Workers; International Union, Allied Industrial Workers of America (AFL–CIO); were made within an extended period of Grade (alloy); (2) gauge (thickness); (3) Mechanics Educational Society of America (Local time in substantial quantities in width; (4) temper; (5) coating; and (6) 56); and United Steelworkers of America (AFL– accordance with section 773(b)(2) (C) of packed form. For purposes of these CIO/CLC). 25894 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices determine whether OBV had absorbed Tariff Act. Furthermore, we have these administrative reviews, including antidumping duties during the period of preliminarily determined that there is a the results of our analysis of the issues review pursuant to section 751(a)(4) of dumping margin for OBV on 9.17 in any such written comments or at a the Tariff Act. Section 751(a)(4) requires percent (by quantity) of its U.S. sales hearing, within 180 days of issuance of the Department, if requested, to during the period of review. In addition, these preliminary results. determine, during an administrative we cannot conclude from the record that The Department shall determine, and review initiated two years or four years the unaffiliated purchaser in the United the U.S. Customs Service shall assess, after publication of the order, whether States will pay the ultimately assessed antidumping duties on all appropriate antidumping duties have been absorbed duty. Under these circumstances, we entries. Individual differences between by a foreign producer or exporter subject preliminarily find that there is a export price and NV may vary from the to the order, if the subject merchandise dumping margin on OBV’s sales through percentage stated above. The is sold in the United States through an its affiliate representing 1.13 percent of Department will issue appraisement importer who is affiliated with such its total U.S. sales and that antidumping instructions directly to Customs. foreign producer or exporter. Section duties have been absorbed by OBV. Furthermore, the following deposit requirements will be effective upon 751(a)(4) was added to the Tariff Act by Fair Value Comparison the URAA. The Department’s interim completion of the final results of this regulations do not address this To determine whether OBV made administrative review for all shipments provision of the Tariff Act. For sales of subject BSS in the United States of BSS from the Netherlands entered, or transition orders as defined in section at prices that were less than fair value, withdrawn from warehouse, for 751(c)(6)(C) of the Tariff Act, i.e., orders we compared the EP to NV, as described consumption on or after the publication in effect as of January 1, 1995, in the ‘‘Export Price’’ and ‘‘Normal of the final results of this administrative § 351.213(j)(2) of the Department’s Value’’ analysis sections of this notice. review, as provided in section 751(a)(1) proposed antidumping regulations In accordance with section 777A(d)(2) of the Tariff Act: provides that the Department will make of the Tariff Act, we calculated monthly (1) The cash deposit rate for OBV will a duty absorption determination, if weighted-average prices for NV or CV be the rate established in the final requested, for any administrative review where appropriate, and compared these results of this administrative review; (2) For previously reviewed or initiated in 1996 or 1998. See Notice of monthly averages to individual U.S. investigated companies other than OBV, Proposed Rulemaking, 61 FR 7308, 7366 sales transactions. the cash deposit rate will continue to be (February 27, 1996). The preamble to Currency Conversion the company-specific rate published for the proposed antidumping regulations We made currency conversions in the most recent period; explains that reviews initiated in 1996 accordance with 19 CFR 353.60(a). All (3) If the exporter is not a firm will be considered initiated in the currency conversions were made at the covered in this review, a prior review, second year and reviews initiated in rates certified by the Federal Reserve or the less-than-fair-value investigation, 1998 will be considered initiated in the Bank. but the manufacturer is, the cash fourth year. Id. at 7317. Although these Preliminary Results of Review deposit rate will be the rate established proposed regulations are not yet binding for the most recent period for the upon the Department, they do constitute As a result of our comparison of EP manufacturer of the merchandise; and a public statement of how the to NV, we preliminarily determine that (4) If neither the exporter nor the Department expects to proceed in the weighted-average dumping margin manufacturer is a firm covered in this or applying section 751(a)(4) of the for OBV for this administrative review any previous review conducted by the amended statute. This approach assures period is as follows: Department, the cash deposit rate will that interested parties will have the be the ‘‘all others’’ rate of 16.99 percent opportunity to request a duty absorption Manufacturer/ exporter Period Margin established in the less-than-fair-value determination on entries for which the investigation. See Antidumping Duty second and fourth years following an OBV ...... 8/1/95±7/31/96 0.10 Order of Sales at Less-Than-Fair-Value; order have already passed, prior to the Brass Sheet and Strip From the time for sunset review of the order Parties to these proceedings may Netherlands (53 FR 30455, August 12, under section 751(c). request disclosure within five days of 1988). Because the order on BSS from the the date of publication of this notice and All U.S. sales by the respondent OBV Netherlands has been in effect since may request a hearing within ten days will be subject to one deposit rate 1988, this qualifies as a transition order. of publication. Any hearing, if according to the proceeding. The cash Therefore, based on the policy stated requested, will be held 44 days after the deposit rate has been determined on the above, the Department will first date of publication, or the first business basis of the selling price to the first consider a request for an absorption day thereafter. Case briefs and/or unrelated customer in the United States. determination during a review initiated written comments from interested For appraisement purposes, where in 1996. This being a review initiated in parties may be submitted no later than information is available, we will use the 1996, we are making a duty-absorption 30 days after the date of publication. entered value of the subject determination as part of this segment of Rebuttal briefs and rebuttals to written merchandise to determine the the proceeding. The statute provides for comments, limited to issues raised in appraisement rate. a determination on duty absorption if the case briefs and comments, may be This notice serves as preliminary the subject merchandise is sold in the submitted no later than 37 days after the reminder to importers of their United States through an affiliated date of publication of this notice. responsibility to file a certificate importer. In this case, OCUSA, OBV’s Parties who submit arguments in regarding the reimbursement of wholly owned subsidiary, is the these proceedings are requested to antidumping duties prior to liquidation importer of record for OBV’s U.S. sales. submit with the argument (1) a of the relevant entries during this Therefore, the importer and the exporter statement of the issues and (2) a brief review period. Failure to comply with are ‘‘affiliated’’ within the meaning of summary of the argument. The this requirement could result in the sections 751(a)(4) and 771(33) of the Department will issue final results of Secretary’s presumption that Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25895 reimbursement of the antidumping Collated Roofing Nails from the People’s responses to these requests in April duties occurred and the subsequent Republic of China, the Republic of 1997. assessment of double antidumping Korea, and Taiwan (61 FR 67306, On March 28, April 21 and 23, 1997, duties. This administrative review and December 20, 1996)), the following the Paslode Division of Illinois Tool this notice are in accordance with events have occurred: Works Inc. (‘‘Petitioner’’) filed section 751(a)(1) of the Tariff Act (19 On January 17, 1997, the United comments on the Kabool and Senco U.S.C. 1675(a)(1)) and 19 CFR 353.22. States International Trade Commission questionnaire responses. (‘‘ITC’’) issued an affirmative Dated: May 5, 1997. preliminary injury determination in this Postponement of Final Determination Robert S. LaRussa, case (see ITC Investigation Nos. 731– and Extension of Provisional Measures Acting Assistant Secretary for Import TA–757–759). Administration. During November 1996 through On May 1, 1997, Senco requested that, [FR Doc. 97–12386 Filed 5–9–97; 8:45 am] January 1997, the Department obtained pursuant to section 735(a)(2)(A) of the BILLING CODE 3510±DS±P information from various sources Act, in the event of an affirmative identifying producers/exporters of the preliminary determination in this subject merchandise. (See Memo to the investigation, the Department postpone DEPARTMENT OF COMMERCE File, dated May 5, 1997, for a detailed its final determination until not later explanation of the Department’s search than 135 days after the date of International Trade Administration for producers/exporters of the subject publication of the affirmative [A±580±827] merchandise.) During January, based on preliminary determination in the this information, the Department issued Federal Register. In accordance with Notice of Preliminary Determination of antidumping questionnaires to Kabool section 735(a)(2)(A) of the Act and 19 Sales at Less Than Fair Value and Metals (‘‘Kabool’’), Koram Steel Co., Ltd CFR 353.20(b), inasmuch as our Postponement of Final Determination: (‘‘Koram’’), Rewon Metals (‘‘Rewon’’), preliminary determination is Collated Roofing Nails From Korea Jisco Steel, Han Duk Industrial Co. affirmative, Senco accounts for a (‘‘Han Duk’’), New Korea, Jeil Steel, and significant proportion of exports of the AGENCY: Import Administration, Senco Korea (‘‘Senco’’). The subject merchandise under International Trade Administration, questionnaire is divided into four investigation, and we are not aware of Department of Commerce. sections: Section A requests general the existence of any compelling reasons EFFECTIVE DATE: May 12, 1997. information concerning a company’s for denying the request, we are granting FOR FURTHER INFORMATION CONTACT: corporate structure and business Senco’s request and postponing the final Everett Kelly or Ellen Grebasch, Import practices, the merchandise under determination. Suspension of Administration, International Trade investigation that it sells, and the sales liquidation will be extended Administration, U.S. Department of of the merchandise in all of its markets. accordingly. See Preliminary Commerce, 14th Street and Constitution Sections B and C request home market Determination of Sales at Less Than Avenue, N.W., Washington, D.C. 20230; sales listings and U.S. sales listings, Fair Value: Large Newspaper Printing telephone: (202) 482–4194 or (202) 482– respectively. Section D requests Presses and Components Thereof, 3773, respectively. information on the cost of production Whether Assembled or Unassembled, (‘‘COP’’) of the foreign like product and from Japan (61 FR 8029, March 1, 1996). The Applicable Statute constructed value (‘‘CV’’) of the subject Scope of Investigation Unless otherwise indicated, all merchandise. citations to the Tariff Act of 1930, as The Department received responses to The product covered by this amended (the Act), are references to the Section A of the questionnaire during investigation is CR nails made of steel, February and March 1997. On March 13, provisions effective January 1, 1995, the having a length of 13⁄16 inch to 113⁄16 effective date of the amendments made 1997, pursuant to section 777A(c) of the inches (or 20.64 to 46.04 millimeters), a to the Act by the Uruguay Round Act, the Department determined that, head diameter of 0.330 inch to 0.415 Agreements Act (URAA). In addition, due to the large number of exporters/ inch (or 8.38 to 10.54 millimeters), and unless otherwise indicated, all citations producers of the subject merchandise, it a shank diameter of 0.100 inch to 0.125 to the Department’s regulations are to would limit the number of mandatory inch (or 2.54 to 3.18 millimeters), the current regulations, as amended by respondents in this investigation. The whether or not galvanized, that are the interim regulations published in the Department determined that the collated with two wires. Federal Register on May 11, 1995 (60 resources available to it for this FR 25130). investigation and the two companion CR nails within the scope of this investigations limited our ability to investigation are classifiable under the Preliminary Determination analyze any more than the responses of Harmonized Tariff Schedule of the We preliminarily determine that the two largest exporters/producers of United States (‘‘HTSUS’’) subheading collated roofing nails (‘‘CRN’’) from the subject merchandise in this 7317.00.55.05. Although the HTSUS Korea are being, or are likely to be, sold investigation. Based on Section A subheading is provided for convenience in the United States at less than fair questionnaire responses, the and customs purposes, our written value (‘‘LTFV’’), as provided in section Department chose Kabool and Senco as description of the scope of this 733 of the Act. The estimated margins mandatory respondents. (For detailed investigation is dispositive. of sales at LTFV are shown in the information regarding this issue, see Period of Investigation ‘‘Suspension of Liquidation’’ section of memo to Lou Apple from the CRN team, this notice. dated March 13, 1997.) The period of this investigation Kabool and Senco submitted (‘‘POI’’) comprises each exporter’s four Case History questionnaire responses in February and most recent fiscal quarters prior to the Since the initiation of this March 1997. We issued supplemental filing of the petition. In this case, the investigation (Notice of Initiation of requests for information in March and POI for both companies is October 1, Antidumping Duty Investigations: April 1997, and received supplemental 1995, through September 30, 1996. 25896 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Fair Value Comparisons compare sales in the U.S. and foreign prices, either CIF or CNF to the first markets at different levels of trade. unaffiliated purchaser in the United Kabool and Senco Section 773(a)(7)(A) provides that if we States. Where appropriate, we made To determine whether sales of the compare a U.S. sale with a home market deductions from the starting price (gross subject merchandise by Kabool and sale made at a different level of trade, unit price) for inland freight—plant/ Senco to the United States were made when appropriate, we will adjust NV to warehouse to port of exit, brokerage and at less than fair value, we compared the account for this difference. When NV is handling in Korea, international freight, Export Price (‘‘EP’’) or Constructed based on CV, the level of trade is that and marine insurance. We added to EP Export Price (‘‘CEP’’) to the Normal of the sales from which we derive reported duty drawback amounts. Value (‘‘NV’’), as described in the EP, selling, general and administrative Senco CEP, and ‘‘Normal Value’’ sections of (‘‘SG&A’’) expenses and profit. this notice, below. In accordance with For comparisons to CEP sales, section We used EP in accordance with section 777A(d)(1)(A)(i) of the Act, we 773(a)(7)(B) of the Act provides for section 772(a) of the Act where the compared POI-wide weighted-average making a CEP offset when two subject merchandise was sold to EPs or CEPs to weighted-average NVs. conditions are met. First, the NV is unaffiliated customers prior to Kabool reported that it had no viable established at a level of trade which importation and the CEP methodology home market or third country sales constitutes a more advanced stage of was not indicated by the facts of record. during the POI. Therefore, we made no distribution than the level of trade of the We used CEP in accordance with price-to-price comparisons for Kabool. CEP, and second, the data available do section 772(b) of the Act where the See the ‘‘Normal Value’’ section of this not establish an appropriate basis for subject merchandise was sold to notice, below, for further discussion. calculating a level of trade adjustment. unaffiliated customers after importation. For certain U.S. sales Senco had no In this case, however, Senco, the only We calculated both EP and CEP, as appropriate third country matches. For respondent with a viable home or third appropriate, based on packed prices, to purposes of calculating a unit margin for country market, did not claim that sales the first unaffiliated purchaser in the these sales, as the ‘‘facts available’’ we are made at different levels of trade. United States. For both EP and CEP are applying the highest rate calculated Additionally, the information on the sales we made deductions from the in Senco’s margin calculations for a record does not demonstrate that there starting price (gross unit price) for control number. are any differences in levels of trade. We foreign inland freight, brokerage and handling, U.S. inland freight from port (i) Physical Characteristics therefore preliminarily determine that all of Senco’s sales are made at a single to warehouse, U.S. inland freight from In accordance with section 771(16) of level of trade. Because U.S. sales are at warehouse to the unaffiliated customer, the Act, we considered all products the same level as home market sales, no international freight (including U.S. covered by the description in the level of trade adjustment or CEP offset customs duties), marine insurance ‘‘Scope of Investigation’’ section of this is warranted. (including U.S. inland insurance ), and notice, above, produced in Korea and We have not applied a level of trade other price adjustments (see sold in the home market during the POI, adjustment or CEP offset for Kabool memorandum to the file dated May 5, to be foreign like products for purposes because Kabool did not claim a level of 1997), where appropriate. With respect of determining appropriate product trade adjustment and we are unable to to foreign inland freight and brokerage comparisons to U.S. sales. Where there determine whether the NVs are and handling expenses, Senco reported were no sales of identical merchandise calculated at different levels of trade that it incurred these expenses but did in the home market to compare to U.S. than the U.S. sales. As explained below not report any amounts for these sales, we compared U.S. sales to the in the ‘‘Normal Value’’ section of this expenses in its sales listing. As the next most similar foreign like product notice, we calculated the NV for Kabool ‘‘facts available,’’ for foreign inland freight we are using the same freight on the basis of the characteristics listed based entirely on CV. We derived SG&A amount reported for U.S. inland freight in the Department’s antidumping and profit from data from the profitable from the warehouse to the unaffiliated questionnaire. In making the product companies’ most recent financial customer, and for brokerage and comparisons, we relied on the following statements contained in the Section A handling expenses we are using the criteria (listed in order of preference): responses (see memorandum to the file brokerage and handling expenses from a head size, type of collation (used to dated May 5, 1997, for the CV profit rate sample sales document supplied by connect the wire to the nail), shank size, calculation). This data does not permit Senco in its Section A response and length of the nail, steel type, number of an appropriate level of trade analysis applying that amount to all U.S. sales. nails packed into a box or carton, type because we are unable to isolate the of coating, coating thickness (in ounces For CEP sales, we made additional particular selling expenses associated deductions, in accordance with section per foot), and coating thickness (in with the selling functions for Kabool’s microns). 772(d) (1) and (2) of the Act, for credit NV. Therefore, we find insufficient expenses, advertising expenses, other (ii). Level of Trade and CEP Offset evidence on the record to justify a level direct selling expenses, indirect selling As set forth in section 773(a)(1)(B)(i) of trade adjustment or CEP offset. expenses, and inventory carrying costs of the Act and in the Statement of Export Price and Constructed Export incurred in the United States. Pursuant Administrative Action accompanying Price to section 772(d)(3) of the Act, the price the URAA, H.R. Doc. No. 316, 103d was further reduced by an amount for Cong., 2d Sess. (1994) (‘‘SAA’’) at 829– Kabool profit, to arrive at the CEP. The amount 331, to the extent practicable, the We used EP in accordance with of profit deducted was calculated in Department will calculate NV based on section 772(a) of the Act because the accordance with section 772(f) of the sales at the same level of trade as the subject merchandise was sold to Act. Because we did not have cost U.S. sales. When the Department is unaffiliated customers before information for Senco, that would unable to find sales in the comparison importation and the CEP methodology permit us to calculate total expenses market at the same level of trade as the was not indicated by the facts of record. (and total actual profit) under paragraph U.S. sale (s), the Department may We calculated EP based on packed 772(f)(2)(C) (i) or (ii) we used the total Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25897 expenses incurred (and total actual accordance with section 773(e)(1) of the the U.S. sales as certified by the Federal profit earned) with respect to the Act, we calculated CV based on the sum Reserve Bank. narrowest category of merchandise sold of the costs of materials and fabrication, Section 773A(a) of the Act directs the in all countries which includes the selling, general, and administrative Department to convert foreign subject merchandise, in accordance expenses (‘‘SG&A’’), profit and U.S. currencies based on the dollar exchange with paragraph 772(f)(2)(C)(iii). We have packing costs. We used Kabool’s costs of rate in effect on the date of sale of the calculated profit as a percentage of the materials, fabrication and packing as subject merchandise, except if it is cost of production as recorded in reported in the U.S. sales databases. In established that a currency transaction Senco’s most recent financial statement this case, Kabool had no home market on forward markets is directly linked to and applied that ratio to the CEP selling selling expenses or home market profit an export sale. When a company expenses to arrive at an amount for CEP upon which to base CV. demonstrates that a sale on forward profit. Section 773(e)(2)(B) of the Act sets markets is directly linked to a particular export sale in order to minimize its Normal Value forth three alternatives for computing profit and SG&A without establishing a exposure to exchange rate losses, the In order to determine whether there is hierarchy or preference among the Department will use the rate of a sufficient volume of sales in the home alternative methods. We did not have exchange in the forward currency sale market to serve as a viable basis for the necessary cost data for methods one agreement. calculating NV (i.e., the aggregate Section 773A(a) also directs the (calculating SG&A and profit incurred volume of home market sales of the Department to use a daily exchange rate by the producer on the sales of foreign like product is greater than five in order to convert foreign currencies merchandise of the same general type as percent of the aggregate volume of U.S. into U.S. dollars unless the daily rate the exports in question), or two sales), we compare each respondent’s involves a fluctuation. It is the (averaging SG&A and profit of other volume of home market sales of the Department’s practice to find that a producers of the foreign like product for foreign like product to the volume of fluctuation exists when the daily sales in the home market). The third U.S. sales of the subject merchandise, in exchange rate differs from the alternative (section 773(e)(2)(B)(iii) of accordance with section 773(a)(1)(C) of benchmark rate by 2.25 percent. The the Act) provides that profit and SG&A the Act. benchmark is defined as the moving may be computed by any other average of rates for the past 40 business Senco reasonable method, capped by the days. When we determine a fluctuation Senco reported that it had no home amount normally realized on sales in to have existed, we substitute the market sales during the POI. Therefore, the foreign country of the general benchmark rate for the daily rate, in in accordance with section category of products. The SAA states accordance with established practice. 773(a)(1)(B)(ii), we based normal value that, if the Department does not have Further, section 773A(b) directs the for Senco on sales to its largest third the data to determine amounts for profit Department to allow a 60-day country market, Canada. We calculated under alternatives one and two or a adjustment period when a currency has NV based on packed prices, to profit cap under alternative three, it still undergone a sustained movement. A unaffiliated customers. In accordance may apply alternative three (without the sustained movement has occurred when with section 773(a)(6) of the Act, we cap) on the basis of the ‘‘facts the weekly average of actual daily rates deducted third country packing costs available.’’ SAA at 841. As the facts exceeds the weekly average of and added U.S. packing costs. However, available, we are calculating an average benchmark rates by more than five we note that Senco failed to report SG&A and profit rate from the most percent for eight consecutive weeks. packing amounts in its sales listings. recent financial statements of the (For an explanation of this method, Therefore, in accordance with section profitable companies from which we Policy Bulletin 96–1: Currency 776(a) of the Act, as the ‘‘facts received Section A responses. We note Conversions (61 FR 9434, March 8, available’’ we are applying the ratio of that some financial statements were 1996)). Such an adjustment period is packing costs to gross unit price as unreadable; we did not include these required only when a foreign currency supplied in the petition. Where numbers in our calculation. We is appreciating against the U.S. dollar. appropriate, we made deductions from preliminarily determine this data to be The use of an adjustment period was not the starting price (gross unit price) for a reasonable surrogate for SG&A and warranted in this case because neither inland freight. With respect to foreign profit of the subject merchandise. the Korean Won nor the Canadian inland freight expenses, Senco reported However, we will consider the issue of Dollar underwent a sustained that it incurred these expenses but did appropriate SG&A and profit movement. not report any amounts for these information further for the final Critical Circumstances expenses in its sales listing. As the determination and invite comment on ‘‘facts available’’ for foreign inland this issue. The petition contained a timely freight we are using the same freight Price to CV Comparisons allegation that there is a reasonable amount reported for U.S. inland freight basis to believe or suspect that critical from the warehouse to the unaffiliated Because we based SG&A for CV on the circumstances exist with respect to customer. In addition, where financial statements of each individual imports of subject merchandise. Section appropriate, we adjusted for differences company, where we compared CV to EP, 733(e)(1) of the Act provides that the in circumstances of sale for imputed we did not make any circumstance of Department will determine that there is credit expenses. sale adjustments for direct expenses, as a reasonable basis to believe or suspect we were unable to split out from total that critical circumstances exist if: (A)(i) Kabool SG&A the direct selling expenses. there is a history of dumping and Kabool reported that it had no viable material injury by reason of dumped Currency Conversion home or third country sales during the imports in the United States or POI. Therefore, in accordance with We made currency conversions into elsewhere of the subject merchandise, or section 773(a)(4) of the Act, we based U.S. dollars based on the official (ii) the person by whom, or for whose normal value for Kabool on CV. In exchange rates in effect on the dates of account, the merchandise was imported 25898 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices knows or should have known that the on these facts, we determine that the ITC Notification exporter was selling the subject first criterion for ascertaining whether merchandise at less than its fair value or not critical circumstances exist is not In accordance with section 733(f) of and that there was likely to be material satisfied. Therefore, we have not the Act, we have notified the ITC of our injury by reason of such sales, and (B) analyzed the shipment data for any of determination. If our final there have been massive imports of the these companies to examine whether determination is affirmative, the ITC subject merchandise over a relatively imports of CRN have been massive over will determine before the later of 120 short period. a relatively short period. Thus, because days after the date of this preliminary To determine that there is a history of neither alternative of the first criterion determination or 45 days after our final dumping of the subject merchandise, has been met, we preliminarily determination whether these imports the Department normally considers determine that there is no reasonable are materially injuring, or threaten evidence of an existing antidumping basis to believe or suspect that critical material injury to, the U.S. industry. duty order on CRN in the United States circumstances exist with respect to or elsewhere to be sufficient. See e.g., exports of CRN from Korea by Kabool or Public Comment Preliminary Determinations of Critical Senco. Circumstances: Brake Drums and Rotors Case briefs or other written comments Regarding all other exporters, because from the People’s Republic of China, 61 in at least ten copies must be submitted we do not find that critical FR 55269 (Oct. 25, 1996); Notice of to the Assistant Secretary for Import circumstances exist for any of the Final Determinations of Sales at Less Administration no later than July 29, investigated companies, we also Than Fair Value: Brake Drums and 1997, and rebuttal briefs, no later than determine that critical circumstances do Rotors from the People’s Republic of August 5, 1997. A list of authorities not exist for companies covered by the China, 62 FR 9160 (Feb. 28, 1997). used and an executive summary of ‘‘All Others’’ rate. Currently, no countries have issues should accompany any briefs outstanding antidumping duty orders on We will make a final determination submitted to the Department. Such CRN from Korea. The petitioner alleged concerning critical circumstances when summary should be limited to five pages a history of dumping based upon we make our final determination in this total, including footnotes. In accordance antidumping orders on steel wire nails investigation, if that final determination with section 774 of the Act, we will from Korea and the People’s Republic of is affirmative. hold a public hearing, if requested, to China, both of which covered CRN. See Verification afford interested parties an opportunity Certain Steel Wire Nails From Korea; to comment on arguments raised in case Final Results of Changed Circumstances As provided in section 782(i) of the or rebuttal briefs. Tentatively, the Administrative Review and Revocation Act, we will verify all information hearing will be held on August 6, at 9:00 of Antidumping Duty Order, 50 FR determined to be acceptable for use in a.m. in Room 1412 at the U.S. 40045 (Oct. 1, 1985); Final Results of making our final determination. Department of Commerce, 14th Street Changed Circumstances Administrative Suspension of Liquidation and Constitution Avenue, N.W., Review and Revocation of Antidumping Washington, D.C. 20230. Parties should Duty Order; Certain Steel Wire Nails In accordance with section 733(d) of confirm by telephone the time, date, and from The People’s Republic of China, 52 the Act, we are directing the Customs place of the hearing 48 hours before the FR 33463 (Sept. 3, 1987). We Service to suspend liquidation of all scheduled time. preliminarily determine that these imports of subject merchandise—except Interested parties who wish to request antidumping orders are not a sufficient those exported by Kabool—that are a hearing, or to participate if one is basis to find a history of dumping entered, or withdrawn from warehouse, requested, must submit a written because both orders were revoked many for consumption on or after the date of years ago. However, we will consider publication of this notice in the Federal request to the Assistant Secretary for this issue further for the final Register. We will instruct the Customs Import Administration, U.S. Department determination and we invite interested Service to require a cash deposit or the of Commerce, Room 1870, within ten parties to comment on the issue. posting of a bond equal to the weighted- days of the publication of this notice. In determining whether an importer average amount by which the NV Requests should contain: (1) The party’s knew or should have known that the exceeds the export price, as indicated in name, address, and telephone number; exporter was selling subject the chart below. These suspension of (2) the number of participants; and (3) merchandise at less than fair value and liquidation instructions will remain in a list of the issues to be discussed. Oral thereby causing material injury, the effect until further notice. The presentations will be limited to issues Department normally considers margins weighted-average dumping margins are raised in the briefs. If this investigation over 15% for EP sales and 25% for CEP as follows: proceeds normally, we will make our sales to impute knowledge of dumping final determination by 135 days after the and of resultant material injury. Brake Weighted-av- publication of this notice in the Federal Drums and Rotors, 62 FR at 9164–65. Exporter/manufacturer erage margin Register. When a company has both EP and CEP percentage sales, we normally weight-average the This determination is published 15% and 25% benchmarks using the Kabool ...... 0 pursuant to section 733(d) of the Act. Senco ...... 5.53 volume of EP and CEP sales, Dated: May 5, 1997. respectively, to arrive at a weighted- All Others ...... 5.53 Robert S. LaRussa, average benchmark percentage for imputing knowledge of dumping. In this Pursuant to section 735(c)(5)(A) of the Acting Assistant Secretary for Import investigation, of the exporters/ Act, the Department has excluded the Administration. manufacturers has a margin over 15% zero margin from the calculation of the [FR Doc. 97–12393 Filed 5–9–97; 8:45 am] for EP sales or 25% for CEP sales. Based ‘‘All Others Rate.’’ BILLING CODE 3510±DS±P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25899

DEPARTMENT OF COMMERCE to the File, dated May 5, 1997, for a manner and to serve its responses on the detailed explanation of the other interested parties in this International Trade Administration Department’s efforts to identify investigation (see letters from Erik [A±570±850] producers/exporters of the subject Warga, Acting Program Manager, AD/ merchandise.) On January 23, 1997, the CVD Enforcement, to Wuxi dated Notice of Preliminary Determination of Department issued an antidumping January 23, 1997, February 18, 1997, Sales at Less Than Fair Value and questionnaire to the China Chamber of and March 24, 1997). In the Postponement of Final Determination: Commerce for Import & Export of Department’s final letter notifying Wuxi Collated Roofing Nails From the Metals, Minerals & Chemicals and the of these errors, the due date to correct People's Republic of China Ministry of Foreign Trade and Economic such matters was set at March 31, 1997. Cooperation with instructions to Wuxi has never filed a response with AGENCY: Import Administration, forward the document to all producers/ the Department in the proper manner International Trade Administration, exporters of the subject merchandise nor served any submission on the other Department of Commerce. and that these companies must respond interested parties. Moreover, Wuxi’s EFFECTIVE DATE: May 12, 1997. by the due dates. We also sent courtesy supplemental questionnaire response FOR FURTHER INFORMATION CONTACT: copies of the antidumping duty was due on April 11, 1997; however, the Everett Kelly or Ellen Grebasch, Import questionnaire to the following Department did not receive Wuxi’s Administration, International Trade companies identified as possible response until April 14, 1997, when it Administration, U.S. Department of exporters/producers of the subject was faxed to (not filed with) the Commerce, 14th Street and Constitution merchandise during the POI: China Department. (See the ‘‘Fair Value Avenue, N.W., Washington, D.C. 20230; Wuxi Zhenfen Screw Factory (‘‘Wuxi’’), Comparisons’’ section, below, for telephone: (202) 482–4194 or (202) 482– Zhejiang Material Industry (Group) further discussion.) 3773, respectively. General Company (‘‘Zhejiang’’), On March 24, 1997, the Department Shanghai Minmetals Pu Dong requested that interested parties provide The Applicable Statute Corporation (‘‘Pu Dong’’), Honshu publicly available information (‘‘PAI’’) Unless otherwise indicated, all Changing Hardware Tools Factory for valuing the factors of production and citations to the Tariff Act of 1930, as (‘‘Honshu’’), Taiqian Construction for surrogate country selection. We amended (the Act), are references to the Materials Plant (‘‘Taiqian’’), Tianjin received comments from the interested provisions effective January 1, 1995, the Beiyang Standard Equipment Factory parties in April 1997. effective date of the amendments made (‘‘Tianjin’’), Shenzhen Top United Steel On April 17 and 25, 1997, petitioner to the Act by the Uruguay Round Co., Ltd. (‘‘Top United’’), Suzhou Jun filed comments on the Top United, Agreements Act (URAA). In addition, Hua Metal Products Co., Ltd. PuDong, Junhua, and Zongxun unless otherwise indicated, all citations (‘‘Junhua’’), Qingdao Zong Xun Nail questionnaire responses. to the Department’s regulations are to Products Co., Ltd. (‘‘Zongxun’’), Wuxi Postponement of Final Determination the current regulations, as amended by Jiangchao Metal Products Co. Ltd. the interim regulations published in the (‘‘Wuxi Jiangchao’’), and JAACO On April 22, 1997, respondents Federal Register on May 11, 1995 (60 Corporations Incorporated (‘‘JAACO’’). requested that, pursuant to section FR 25130). The questionnaire is divided into four 735(a)(2)(A) of the Act, in the event of sections: Section A requests general an affirmative preliminary Preliminary Determination information concerning a company’s determination in this investigation, the We preliminarily determine that corporate structure and business Department postpone its final collated roofing nails (‘‘CR nails’’) from practices, the merchandise under determination until not later than 135 the People’s Republic of China are investigation that it sells, and the sales days after the publication of the being, or are likely to be, sold in the of the merchandise in all of its markets. affirmative preliminary determination United States at less than fair value Sections B and C request home market in the Federal Register. In accordance (‘‘LTFV’’), as provided in section 733 of sales listings and U.S. sales listings, with section 735(a)(2) of the Act and 19 the Act. The estimated margins of sales respectively (Section B does not CFR 353.20(b), and inasmuch as our at LTFV are shown in the ‘‘Suspension normally apply in investigations preliminary determination is of Liquidation’’ section of this notice. involving the PRC). Section D requests affirmative, the respondents account for information on the factors of production a significant proportion of exports of the Case History of the subject merchandise. subject merchandise, and we are not Since the initiation of this During February and March 1997, the aware of the existence of any investigation (Notice of Initiation of Department received questionnaire compelling reasons for denying the Antidumping Duty Investigations: responses from Top United, Zongxun, request, we are granting the Collated Roofing Nails from the People’s Junhua, Pu Dong and Wuxi. We issued respondents’ request and postponing the Republic of China, the Republic of supplemental requests for information final determination. Suspension of Korea, and Taiwan (61 FR 67306, Dec. in March 1997, and received liquidation will be extended 20, 1996), the following events have supplemental responses to these accordingly. See Preliminary occurred. requests in April 1997. The remaining Determination of Sales at Less Than On January 17, 1997 the United States companies never responded to the Fair Value: Large Newspaper Printing International Trade Commission (‘‘ITC’’) Department’s antidumping Presses and Components Thereof, issued an affirmative preliminary injury questionnaire. (See the ‘‘Fair Value Whether Assembled or Unassembled, determination in this case (see ITC Comparisons’’ section, below, for from Japan (61 FR 8029, March 1, 1996). Investigation Nos. 731–TA–757–759). further discussion.) During November 1996 through Despite numerous attempts by the Scope of Investigation February 1997, the Department obtained Department to make the filing The product covered by this information from various sources requirements perfectly clear, Wuxi investigation is CR nails made of steel, regarding producers/exporters of the failed to file its questionnaire responses having a length of 13⁄16 inch to 113⁄16 subject merchandise. (See Memorandum with the Department in the proper inches (or 20.64 to 46.04 millimeters), a 25900 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices head diameter of 0.330 inch to 0.415 venture between Qingdao Jiaozhou City addition, respondents submitted the inch (or 8.38 to 10.54 millimeters), and Hardware Factory (collective-owned ‘‘Law of the People’s Republic of China a shank diameter of 0.100 inch to 0.125 enterprise) and Taiwan Fuxun on Chinese-Foreign Contractual Joint inch (or 2.54 to 3.18 millimeters), Enterprise Company, Ltd. (a Taiwan Ventures’ (April 13, 1988). The articles whether or not galvanized, that are company). of this law authorize joint venture collated with two wires. As stated in Silicon Carbide and companies to make their own CR nails within the scope of this Furfuryl Alcohol, ownership of the operational and management decisions. investigation are classifiable under the company by all the people does not Further, Junhua and Zongxun submitted Harmonized Tariff Schedule of the require the application of a single rate. the ‘‘Regulations Governing Rural United States (‘‘HTSUS’’) subheading Accordingly, Pu Dong and Top United Collective Owned Enterprises of the 7317.00.55.05. Although the HTSUS are eligible for consideration of a PRC’’ (July 1, 1990). The articles of this subheading is provided for convenience separate rate. law authorize collective-owned and customs purposes, our written The business licenses’ of the enterprises to make their own description of the scope of this remaining two respondents, Junhua and operational and management decisions. investigation is dispositive. Zongxun, note that these PRC In prior cases, the Department has companies are foreign trade joint analyzed the very laws which the Period of Investigation ventures which own the production and respondents have submitted in this The period of this investigation export facilities used to manufacture investigation and found that they (‘‘POI’’) comprises each exporter’s two and export the subject merchandise they establish an absence of de jure control. most recent fiscal quarters prior to the sell to the United States. In other cases (See Notice of Final Determination of filing of the petition. involving the PRC, joint ventures Sales at Less Than Fair Value: Certain between ‘‘collective’’-owned enterprises Nonmarket Economy Country Status Partial-Extension Steel Drawer Slides and foreign investors have not been with Rollers from the People’s Republic The Department has treated the PRC precluded from consideration of a of China, 60 FR 54472 (Oct. 24, 1995); as a nonmarket economy country separate rate (see Final Antidumping see also Furfuryl Alcohol.) We have no (‘‘NME’’) in all past antidumping Duty Determination of Sales at Less new information in these proceedings investigations (see, e.g., Final Than Fair Value: Certain Partial- which would cause us to reconsider this Determination of Sales at Less Than Extension Steel Drawer Slides with determination. Fair Value: Silicon Carbide from the Rollers from the People’s Republic of However, as in previous cases, there People’s Republic of China, 59 FR 22585 China, 60 FR 54472 (Oct. 23, 1995) and is some evidence that certain (May 2, 1994) (‘‘Silicon Carbide’’) and Preliminary Antidumping Duty enactments of the PRC central Final Determination of Sales at Less Determination of Sales at Less Than government have not been implemented Than Fair Value: Furfuryl Alcohol from Fair Value: Certain Partial-Extension uniformly among different sectors and/ the People’s Republic of China, 60 FR Steel Drawer Slides with Rollers from or jurisdictions in the PRC. (See Silicon 22545 (May 8, 1995) (‘‘Furfuryl the People’s Republic of China, 60 FR Carbide and Furfuryl Alcohol.) Alcohol’’)). Neither respondents nor 29571 (June 5, 1995)). Therefore, for Therefore, the Department has petitioner have challenged such purposes of the preliminary determined that an analysis of de facto treatment. Therefore, in accordance determination, the remaining control is critical in determining with section 771(18)(C) of the Act, we respondents are eligible for whether respondents are, in fact, subject will continue to treat the PRC as an consideration of a separate rate. to a degree of governmental control NME in this investigation. To establish whether a firm is which would preclude the Department When the Department is investigating sufficiently independent from from assigning separate rates. imports from an NME, section 773(c)(1) government control to be entitled to a of the Act directs us to base normal separate rate, the Department analyzes 2. Absence of De Facto Control value (‘‘NV’’) on the NME producers’’ each exporting entity under a test The Department typically considers factors of production, valued, to the arising out of the Final Determination of four factors in evaluating whether each extent possible, in a comparable market Sales at Less Than Fair Value: Sparklers respondent is subject to de facto economy that is a significant producer from the People’s Republic of China, 56 governmental control of its export of comparable merchandise. The FR 20588 (May 6, 1991) and amplified functions: (1) Whether the export prices sources of individual factor prices are in Silicon Carbide. Under the separate are set by, or subject to, the approval of discussed in the NV section of this rates criteria, the Department assigns a governmental authority; (2) whether notice, below. separate rates in NME cases only if the respondent has authority to respondents can demonstrate the negotiate and sign contracts, and other Separate Rates absence of both de jure and de facto agreements; (3) whether the respondent Each of the respondents has requested governmental control over export has autonomy from the government in a separate company-specific rate. Pu activities. making decisions regarding the Dong was reported as being ‘‘owned by selection of its management; and (4) all the people.’’ Top United is a joint 1. Absence of De Jure Control whether the respondent retains the venture between (a) Guangming The respondents have placed on the proceeds of its export sales and makes Overseas Chinese Farm (company record a number of documents to independent decisions regarding ‘‘owned by all the people’’), (b) Padico demonstrate absence of de jure control, disposition of profits or financing of Investment (China), Ltd. (company in including laws, regulations, and losses (see Silicon Carbide and Furfuryl Hong Kong), and (c) Topvan provisions enacted by the State Council Alcohol). International (company in British Virgin of the central government of the PRC. Pu Dong, Zongxun, Junhua, and Top Islands). Junhua is a joint venture They have also submitted documents United each asserted the following: (1) between Taicang Metal Fusu Factory which establish that collated roofing They establish their own export prices; (collective-owned enterprise) and Hong nails are not included on the list of (2) they negotiate contracts without Kong Zhanghua Company, Ltd. (a Hong products that may be subject to central guidance from any governmental Kong company). Zongxun is a joint government export constraints. In entities or organizations; (3) they make Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25901 their own personnel decisions; and (4) control of these and all other PRC we determine that the NV calculations they retain the proceeds of their export companies for which we cannot make a have probative value. (See sales, use profits according to their separate rates determination. Thus, the memorandum to the file dated May 5, business needs, and have the authority Department has determined that, in 1997.) to sell their assets and to obtain loans. selecting from among the facts Based on our pre-initiation analysis Additionally, respondents’ otherwise available, an adverse and reexamination of the price questionnaire responses indicate that inference is warranted. As adverse facts information supporting the petition, we company-specific pricing during the available, we are assigning the higher of determine that the highest margin stated POI does not suggest coordination the petition margin or margin calculated in the Notice of Initiation is among exporters. This information for any participating respondent in this corroborated within the meaning of supports a preliminary finding that investigation. Because the margins in section 776(c) of the Act. there is de facto absence of the petition (as recalculated by the B. Wuxi governmental control of the export Department at initiation) were higher functions of these companies. than any of the calculated margins, we As stated above, Wuxi failed to file Consequently, we determine used the highest margin stated in the their questionnaire responses with the preliminarily that these exporters have Notice of Initiation, 118.41%, as total Department in the proper manner and to met the criteria for the application of adverse facts available for the PRC-wide serve their responses on the other separate rates. We will examine this rate. interested parties in this investigation. matter further at verification. Section 776(c) of the Act provides that In addition, Wuxi’s submissions did not where the Department selects from provide adequate information for Facts Available among the facts otherwise available and determining that Wuxi is sufficiently A. Non-Responding Exporters relies on ‘‘secondary information,’’ such independent from government control as the petition, the Department shall, to Because some companies did not to be entitled to a separate rate. As such, the extent practicable, corroborate that we determine that Wuxi is not entitled respond to the questionnaire, we are information from independent sources applying a single antidumping deposit to a separate rate. We, therefore, have reasonably at the Department’s disposal. included Wuxi in the ‘‘PRC-wide’’ rate. rate—the PRC-wide rate—to all The Statement of Administrative Action exporters in the PRC (except the four accompanying the URAA, H.R. Doc. No. Fair Value Comparisons fully participating exporters) based on 316, 103d Cong., 2d Sess. (1994) To determine whether sales of the our presumption that the export (hereinafter, the ‘‘SAA’’), states that subject merchandise by Top United, activities of the companies that failed to ‘‘corroborate’’ means to determine that Zongxun, Junhua, and Pu Dong to the respond are controlled by the PRC the information used has probative United States were made at less than government. See, e.g., Notice of Final value. See SAA at 870. fair value, we compared the export price Determination of Sales at Less Than In the petition, the petitioner based its (‘‘EP’’) or constructed export price Fair Value: Bicycles from the People’s allegation of export price on price (‘‘CEP’’) to the NV, as described in the Republic of China (61 FR 19026, Apr. quotations from two manufacturer/ ‘‘Export Price and Constructed Export 30, 1996). exporters of CRN in the PRC. These Price’’ and ‘‘Normal Value’’ sections of This PRC-wide antidumping rate is price quotations were adjusted for this notice, below. In accordance with based on adverse facts available. Section movement expenses using customs data section 777A(d)(1)(A)(i) of the Act, we 776(a)(2) of the Act provides that ‘‘if an and IM–145 Import Statistics. See compared POI-wide weighted-average interested party or any other person— Notice of Initiation, 61 FR at 67307–08. EPs or CEPs to weighted-average NVs. (A) Withholds information that has been As we stated in Final Determination of requested by the administering Sales at Less Than Fair Value: Certain Export Price/Constructed Export Price authority, (B) fails to provide such Pasta From Turkey, 61 FR 30309 (June Top United information by the deadlines for the 14, 1996), we consider price quotations submission of the information or in the as information from independent We used CEP in accordance with form and manner requested, subject to sources. The export price calculations section 772(b) of the Act, because the subsections (c)(1) and (e) of section 782, were based upon independent sources sales to unaffiliated purchasers were (C) significantly impedes a proceeding and Import Statistics, both sources made after importation. We calculated under this title, or (D) provides such which we consider to require no further CEP based on packed prices, FOB U.S. information but the information cannot corroboration by the Department. affiliate’s warehouse to the first be verified as provided in section 782(i), Therefore, we determined at initiation, unaffiliated purchaser in the United the administering authority * * * shall, and continue to find, that the States. We made the following subject to section 782(d), use the facts calculations set forth in the petition deductions from the starting price otherwise available in reaching the have probative value. (‘‘gross unit price’’): discounts, inland applicable determination under this The petitioner based its allegation of freight from the plant/warehouse to port title.’’ NV on the factors of production. See of exit, PRC brokerage and handling, Section 776(b) of the Act provides Notice of Initiation, 61 FR at 67308. To international freight, U.S. inland freight that adverse inferences may be used calculate the factors of production, the from port to warehouse, and U.S. against a party that has failed to petitioner used manufacturing costs customs duties, where appropriate. cooperate by not acting to the best of its based on its own production experience, Because domestic brokerage and ability to comply with a request for its 1995 audited financial statements, handling and inland freight were information. The exporters that decided and publicly available industry data. Id. provided by a NME carrier, we based not to respond in any form to the The factor of production amounts for those charges on surrogate rates from Department’s questionnaire demonstrate the most significant raw material input Indonesia. We made additional that these companies have failed to act (i.e., steel wire) in the petition are deductions, in accordance with section to the best of their ability in this consistent with the factor of production 772(d)(1) of the Act, for credit expenses, investigation. Further, absent a amounts reported by the respondents on indirect selling expenses, and inventory response, we must presume government the record of this investigation. As such, carrying costs. Pursuant to section 25902 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

772(d)(3) of the Act, the price was purchaser in the United States. Where make them delivered prices. For those further reduced by an amount for profit, appropriate, we made deductions from values not contemporaneous with the to arrive at the CEP. The amount of the starting price (i.e., gross unit price) POI and quoted in a foreign currency, profit deducted was calculated in for inland freight from the plant/ we adjusted for inflation using accordance with section 772(f) of the warehouse to port of exit, and brokerage wholesale price indices or, in the case Act. Because Top United is located in and handling in the PRC. Because of labor rates, consumer price indices, an NME country, we did not include domestic brokerage and handling and published in the International Monetary any home market expenses, either actual inland freight were provided by a NME Fund’s International Financial or surrogate, in the CEP profit carrier, we based those charges on Statistics. For a complete analysis of calculation. (See Notice of Final surrogate rates from Indonesia. surrogate values, see the Preliminary Determination of Sales at Less than Fair Determination Calculation Value: Certain Bicycles from the Normal Value Memorandum from the team to the File People’s Republic of China 61 FR 19026, A. Surrogate Country (‘‘Preliminary Determination 19032, Apr. 30, 1996.) Because the PRC Calculation Memorandum’’), dated May Section 773(c)(4) of the Act requires is an NME we are using a surrogate 5, 1997. the Department to value the NME profit rate based on total expenses and Except where noted below, we valued producer’s factors of production, to the total actual profit reflective of the the following reported direct raw extent possible, in one or more market industry experience in our CEP profit material inputs and packing materials economy countries that: (1) Are at a calculations. using 1996 Foreign Trade Statistics level of economic development (‘‘FTS’’) data from Indonesia: welding Zongxun comparable to that of the NME, and (2) wire, hydrochloric acid, zinc, zinc We used EP in accordance with are significant producers of comparable powder, barium carbonate, potassium section 772(a) of the Act, because the merchandise. The Department has chloride, zinc chloride, boracic acid, subject merchandise was sold to determined that India, Pakistan, Sri nitric acid, potassium chromate, sulfuric unaffiliated customers before Lanka, Egypt, and Indonesia are acid, caustic soda, ammonia chloride, importation and the CEP methodology countries comparable to the PRC in and sodium hydrosulfite. Reported was not indicated by the facts of record. terms of overall economic development packing materials include: paper carton, We calculated EP based on packed (see Memorandum dated March 24, rubber bands, adhesive strips, nylon prices, FOB to the first unaffiliated 1997). According to the available strips, staples, wood, nails, steel strips, purchaser in the United States. Where information on the record, we have and plastic sheets. Absent accurate FTS appropriate, we made deductions from determined that Indonesia is a data, we used 1995 United Nations the starting price (gross unit price) for significant producer of merchandise that Trade Statistics from Indonesia to value inland freight from the plant/warehouse is comparable to CRN. Accordingly, we the following inputs: welding wire and to port of exit, and brokerage and have calculated NV using Indonesian rubber bands. One of the reported handling in the PRC. Because domestic import prices—except, as noted below, material inputs, water, was determined brokerage and handling and inland in the ‘‘Normal Value’’ section of this not to be a direct material input in the freight were provided by a NME carrier, notice, in certain instances where an production of subject merchandise and, we based those charges on surrogate input was sourced from a market therefore, has been treated as part of the rates from Indonesia. economy—for the PRC producer’s factory overhead cost. (For further factors of production. We have obtained discussion, see Preliminary Junhua and relied upon PAI wherever possible. Determination Calculation We used EP in accordance with B. Factors of Production Memorandum.) section 772(a) of the Act, because the To value direct skilled, direct subject merchandise was sold to In accordance with section 773(c) of unskilled, indirect labor and packing unaffiliated customers before the Act, we calculated NV based on labor, we used the 1994 wage rate—the importation and the CEP methodology factors of production reported by the latest available information—for the was not indicated by the facts of record. companies in the PRC which produced manufacturing sector of fabricated metal We calculated EP based on packed CR nails for the exporters which sold CR products, machinery, and equipment in prices, FOB to the first unaffiliated nails to the United States during the Indonesia published in the 1994 purchaser in the United States. Where POI. To calculate NV, the reported unit Statistical Yearbook of Indonesia. appropriate, we made deductions from factor quantities were multiplied by Because we cannot determine whether the starting price (gross unit price) for publicly available Indonesian values, the labor values from this source were inland freight from the plant/warehouse where possible. for skilled or unskilled workers, in to port of exit, and brokerage and For those inputs (i.e., steel wire) that accordance with the Department’s handling in the PRC. Because domestic were sourced (either partially or totally) practice in past NME cases, we applied brokerage and handling and inland from a market economy and paid for in a single earnings rate to all reported freight were provided by a NME carrier, market economy currency, we used the labor factors (see Preliminary we based those charges on surrogate actual price paid for the input to Determination of Sales at Less Than rates from Indonesia. calculate the factors-based NV in Fair Value: Polyvinyl Alcohol from the accordance with our practice. (See PRC, 60 FR 52647 (Oct. 10, 1995) and Pu Dong Lasko Metal Products v. United States, Preliminary Determination of Sales at We used EP in accordance with 437 F. 3d 1442, 1443 (Fed. Cir. 1994).) Less Than Fair Value: Steel Pipe from section 772(a) of the Act, because the We valued the remaining factors using Romania, 60 FR 61532 (Nov. 30, 1995)). subject merchandise was sold to PAI from Indonesia. To value electricity, we used the 1995 unaffiliated customers before The selection of the surrogate values electricity rate reported in A Brief Guide importation and the CEP methodology applied in this determination was based for Investors, published by the Republic was not indicated by the facts of record. on the quality, specificity, and of Indonesia’s Investment Coordinating We calculated EP based on packed contemporaneity of the data. As Board. We based the value of diesel oil prices, FOB to the first unaffiliated appropriate, we adjusted input prices to on 1996 FTS data for Indonesia. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25903

We based our calculation of factory Review and Revocation of Antidumping determined to be acceptable for use in overhead, SG&A expenses, and profit on Duty Order, 50 FR 40045 (Oct. 1, 1985); making our final determination. financial information for nail, screw, Final Results of Changed Circumstances Suspension of Liquidation and bolt industries’ experience in Administrative Review and Revocation Indonesia, as reported in Biro Pusat of Antidumping Duty Order; Certain In accordance with section 733(d) of Statistik 1995, Volume II, Indonesian Steel Wire Nails from The People’s the Act, we are directing the Customs Large and Medium Manufacturing Republic of China, 52 FR 33463 (Sept. Service to suspend liquidation of all Statistics. 3, 1987). We preliminarily determine imports of subject merchandise—except To value truck freight rates, we used that these antidumping orders are not a those exported by Top United, Zongxun, information in a September 1991, cable sufficient basis to find a history of Junhua, or Pu Dong—that are entered, or from the U.S Embassy in Jakarta, dumping because both orders were withdrawn from warehouse, for Indonesia. revoked several years ago. However, we consumption on or after the date of To value foreign brokerage and will consider this issue further for the publication of this notice in the Federal handling, we relied on information final determination and we invite Register. We will instruct the Customs reported in the antidumping interested parties to comment on the Service to require a cash deposit or the investigation of stainless steel bar from issue. posting of a bond equal to the weighted- India (see Final Determination of Sales In determining whether an importer average amount by which the NV at Less Than Fair Value: Stainless Steel knew or should have known that the exceeds the EP or CEP, as indicated in Bar from India, 59 FR 66915, Dec. 28, exporter was selling subject the chart below. These suspension of 1994). merchandise at less than fair value and liquidation instructions will remain in Critical Circumstances thereby causing material injury, the effect until further notice. Department normally considers margins The petition contained a timely Weighted- allegation that there is a reasonable over 15% for EP sales and 25% for CEP Exporter/manufacturer average basis to believe or suspect that critical sales to impute knowledge of dumping margin circumstances exist with respect to and of resultant material injury. Brake percentage imports of subject merchandise. Section Drums and Rotors, 62 FR at 9164–65. In Top United ...... 0 733(e)(1) of the Act provides that the this investigation, none of the participating exporters/manufacturers Zongxun ...... 0 Department will determine that there is 1 has a margin over 15% for EP sales or Junhua ...... a reasonable basis to believe or suspect Pu Dong ...... 0 that critical circumstances exist if: (A)(i) 25% for CEP sales. Based on these facts, PRC-wide Rate ...... 118.41 There is a history of dumping and we determine that the first criterion for 1 material injury by reason of dumped ascertaining whether or not critical De Minimis. imports in the United States or circumstances exist is not satisfied. The PRC-wide rate applies to all elsewhere of the subject merchandise, or Therefore, we have not analyzed the entries of subject merchandise except (ii) the person by whom, or for whose shipment data for any of these for entries from exporters/factories that account, the merchandise was imported companies to examine whether imports are identified individually above. knows or should have known that the of CRN have been massive over a exporter was selling the subject relatively short period. Thus, because ITC Notification merchandise at less than its fair value neither alternative of the first criterion In accordance with section 733(f) of and that there was likely to be material has been met, we preliminarily the Act, we have notified the ITC of our injury by reason of such sales, and (B) determine that there is no reasonable determination. If our final there have been massive imports of the basis to believe or suspect that critical determination is affirmative, the ITC subject merchandise over a relatively circumstances exist with respect to will determine before the later of 120 short period. exports of CRN from the PRC by Top days after the date of this preliminary To determine that there is a history of United, Junhua, Pu Dong, and Zongxun. determination or 45 days after our final dumping of the subject merchandise, Regarding firms covered by the ‘‘PRC- determination whether these imports the Department normally considers wide’’ rate, we have used the ‘‘facts are materially injuring, or threaten evidence of an existing antidumping available’’ as the basis for determining material injury to, the U.S. industry. duty order on CRN in the United States whether critical circumstances exist for or elsewhere to be sufficient. See e.g., non-respondent exporters. The ‘‘facts Public Comment Preliminary Determinations of Critical available’’ margin exceeds the threshold Case briefs or other written comments Circumstances: Brake Drums and Rotors for imputing knowledge of dumping to in at least ten copies must be submitted from the People’s Republic of China, 61 the importers of the merchandise. In to the Assistant Secretary for Import FR 55269 (Oct. 25, 1996); Notice of addition, we have adversely assumed, as Administration no later than July 28, Final Determinations of Sales at Less the ‘‘facts available’’, a massive increase 1997, and rebuttal briefs, no later than Than Fair Value: Brake Drums and in imports from these non-respondent August 4, 1997. A list of authorities Rotors from the People’s Republic of exporters. We, therefore, determine that used and an executive summary of China, 62 FR 9160 (Feb. 28, 1997). critical circumstances exist for non- issues should accompany any briefs Currently, no countries have responding exporters. submitted to the Department. Such outstanding antidumping duty orders on We will make a final determination summary should be limited to five pages CRN from the PRC. The petitioner concerning critical circumstances when total, including footnotes. In accordance alleged a history of dumping based we make our final determination of with section 774 of the Act, we will upon antidumping orders on steel wire sales at less than fair value in this hold a public hearing, if requested, to nails from Korea and the People’s investigation. afford interested parties an opportunity Republic of China, both of which to comment on arguments raised in case Verification covered CRN. See Certain Steel Wire or rebuttal briefs. Tentatively, the Nails From Korea; Final Results of As provided in section 782(i) of the hearing will be held on August 5, 1997, Changed Circumstances Administrative Act, we will verify all information at 9:00 a.m. in Room 1412 at the U.S. 25904 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Department of Commerce, 14th Street Federal Register on May 11, 1995 (60 The Department received responses to and Constitution Avenue, N.W., FR 25130). Section A of the questionnaire during Washington, D.C. 20230. Parties should February and March, 1997. K. Ticho did Preliminary Determination confirm by telephone the time, date, and not respond to the Department’s place of the hearing 48 hours before the We preliminarily determine that questionnaire. (See the ‘‘Fair Value scheduled time. collated roofing nails (‘‘CRN’’) from Comparisons’’ section below, for further Interested parties who wish to request Taiwan are being, or are likely to be, discussion). a hearing, or to participate if one is sold in the United States at less than fair On March 13, 1997, pursuant to requested, must submit a written value (‘‘LTFV’’), as provided in section section 777A(c) of the Act, the request to the Assistant Secretary for 733 of the Act. The estimated margins Department determined that, due to the Import Administration, U.S. Department of sales at LTFV are shown in the large number of exporters/producers of of Commerce, Room 1870, within ten ‘‘Suspension of Liquidation’’ section of the subject merchandise, it would limit days of the publication of this notice. this notice. the number of mandatory respondents Requests should contain: (1) The party’s in this investigation. The Department Case History name, address, and telephone number; determined that the resources available (2) the number of participants; and (3) Since the initiation of this to it for this investigation and the two a list of the issues to be discussed. Oral investigation (Notice of Initiation of companion investigations limited our presentations will be limited to issues Antidumping Duty Investigations: ability to analyze any more than the raised in the briefs. If this investigation Collated Roofing Nails from the People’s responses of the four largest exporters/ proceeds normally, we will make our Republic of China, the Republic of producers of the subject merchandise in final determination by 135 days after the Korea, and Taiwan (61 FR 67306, this investigation. Based on Section A publication of this notice in the Federal December 20, 1996), the following questionnaire responses, the Register. events have occurred: Department determined that the four This determination is published On January 17, 1997, the United largest companies, and therefore the pursuant to section 733(d) of the Act. States International Trade Commission mandatory respondents in this (‘‘ITC’’) issued an affirmative proceeding, were: Unicatch, Lei Chu, Dated: May 5, 1997. Romp, and S&J. (For detailed Robert S. LaRussa, preliminary injury determination in this case (see ITC Investigation Nos. 731– information regarding this issue, see Acting Assistant Secretary for Import memorandum to Lou Apple from the TA–757–759). Administration. CRN team, dated March 13, 1997.) [FR Doc. 97–12394 Filed 5–9–97; 8:45 am] During November 1996 through Unicatch, Lei Chu, Romp, and S&J BILLING CODE 3510±DS±P January 1997, the Department obtained submitted questionnaire responses in information from various sources February and March 1997. We issued identifying producers/exporters of the supplemental requests for information DEPARTMENT OF COMMERCE subject merchandise. (See Memorandum in March and April 1997, and received to the File, dated May 5, 1997, for a supplemental responses to these International Trade Administration detailed explanation of the requests in April 1997. [A±583±826] Department’s search for producers/ On April 14, 16, 23, and 25, 1997, the exporters of the subject merchandise.) Paslode Division of Illinois Tool Works Notice of Preliminary Determination of During January and February, based on Inc. (‘‘Petitioner’’) filed comments on Sales at Less Than Fair Value and this information, the Department issued the Unicatch, Lei Chu, Romp, and S&J Postponement of Final Determination: antidumping questionnaires to Unicatch questionnaire responses. Collated Roofing Nails From Taiwan Industrial Co. Ltd. (‘‘Unicatch’’), K. Ticho Industries Co., Ltd. (‘‘K. Ticho’’), Postponement of Final Determination AGENCY: Import Administration, Hao Chun B&M Corporation (‘‘Hao and Extension of Provisional Measures International Trade Administration, Chun’’), Lei Chu Enterprise Co., Ltd. On April 22, 1997, Respondents Department of Commerce. (‘‘Lei Chu’’), Forrader Union Company Unicatch and Lei Chu requested that, EFFECTIVE DATE: May 12, 1997. (‘‘Forrader’’), Double Dragon Ent. Co. pursuant to section 735(a)(2)(A) of the FOR FURTHER INFORMATION CONTACT: Ltd. (‘‘Dragon’’), S&J Wire Products Act, in the event of an affirmative Everett Kelly or Ellen Grebasch, Import Company, Ltd. (‘‘S&J’’), Certified preliminary determination in this Administration, International Trade Products Inc. (‘‘Certified’’), Sun Jade investigation, the Department postpone Administration, U.S. Department of Handicraft Ltd. (‘‘Sun Jade’’), Master its final determination until not later Commerce, 14th Street and Constitution United Corporation (‘‘United’’), Trim than 135 days after the date of Avenue, N.W., Washington, D.C. 20230; International Incorporated (‘‘Trim’’), publication of the affirmative telephone: (202) 482–4194 or (202) 482– and Romp Coil Nail Industries preliminary determination in the 3773, respectively. (‘‘Romp’’). The questionnaire is divided Federal Register. In accordance with into four sections: Section A requests section 735(a)(2)(A) of the Act and 19 The Applicable Statute general information concerning a CFR 353.20(b), inasmuch as our Unless otherwise indicated, all company’s corporate structure and preliminary determination is citations to the Tariff Act of 1930, as business practices, the merchandise affirmative, Unicatch and Lei Chu amended (the Act), are references to the under investigation that it sells, and the account for a significant proportion of provisions effective January 1, 1995, the sales of the merchandise in all of its exports of the subject merchandise effective date of the amendments made markets. Sections B and C request home under investigation, and we are not to the Act by the Uruguay Round market sales listings and U.S. sales aware of the existence of any Agreements Act (URAA). In addition, listings, respectively. Section D requests compelling reasons for denying the unless otherwise indicated, all citations information on the cost of production request, we are granting the to the Department’s regulations are to (‘‘COP’’) of the foreign like product and respondents’ request and postponing the the current regulations, as amended by constructed value (‘‘CV’’) of the subject final determination. Suspension of the interim regulations published in the merchandise. liquidation will be extended Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25905 accordingly. See Preliminary otherwise available, an adverse corroborated within the meaning of Determination of Sales at Less Than Fair inference is warranted. As adverse facts section 776(c) of the Act. Value: Large Newspaper Printing available, we are assigning to K.Ticho B. Unicatch, Lei Chu, S&J, and Romp Presses and Components Thereof, the higher of the petition margin or Whether Assembled or Unassembled, margin calculated for any respondent in To determine whether sales of the from Japan (61 FR 8029, March 1, 1996). this investigation. Because the margins subject merchandise by Unicatch, Lei in the petition (as recalculated by the Chu, S&J, and Romp to the United States Scope of Investigation Department at initiation) were higher were made at less than fair value, we The product covered by this than any of the calculated margins, we compared the Export Price (‘‘EP’’) or investigation is CR nails made of steel, used the highest margin stated in the Constructed Export Price (‘‘CEP’’) to the having a length of 13⁄16 to 1–13⁄16 inches Notice of Initiation, 40.28%, as total NV, as described in the EP, CEP, and (or 20.64 to 46.04 millimeters), a head adverse facts available for K. Ticho. ‘‘Normal Value’’ sections of this notice, diameter of 0.330 inch to 0.415 inch (or Section 776(c) of the Act provides that below. In accordance with section 8.38 to 10.54 millimeters), and a shank where the Department selects from 777A(d)(1)(A)(i) of the Act, we diameter of 0.100 inch to 0.125 inch (or among the facts otherwise available and compared POI-wide weighted-average 2.54 to 3.18 millimeters), whether or not relies on ‘‘secondary information,’’ such EPs or CEPs to weighted-average NVs. In making our comparisons, in galvanized, that are collated with two as the petition, the Department shall, to accordance with section 771(16) of the wires. the extent practicable, corroborate that Act, we considered all products sold in CR nails within the scope of this information from independent sources the home market, fitting the description investigation are classifiable under the reasonably at the Department’s disposal. specified in the ‘‘Scope of Investigation’’ Harmonized Tariff Schedule of the The Statement of Administrative Action section of this notice, above, to be United States (‘‘HTSUS’’) subheading accompanying the URAA, H.R. Doc. No. foreign like products for purposes of 7317.00.55.05. Although the HTSUS 316, 103d Cong., 2d Sess. (1994) determining appropriate product subheading is provided for convenience (hereinafter, the ‘‘SAA’’), states that comparisons to U.S. sales. Unicatch, Lei and customs purposes, our written ‘‘corroborate’’ means to determine that Chu, S&J, and Romp reported that they description of the scope of this the information used has probative had no viable home market or third investigation is dispositive. value. See SAA at 870. country sales during the POI. We In the petition, the petitioner based its Period of Investigation therefore made no price-to-price allegation of export price on price comparisons. See the ‘‘Normal Value’’ The period of this investigation quotes from two manufacturer/exporters section of this notice, below, for further (‘‘POI’’) comprises each exporter’s four of CRN in Taiwan. These price discussion. most recent fiscal quarters prior to the quotations were adjusted for movement filing of the petition. In this case, the expenses using customs data and IM– Level of Trade and CEP Offset POI for all companies is October 1, 1995 145 Import Statistics. See Notice of through September 30, 1996. As set forth in section 773(a)(1)(B)(i) Initiation, 61 FR at 67307–08. As stated of the Act and in the SAA at 829–331, Fair Value Comparisons in Final Determination of Sales at Less to the extent practicable, the Than Fair Value: Certain Pasta From A. K. Ticho Department will calculate NV based on Turkey, 61 FR 30309 (June 14, 1996), we sales at the same level of trade as the As discussed above, K. Ticho did not consider price quotations as information U.S. sales. When the Department is respond to the Department’s from independent sources. The export unable to find sales in the comparison questionnaire. Section 776(a)(2) of the price calculations were based upon market at the same level of trade as the Act provides that if an interested party independent sources and Import U.S. sale(s), the Department may withholds information that has been Statistics, both sources which we compare sales in the U.S. and foreign requested by the Department, fails to consider to require no further markets at different levels of trade. provide such information in a timely corroboration by the Department. Section 773(a)(7)(A) provides that if we manner and in the form requested, Therefore, we determined at initiation, compare a U.S. sale with a home market significantly impedes a proceeding, or and continue to find, that the sale made at a different level of trade, provides such information but the calculations set forth in the petition when appropriate, we will adjust NV to information cannot be verified, the have probative value. account for this difference. When NV is Department shall use the facts otherwise The petitioner based Normal Value based on CV, the level of trade is that available in reaching the applicable (‘‘NV’’) on CV. See Notice of Initiation, of the sales from which we derive determination. Because K. Ticho failed 61 FR at 67308. To calculate CV, the selling, general and administrative to submit the information that the petitioner used manufacturing costs (‘‘SG&A’’) expenses and profit. Department specifically requested, we based on its own production experience, For comparisons to CEP sales, section must base our determination for K. its 1995 audited financial statements, 773(a)(7)(B) establishes the procedure Ticho on the facts available. and publicly available industry data. Id. for making a CEP offset when two Section 776(b) of the Act provides The CV calculations in the petition are conditions are met. First, the NV is that adverse inferences may be used consistent with the CVs reported by the established at a level of trade which against a party that has failed to respondents on the record of this constitutes a more advanced stage of cooperate by not acting to the best of its investigation. As such, we determine distribution than the level of trade of the ability to comply with a request for that the NV calculations have probative CEP, and second, the data available do information. K. Ticho’s decision not to value. (See memorandum, dated May 5, not establish an appropriate basis for participate in the Department’s 1997.) calculating a level of trade adjustment. investigation demonstrates that K. Ticho Based on our pre-initiation analysis We have not applied a level of trade has failed to act to the best of its ability and reexamination of the price adjustment or CEP offset for any in this investigation. Thus, the information supporting the petition, we respondent in this investigation because Department has determined that, in determine that the highest margin stated none of the respondents claimed a level selecting from among the facts in the Notice of Initiation is of trade adjustment and we are unable 25906 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices to determine whether the NVs for each Lei Chu market sales during the POI. Therefore, respondent are calculated at different We used EP in accordance with we have determined that none of the levels of trade than their U.S. sales. As section 772(a) of the Act because the respondents have a viable home market. explained below in the ‘‘Normal Value’’ subject merchandise was sold to Because Unicatch, Lei Chu, S&J, and section of this notice, we calculated NV unaffiliated customers before Romp also reported that they had no for each respondent based entirely on importation and the CEP methodology third country sales during the POI, we CV. We derived SG&A and profit from was not indicated by the facts of record. based normal value on CV in data contained in each respondents’ We calculated EP based on packed accordance with section 773(a)(4) of the financial statements. This data does not prices, either FOB, CNF USA, or CIF Act. permit an appropriate level of trade USA to the first unaffiliated purchaser Calculation of CV analysis because we are unable to in the United States. Where appropriate, In accordance with section 773(e)(1) isolate the particular selling expenses we made deductions from the starting of the Act, we calculated CV based on associated with the selling functions for price (gross unit price) for inland freight the sum of a respondent’s cost of each respondents’ NV. Therefore, we from the plant/warehouse to port of exit, materials, fabrication, SG&A, profit and find insufficient evidence on the record brokerage and handling in Taiwan, U.S. packing costs as reported in the to justify a level of trade adjustment or international freight, marine insurance, U.S. sales databases. In this case, none CEP offset. and bank charges. We added to EP of the respondents had home market reported duty drawback amounts. Export Price/Constructed Export Price selling expenses or home market profit S&J upon which to base CV. Unicatch We used EP in accordance with Section 773(e)(2)(B) of the Act sets We used EP in accordance with section 772(a) of the Act because the forth three alternatives for computing section 772(a) of the Act where the subject merchandise was sold to profit and SG&A without establishing a subject merchandise was sold to unaffiliated customers before hierarchy or preference among the unaffiliated customers prior to importation and the CEP methodology alternative methods. We did not have importation and the CEP methodology was not indicated by the facts of record. the necessary cost data for methods one was not indicated by the facts of record. We calculated EP based on packed (calculating SG&A and profit incurred We used CEP in accordance with prices, either FOB, CNF, or CIF to the by the producer on the home market section 772(b) of the Act where the first unaffiliated purchaser in the United sales of merchandise of the same general subject merchandise was sold to States. Where appropriate, we made category as the exports in question), or unaffiliated customers after importation. deductions from the starting price (gross two (averaging SG&A and profit of other We calculated EP/CEP, as appropriate, unit price) for inland freight from the investigated producers of the foreign based on packed prices, either FOB plant/warehouse to port of exit, like product). The third alternative (section 773(e)(2)(B)(iii) of the Act) Taiwan, C&F USA, CIF USA, Free on brokerage and handling in Taiwan, provides that profit and SG&A may be Road (‘‘FOR’’) Taiwan, or FOB U.S. international freight, marine insurance computed by any other reasonable affiliate’s warehouse to the first and direct selling expenses. method, capped by the amount of profit unaffiliated purchaser in the United Romp normally realized on sales in the home States. For both EP and CEP sales we market of the same general category of made deductions from the starting price We used EP in accordance with products. The SAA states that, if the (gross unit price) for discounts, inland section 772(a) of the Act because the Department does not have the data to freight from the plant/warehouse to port subject merchandise was sold to determine amounts for profit under of exit, Taiwan brokerage and handling, unaffiliated customers before alternatives one and two or a profit cap international freight, marine insurance, importation and the CEP methodology under alternative three, it may apply U.S. inland freight from port to the was not indicated by the facts of record. alternative three (without determining warehouse, and U.S. customs duties, We calculated EP based on packed the cap) on the basis of ‘‘the facts where appropriate. We also adjusted the prices, FOB to the first unaffiliated available.’’ SAA at 841. Therefore, as the starting price and quantity for returns. purchaser in the United States. Where facts available, we are using each We added to both EP and CEP reported appropriate, we made deductions from respondent’s overall profit and SG&A duty drawback amounts. the starting price (gross unit price) for inland freight from the plant/warehouse rate associated with its total sales as For Unicatch’s CEP sales, we made to port of exit, and brokerage and recorded in its most recent financial additional deductions, in accordance handling in Taiwan. We added to EP statement. Because the figures recorded with section 772(d) (1) and (2) of the reported duty drawback amounts. in the financial statements are company- Act, for commissions, credit expenses, specific and contemporaneous with the indirect selling expenses, and inventory Normal Value POI, we preliminarily determine this carrying costs. Pursuant to section In order to determine whether there is data to be a reasonable surrogate for 772(d)(3) of the Act, the price was a sufficient volume of sales in the home SG&A and profit of the subject further reduced by an amount for profit, market to serve as a viable basis for merchandise. However, we will to arrive at the CEP. In accordance with calculating NV (i.e., the aggregate consider the issue of appropriate SG&A section 773(f) of the Act, the CEP profit volume of home market sales of the and profit information further for the rate was calculated using the expenses foreign like product is greater than five final determination and invite comment incurred by Unicatch and its affiliates percent of the aggregate volume of U.S. on this issue. on their sales of the subject merchandise sales), we compare each respondent’s in the United States and the profit volume of home market sales of the Price to CV Comparisons associated with those sales. Because foreign like product to the volume of Because we based SG&A for CV on the Unicatch had no home market sales, we U.S. sales of the subject merchandise, in financial statements of each individual did not include any home market accordance with section 773(a)(1)(C) of company, where we compared CV to EP, expenses in the CEP profit rate the Act. Unicatch, Lei Chu, S&J, and we did not make any circumstance of calculation. Romp reported that they had no home sale adjustments for direct expenses and Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25907 commissions as we were unable to split there is a history of dumping and or not critical circumstances exist is not out from total SG&A these expenses. material injury by reason of dumped satisfied. Therefore, we have not imports in the United States or analyzed the shipment data for any of Currency Conversion elsewhere of the subject merchandise, or these companies to examine whether We made currency conversions into (ii) the person by whom, or for whose imports of CRN have been massive over U.S. dollars based on the official account, the merchandise was imported a relatively short period. Thus, because exchange rates in effect on the dates of knows or should have known that the neither alternative of the first criterion the U.S. sales as certified by the Federal exporter was selling the subject has been met, we preliminarily Reserve Bank. merchandise at less than its fair value determine that there is no reasonable Section 773A(a) of the Act directs the and that there was likely to be material basis to believe or suspect that critical Department to convert foreign injury by reason of such sales, and (B) circumstances exist with respect to currencies based on the dollar exchange there have been massive imports of the exports of CRN from Taiwan by rate in effect on the date of sale of the subject merchandise over a relatively Unicatch, Lei Chu, Romp, and S&J. subject merchandise, except if it is short period. Regarding all other exporters, because established that a currency transaction To determine that there is a history of we do not find that critical on forward markets is directly linked to dumping of the subject merchandise, circumstances exist for any of the an export sale. When a company the Department normally considers investigated companies, we also demonstrates that a sale on forward evidence of an existing antidumping determine that critical circumstances do markets is directly linked to a particular duty order on CRN in the United States not exist for companies covered by the export sale in order to minimize its or elsewhere to be sufficient. See e.g., ‘‘All Others’’ rate. exposure to exchange rate losses, the Preliminary Determinations of Critical We will make a final determination Department will use the rate of Circumstances: Brake Drums and Rotors concerning critical circumstances when exchange in the forward currency sale from the People’s Republic of China, 61 we make our final determination in this agreement. FR 55269 (Oct. 25, 1996); Notice of investigation, if the final determination Section 773A(a) also directs the Final Determinations of Sales at Less is affirmative. Department to use a daily exchange rate Than Fair Value: Brake Drums and in order to convert foreign currencies Rotors from the People’s Republic of Verification into U.S. dollars unless the daily rate China, 62 FR 9160 (Feb. 28, 1997). As provided in section 782(i) of the involves a fluctuation. It is the Currently, no countries have Act, we will verify all information Department’s practice to find that a outstanding antidumping duty orders on determined to be acceptable for use in fluctuation exists when the daily CRN from Taiwan. The petitioner making our final determination. exchange rate differs from the alleged a history of dumping based benchmark rate by 2.25 percent. The upon antidumping orders on steel wire Suspension of Liquidation benchmark is defined as the moving nails from Korea and the People’s In accordance with section 733(d) of average of rates for the past 40 business Republic of China, both of which the Act, we are directing the Customs days. When we determine a fluctuation covered CRN. See Certain Steel Wire Service to suspend liquidation of all to have existed, we substitute the Nails From Korea; Final Results of imports of subject merchandise—except benchmark rate for the daily rate, in Changed Circumstances Administrative those exported by Unicatch or Lei accordance with established practice. Review and Revocation of Antidumping Chu—that are entered, or withdrawn Further, section 773A(b) directs the Duty Order, 50 FR 40045 (Oct. 1, 1985); from warehouse, for consumption on or Department to allow a 60-day Final Results of Changed Circumstances after the date of publication of this adjustment period when a currency has Administrative Review and Revocation notice in the Federal Register. We will undergone a sustained movement. A of Antidumping Duty Order; Certain instruct the Customs Service to require sustained movement has occurred when Steel Wire Nails from The People’s a cash deposit or the posting of a bond the weekly average of actual daily rates Republic of China, 52 FR 33463 (Sept. equal to the weighted-average amount exceeds the weekly average of 3, 1987). We preliminarily determine by which the NV exceeds the export benchmark rates by more than five that these antidumping orders are not a price, as indicated in the chart below. percent for eight consecutive weeks. sufficient basis to find a history of These suspension of liquidation (For an explanation of this method, dumping because both orders were instructions will remain in effect until Policy Bulletin 96–1: Currency revoked several years ago. However, we further notice. The weighted-average Conversions (61 FR 9434, March 8, will consider this issue further for the dumping margins are as follows: 1996)). Such an adjustment period is final determination and we invite required only when a foreign currency interested parties to comment on the Weighted- is appreciating against the U.S. dollar. issue. Exporter/manufacturer average The use of an adjustment period was not In determining whether an importer margin warranted in this case because the New knew or should have known that the percentage Taiwan dollar did not undergo a exporter was selling subject Unicatch ...... 0 sustained movement. merchandise at less than fair value and Lei Chu ...... 4.38 thereby causing material injury, the Critical Circumstances Romp ...... 6.09 Department normally considers margins S&J ...... 6.21 The petition contained a timely over 15% for EP sales and 25% for CEP K. Ticho ...... 40.28 allegation that there is a reasonable sales to impute knowledge of dumping All Others ...... 5.39 basis to believe or suspect that critical and of resultant material injury. Brake circumstances exist with respect to Drums and Rotors, 62 FR at 9164–65. In Pursuant to section 735(c)(5)(A) of the imports of subject merchandise. Section this investigation, none of the exporters/ Act, the Department has excluded zero 733(e)(1) of the Act provides that the manufacturers has a margin over 15% margins and the margin determined Department will determine that there is for EP sales or 25% for CEP sales. Based entirely under section 776 of the Act a reasonable basis to believe or suspect on these facts, we determine that the from the calculation of the ‘‘All Others that critical circumstances exist if: (A)(i) first criterion for ascertaining whether Rate.’’ 25908 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

ITC Notification DEPARTMENT OF COMMERCE Tariff Schedule of the United States (HTSUS) subheading 7323.94.00. In accordance with section 733(f) of International Trade Administration Kitchenware currently entering under the Act, we have notified the ITC of our [A±201±504] HTSUS subheading 7323.94.00.30 is not determination. If our final subject to the order. Although the determination is affirmative, the ITC Porcelain-on-Steel Cookware From HTSUS subheadings are provided for will determine before the later of 120 Mexico: Notice of Final Results of convenience and Customs purposes, our days after the date of this preliminary Antidumping Duty Administrative written description of the scope of this determination or 45 days after our final Review proceeding is dispositive. determination whether these imports The period of review (POR) is are materially injuring, or threaten AGENCY: Import Administration, December 1, 1993, to November 30, material injury to, the U.S. industry. International Trade Administration, 1994. The review covers one Department of Commerce. manufacturer/exporter of Mexican POS Public Comment ACTION: Notice of final results of cookware, Cinsa, S.A. de C.V. (Cinsa). antidumping duty administrative Case briefs or other written comments Applicable Statute and Regulations review. in at least ten copies must be submitted Unless otherwise indicated, all to the Assistant Secretary for Import SUMMARY: On November 24, 1995, the citations to the statute and to the Administration no later than July 30, Department of Commerce (the Department’s regulations are in 1997, and rebuttal briefs, no later than Department) published the preliminary reference to the provisions as they August 6, 1997. A list of authorities results of its administrative review of existed on December 31, 1994. used and an executive summary of the antidumping duty order on Product Comparisons issues should accompany any briefs porcelain-on-steel (POS) cookware from submitted to the Department. Such Mexico. This review covers the period In accordance with the Department’s summary should be limited to five pages December 1, 1993, through November standard methodology, we calculated total, including footnotes. In accordance 30, 1994. transaction-specific U.S. prices for Cinsa with section 774 of the Act, we will We gave interested parties an based on purchase price (PP), and hold a public hearing, if requested, to opportunity to comment on the compared these U.S. sales to foreign afford interested parties an opportunity preliminary results. Based on our market values (FMVs) based on either monthly weighted-average home market to comment on arguments raised in case analysis of the comments received and prices or constructed value (CV). For or rebuttal briefs. Tentatively, the the correction of certain clerical and price-to-price comparisons, we made hearing will be held on August 7th, at computer program errors, we have comparisons based on the following 9:00 a.m. in Room 1412 at the U.S. changed the preliminary results, as described below in the comments product characteristics: gauge (i.e., Department of Commerce, 14th Street section of this notice. whether heavy or light), quality, product and Constitution Avenue, N.W., EFFECTIVE DATE: May 12, 1997. configuration/size (e.g., frying pan, Washington, D.C. 20230. Parties should roaster), number of enamel coats, and FOR FURTHER INFORMATION CONTACT: confirm by telephone the time, date, and color. place of the hearing 48 hours before the Katherine Johnson or Mary Jenkins, We have determined that heavy gauge scheduled time. Import Administration, International (HG) and light gauge (LG) cookware are Trade Administration, U.S. Department not such or similar merchandise (see Interested parties who wish to request of Commerce, 14th Street and a hearing, or to participate if one is Final Analysis Changes for the 8th Constitution Avenue, N.W., Review of Porcelain-on-Steel Cookware requested, must submit a written Washington, D.C. 20230; telephone, request to the Assistant Secretary for from Mexico, Memorandum from the (202) 482–4929 or (202) 482–1756, Team to Louis Apple, Acting Director, Import Administration, U.S. Department respectively. of Commerce, Room 1870, within ten Group II, AD/CVD Enforcement dated February 21, 1997, (Final Analysis days of the publication of this notice. SUPPLEMENTARY INFORMATION: Memorandum)). For this reason, and Requests should contain: (1) The party’s Background because Cinsa made no home market name, address, and telephone number; On November 24, 1995, the sales of HG merchandise and there were (2) the number of participants; and (3) Department published in the Federal no CV data on the record for Cinsa’s a list of the issues to be discussed. Oral Register the Notice of Preliminary sales of HG merchandise, we assigned presentations will be limited to issues Results of Administrative Review: these HG sales the weighted average of raised in the briefs. If this investigation Porcelain-on-Steel Cookware from all margins calculated for Cinsa’s U.S. proceeds normally, we will make our Mexico (60 FR 58044) (Preliminary sales of LG cookware. See Comments 1– final determination by 135 days after the Results). The Department has now 4. publication of this notice in the Federal completed that administrative review in Register. accordance with section 751 of the Verification This determination is published Tariff Act of 1930, as amended (the Act). As provided in section 776(b) of the pursuant to section 733(d) of the Act. Tariff Act, we verified information Scope of the Review provided by Cinsa using standard Dated: May 5, 1997. The merchandise covered by this verification procedures, including Robert S. LaRussa, review is porcelain-on-steel cookware, onsite inspection of the manufacturers’ Acting Assistant Secretary for Import including tea kettles that do not have facilities, the examination of relevant Administration. self-contained electric heating elements. sales and financial records, and [FR Doc. 97–12395 Filed 5–9–97; 8:45 am] All of the foregoing are constructed of selection of original documentation BILLING CODE 3510±DS±P steel and are enameled or glazed with containing relevant information. vitreous glasses. This merchandise is Although primarily engaged in the currently classifiable under Harmonized production and sale of LG cookware, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25909

Cinsa also made a few U.S. sales of HG basis, we compared the COP to the C. Results of COP Test cookware produced by ENASA, a reported home market prices, less any We found that for certain products, manufacturer of HG cookware. Cinsa applicable movement charges and between 10 and 90 percent of Cinsa’s did not make any home market sales of rebates. We made the following changes home market sales were sold at below- HG cookware. to the COP calculation used in the COP prices over an extended period of Preliminary Results: (a) as COP was United States Price time. Because Cinsa provided no calculated exclusive of packing indication that the disregarded sales We calculated PP based on the same expenses, we deducted these expenses were at prices that would permit methodology used in the Preliminary from the net home market sales price recovery of all costs within a reasonable Results, except in the following used to determine whether sales were period of time in the normal course of instances: (1) we used a revised U.S. below the COP; and (b) we corrected the trade, in accordance with section 773(b) interest rate to calculate imputed credit COP calculation to eliminate double of the Act, we based FMV on CV for all expenses; and (2) we calculated U.S. counting of commission expenses in the U.S. sales left without a home market imputed credit expenses on sales to U.S. COP selling expenses. sales match as a result of our customers who paid by letter of credit. To satisfy the requirement of section application of the COP test. See Comment 9. 773(b)(1) of the Act that below-cost sales D. Calculation of CV Foreign Market Value be disregarded only if made in substantial quantities, we applied the In accordance with section 773(e)(1) We calculated FMV based on the following methodology. If, by quantity, of the Act, we calculated CV based on same methodology used in the over 90 percent of the respondent’s sales the sum of respondent’s cost of Preliminary Results, except in the of a given product were at prices equal materials, fabrication, general expenses, following instances: (1) We recalculated to or greater than the COP, we did not packing costs, and profit. In accordance home market credit expenses using the disregard any below-cost sales of that with section 773(e)(1)(B)(i) and (ii), we revised interest rate reported in the July product because we determined that the used: (1) The actual amount of general 26, 1995, supplemental response; (2) for below-cost sales were not made in expenses because those amounts were sales in the home market with missing substantial quantities. If between 10 and greater than the statutory minimum of payment dates, we applied a credit 90 percent of the respondent’s sales of ten percent and (2) the actual amount of expense calculated using the average a given product were at prices equal to profit where it exceeded the statutory period between shipment and payment or greater than the COP, and sales of minimum of eight percent on above-cost for those sales where payment date was that product were also found to be made sales. reported; and (3) we deducted home over an extended period of time, we Price-to-CV Comparisons market commissions and added U.S. disregarded only the below-cost sales. indirect selling expenses capped by the Where we found that more than 90 Where we made CV to PP amount of home market commissions, percent of the respondent’s sales of a comparisons, we made a circumstance- in accordance with 19 CFR 353.56. product were at prices below the COP, of-sale (COS) adjustment, where Cost of Production and the sales were made over an appropriate, for differences in credit extended period of time, we disregarded expenses and bank fees between the two As discussed in the Preliminary markets. We deducted home market Results, the Department conducted a all sales of that product, and calculated FMV based on CV, in accordance with commissions and added U.S. indirect test of home market sales made during selling expenses capped by the amount the POR to determine if sales were made section 773(b) of the Act. In accordance with section 773(b)(1) of home market commissions, in at prices below Cinsa’s cost of accordance with 19 CFR 353.56. production (COP) within the meaning of of the Act, in order to determine section 773(b) of the Act. For home whether below-cost sales had been Interested Party Comments market models which would have been made over an extended period of time, we compared the number of months in Comment 1: Whether or not Cinsa and the best match for a U.S. model but for ENASA Should be Collapsed which there were insufficient home which below-cost sales occurred for market sales at or above the COP, we each product to the number of months Petitioner argues that the compared USP to CV. in the POR in which that product was Department’s determination in the sold. If a product was sold in three or Preliminary Results not to collapse A. Calculation of COP more months of the POR, we do not Cinsa and ENASA, a related We calculated COP based on the sum exclude below-cost sales unless there manufacturer of HG cookware, is of respondent’s cost of materials, were below-cost sales in at least three contrary to its long-standing practice fabrication, and general expenses, in months during the POR. When we with respect to collapsing related accordance with 19 CFR 353.51(c), and found that sales of a product only parties. Petitioner claims that, in the as described in the Preliminary Results. occurred in one or two months, the instant review, Cinsa and ENASA are so number of months in which the sales closely intertwined that there is a strong B. Test of Home Market Sales Prices occurred constituted the extended possibility of manipulation of prices As stated in the Preliminary Results, period of time, i.e., where sales of a and/or production decisions. Petitioner we used Cinsa’s adjusted cost data. We product were made in only two months, further argues that the Department must compared the weighted average product the extended period of time was two use a ‘‘totality of the circumstances’’ test specific COP figures to home market months; where sales of a product were in its collapsing analysis as opposed to sales of the foreign like product as made in only one month, the extended determining that the ability to shift required under section 773(b) of the Act. period of time was one month. See Final production between related parties We tested whether a substantial Determination of Sales at Less Than without retooling is the determinative quantity of respondent’s home market Fair Value: Certain Carbon Steel Butt- factor. sales of subject merchandise were made Weld Pipe Fittings from the United Cinsa states that it would not contest at prices below COP over an extended Kingdom, 60 FR 10558, 10560 (February a finding by the Department that the two period of time. On a product-specific 27, 1995). companies should be collapsed and 25910 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices treated as a single entity given their not appropriate to treat these firms as a sales of HG cookware manufactured by common ownership, and shared board single entity for the purpose of assigning ENASA during the POR. Thus we have members and managerial employees. an antidumping margin. However, included these sales in our analysis for However, Cinsa also maintains that should changes in production occur in this review. sufficient evidence exists on the the future, we may reexamine this issue Cinsa has argued that Yamaka’s administrative record in this case to in the context of subsequent reviews. customer had the ability to affect the support the Department’s determination quantity ultimately sold, based on its Comment 2: Inclusion of HG Cookware in the preliminary results not to management of the logistics of the Sales to the United States in the Review collapse the two companies. Cinsa promotion. The contract between argues that the administrative record, Petitioner argues that Cinsa’s sales of Yamaka and its unrelated customer including the Department’s verification ENASA-produced HG cookware to the established the terms on which the of the physical differences between HG United States were made during the quantity to be sold would be set: the and LG merchandise, the separate POR and therefore should be included amount of goods sold through the production facilities, and the different in the margin calculation. Petitioner promotion. Under the contract, the production processes provide sufficient contends that the facts concerning the customer did not have the discretion to evidence to support the substantial appropriate date of sale for these U.S. alter or renegotiate those terms. In the evidence standard for determining that sales are not in dispute, and that Cinsa’s end, the quantity of goods which is sold the two companies should not be contention that the date of sale should and not returned will be decided by collapsed and treated as a single entity. be the date of ultimate reconciliation how much cookware the public buys DOC Position: The Department will contradicts the fact that the sales during the promotion. Although the collapse two producers if each of three contract was signed during the POR. precise amount to be sold was not requirements are met: (1) the producers Petitioner states that almost all known at the time of the contract, the must be ‘‘affiliated’’; (2) they must have shipments to the United States, contract clearly spelled out the basis on manufacturing facilities sufficiently pursuant to the contract, occurred which it would be determined; hence similar that no substantial retooling during the POR, the subject the contract is consummated and the would be needed to restructure merchandise was resold to end users sale made as of June 1994. The situation manufacturing priorities with respect to during the POR, and end users were in this review can be distinguished from the subject merchandise (i.e., that the actually cooking with the merchandise the situation underlying the CIT’s physical infrastructure exists for the two during the POR. Petitioner also claims decision in Toho. In that case, the firms to act as one in producing the that, because the questionnaire states contract at issue required a minimum merchandise), and (3) the Department that there can be no new dates of sale purchase and gave the buyer the option concludes, based on a series of listed after shipment, the date of sale for these of purchasing additional product at the factors, that there is a significant U.S. sales must be either the date of the same price. The CIT upheld Commerce’s potential for manipulation of price or contract or the dates of shipment to the decision that the quantity in the production (i.e., that the control United States. contract became ‘‘set’’ only when the infrastructure exists which would Cinsa contends that the sales in customer issued delivery instructions enable the firms to realize any ability to question were not made during the POR. on each optional shipment, since it shift production or price made possible Cinsa argues that the Department’s could have, had it chosen, renegotiated by the overlapping production facilities definition of date of sale expressly the contract price based on its total referred under the second requirement). contemplates situations where a date discretion to order beyond the See Antidumping Duties: Countervailing ‘‘subsequent to the date of shipment minimum amount. In the instant case, Duties: Notice of Proposed Rule Making ** * may be the appropriate date of there was no minimum purchase and Request for Public Comments, 61 sale,’’ particularly when the quantity requirement in the contract, and the FR 7308, 7330 and 7381 (February 27, terms change subsequent to the date of customer had no explicit discretion to 1996), at section 351.401. This proposed contract or the date of shipment. Cinsa set quantity that could serve as the basis regulation represents the Department’s cites Toho Titanium Co., Ltd. v. United of a future negotiation. Thus, whereas current practice. The principles States (‘‘Toho’’), 14 CIT 500, 501 (1990), the seller in Toho contracted for a underlying these criteria have been for the proposition that the sale is minimum amount and made a binding cited with approval in court decisions. complete when the essential terms of offer as to further sales, Yamaka entered See, e.g., FAG Kugelfischer Georg the transaction are set. Cinsa does not into a binding contract for whatever Schafer KGaA v. United States, 932 F. dispute that the contract was signed and business the promotion would generate. Supp. 315, 323 (CIT 1996). shipments were made during the POR. The fact that Yamaka at the same time The verification report states that However, in this particular instance, the contracted to, and later did, Cinsa makes only LG cookware and quantity of HG cookware to be ‘‘repurchase’’ cookware which its ENASA makes only HG cookware, and purchased by the customer was to be customer was unable to resell during the that extensive and expensive retooling based solely upon the amount of promotion does not mean that the sales appeared to be necessary for Cinsa to merchandise used by the customer in a of the cookware eventually repurchased produce HG products or for ENASA to promotional program that ended outside were not made. The very fact that the produce LG products (see November 27, the POR. Cinsa argues that because the contract refers to ‘‘repurchase’’ rather 1995, Verification Report at .4). final reconciliation of the contract than to return prior to invoicing, Accordingly, we have determined that occurred outside the POR, the date of together with the fact that partial the physical infrastructures of the two sale for all sales of HG cookware was payment was received on these goods, firms are insufficiently similar to meet also outside the POR. indicates that this was a sale-and-refund the second requirement of the DOC Position: We agree with arrangement, rather than a sale only of collapsing test. Further, having made petitioner. We consider the date of the those items which were never returned. this determination, we do not need to contract between Cinsa’s related sales Because the June 1994 contract examine the questions of significant entity, Yamaka China Co., Inc. constitutes a binding agreement in the common ownership and interlocking (‘‘Yamaka’’), and its unrelated customer nature of a requirements contract, directors and managers. Therefore, it is to be the date of sale for Yamaka’s U.S. whereby Yamaka and its customer Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25911 agreed upon the price and quantity cookware (see Product Comparison unresolved for some time and because a (whatever was sold in connection with section of this notice), we need not review had not been initiated for the promotion, with a guarantee of address the issue of whether Cinsa’s ENASA, we did not pursue our request repurchase for items not sold at retail), U.S. sales of HG open stock cookware for ENASA’s cost information. However, the date of this contract is the should be compared to Cinsa’s sales of we subsequently determined that these appropriate date of sale for all cookware LG sets in the home market. (For a full U.S. sales of HG cookware were made sold to the United States in connection discussion of set-splitting see Final within the POR (see Comment 2). Rather with the promotion. Analysis Memorandum, page 9). than unduly delay the review at this point to seek cost information for these Comment 3: Reporting of ENASA’s Comment 4: Cinsa’s Failure To Submit sales, and because the sales of HG Home Market Sales of HG Cookware COP and CV Data for HG Cookware cookware constituted only a small part Sets Petitioner contends that Cinsa failed of Cinsa’s total sales to the United States Petitioner states that during this to report cost data with respect to sales during the POR, we based the margin for review the Department sent a letter to of (ENASA-manufactured) HG cookware these sales of HG cookware on the Cinsa requiring it to report ‘‘all sales of despite being required to do so by the weighted average of all margins such or similar merchandise sold by questionnaire. Petitioner believes that calculated for Cinsa’s sales of LG ENASA in the home market during the the Department must resort to BIA cookware to the United States. 90/60 day period surrounding the date (suggesting the highest margin of each of ENASA’s sales to the United calculated for any U.S. sale of LG Comment 5: Inclusion of Home Market States.’’ Petitioner maintains that Cinsa cookware made during the POR) to Sales of Second-Quality Merchandise in did not comply with this request calculate the dumping margin for each the Cost Test because it only submitted ENASA’s HG sale made to the United States. Petitioner asserts that the exclusion of home market sales of HG open stock Alternatively, petitioner believes that sales of second-quality merchandise (i.e., single piece) cookware and did not the Department should reopen the from the preliminary cost test is submit ENASA’s home market sales of record, collect cost data for all HG inconsistent with standard practice, HG cookware sets. The issue, according products sold in both the home market including the Department’s previous to petitioner, is whether the Department and the United States, and incorporate practice in reviews of imports subject to should compare the individual pieces in these data into the model matching, this order. Accordingly, petitioner the sets sold in the home market to open sales-below-cost, and CV analyses used claims that the Department should stock items sold in the United States. in the final results. revise its preliminary results and Cinsa states that, even if the Cinsa contests petitioner’s argument include Cinsa’s home market sales of Department concludes that its sales of that the Department should use BIA in second-quality merchandise in the ENASA-produced HG open stock the absence of ENASA’s cost sales-below-cost test for purposes of the cookware to the United States were information with respect to HG final results. made during the POR, the Department cookware. Cinsa states that the statute, Cinsa contends that the Department should decide that reporting was at 19 U.S.C. 1677e(b), ‘‘requires has determined in this and all prior properly limited to home market sales of noncompliance with an information administrative reviews in this case that HG cookware that ENASA sold as open request before resorting to the best second-quality articles sold in the home stock. information rule is justified.’’ market are not comparable to the first- Cinsa further contends that there is no Cinsa also states that 19 CFR quality articles sold to the United States. basis to require reporting of sales of HG 353.31(c)(i)(ii) specifically requires that Thus, according to Cinsa, the cookware sets since no HG sets were allegations of below-cost sales must be Department has always excluded sold to the United States. Further, Cinsa made in a timely manner, in any event second-quality articles from the FMV argues that the cost of manufacture of a prior to the Department’s verification calculation without regard to the results set of HG cookware would exceed that and the issuance of the preliminary of the Department’s cost test, which of a single piece by more than the results. Therefore, Cinsa argues that, only serves to eliminate first quality Department’s twenty percent limit on given that the Department never home market sales sold below cost from adjustments for differences in requested cost information for ENASA consideration in the FMV calculation. merchandise when comparing non- merchandise, and that prior to the Cinsa further adds that, since the identical products. preliminary results petitioner neither second-quality articles are never used DOC Position: Because we decided objected to the Department’s limited for comparison with any U.S. sales, not to collapse Cinsa and ENASA, we information request nor alleged in a there is no practical reason for the compared the prices of sales by Cinsa timely manner that ENASA’s home Department to use them to perform the only to prices of other sales by Cinsa. market sales were made below cost, cost test. The only HG cookware sold by Cinsa application of BIA would be DOC Position: We agree with during the POR was open stock U.S. inappropriate. petitioner and have included in the cost sales of cookware manufactured by DOC Position: We disagree with test all home market sales of both first ENASA. Because Cinsa made no home petitioner. In its June 5, 1995, and second quality merchandise. There market sales of HG cookware sets during supplemental questionnaire to Cinsa, are no production cost differences the POR, and only Cinsa’s sales are the Department requested that Cinsa between first and second quality being reviewed for this POR, we need provide ENASA’s home market and U.S. merchandise that is otherwise identical. not address the issue of whether sales of sales data as well as start up costs for See IPSCO, Inc. v. United States, 965 open stock cookware manufactured by ENASA’s production of HG cookware. F.2d 1056, 1060–61 (Fed. Cir. 1992). ENASA and sold by Cinsa should be In response, Cinsa argued that reporting Although in certain circumstances compared to individual components of home market sales, cost and CV data Commerce may choose to reduce its HG cookware sets (which were sold was unnecessary because Cinsa’s only own administrative burden and simplify only by ENASA). Furthermore, because sales of ENASA-produced HG cookware reporting by not requiring parties to we have determined that HG cookware were made outside the POR. Because report home market sales of types of is not properly compared to LG the date of sale issue remained merchandise unlikely to be matched to 25912 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices any U.S. sales, data for second quality division of GIS, which includes Cinsa as Cinsa points out that the Department’s merchandise is already on the record of well as other producers, only accounts three month test is an established this review. Second quality for approximately one-third of the Department administrative practice, merchandise can be compared to first consolidated sales value of GIS. Cinsa adopted over two years ago and used quality merchandise if there are further states that comparison of the consistently since that time. Cinsa cites insufficient matches of first quality total G&A expenses of Cinsa to the G&A numerous recent administrative and merchandise, and therefore second expense of GIS establishes that the vast court proceedings to support its quality merchandise on the record is majority of the G&A expenses recorded argument. Cinsa contends that properly included in the cost test, just in the consolidated GIS financial petitioner’s arguments have been as similar merchandise is included in statement is attributable to activities considered repeatedly by the the cost test even when there are ample other than Cinsa’s production and sales Department and the reviewing courts identical matches. of the subject merchandise. and have been consistently rejected. As we did in the fourth review (See Cinsa maintains that, in the event the Therefore, Cinsa argues that, for Porcelain-on-Steel Cooking Ware From Department uses GIS’s G&A expenses, purposes of the final results, the Mexico: Final Results of Antidumping the Department should base that Department should continue to apply its Duty Administrative Review, 58 FR calculation on GIS’s 1993 and 1994 standard test to determine whether 43327 (August 16, 1993)), we compared financial statements, which were below cost sales have been made over only first quality merchandise sold in submitted as Appendix 24 to Cinsa’s an extended period of time. the U.S. market with first quality July 10, 1995, supplemental response. DOC Position: We agree with Cinsa. merchandise sold in the home market. The Department’s three month test is an We did not in calculating FMV use sales DOC Position: We disagree with established administrative practice of second quality merchandise in the petitioner. The petitioner’s suggestion which has been affirmed by the U.S. instant review because there were no that the Department modify the COP/CV Court of International Trade. See, e.g., sales of second quality merchandise in calculations and use the ratio of GIS’s NTN Bearing Corp. v. United States the United States—unlike in the fourth 1993 consolidated G&A expenses to (‘‘NTN Bearing Corp.’’), 881 F. Supp. review where second quality GIS’s 1993 consolidated cost of goods 595, 602 (1995). Accordingly, for merchandise sold in the United States sold, is contrary to Department practice. purposes of the final results, we have was compared with second quality We only include a portion of these applied our standard cost test to merchandise sold in the home market— expenses if the parent performs services determine whether below cost sales nor were there any instances where for the affiliated company (See Final have been made over an extended available first quality home market sales Determination of Sales at Less Than period of time. were not adequate for matching Fair Value: Welded Stainless Steel Pipe Comment 8: Cinsa’s October 3, 1995, purposes. from Malaysia, 59 FR 4023, 4027 (January 28, 1994)). Based on the Correction to its Home Market Sales Comment 6: Calculation of General and information on the record of this review, Listing Administrative Expenses we used Cinsa’s reported G&A factor for Cinsa argues that the Department’s Petitioner argues that, consistent with the final results. The record evidence preliminary results incorrectly did not its practice, the Department should have does not indicate the value of services reflect the October 3, 1995, revision to based Cinsa’s G&A expenses on the provided by GIS. the quantity and unit price for one consolidated G&A expenses of Grupo transaction in its home market sales Comment 7: The ‘‘Extended Period of Industrial Saltillo, S.A. de C.V. (GIS), listing. Cinsa argues that because it Time’’ Used in the Cost Test not Cinsa-specific G&A expenses. notified the Department of the revision, Accordingly, petitioner argues that the Petitioner states that Import including documentary support, Department should modify its COP/CV Administration Policy Bulletin No. 94.3 approximately seven weeks prior to the calculations and use the ratio of GIS’s (March 25, 1994) states that the issuance of the preliminary results, the 1993 consolidated G&A expenses to Department will consider below-cost preliminary results should have GIS’s 1993 consolidated cost of goods sales to have been made over an incorporated this correction. sold, instead of the Cinsa-specific rate extended period of time only if: Cinsa further argues that petitioner’s allocable to each product sold. assertion that Cinsa’s revision was Cinsa states that the statute requires (a) the respondent sold a model in only one untimely filed should be disregarded month of the POR and certain or all of those that the COP and CV of merchandise sales of the model in that month were below given the decision in NTN Bearing subject to review be calculated in a cost; Corporation v. United States (‘‘NTN manner that reflects the expenses (b) the respondent sold a model in two Bearing Corp’’), 74 F.3d 1204 (December attributable to the class or kind of months of the POR and certain or all of those 11, 1995). Cinsa argues that the Court of merchandise, citing 19 U.S.C. sales of that model in each of the two months Appeals for the Federal Circuit held that 1677b(e)(1)(B). In this instance, Cinsa were below cost; or the Department has the authority to maintains that it is the manufacturer, (c) the respondent sold a model during correct inadvertent data input errors seller, shipper, and exporter of the three or more months of the POR and certain made by, and then later discovered by subject merchandise, and that only the or all of those sales of that model in at least a respondent, when such errors were three of those months were below cost. G&A expenses borne directly by Cinsa brought to the attention of the itself may be used to calculate COP and Petitioner argues that the Department’s Department in a timely manner during CV. Therefore, since GIS is not directly policy is arbitrary, unfair to petitioner the comment period subsequent to the involved in any of Cinsa’s production or and internally inconsistent. Petitioner preliminary results. Cinsa also notes sales activities concerning the subject believes that a more reasonable that the general 180-day time limit merchandise, attributing all of GIS’s approach would be to consider below- applies to new factual information being G&A expenses to the subject cost sales made in at least 25 percent of placed in the administrative record. merchandise would be inappropriate. the months in which a model was sold Cinsa contends that the revision to its Cinsa notes that the financial statements to have been made ‘‘over an extended home market sales listing did not add of GIS state that the entire household period of time.’’ additional sales or new information to Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25913 the record. Moreover, Cinsa claims that documentation in NTN’s post-disclosure expenses incurred in producing the the revision is properly part of the submission clearly indicated that an subject merchandise, since Cinsa’s cost administrative record and should be error had, in fact, been made. Merely and accounting records are maintained taken into account in the final results deciding not to reject a submission does using historical, not revalued, because the Department did not reject not constitute acceptance of the depreciation. the submission despite a specific arguments put forth in the document. Petitioner maintains that the request for rejection by the petitioner. Because Cinsa is not able to establish Department uses revalued depreciation Finally, Cinsa argues that under similar that the reported quantity and unit price in its calculation of COP/CV because circumstances in the fifth administrative are actually erroneous, no revision is use of historical acquisition costs, review, when Cinsa brought corrections appropriate. unadjusted for high inflation, would to the Department’s attention prior to distort the measure of Cinsa’s current Comment 9: Inclusion of U.S. Imputed the preliminary results, and such depreciation cost. Petitioner cites Credit Expenses on Sales to U.S. corrections were not incorporated into numerous court proceedings to support Customers Who Paid by Letter of Credit the preliminary results, the Department its argument. Petitioner further states agreed with Cinsa over the objection of Cinsa argues that the Department’s that, contrary to Cinsa’s argument, the the petitioner and incorporated the preliminary results improperly adjusted Department’s use of revalued necessary corrections into the final for U.S. imputed credit expenses on depreciation costs actually prevents results. Accordingly, Cinsa argues that sales to U.S. customers who paid by distortion, by ensuring that Cinsa’s since it notified the Department of this letter of credit. Cinsa states that its depreciation costs are not understated error prior to the issuance of the revised U.S. sales listing mistakenly due to currency devaluation resulting preliminary results, the final results failed to list this expense as zero for the from inflation. should incorporate this correction. sales in question. According to Cinsa, DOC Position: We agree with Petitioner argues that the opinion of the Department verified that two U.S. petitioner and have included Cinsa’s the Federal Circuit in NTN Bearing customers paid by letter of credit and revalued depreciation expense in the Corp. simply does not apply in this did not incur imputed credit expenses. company’s COP and CV. We disagree situation. Petitioner states that NTN Cinsa argues that the final results with Cinsa’s assertion that this Bearing Corp. involved an antidumping should incorporate the verified methodology distorts the actual administrative review in which there information even though Cinsa failed to production costs of subject was no verification. Thus, all report it properly. merchandise. See Results of information submitted in that review Petitioner argues that it is too late in Redetermination Pursuant to Court was unverified, and the Department was this instance for further correction of Remand in Aimcor, Alabama Silicon, not required by the statute to have data when the failure to correct the data Inc. v. United States, Ct. No. 93–07– verified all information relied upon in is the result of Cinsa’s own negligence. 00428 (May 15, 1995) (upheld by Order the final results. Petitioner contends Petitioner contends that permitting such of the CIT, September 15, 1995), and that in contrast, the Department has no requests would be a disincentive to Fresh Cut Roses from Ecuador, 60 FR such discretion in this review. respondents to respond accurately and a 7019, 7029 (February 6, 1995). It is the Petitioner argues that in this review the burden to administer for the Department’s policy to adhere to the alleged clerical error represents new, Department. home market Generally Accepted untimely, unsolicited information that DOC Position: We verified that two Accounting Principles (GAAP) as long the Department has not verified; thus, U.S. customers paid by letter of credit as they reflect actual costs. Mexican under 19 U.S.C. 1677e(b), the and have included the associated bank GAAP require Cinsa to use revalued Department may not use this fees for these letters of credit as a COS depreciation in its financial statements. information, because it would be adjustment. However, Cinsa did not In this case, we find the use of revalued unlawful to rely upon unverified receive payment for these sales from its depreciation reasonably reflects Cinsa’s information in the final results of this bank immediately upon shipment, but actual costs. Thus, Mexican GAAP review. Petitioner also believes that rather some time later. In accordance recognize the effect of inflation upon the even if the Department could change with our standard practice, we have also value of assets and require companies to this data, Cinsa has not established that imputed credit expenses for these letter revalue assets to compensate for the any error was made because the invoice of credit sales for the days payment was change. Depreciation enables companies for this sale, which is the best evidence outstanding between shipment and to spread large expenditures on of the transaction, reflects that the unit payment. purchases of machinery and equipment price used in the preliminary results over the expected useful lives of these Comment 10: Revalued Versus was correct. assets. Not adjusting for the deflation of Historical Depreciation DOC Position: Cinsa’s submission of currency due to inflation results in the October 3, 1995, does not adequately Cinsa argues that the use of revalued depreciation deferred to future years demonstrate why the reported rather than historical depreciation being understated in constant currency information is incorrect, or that its post- distorts Cinsa’s COP and is contrary to terms and, therefore, distorts the verification revision is correct. In fact, law because it distorts Cinsa’s actual Department’s COP and CV calculations. the documentary evidence submitted in fixed overhead cost incurred in Thus, in light of the rate of inflation in support of the proposed revision producing the subject merchandise. Mexico during the POR, it would be appears to support the reported Cinsa further states that, in this review, distortive to use historical depreciation information. Without clear documentary the Department verified that revalued in this case. evidence that the response information depreciation was used for financial The Department’s determination to is incorrect, and given that verification purposes only, and that historical use revalued rather than historical had already occurred at the time of the depreciation is used in company records depreciation in accordance with home submission, the Department has no for income tax purposes. Consequently, market GAAP was upheld by the Court means to confirm Cinsa’s claim. This according to Cinsa, the use of revalued of International Trade in Laclede Steel situation is distinguishable from NTN depreciation in this case would Co. v. United States, 18 CIT 965 Bearings Corp., in which supporting overstate the actual depreciation (October 12, 1994). In Laclede Steel, the 25914 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Court found that depreciation expense bonuses for accounting purposes, and to labor. Thus, unlike income taxes paid based on the historical method rather the Department’s practice is to treat to the government, profit sharing than depreciation expense based on the bonuses as labor costs. See, e.g., Certain payments flow directly to a factor of revalued method would distort the Hot-Rolled Carbon Steel Flat Products, production. Also, Cinsa’s income tax is production costs of the company Certain Corrosion-Resistant Carbon based on taxable income that is net of because such a methodology would Steel Flat Products, and Certain Cut-To- Cinsa’s profit-sharing expense. overlook the significant impact that Length Carbon Steel from Canada, 58 We note that, although it is not revaluing the assets had on the FR 37099, 37113–14 (July 9, 1993). binding precedent, a NAFTA Panel has company. We find the Court’s analysis Petitioner maintains that Cinsa’s affirmed the Department’s inclusion of in Laclede Steel instructive with respect argument that profit sharing expenses Cinsa’s profit-sharing in COP and CV in to the instant review. Due to the are analogous to income taxes and are the fifth administrative review. See POS revaluation of assets as reflected on ‘‘unrelated to the production of the Cookware NAFTA Decision, at 37–39. Cinsa’s financial statements, Cinsa subject merchandise’’ is incorrect. would enjoy an increase to its equity Petitioner states that profit sharing Final Results of Review values reflected on the Company’s expenses are more related to production As a result of our review, we balance sheet, a potentially enhanced than some other forms of compensation, determine that the following margin stock value resulting from greater such as health or pension benefits, exists for the period December 1, 1993, equity, and an improved ability to because they are a function of gross through November 30, 1994: borrow or acquire capital. Therefore, the revenue and profit, which generally Department followed Mexican GAAP vary according to production. Manufac- Margin Petitioner also refutes Cinsa’s turer/ex- Review period and adjusted CINSA’s COP data to porter (percent) reflect the revalued depreciation. We argument that the inclusion of both note, although it is not binding profit sharing expenses and profit in the Cinsa 1 ..... 12/1/93±11/30/94 6.55 precedent, that a NAFTA Panel has CV calculation results in the double- affirmed the Department’s use of counting of profits. Petitioner states that 1 Includes sales by Cinsa of HG merchan- profit sharing expenses are not profit, dise manufactured by ENASA. No review was revalued depreciation for Cinsa in the requested of any sales which ENASA may fifth administrative review. In the but expenses, i.e., a reduction to profit. have had to the United States for this POR. Matter of Porcelain-on-Steel Cookware Petitioner states that the profit that is The Department shall determine, and From Mexico (‘‘POS Cookware NAFTA included in Cinsa’s CV is the profit that the Customs Service shall assess, decision’’), USA–95–1904–01 (April 30, remains after profit sharing expenses antidumping duties on all appropriate 1996), at 31. have been deducted. Therefore, the Department’s inclusion of profit sharing entries. Individual differences between Comment 11: Inclusion of Profit Sharing expenses in the calculation of CV does USP and FMV may vary from the Payments in COP and CV not double-count profit. percentages stated above. The Cinsa argues that the inclusion of DOC Position: We disagree with the Department will issue appraisement profit sharing payments as a component respondent and have included Cinsa’s instructions directly to the Customs expense of Cinsa’s COP and CV is profit sharing expense in COP and CV Service. contrary to law. Cinsa asserts that because it relates to the compensation of Further, the following deposit although the statutory definition of CV direct labor, a factor of production. We requirement will be effective for all includes profit, the inclusion of an treat profit-sharing distributions to shipments of subject merchandise from amount for profit, plus an additional employees in a manner similar to Mexico entered, or withdrawn from amount (derived from Cinsa’s profit) to bonuses. Further, we disagree with warehouse, for consumption on or after account for profit sharing, results in the Cinsa’s argument that the profit-sharing the publication date of the final results double counting of profits earned. Cinsa expense is similar to profit, dividends, of this administrative review, as argues that in this review, profit sharing and income tax. provided by section 751(a)(1) of the was inextricably linked to the amount of Profit-sharing is not profit because it Tariff Act: (1) The cash deposit rate for profit earned by Cinsa and was not is an expense which is a reduction to the reviewed company will be as dependent upon production of the profit. Therefore, profit-sharing is not outlined above; (2) for merchandise subject merchandise. In addition, explicitly excluded from COP exported by manufacturers or exporters according to Cinsa, because both profit calculations under 19 CFR 353.51(c). As not covered in this review but covered and profit sharing payments are for Cinsa’s concern that we double in previous reviews or the original less- determined at the close of the fiscal counted profit in its CV, we note that than-fair-value (LTFV) investigation, the period, profit sharing payments were profit-sharing expense is not part of the cash deposit rate will continue to be the not incurred upon the production of the Company’s ‘‘profit’’ included in CV. The rate published in the most recent final subject merchandise and were not ‘‘profit’’ that is included in Cinsa’s CV results or determination for which the incurred prior to exportation of the represents the amount that remains after manufacturer or exporter received a subject merchandise, as required by the reductions to income, such as the profit- company-specific rate; (3) if the exporter statute if included as a cost. Finally, sharing expense. is not a firm covered in this review, an Cinsa claims that this payment is Cinsa’s profit-sharing expense is earlier review, or the LTFV similar to dividend distributions or distinct from dividends in two key investigation, but the manufacturer is, income tax payments, which are not respects. First, Cinsa’s profit-sharing the cash deposit rate will be that included in COP and CV. payments represent a legal obligation to established for the manufacturer of the Petitioner argues that, consistent with a productive factor in the manufacturing merchandise in the final results of this the Department’s practice in previous process and not a distribution of profits review, earlier reviews, or the LTFV administrative reviews of this order, the to the owners of Cinsa. Second, the right investigation, whichever is the most Department should continue to include to participate in profit-sharing conveys recent; (4) the cash deposit rate for all profit sharing expenses in its calculation no ownership rights in Cinsa. other manufacturers or exporters, of Cinsa’s COP and CV. Petitioner states Cinsa’s profit-sharing expense is including ENASA, will be 29.52 that such payments are treated like unlike an income tax because it is paid percent, the ‘‘all others’’ rate established Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25915 in the original LTFV investigation by Scope of the Review both parties were filed in a timely the Department. The products covered by this fashion. Respondents allege that the These cash deposit requirements, administrative review are certain Department made four ministerial errors when imposed, shall remain in effect stainless steel wire rods (SSWR), in the final results. First, respondents until publication of the final results of products which are hot-rolled or hot- contend that the Department neglected the next administrative review. rolled annealed, and/or pickled rounds, to use the revised general and This notice also serves as a final squares, octagons, hexagons, or other administrative expense (GNA) and reminder to importers of their shapes, in coils. SSWR are made of alloy interest expense (INTEX) in the responsibility under 19 CFR 353.26 to steels containing, by weight, 1.2 percent calculation of CEP profit. Second, file a certificate regarding the or less of carbon and 10.5 percent or reimbursement of antidumping duties respondents allege that in calculating more of chromium, with or without the CEP profit rate, the Department’s prior to liquidation of the relevant other elements. These products are only entries during this review period. margin calculation program failed to manufactured by hot-rolling, are include foreign indirect selling expenses Failure to comply with this requirement normally sold in coiled form, and are of could result in the Secretary’s in total expenses, as required by section solid cross section. The majority of 772(f)(2) of the antidumping law. Third, presumption that reimbursement of SSWR sold in the United States is round antidumping duties occurred and the respondents allege that the Department in cross-sectional shape, annealed, and omitted to correct a typographical error subsequent assessment of double pickled. The most common size is 5.5 antidumping duties. in the product code for a home market millimeters in diameter. control number. Fourth, respondents This notice also serves as the only The SSWR subject to this review is reminder to parties subject to assert that the Department did not currently classifiable under subheadings correctly revise respondents’ cost of administrative protective order (APO) of 7221.00.0005, 7221.00.0015, their responsibility concerning the manufacture (COM) for constructed 7221.00.0020, 7221.00.0030, value (CV) for certain remelting disposition of proprietary information 7221.00.0040, 7221.00.0045, disclosed under APO in accordance services. 7221.00.0060, 7221.00.0075, and Petitioners agree with respondents with 19 CFR 353.34(d). Timely written 7221.00.0080 of the Harmonized Tariff notification of return/destruction of concerning errors 1, 3 and 4. However, Schedule of the United States (HTSUS). concerning the issue of failing to APO materials or conversion to judicial Although the HTSUS subheadings are protective order is hereby requested. include foreign indirect selling expenses provided for convenience and Customs in total expenses for the calculation of Failure to comply with the regulations purposes, our written description of the and terms of the APO is a sanctionable CEP profit, petitioners disagree that the scope of the order is dispositive. Department erred in this respect. violation. Petitioners contend that respondents’ This administrative review and notice Amendment of Final Results allegation does not constitute a are in accordance with section 751(a)(1) On February 18, 1997, the Department ministerial issue. Petitioners note that of the Tariff Act (19 U.S.C. 1675(a)(1)) of Commerce (the Department) the only revisions to the final and 19 CFR 353.22. published the final results of the calculations that the Department may Dated: May 5, 1997. administrative review of the make after issuance of a final results are Robert S. LaRussa, antidumping duty order on certain ‘‘ministerial error’’ corrections (see 19 Acting Assistant Secretary for Import stainless steel wire rods from France (62 CFR 353.28). Petitioners note that the Administration. FR 7206). This review covered Imphy question of which types of expenses are [FR Doc. 97–12396 Filed 5–9–97; 8:45 am] S.A., and Ugine-Savoie, two proper deductions from CEP profit is a BILLING CODE 3510±DS±P manufacturers/exporters of the subject substantive question that respondents merchandise to the United States. The failed to address in their case brief or period of review (POR) is January 1, otherwise prior to issuance of these final DEPARTMENT OF COMMERCE 1995, through December 31, 1995. results. Consequently, petitioners argue On February 19, 1997, we received that it would be inappropriate for the International Trade Administration submissions from Imphy, S.A. and Department to consider as a ministerial Ugine-Savoie, and their affiliated United error the substantive merits of the CEP [A±427±811] States entities, Metalimphy Alloys Corp. profit calculation. and Techalloy Company After a review of respondents’ Certain Stainless Steel Wire Rods (‘‘respondents’’) alleging of clerical allegations, we agree with respondents From France: Amended Final Results errors with regard to the final results in and have corrected these errors for the of Antidumping Duty Administrative the first administrative review of the amended final results. For the computer Review antidumping duty order of certain code we used to correct these stainless steel wire rods from France. ministerial errors, please see the AGENCY: Import Administration, On February 25, 1997, counsel for the Memorandum from Joseph A. Spetrini International Trade Administration, petitioning companies, Al Tech to Robert S. LaRussa dated May 5, 1997 Department of Commerce. Specialty Steel Corp., Armco Stainless & (‘‘Memorandum’’), a public version of EFFECTIVE DATE: May 12, 1997. Alloy Products, Carpenter Technology which is in the file in Central Records, FOR FURTHER INFORMATION CONTACT: Corp., Republic Engineered Steels, Room B–099 of the Department of Stephen Jacques or Jean Kemp, AD/CVD Talley Metals Technology, Inc., United Commerce building, 14th Street and Enforcement Group III, Office 9, Import Steelworkers of America, AFL–CIO/CLC Constitution Ave, NW., Washington, Administration, International Trade (‘‘petitioners’’) filed allegations of DC. We disagree with petitioners that Administration, U.S. Department of clerical errors. Respondents submitted respondents’ error allegation regarding Commerce, 14th Street and Constitution rebuttal comments on March 4, 1997 the calculation of CEP profit is not a Avenue, NW., Washington, DC 20230; and petitioners submitted their rebuttal ministerial error. The Department telephone: (202) 482–3434 or (202) 482– comments on February 26, 1997. The includes foreign indirect expenses in 4037, respectively. allegations and rebuttal comments of total expenses for purposes of 25916 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices calculating CEP profit and did not do so test from the CV profit calculation. economic activity in the United States in this case. Consequently, we have Respondents did not submit a rebuttal and are properly deducted as indirect corrected it for the amended final. argument concerning this issue. We selling expenses. Consequently, Petitioners also alleged that the agree with petitioners that this is a petitioners argue that if the Department Department made several ministerial clerical error and have corrected the agreed with petitioners’ argument errors. First, petitioners alleged that the error for the amended final results. regarding the deduction of post- Department’s programming language for Third, petitioners assert that the exportation inventory carrying costs, the the final results incorrectly revised the Department failed to adjust COM for CV Department’s failure to deduct such computer language concerning payment for remelting services. Respondents did expenses constitutes a ministerial error. dates. Petitioners contend that the not object to petitioners’ ministerial Respondents note that in the final Department’s original computer allegations but argued that certain results, the Department disagreed with language in the preliminary results computer coding suggested by petitioners, stating that ‘‘the Department correctly set the date of the final results. petitioners was incorrect. We agree that does not deduct indirect expenses However, petitioners contend that the this is a clerical error and have incurred in selling to the affiliated U.S. computer programming revised the corrected the error for the amended final importer under section 772(d) of the methodology used by the Department results using respondents’ computer Act.’’ Respondents assert that despite the statement in the code. Petitioners also requested that the petitioners misconstrued the Department’s final results notice that it Department correct a certain Department’s position in the final made no changes to the computer typographical error by inserting a results. Respondents contend that program. comma between two control numbers. inventory carrying costs incurred from Respondents contend that petitioners We also agree that this is a clerical error the date of exportation from France to are wrong and are confusing two and have corrected the error for the the date the affiliate MAC received the different issues raised in briefing with amended final results. subject merchandise in the United respect to the calculation of U.S. credit Fourth, petitioners allege that the States relate to selling to MAC expense. Respondents note that the Department erroneously deducted the (respondents’ U.S. affiliate), not to Department disagreed with respondents’ same indirect home market expenses selling to an unaffiliated U.S. customer. claim that the Department incorrectly from normal value twice, once in the Consequently, respondents argue that set the payment date for every U.S. sale form of a commission offset and then these expenses were properly not to the projected final results date and again in the form of a CEP offset for deducted in the calculation of CEP and the Department stated in the final sales where commissions were paid on there is no ministerial error to correct. results that it did not change the respondents’ CEP sales, but no We agree with respondents. The computer program (see Comment 1 of commissions were paid for the inventory carrying costs relate to selling Final Results). However, respondents comparison home market sales. to MAC respondents’ U.S. subsidiary, note that the Department agreed with Respondents contend that this is a and not to the final unaffiliated respondents that the formula used to methodological issue and not a customer. Thus these costs should not calculate U.S. credit expense contained ministerial error. Respondents note that be deducted from CEP. two errors. The Department corrected petitioners failed to address this matter Amended Final Results of Review the error in the Final Results (see in their case brief or otherwise prior to Comment 2 of Final Results). issuance of the final results. As a result of our review and the Consequently, respondents contend that Furthermore, respondents note that correction of the ministerial errors petitioners are misreading the petitioners stated in their rebuttal described above, we have determined Department’s statement in Comment 1 comments for the amended final that a that the following margins exist: that it made no changes to the computer substantive question embodied in the program to correct the error in the credit preliminary results but not raised in Margin Manufacturer/ Time period (per- calculation. Respondents contend that briefing is not a ministerial error exporter cent) the Department made the necessary following the final results. Respondents corrections for the final results and state that applying petitioners’ own Imphy/Ugine- there are no ministerial errors to correct. principle, consideration of this Savoie ...... 1/1/95±12/31/95 7.29 We agree with respondents. The methodological matter is untimely and Department stated in Comment 1 of the the Department should dismiss The Department shall determine, and final results that it disagreed with petitioners’ comment. the Customs Service shall assess, respondents’ argument that we We agree with petitioners that the antidumping duties on all appropriate incorrectly set the payment date for all Department’s computer program entries. Individual differences between sales to the date of the final results. incorrectly double deducted the same United States price and foreign market Consequently, for that comment, we indirect home market expenses from value may vary from the percentages stated we did not change the computer normal value twice. It was not the stated above. The Department will issue program. However, we agreed with Department’s intention to deduct these appraisement instructions directly to respondents in Comment 2 of the final expenses twice. Consequently, we the Customs Service. results that the Department incorrectly consider this to be a ministerial error Furthermore, the following deposit calculated respondents’ credit expense. and have corrected it for the amended requirements will be effective, upon Consequently, we changed the computer final. publication of this notice of amended coding in the margin calculation Last, petitioners contend that the final results of review for all shipments program to reflect the corrected credit Department should deduct inventory of certain stainless steel wire rods from expense. Since the calculation of credit carrying costs incurred after exportation France entered, or withdrawn from expense was corrected for the final in calculating CEP. Petitioners note that warehouse, for consumption on or after results, there is no ministerial error. the Department stated in the final the publication date, as provided for by Second, petitioners also contend that results that it agreed with petitioners section 751(a)(1) of the Act: (1) The cash the Department failed to exclude home that inventory carrying costs incurred deposit rates for the reviewed market sales that failed the arm’s length after import relate to respondents’ companies will be the rates for those Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25917 firms as stated above; (2) for previously DEPARTMENT OF COMMERCE (URAA). In addition, unless otherwise investigated companies not listed above, indicated, all citations to the [A±570±815] the cash deposit rate will continue to be Department’s regulations are to the the company-specific rate published for Sulfanilic Acid From the People's current regulations, as amended by the the most recent period; (3) if the Republic of China; Preliminary Results interim regulations published in the exporter is not a firm covered in this of Antidumping Duty Administrative Federal Register on May 11, 1995 (60 review, or the original investigation, but Review FR 25130). the manufacturer is, the cash deposit Background AGENCY: rate will be the rate established for the Import Administration, International Trade Administration, On August 12, 1996, the Department most recent period for the manufacturer Department of Commerce. of Commerce (the Department) of the merchandise; and (4) the cash ACTION: published in the Federal Register (61 deposit rate for all other manufacturers Notice of preliminary results of antidumping duty administrative FR 41768) a notice of ‘‘Opportunity to or exporters will continue to be 24.51 review. Request Administrative Review’’ for the percent for stainless steel wire rods, the August 1, 1995 through July 31, 1996, all others rate established in the LTFV SUMMARY: The Department of Commerce period of review (POR) of the investigations. See Amended Final (the Department) is conducting an antidumping duty order on Sulfanilic Determination and Antidumping Duty administrative review of the Acid from the People’s Republic of Order: Certain Stainless Steel Wire Rods antidumping duty order on sulfanilic China (57 FR 37524). In accordance from France, (59 FR 4022, January 28, acid from the People’s Republic of with 19 CFR 353.22, Sinochem Hebei, 1994). China. The review covers exports of this Yude Chemical Industry Co. (Yude), These deposit requirements, when merchandise to the United States for the Zhenxing Chemical Industry Co. (Zhenxing), PHT International and the imposed, shall remain in effect until period August 1, 1995 through July 31, 1996, and thirteen firms: China National petitioners, Nation Ford Chemical publication of the final results of the Chemical Import and Export Company, requested a review for the next administrative review. Corporation, Hebei Branch (Sinochem aforementioned period. On September This notice serves as a final reminder Hebei); China National Chemical 17, 1996, the Department published a to importers of their responsibility Construction Corporation, Beijing notice of ‘‘Initiation of Antidumping under 19 CFR 353.26 to file a certificate Branch; China National Chemical Review.’’ 61 FR 48882. The Department regarding the reimbursement of Construction Corporation, Qingdao is now conducting a review pursuant to antidumping duties prior to liquidation Branch; Sinochem Qingdao; Sinochem section 751(a) of the Act. of the relevant entries during this Shandong; Baoding No. 3 Chemical Scope of Review review period. Failure to comply with Factory; Jinxing Chemical Factory; this requirement could result in the Zhenxing Chemical Factory; Mancheng Imports covered by this review are all Secretary’s presumption that Zinyu Chemical Factory, Shijiazhuang; grades of sulfanilic acid, which include reimbursement of antidumping duties Mancheng Xinyu Chemical Factory, technical (or crude) sulfanilic acid, refined (or purified) sulfanilic acid and occurred and the subsequent assessment Bejing; Hainan Garden Trading sodium salt of sulfanilic acid. of double antidumping duties. Company; Yude Chemical Company and Shunping Lile. The preliminary results Sulfanilic acid is a synthetic organic This notice also serves as a reminder of this review indicate that there were chemical produced from the direct to parties subject to administrative no dumping margins for the two sulfonation of aniline with sulfuric acid. protective order (APO) of their responding parties: Yude Chemical Sulfanilic acid is used as a raw material responsibility concerning the Company (Yude) and Zhenxing in the production of optical brighteners, disposition of proprietary information Chemical Factory (Zhenxing). food colors, specialty dyes, and concrete disclosed under APO in accordance We invite interested parties to additives. The principal differences with § 353.34(d) of the Department’s comment on these preliminary results. between the grades are the undesirable regulations. Timely notification of Parties who submit arguments in this quantities of residual aniline and alkali return/destruction of APO materials or proceeding are requested to submit with insoluble materials present in the conversion to judicial protective order is the argument (1) A statement of the sulfanilic acid. All grades are available hereby requested. Failure to comply issue and (2) a brief summary of the as dry, free flowing powders. with the regulations and the terms of an argument. Technical sulfanilic acid, classifiable under the subheading 2921.42.24 of the APO is a sanctionable violation. EFFECTIVE DATE: May 12, 1997. Harmonized Tariff Schedule (HTS), This administrative review and notice FOR FURTHER INFORMATION CONTACT: contains 96 percent minimum sulfanilic are in accordance with section 751(a)(1) Kristen Smith or Kristen Stevens, acid, 1.0 percent maximum aniline, and of the Act (19 U.S.C. 1675(a)(1)) and 19 Import Administration, International 1.0 percent maximum alkali insoluble CFR 353.22. Trade Administration, U.S. Department materials. Refined sulfanilic acid, also of Commerce, 14th Street and Dated: May 5, 1997. classifiable under the subheading Constitution Avenue NW., Washington, 2921.42.24 of the HTS, contains 98 Robert S. LaRussa, DC 20230; telephone: (202) 482–3793. percent minimum sulfanilic acid, 0.5 Acting Assistant Secretary for Import SUPPLEMENTARY INFORMATION: percent maximum aniline and 0.25 Administration. percent maximum alkali insoluble [FR Doc. 97–12389 Filed 5–9–97; 8:45 am] Applicable Statute and Regulations materials. BILLING CODE 3510±DS±P Unless otherwise indicated, all Sodium salt, classifiable under the citations to the statute are references to HTS subheading 2921.42.79, is a the provisions effective January 1, 1995, powder, granular or crystalline material the effective date of the amendments which contains 75 percent minimum made to the Tariff Act of 1930 (the Act) equivalent sulfanilic acid, 0.5 percent by the Uruguay Round Agreements Act maximum aniline based on the 25918 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices equivalent sulfanilic acid content, and review, and have assigned to each of As a result we are collapsing Yude and 0.25 percent maximum alkali insoluble these companies a separate rate. For Zhenxing for purposes of conducting materials based on the equivalent further discussion of the Department’s the 1995/1996 administrative review. sulfanilic acid content. preliminary determination that these Use of Facts Otherwise Available Although the HTS subheadings are two companies are entitled to a separate provided for convenience and customs rate, see Decision Memorandum to Joe All firms that have not demonstrated purposes, our written description of the Spetrini, Assistant Deputy Secretary, that they qualify for a separate rate are scope of this proceeding is dispositive. DAS III, dated April 14, 1997, and titled deemed to be part of a single enterprise This review covers thirteen ‘‘Separate rates in the 1995/1996 under the common control of the producers/exporters of Chinese administrative review of sulfanilic acid government (the ‘‘PRC enterprise’’). sulfanilic acid. The review period is from the People’s Republic of China.’’ Therefore, all such entities receive a August 1, 1995 through July 31, 1996. This memorandum is on file in the single margin, the ‘‘PRC rate.’’ We preliminarily determine, in accordance Separate Rates Central Record Unit (room B–099 of the Main Commerce Building). with section 776(a) of the Act that resort To establish whether a company is to the facts otherwise available is sufficiently independent to be entitled Collapsing appropriate for the PRC rate because to a separate rate, the Department We have determined, after examining companies deemed to be part of the PRC analyzes each exporting entity in a the relevant criteria, that Yude and enterprise for which a review was nonmarket economy (NME) country Zhenxing, are affiliated parties within requested have not responded to the under the test established in the Final the meaning of section 771(33)(F) of the Department’s antidumping Determination of Sales at Less Than Act. We have further determined that questionnaire. Fair Value: Sparklers from the People’s these affiliated producers, both of which Where the Department must resort to Republic of China, 56 FR 20588 (May 6, make export sales to the United States, the facts otherwise available because a 1991) (Sparklers), as amplified by the should be treated as a single entity (i.e., respondent fails to cooperate by not Final Determination of Sales at Less ‘‘collapsed’’) for purposes of assigning acting to the best of its ability to comply Than Fair Value: Silicon Carbide from an antidumping margin in this review. with a request for information, 776(b) the People’s Republic of China, 59 FR Section 351.401(f) of the proposed authorizes the Department to use an 22585 (May 2, 1994) (Silicon Carbide). antidumping regulations sets forth the inference adverse to the interests of that Under this policy, exporters in NME Department’s policy with respect to the respondent in choosing from the facts countries are entitled to separate, treatment of affiliated producers in available. Section 776(b) also authorizes company-specific margins when they antidumping proceedings. 61 FR 7308, the Department to use as adverse facts can demonstrate an absence of 7329 (February 27, 1996.) Specifically, available information derived from the government control, both in the law (de the Department ‘‘will treat two or more petition, the final determination, a jure) and in fact (de facto), with respect affiliated producers as a single entity previous administrative review, or other to exports of the subject merchandise. where those producers have production information placed on the record. The Evidence supporting, though not facilities for similar or identical Statement of Administrative Action requiring, a finding of de jure absence products that would not require (SAA) accompanying the URAA of government control includes: (1) An substantial retooling of either facility in clarifies that information from the absence of restrictive stipulations order to restructure manufacturing petition and prior segments of the associated with an individual exporter’s priorities and the Secretary concludes proceeding is ‘‘secondary information.’’ business and export licenses; (2) any that there is a significant potential for See H. Doc. 3216, 103rd Cong. 2d Sess. legislative enactments decentralizing the manipulation of price or 870 (1996). If the Department relies on control of companies; and (3) any other production.’’ In identifying the potential secondary information as facts available, formal measures by the government for manipulation of price or production, section 776(c) provides that the decentralizing control of companies. De the proposed rules provide that the Department shall, to the extent facto absence of government control Department may consider the following practicable, corroborate such with respect to exports is based on four factors: level of common ownership; information using independent sources criteria: (1) Whether the export prices whether managerial employees or board reasonably at its disposal. The SAA are set by or subject to the approval of members of one of the affiliated further provides that ‘‘corroborate’’ a government authority; (2) whether producers sit on the board of directors means simply that the Department will each exporter retains the proceeds from of the other affiliated person; and satisfy itself that the secondary its sales and makes independent whether operations are intertwined, information to be used has probative decisions regarding the disposition of such as through the sharing of facilities value. However, where corroboration is profits and financing of losses; (3) or employees, or significant transactions not practicable, the Department may use whether each exporter has autonomy in between the affiliated parties. A full uncorroborated information. making decisions regarding the discussion of our conclusions, requiring In the present case the Department selection of management; and (4) reference to proprietary information, is has based the margin on information in whether each exporter has the authority contained in a Department the petition. See Notice of Final to sign contracts and other agreements. memorandum in the official file for this Determination of Sales at Less Than Yude and Zhenxing were the only case (a public version of this Fair Value: Circular Welded Non-Alloy companies to respond to the memorandum is on file in room B–099 Steel Pipe from South Africa, 61 FR Department’s request for information of the Department’s main building). 24272 (May 14, 1996). In accordance regarding separate rates. We have found Generally, however, we have found that: with section 776(c) of the Act, we that the evidence on the record Yude and Zhenxing are ‘‘affiliated’’ corroborated the data contained in the demonstrates an absence of government parties, substantial retooling would not petition, as adjusted for intitiation control, both in law and in fact, with be necessary to restructure purposes, to the extent possible. The respect to their exports according to the manufacturing priorities and there is petition data on major material inputs criteria identified in Sparklers and potential for manipulating price and are consistent with Indian import Silicon Carbide for this period of production between the two producers. statistics, and also with price quotations Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25919 obtained by the U.S. Embassies in India is comparable to the PRC in terms acid supplier and the sulfanilic acid Pakistan and India. Both of these of per capita gross national product factories in the PRC. corroborating sources were placed on (GNP), the growth rate in per capita To value activated carbon used in the the record during the investigation and GNP, and the national distribution of production of sulfanilic acid, we used have been added to the record of this labor, and that India is a significant the rupee per kilogram value for sales in review. In addition, we note that the producer of comparable merchandise. India reported in Chemical Weekly from petition used World Bank labor rates For further discussion of the March 1995 to January 1996, adjusting which we have repeatedly found to be Department’s selection of India as the sales outside of the period of review for a probative source of data. Based on our primary surrogate country, see inflation using the WPI index data from ability to corroborate other elements of Memorandum from David Mueller, International Statistics published by the the petition calculation, we Director, Office of Policy, to Steve International Monetary Fund. We made preliminarily find that the information Presing, dated March 20, 1997, adjustments to include cost incurred for contained in the petition has probative ‘‘Sulfanilic Acid from the PRC: inland freight between Chinese value. However, we will continue to Nonmarket Economy Status and activated carbon suppliers and the evaluate this information on the basis of Surrogate Country Selection,’’ and File sulfanilic acid factories in the PRC. more current data. Memorandum, dated April 11, 1997, For direct labor, we used the labor Accordingly, we have relied upon the ‘‘India as a significant producer of rates reported in the Economist information contained in the petition. comparable merchandise in the 1995/ Intelligence Unit’s Investing, Licensing We have assigned to all exporters other 1996 administrative review of sulfanilic and Trading Conditions Abroad: India, than Yude and Zhenxing a margin of acid from the People’s Republic of released November 1995, and November 85.20, the margin in the petition, as China,’’ which are on file in the Central 1996. This source breaks out labor rates adjusted by the Department for Records Unit (room B–099 of the Main between skilled and unskilled labor for initiation purposes. Commerce Building). 1995, and 1996, and provides For purposes of calculating NV, we information on the number of labor United States Price valued PRC factors of production as hours worked per week and fringe For sales made by Yude and follows, in accordance with section benefits paid to workers. Zhenxing, we calculated constructed 773(c)(1) of the Act: For factory overhead, we used export price based on FOB prices to To value aniline used in the information reported in the April 1995 unrelated purchasers in the United production of sulfanilic acid, we used Reserve Bank of India Bulletin. From States. We made deductions for foreign the rupee per kilogram value of imports this information, we were able to inland freight, ocean freight, U.S. duties, into India during April 1995–March determine factory overhead as a U.S. transportation, credit, warehousing, 1996, obtained from the March 1996, percentage of total cost of manufacture. repacking in the U.S., indirect selling Monthly Statistics of the Foreign Trade For selling, general and expenses and constructed export price of India, Volume II—Imports (Indian administrative (SG&A) expenses, we profit, as appropriate, in accordance Import Statistics.) Using wholesale price used information obtained from the with section 772(d)(3) of the Act. indices (WPI) obtained from the April 1995 Reserve Bank of India International Financial Statistics, Normal Value Bulletin. We calculated an SG&A rate by published by the International Monetary dividing SG&A expenses by the cost of For companies located in NME Fund (IMF), we adjusted this value to manufacture. countries, section 773(c)(1) of the Act reflect inflation in India through the To calculate a profit rate, we used provides that the Department shall period of review. We made adjustments information obtained from the April determine NV using a factors of to include costs incurred for freight 1995 Reserve Bank of India Bulletin. We production methodology if (1) the between the Chinese aniline suppliers calculated a profit rate by dividing the merchandise is exported from an NME and the Chinese sulfanilic acid factories, before-tax profit by the sum of those country, and (2) the available based on freight rates from the August components pertaining to the cost of information does not permit the 1993 embassy cable for the Final manufacturing plus SG&A. calculation of NV using home-market Determination of Sales at Less Than To value the inner and outer bags prices, third-country prices, or Fair Value: Certain Helical Spring Lock used as packing materials, we used constructed value under section 773(a) Washers from the People’s Republic of import statistics for India obtained from of the Act. China (58 FR 48833, September 20, Indian Import Statistics. Using WPI In every case conducted by the 1993) (Lock Washers) and the December obtained from International Financial Department involving the PRC, the PRC 22, 1989 embassy cable for the Final Statistics, we adjusted these values to has been treated as an NME country. Results of Antidumping Duty reflect inflation through the period of Pursuant to section 771(18)(C)(i), any Administrative Review: Shop Towels of review. We adjusted these values to determination that a foreign country is Cotton from the People’s Republic of include freight costs incurred between an NME country shall remain in effect China (56 FR 4040, February 1, 1991) the Chinese plastic bag suppliers and until revoked by the administering and used in Lock Washers. These rates the sulfanilic acid factories in the PRC. authority. None of the parties to this were inflated to be concurrent with the To value coal, we used the price of proceeding has contested such period of review. steam coal reported in the Gazette of treatment in this review. Accordingly, To value sulfuric acid used in the India, June 16, 1994. We adjusted the we treated the PRC as an NME country production of sulfanilic acid, we used value of coal to reflect inflation through for purposes of this review and the rupee per kilogram value for sales in the period of review using WPI index calculated NV by valuing the factors of India during the period of review as data published by the IMF. production as set forth in section reported in Chemical Weekly. We have To value electricity, we used the 773(c)(3) of the Act in a comparable adjusted this value to exclude the simple average of the Indian state market economy country which is a Central Excise Tariff of India and the electricity rates for the large industry significant producer of comparable Bombay Sales Tax. We made additional category on March 1, 1995 as reported merchandise. Pursuant to section adjustments to include costs incurred in Current Energy Scene in India, July 773(c)(4) of the Act, we determined that for freight between the Chinese sulfuric 1995, by the Centre for Monitoring the 25920 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Indian Economy. We adjusted the value not already on the record of this review, Act (19 U.S.C. 1674(a)(1)) and § 353.22 of electricity to reflect inflation through may be filed not later than 37 days after of the Department’s regulations. the period of review using WPI index the date of this preliminary Dated: May 5, 1997. data published by the IMF. determination. Robert S. LaRussa, To value truck freight, we used the The Department shall determine, and rate reported in an August 1993, cable Acting Assistant Secretary for Import the Customs Service shall assess, Administration. from the U.S. Embassy in India antidumping duties on all appropriate submitted for the Final Determination of [FR Doc. 97–12387 Filed 5–9–97; 8:45 am] entries. Individual differences between BILLING CODE 3510±DS±P Sales at Less Than Fair Value: Certain United States prices and NV may vary Helical Spring Lock Washers from the from the percentage stated above. Upon People’s Republic of China (58 FR completion of this review, the DEPARTMENT OF COMMERCE 48833, September 20, 1993), and added Department will issue appraisement to the record of this review. We adjusted instructions directly to the Customs International Trade Administration A± the truck freight rates to reflect inflation Service. 821±803 through the period of review using WPI data published by the IMF. Furthermore, the following deposit Titanium Sponge from the Russian To value rail freight, we used the rates will be effective with respect to all Federation: Preliminary Results of price reported in a December 1989, shipments of sulfanilic acid from the Antidumping Duty Administrative cable from the U.S. Embassy in India PRC entered, or withdrawn from Review submitted for the Final Results of warehouse, for consumption on or after Antidumping Duty Administrative the publication date, as provided for by AGENCY: Import Administration, Review: Shop Towels of Cotton from the section 751(a)(2)(c) of the Act: (1) The International Trade Administration, People’s Republic of China (56 FR 4040, cash deposit rate for reviewed Department of Commerce February 1, 1991). We adjusted the rail companies listed below will be the rates ACTION: Notice of Preliminary Results of freight rates to reflect inflation through for those firms established in the final Antidumping Duty Administrative the period of review using WPI data results of this review; (2) for companies Review indices published by the IMF. previously found to be entitled to a separate rate and for which no review SUMMARY: In response to requests from Preliminary Results of the Review was requested, the cash deposit rate will AVISMA Titanium-Magnesium Works We preliminarily determine the be the rate established in the most (AVISMA), Interlink Metals, Inc. and dumping margin for Yude and Zhenxing recent review of that company; (3) for Interlink Metals & Chemicals, S.A. for the period August 1, 1995–July 31, all other PRC exporters, the cash deposit (collectively, Interlink), Cometals, Inc. 1996 to be 0. The rate for all others firms rate will be the China-wide rate of (Cometals), TMC Trading International which have not demonstrated that they 85.20; and (4) the cash deposit rate for Ltd. (TMC), and Titanium Metals are entitled to a separate rate is 85.20. non-PRC exporters of subject Corporation (TIMET, a petitioner), the This rate will be applied to all firms merchandise from the PRC will be the Department of Commerce (the other than Yude and Zhenxing, rate applicable to the PRC supplier of Department) is conducting an including all firms which did not that exporter. These deposit administrative review of the respond to our questionnaire requests: requirements, when imposed, shall antidumping finding on titanium China National Chemical Import and remain in effect until publication of the sponge from the Russian Federation Export Corporation, Hebei Branch final results of the next administrative (Russia). This notice of preliminary (Sinochem Hebei); China National review. results covers the period August 1, 1995 Chemical Construction Corporation, through July 31, 1996. This review covers one manufacturer/exporter, Beijing Branch; China National Manufacturer/ Margin Chemical Construction Corporation, producer/ percentage AVISMA, and three trading companies, Qingdao Branch; Sinchem Qingdao; exporter Interlink, Cometals, and TMC. Sinochem Shandong; Baoding No. 3 We have preliminarily determined Yude Chemical Industry, Co. 0 that dumping margins apply during this Chemical Factory; Jinxing Chemical Zhenxing Chemical Industry, Factory; Mancheng Zinyu Chemical Co...... 0 review period. If these preliminary Factory, Shijiazhuang; Mancheng Xinyu PRC Rate ...... 85.2 results are adopted in our final results Chemical Factory, Bejing; Hainan of administrative review, we will Garden Trading Company; and Notification of Interested Parties instruct the U.S. Customs Service Shunping Lile. (Customs) to assess antidumping duties Parties to the proceeding may request This notice serves as a preliminary equal to the difference between the disclosure within 5 days of the date of reminder to importers of their United States price (USP) and the publication of this notice. Any responsibility under § 353.26 of the normal value (NV). Interested parties are interested party may request a hearing Department’s regulation to file a invited to comment on these within 10 days of publication. Any certificate regarding the reimbursement preliminary results. Parties who submit hearing, if requested, will be held 44 of antidumping duties prior to arguments in this proceeding are days after the publication of this notice liquidation of the relevant entries requested to submit with the argument: or the first workday thereafter. during this review period. Failure to (1) a statement of the issue; and (2) a Interested parties may submit case comply with this requirement could brief summary of the argument. briefs, which should not contain factual result in the Secretary’s presumption EFFECTIVE DATE: May 12, 1997. information not already on the record of that reimbursement of antidumping FOR FURTHER INFORMATION CONTACT: this review, within 30 days of the date duties occurred and the subsequent Amy S. Wei or James Terpstra, Office of of publication of this notice. Rebuttal assessment of double antidumping AD/CVD Enforcement, Office 4, Import briefs, which must be limited to issues duties. Administration, International Trade raised in the case briefs and which This administrative review and notice Administration, U.S. Department of should not contain factual information are in accordance with § 751(a)(1) of the Commerce, 14th Street and Constitution Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25921

Avenue, NW., Washington, DC 20230; gas turbine engines. Imports of titanium unaffiliated U.S. customer and normal telephone (202) 482–4737. sponge are currently classifiable under value on the producer’s (e.g., the harmonized tariff schedule (HTS) AVISMA’s) factors of production. SUPPLEMENTARY INFORMATION: subheading 8108.10.50.10. The HTS Insofar as AVISMA did not make any The Applicable Statute subheading is provided for convenience direct shipments to the United States Unless otherwise indicated, all and U.S. Customs purposes. Our written (see below) and did not have knowledge citations to the Tariff Act of 1930, as description of the scope of this of the ultimate destination of the amended, (the Act) are references to the proceeding is dispositive. merchandise sold through TMC, all provisions effective January 1, 1995, the The period of review (POR) is August relevant sales to the United States are effective date of the amendments made 1, 1995 through July 31, 1996. The captured in our analysis without making to the Act by the Uruguay Rounds review covers one manufacturer/ an affiliation determination. Agreements Act (URAA). In addition, exporter, AVISMA, and three trading unless otherwise indicated, all citations companies, TMC, Interlink, and United States Price (USP) to the Department’s regulations are to Cometals. AVISMA and Cometals the current regulations, as amended by Verification the interim regulations published in the We determined that AVISMA’s and Federal Register on May 11, 1995 (60 As provided in section 782(i) of the Cometals’ exports during the POR FR 25130). Act, we verified the information entered the United States under provided by TMC by using standard temporary importation bonds (TIBs). Background verification procedures, including This entry information was provided to The Department published an examination of relevant sales and the Department by respondents in their antidumping finding on titanium financial records and selection of questionnaire responses and confirmed sponge from the Union of Soviet original documentation containing by Customs. At this time, because Socialist Republics (U.S.S.R.) on August relevant information. Our verification merchandise entered under a TIB is not 28, 1968 (33 FR 12138). In December results are outlined in the public entered for consumption, such 1991, the U.S.S.R. divided into fifteen versions of the verification reports, merchandise is not subject to the independent states. To conform to these which are on file in the public file of the antidumping finding. See Titanium changes, the Department changed the Central Records Unit (Room B–099 in Metals Corp. v. The United States, 901 original antidumping finding into the Department of Commerce). F.Supp 362 (CIT 1995). fifteen findings applicable to the each of Therefore, we determined that Affiliation the former republics of the U.S.S.R. (57 AVISMA and Cometals did not export FR 36070, August 12, 1992). TIMET, a petitioner, alleged that an for consumption any subject The Department published a notice of affiliation existed between TMC and merchandise to the United States during ‘‘Opportunity To Request an AVISMA, within the context of section the review period. If these preliminary Administrative Review’’ of the 771(33) of the Act. TIMET based these results are adopted in our final results antidumping finding from Russia for allegations on newspaper and magazine of review, AVISMA will continue to be this review period on August 12, 1996 articles and TMC’s submissions, which subject to the current Russia-wide cash (61 FR 41768). On August 29, 1996, indicated that TMC and AVISMA may deposit rate of 83.96 percent and AVISMA and Interlink requested that have been connected through a common Cometals will continue to be subject to the Department conduct an entity. TIMET requested that the its current cash deposit rate of 28.31 administrative review of the Department further scrutinize this percent, which are the rates established antidumping finding on titanium relationship and ensure that TMC has in the final results of the most recent sponge from Russia for one fully disclosed its corporate structure. administrative review of titanium manufacturer/exporter, AVISMA, and In response, the Department issued sponge from Russia (61 FR 58525, one trading company, Interlink, several supplemental questionnaires to November 15, 1996). TMC and AVISMA regarding any covering the period August 1, 1995 Interlink and TMC through July 31, 1996. On August 30, relationships that may exist between 1996, TIMET requested that the them within the context of section Interlink and TMC are located in Department conduct an administrative 771(33) of the Act. TMC and AVISMA market-economy countries. For review for AVISMA, Interlink, and both responded to questions regarding purposes of this review, we are another trading company, Cometals. On control and equity in each respective calculating a separate rate for these the same date, Cometals and TMC both company. resellers. In calculating USP for requested that the Department conduct After analyzing the totality of the Interlink and TMC, we used export an administrative review for each responses, we have determined that it is price, as defined in section 772(a) of the respective company. We published a not necessary to address this affiliation Act. For date of sale, we used the sales notice of initiation of the review on issue for the purposes of this review. We invoice date because this is the date September 17, 1996 (61 FR 48882). determined that regardless of whether when the price and quantity are set. We The Department is now conducting any affiliation between TMC and excluded those sales made to the United this administrative review in AVISMA exists, we would perform our States which the respondents identified accordance with section 751 of the Act. calculations and analysis in the same as having entered the United States manner. The relevant transaction for under TIBs. Respondents provided Scope of the Review U.S. price is that of TMC to the first information regarding TIB entries, and The product covered by this unaffiliated customer in the United we were able to confirm this administrative review is titanium States. As with other third-country information through Customs and sponge from Russia. Titanium sponge is resellers in an NME context where, as in National Census Bureau data. chiefly used for aerospace vehicles, this case, the producer does not know We calculated export price based on specifically, in construction of the ultimate destination of the the price to unaffiliated purchasers in compressor blades and wheels, stator merchandise, we will base U.S. price on the United States. We made deductions, blades, rotors, and other parts in aircraft the sale between TMC and its where appropriate, for ocean freight, 25922 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices warehouse expenses, insurance, Act, we valued the factors of production • For factory overhead, we used brokerage and handling, inland freight, as follows (for further discussion, see expense ratios based on elements of and U.S. duty charges. the analysis memorandum for these constructed value data reported in the No other adjustments to USP were preliminary results, on file in the antidumping duty administrative review claimed or allowed. Central Records Unit): of silicon metal from Brazil, covering • To value raw materials, we used Surrogate Country Selection the period July 1, 1995 through June 30, Brazilian import data from the United 1996. In order to calculate expense Section 773(c)(1) of the Act provides Nations Trade Commodity Statistics ratios for selling, general, and that the Department shall determine the (UN Trade Statistics) for January administrative (SG&A) expenses and normal value on the basis of the value through December 1995. We adjusted profit, we calculated simple averages of of the factors of production if (1) the certain factor values to reflect the actual the SG&A and profit ratios taken from subject merchandise is exported from a purity used in the production of the the 1995 financial statements in the non-market economy (NME) country, subject merchandise. For those raw above-named review. and (2) the available information does materials for which we were unable to • For packing materials, we used not permit the calculation of normal obtain public information from Brazil, information provided in the UN Trade value under section 773(a) of the Act. In we used data provided for use in the Statistics from Brazil, covering the previous proceedings, the Department final determination of sales at less than period of January through December has considered Russia an NME country. fair value (LTFV) for pure magnesium 1995. We included surrogate freight See Final Determination of Sales at Less and alloy magnesium from the Russian costs for the delivery of packing Than Fair Value: Pure Magnesium and Federation (magnesium from Russia) materials to the plant reported by the Alloy Magnesium from the Russian and in AVISMA’s March 12, 1997 National Confederation of Transport in Federation (Magnesium), 60 FR 16440 submission. Brazil for 1996. We valued packing (March 30, 1995); Final Determination • To value truck and railcar freight, labor using the same labor rates as used of Sales at Less Than Fair Value: we used the rates reported by the in direct labor above. Ferrovanadium and Nitrided Vanadium National Confederation of Transport in • We included in normal value, from the Russian Federation, 60 FR Brazil for 1996, as identified by the where appropriate, movement expenses 27957 (May 26, 1995). Section American Consular Agency in Belo incurred in bringing the subject 771(18)(C) of the Act states that ‘‘any Horizonte, Brazil. These rates were merchandise from the Russian plant to determination that a foreign country is provided by the distance traveled and, the resellers’ warehouses. We valued a nonmarket economy country shall for truck rates, by the quantity these charges using surrogate data based remain in effect until revoked by the transported. on Brazilian freight costs, where • administering authority.’’ Because this For energy, because there was no appropriate. See Notice of Preliminary NME status has not been revoked for public information available to value Results of the Antidumping Duty Russia, we are considering Russia an the natural gas factor during the POR, Administrative Review of Chrome- NME country for purposes of this we valued the factor using information Plated Lug Nuts from the People’s review. Therefore, because AVISMA is from the UN Trade Statistics, covering Republic of China, August 16, 1995, 60 located in Russia, we are not able to the period January through December FR 42504, 42506. determine normal value on the basis of 1994. Because the value was AVISMA’s costs and prices. Therefore, denominated in U.S. dollars, we did not Currency Conversion we have applied surrogate values to the adjust for the effects of inflation. For We made currency conversions in factors of production to determine electricity, we used the ‘‘large industry accordance with section 773A(a) of the normal value. user’’ rate from Brazil’s electricity tariff Act, based on rates certified by the We calculated normal value based on schedule that AVISMA would have Federal Reserve Bank and Dow Jones factors of production provided by received had it been an electricity Business Information Services. AVISMA, in accordance with section consumer in Brazil during the POR. 773(c)(1) of the Act and 19 CFR 353.52 This decision was based on finding that Preliminary Results of the Department’s regulations. We AVISMA’s level of electricity usage As a result of this review, we determined that Brazil is comparable to during the POR was similar to the preliminarily determine that the the Russian Federation in terms of per profile of ‘‘large industrial user’’ in the following weighted-average dumping capita gross national product (GNP), the final determination of sales at LTFV for margins exist: growth rate in per capita GNP, and the magnesium from Russia. See national distribution of labor. In Magnesium at 16446. To confirm that Manufac- Margin AVISMA would have received this rate, turer/ex- Period addition, Brazil is a significant producer porter (percent) of comparable merchandise. Therefore, we divided the total number of kilowatt in accordance with section 773(c)(4) of hours used during the POR for titanium Interlink the Act, we chose Brazil as a sponge production by the number of Metals comparable surrogate on the basis of the hours in the POR, which demonstrated and above criteria and have used publicly that AVISMA’s kilowatt use was higher Chemi- available information relating to Brazil than the minimum necessary to receive cals, Inc 8/1/95±7/31/96 0.00 to value the various factors of the ‘‘large industrial user’’ rate in effect TMC Trad- ing production. See Memorandum to Holly in Brazil during the POR. • For direct labor, we used the Inter- A. Kuga from David Mueller, Titanium national, Sponge from Russia: Nonmarket unskilled and skilled labor rates based Ltd ...... 8/1/95±7/31/96 0.00 Economy Status and Surrogate Country on information gathered by the Cometals, Selection, October 28, 1996. American Consulate in Sao Paulo, Inc ...... 8/1/95±7/31/96 28.31 Brazil. See Memorandum to The File Russia- Normal Value from Amy S. Wei regarding Surrogate wide To determine the normal value, in Values for Brazilian labor rates, March rate ...... 8/1/95±7/31/96 83.96 accordance with section 773(c)(3) of the 6, 1997. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25923

Parties to this proceeding may request applicable to the Russian supplier of knows of no domestic instrument or disclosure within five days of that exporter. These deposit rates, when apparatus of equivalent scientific value publication of this notice and any imposed, shall remain in effect until to the foreign instrument for the interested party may request a hearing publication of the final results of the applicant’s intended use. within 10 days of publication. Any next administrative review. We know of no other instrument or hearing, if requested, will be held 44 This notice serves as a preliminary apparatus of equivalent scientific value days after the date of publication, or the reminder to importers of their to the foreign instrument which is being first working day thereafter. Interested responsibility under 19 CFR 353.26(b) to manufactured in the United States. parties may submit case briefs and/or file a certificate regarding the Frank W. Creel, written comments no later than 30 days reimbursement of antidumping duties Director, Statutory Import Programs Staff. after the date of publication. Rebuttal prior to liquidation of the relevant [FR Doc. 97–12390 Filed 5–9–97; 8:45 am] briefs and rebuttals to written entries during these review periods. BILLING CODE 3510±DS±P comments, limited to issues raised in Failure to comply with this requirement such briefs or comments, may be filed could result in the Secretary’s no later than 37 days after the date of presumption that reimbursement of DEPARTMENT OF COMMERCE publication. The Department issue the antidumping duties occurred and the final results of the administrative subsequent assessment of double International Trade Administration review, which will include the results of antidumping duties. its analysis of issues raised in any such This administrative review and notice Oregon Graduate Institute of Science written comments or at the hearing, are in accordance with section 751(a)(1) and Technology, et al; Consolidated within 120 days from the date of of the Act (19 U.S.C. 1675(a)(1)). Decision on Applications for Duty-Free publication of these preliminary results. Dated: May 5, 1997. Entry of Scientific Instruments The Department shall determine, and Robert S. LaRussa, Customs shall assess, antidumping This is a decision consolidated duties on all appropriate entries. Acting Assistant Secretary for Import pursuant to Section 6(c) of the Individual differences between USP and Administration. Educational, Scientific, and Cultural NV may vary from the percentages [FR Doc. 97–12202 Filed 5–9–97; 8:45 am] Materials Importation Act of 1966 (Pub. stated above. The Department will issue BILLING CODE 3510±DS±P L. 89–651, 80 Stat. 897; 15 CFR part appraisement instructions directly to 301). Related records can be viewed Customs. The final results of this review between 8:30 a.m. and 5 p.m. in Room shall be the basis for the assessment of DEPARTMENT OF COMMERCE 4211, U.S. Department of Commerce, 14th and Constitution Avenue, NW., antidumping dumping duties on entries International Trade Administration of merchandise covered by the Washington, DC. Comments: None received. Decision: determination and for future deposits of Norfolk State University; Decision on Approved. No instrument of equivalent estimated duties. Application for Duty-Free Entry of scientific value to the foreign Furthermore, the following deposit Scientific Instrument requirements will be effective upon instruments described below, for such completion of the final results of this This decision is made pursuant to purposes as each is intended to be used, administrative review for all shipments section 6(c) of the Educational, is being manufactured in the United of titanium sponge from Russia entered, Scientific, and Cultural Materials States. or withdrawn from warehouse, for Importation Act of 1966 (Pub. L. 89– Docket Number: 96–141. Applicant: consumption on or after the publication 651, 80 Stat. 897; 15 CFR part 301). Oregon Graduate Institute of Science date of the final results of these Related records can be viewed between and Technology, Portland, OR 97291– administrative reviews, as provided by 8:30 a.m. and 5 p.m. in Room 4211, U.S. 1000. Instrument: Stopped-Flow section 751(a)(1) of the Act: (1) The cash Department of Commerce, 14th and Spectrometer, Model SX.18MV. deposit rates for Interlink, TMC, Constitution Avenue, NW., Washington, Manufacturer: Applied Photophysics, Cometals, and AVISMA will be the rates DC. Ltd., United Kingdom. Intended Use: established in the final results of this Docket Number: 97–013. Applicant: See notice at 62 FR 5619, February 6, administrative review; (2) for Norfolk State University, Norfolk, VA 1997. Reasons: The foreign instrument merchandise exported by manufacturers 23504. Instrument: Q-Band ESR provides: (1) Multimixing capability, (2) or exporters not covered in this review Spectrometer with Accessories. a deadtime of 1.2 ms permitting analysis but covered in the original LTFV Manufacturer: Bruker Instruments Inc., of reaction rates to 1500 s±1 and (3) a investigation or a previous review and Germany. Intended Use: See notice at 62 photo-diode array detector. Advice have a separate rate, the cash deposit FR 10543, March 7, 1997. received from: National Institutes of rate will continue to be the most recent Comments: None received. Decision: Health, March 19, 1997. rate published in the final Approved. No instrument of equivalent Docket Number: 97–017. Applicant: determination or final results for which scientific value to the foreign University of California, San Diego, La the manufacturer or exporter received a instrument, for such purposes as it is Jolla, CA 92093–0931. Instrument: Sleep company-specific rate; (3) for Russian intended to be used, is being Recorder, Model Vitaport 2. manufacturers or exporters not covered manufactured in the United States. Manufacturer: TEMEC Instruments BV, in the LTFV investigation or in this or Reasons: The foreign instrument The Netherlands. Intended Use: See prior administrative reviews, the cash provides: (1) A 34 GHz Gunn source (Q- notice at 62 FR 13600, March 21, 1997. deposit rate will continue to be the Band) with 80 mW power, 60 dB +/ Reasons: The foreign instrument Russia-wide rate; and (4) the cash ¥0.2 attenuation, 100 MHz tuning range provides: (1) Electronic measurements deposit rate for non-Russian exporters of and (2) a low temperature Q-Band of electrophysical (e.g. EEG and EOG) subject merchandise from Russia who resonator. A domestic spectrometer and cardiorespiratory (e.g. ECG and were not covered in the LTFV manufacturer advises that (1) these RIP–THOR) parameters and (2) investigation or in this or prior capabilities are pertinent to the minimized weight power consumption administrative reviews will be the rate applicant’s intended purpose and (2) it and physical dimensions appropriate for 25924 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices space flight. Advice received from: Reasons: The foreign instrument SUPPLEMENTARY INFORMATION: National Institutes of Health, March 19, provides: (1) A magnetic sector analyzer Background 1997. with inductively coupled plasma ion Docket Number: 97–020. Applicant: source, (2) sensitivity better than 50 × On August 31, 1992, the Department University of Texas at Austin, Port 106/second/ppm of indium and (3) a published in the Federal Register (57 Aransas, TX 78373. Instrument: IR Mass linear detection range from 0.1 ppt to FR 39392) the countervailing duty Spectrometer, Model DELTAplus. 100 ppm. These capabilities are orders on pure and alloy magnesium Manufacturer: Finnigan MAT, Germany. pertinent to the applicant’s intended from Canada. On August 12, 1996, the Intended Use: See notice at 62 FR purposes and we know of no other Department published a notice of 13600, March 21, 1997. Reasons: The instrument or apparatus of equivalent ‘‘Opportunity to Request an foreign instrument provides: (1) A scientific value to the foreign Administrative Review’’ (61 FR 41771) magnetic sector analyzer with stigmatic instrument which is being of these countervailing duty orders. We focusing, (2) internal precision of 0.006 manufactured in the United States. received timely requests for review from NHCI on August 20, 1996 and from the (2σ) per CO2 ion and (3) absolute Frank W. Creel, Gouvernment du Que´bec (GOQ) on sensitivity of 1500 molecules CO2 per Director, Statutory Import Programs Staff. August 21, 1996 and we initiated these mass 44 ion at the collector. Advice [FR Doc. 97–12391 Filed 5–9–97; 8:45 am] received from: National Institutes of reviews, covering the period January 1, BILLING CODE 3510±DS±P Health, March 19, 1997. 1995 through December 31, 1995, on The National Institutes of Health September 15, 1996 (61 FR 48882). In accordance with 19 CFR 355.22(a), advises in its memoranda that (1) the DEPARTMENT OF COMMERCE capabilities of each of the foreign these reviews cover only the producer instruments described above are International Trade Administration or exporter of the subject merchandise pertinent to each applicant’s intended for which reviews were specifically requested. Accordingly, these reviews purpose and (2) it knows of no domestic [C±122±815] instrument or apparatus of equivalent cover only NHCI. Also, these reviews scientific value for the intended use of Pure Magnesium and Alloy Magnesium cover seventeen programs. On October 30, 1996, the Department each instrument. From Canada; Preliminary Results of issued questionnaires to NHCI, the We know of no other instrument or the Fourth Countervailing Duty Government of Canada (GOC), and the apparatus being manufactured in the Administrative Reviews for the 1995 GOQ. The Department received United States which is of equivalent Period of Review scientific value to any of the foreign questionnaire responses from NHCI, the instruments. AGENCY: Import Administration, GOC and the GOQ on December 3, 1996. Frank W. Creel, International Trade Administration, The Department issued supplemental questionnaires to NHCI and the GOQ on Director, Statutory Import Programs Staff. Department of Commerce. April 10, 1997 and received [FR Doc. 97–12392 Filed 5–9–97; 8:45 am] ACTION: Notice of preliminary results of supplemental questionnaire responses BILLING CODE 3510±DS±P countervailing duty administrative from both parties on April 24, 1997. reviews. Applicable Statute DEPARTMENT OF COMMERCE SUMMARY: The Department of Commerce Unless otherwise indicated, all (the Department) is conducting citations to the statute are references to International Trade Administration administrative reviews of the the provisions of the Tariff Act of 1930, University of Chicago; Decision on countervailing duty orders on pure as amended by the Uruguay Round Application for Duty-Free Entry of magnesium and alloy magnesium from Agreements Act (URAA) effective Scientific Instrument Canada. For information on the net January 1, 1995 (the Act). The subsidy for the reviewed company, as Department is conducting these This decision is made pursuant to well as for all non-reviewed companies, administrative reviews in accordance Section 6(c) of the Educational, please see the Preliminary Results of with section 751(a) of the Act. Scientific, and Cultural Materials Reviews section of this notice. If the Importation Act of 1966 (Pub. L. 89– final results remain the same as these Scope of the Reviews 651, 80 Stat. 897; 15 CFR part 301). preliminary results of administrative The products covered by these Related records can be viewed between reviews, we will instruct the U.S. reviews are pure and alloy magnesium 8:30 a.m. and 5 p.m. in Room 4211, U.S. Customs Service (Customs) to assess from Canada. Pure magnesium contains Department of Commerce, 14th and countervailing duties as detailed in the at least 99.8 percent magnesium by Constitution Avenue, NW., Washington, Preliminary Results of Reviews section weight and is sold in various slab and DC. of this notice. Interested Parties are ingot forms and sizes. Magnesium alloys Docket Number: 97–011. Applicant: invited to comment. (See Public contain less than 99.8 percent The University of Chicago, Chicago, IL Comment section of this notice.) magnesium by weight with magnesium 60637. Instrument: ICP Mass being the largest metallic element in the EFFECTIVE DATE: May 12, 1997. Spectrometer, Model ELEMENT. alloy by weight, and are sold in various Manufacturer: Finnigan MAT, Germany. FOR FURTHER INFORMATION CONTACT: ingot and billet forms and sizes. Intended Use: See notice at 62 FR Sally Hastings or Cynthia Thirumalai, Secondary and granular magnesium are 10543, March 7, 1997. AD/CVD Enforcement, Group 1, Office not included. Pure and alloy magnesium Comments: None received. Decision: 1, Import Administration, International are currently provided for in Approved. No instrument of equivalent Trade Administration, U.S. Department subheadings 8104.11.0000 and scientific value to the foreign of Commerce, 14th Street and 8104.19.0000, respectively, of the instrument, for such purposes as it is Constitution Avenue, NW., Washington, Harmonized Tariff Schedule (HTS). intended to be used, is being DC 20230; telephone: (202) 482–3464 or Although the HTS subheadings are manufactured in the United States. (202) 482–4087, respectively. provided for convenience and Customs Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25925 purposes, our written descriptions of percentage of the cost of certain • Energy Technologies Development the scopes of these proceedings is environmental protection equipment. In Program, dispositive. Magnesium from Canada, we • Transportation Research and determined that NHCI received a Development Assistance Program. Analysis of Programs disproportionately large share of Preliminary Results of Reviews I. Programs Previously Determined to assistance under Article 7. On this basis, Confer Subsidies we determined that the Article 7 grant In accordance with 19 C.F.R. 355.22(c)(4)(ii), we calculated an A. Exemption from Payment of Water was limited to a specific enterprise or industry, or group of enterprises or individual subsidy rate for each Bills producer/exporter subject to these Pursuant to a December 15, 1988 industries. In these reviews, neither the administrative reviews. For the period agreement between NHCI and La Socie´te´ GOQ nor NHCI provided new January 1, 1995 through December 31, du Parc Industriel et Portuaire de information which would warrant 1995, we preliminarily determine the Be´cancour (Industrial Park), NHCI is reconsideration of this determination. net subsidy for NHCI to be 3.18 percent exempt from payment of its water bills. For the reasons set forth in the Final ad valorem. If the final results of these Except for the taxes associated with its Results of the Third Countervailing Duty reviews remain the same as these bills, NHCI does not pay the invoiced Administrative Reviews: Pure preliminary results, the Department amounts of its water bills. Magnesium and Alloy Magnesium from In the Final Affirmative Canada, 62 FR 18749 (April 17, 1997), intends to instruct Customs to assess Countervailing Duty Determinations: we preliminarily determine in these countervailing duties as indicated Pure Magnesium and Alloy Magnesium reviews that the Article 7 assistance above. The Department also intends to from Canada (Magnesium from Canada) received by NHCI was a non-recurring instruct Customs to collect cash 57 FR 30948 (July 13, 1992), the grant because it represented a one-time deposits of estimated countervailing Department determined that the provision of funds. In these reviews, duties as indicated above of the F.O.B. exemption received by NHCI was neither the GOQ nor NHCI provided invoice price on all shipments of the limited to a specific enterprise or new information which would warrant subject merchandise from NHCI entered industry, or group of enterprises or reconsideration of this determination. or withdrawn from warehouse, for industries because no other company We calculated the benefit from the consumption on or after the date of receives such an exemption. In these grant received by NHCI using the publication of the final results of these reviews, neither the GOQ nor NHCI company’s cost of long-term, fixed-rate administrative reviews. Because the URAA replaced the provided new information which would debt as the discount rate and our general rule in favor of a country-wide warrant reconsideration of this declining balance methodology, rate with a general rule in favor of determination. consistent with 19 CFR 355.49. We individual rates for investigated and We preliminarily determine the divided that portion of the benefit reviewed companies, the procedures for countervailable benefit to be the amount allocated to the POR by NHCI’s total establishing countervailing duty rates, NHCI would have paid absent the sales of Canadian-manufactured exemption. To calculate the benefit including those for non-reviewed products on an F.O.B. basis. We companies, are now essentially the same under this program, we divided the preliminarily determine the net subsidy amount NHCI would have paid for as those in antidumping cases, except as provided by this program to be 2.68 provided for in section 777A(e)(2)(B) of water during the POR by NHCI’s total percent ad valorem. POR sales of Canadian-manufactured the Act. The requested reviews will products on an F.O.B. basis. We II. Programs Preliminarily Found Not to normally cover only those companies preliminarily determine that the net be Used specifically named. See 19 CFR 355.22(a). Pursuant to 19 CFR 355.22 subsidy provided by this program is We preliminarily find that NHCI did (g), for all companies for which a review 0.50 percent ad valorem. not apply for or receive benefits under was not requested, duties must be B. Article 7 Grants from the Que´bec the following programs during the POR: • St. Lawrence River Environment assessed at the cash deposit rate, and Industrial Development Corporation Technology Development Program, cash deposits must continue to be The Socie´te´ de De´veloppement Program for Export Market collected, at the rate previously ordered. Industriel du Que´bec (SDI) administers Development, As such, the countervailing duty cash development programs on behalf of the • The Export Development deposit rate applicable to a company GOQ. SDI provides assistance under Corporation, can no longer change, except pursuant Article 7 of the SDI Act in the form of • Canada-Que´bec Subsidiary to a request for a review of that loans, loan guarantees, grants, Agreement on the Economic company. See Federal-Mogul assumptions of costs associated with Development of the Regions of Que´bec, Corporation and The Torrington loans, and equity investments. This • Opportunities to Stimulate Company v. United States, 822 F.Supp. assistance involves projects capable of Technology Programs, 782 (CIT 1993) and Floral Trade Council having a major impact upon the • Development Assistance Program, v. United States, 822 F.Supp. 766 (CIT economy of Que´bec. Article 7 assistance • Industrial Feasibility Study 1993) (interpreting 19 CFR 353.22(e), greater than 2.5 million dollars must be Assistance Program, the antidumping regulation on approved by the Council of Ministers, • Export Promotion Assistance automatic assessment, which is and assistance over 5 million dollars Program, identical to 19 CFR 355.22(g)). becomes a separate budget item under • Creation of Scientific Jobs in Therefore, the cash deposit rates for all Article 7. Assistance provided in such Industries, companies except those covered by amounts must be of ‘‘special economic • Business Investment Assistance these reviews will be unchanged by the importance and value to the province.’’ Program, results of these reviews. (See Magnesium from Canada, 57 FR • Business Financing Program, We will instruct Customs to continue 30949 (July 13, 1992).) • Research and Innovation Activities to collect cash deposits for non- In 1988, NHCI was awarded a grant Program, reviewed companies, except Timminco under Article 7 to cover a large • Export Assistance Program, Limited (which was excluded from the 25926 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices orders during the investigation), at the Dated: May 5, 1997. Round Agreements Act (URAA). In most recent company-specific or Robert S. LaRussa addition, unless otherwise indicated, all country-wide rate applicable to the Acting Assistant Secretary for Import citations to the Department’s regulations company. Accordingly, the cash deposit Administration. are to the current regulations, as rates that will be applied to non- [FR Doc. 97–12204 Filed 5–9–97; 8:45 am] amended by the interim regulations reviewed companies covered by these BILLING CODE 3510±DS±P published in the Federal Register on orders are those established in Pure and May 11, 1995 (60 FR 25130). Alloy Magnesium from Canada: Final Background Results of the First (1992) DEPARTMENT OF COMMERCE Countervailing Duty Reviews (62 FR On January 24, 1997, at Peregrine’s request, the Department revoked in part 13857 (March 24, 1997)). These rates International Trade Administration the antidumping duty order on certain shall apply to all non-reviewed [C±580±602] stainless steel cooking ware from the companies until a review of a company Republic of Korea with regard to assigned these rates is requested. In Certain Stainless Steel Cooking Ware From the Republic of Korea: Initiation stainless steel cooking ware (62 FR addition, for the period January 1, 1995 3662). through December 31, 1995, the and Preliminary Results of Changed Circumstances Countervailing Duty On March 31, 1997, Peregrine assessment rates applicable to all non- subsequently requested that the reviewed companies covered by these Administrative Review, and Intent To Revoke Order In Part Department conduct a changed orders are the cash deposit rates in circumstances administrative review to effect at the time of entry, except for AGENCY: Import Administration, determine whether to partially revoke Timminco Limited (which was International Trade Administration, the countervailing duty order on certain excluded from the orders during the Department of Commerce. stainless steel cooking ware from the original investigation). ACTION: Notice of initiation and Republic of Korea with regard to Public Comment preliminary results of changed stainless steel camping cooking ware (52 circumstances countervailing duty FR 2140, January 20, 1987). In addition, Parties to these proceedings may administrative review, and intent to the petitioner informed the Department request disclosure of the calculation revoke order in part. that it does not object to the changed methodology and interested parties may circumstances review and has no request a hearing not later than 10 days SUMMARY: In response to a request from interest in the importation or sale of after the date of publication of this Peregrine Outfitters, Inc. (Peregrine), a stainless steel camping cooking ware as notice. Interested parties may submit U.S. importer, the Department of described by Peregrine. Commerce (the Department) is initiating written arguments in case briefs on Scope of Review these preliminary results within 30 days a changed circumstances countervailing The merchandise covered by this of the date of publication. Rebuttal duty administrative review and issuing changed circumstances review is briefs, limited to arguments raised in an intent to revoke, in part, the stainless steel camping cooking ware case briefs, may be submitted seven countervailing duty order on certain stainless steel cooking ware from the from the Republic of Korea. This days after the time limit for filing the changed circumstances administrative case brief. Parties who submit an Republic of Korea. Peregrine requested that the Department revoke the order in review covers all manufacturers/ argument in this proceeding are part with regard to imports of stainless exporters of stainless steel cooking ware requested to submit with the argument steel camping cooking ware from the meeting the following specifications of (1) a statement of the issue, and (2) a Republic of Korea, as described by stainless steel camping cooking ware: brief summary of the argument. Any Peregrine. Based on the fact that (1) Made of single-ply stainless steel hearing, if requested, will be held seven Revereware, Inc. (petitioner) has having a thickness no greater than 6.0 days after the scheduled date for expressed no interest in the importation millimeters; and (2) consists of 1.0, 1.5, submission of rebuttal briefs. Copies of of stainless steel camping cooking ware, and 2.0 quart saucepans without case briefs and rebuttal briefs must be as described by Peregrine, we intend to handles and 2.5, 4.0, 5.0 quart served on interested parties in partially revoke this order. saucepans with folding bail handles and accordance with 19 CFR 355.38. EFFECTIVE DATE: May 12, 1997. with lids that also serve as fry pans. Representatives of parties to the This camping cooking ware can be FOR FURTHER INFORMATION CONTACT: proceeding may request disclosure of nested inside each other in order to save Amy S. Wei or James Terpstra, Office 4, proprietary information under space when packing for camping or Office of Antidumping/Countervailing administrative protective order no later backpacking. The order with regard to Duty Enforcement, Import than 10 days after the representative’s imports of other stainless steel cooking Administration, International Trade client or employer becomes a party to ware is not affected by this request. Administration, U.S. Department of the proceeding, but in no event later Commerce, 14th Street and Constitution Initiation and Preliminary Results of than the date the case briefs, under 19 Avenue, NW., Washington, DC. 20230; Changed Circumstances Countervailing CFR 355.38, are due. telephone (202) 482–4737. Duty Administrative Review, and Intent The Department will publish the final to Revoke Order In Part SUPPLEMENTARY INFORMATION: results of these administrative reviews, Pursuant to section 751(d) of the including the results of its analysis of The Applicable Statute and Regulations Tariff Act of 1930, as amended (the Act), issues raised in any case or rebuttal Unless otherwise indicated, all the Department may partially revoke a briefs or at a hearing. citations to the statute are references to countervailing duty order based on a These administrative reviews and the provisions effective January 1, 1995, review under section 751(b) of the Act notice are in accordance with section the effective date of the amendments (i.e., a changed circumstances review). 751(a)(1) of the Act (19 U.S.C. made to the Tariff Act of 1930, as Section 751(b)(1) of the Act requires a 1675(a)(1)). amended (the Act), by the Uruguay changed circumstances administrative Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25927 review to be conducted upon receipt of Public Comment takes of an endangered species for a request containing sufficient Parties to the proceeding may request scientific research purposes. information concerning changed disclosure within 5 days of the date of DATES: Written comments or requests for circumstances. publication of this notice and any a public hearing on either of these The Department’s regulations at 19 interested party may request a hearing applications must be received on or CFR 355.25(d)(2) require that the within 10 days of publication. Any before June 11, 1997. Department conduct a changed hearing, if requested, will be held no ADDRESSES: The applications and circumstances administrative review later than 28 days after the date of related documents are available for under § 355.22(h) based upon available publication of this notice, or the first review in the following offices, by information, including an affirmative working day thereafter. Case briefs and/ appointment: statement of no interest from the or written comments from interested Office of Protected Resources, F/PR3, petitioner in the proceeding. Section parties may be submitted no later than NMFS, 1315 East-West Highway, Silver 355.25(d)(1)(i) further provides that the Spring, MD 20910–3226 (301–713– Department may revoke an order or 14 days after the date of publication of this notice. Rebuttal briefs and rebuttals 1401); and revoke an order in part if it determines Protected Species Division, NMFS, that the order under review is no longer to written comments or briefs, limited to the issues raised in those comments, 777 Sonoma Avenue, Room 325, Santa of interest to interested parties. In Rosa, CA 95404–6528 (707–575–6064). addition, in the event that the may be filed no later than 21 days after the date of publication of this notice. All Written comments or requests for a Department concludes that expedited public hearing should be submitted to action is warranted, § 355.22(h)(4) of the written comments or briefs shall be submitted in accordance with 19 CFR the Protected Species Division in Santa regulations permits the Department to Rosa, CA. combine the notices of initiation and 355.31(e) and shall be served on all SUPPLEMENTARY INFORMATION: preliminary results. interested parties on the Department’s Amy Therefore, in accordance with service list in accordance with 19 CFR Harris requests a permit and CDFG sections 751(b)(1) and 751(d) of the Act, 355.31(g). Persons interested in requests modification 1 to permit 1025 19 CFR 355.25(d), and 355.22(h), we are attending the hearing should contact the under the authority of section 10 of the initiating this changed circumstances Department for the date and time of the Endangered Species Act of 1973 (ESA) administrative review and have hearing. The Department will publish (16 U.S.C. 1531–1543) and the NMFS determined that expedited action is the final results of this changed regulations governing ESA-listed fish warranted. Based on an affirmative circumstances review, including the and wildlife permits (50 CFR parts 217– statement of no interest by petitioner results of its analysis of issues raised in 227). with respect to stainless steel camping any written comments. Amy Harris (P646), in association cooking ware as described by Peregrine, This notice is in accordance with with CSUS, requests a scientific as well as the fact that we have revoked sections 751(b)(1) and (d) of the Act and research permit for a take of juvenile, the antidumping duty order in part with §§ 355.22(h) and 355.25(d) of the endangered, Sacramento River winter- regard to stainless steel camping Department’s regulations. run chinook salmon (Oncorhynchus cooking ware (62 FR 3662, January 24, Dated: May 5, 1997. tshawytscha) associated with a study designed to compare the relative 1997), we have preliminarily Robert S. LaRussa, determined that the portion of the abundance of juvenile chinook salmon Acting Assistant Secretary for Import in restored shallow-water habitats with countervailing duty order on certain Administration. those in naturally-occurring habitats in stainless steel cooking ware from the [FR Doc. 97–12203 Filed 5–9–97; 8:45 am] Republic of Korea concerning stainless the Sacramento-San Joaquin Delta. The BILLING CODE 3510±DS±P steel camping cooking ware, as success of the restoration of these two described in Peregrine’s request for a habitat types will be evaluated. Juvenile, ESA-listed, naturally-produced, winter- changed circumstances review, no DEPARTMENT OF COMMERCE longer is of interest to domestic run chinook salmon are proposed to be interested parties. We have further National Oceanic and Atmospheric captured (with an otter trawl and beach concluded that expedited action is Administration seines), anesthetized, handled, allowed warranted, and are, therefore, to recover from the anesthetic, and combining these notices of initiation [I.D. 050697C] released. Indirect mortalities of juvenile, ESA-listed fish associated with the and preliminary results. We are hereby Endangered Species; Permits notifying the public of our intent to research are also requested. The permit revoke in part the countervailing duty AGENCY: National Marine Fisheries is requested for 1997 only. order as to imports of this type of Service (NMFS), National Oceanic and Permit 1025 authorizes CDFG annual stainless steel camping cooking ware Atmospheric Administration (NOAA), takes of adult and juvenile, endangered, from the Republic of Korea. Commerce. naturally-produced Sacramento River If final revocation in part occurs, we ACTION: Receipt of applications for a winter-run chinook salmon will instruct the U.S. Customs Service to scientific research permit (P646) and (Oncorhynchus tshawytscha) associated end the suspension of liquidation and to modification 1 to scientific research with scientific research. For refund, with interest, any estimated permit 1025 (P622). modification 1, CDFG requests an countervailing duties collected for all increase in the take of juvenile, ESA- unliquidated entries of the subject SUMMARY: Notice is hereby given that listed fish associated with a new study merchandise that are not subject to a Amy Harris, a student of California State to evaluate the timing and relative final results of administrative review. University at Sacramento, CA (CSUS) abundance of juvenile anadromous The current requirement for a cash has applied in due form for a permit and salmonids emigrating to the deposit of estimated countervailing the California Department of Fish and Sacramento-San Joaquin Delta. duties will continue until publication of Game at Sacramento, CA (CDFG) has Specifically, CDFG proposes to monitor the final results of this changed applied in due form for a modification juvenile anadromous fish migration at circumstances review. to a permit providing authorization for Sutter National Wildlife Refuge and at 25928 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices the Colusa Weir on Butte Creek, a ways to enhance the quality, utility, and DEPARTMENT OF DEFENSE tributary of the Sacramento River. This clarity of the information to be information should assist in the collected; and (d) ways to minimize the Department of the Air Force management of Delta water export burden of the information collection on Proposed Collection; Comment operations by providing an early respondents, including through the use Request warning signal of juvenile salmonids of automated collection techniques or entering the Delta. Juvenile, ESA-listed other forms of information technology. AGENCY: Office of Admissions, HQ fish are proposed to be captured, United States Air Force Academy anesthetized, handled, allowed to DATES: Considerations will be given to (USAFA). recover from the anesthetic, and all comments received by July 11, 1997. ACTION: Notice. released. Indirect mortalities of juvenile, ADDRESSES: Written comments and ESA-listed fish associated with the new recommendations on the proposed In compliance with Section study are also requested. Any juvenile, information collection should be sent to: ESA-listed, artificially-propagated, 3506(c)(2)(A) of the Paperwork Department of the Air Force, HQ winter-run chinook salmon taken during Reduction Act of 1995, the Office of USAFA/RRED, Attn: Patricia Marinski, the study will be sacrificed, frozen, and Admissions announces the proposed provided to the U.S. Fish and Wildlife Academy, CO 80840. reinstatement of a public information Service for research. Modification 1 to FOR FURTHER INFORMATION CONTACT: To collection and seeks public comment on permit 1025 is requested for the request more information on this the provisions thereof. Comments are duration of the permit. Permit 1025 proposed information collection or to invited on: (a) Whether the proposed collection of information is necessary expires on June 30, 2001. obtain a copy of the proposal and for the proper performance of the Those individuals requesting a associated collection instruments, functions of the agency, including hearing should set out the specific please write to the above address. reasons why a hearing on either of these whether the information shall have applications would be appropriate (see Title, Associated Form, and OMB practical utility; (b) the accuracy of the ADDRESSES). The holding of such a Number: Air Force Academy Candidate agency’s estimate of the burden of the hearing is at the discretion of the Activities Record, USAFA Form 147, proposed information collection; (c) Assistant Administrator for Fisheries, OMB Number 0701–0063. ways to enhance the quality, utility, and NOAA. All statements and opinions Needs and Uses: The information clarity of the information to be contained in these application collection requirement is necessary to collected; and (d) ways to minimize the summaries are those of the applicants obtain data on candidate’s family and burden of the information collection on and do not necessarily reflect the views personal background for use in respondents, including through the use of automated collection techniques or of NMFS. determining eligibility and selection to other forms of information technology. Dated: May 6, 1997. the Air Force Academy. DATES: Considerations will be given to Nancy Chu, Chief, Affected Public: Individuals or all comments received by July 11, 1997. Endangered Species Division, Office of households. Protected Resources, National Marine ADDRESSES: Written comments and Annual Burden Hours: 3,003. Fisheries Service. recommendations on the proposed [FR Doc. 97–12367 Filed 5-9-97; 8:45 am] Number of Respondents: 4,004. information collection should be sent: BILLING CODE 3510±22±F Responses per Respondent: 1. Department of the Air Force, HQ Average Burden per Response: 30 USAFA/RRED, Attn: Patricia Marinski, Academy, CO 80840. DEPARTMENT OF DEFENSE minutes. FOR FURTHER INFORMATION CONTACT: Frequency: 1. Department of the Air Force To request more information on this SUPPLEMENTARY INFORMATION: proposed information collection or to Proposed Collection; Comment Summary of Information Collection obtain a copy of the proposal and Request associated collection instruments, The information collected on this please write to the above address. AGENCY: Office of Admissions, HQ United States Air Force Academy form is required by 10 U.S.C. 9346. The Title, Associated Form, and OMB (USAFA). respondents are students who are Number: Air Force Academy Request for applying for admission to the United Secondary School Transcript, USAFA ACTION: Notice. States Air Force Academy. Each Form 148, OMB Number 0701–0066. In compliance with Section student’s high school athletic, Needs and Uses: The information 3506(c)(2)(A) of the Paperwork nonathletic, and extracurricular collection requirement is necessary to Reduction Act of 1995, the Office of activities is reviewed to determine obtain data on candidate’s family and Admissions announces the proposed eligibility. If the information on this personal background for use in reinstatement of a public information form is not collected, the individual determining eligibility and selection to collection and seeks public comment on cannot be considered for admittance to the Air Force Academy. the provisions thereof. Comments are the Air Force Academy. Affected Public: Individuals or invited on: (a) Whether the proposed Carolyn A. Lunsford, households. collection of information is necessary Annual Burden Hours: 1,743. for the proper performance of the Air Force Federal Register Liaison Officer. functions of the agency, including [FR Doc. 97–12321 Filed 5–9–97; 8:45 am] Number of Respondents: 3,874. whether the information shall have BILLING CODE 3910±01±P Responses per Respondent: 1. practical utility; (b) the accuracy of the Average Burden per Response: 27 agency’s estimate of the burden of the minutes. proposed information collection; (c) Frequency: 1. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25929

SUPPLEMENTARY INFORMATION: Title, Associated Form, and OMB SUPPLEMENTARY INFORMATION: Exports of Summary of Information Collection Number: Air Force Academy Candidate electricity from the United States to a Personal Data Record, USAFA Form foreign country are regulated and The information collected on this 146, OMB Number 0701–0064. require authorization under section form is required by 10 USC 9346. The Needs and Uses: The information 202(e) of the Federal Power Act (FPA) respondents are students who are collection requirement is necessary to (16 U.S.C. 824a(e)). applying for admission to the United obtain data on candidate’s family and On April 30, 1997, APC filed two States Air Force Academy. Each personal background for use in applications with the Office of Fossil student’s high school academic determining eligibility and selection to Energy (FE) of the Department of Energy performance is reviewed to determine the Air Force Academy. (DOE) for authorization to export eligibility. If the information on this Affected Public: Individuals or electric energy to Mexico (Docket EA– form is not collected, the individual households. 147) and Canada (Docket EA–148) as a cannot be considered for admittance to Annual Burden Hours: 2,088. power marketer, pursuant to section the Air Force Academy. Number of Respondents: 4,176. 202(e) of the FPA. Specifically, APC has Carolyn A. Lunsford, Responses per Respondent: 1. proposed to transmit to Mexico and Air Force Federal Register Liaison Officer. Average Burden per Response: 30 Canada electric energy purchased from [FR Doc. 97–12338 Filed 5–9–97; 8:45 am] minutes. electric utilities and other suppliers Frequency: 1. within the U.S. BILLING CODE 3910±01±M APC would arrange for the exported SUPPLEMENTARY INFORMATION: energy to be transmitted to Mexico over DEPARTMENT OF DEFENSE Summary of Information Collection the international transmission facilities owned by San Diego Gas and Electric, The information collected on this Department of the Air Force El Paso Electric Company, Central form is required by 10 U.S.C. 9346. The Power and Light Company, and Proposed Collection; Comment respondents are students who are Comision Federal de Electracidad. APC Request applying for admission to the United would arrange for the exported energy States Air Force Academy. Each to be transmitted to Canada over the AGENCY: Office of Admissions, HQ student’s personal and family international facilities owned by Basin United States Air Force Academy background is reviewed to determine Electric, Bonneville Power (USAFA). eligibility. If the information on this Administration, Citizens Utilities, ACTION: Notice. form is not collected, the individual Detroit Edison Company, Eastern Maine cannot be considered for admittance to Electric Cooperative, Joint Owners of In compliance with Section the Air Force Academy. the Highgate Project, Maine Electric 3506(c)(2)(A) of the Paperwork Carolyn A. Lunsford, Power Company, Maine Public Service Reduction Act of 1995, the Office of Air Force Federal Register Liaison Officer. Company, Minnesota Power and Light Admissions announces the proposed [FR Doc. 97–12339 Filed 5–9–97; 8:45 am] Company, Minnkota Power Cooperative, reinstatement of a public information BILLING CODE 3910±01±M New York Power Authority, Niagara collection and seeks public comment on Mohawk Power Corporation, Northern the provisions thereof. Comments are States Power and Vermont Electric invited on: (a) Whether the proposed DEPARTMENT OF ENERGY Transmission Company. Each of the collection of information is necessary transmission facilities, as more fully for the proper performance of the [Docket Nos. EA±147 and EA±148] described in these applications, has functions of the agency, including previously been authorized by a whether the information shall have Applications to Export Electric Energy; Presidential permit issued pursuant to practical utility; (b) the accuracy of the Aquila Power Corporation Executive Order 10485, as amended. agency’s estimate of the burden of the AGENCY: Office of Fossil Energy, DOE. Procedural Matters proposed information collection; (c) ACTION: Notice of applications. ways to enhance the quality, utility, and Any persons desiring to become a clarity of the information to be SUMMARY: Aquila Power Corporation party to these proceedings or to be heard collected; and (d) ways to minimize the (APC), a power marketer, has submitted by filing comments or protests to these burden of the information collection on applications to export electric energy to applications should file a petition to respondents, including through the use Mexico and Canada pursuant to section intervene, comment or protest at the of automated collection techniques or 202(e) of the Federal Power Act. address provided above in accordance other forms of information technology. with § 385.211 or § 385.214 of the DATES: Comments, protests or requests FERC’s Rules of Practice and Procedures DATES: Considerations will be given to to intervene must be submitted on or (18 CFR 385.211, 385.214). Fifteen all comments received by July 11, 1997. before June 11, 1997. copies of such petitions and protests ADDRESSES: Written comments and ADDRESSES: Comments, protests or should be filed with the DOE on or recommendations on the proposed requests to intervene should be before the date listed above. Comments information collection should be sent to: addressed as follows: Office of Coal & on APC’s request to export to Mexico Department of the Air Force, HQ Power Im/Ex (FE–52), Office of Fossil should be clearly marked with Docket USAFA/RRED, Attn: Patricia Marinski, Energy, U.S. Department of Energy, EA–147. Comments on APC’s request to Academy, CO 80840. 1000 Independence Avenue, SW., export to Canada should be clearly FOR FURTHER INFORMATION CONTACT: Washington, DC 20585–0350 (FAX 202– marked with Docket EA–148. To request more information on this 287–5736). Additional copies are to be filed directly proposed information collection or to FOR FURTHER INFORMATION CONTACT: with: Steve Hill, Aquila Power obtain a copy of the proposal and William H. Freeman (Program Office) Corporation, P.O. Box 11739, 10700 East associated collection instruments, 202–586–5883 or Michael Skinker 350 Highway, Kansas City, MO 64138, please write to the above address. (Program Attorney) 202–586–6667. Phone: (816) 936–8717 and Fax: (816) 25930 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

936–8775 and Max J. Burbach, Martin J. marketer, pursuant to section 202(e) of DEPARTMENT OF ENERGY Marz, Blackwell Sanders Matheny the FPA. Specifically, UTC has Weary & Lombardi, 8805 Indian Hills proposed to transmit to Canada electric Golden Field Office Notice of Drive, Suite 125, Omaha, Nebraska energy purchased from electric utilities Solicitation for Financial Assistance 68114–4070, Phone: (402) 384–5000 and and other suppliers within the U.S. Applications; Integrated Renewable/ Hydrogen System Fax: (402) 384–5005. UTC would arrange for the exported A final decision will be made on these energy to be transmitted to Canada over AGENCY: Department of Energy. applications after the environmental the international transmission facilities ACTION: Notice of solicitation for impacts have been evaluated pursuant owned by Basin Electric Power to the National Environmental Policy Financial Assistance Applications Cooperative, Bonneville Power Number DE–PS36–97GO10227. Act of 1969 (NEPA), and a Administration, Citizens Utilities, determination is made by the DOE that Detroit Edison Company, Eastern Maine SUMMARY: The Department of Energy the proposed actions will not adversely Electric Cooperative, Joint Owners of (DOE), under authority of Section 2026 impact on the reliability of the U.S. the Highgate Project, Maine Electric of the Energy Policy Act of 1992, Public electric power supply system. Power Company, Maine Public Service Law 102–486, and the Hydrogen Futures Copies of these applications will be Company, Minnesota Power and Light Act of 1996, Public Law 104–271, is made available, upon request, for public Company, Minnkota Power Cooperative, interested in providing assistance for inspection and copying at the address New York Power Authority, Niagara the development of renewable/hydrogen provided above. Mohawk Power Corporation, Northern electric generation systems. The DOE Issued in Washington, DC on May 5, 1997. States Power and Vermont Electric will be requesting applications for Anthony J. Como, Transmission Company. Each of the industry to participate in cost-shared Director, Electric Power Regulation, Office of international transmission facilities, as projects to integrate hydrogen Coal & Power Im/Ex, Office of Coal & Power more fully described in the application, production, storage, and utilization Systems, Office of Fossil Energy. has previously been authorized by a systems with electricity generated from [FR Doc. 97–12355 Filed 5–9–97; 8:45 am] Presidential permit issued pursuant to existing or planned renewable sources. BILLING CODE 6450±01±P Executive Order 10485, as amended. The goal of the solicitation is to provide DOE financial assistance for mid-term (5 Procedural Matters to 10 years) renewable hydrogen system DEPARTMENT OF ENERGY Any persons desiring to become a applications which may lead to the [Docket No. EA±146] party to this proceeding or to be heard installation of larger-scale, privately- by filing comments or protests to this funded integrated systems. The Application To Export Electric Energy; application should file a petition to development of these integrated Utility-Trade Corporation intervene, comment or protest at the hydrogen technologies should address the significant technical issues AGENCY: Office of Fossil Energy, DOE address provided above in accordance with §§ 385.211 or 385.214 of the associated with hydrogen production, AGENCY: Notice of application. FERC’s Rules of Practice and Procedures storage, and utilization technologies. Technology development plans that SUMMARY: Utility-Trade Corporation (18 CFR 385.211, 385.214). Fifteen address key development milestones, (UTC), a power marketer, has submitted copies of such petitions and protests performance goals, and specific an application to export electric energy should be filed with the DOE on or subsystem design objectives need to be to Canada pursuant to section 202(e) of before the date listed above. provided. Associated issues of the Federal Power Act. Additional copies are to be filed intermittency, dispatchability, DATES: Comments, protests or requests directly with: James Keck, The Utility- reliability, life cycle costs, and system to intervene must be submitted on or Trade Corporation 1710, 140–4th Ave. integration of the renewable energy before June 11, 1997. SW., Calgary, Alberta T2P 3N3, Canada, generation source also need to be ADDRESSES: Comments, protests or Phone: (403) 531–2697 and Fax: (403) addressed. It is expected that these requests to intervene should be 531–2695. systems include stand-alone or addressed as follows: Office of Coal & A final decision will be made on this distributed electricity generation, as Power Im/Ex (FE–27), Office of Fossil application after the environmental well as energy storage subsystems, in a Energy, U.S. Department of Energy, impacts have been evaluated pursuant deregulated utility environment. 1000 Independence Avenue, SW., to the National Environmental Policy Consideration of such facilities and Washington, DC 20585–0350 (FAX 202– Act of 1969 (NEPA), and a systems for use in remote, island, and 287–5736). determination is made by the DOE that village power applications is FOR FURTHER INFORMATION CONTACT: the proposed action will not adversely encouraged. Ellen Russell (Program Office) 202–586– impact on the reliability of the U.S. DOE will only make awards to 9624 or Michael Skinker (Program electric power supply system. recipients that are private-sector firms. Attorney) 202–586–6667. Copies of this application will be The recipient can represent a SUPPLEMENTARY INFORMATION: Exports of made available, upon request, for public consortium of entities. These consortia electricity from the United States to a inspection and copying at the address can include public entities, business foreign country are regulated and provided above. partnerships, joint ventures, individual require authorization under section commercial firms, user groups (such as 202(e) of the Federal Power Act (FPA) Issued in Washington, DC on May 7, 1997. investor-owned or municipal electric (16 U.S.C. 824a(e)). Anthony J. Como, utilities), or other business relationships On April 29, 1997, UTC filed an Director, Electric Power Regulation, Office of between such organizations as profit or application with the Office of Fossil Coal & Power Im/Ex, Office of Coal & Power non-profit corporations, educational Energy (FE) of the Department of Energy Systems, Office of Fossil Energy. institutions, etc. All respondents must (DOE) for authorization to export [FR Doc. 97–12356 Filed 5–9–97; 8:45 am] propose to cost-share at least 50% of the electric energy to Canada, as a power BILLING CODE 6450±01±P total project cost from non-federal Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25931 sources. Awards under this solicitation Issued in Golden, Colorado, on May 6, company representatives on May 21 will be cooperative agreements, with a 1997. from approximately 2:15 p.m. to 2:30 term of up to five years. John W. Meeker, p.m. The agenda for the prepatory The project should be conducted in Chief, Procurement, GO. encounter among company two phases. Phase I will include the [FR Doc. 97–12360 Filed 5–9–97; 8:45 am] representatives is to elicit views on the development of a detailed business BILLING CODE 6450±01±P SEQ’s agenda. The agenda for the SEQ plan, development of a conceptual meeting is under the control of the SEQ. system design, and performance of any It is expected the SEQ will adopt the DEPARTMENT OF ENERGY following agenda: required hydrogen technology 1. Adoption of the Agenda validation/testing. A Go/No-Go decision International Energy Agency Meetings will be conducted jointly by the 2. Approval of Summary Record of the applicant and DOE at the end of Phase AGENCY: Department of Energy. 89th Meeting I to determine the merits of proceeding ACTION: Notice of meetings. 3. SEQ Work Program to Phase II. If justified, the project will —The 1997 SEQ Work Program SUMMARY: The Industry Advisory Board proceed to Phase II, which will include —The 1998 SEQ Work Program (IAB) to the International Energy the construction, testing, and initial 4. Policy and Legislative Developments Agency (IEA) will meet May 21–22, in Member Countries operation of the renewable hydrogen 1997, at the IEA’s headquarters in Paris, system. —Energy Policy and Conservation Act France to permit attendance by (EPCA) AVAILABILITY OF THE SOLICITATION: It is representatives of U.S. company —Report on U.S. Department of anticipated that the solicitation will be members of the IAB at a joint meeting Energy Strategic Petroleum Reserve issued in June, 1997, and will contain of the IEA’s Standing Group on Study detailed information on funding, cost Emergency Questions (SEQ) and the —Other Country Developments sharing requirements, eligibility, Standing Group on the Oil Market and 5. Industry Advisory Board application preparation, DOE proposal at a meeting of the SEQ. —Current and Planned IAB Activities evaluation criteria, and the proposal FOR FURTHER INFORMATION CONTACT: 6. Future Strategies for IEA Emergency selection process for awards. Responses Samuel M. Bradley, Acting Assistant Reserves to the solicitation will be due 60 days General Counsel for International and 7. Seminar on IEA Emergency Reserve after solicitation release. To obtain a Legal Policy, Department of Energy, Strategy copy of the solicitation once it is issued, 1000 Independence Avenue, S.W., 8. Emergency Response Reviews of IEA submit a written request to the U.S. Washington, D.C. 20585, 202–586–6738. Countries Department of Energy, Golden Field SUPPLEMENTARY INFORMATION: In —Spain Office, 1617 Cole Boulevard, Golden, accordance with section 252(c)(1)(A)(I) —Portugal CO 80401, Attention: Mr. Matthew of the Energy Policy and Conservation —Japan Barron, Contract Specialist. For Act (42 U.S.C. 6272(c)(1)(A)(I)), the —Austria convenience, requests for the following meeting notices are provided: —Updated Schedule of Reviews solicitation may be faxed to Mr. Barron I. A meeting of the Industry Advisory 9. Review of SEQ Work Schedules at (303) 275–4754. Solicitations may Board (IAB) to the International Energy —Results of Survey also be obtained electronically through Agency (IEA) will be held on May 21, 10. Emergency Reserve Situation of IEA the Golden Field Office Home Page at 1997, at the headquarters of the IEA, 9 Countries http://www.eren.doe.gov/golden/ rue de la Federation, Paris, France, —Emergency Reserve and Net Import solicit.htm, followed, within ten days, beginning at 9:00 a.m. The purpose of Situation of IEA Countries on by written notification of receipt to Mr. the meeting is to permit attendance by October 1, 1996 Barron. All responsible sources may representatives of U.S. company —Emergency Reserve and Net Import submit an application and all timely members of the IAB at a joint meeting Situation of IEA Countries on applications will be considered, subject of the IEA’s Standing Group on January 1, 1997 to the limitations above. Emergency Questions (SEQ) and 11. Emergency Response Issues in IEA Standing Group on the Oil Market Candidate Countries SUPPLEMENTARY INFORMATION: This (SOM). The agenda for the meeting is —The Emergency Reserve Situation of announcement is also intended to under the control of the SEQ and SOM. IEA Candidate Countries encourage owners and operators of It is expected that they will adopt the —Report on Data Reporting by existing or planned renewable energy following agenda: Candidate Countries generation facilities to consider 1. Current Oil Market Situation 12. Emergency Data System and Related submitting applications for integrating 2. Refinery Flexibility: A Hidden Source Questions hydrogen systems with their facilities. It of Oil Security? —Based Period Final Consumption is expected that employment of these 3. The Chinese Energy Situation: Oil (BPFC)—Q495–Q396 integrated systems will lead to many Demand in China —BPFC—Q196–Q496 benefits, including operational and 4. Asian Oil Outlook: An Overview —Monthly Oil Statistics (MOS) environmental advantages. Such II. A meeting of the IAB will be held December 1996 systems are limited to electrolysis and on May 21 and 22, 1997, at the IEA —MOS January 1997 generation system technologies headquarters at the above address, —MOS February 1997 including fuel cells or generator sets, beginning at approximately 2:30 p.m. on —Quarterly Oil Forecast—Q197–Q397 and aqueous/non-aqueous reversible May 21. The purpose of this meeting is 13. IEA Public Information in Oil Crises fuel cell technologies that can be to permit attendance by representatives 14. Emergency Reference Guide integrated with hydrogen storage for of U.S. company members of the IAB at —Update of Emergency Contact load-leveling applications in a meeting of the SEQ which is Points List conjunction with electricity buying and scheduled for this time and location, 15. IEA Dispute Settlement Center selling strategies. including a prepatory encounter among —Panel of Arbitrators 25932 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

16. Any Other Business DEPARTMENT OF ENERGY ‘‘Certificated Rate Filings: Gas Pipeline —Preparations for the IEA Governing Rates’’ (OMB No. 1902–0155) is used by Federal Energy Regulatory Board Meeting at Ministerial Level the Commission to implement the Commission statutory provisions of Title IV of the —Visit of IEA Executive Director to [FERC Form No. 546] Natural Gas Policy Act (NGPA), 15 Saudia Arabia U.S.C. 3301–3432, Public Law 95–621) —Report on Non-Member Countries Proposed Information Collection and and Sections 4, 5, and 16, of the Natural Energy Security Conference of April Request for Comments Gas Act (NGA) (15 U.S.C. 717–717o, 1997 Pub. L. 75–688). These statutory May 7, 1997. provisions require natural gas pipeline —Use of Internet for SEQ Documents AGENCY: Federal Energy Regulatory and Communications companies to obtain Commission Commission. authorization for all rates and charges As provided in section 252(c)(1)(A)(ii) ACTION: Notice of proposed information made, demanded, or in connection with of the Energy Policy and Conservation collection and request for comments. the transportation or sale of natural gas Act (42 U.S.C. 6272(c)(1)(A)(ii)), these SUMMARY: In compliance with the in interstate commerce. The meetings are open only to requirements of Section 3506(c)(2)(a) of Commission is authorized to investigate representatives of members of the IAB the Paperwork Reduction Act of 1995 the rates charged by natural gas pipeline and their counsel, representatives of (Pub. L. 104–13), the Federal Energy companies subject to its investigation. members of the SEQ and SOM and Regulatory Commission (Commission) is The data filed in certificated rate filings representatives of the Departments of soliciting public comment on the are used to implement new or revised Energy, Justice, and State, the Federal specific aspects of the information service proposals for the transportation Trade Commission, the General collection described below. or sale of natural gas and for compliance Accounting Office, Committees of the DATES: Consideration will be given to with subsequent certification orders. Congress, the IEA, and the European comments submitted July 11, 1997. The distinction between FERC–546 and other rate/tariff data collections is that Commission, and invitees of the IAB, ADDRESSES: Copies of the proposed data collected under FERC–546 involve the SEQ, SOM or the IEA. collection of information can be initial service and tariff revisions due to obtained from and written comments Issued in Washington, D.C., May 6, 1997. changes in service rather than changes may be submitted to the Federal Energy Eric J. Fygi, in existing rates. The Commission Regulatory Commission, Attn: Michael implements these filing requirements in Acting General Counsel. Miller, Information Services Division, the Code of Federal Regulations (CFR) [FR Doc. 97–12361 Filed 5–9–97; 8:45 am] ED–12.4, 888 First Street N.E., under 18 CFR 154.4; .7; .202; .205–.206; BILLING CODE 6450±01±P Washington, D.C. 20426. .312; .601–.603. FOR FURTHER INFORMATION CONTACT: Michael Miller may be reached by Action: The commission is requesting telephone at (202) 208–1415, by fax at a three-year extension of the current (202) 273–0873, and by e-mail at expiration date, with no changes to the [email protected]. existing collection of data. SUPPLEMENTARY INFORMATION: the Burden Statement: Public reporting information collected under the burden for this collection is estimated requirements of FERC Form No. –546 as:

Number of Number of Average burden Total annual respondents responses per hours per burden hours annually respondent response × × (1) (2) (3) (1) (2) (3)

100 4 400 16,000

Estimated cost burden to respondents: data sources; (6) completing and Comments are invited on: (1) Whether 16,000 hours/2,087 hours per year × reviewing the collection of information; the proposed collection of information $104,350 per year = $800,000. The cost and (7) transmitting, or otherwise is necessary for the proper performance per respondent is equal to $8,000. disclosing the information. of the functions of the Commission, The reporting burden includes the The estimate of cost for respondents including whether the information will total time, effort, or financial resources is based upon salaries for professional have practical utility; (2) the accuracy of expended to generate, maintain, retain, the agency’s estimate of the burden of and clerical support, as well as direct disclose, or provide the information the proposed collection of information, and indirect overhead costs. Direct costs including: (1) Reviewing instructions; including the validity of the include all costs directly attributable to (2) developing, acquiring, installing, and methodology and assumptions used; (3) utilizing technology and systems for the providing this information, such as ways to enhance the quality, utility and purposes of collecting, validating, administrative costs and the cost for clarity of the information to be verifying, processing, maintaining, information technology. Indirect or collected; and (4) ways to minimize the disclosing and providing information; overhead costs are costs incurred by an burden of the collection of information (3) adjusting the existing ways to organization in support of its mission. on those who are to respond, including comply with any previously applicable These costs apply to activities which the use of appropriate automated, instructions and requirements; (4) benefit the whole organization rather electronic, mechanical, or other training personnel to respond to a than any one particular function or technological collection techniques or collection of information; (5) searching activity. other forms of information technology Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25933 e.g. permitting electronic submission of 002, RP97–178–003, RP97–154–003, RP97– Commission’s directives in Order No. responses. 140–003, RP97–152–002, RP97–151–002, 587–C, to be effective August 1, 1997 RP97–59–004, RP97–176–002, RP97–73–004, Lois D. Cashell, and November 1, 1997. RP97–155–002, RP97–19–005, RP97–1–007, Secretary. RP97–64–005, RP97–105–002, RP97–61–004, On March 4, 1997, the Commission [FR Doc. 97–12399 Filed 5–9–97; 8:45 am] RP97–22–006, RP97–17–005, RP97–134–004, issued a Final Rule in Docket No. BILLING CODE 6717±01±M RP97–136–002, RP97–4–007, RP97–150–003, RM96–1–004, Order No. 587–C, to RP97–169–002, RP97–109–004, RP97–224– amend its regulations by incorporating 004, RP97–138–003, RP97–182–003, RP97– by reference additional standards DEPARTMENT OF ENERGY 137–003, RP97–177–002, RP97–68–003, promulgated by the Gas Industry RP97–143–002, RP97–60–004, RP97–3–006, Standards Board (GISB). These Federal Energy Regulatory RP97–164–002, RP97–54–003, RP97–237– 003, RP97–18–006, RP97–6–006, RP97–168– standards require interstate natural gas Commission 002, RP97–146–002, RP97–156–003, RP97– pipelines to publish specific 160–002, RP97–163–002, RP97–67–003, information on Internet Web pages and Standards for Business Practices of RP97–62–003, and RP97–93–004 (Not to follow certain new and revised Interstate Natural Gas Pipelines; Consolidated); Algonquin Gas Transmission business practice procedures. The Notice of Compliance Filings Company, ANR Pipeline Company, ANR Commission directed pipelines to make [Docket No. RM96±1±004 (Order No. 587± Storage Company, Arkansas Western Pipeline pro forma tariff filings to implement the C)] Company, Black Marlin Pipeline Company, business practice standards by May 1, Blue Lake Gas Storage Company, Canyon May 6, 1997. Creek Compression Company, Caprock 1997. Take notice that on March 4, 1997, the Pipeline Company, Carnegie Interstate Each applicant states that its filing Commission issued a Final Rule in Pipeline Company, Colorado Interstate Gas complies with the Commission’s Order Docket No. RM96–1–004, Order No. Company, Columbia Gas Transmission No. 587–C in Docket No. RM96–1–004. 587–C (62 FR 10684, March 10, 1997), Corporation, Columbia Gulf Transmission Each applicant states that copies of Company, Cove Point LNG Limited the filing have been mailed to all to amend its regulations by Partnership, Crossroads Pipeline Company, incorporating by reference additional East Tennessee Natural Gas Company, El affected customers and state regulatory standards promulgated by the Gas Paso Natural Gas Company, Equitrans, Inc., commissions. Industry Standards Board (GISB). These Florida Gas Transmission Company, Garden The above-referenced dockets are standards require interstate natural gas Banks Gas Pipeline, LLC, Gas Transport Inc., being noticed together due to the large pipelines to publish specific Gasdel Pipeline System, Inc., Great Lakes Gas number of filings received. The filings information on Internet Web pages and Transmission Limited Partnership, High are not being consolidated. Any party Island Offshore System, Iroquois Gas who wishes to file a protest must file a to follow certain new and revised Transmission System, L. P., K N Interstate business practice procedures. The Gas Transmission Co., K N Wattenberg separate protest for each docket. Commission directed pipelines to make Transmission Limited Liability Company, Any person desiring to protest said pro forma tariff filings to implement the Kentucky West Virginia Gas Company, Kern filings should file a protest with the business practice standards by May 1, River Gas Transmission Company, Koch Federal Energy Regulatory Commission, 1997. Gateway Pipeline Company, Louisiana- 888 First Street, N.E., Washington, D.C. Due to the large number of filings that Nevada Transit Company, Michigan Gas 20426, in accordance with Section were received, the filings are being Storage Company, Mid Louisiana Gas 385.211 of the Commissions Rules and noticed together. The filings are not Company, Midwestern Gas Transmission Company, MIGC, Inc., Mississippi River Regulations. All such protests must be being consolidated. Algonquin Gas Transmission Corporation, Mobile Bay filed on or before May 22, 1997. Protests Transmission Company, Docket No. Pipeline Company, Mojave Pipeline will be considered by the Commission RP97–5–006, is the lead docket under Company, Natural Fuel Gas Supply in determining the appropriate action to which all the filings are listed. Corporation, Natural Gas Pipeline Company be taken, but will not serve to make Lois D. Cashell, of America, Nora Transmission Company, protestants parties to the proceedings. NorAm Gas Transmission Company, Secretary. Copies of the filings are on file with the Northern Border Pipeline Company, [FR Doc. 97–12303 Filed 5–9–97; 8:45 am] Northern Natural Gas Company, Pacific Gas Commission and are available for public BILLING CODE 6717±01±M Transmission System, Paiute Pipeline inspection in the Public Reference Company, Panhandle Eastern Pipe Line Room. Company, Richfield Gas Storage System, Lois D. Cashell, DEPARTMENT OF ENERGY Riverside Pipeline Company, L.P., Sabine Secretary. Pipe Line Company, Sea Robin Pipeline [FR Doc. 97–12307 Filed 5–9–97; 8:45 am] Federal Energy Regulatory Company, Shell Gas Pipeline Company, Commission South Georgia Natural Gas Company, BILLING CODE 6717±01±M Southern Natural Gas Company, Steuben Gas [Docket Nos. RP97±5±006 et al.] Storage Company, Stingray Pipeline Company, T C P Gathering Co., Tennessee DEPARTMENT OF ENERGY Algonquin Gas Transmission Co. et al.; Gas Pipeline Company, Texas Eastern Notice of Proposed Changes in FERC Transmission Corporation, Texas-Ohio Federal Energy Regulatory Gas Tariff Pipeline, Inc., Trailblazer Pipeline Company, Commission TransColorado Gas Transmission Company, May 6, 1997. Transwestern Pipeline Company, Truckline [Docket No. ER97±2153±000] In the matter of: RP97–171–004, RP97– Gas Company, Tuscarora Gas Transmission 172–003, RP97–187–004, RP97–110–002, Company, U–T Offshore System, Viking Gas Transmission Company, Western Gas Amerada Hess Corporation; Notice of RP97–170–003, RP97–66–004, RP97–139– Issuance of Order 002, RP97–173–003, RP97–63–003, RP97– Interstate Company, WestGas Interstate, Inc., Williams Natural Gas Company, Wyoming 167–003, RP97–166–003, RP97–162–002, May 7, 1997. RP97–145–002, RP97–58–004, RP97–20–005, Interstate Company, Ltd., and Young Gas RP97–114–003, RP97–21–004, RP97–310– Storage Company, Ltd. Amerada Hell Corporation (Amerada 001, RP97–157–003, RP97–295–001, RP97– Take notice that the applicants Hess) submitted for filing a rate 141–003, RP97–147–002, RP97–161–004, referenced above tendered for filing pro schedule under which Amerada Hess RP97–142–003, RP97–144–002, RP97–104– forma tariff sheets to comply with the will engage in wholesale electric power 25934 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices and energy transactions as a marketer. DEPARTMENT OF ENERGY paragraph (B) of the Commission’s Amerada Hess also requested waiver of orders issued November 15, 1996 at various Commission regulations. In Federal Energy Regulatory Docket No. RP97–20–000 and February particular, Amerada Hess requested that Commission 13, 1997 at Docket Nos. RP97–20–001, the Commission grant blanket approval et al., tendered for filing as part of its Canyon Creek Compression Company; FERC Gas Tariff, Volumes Nos. 1, 1–A, under 18 CFR part 34 of all future Notice of Compliance Filing issuances of securities and assumptions and 2, certain tariff sheets, with a of liability by Amerada Hess. [Docket No. RP97±66±005] proposed effective date of June 1, 1997. El Paso states that the tariff sheets are On May 1, 1997, pursuant to May 6, 1997. being tendered to implement the Gas delegated authority, the Director, Take notice that on May 2, 1997, Industry Standards Board Standards Division of Applications, Office of Canyon Creek Compression Company which the Commission adopted to Electric Power Regulation, granted (Canyon) tendered for filing as part of its standardize business practices and requests for blanket approval under part FERC Gas Tariff, Third Revised Volume procedures governing transactions 34, subject to the following: No. 1, certain tariff sheets to be effective between interstate gas pipelines, their May 1, 1997. customers, and others doing business Within thirty days of the date of the Canyon states that the purpose of the with the pipelines. order, any person desiring to be heard filing is to comply with the Federal El Paso states that copies of the filing or to protest the blanket approval of Energy Regulatory Commission’s order were served upon all parties of record issuances of securities or assumptions of issued on April 17, 1997 in Docket Nos. in this proceeding. liability by Amerada Hess should file a RP97–66–001, et al., regarding Any person desiring to protest said motion to intervene or protest with the compliance with Order No. 587. Federal Energy Regulatory Commission, Canyon states that copies of the filing filing should file a protest with the 888 First Street, N.E., Washington, D.C. have been served on its jurisdictional Federal Energy Regulatory Commission, 20426, in accordance with Rules 211 customers, interested state 888 First Street, NE., Washington, DC 20426, in accordance with Section and 214 of the Commission’s Rules of commissions, and all parties set out on 385.211 of the Commission’s Rules and Practice and Procedure (18 CFR 385.211 the official service list at Docket No. Regulations. All such protests must be and 385.214). RP97–66. Any person desiring to protest said filed in accordance with Section Absent a request for hearing within filing should file a protest with the 154.210 of the Commission’s this period, Amerada Hess is authorized Federal Energy Regulatory Commission, Regulations. Protests will be considered to issue securities and assume 888 First Street, NE., Washington, DC by the Commission in determining the obligations or liabilities as a guarantor, 20426, in accordance with Section appropriate action to be taken, but will endorser, surety, or otherwise in respect 385.211 of the Commission’s Rules and not serve to make protestants parties to of any security of another person; Regulations. All such protests must be the proceeding. Copies of this filing are provided that such issuance or filed as provided in Section 154.210 of on file with the Commission and are assumption is for some lawful object the Commission’s Regulations. Protests available for public inspection in the within the corporate purposes of the will be considered by the Commission Public Reference Room. applicant, and compatible with the in determining the appropriate action to Lois D. Cashell, public interest, and is reasonably be taken, but will not serve to make Secretary. necessary or appropriate for such protestants parties to the proceeding. [FR Doc. 97–12309 Filed 5–9–97; 8:45 am] purposes. Copies of this filing are on file with the BILLING CODE 6717±01±M The Commission reserves the right to Commission and are available for public require a further showing that neither inspection in the Public Reference Room. DEPARTMENT OF ENERGY public nor private interests will be Lois D. Cashell, adversely affected by continued Federal Energy Regulatory Secretary. approval of Amerada Hess’s issuances of Commission securities or assumptions of liability. [FR Doc. 97–12311 Filed 5–9–97; 8:45 am] [Docket No. RP97±19±004] Notice is hereby given that the BILLING CODE 6717±01±M deadline for filing motions to intervene Mojave Pipeline Company; Notice of or protests, as set forth above, is June 2, DEPARTMENT OF ENERGY Compliance Filing 1997. Copies of the full text of the order are available from the Commission’s Federal Energy Regulatory May 6, 1997. Public Reference Branch, 888 First Commission Take notice that on May 1, 1997, Street, N.E., Washington, D.C. 20426. Mojave Pipeline Company (Mojave) [Docket No. RP97±20±006] tendered for filing and acceptance, Lois D. Cashell, pursuant to Subpart C of 154 of the El Paso Natural Gas Company; Notice Secretary. Commission’s Regulations Under the of Compliance Filing [FR Doc. 97–12400 Filed 5–9–97; 8:45 am] Natural Gas Act and in compliance with BILLING CODE 6717±01±M May 6, 1997. the Commission’s orders issued Take notice that on May 1, 1997, El November 15, 1996, at Docket No. Paso Natural Gas Company (El Paso) RP97–19–000 and February 18, 1997, at tendered for filing and acceptance, Docket Nos. RP97–19–001, et al., the pursuant to Subpart C of 154 of the following tariff sheets to Mojave’s FERC Federal Energy Regulatory Gas Tariff, First Revised Volume No. 1, Commission’s (Commission) with an effective date of June 1, 1997: Regulations Under the Natural Gas Act First Revised Sheet No. 22 and in compliance with ordering First Revised Sheet No. 29 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25935

First Revised Sheet No. 30 America (Natural), 701 East 22nd Street, authorization pursuant to Section 7 of First Revised Sheet No. 31 Lombard, Illinois 60148, filed in Docket the Natural Gas Act. Original Sheet No. 31A No. CP97–441–000 a request pursuant to First Revised Sheet No. 32 Lois D. Cashell, First Revised sheet No. 34 §§ 157.205, and 157.212 of the Secretary. First Revised Sheet No. 35 Commission’s Regulations under the [FR Doc. 97–12305 Filed 5–9–97; 8:45 am] Natural Gas Act (18 CFR 157.205 and First Revised Sheet No. 38 BILLING CODE 6717±01±M Original Sheet No. 38A 157.212) for approval and permission to First Revised Sheet No. 52 operate a delivery tap for Amoco Gas First Revised Sheet No. 58 Company (Amoco), an intrastate DEPARTMENT OF ENERGY First Revised Sheet No. 63 pipeline company, previously First Revised Sheet No. 102 constructed and operated under Section First Revised Sheet No. 103 Federal Energy Regulatory Original Sheet No. 103A 311(a)(1) of the Natural Gas Policy Act, Commission First Revised Sheet No. 110 under the blanket certificate issued in Docket No. CP86–582–000, pursuant to Second Revised Sheet No. 111 [Docket No. RP97±179±004] First Revised Sheet No. 112 Section 7(c) of the Natural Gas Act First Revised Sheet No. 113 (NGA), all as more fully set forth in the Ozark Gas Transmission System; Second Revised Sheet No. 117 request which is on file with the Notice of Proposed Changes in FERC Original sheet No. 117A Commission and open to public First Revised Sheet No. 132 Gas Tariff First Revised Sheet No. 134 inspection. First Revised Sheet No. 135 Natural states that it proposed to May 6, 1997. operate existing delivery facilities that Mojave states that the tariff sheets are Take notice that on May 1, 1997, interconnect Amoco with Natural’s Old being tendered to implement the Gas Ozark Gas Transmission System (Ozark) Ocean 14-inch lateral located in Industry Standards Board Standards tendered for filing as part of its FERC Brazoris County, Texas, which Natural which the Commission adopted to Gas Tariff, First Revised Volume No. 1, has previously used under Subpart B or standardize business practices and the tariff sheets listed on Appendix A to Part 284 of the Commission’s procedures governing transactions the filing, with an effective date of June Regulations for transportation services between interstate gas pipelines, their 1, 1997. to Amoco. By this application Natural customers, and others doing business seeks authorization for jurisdictional In Order No. 587–C, the Commission with the pipelines. transportation services, including amended its open-access regulations to Mojave states that copies of the filing incorporate by reference standards that were served upon all parties of record services under Subpart G of Part 284 of the Commission’s Regulations. Natural require interstate natural gas pipelines in this proceeding. to publish specified information on Any person desiring to protest said asserts that the total volume of natural gas to be delivered to this delivery point Internet Web pages and to follow certain filing should file a protest with the new and revised business practice Federal Energy Regulatory Commission, after the facilities are authorized to provide jurisdictional services will not procedures covering nominations and 888 First Street, NE., Washington, DC flowing gas. 20426, in accordance with Section exceed the total volumes available prior 385.211 of the Commission’s Rules and to such authorization. Natural states that Ozark states that the tariff sheets Regulations. All such protests must be it is currently providing firm submitted herewith set forth the filed in accordance with Section transportation at this delivery point revisions to Ozark’s tariff that are 154.210 of the Commission’s under Natural’s Rate Schedule FTS. necessary to comply with Order No. Regulations. Protests will be considered Natural further asserts that it has 587–C. by the Commission in determining the sufficient capacity to provide this Ozark states that copies of this filing appropriate action to be taken, but will service at this delivery point without are being served on all jurisdictional not serve to make protestants parties to detriment or disadvantage to Natural’s customers and applicable state the proceeding. Copies of this filing are peak day or annual delivery capability regulatory agencies. and can deliver up to approximately on file with the Commission and are Any person desiring to protest this available for public inspection in the 1,000 MMBtu per day of natural gas to AMOCO. filing should file a protest with the Public Reference Room. Federal Energy Regulatory Commission, Any person or the Commission’s Staff Lois D. Cashell, 888 First Street, N.E., Washington, D.C. may, within 45 days after the issuance Secretary. 20426, in accordance with Section of the instant notice by the Commission, [FR Doc. 97–12308 Filed 5–9–97; 8:45 am] 385.211 of the Commission’s Rules and file pursuant to Rule 214 of the BILLING CODE 6717±01±M Regulations. All such protests must be Commission’s Rules of Practice and filed in accordance with Section Procedure (18 CFR 385.214), a motion to 154.210 of the Commission’s intervene or notice of intervention and DEPARTMENT OF ENERGY Regulations. Protests will be considered pursuant to Section 157.205 of the by the Commission in determining the Regulations under the Natural Gas Act Federal Energy Regulatory appropriate action to be taken, but will (18 CFR 157.205), a protest to the Commission not serve to make protestants parties to request. If no protest is filed within the the proceeding. Copies of this filing are [Docket No. CP97±441±000] time allowed therefore, the proposed on file with the Commission and are activities shall be deemed to be Natural Gas Pipeline Company of available for public inspection in the authorized effective the day after the America; Notice of Request Under Public Reference Room. Blanket Authorization time allowed for filing a protest. If a protest is filed and not withdrawn 30 Lois D. Cashell, May 6, 1997. days after the time allowed for filing a Secretary. Take notice that on May 1, 1997, protest, the instant request shall be [FR Doc. 97–12290 Filed 5–9–97; 8:45 am] Natural Gas Pipeline Company of treated as an application for BILLING CODE 6717±01±M 25936 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

DEPARTMENT OF ENERGY Public Reference Branch, 888 First Notice is hereby given that the Street, NE., Washington, DC 20426. deadline for filing motions to intervene Federal Energy Regulatory Lois D. Cashell, or protests, as set forth above, is May 27, Commission Secretary. 1997. Copies of the full text of the order [FR Doc. 97–12402 Filed 5–9–97; 8:45 am] are available from the Commission’s Public Reference Branch, 888 First [Docket No. ER97±2198±000] BILLING CODE 6717±01±M Street, N.E. Washington, D.C. 20426. Poco Marketing Ltd., Notice of Lois D. Cashell, Issuance of Order DEPARTMENT OF ENERGY Secretary. [FR Doc. 97–12401 Filed 5–9–97; 8:45 am] May 7, 1997. Federal Energy Regulatory BILLING CODE 6717±01±M Poco Marketing Ltd. (Poco Marketing) Commission submitted for filing a rate schedule [Docket No. ER97±2197±000] under which Poco Marketing will DEPARTMENT OF ENERGY engage in wholesale electric power and Poco Petroleum, Inc.; Notice of energy transactions as a marketer. Poco Federal Energy Regulatory Issuance of Order Commission Marketing also requested waiver of various Commission regulations. In May 7, 1997. [Docket No. RP97±182±004] particular, Poco Marketing requested Poco Petroleum, Inc. (Poco Petroleum) that the Commission grant blanket submitted for filing a rate schedule South Georgia Natural Gas Company; approval under 18 CFR part 34 of all under which Poco Petroleum will Notice of Proposed Changes to FERC future issuances of securities and engage in wholesale electric power and Gas Tariff energy transactions as a marketer. Poco assumptions of liability by Poco May 6, 1997. Petroleum also requested waiver of Marketing. Take notice that on May 2, 1997, various Commission regulations. In On April 25, 1997, pursuant to South Georgia Natural Gas Company particular, Poco Petroleum requested delegated authority, the Director, (South Georgia) tendered for filing as that the Commission grant blanket Division of Applications, Office of part of its FERC Gas Tariff, Second approval under 18 CFR part 34 of all Electric Power Regulation, granted Revised Volume No. 1, the following future issuances of securities and requests for blanket approval under part revised Tariff sheet in compliance with assumptions of liability by Poco 34, subject to the following: the Commission’s Order No. 587–B and Petroleum. the Commission’s March 4, 1997 Order Within thirty days of the date of the On April 25, 1997, pursuant to in this docket, to become effective June order, any person desiring to be heard delegated authority, the Director, 1, 1997: or to protest the blanket approval of Division of Applications, Office of issuances of securities or assumptions of Electric Power Regulation, granted Eighth Revised Sheet No. 5. liability by Poco Marketing should file requests for blanket approval under part On July 17, 1996, the Commission a motion to intervene or protest with the 34, subject to the following: issued Order No. 587 in Docket No. Federal Energy Regulatory Commission, Within thirty days of the date of the RM96–1–000 which revised the 888 First Street, NE., Washington, DC order, any person desiring to be heard Commission’s regulations governing 20426, in accordance with Rules 211 or to protest the blanket approval of interstate natural gas pipelines to and 214 of the Commission’s Rules of issuances of securities or assumptions of require such pipelines to follow certain Practice and Procedure (18 CFR 385.211 liability by Poco Petroleum should file standardized business practices issued and 385.214). a motion to intervene or protest with the by the Gas Industry Standards Board Absent a request for hearing within Federal Energy Regulatory Commission, (GISB) and adopted by the Commission this period, Poco Marketing is 888 First Street, N.E., Washington, D.C. in said Order. 18 CFR 284.10(b). authorized to issue securities and 20426, in accordance with Rules 211 On December 4, 1996, South Georgia assume obligations or liabilities as a and 214 of the Commission’s Rules of made its compliance filing submitting guarantor, endorser, surety, or otherwise Practice and Procedure (18 CFR 385.211 pro forma tariff sheets to comply with in respect of any security of another and 385.214). Order No. 587. On March 4, 1997, the person; provided that such issuance or Absent a request for hearing within Commission issued an order in this assumption is for some lawful object this period, Poco Petroleum is docket in response to South Georgia’s within the corporate purposes of the authorized to issue securities and filing. The order required South Georgia applicant, and compatible with the assume obligations or liabilities as a to revise and submit its compliance public interest, and is reasonably grantor, endorser, surety, or otherwise filing for implementation of the necessary or appropriate for such in respect of any security of another approved standards by June 1, 1997. purposes. person; provided that such issuance or South Georgia submitted its compliance assumption is for some lawful object filing on April 15, 1997, but requested The Commission reserves the right to within the corporate purposes of the a waiver not to implement Version 1.1 require a further showing that neither applicant, and compatible with the of Standard 5.3.22 on the basis that the public nor private interests will be public interest, and is reasonably Commission subsequently approved a adversely affected by continued necessary or appropriate for such revised version of the standard which approval of Poco Marketing’s issuances purposes. matched South Georgia’s current of securities or assumptions of liability. The Commission reserves the right to practice for calculating maximum daily Notice is hereby given that the require a further showing that neither reservation rates on a volumetric basis deadline for filing motions to intervene public nor private interests will be for releases of firm service. Rather than or protests, as set forth above, is May 27, adversely affected by continued implement a change for a very short 1997. Copies of the full text of the order approval of Poco Petroleum’s issuances time, South Georgia proposed making a are available from the Commission’s of securities or assumptions of liability. filing to implement Version 1.1 of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25937

Standard 5.3.22 on June 1, 1997, which 587. On February 13, 1997, the Tennessee submits that the revised is earlier than the November 1, 1997 Commission issued an order in this tariff sheet reflects the changes to deadline. The revised sheet listed above docket in response to Southern’s filing. Tennessee’s tariff required by the Letter reflects revised Standard 5.3.22. The order required Southern to revise Order. Specifically, the tariff sheet Any person desiring to protest this and submit its compliance filing for conforms Article III, Section 10 of the filing should file a protest with the implementation of the approved General Terms and Conditions (GT&C) Federal Energy Regulatory Commission, standards by June 1, 1997. of Tennessee’s tariff to Article XXVIII, 888 First Street, NE., Washington, DC Southern submitted its compliance Section 5 of the GT&C with regards to 20426, in accordance with Rule 211 and filing on April 7, 1997, but requested a the net present value evaluation of 214 of the Commission’s Rules of waiver not to implement Version 1.1 of negotiated rate bids. Practice and Procedures (18 CFR Standard 5.3.22 on the basis that the Any person desiring to protest this Section 385.211). All such protests must Commission subsequently approved a filing should file a protest with the be filed in accordance with Section revised version of the standard which Federal Energy Regulatory Commission, 154.210 of the Commission’s matched Southern’s current practice for 888 First Street NE., Washington, DC Regulations. Protests will be considered calculating maximum volumetric 20426, in accordance with 18 CFR by the Commission in determining the reservation rates for releases of firm 385.211 of the Commission’s Rules and appropriate action to be taken, but will service. Rather than implement a change Regulations. All such protests must be not serve to make protestants parties to for a very short time, Southern stated filed as provided in Section 154.210 of the proceeding. Copies of this filing are that it would make a filing to implement the Commission’s Regulations. Protests on file with the Commission and are Version 1.1 of Standard 5.3.22 on June will be considered by the Commission available for public inspection in the 1, 1997, which is earlier than the in determining the appropriate action to Public Reference Room. November 1, 1997 deadline. The revised be taken, but will not serve to make Lois D. Cashell, sheets listed above reflects revised protestants parties to this proceeding. Copies of this filing are on file with the Secretary. Standard 5.3.22. Any person desiring to protest this Commission and available for public [FR Doc. 97–12289 Filed 5–9–97; 8:45 am] inspection in the Public Reference BILLING CODE 6717±01±M filing should file a protest with the Federal Energy Regulatory Commission, Room. 888 First Street, NE., Washington, DC Lois D. Cashell, DEPARTMENT OF ENERGY 20426, in accordance with Rule 211 of Secretary. the Commission’s Rules of Practice and [FR Doc. 97–12306 Filed 5–9–97; 8:45 am] Federal Energy Regulatory Procedures (18 CFR 385.211). All such BILLING CODE 6717±01±M Commission protests must be filed in accordance with Section 154.210 of the [Docket No. RP97±137±004] Commission’s Regulations. Protests will DEPARTMENT OF ENERGY Southern Natural Gas Company; be considered by the Commission in determining the appropriate action to be Federal Energy Regulatory Notice of Proposed Changes to FERC Commission Gas Tariff taken, but will not serve to make protestants parties to the proceeding. [Docket No. RP97±54±004] May 6, 1997. Copies of this filing are on file with the Take notice that on May 2, 1997, Commission and are available for public Trailblazer Pipeline Company; Notice Southern Natural Gas Company inspection in the Public Reference of Compliance Filing (Southern) tendered for filing as part of Room. May 6, 1997. its FERC Gas Tariff, Seventh Revised Lois D. Cashell, Take notice that on May 2, 1997, Volume No. 1, the following revised Secretary. Trailblazer Pipeline Company Tariff sheets in compliance with the [FR Doc. 97–12314 Filed 5–9–97; 8:45 am] (Trailblazer) tendered for filing as part Commission’s Order No. 587–B and the BILLING CODE 6717±01±M of its FERC Gas Tariff, Third Revised Commission’s February 13, 1997 Order Volume No. 1, certain tariff sheets to be in this docket, to become effective June effective May 1, 1997. 1, 1997: DEPARTMENT OF ENERGY Trailblazer states that the purpose of Twenty Fifth Revised Sheet No. 14 the filing is to comply with the Federal Thirteenth Revised Sheet No. 14a Federal Energy Regulatory Energy Regulatory Commission’s order Twenty Fifth Revised Sheet No. 16 Commission issued on April 17, 1997, in Docket Nos. Thirteenth Revised Sheet No. 16a [Docket No. RP96±312±005] RP97–54–001, et al. Fourth Revised Sheet No. 20 Trailblazer states that copies of the Second Revised Sheet No. 20a Tennessee Gas Pipeline Company; filing have been served on its On July 17, 1996, the Commission Notice of Compliance Filing jurisdictional customers, interested state issued Order No. 587 in Docket No. commissions, and all parties set out on RM96–1–000 which revised the May 6, 1997. the official service list at Docket No. Commission’s regulations governing Take notice that on May 1, 1997, RP97–54. interstate natural gas pipelines to Tennessee Gas Pipeline Company Any person desiring to protest said require such pipelines to follow certain (Tennessee) filed Fourth Revised Sheet filing should file a protest with the standardized business practices issued No. 324 in compliance with the Letter Federal Energy Regulatory Commission, by the Gas Industry Standards Board Order, dated April 16, 1997, issued by 888 First Street, N.E., Washington, D.C. (GISB) and adopted by the Commission the Office of Pipeline Regulaiton—Rate 20426, in accordance with Section in said Order. 18 CFR 284.10(b). On Analysis Branch I in this proceeding 385.211 of the Commission’s Rules and December 2, 1996, Southern made its (Letter Order). Tennessee proposes an Regulations. All such protests must be compliance filing submitting pro forma effective date of June 1, 1997 for the filed as provided in Section 154.210 of tariff sheets to comply with Order No. revised sheet. the Commission’s Regulations. Protests 25938 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices will be considered by the Commission Any person desiring to protest said pipeline systems at an existing receipt in determining the appropriate action to filing should file a protest with the point in Woodward County, Oklahoma. be taken, but will not serve to make Federal Energy Regulatory Commission, WNG also states that in order to make protestants parties to the proceeding. 888 First Street, N.E., Washington, D.C. deliveries at the proposed Copies of this filing are on file with the 20426, in accordance with Section interconnection, WNG proposes to Commission and are available for public 385.211 of the Commission’s Rules and acquire the 1,100 H.P. compressor and inspection in the Public Reference Regulations. All such protests must be meter setting in exchange from ONG Room. filed in accordance with Section and install the equipment to compress Lois D. Cashell, 154.210 of the Commission’s gas to the required line pressure. Upon Secretary. Regulation. Protests will be considered acquiring and installing the compressor [FR Doc. 97–12310 Filed 5–9–97; 8:45 am] by the Commission in determining the unit and meter setting, WNG states that appropriate action to be taken, but will the equipment would become part of BILLING CODE 6717±01±M not serve to make protestants parties to WNG’s interstate pipeline system. the proceeding. Copies of this filing are Any person desiring to be heard or to on file with the Commission and are DEPARTMENT OF ENERGY make any protest with reference to said available for public inspection in the application should on or before May 27, Public Reference Room. Federal Energy Regulatory 1997, file with the Federal Energy Commission Lois D. Cashell, Regulatory Commission, Washington, Secretary. [Docket No. RP97±237±002] D.C. 20426, a motion to intervene or a [FR Doc. 97–12288 Filed 5–9–97; 8:45 am] protest in accordance with the TransColorado Gas Transmission BILLING CODE 6717±01±M requirements of the Commission’s Rules Company, Notice of Compliance Filing of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations May 6, 1997. DEPARTMENT OF ENERGY under the NGA (18 CFR 157.10). All Take notice that on May 1, 1997, protests filed with the Commission will TransColorado Gas Transmission Federal Energy Regulatory Commission be considered by it in determining the Company (TransColorado) tendered for appropriate action to be taken but will filing and acceptance, pursuant to [Docket No. CP97±373±000] not serve to make the protestants parties Subpart C of 154 of the Federal Energy to the proceeding. Any person wishing Regulatory Commission’s Regulations Williams Natural Gas Company; Notice to become a party to a proceeding or to Under the Natural Gas Act and in of Application participate as a party in any hearing compliance with the Commission’s therein must file a motion to intervene letter order issued February 24, 1997 at May 6, 1997. Take notice that on April 23, 1997, in accordance with the Commission’s Docket No. RP97–237–000, the Rules. following tariff sheets to its FERC Gas Williams Natural Gas Company (WNG), Tariff, Original Volume No. 1, with an P.O. Box 3288, Tulsa, Oklahoma 74101, Take further notice that, pursuant to effective date of June 1, 1997. filed an application with the the authority contained in and subject to Commission in Docket No. CP97–373– the jurisdiction conferred upon the Original Volume No. 1 000 pursuant to Section 7(b) of the Federal Energy Regulatory Commission Natural Gas Act (NGA) for permission by Sections 7 and 15 of the NGA and the First Revised Sheet Nos. 201–203 Original Sheet No. 203A and approval to abandon by exchange Commission’s Rules of Practice and First Revised Sheet Nos. 204 and 205 pipeline facilities, which were Procedure, a hearing will be held First Revised Sheet Nos. 212–217 authorized in Docket No. CP68–92, in without further notice before the First Revised Sheet No. 222 Garfield County, Oklahoma, with ONG Commission or its designee on this Original Sheet No. 222A Transmission Company (ONG), all as application if no motion to intervene is First Revised Sheet Nos. 225 more fully set forth in the application filed within the time required herein, if Original Sheet No. 225A which is open to the public for the Commission on its own review of First Revised Sheet No. 226 inspection. the matter finds that permission and First Revised Sheet Nos. 230 and 231 WNG proposes to abandon approval for the proposed abandonment Original Sheet No. 231A approximately 18.2 miles of 8-inch are required by the public convenience First Revised Sheet Nos. 232 and 233 diameter lateral pipeline and and necessity. If a motion for leave to First Revised Sheet No. 240 appurtenant equipment to ONG in intervene is timely filed, or if the First Revised Sheet Nos. 248 and 249 exchange for one 1,100 H.P. compressor Commission on its own motion believes TransColorado states that the tariff unit and meter setting owned by ONG. that a formal hearing is required, further sheets are being tendered to implement WNG states that it no longer needs the notice of such hearing will be duly the Gas Industry Standards Board 18.2 miles of pipe because WNG has given. Standards which the Commission sold the gathering system that the pipe Under the procedure herein provided adopted to standardize business served. WNG states that upon for, unless otherwise advised, it will be practices and procedures governing abandonment ONG would operate the unnecessary for WNG to appear or be transactions between interstate gas pipe as part of its nonjurisdictional represented at the hearing. pipelines, their customers, and others intrastate pipeline system. doing business with the pipelines. As part of the exchange, WNG states Lois D. Cashell, TransColorado states that copies of that WNG and ONG mutually desire a Secretary. the filing were served upon all parties bi-directional interconnection between [FR Doc. 97–12304 Filed 5–9–97; 8:45 am] of record in this proceeding. the WNG interstate and ONG intrastate BILLING CODE 6717±01±M Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25939

DEPARTMENT OF ENERGY Original Sheet No. 111C to be effective Commission will limit its consideration May 1, 1997. of comments to those that concern the Federal Energy Regulatory Young states the tariff sheets are filed adequacy or accuracy of the application. Commission in compliance with the order issued 2. EPEM Marketing Company and El April 16, 1997 in Docket No. RP97–93– [Docket No. RP97±67±004] Paso Marketing Services Company 001 and RP97–93–002 as well as Section Williams Natural Gas Company; Notice 154.203 of the Commission’s [Docket No. EC97–29–000] of Proposed Changes in FERC Gas regulations. Take notice that on April 14, 1997, Tariff Any person desiring to protest this EPEM Marketing Company (EPEM) and filing should file a protest with the El Paso Energy Marketing Services May 6, 1997. Federal Energy Regulatory Commission, Company (El Paso Energy Take notice that on May 1, 1997, 888 First Street, N.E., Washington, DC Marketing)(collectively, the Applicants) Williams Natural Gas Company (WNG) 20426, in accordance with Section filed an application for approval to tendered for filing as part of its FERC Section 385.211 of the Commission’s transfer wholesale power agreements Gas Tariff, Second Revised Volume No. Regulations. All such protests must be from El Paso Energy Marketing to EPEM. 1, the tariff sheets listed on Appendix A filed as provided in Section 154.210 of Comment date: May 23, 1997, in to the filing, to be effective May 1, 1997. the Commission’s Regulations. Protests accordance with Standard Paragraph E WNG states that this filing is being will be considered by the Commission at the end of this notice. made to comply with Commission in determining the appropriate action to 3. Commonwealth Edison Company Order issued April 18, 1997, in Docket be taken, but will not serve to make No. RP97–67–001 and 002. protestants parties to the proceeding. [Docket No. ER97–1368–001] WNG states that a copy of its filing Copies of this filing are on file with the Take notice that on April 22, 1997, was served on all participants listed on Commission and are available for public Commonwealth Edison Company the service list maintained by the inspection in the public Reference (ComEd) tendered for filing the Commission in the docket referenced Room. compliance filing ordered by the above and on all of WNG’s jurisdictional Lois D. Cashell, Commission’s March 25, 1997, order in customers and interested state Secretary. this docket. commissions. [FR Doc. 97–12313 Filed 5–9–97; 8:45 am] Copies of this filing have been served Any person desiring to protest this BILLING CODE 6717±01±M on the Illinois Commerce Commission filing should file a protest with the and all customers served under Federal Energy Regulatory Commission, ComEd’s PSRT–1 Tariff. 888 First Street, N.E., Washington, D.C. DEPARTMENT OF ENERGY Comment date: May 19, 1997, in 20426, in accordance with Section accordance with Standard Paragraph E 385.211 of the Commission’s Rules and Federal Energy Regulatory at the end of this notice. Regulations. All such protests must be Commission 4. Minnesota Power & Light Company filed as provided in Section 154.210 of [Docket No. EG97±61±000, et al.] the Commission’s Regulations. Protests [Docket No. ER97–2069–000] will be considered by the Commission Tapal Energy Limited, et al.; Electric Take notice that on April 14, 1997, in determining the appropriate action to Rate and Corporate Regulation Filings Minnesota Power & Light Company be taken, but will not serve to make tendered for filing an amendment in the protestants parties to the proceedings. May 5, 1997. above-referenced docket. Copies of this filing are on file with the Take notice that the following filings Comment date: May 19, 1997, in Commission and are available for public have been made with the Commission: accordance with Standard Paragraph E inspection in the Public Reference at the end of this notice. Room. 1. Tapal Energy Limited 5. Niagara Mohawk Power Corporation Lois D. Cashell, [Docket No. EG97–61–000] Secretary. On April 28, 1997, Tapal Energy [Docket No. ER97–2573–000] [FR Doc. 97–12312 Filed 5–9–97; 8:45 am] Limited, a public limited company Take notice that on April 14, 1997, BILLING CODE 6717±01±M incorporated and existing under the Niagara Mohawk Power Corporation laws of the Islamic Republic of Pakistan, (NMPC) tendered for filing with the having its registered office at 6th Floor, Federal Energy Regulatory Commission DEPARTMENT OF ENERGY Building No. 3, Lakson Square, Sanwar an executed Transmission Service Shaheed Road, Karachi, Pakistan (the Agreement between NMPC and CMS Federal Energy Regulatory Applicant), filed with the Federal Marketing, Services and Trading Commission Energy Regulatory Commission an Company. This Transmission Service application for determination of exempt Agreement specifies that CMS [Docket No. RP97±93±003] wholesale generator (EWG) status Marketing, Services and Trading Young Gas Storage Company Ltd.; pursuant to Part 365 of the Company has signed on to and has Notice of Tariff Compliance Filing Commission’s Regulations. agreed to the terms and conditions of The Applicant will be engaged NMPC’s Open Access Transmission May 6, 1997. directly in owning an eligible facility Tariff as filed in Docket No. OA96–194– Take notice that on May 1, 1997, located near Karachi, Province of Sindh, 000. This Tariff, filed with FERC on July Young Gas Storage Company Ltd. Pakistan (the Plant). The Plant will 9, 1996, will allow NMPC and CMS (Young), tendered for filing to become consist of a 126 MW simple-cycle power Marketing, Services and Trading part of its FERC gas Tariff, Original plant, fueled by heavy fuel oil. Company to enter into separately Volume No. 1, Substitute Second Comment date: May 23, 1997, in scheduled transactions under which Revised Sheet No. 80, Substitute accordance with Standard Paragraph E NMPC will provide transmission service Original Sheet No. 80A and Substitute at the end of this notice. The for CMS Marketing, Services and 25940 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Trading Company as the parties may (WP&L), tendered for filing Form Of Capital Group, Inc. (Customer). This mutually agree. Service Agreements for Firm and Non- Service Agreement specifies that the NMPC requests an effective date of Firm Point-to-Point Transmission Customer has agreed to the rates, terms April 3, 1997. NMPC has requested Service establishing Equitable Power and conditions of RG&E’s FERC Electric waiver of the notice requirements for Services Company as a point-to-point Rate Schedule, Original Volume No. 1 good cause shown. transmission customer under the terms (Power Sales Tariff) accepted by the NMPC has served copies of the filing of WP&L’s transmission tariff. Commission in Docket No. ER94–1279– upon the New York State Public Service WP&L requests an effective date of 000, as amended by RG&E’s December Commission and CMS Marketing, March 23, 1997, and accordingly, seeks 31, 1996, filing in Docket No. OA97– Services and Trading Company. waiver of the Commission’s notice 243–000. Comment date: May 19, 1997, in requirements. A copy of this filing has RG&E requests waiver of the accordance with Standard Paragraph E been served upon the Public Service Commission’s sixty (60) day notice at the end of this notice. Commission of Wisconsin. requirements and an effective date of Comment date: May 19, 1997, in 6. Cinergy Services, Inc. March 17, 1997, for the Morgan Stanley accordance with Standard Paragraph E Capital Group, Inc. Service Agreement. [Docket No. ER97–2628–000] at the end of this notice. RG&E has served copies of the filing on the New York State Public Service Take notice that on April 22, 1997, 10. Cinergy Services, Inc. Cinergy Services, Inc. (Cinergy), Commission and on the Customer. tendered for filing a service agreement [Docket No. ER97–2632–000] Comment date: May 19, 1997, in under Cinergy’s Power Sales Standard Take notice that on April 22, 1997, accordance with Standard Paragraph E Tariff (the Tariff) entered into between Cinergy Services, Inc. (Cinergy), at the end of this notice. Cinergy and Maine Public Service tendered for filing a service agreement 13. Virginia Electric and Power Company. under Cinergy’s Power Sales Standard Company Cinergy and Maine Public Service Tariff (the Tariff) entered into between Company are requesting an effective Cinergy and Duquesne Light Company. [Docket No. ER97–2635–000] date of April 17, 1997. Cinergy and Duquesne Light Take notice that on April 22, 1997, Comment date: May 19, 1997, in Company are requesting an effective Virginia Electric and Power Company accordance with Standard Paragraph E date of April 17, 1997. (Virginia Power), tendered for filing an at the end of this notice. Comment date: May 19, 1997, in executed Service Agreement with AIG 7. Consolidated Edison Company of accordance with Standard Paragraph E Trading Corporation which it had filed New York, Inc. at the end of this notice. in unexecuted form on January 31, 1997. Also tendered for filing are executed [Docket No. ER97–2629–000] 11. Rochester Gas and Electric Corporation Service Agreements with Illinova Power Take notice that on April 22, 1997, Marketing, Inc. and Federal Energy Consolidated Edison Company of New [Docket No. ER97–2633–000] Sales, Inc., which it had filed in York, Inc. (Con Edison), tendered for Take notice that on April 23, 1997, unexecuted form on February 6, 1997. filing an amendment to Rate Schedule Rochester Gas and Electric Corporation Copies of the filing were served upon 122, an agreement with Niagara (RG&E), filed a Service Agreement the Virginia State Corporation Mohawk Power Corporation for the sale between RG&E and the Equitable Power Commission and the North Carolina and purchase of energy and capacity. Services Company (Customer). This Utilities Commission. Con Edison states that a copy of this Service Agreement specifies that the Comment date: May 19, 1997, in filing has been served by mail upon Customer has agreed to the rates, terms accordance with Standard Paragraph E Niagara Mohawk Power Corporation. and conditions of RG&E’s FERC Electric at the end of this notice. Comment date: May 19, 1997, in Rate Schedule, Original Volume No. 1 14. Virginia Electric and Power accordance with Standard Paragraph E (Power Sales Tariff) accepted by the Company at the end of this notice. Commission in Docket No. ER94–1279– [Docket No. ER97–2636–000] 8. Consolidated Edison Company of 000, as amended by RG&E’s December New York, Inc. 31, 1996, filing in Docket No. OA97– Take notice that on April 22, 1997, 243–000. Virginia Electric and Power Company [Docket No. ER97–2630–000] RG&E requests waiver of the (Virginia Power), tendered for filing Take notice that on April 22, 1997, Commission’s sixty (60) day notice Service Agreements for Non-Firm Point- Consolidated Edison Company of New requirements and an effective date of to-Point Transmission Service with York, Inc. (Con Edison), tendered for March 17, 1997, for the Equitable Power Western Power Services, Inc., WAS filing a service agreement to provide Services Company Service Agreement. Energy Services, Inc., C.G. Power non-firm transmission service pursuant RG&E has served copies of the filing on Services Corporation, and The to its Open Access Transmission Tariff the New York State Public Service Cincinnati Gas & Electric Company, PSI to Delmarva Power & Light Company. Commission and on the Customer. Energy, Inc. and Cinergy Services, Inc. Con Edison states that a copy of this Comment date: May 19, 1997, in under the Open Access Transmission filing has been served by mail upon accordance with Standard Paragraph E Tariff to eligible purchasers dated July Delmarva Power & Light Company. at the end of this notice. 9, 1996. Under the tendered Service Comment date: May 19, 1997, in 12. Rochester Gas and Electric Agreement Virginia Power will provide accordance with Standard Paragraph E Corporation non-firm point-to-point service to the at the end of this notice. Transmission Customers as agreed to by [Docket No. ER97–2634–000] 9. Wisconsin Power and Light Company the parties under the rates, terms and Take notice that on April 23, 1997, conditions of the Open Access [Docket No. ER97–2631–000] Rochester Gas and Electric Corporation Transmission Tariff. Take notice that on April 22, 1997, (RG&E), filed a Service Agreement Copies of the filing were served upon Wisconsin Power and Light Company between RG&E and the Morgan Stanley the Virginia State Corporation Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25941

Commission, the North Carolina NUSCO requests that the Service tendered for filing a service agreement Utilities Commission, and the Ohio Agreement become effective February 1, under Cinergy’s Power Sales Standard Public Utilities Commission. 1997. Tariff (the Tariff) entered into between Comment date: May 19, 1997, in Comment date: May 19, 1997, in Cinergy and Minnesota Power & Light accordance with Standard Paragraph E accordance with Standard Paragraph E Company. at the end of this notice. at the end of this notice. Cinergy and Minnesota Power & Light Company are requesting an effective 15. American Electric Power Service 18. Consolidated Edison Company of New York, Inc. date of April 17, 1997. Corporation Comment date: May 19, 1997, in [Docker No. ER97–2637–000] [Docket No. ER97–2641–000] accordance with Standard Paragraph E Take notice that on April 22, 1997, Take notice that on April 22, 1997, at the end of this notice. Consolidated Edison Company of New the American Electric Power Service 22. C. Lee Cox Corporation (AEPSC), tendered for filing York, Inc. (Con Edison), tendered for executed service agreements under the filing a service agreement to provide [Docket No. ID–2995–000] AEP Companies’ Point-to-Point non-firm transmission service pursuant Take notice that on April 14, 1997, C. Transmission Service Tariffs. The to its Open Access Transmission Tariff Lee Cox, Applicant, filed an application Transmission Tariff has been designated to CMS Marketing, Services and Trading pursuant to Section 305(b) of the as FERC Electric Tariff Original Volume Co. Federal Power Act and Part 45 of the No. 4, effective July 9, 1996. AEPSC Con Edison states that a copy of this Commission’s Regulations to hold the requests waiver of notice to permit the filing has been served by mail upon following positions: Service Agreements to be made effective CMS Marketing, Services and Trading Director, Pacific Gas & Electric for service billed on and after March 15, Co. Company 1997. Comment date: May 19, 1997, in Director, AirTouch Communications, A copy of the filing was served upon accordance with Standard Paragraph E Inc. at the end of this notice. the Parties and the State Utility Comment date: May 19, 1997, in Regulatory Commissions of Indiana, 19. Consolidated Edison Company of accordance with Standard Paragraph E Kentucky, Michigan, Ohio, Tennessee, New York, Inc. at the end of this notice. Virginia and West Virginia. [Docket No. ER97–2642–000] Comment date: May 19, 1997, in 23. Dixie Escalante Rural Electric accordance with Standard Paragraph E Take notice that on April 22, 1997, Association, Inc. Consolidated Edison Company of New at the end of this notice. [Docket No. OA97–577–000] York, Inc. (Con Edison), tendered for 16. ERI Services, Inc. filing an amendment to Rate Schedule Take notice that on April 16, 1997, Dixie Escalante Rural Electric [Docket No. ER97–2638–000] 192, an agreement with Williams Energy Services Company for the sale and Association, Inc. (Dixie Escalante) Take notice that on April 22, 1997, purchase of energy and capacity. submitted for filing a Request for Waiver ERI Services, Inc. (ERI Services) Con Edison states that a copy of this of the Application of the Requirements tendered for filing pursuant to Part 35 filing has been served by mail upon of Order Nos. 888 and 889, in of the Commission’s Regulations and Williams Energy Services Company. accordance with Section 35.28(d) of the Rule 205, 18 CFR 385.205, a petition for Comment date: May 19, 1997, in Rules of the Federal Energy Regulatory waivers and blanket approvals under accordance with Standard Paragraph E Commission (Commission), 18 CFR various regulations of the Commission at the end of this notice. 35.28(d). and for an order accepting its FERC Dixie Escalante states that it owns, Electric Rate Schedule No. 1 to be 20. Portland General Electric Company operates, or controls only limited and effective no later than June 21, 1997. [Docket No. ER97–2643–000] discrete transmission facilities that do ERI Services intends to engage in Take notice that on April 22, 1997, not constitute an integrated grid. Dixie electric power and energy transactions Portland General Electric Company Escalante states that it thus qualifies for as a marketer and a broker. In (PGE), tendered for filing with the a waiver of application of the transactions where ERI Services sells Federal Energy Regulatory Commission requirements of Orders No. 888 and 889 electric energy it proposes to make such pursuant to 18 CFR 35.15, a Notice of to it, as more fully set forth in the sales on rates, terms, and conditions to Termination for Rate Schedule FERC application which is on file with the be mutually agreed to with the No. 159, Firm Power Sale Agreement Commission and open to public purchasing party. ERI Services is not in between PGE and the Modesto Irrigation inspection. the business of generating, transmitting, District (MID). Comment date: May 19, 1997, in or distributing electric power. PGE respectfully requests the accordance with Standard Paragraph E Comment date: May 19, 1997, in Commission to accept this filing and at the end of this notice. accordance with Standard Paragraph E terminate the Agreement on or before 24. Wisconsin Electric Power Company at the end of this notice. June 20, 1997. [Docket No. OA97–578–000] 17. Northeast Utilities Service Company A copy of the filing was served upon MID as noted in the body of the filing Take notice that Wisconsin Electric [Docket No. ER97–2639–000] letter. Power Company (Wisconsin Electric) on Take notice that on April 23, 1997, Comment date: May 19, 1997, in April 21, 1997, tendered for filing Northeast Utilities Service Company accordance with Standard Paragraph E revisions to its FERC Electric Tariff, (NUSCO), tendered for filing, a Service at the end of this notice. Original Volume No. 7. The revisions Agreement with PECO Energy under the are submitted in compliance with Order 21. Cinergy Services, Inc. NU System Companies’ Sale for Resale, No. 888–A. Wisconsin Electric Tariff No. 7. [Docket No. ER97–2644–000] respectfully requests an effective date NUSCO states that a copy of this filing Take notice that on April 22, 1997, coincident with its filing, in order that has been mailed to the PECO Energy. Cinergy Services, Inc. (Cinergy), the changes stemming from Order No. 25942 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

888–A are implemented as soon as Date and Time: May 14, 1997, 10:00 Other#s EL97–29, 000, Power Authority possible. a.m. of the State of New York V. Niagara Copies of the filing have been served Place: Room 2C, 888 First Street, N.E., Mohawk Power Corporation on all Wisconsin Electric transmission Washington, D.C. 20426. CAE–5. service customers, the Michigan Public Status: Open. Docket# ER96–3113, 000, Service Commission, and the Public Matters To Be Considered: Agenda. Commonwealth Edison Company Service Commission of Wisconsin. CAE–6. Note.—Items listed on the agends may be # Comment date: May 23, 1997, in deleted without further notice. Docket ER97–1066, 000, Potomac accordance with Standard Paragraph E Edison Company at the end of this notice. Contact Person for More Information: CAE–7. Lois D. Cashell, Secretary, Telephone Docket# OA96–38, 000, Long Island 25. Consolidated Edison Company of (202) 208–0400. For a recording Lighting Company New York, Inc. listing items stricken from or added to CAE–8. [Docket No. OA97–584–000] the meeting, call (202) 208–1627. Docket# ER96–1196, 001, Oxbow Take notice that on April 22, 1997, This is a list of matters to be Power Marketing, Inc. Consolidated Edison Company of New considered by the Commission. It does CAE–9. York, Inc. (Con Edison), tendered for not include a listing of all papers Docket# EL95–3, 000, Midamerican filing an amendment to Rate Schedule relevant to the items on the agenda; Energy Company (formerly Midwest 194, an agreement with Federal Energy however, all public documents may be Power Systems, Inc.) examined in the reference and Sales, Inc. for the sale and purchase of Consent Agenda—Gas and Oil energy and capacity. information center. CAG–1. Con Edison states that a copy of this Consent Agenda—Hydro, 675th Docket# RP92–137, 044, filing has been served by mail upon Meeting—May 14, 1997, Regular Transcontinental Gas Pipe Line Federal Energy Sales, Inc. Meeting, (10:00 a.m.) Comment date: May 19, 1997, in Corporation accordance with Standard Paragraph E CAH–1. CAG–2. at the end of this notice. Docket# P–1388, 008, Southern Docket# RP97–55, 001, Great Lakes California Edison Company Gas Transmission Limited Standard Paragraph CAH–2. Partnership E. Any person desiring to be heard or Docket# P–1389, 005, Southern Other#s RP97–55, 000, Great Lakes to protest said filing should file a California Edison Company Gas Transmission Limited motion to intervene or protest with the CAH–3. Partnership Federal Energy Regulatory Commission, Docket# P–4474, 056, Borough of RP97–55, 002, Great Lakes Gas 888 First Street, N.E., Washington, D.C. Cheswick, Pennsylvania, and the Transmission Limited Partnership 20426, in accordance with Rules 211 Allegheny Valley Joint Council of RP97–55, 003, Great Lakes Gas and 214 of the Commission’s Rules of Governments Transmission Limited Partnership Practice and Procedure (18 CFR 385.211 CAH–4. RP97–55, 004, Great Lakes Gas and 18 CFR 385.214). All such motions Docket# P–710, 000, Wisconsin Power Transmission Limited Partnership or protests should be filed on or before and Light Company RP97–55, 005, Great Lakes Gas the comment date. Protests will be Other#s DI96–4, 000, Wisconsin Transmission Limited Partnership considered by the Commission in Power and Light Company CAG–3. determining the appropriate action to be CAH–5. Docket# RP97–114, 002, Equitrans, taken, but will not serve to make Omitted L.P. Other#s RP97–114, 001, Equitrans, protestants parties to the proceeding. Consent Agenda—Electric Any person wishing to become a party L.P. must file a motion to intervene. Copies CAE–1. CAG–4. # of this filing are on file with the Docket ER97–2095, 000, Duke Power Docket# RP97–145, 001, Crossroads Commission and are available for public Company Pipeline Company # inspection. Other s ER97–2099, 000, Duke Power CAG–5. Lois D. Cashell, Company and Nantahala Power & Omitted Light Company CAG–6. Secretary. ER97–2100, 000, Duke Power Docket# RP97–157, 001, Gas [FR Doc. 97–12287 Filed 5–9–97; 8:45 am] Company Transport, Inc. BILLING CODE 6717±01±P ER97–2211, 000, Duke Power Other#s RP97–157, 002, Gas Company Transport, Inc. ER97–2212, 000, Duke Power RP97–322, 000, Gas Transport, Inc. DEPARTMENT OF ENERGY Company CAG–7. # Federal Energy Regulatory ER97–2213, 000, Duke Power Docket RP97–162, 001, Cove Point Commission Company LNG Limited Partnership SC97–6, 000, Duke Power Company CAG–8. Notice; Sunshine Act Meeting CAE–2. Docket# RP97–310, 000, Garden Docket# ER97–2176, 000, Energis Banks Gas Pipeline, LLC May 7, 1997. Resources Incorporated CAG–9. The following notice of meeting is CAE–3. Omitted published pursuant to Section 3(a) of Docket# ER97–2261, 000, CAG–10. the Government in the Sunshine Act Constellation Power Source, Inc. Docket# RP97–134, 001, Pacific Gas (Pub. L. 94–409), 5 U.S.C. 552B: CAE–4. Transmission Company Agency Holding Meeting: Federal Docket# ER97–2006, 000, Niagara Other#s RP97–134, 002, Pacific Gas Energy Regulatory Commission. Mohawk Power Corporation Transmission Company Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25943

RP97–134, 003, Pacific Gas CAG–25. CAG–39. Transmission Company Docket# RP97–171, 002, ANR Pipeline Docket# RP97–143, 001, TCP CAG–11. Company Gathering Company Omitted Other#s RP97–171, 001, ANR Pipeline CAG–40. CAG–12. Company Docket# RP97–144, 001, K N Docket# RP97–169, 001, Riverside RP97–171, 003, ANR Pipeline Wattenberg Transmission Limited Pipeline Company, L.P. Company Liability Company CAG–13. RP97–311, 000, ANR Pipeline CAG–41. Docket# RP97–275, 001, Northern Company Omitted Natural Gas Company CAG–26. CAG–42. CAG–14. Docket# RP97–172, 002, ANR Storage Docket# RP97–154, 002, Koch Docket# RP97–109, 001, Sabine Pipe Company Gateway Pipeline Company Line Company Other#s RP97–172, 001, ANR Storage Other#s RP97–154, 001, Koch Other#s RP97–109, 002, Sabine Pipe Company Gateway Pipeline Company Line Company CAG–27. CAG–43. CAG–15. Docket# RP97–173, 001, Carnegie Omitted Docket# RP97–137, 002, Southern Interstate Pipeline Company CAG–44. Natural Gas Company Other#s RP97–173, 002, Carnegie Docket# RP97–156, 002, Viking Gas Other#s RP97–137, 001, Southern Interstate Pipeline Company Transmission Company Natural Gas Company CAG–28. Other#s RP97–156, 001, Viking Gas CAG–16. Docket# RP97–181, 002, CNG Transmission Company Omitted Transmission Corporation CAG–45. CAG–17. Other#s RP97–181, 001, CNG Omitted Docket# RP97–141, 002, Great Lakes Transmission Corporation CAG–46. Gas Transmission Limited CAG–29. Omitted Partnership Docket# RP97–183, 002, Texas Gas CAG–47. Other#s RP97–141, 001, Great Lakes Transmission Corporation Docket# RP97–178, 002, Kern River Gas Transmission Limited Other#s RP97–183, 001, Texas Gas Gas Transmission Company Partnership Transmission Corporation CAG–48. CAG–18. RP97–332, 000, Texas Gas Docket# RP97–179, 002, Ozark Gas Omitted Transmission Corporation Transmission System CAG–19. RP97–334, 000, Texas Gas Other#s RP97–179, 003, Ozark Gas Docket# RP97–150, 002, Richfield Gas Transmission Corporation Transmission System Storage System CAG–30. CAG–49. Other#s RP97–150, 001, Richfield Gas Docket# RP97–224, 002, Sea Robin Omitted Storage System Pipeline Company CAG–50. CAG–20. Other#s RP97–224, 001, Sea Robin Docket# RP97–239, 002, Northwest Docket# RP97–159, 002, Pipeline Company Pipeline Corporation Transcontinental Gas Pipe Line CAG–31. CAG–51. Corporation Docket# RP93–5, 000, Northwest Docket# RP97–254, 000, Williams Other#s RP97–159, 001, Pipeline Corporation Natural Gas Company Transcontinental Gas Pipe Line Other#s RP93–5, 025, Northwest Other#s RP97–254, 001, Williams Corporation Pipeline Corporation Natural Gas Company CAG–21. RP93–96, 005, Northwest Pipeline CAG–52. Docket# RP97–161, 002, Iroquois Gas Corporation Docket# RP92–163, 007, Williston Transmission System, L.P. CAG–32. Basin Interstate Pipeline Company Other#s RP97–161, 001, Iroquois Gas Docket# RP96–393, 002, Koch Other#s RP92–170, 007, Williston Transmission System, L.P. Gateway Pipeline Company Basin Interstate Pipeline Company RP97–161, 003, Iroquois Gas CAG–33. RP92–236, 006, Williston Basin Transmission System, L.P. Docket# RP97–102, 002, Mississippi Interstate Pipeline Company RP97–329, 000, Iroquois Gas River Transmission Corporation CAG–53. Transmission System, L.P. CAG–34. Docket# RP97–3, 005, Texas Eastern RP97–329, 001, Iroquois Gas Omitted Transmission Corporation Transmission System, L.P. CAG–35. Other#s RP97–4, 006, Panhandle CAG–22. Docket# RP97–129, 001, Questar Eastern Pipe Line Company Docket# RP97–166, 001, Columbia Pipeline Company RP97–5, 005, Algonquin Gas Gulf Transmission Company CAG–36. Transmission Company Other#s RP97–166, 002, Columbia Docket# RP97–139, 001, Caprock RP97–6, 005, Trunkline Gas Company Gulf Transmission Company Pipeline Company CAG–54. CAG–23. CAG–37. Docket# RP92–137, 043, Docket# RP97–167, 002, Columbia Docket# RP97–140, 001, Louisiana- Transcontinental Gas Pipe Line Gas Transmission Corporation Nevada Transit Company Corporation Other#s RP97–167, 001, Columbia Gas Other#s RP97–140, 002, Louisiana- Other#s RP93–136, 009, Transmission Corporation Nevada Transit Company Transcontinental Gas Pipe Line CAG–24. CAG–38. Corporation Docket# RP97–170, 002, Blue Lake Docket# RP97–142, 001, K N Interstate CAG–55. Gas Storage Company Gas Transmission Company Docket# RP92–149, 009, Other#s RP97–170, 001, Blue Lake Other#s RP97–142, 002, K N Interstate Transcontinental Gas Pipe Line Gas Storage Company Gas Transmission Company Corporation 25944 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

CAG–56. Docket# RP97–177, 001, Steuben Gas Power Company # Docket OR97–1, 001, Rio Grande Storage Company Order and opinion on proposed Pipeline Company CAG–68. merger and on proposed CAG–57. Docket# RP96–302, 005, Northern # transmission and interchange Docket RP96–234, 001, ANR Pipeline Natural Gas Company agreements. Company CAG–69. CAG–58. Docket# RP96–173, 004, Williams Oil and Gas Agenda Docket# RP97–284, 000, Southern Natural Gas Company I. Pipeline Rate Matters California Edison Company v. Other#s RP89–183, 064, Williams Southern California Gas Company Natural Gas Company PR–1. CAG–59. RP89–183, 068, Williams Natural Gas Reserved Omitted Company CAG–60. RP96–303, et al., 000, Williams II. Pipeline Certificate Matters Docket# CP96–213, 000, Columbia Natural Gas Company Gas Transmission Corporation RP96–400, et al., 000, Williams PC–1. Other#s CP90–644, 003, Columbia Gas Natural Gas Company Reserved Transmission Corporation RP97–220, et al., 000, Williams Lois D. Cashell, CP90–644, 004, Columbia Gas Natural Gas Company Secretary. Transmission Corporation CAG–70. [FR Doc. 97–12471 Filed 5–8–97; 11:17 am] CP96–213, 001, Columbia Gas Docket# CP94–207, 003, Southern BILLING CODE 6717±01±P Transmission Corporation California Gas Company CP96–213, 003, Columbia Gas Hydro Agenda Transmission Corporation DEPARTMENT OF ENERGY CP96–213, 004, Columbia Gas H–1. Transmission Corporation Reserved Office of Hearings and Appeals CP96–559, 000, Texas Eastern Electric Agenda Transmission Corporation Notice of Cases Filed During the Week CP96–559, 001, Texas Eastern E–1. of April 14 Through April 18, 1997 Transmission Corporation Docket# EC95–16, 000, Wisconsin CAG–61. Electric Power Company and During the Week of April 14 through Omitted Northern States Power Company April 18, 1997, the appeals, CAG–62. (Minnesota), et al. applications, petitions or other requests Docket# CP96–687, 000, Iroquois Gas Other#s EC95–16, 001, Wisconsin listed in this Notice were filed with the Transmission System, L.P. Electric Power Company and Office of Hearings and Appeals of the CAG–63. Northern States Power Company Department of Energy. # Docket CP96–751, 000, Panhandle (Minnesota), et al. Any person who will be aggrieved by Eastern Pipe Line Company ER95–1357, 000, Wisconsin Electric the DOE action sought in any of these CAG–64. Power Company and Northern # cases may file written comments on the Docket CP97–144, 000, Aquila Gas States Power Company (Minnesota), application within ten days of Systems Corporation et al. publication of this Notice or the date of CAG–65. ER95–1357, 001, Wisconsin Electric # receipt of actual notice, whichever Docket CP97–195, 000, Missouri Gas Power Company and Northern occurs first. All such comments shall be Energy, a Division of Southern States Power Company (Minnesota), filed with the Office of Hearings and Union Company v. Williams et al. Appeals, Department of Energy, ER95–1358, 000, Wisconsin Energy Natural Gas Company Washington, DC 20585–0107. CAG–66. Company and Northern States Docket# CP97–324, 000, Vermont Gas Power Company Dated: May 5, 1997. Systems, Inc. ER95–1358, 001, Wisconsin Energy George B. Breznay, CAG–67. Company and Northern States Director, Office of Hearings and Appeals.

SUBMISSION OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS, DEPARTMENT OF ENERGY [Week of April 14 through April 18, 1997]

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

4/14/97 ...... John D. Kasprowicz, Bolingbrook, Illinois .... VFA±0287 Appeal of an Information Request Denial. If Granted: The April 7, 1997 Freedom of Information Request Denial is- sued by Chicago Operations Office would be rescinded, and John D. Kasprowicz would receive access to certain DOE information. 4/14/97 ...... Personnel Security Hearing ...... VSO±0153 Request for Hearing under 10 C.F.R. Part 710. If Granted: An individual employed by a contractor of the Depart- ment of Energy would receive a hearing under 10 C.F.R. Part 710. 4/18/97 ...... Roderick L. Ott, Knoxville, Tennessee ...... VFA±0288 Appeal of an Information Request Denial. If Granted: The March 3, 1997 Freedom of Information Request Denial issued by the Office of Scientific and Technical Informa- tion would be rescinded, and Roderick L. Ott would re- ceive access to certain DOE information. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25945

SUBMISSION OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS, DEPARTMENT OF ENERGYÐContinued [Week of April 14 through April 18, 1997]

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

4/18/97 ...... Sandra Clayton, Morrison, Colorado ...... VFA±0289 Appeal of an Information Request Denial. If Granted: The Freedom of Information Request Denial issued by the Western Area Power Administration would be rescinded, and Sandra Clayton would receive access to certain DOE information.

[FR Doc. 97–12359 Filed 5–9–97; 8:45 am] reporter system. Some decisions and Nancy Donaldson, 4/14/97, VFA–0271 BILLING CODE 6450±01±P orders are available on the Office of Nancy Donaldson filed an Appeal Hearings and Appeals World Wide Web challenging the adequacy of a search for site at http://www.oha.doe.gov. DEPARTMENT OF ENERGY documents conducted by the Bonneville Dated: May 5, 1997. Power Administration (BPA) in Office of Hearings and Appeals George B. Breznay, connection with a request she filed Director, Office of Hearings and Appeals. under the Freedom of Information Act Notice of Issuance of Decisions and (FOIA). Specifically, Ms. Donaldson Decision List No. 29; Week of April 14 Orders During the Week of April 14 claimed that she should have been Through April 18, 1997 Through April 18, 1997 provided with the results of asbestos testing that was done prior to 1985 at During the week of April 14 through Appeals BPA locations, and with documents April 18, 1997, the decisions and orders Information Focus on Energy, Inc., having to do with the presence of summarized below were issued with 4/17/97, VFA–0280 respect to appeals, applications, transite paneling at those locations. In petitions, or other requests filed with Information Focus on Energy, Inc. considering the Appeal, the Department the Office of Hearings and Appeals of (IFE) filed an Appeal from a of Energy found that the absence of pre- the Department of Energy. The determination by the Assistant Inspector 1985 test data was not evidence of an following summary also contains a list General for Resource Management of the inadequate search. However, the matter of submissions that were dismissed by Office of Inspector General (Assistant was remanded to the BPA so that a the Office of Hearings and Appeals. IG) of the Department of Energy (DOE). search for documents having to do with Copies of the full text of these In that determination, the Assistant IG the presence of transite paneling at BPA decisions and orders are available in the partially granted a request for locations could be performed. Public Reference Room of the Office of information filed by IFE. In considering Refund Applications Hearings and Appeals, Room 1E–234, the Appeal, the DOE ordered the Forrestal Building, 1000 Independence Assistant IG to search for and release The Office of Hearings and Appeals Avenue, SW, Washington, D.C. 20585– documents containing titles, report issued the following Decisions and 0107, Monday through Friday, between numbers, and issue dates of all DOE Orders concerning refund applications, the hours of 1:00 p.m. and 5:00 p.m., Inspector General Reports, including which are not summarized. Copies of except federal holidays. They are also inspection reports, for the years 1988 the full texts of the Decisions and available in Energy Management: through September 1996, or provide a Orders are available in the Public Federal Energy Guidelines, a detailed explanation for withholding Reference Room of the Office of commercially published loose leaf any such information. Hearings and Appeals. Aurora Casket Company ...... RG272–604 ...... 4/16/97 Crude Oil Supple Ref ...... RB272–00101 .. 4/17/97 Herring Farm et al ...... RK272–01792 .. 4/17/97 Horn Trucking Co. et al ...... RK272–02263 .. 4/17/97 Legler Farms, Inc. et al ...... RK272–01330 .. 4/18/97 Minnie Dyk et al ...... RK272–2002 .... 4/16/97 Dismissals The following submissions were dismissed.

Name Case No.

Northern Farmers Cooperative Society ...... RG272±00717 OSU Motor Pool ...... RF272±86826 Personnel Security Hearing ...... VSO±0134 25946 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

[FR Doc. 97–12357 Filed 5–9–97; 8:45 am] records on the Internet, and accordingly not subject to the provisions of the BILLING CODE 6450±01±P denied this portion of the Appeal. Privacy Act or FOIA. Research Information Services, Inc., 04/ Supplemental Order 25/97, VFA–0283 DEPARTMENT OF ENERGY C. Lawrence Cornett, 4/24/97, VWX– Research Information Services, Inc. 0010 Office of Hearings and Appeals (RIS) filed an Appeal from a This Order supplements an Initial determination issued by the Office of Notice of Issuance of Decisions and Agency Decision, dated December 19, Arms Control and Nonproliferation 1996, issued by a DOE Hearing Officer Orders During the Week of April 21 (OACN). In that determination, OACN Through April 25, 1997 involving a ‘‘whistleblower’’ complaint furnished RIS with lists of information filed by C. Lawrence Cornett under the that had been forwarded to other DOE Contractor Employee Protection During the week of April 21 through agencies and the DOE Office of April 25, 1997, the decisions and orders Program, 10 C.F.R. Part 708. In the Declassification. In its Appeal, the RIS December 19 Decision, the Hearing summarized below were issued with contended that it was entitled to a list respect to appeals, applications, Officer recommended that Cornett be of information available in the FOIA awarded back pay lost as a result of the petitions, or other requests filed with Reading Room. The DOE rejected that the Office of Hearings and Appeals of reprisals taken against him, as well as contention, holding that it was not all costs and expenses reasonably the Department of Energy. The required to compile a list of the publicly following summary also contains a list incurred by him in bringing his available material. The RIS also complaint. Subsequently, Cornett of submissions that were dismissed by contended that OACN had not released the Office of Hearings and Appeals. submitted documentation pertaining to all responsive information. OACN his claimed back pay, attorney fees and Copies of the full text of these determined that some information had costs. In the Supplemental Order, the decisions and orders are available in the not been released and requested that the Hearing Officer awarded Cornett back Public Reference Room of the Office of matter be remanded to it for a new pay of $161,864 and interest of $33,543. Hearings and Appeals, Room 1E–234, determination either justifying the With regard to attorney fees, the Hearing Forrestal Building, 1000 Independence withholding of that information under Officer proportionally reduced Cornett’s Avenue, SW, Washington, D.C. 20585– Exemption 4 or releasing it. Therefore, attorney fee claim because of 0107, Monday through Friday, between the Appeal was denied in part and duplication of effort and inefficiencies the hours of 1:00 p.m. and 5:00 p.m., granted in part. of the multiple attorneys involved in the except federal holidays. They are also Richard J. Levernier, 04/25/97, VFA– case. The Hearing Officer awarded available in Energy Management: 0282 Cornett $76,230 for attorney fees. After Federal Energy Guidelines, a making reductions for costs not commercially published loose leaf The DOE issued a decision granting in reasonably related to the bringing of his reporter system. Some decisions and part a Freedom of Information Act complaint, the Hearing Officer awarded orders are available on the Office of (FOIA) Appeal filed by Richard J. Cornett $8,963 for costs. In total, the Hearings and Appeals World Wide Web Levernier. Levernier sought documents Hearing Officer awarded Cornett site at http://www.oha.doe.gov. concerning certain investigations by the DOE’s Office of Inspector General (IG). $280,600. Dated: May 5, 1997. In its decision, the DOE found that the Refund Application George B. Breznay, IG’s search for responsive documents Director, Office of Hearings and Appeals. was adequate and that the IG’s U.S. Department of Agriculture, 4/21/ 97, RF272–76126, RF272–78732 Decision List No. 30; Week of April 21 withholdings under FOIA Exemptions Through April 25, 1997 6, 7(C) and 7(D) were appropriate. The DOE issued an order approving However, the DOE questioned some of two Applications for Refund filed by the Appeals the IG’s withholdings under Exemption U.S. Department of Agriculture in the DOE’s Subpart V crude oil refund Information Focus on Energy, 4/25/97, 5. Accordingly, the Appeal was proceeding. The DOE determined that VFA–0281 remanded to the IG and denied in all other aspects. the claimed volumes were not The DOE issued a decision denying in purchased through the Defense Logistics part and granting in part a Freedom of Robert B. Freeman, 04/24/97, VFA–0279 Agency (DLA) and, therefore, were not Information Act (FOIA) Appeal filed by The DOE granted in part and denied covered by the refund granted DLA in Information Focus on Energy (IFOE). in part an appeal of a determination a separate case. The total refund granted IFOE sought Internet access to records withholding documents under Section to USDA was $127,733. of occurrence reports contained in a 552a(d)(5) of the Privacy Act. The DOE DOE database. The DOE’s FOIA/Privacy found that certain records were not Refund Applications Act Division (HQ) denied access to the subject to the exemption set forth in 5 The Office of Hearings and Appeals database, but released some responsive U.S.C. § 552a(d)(5), that information in issued the following Decisions and records to the requester. In its decision, these records must be released to the Orders concerning refund applications, the DOE found that HQ did not release appellant unless it is exempt from which are not summarized. Copies of all responsive records to IFOE, and disclosure under both the Privacy Act the full texts of the Decisions and granted this portion of the Appeal. and Freedom of Information Act (FOIA), Orders are available in the Public However, the DOE found that HQ had and that certain other records in the Reference Room of the Office of no obligation to provide the responsive possession of a private physician were Hearings and Appeals. Beatrice M. Ferron et al ...... RK272–01603 4/24/97 Dart Trucking ...... RG272–43 4/22/97 Defiance Landmark et al ...... RG272–11 4/21/97 Lewis Coal & Coke Co., Inc. et al ...... RK272–03649 4/22/97 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25947

Monahan Transportation Co., Inc ...... RF272–97370 4/23/97 Qantas Airways Limited ...... RF272–93603 4/23/97 Roy Anderson Paint Co ...... RG272–12 4/23/97 Shippers Transports, Inc ...... RF272–69235 4/24/97 Township of Dover et al ...... RF272–86027 4/22/97 Vic Kimmel Inc. et al ...... RK272–02909 4/24/97 West Bldg Materials/Assoc Distributors ...... RR272–268 4/23/97 Dismissals The following submissions were dismissed.

Name Case No.

Burbank Cooperative Creamery ...... RF272±895 Farmers Co-op Elevator Co ...... RG272±779 Grygle Cooperative Company ...... RG272±645 Inter-Lake Cooperative Association ...... RG272±697 Mesa Airlines, Inc ...... RF272±98792 Paramount Communications Realty Corp ...... RF272±98759 Personnel Security Hearing ...... VSO±0143

[FR Doc. 97–12358 Filed 5–9–97; 8:45 am] W–97–C–395, should be sent to Brad J. SUMMARY: In accordance with Section BILLING CODE 6450±01±P Beeson, Associate Regional Counsel, 122(i) of the Comprehensive U.S. Environmental Protection Agency, Environmental Response, Region 5, Mail Code: C–29A, 77 West Compensation, and Liability Act of ENVIRONMENTAL PROTECTION Jackson Boulevard, Chicago, Illinois 1980, as amended (‘‘CERCLA’’), 42 AGENCY 60604–3590. U.S.C. § 9622(i), the U.S. Environmental ADDITIONAL INFORMATION: Copies of the Protection Agency (‘‘EPA’’), Region II, [FRL±5824±2] Agreement and the Administrative announces a proposed administrative de Settlement Under Section 122(h) of the Record for this Site are available at U.S. minimis settlement pursuant to Section Comprehensive Environmental Environmental Protection Agency, 122(g)(4) of CERCLA, 42 U.S.C. Response, Compensation and Liability Region 5, Superfund Division, 9622(g)(4), relating to the Scientific Act (CERCLA); In the Matter of A.E. Emergency Response Branch, 77 West Chemical Processing Superfund Site Schnieder Scrap Yard, Chippewa Falls, Jackson Boulevard, Chicago, Illinois (‘‘Site’’). The Site is located in Carlstadt, WI 60604–3590. It is strongly recommended Bergen County, New Jersey and is that you telephone Ms. Mila Bensing at included on the National Priorities List AGENCY: Environmental Protection (312) 353–2006 before visiting the established pursuant to Section 105(a) Agency (EPA). Region 5 Office. of CERCLA. This notice is being ACTION: Settlement of CERCLA section Authority: The Comprehensive published pursuant to Section 122(i) of 107 cost recovery matter. Environmental Response, Compensation, and CERCLA to inform the public of the Liability Act of 1980, as amended, 42 U.S.C. proposed administrative de minimis SUMMARY: EPA is proposing to settle a 9601 et seq. settlement and of the opportunity to cost recovery claim with a potentially Dated: April 28, 1997. comment. This administrative de responsible party (PRP) with regard to minimis settlement will not be final past costs at the A.E. Schnieder Scrap William E. Muno, until formal approval by the Assistant Yard site (the Site) in Chippewa Falls, Director, Superfund Division. Attorney General and signature by the Wisconsin. The EPA is authorized [FR Doc. 97–12379 Filed 5–9–97; 8:45 am] Regional Administrator. under Section 122(h) of the CERCLA to BILLING CODE 6560±50±P enter into this administrative DATES: Comments must be provided on settlement. or before June 11, 1997. Response costs totaling $345,080 were ENVIRONMENTAL PROTECTION ADDRESSES: Comments should be incurred by EPA in connection with an AGENCY addressed to the U.S. Environmental emergency removal action at the Site. [FRL±5824±4] Protection Agency, Office of Regional On September 4, 1996, EPA sent the Counsel, New Jersey Superfund Branch, PRP a demand for reimbursement of the Notice of Proposed Administrative De 17th Floor, 290 Broadway, New York, EPA’s past costs. The Settling Party has Minimis Settlement Under Section New York 10007–1866 and should refer agreed to pay $300,000 to settle EPA’s 122(g)(4) of the Comprehensive to: In the Matter of Scientific Chemical claim for reimbursement of response Environmental Response, Processing Superfund Site, Index No. II– costs related to the Site. The EPA is Compensation and Liability Act, CERCLA–97–0106, Attn: Damaris Urdaz proposing to approve this Regarding the Scientific Chemical Cristiano, Assistant Regional Counsel. administrative settlement because it Processing Superfund Site, in FOR FURTHER INFORMATION CONTACT: A reimburses EPA, in part, for costs Rutherford, Bergen County, New copy of the proposed administrative incurred during its response activities at Jersey settlement agreement may be obtained this Site. AGENCY: Environmental Protection in person or by mail from Damaris DATES: Comments on this administrative Agency. Urdaz Cristiano, Assistant Regional settlement must be received by no later Counsel, New Jersey Superfund Branch, ACTION: Notice of proposed than June 11, 1997. Office of Regional Counsel, U.S. administrative settlement and ADDRESSES: Written comments relating Environmental Protection Agency, 17th opportunity for public comment. to this settlement, Docket Number V– Floor, 290 Broadway, New York, New 25948 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

York 10007–1866. Telephone: (212) time allowed by this notice, you should FEDERAL COMMUNICATIONS 637–3140. advise the contact listed below as soon COMMISSION SUPPLEMENTARY INFORMATION: as possible. The [WT Docket No. 97±115; FCC 97±124] proposed administrative settlement has ADDRESSES: Direct all comments to Judy been memorialized in an Administrative Boley, Federal Communications Order to Show Cause, Hearing Order on Consent between EPA and Commissions Room 234, 1919 M St., Designation Order and Notice of sixty settling de minimis Respondents. Opportunity for Hearing The settling de minimis Respondents NW., Washington, DC 20554 or via have agreed to pay a total of internet to [email protected]. AGENCY: Federal Communications $4,877,194.56. Of that amount FOR FURTHER INFORMATION CONTACT: For Commission. $975,438.91 will be paid directly to EPA additional information or copies of the ACTION: Notice. for partial reimbursement of its past information collections contact Judy SUMMARY: The Commission has ordered costs. The remaining $3,901,755.65 will Boley at 202–418–0214 or via internet at a hearing to inquire into the be placed in a trust fund for future [email protected]. remedial actions at the Site. qualifications of MobileMedia Dated: April 28, 1997. SUPPLEMENTARY INFORMATION: Corporation to remain a licensee of its William J. Muszynki, several thousand paging stations. The OMB Approval No.: None—(3060– action follows a voluntary disclosure by Acting Regional Administrator. XXXX). the company that it filed more than 200 [FR Doc. 97–12378 Filed 5–9–97; 8:45 am] Title: Section 2.803, Market of RF applications for paging licenses BILLING CODE 6560±50±P Devices Prior to Equipment containing false information. The Order Authorization. directs the Administrative Law Judge to take evidence, develop a full factual FEDERAL COMMUNICATIONS Type of Review: New Collection. record, and issue a recommended COMMISSION Respondents: Business or other for- decision. profit. Notice of Public Information ADDRESSES: Enforcement Division, Collections Submitted to OMB for Number of Respondents: 6,000. Wireless Telecommunications Bureau, Review and Approval Estimate Hour Per Response: .5 hours. Federal Communications Commission, Washington, D.C. 20554. Frequency of Response: Third Party May 5, 1997. FOR FURTHER INFORMATION CONTACT: Gary Disclosure; On Occasion. P. Schonman, Enforcement Division, SUMMARY: The Federal Communications Total Annual Burden: 3,000 hours. Wireless Telecommunications Bureau, Commissions, as part of its continuing Needs and Uses: Commission rules (202) 418–0569. effort to reduce paperwork burden established in ET Docket 94–45, Report SUPPLEMENTARY INFORMATION: This is a invites the general public and other and Order, to allow all radiofrequency summary of an Order to Show Cause, Federal agencies to take this devices in the development, design or Hearing Designation Order and Notice opportunity to comment on the preproduction stages to be advertised, of Opportunity for Hearing in WT following information collection, as displayed, and offered for sale to Docket 97–115, adopted April 7, 1997, required by the Paperwork Reduction distributors and retailers prior to a and released April 8, 1997. Act of 1995, Public Law 104–13. An demonstration of compliance with the The full text of Commission decisions agency may not conduct or sponsor a applicable equipment authorization are available for inspection and copying collection of information unless it procedure. The display or offer for sale during normal business hours in the displays a currently valid control must be accompanied by a FCC Dockets Branch, 1919 M Street, number. No person shall be subject to N.W., Suite 230, Washington, D.C. The any penalty for failing to comply with conspicuously displayed or written notice to all third parties that the subject complete text of this decision may also a collection of information subject to the be purchased from the Commission’s Paperwork Reduction Act (PRA) that equipment is subject to, and must comply with, the FCC rules prior to copy contractor, International does not display a valid control number. Transcription Service, Inc., 2100 M delivery. The information disclosed is Comments are requested concerning (a) Street, N.W., Suite 140, Washington, intended to ensure compliance of the whether the proposed collection of D.C. 20037 (202) 857–3800. information is necessary for the proper proposed equipment with the performance of the functions of the Commissions Rules, while assisting Summary of Order to Show Cause, Commission, including whether the industry efforts to introduce new Hearing Designation Order and Notice information shall have practical utility; products to the marketplace more of Opportunity for Hearing (b) the accuracy of the Commission’s promptly. This information disclosure 1. The Federal Communications burden estimate; (c) ways to enhance applies to a variety of equipment that is Commission (‘‘Commission’’) has the quality, utility, and clarify of the both currently manufactured, and may adopted an Order commencing an information collected; and (d) ways to be manufactured in the future, and that administrative hearing to inquire into minimize the burden of the collection of operates under varying technical the qualification of MobileMedia information on the respondents, standards. The information disclosed is Corporation, its various subsidiary and including the use of automated essential to controlling potential associated organizations collection techniques or other forms of interference to radio communications. (‘‘MobileMedia’’), to remain a licensee. information technology. Federal Communications Commission. The Commission’s action follows a DATES: Written comments should be voluntary disclosure by the company submitted on or before June 11, 1997. If William F. Caton, and a subsequent Commission staff you anticipate that you will be Acting Secretary. investigation, which revealed that submitting comments, but find it [FR Doc. 97–12280 Filed 5–9–97; 8:45 am] MobileMedia filed applications for more difficult to do so within the period of BILLING CODE 6712±01±P than 200 paging licenses containing Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25949 false information. (See Public Notice, paging facilities without valid 5. The Commission directed the ALJ DA 97–78 (released January 13, 1997), authorizations; to make only a recommended decision 12 FCC Rcd. 792). Consistent with (d) To determine the facts and in the case, rather than an initial established practices, MobileMedia may circumstances surrounding decision. Decisions as to the continue to operate their licensed MobileMedia’s filing of FCC Forms 489 conclusions of law and appropriate facilities and provide service to the more than 15 days after the sanctions or disposition are reserved to public during the pendency of the commencement of service (including, the Commission. hearing. but not limited to, the identity of all (47 U.S.C. 309; 47 U.S.C. 312.) 2. The Hearing Designation Order officers, directors and senior Federal Communications Commission. adopted by the Commission on April 7, management personnel who William F. Caton, 1997, directs that MobileMedia’s participated in, orchestrated, approved, Acting Secretary. applications which are pending before condoned, or had knowledge of the the Commission be designated for filings; and the nature and extent of [FR Doc. 97–12281 Filed 5–9–97; 8:45 am] hearing, and that MobileMedia show their participation, including their BILLING CODE 6712±01±U cause why its licenses should not be intent) and whether MobileMedia revoked, in a consolidated proceeding, willfully or repeatedly violated section upon the following issues: 22.142 of the Commission’s Rules by FEDERAL DEPOSIT INSURANCE (a) To determine the facts and filing FCC Forms 489 more than 15 days CORPORATION circumstances surrounding after the commencement of service; Uniform Guideline on Internal Control MobileMedia’s filing of FCC Forms 489 (e) To determine whether there exists for Foreign Exchange Activities in and ‘‘40-Mile’’ applications with the any mitigating evidence indicative of Commercial Banks; Rescission of Commission containing false MobileMedia’s future ability to deal Uniform Guideline information (including, but not limited truthfully with the Commission and to to, the identity of all officers, directors comply with all pertinent provisions of AGENCY: Federal Deposit Insurance and senior management personnel who the Commission’s Rules and the Corporation (FDIC). participated in, orchestrated, approved, Communications Act of 1934, as condoned, or had knowledge of the ACTION: Rescission of Adoption of amended; filings; and the nature and extent of Uniform Guideline. (f) To determine, in light of the their involvement, including their evidence adduced pursuant to issues SUMMARY: As part of the FDIC’s intent) and whether MobileMedia (a)–(e), whether MobileMedia is systematic review of its regulations and knowingly made false statements, qualified to be and remain a written policies under section 303(a) of engaged in misrepresentations, lacked Commission licensee; the Riegle Community Development and candor, or willfully or repeatedly Regulatory Improvement Act of 1994 violated section 1.17 of the (g) To determine, in light of the evidence adduced pursuant to issues (CDRI Act), the FDIC is rescinding its Commission’s Rules with regard to the adoption of the Uniform Guideline on filing of FCC Forms 489 and the filing (a)–(e), whether the pending applications filed by MobileMedia Internal Control for Foreign Exchange of ‘‘40-Mile’’ applications; Activities in Commercial Banks (b) To determine the facts and should be granted; and (h) To determine, in light of the (Uniform Guideline). The Uniform circumstances surrounding Guideline was originally adopted by the MobileMedia’s submission of its evidence adduced pursuant to issues (a)–(e), whether the licenses held by FDIC’s Board of Directors in June 13, October 15, 1996, Report to the Bureau 1980, in conjunction with the issuance (including, but not limited to, the MobileMedia should be revoked. of the Uniform Guideline by the identity of all persons who participated 3. The Order further directs the member agencies of the Federal in the preparation of the Report and the Administrative Law Judge (‘‘ALJ’’) to Financial Institutions Examination nature and extent of their participation, take evidence and develop a full factual Council (FFIEC). The FDIC is rescinding including their intent) and whether record on issues concerning the Uniform Guideline because it is MobileMedia knowingly made false MobileMedia’s filing of false forms and outmoded and duplicative. In addition, statements, engaged in applications. In recognition that the this FDIC Board action supports the misrepresentations, lacked candor, or public interest will be served by FFIEC’s recent withdrawal of the willfully or repeatedly violated section expediting the hearing proceeding to the Uniform Guideline on February 27, 1.17 of the Commission’s Rules with fullest possible extent, the Commission regard to the submission of the October directed the ALJ to issue a 1997. 15, 1996, Report to the Bureau; recommended decision within six EFFECTIVE DATE: This Uniform Guideline (c) To determine the facts and months of the release of the order. The is rescinded May 12, 1997. circumstances surrounding Order directs the ALJ to make factual FOR FURTHER INFORMATION CONTACT: MobileMedia’s construction and findings concerning whether Christie A. Sciacca, Assistant Director, operation of paging facilities without MobileMedia engaged in (202/898–3671), Joseph Duffy, Senior valid authorizations (including, but not misrepresentations, lacked candor, and Banking Analyst, (212/704–1323), limited to, the identity of all officers, willfully or repeatedly violated the Division of Supervision; Michael B. directors and senior management Commission’s Rules. Phillips, Counsel, (202/898–3581), Legal personnel who participated in, 4. The Commission recognized that Division, FDIC, 550 17th Street, N.W., orchestrated, approved, condoned, or MobileMedia voluntarily disclosed the Washington, D.C. 20429. had knowledge of the construction and false filings and represents that it has SUPPLEMENTARY INFORMATION: The FDIC operation; and the nature and extent of since taken remedial action. Therefore, is conducting a systematic review of its their involvement, including their MobileMedia will have the opportunity regulations and written policies. Section intent) and whether MobileMedia to introduce mitigating evidence of its 303(a) of the CDRI Act (12 U.S.C. willfully or repeatedly violated sections ability to deal truthfully with the 4803(a)) requires the FDIC, the Office of 22.3 and 22.143 of the Commission’s Commission and to abide by its Rules in the Comptroller of the Currency, and the Rules by constructing and operating the future. Board of Governors of the Federal 25950 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Reserve System (Federal banking Section 303(a) of the CDRI Act also Federal Deposit Insurance Corporation. agencies), in addition to the Office of requires the Federal banking agencies to Valerie J. Best, Thrift Supervision, to each streamline work jointly towards uniformity of Assistant Executive Secretary. and modify its regulations and written guidelines implementing common [FR Doc. 97–12434 Filed 5–7–97; 4:02 pm] policies in order to improve efficiency, supervisory policies. FFIEC through the BILLING CODE 6214±01±M reduce unnecessary costs, and eliminate federal banking agencies has determined unwarranted constraints on credit that the Uniform Guideline is no longer availability. Section 303(a) also requires necessary for the aforementioned each of the Federal banking agencies to reasons, and the other Federal banking FEDERAL EMERGENCY remove inconsistencies and outmoded agencies will also take action to rescind MANAGEMENT AGENCY and duplicative requirements from its their adoption of the Uniform regulations and written policies. Agency Information Collection As part of this review, the FDIC has Guideline. Activities: Proposed Collection; determined that the Uniform Guideline For the above reasons, the FDIC Comment Request is outmoded and duplicative, and that Board’s adoption of the Uniform ACTION: Notice and request for the FDIC’s written policies can be Guideline is rescinded. streamlined by its elimination. comments. Through an issuance from the FFIEC By order of the Board of Directors. SUMMARY: The Federal Emergency dated February 27, 1997, the Federal Dated at Washington, D.C. this 29th day of April, 1997. Management Agency, as part of its banking agencies stated their continuing effort to reduce paperwork Federal Deposit Insurance Corporation. withdrawal of the joint FFIEC guideline and respondent burden, invites the entitled ‘‘Interagency Policy Statement Robert E. Feldman, general public and other Federal Regarding Uniform Guidelines on Deputy Executive Secretary. agencies to comment on a collection of Internal Control for Foreign Exchange in [FR Doc. 97–12285 Filed 5–9–97; 8:45 am] information. In accordance with the Commercial Banks,’’ dated May 22, BILLING CODE 6714±01±P Paperwork Reduction Act of 1995 (44 1980. (See 62 FR 9767 (March 4, 1997.) U.S.C. 3506(c)(2)(A)), this notice seeks This document is identical to the comments concerning the information Uniform Guideline which the FDIC FEDERAL DEPOSIT INSURANCE collection outlined in 44 CFR part 71, as Board adopted on June 13, 1980. The FFIEC developed the Uniform CORPORATION it pertains to application for National Guideline to provide general Flood Insurance Program (NFIP) Sunshine Act Meeting; Notice of supervisory guidance to insured insurance for buildings located in depository institutions with respect to Agency Meeting Coastal Barrier Resource System (CBRS) (i) policy documentation, (ii) internal communities. Pursuant to the provisions of the accounting controls, and (iii) audit SUPPLEMENTARY INFORMATION: The documentation. In addition, the ‘‘Government in the Sunshine Act’’ (5 Coastal Barrier Resources Act (CBRA Uniform Guideline sets forth minimum U.S.C. 552b), notice is hereby given that Pub. L. 97–3480) and the Coastal Barrier standards concerning the internal at 10:29 a.m. on Tuesday, May 6, 1997, Improvement Act (CBRA Pub.L. 101– control for foreign exchange activities in the Board of Directors of the Federal 591) are federal laws that were enacted commercial banks. Each of the Federal Deposit Insurance Corporation met in on October 1, 1982, and November 16, banking agencies adopted the Uniform closed session to consider matters 1990, respectively. The legislation was Guideline, with the FDIC Board’s relating to the Corporation’s corporate implemented as part of a Department of adoption taking place on June 13, 1980. activities. the Interior (DOI) initiative to preserve (See 45 FR 42376 (June 24, 1980).) In calling the meeting, the Board the ecological integrity of areas DOI The Uniform Guideline has become determined, on motion of Vice designates as coastal barriers and outdated in view of trading activities Chairman Andrew C. Hove, Jr., otherwise protected areas. The laws according to specific product lines, provide this protection by prohibiting seconded by Director Joseph H. Neely various changes in the capital markets, all federal expenditures or financial (Appointive), concurred in by Director and bank foreign exchange activities assistance including flood insurance for Eugene A. Ludwig (Comptroller of the that have taken place subsequent to residential or commercial development 1980, including: the scope and depth of Currency), and Chairman Ricki Helfer, in areas identified within the system. foreign exchange trading activities in that Corporation business required its When an application for flood insurance banks, new product developments, consideration of the matters on less than is submitted for buildings located in significant improvements in automated seven days’ notice to the public; that no CBRS communities, documentation trading systems, and the management of earlier notice of the meeting was must be submitted as evidence of foreign exchange trading activities practicable; that the public interest did eligibility. according to specific product lines. not require consideration of the matters Subsequent to 1980, the respective in a meeting open to public observation; Collection of Information Federal banking agencies have issued and that the matters could be Title: Implementation of Coastal policy letters and circulars to bank considered in a closed meeting by Barrier Resources Act. examiners concerning the risk authority of subsection (c)(2) of the Type of Information Collection: management of capital market activities, ‘‘Government in the Sunshine Act’’ (5 Extension of a currently approved including foreign exchange activities, in U.S.C. 552b (c)(2)). collection. addition to further enhancements to OMB Number: 3067–0120. The meeting was held in the Board their respective examination Form Number: None. Room of the FDIC Building located at procedures. The FDIC has incorporated Abstract: When an application for guidance on internal controls for foreign 550—17th Street, N.W., Washington, flood insurance is submitted for exchange activities into its Capital D.C. buildings located in CBRS communities, Markets Examination Handbook. Dated: May 7, 1997. one of the following types of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25951 documentation must be submitted as construction date preceded the date that Affected Public. Individuals or evidence of eligibility: the community was identified in the households; Business or other for-profit; • Certification from a community system. Not-for-profit institutions; Farms; official stating the building is not • Certification from the governmental Federal Government; State, Local or located in a designated CBRS area. body overseeing the area indicating that Tribal Government. • A legally valid building permit or the building is used in a manner certification from a community official consistent with the purpose for which Estimated Total Annual Burden stating that the building’s start of the area is protected. Hours. 75.

No. of Frequency of Annual burden respondents response Hours per response Hours (A) (B) (C) (A×B×C)

50 once per respondent 1.5 75

Estimated Total Cost to Respondents. clarity of the information to be Paperwork Reduction Act of 1995 (44 $500 (50 respondents × $10 per collected; and (e) minimize the burden U.S.C. Chapter 35). OMB approval has respondent). The cost to the respondent, of the collection of information on those been requested by May 2, 1997. FEMA i.e., applicant for flood insurance, is the who are to respond, including through is seeking emergency clearance to obtain cost, if any, to obtain the required the use of appropriate automated, data that will be used in the preparation documentation from local officials. Fees electronic, mechanical, or other of a report to the President and Congress charged, if any, to the applicants, are technological collection techniques or by October 1, 1997, on the status of nominal, i.e., the cost of photocopying other forms of information technology, States’ capabilities to respond to the public record. Information of this e.g., permitting electronic submission of disaster, including a baseline summary type is frequently provided upon responses. Comments should be of the Nation’s emergency management request free of charge by the community received by July 11, 1997. capabilities. as a public service. The average cost to ADDRESSES: Interested persons should Collection of Information the respondent is estimated to be $10, submit written comments to Muriel B. the cost to make phone calls, mail a Anderson, FEMA Information Title: Capability Assessment Tool. written request, or make a trip to a local Collections Officer, Federal Emergency Type of Review: New. office to obtain the document, and Management Agency, 500 C Street, SW, Abstract: FEMA has developed a includes any copying fees which may be Room 311, Washington, DC 20472. comprehensive emergency management charged by the local office. Telephone number (202) 646–2625. capability assessment process to obtain Estimated Total Cost to the FAX number (202) 646–3524. baseline data of the Nation’s emergency Government. $199.50 (50 responses × management system. States will use the FOR FURTHER INFORMATION CONTACT: $3.99 per response). The dollar cost to Capability Assessment Tool data Contact Donald R. Beaton, Jr., Chief the Federal Government to process, collection instrument to assess and Underwriter, Federal Insurance analyze and maintain the information develop their emergency management Administration at (202) 646–3442 for which is submitted by the applicant for capabilities. The fiscal year 1997 data additional information. Contact Ms. National Flood Insurance Program collection is the first assessment and Anderson at (202) 646–2625 for copies insurance along with the application is will establish the baseline of of the proposed collection of minimal. The information required capabilities. The States will use the information. under this information collection is baseline data to negotiate with FEMA processed in conjunction with the Dated: April 30, 1997. Regions Performance Partnership application for NFIP insurance. The Reginald Trujillo, Agreement (PPA) and annual government pays the NFIP servicing Director, Program Services Division, Cooperative Agreement (CA) contractor an annual figure of $19.93 Operations Support Directorate. submissions to FEMA. The initial per new policy. The dollar cost to the [FR Doc. 97–12373 Filed 5–9–97; 8:45 am] assessment is the beginning of a cyclical government to process the BILLING CODE 6718±01±M process in which similar assessments documentation required by this would occur every 2 years in step with information collection is estimated to be the PPA/CA cycle, identifying capability $3.99, arrived at by allocating 20% of FEDERAL EMERGENCY improvements over time. The initial the amount paid to the NFIP servicing MANAGEMENT AGENCY assessments should be completed by agent to process a new application. September 1, 1997. The data will enable COMMENTS: Written comments are Agency Information Collection FEMA to: assess States’ emergency solicited to (a) Evaluate whether the Activities: Submission for Emergency management performance and proposed data collection is necessary for Review and Clearance by OMB; readiness; strategically manage and the proper performance of the agency, Comment Request coordinate emergency resources at all including whether the information shall ACTION: Notice and request for governmental levels; assure that Federal have practical utility; (b) evaluate the comments. funding to State and local governments accuracy of the agency’s estimate of the under the PPA/CA is properly managed burden of the proposed collection of SUMMARY: The Federal Emergency and targeted to those areas that need information, including the validity of Management Agency (FEMA) has improvement; and, analyze program the methodology and assumptions used; submitted the following request for performance as part of the PPA/CA to (c) evaluate the accuracy of the emergency processing of a collection of satisfy the Government Performance and estimated costs to respondents to information to the Office of Results Act of 1993. provide the information to the agency; Management and Budget (OMB) for Affected Public: State, local or tribal (d) enhance the quality, utility, and review and clearance under the government. 25952 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Estimated Total Annual Burden SUMMARY: In accordance with section voting shares of Cumberland Valley Hours: 4,480. 10(a)(2) of the Federal Advisory Financial Company, London, Kentucky, Number of Responses: 56. Committee Act, 5 U.S.C. App. 1, the and thereby indirectly retain Estimated Hours Per Response: 80 Federal Emergency Management Agency Cumberland Valley National Bank and hours. gives notice that the following meeting Trust Company, London, Kentucky. Frequency: Biennial. will be held: B. Federal Reserve Bank of Atlanta Estimated Annual Cost to NAME: Technical Mapping Advisory (Lois Berthaume, Vice President) 104 Respondents: The estimated average Council. Marietta Street, N.W., Atlanta, Georgia single state cost is $1,640. The total 30303-2713: estimated annual cost for 56 States and DATES OF MEETING: May 21 and 22, 1997. 1. Ronald J. Lashute, Opelousas, territories is $91,840. PLACES: The meeting will be held at the Louisiana; to acquire an additional COMMENTS: Written comments are Pittsburgh Hilton and Towers, Gateway Center, Pittsburgh, PA. 13.33 percent, for a total of 13.69 solicited to (a) Evaluate whether the percent, of the voting shares of TIMES: proposed data collection is necessary for 2 p.m. to 5 p.m. on Wednesday American Bancorp, Inc., Opelousas, the proper performance of the agency, and 8:30 a.m. to 4 p.m. Thursday. Louisiana, and thereby indirectly including whether the information shall PROPOSED AGENDA: Council members acquire American Bank & Trust have practical utility; (b) evaluate the will provide progress reports on Company, Opelousas, Louisiana. accuracy of the agency’s estimate of the subgroup assignments and action items C. Federal Reserve Bank of St. Louis burden of the proposed collection of from the last meeting. (Randall C. Sumner, Vice President) 411 information, including the validity of STATUS: This meeting is open to the Locust Street, St. Louis, Missouri 63102- the methodology and assumptions used; public. 2034: (c) enhance the quality, utility, and FOR FURTHER INFORMATION CONTACT: 1. William Howerton Young, clarity of the information to be Michael K. Buckley, PE, Federal Fredonia, Kentucky; to acquire an collected; and (d) minimize the burden Emergency Management Agency, 500 C additional 5.4 percent, for a total of 20.4 of the collection of information on those Street SW., room 421, Washington, DC percent, of the voting shares of Fredonia who are to respond, including through 20472; telephone (202) 646–2756 or by Valley Bancorp, Inc., Fredonia, the use of appropriate automated, fax as noted above. Kentucky, and thereby indirectly electronic, mechanical, or other acquire Fredonia Valley Bank, Fredonia, technological collection techniques or Dated: May 6, 1997. Kentucky. other forms of information technology, Craig S. Wingo, e.g., permitting electronic submission of Deputy Associate Director, Mitigation Board of Governors of the Federal Reserve responses. Comments on the collection Directorate. System, May 5, 1997. of information will be accepted by [FR Doc. 97–12380 Filed 5–9–97; 8:45 am] Jennifer J. Johnson, FEMA through August 31, 1997. BILLING CODE 6718±04±P Deputy Secretary of the Board. ADDRESSES: Direct comments on the [FR Doc. 97–12276 Filed 5-9-97; 8:45 am] collection of information to the Office of BILLING CODE 6210-01-F Management and Budget, Office of FEDERAL RESERVE SYSTEM Information and Regulatory Affairs, ATTN: Ms. Victoria Baecher-Wassmer, Change in Bank Control Notices; FEDERAL RESERVE SYSTEM Desk Officer for the Federal Emergency Acquisitions of Shares of Banks or Management Agency, Washington, DC Bank Holding Companies Change in Bank Control Notices; 20503. Telephone number (202) 395– Acquisitions of Shares of Banks or The notificants listed below have Bank Holding Companies 5871. applied under the Change in Bank FOR FURTHER INFORMATION CONTACT: For Control Act (12 U.S.C. 1817(j)) and § The notificants listed below have copies of the proposed collection of 225.41 of the Board’s Regulation Y (12 applied under the Change in Bank information, contact Muriel B. CFR 225.41) to acquire a bank or bank Control Act (12 U.S.C. 1817(j)) and § Anderson, FEMA Information holding company. The factors that are 225.41 of the Board’s Regulation Y (12 Collections Officer, Federal Emergency considered in acting on the notices are CFR 225.41) to acquire a bank or bank Management Agency, 500 C Street, SW., set forth in paragraph 7 of the Act (12 holding company. The factors that are Room 311, Washington, DC 20472. U.S.C. 1817(j)(7)). considered in acting on the notices are Telephone number (202) 646–2625. The notices are available for set forth in paragraph 7 of the Act (12 Dated: April 28, 1997. immediate inspection at the Federal U.S.C. 1817(j)(7)). Reginald Trujillo, Reserve Bank indicated. Once the The notices are available for Director, Program Services Division, notices have been accepted for immediate inspection at the Federal Operations Support Directorate. processing, they will also be available Reserve Bank indicated. Once the [FR Doc. 97–12374 Filed 5–9–97; 8:45 am] for inspection at the offices of the Board notices have been accepted for BILLING CODE 6718±01±M of Governors. Interested persons may processing, they will also be available express their views in writing to the for inspection at the offices of the Board Reserve Bank indicated for that notice of Governors. Interested persons may FEDERAL EMERGENCY or to the offices of the Board of express their views in writing to the MANAGEMENT AGENCY Governors. Comments must be received Reserve Bank indicated for that notice not later than May 23, 1997. or to the offices of the Board of Open Meeting, Technical Mapping A. Federal Reserve Bank of Cleveland Governors. Comments must be received Advisory Council (Jeffrey Hirsch, Banking Supervisor) not later than May 27, 1997. AGENCY: Federal Emergency 1455 East Sixth Street, Cleveland, Ohio A. Federal Reserve Bank of Atlanta Management Agency (FEMA). 44101-2566: (Lois Berthaume, Vice President) 104 1. Elmo Greer, East Bernstadt, Marietta Street, N.W., Atlanta, Georgia ACTION: Notice of meeting. Kentucky; to retain 14.10 percent of the 30303-2713: Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25953

1. Charlie Deer, Monroeville, B. Federal Reserve Bank of St. Louis Once the notice has been accepted for Alabama; to acquire an additional 14.77 (Randall C. Sumner, Vice President) 411 processing, it will also be available for percent, for a total of 24.75 percent, of Locust Street, St. Louis, Missouri 63102- inspection at the offices of the Board of the voting shares of First Citizens 2034: Governors. Interested persons may Bancorp, Inc., Monroeville, Alabama, 1. Trustcorp Financial, Inc., St. Louis, express their views in writing on the and thereby indirectly acquire First Missouri; to become a bank holding question whether the proposal complies Citizens Bank of Monroe County, company by acquiring 100 percent of with the standards of section 4 of the Monroeville, Alabma. the voting shares of Missouri State Bank BHC Act. Board of Governors of the Federal Reserve and Trust Company, St. Louis, Missouri. Unless otherwise noted, comments System, May 6, 1997. C. Federal Reserve Bank of Kansas regarding the applications must be City (D. Michael Manies, Assistant Vice Jennifer J. Johnson, received at the Reserve Bank indicated President) 925 Grand Avenue, Kansas or the offices of the Board of Governors Deputy Secretary of the Board. City, Missouri 64198-0001: not later than May 23, 1997. [FR Doc. 97–12317 Filed 5-9-97; 8:45 am] 1. The Farmers State Bank of Fort A. Federal Reserve Bank of New BILLING CODE 6210-01-F Morgan, ESOP, Fort Morgan, Colorado; York (Betsy Buttrill White, Senior Vice to acquire an additional 7.91 percent, President) 33 Liberty Street, New York, for a total of 33.09 percent, of the voting New York 10045-0001: FEDERAL RESERVE SYSTEM shares of FSB Bancorporation, Inc., Fort 1. Commerzbank Aktiengesellschaft, Formations of, Acquisitions by, and Morgan, Colorado, and thereby Frankfurt Main, Germany; to acquire Mergers of Bank Holding Companies indirectly acquire Farmers State Bank, Commerz Futures Corporation, Chicago, Fort Morgan, Colorado. Illinois, and thereby engage in financial The companies listed in this notice 2. Lauritzen Corporation, Omaha, and investment advisory activities, have applied to the Board for approval, Nebraska; to acquire 3.68 percent, for a pursuant to § 225.28(b)(6) of the Board’s pursuant to the Bank Holding Company total of 24.9 percent, of the voting shares Regulation Y. The proposed activities Act of 1956 (12 U.S.C. 1841 et seq.) of First National of Nebraska, Inc., will be conducted worldwide. (BHC Act), Regulation Y (12 CFR Part Omaha, Nebraska, and thereby B. Federal Reserve Bank of Atlanta 225), and all other applicable statutes indirectly acquire First National Bank of (Lois Berthaume, Vice President) 104 and regulations to become a bank Kansas, Overland Park, Kansas; First Marietta Street, N.W., Atlanta, Georgia holding company and/or to acquire the National Bank and Trust Company, 30303-2713: assets or the ownership of, control of, or Columbus, Nebraska; Fremont National 1. Republic Bancshares, Inc., St. the power to vote shares of a bank or Bank, Fremont, Nebraska; Platte Valley Petersburg, Florida; to acquire F.F.O. bank holding company and all of the State Bank, Kearney, Nebraska; First Financial Group, Inc., St. Cloud, banks and nonbanking companies National Bank, North Platte, Nebraska; Florida, and thereby indirectly acquire owned by the bank holding company, and First National Bank of Omaha, First Federal Savings and Loan including the companies listed below. Omaha, Nebraska. Association of Osceola County, The applications listed below, as well Board of Governors of the Federal Reserve Kissimmee, Florida, and thereby engage as other related filings required by the System, May 5, 1997. in operating a savings association, Board, are available for immediate Jennifer J. Johnson, pursuant to § 225.28(b)(4)(ii) of the inspection at the Federal Reserve Bank Deputy Secretary of the Board. Board’s Regulation Y. The proposed activities will be conducted throughout indicated. Once the application has [FR Doc. 97–12274 Filed 5-9-97; 8:45 am] the State of Florida. been accepted for processing, it will also BILLING CODE 6210-01-F be available for inspection at the offices Board of Governors of the Federal Reserve of the Board of Governors. Interested System, May 5, 1997. persons may express their views in FEDERAL RESERVE SYSTEM Jennifer J. Johnson, writing on the standards enumerated in Deputy Secretary of the Board. the BHC Act (12 U.S.C. 1842(c)). If the Notice of Proposals to Engage in [FR Doc. 97–12275 Filed 5-9-97; 8:45 am] proposal also involves the acquisition of Permissible Nonbanking Activities or BILLING CODE 6210-01-F a nonbanking company, the review also to Acquire Companies that are includes whether the acquisition of the Engaged in Permissible Nonbanking nonbanking company complies with the Activities FEDERAL RESERVE SYSTEM standards in section 4 of the BHC Act. The companies listed in this notice Notice of Proposals to Engage in Unless otherwise noted, nonbanking have given notice under section 4 of the activities will be conducted throughout Permissible Nonbanking Activities or Bank Holding Company Act (12 U.S.C. to Acquire Companies that are the United States. 1843) (BHC Act) and Regulation Unless otherwise noted, comments Engaged in Permissible Nonbanking Y, (12 CFR Part 225) to engage de novo, Activities regarding each of these applications or to acquire or control voting securities must be received at the Reserve Bank or assets of a company that engages The companies listed in this notice indicated or the offices of the Board of either directly or through a subsidiary or have given notice under section 4 of the Governors not later than June 2, 1997. other company, in a nonbanking activity Bank Holding Company Act (12 U.S.C. A. Federal Reserve Bank of that is listed in § 225.28 of Regulation 1843) (BHC Act) and Regulation Richmond (A. Linwood Gill, III Y (12 CFR 225.28) or that the Board has Y, (12 CFR Part 225) to engage de novo, Assistant Vice President) 701 East Byrd determined by Order to be closely or to acquire or control voting securities Street, Richmond, Virginia 23261-4528: related to banking and permissible for or assets of a company that engages 1. Community Bankshares bank holding companies. Unless either directly or through a subsidiary or Incorporated, Petersburg, Virginia; to otherwise noted, these activities will be other company, in a nonbanking activity acquire 100 percent of the voting shares conducted throughout the United States. that is listed in § 225.28 of Regulation of County Bank of Chesterfield, Each notice is available for inspection Y (12 CFR 225.28) or that the Board has Midlothian, Virginia. at the Federal Reserve Bank indicated. determined by Order to be closely 25954 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices related to banking and permissible for GENERAL SERVICES General Services Adiminstration, bank holding companies. Unless ADMINISTRATION (WPCAA), Property Development otherwise noted, these activities will be Division, Room 2634, 7th & D Streets conducted throughout the United States. Changes in Notice of Intent To Prepare SW, Washington, D.C. 20407, telephone Each notice is available for inspection an Environmental Impact Statement for (202) 708–4900, ext. 256, or E-mail at the Federal Reserve Bank indicated. the Exterior Security of Federally [email protected]. Occupied Buildings in the Washington Once the notice has been accepted for Dated: May 6, 1997. processing, it will also be available for Metropolitan Area William R. Lawson, inspection at the offices of the Board of In the Federal Register on March 6, Governors. Interested persons may Assistant Regional Administrator, Public 1997, the General Services Buildings Service. express their views in writing on the Administration (GSA) announced its question whether the proposal complies [FR Doc. 97–12385 Filed 5–9–97; 8:45 am] intent to prepare an Environmental with the standards of section 4 of the BILLING CODE 6820±BR±M Impact Statement (EIS) to evaluate the BHC Act. Unless otherwise noted, comments potential environmental impacts of regarding the applications must be perimeter security near selected DEPARTMENT OF HEALTH AND received at the Reserve Bank indicated federally-occupied buildings in the HUMAN SERVICES or the offices of the Board of Governors Washington Metropolitan Area. Our National Committee on Vital and Health not later than May 27, 1997. goal is to enhance perimeter security in A. Federal Reserve Bank of such a manner as to assist in the Statistics: Meetings revitalization of the Nation’s Capital. Minneapolis (Karen L. Grandstrand, Pursuant to the Federal Advisory Locations selected for study have a high Vice President) 250 Marquette Avenue, Committee Act, the Department of concentration of federal agencies, such Minneapolis, Minnesota 55480-2171: Health and Human Services announces as some areas within the District of 1. TCF Financial Corporation; the following advisory committee Columbia; Prince Georges County, MD; Minneapolis, Minnesota; to acquire meeting. Winthrop Resources Corporation, Montgomery County, MD; Arlington Minnetonka, Minnesota, and thereby County, VA and Fairfax County, VA. Name: National Committee on Vital and The public scoping meetings are now Health Statistics (NCVHS), Executive engage in leasing personal property, Committee. pursuant to § 225.28(b)(3) of the Board’s scheduled for May 21, 1997 beginning at 7:30 p.m. and May 22, 1997 beginning Times and Dates: 9:00 a.m.–5:30 p.m., June Regulation Y. 3, 1997; 9:00 a.m.–5:30 p.m., June 4, 1997. at 9:00 a.m. at the Auditorium of the Place: Federal Building, 450 Golden Gate Board of Governors of the Federal Reserve General Services Administration System, May 6, 1997. Avenue, San Francisco, CA. Regional Office Building located at 7th Status: Open. Jennifer J. Johnson, & D Streets, SW, Washington, D.C. Purpose: Under the Administrative Deputy Secretary of the Board. 20407 (enter on the D Street Entrance). Simplification provisions of the Health [FR Doc. 97–12316 Filed 5-9-97; 8:45 am] During the scoping process GSA will Insurance Portability and Accountability Act BILLING CODE 6210-01-F identify any additional alternatives that of 1996 (HIPAA), the Secretary of Health and need to be addressed in the EIS. Human Services is required to adopt At the scoping meetings there will be standards for specified administrative health care transactions to enable information to be GENERAL SERVICES a brief presentation and then a public exchanged electronically. The law requires ADMINISTRATION comment period. GSA representatives that, within 24 months of adoption, all health will be available at this meeting to plans, health care clearinghouses and health Public Hearing Historic Resources receive comments from the public care providers who choose to conduct these Mitigation Review regarding issues of concern. It is transactions electronically must comply with important that federal, state, and local these standards. Further, the law requires The General Services Administration DHHS to submit a report to Congress would like to invite public participation agencies and interested groups and individuals take this opportunity to containing detailed recommendations on and solicit development alternatives standards with respect to the privacy of and/or mitigation measures for the identify environmental concerns that individually identifiable health information. proposed development of the American should be addressed during the In preparing these reports and Red Cross Chapter House site, 2025 E preparation of the EIS. All interested recommendations, the Secretary is required Street, NW, Washington, DC. Please parties are invited to attend these to consult with the NCVHS, the statutory meetings or submit comments in writing public advisory body to HHS on health data, submit suggestions to Ms. Andrea privacy and health information policy. The Mones by May 16, 1997 at GSA/NCR/ as described below. When registering, each attendee will Committee is planning to submit WPT; 7th and D Streets, SW; be requested to indicate if oral recommendations to the Secretary during Washington, DC 20407. 1997. You are invited to participate in a comments will be delivered at the To assist in formulating its public meeting Thursday evening, June meeting. In the interest of time, each recommendations, the NCVHS has convened 5, 1997 at 7 p.m. at 2025 E Street, NW, speaker will be asked to limit oral a number of public meetings relating to main auditorium, 2nd floor, to review comments to five (5) minutes. Longer health data standards and health information any alternatives/mitigation measures comments should be summarized at the privacy and confidentiality. These meetings public meeting and mailed to the were held in the Washington, D.C. area and which are suggested by a mail-in date of involved a broad range of representatives May 16, 1997. address listed below. To be most helpful, scoping comments should from the health sector, including providers, Dated: May 7, 1997. clearly describe specific issues or topics plans, insurers, electronic clearinghouses, Arthur M. Turowski, third party administrators, health researches, that the commentor believes the EIS representatives from public health agencies, Director, Portfolio Management Division, should address. All written statements social welfare agencies, law enforcement WPT. and/or questions regarding the scoping agencies, public and private organizations [FR Doc. 97–12381 Filed 5–9–97; 8:45 am] process should be mailed no later than with health system oversight responsibilities, BILLING CODE 6820±23±M June 5, 1997 to Ms. Christine Kelly, and privacy and patient interest groups. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25955

To provide an additional opportunity for standard for outpatient transactions? Is it FR 5010, February 3, 1997) is amended public input and to solicit additional views practical to move to a single procedure to reflect changes in Chapter PF within and advice on implementation of the classification on the schedule required for Part P, Program Support Center, administrative simplification provisions of the implementation of administrative Department of Health and Human Public Law 104–191, the Executive standards? Should the standards continue the Subcommittee of the NCVHS, with support current practice of requiring different Services (HHS). The Information from the California Office of Statewide procedure coding systems for the ambulatory Technology Service (ITS) is realigning Health Planning and Development, is and inpatient sectors? its functions and developing skills in sponsoring a public meeting on June 3–4, 8. Before the passage of HIPAA, the new information technology service 1997 in San Francisco. The meeting is open National Center for Health Statistics initiated areas, primarily in the Internet/Interanet to the public and will take place from 9:00 the development of a clinical modification of area. This organizational change will to 5:30 p.m. at the Federal Building, 450 the International Classification of Diseases, maximize ITS’ ability to properly focus Golden Gate Avenue. Tenth Edition (ICD–10–CM) to replace ICD– on this new technology area. For the meeting, the Committee is inviting 9–CM. In addition, the Health Care Financing specific organizations representing consumer Administration undertook the development Program Support Center groups, plans, providers, insurers, of a new procedure coding system for researchers and the public health inpatient services, entitled ICD–10–PCS Under Part P, Section P–20, community, as well as other interested (Procedure Classification System). A plan Functions, change the following: parties to describe their perspectives and exists to implement these systems Chapter PF, Information Technology offer advice on the implementation of the simultaneously in the year 2000. On the pre- Service (PF) is amended as follows: law. Presenters are being asked to respond to HIPAA schedule, they will be released to the Under the heading Division of Human the questions outlined below in writing, to field for evaluation and testing by 1998. make a brief oral presentation, and to Resources Information Management Should ICD be used for administrative PFG), delete the title and functional respond to additional questions from the transactions? If so, which version do you Committee. statement in its entirety. advocate and why? Establish the Division of Information Questions To Be Addressed 9. Do you have any advice or Systems and Technology (PFH) and 1. What does your organization expect to recommendations for NCVHS or the U.S. Department of Health and Human Services enter the functional statement as be the impact of the administrative follows: simplification requirements in the Health related to the implementation of the Insurance Portability and Accountability Act standards and privacy provisions of the Division of Information Systems and of 1996 (HIPAA)? These standards include: HIPAA? Do you have any concerns? Technology (PFH) (1) Provides fee-for- Administrative transactions, coding sets and Contact Person for More Information: service information technology (IT) medical classifications, privacy, Substantive program information as support to HHS OPDIVs and other confidentiality, security and unique personal well as summaries of the meeting and a Government agencies. Services include health identification numbers for providers, roster of committee members may be providing information from the HHS plans, employers, and individuals for use in obtained from James Scanlon, NCVHS personnel/payroll system and providing the health care system. Please describe how Executive Staff Director, Office of the technological support in utilizing each of these issues could affect the members Assistant Secretary for Planning and of your organization or the persons you evolving IT areas, such as the Internet represent. Evaluation, DHHS, Room 440–D, and other new IT developments; (2) 2. Are any of these standards currently Humphrey Building, 200 Independence provides analysis, design, development, priority areas for your organization or Avenue S.W., Washington, D.C. 20201, implementation and ongoing support of members of your organization? How are you telephone (202) 690–7100, or Marjorie information reporting in various areas, addressing or planning to address these S. Greenberg, Acting Executive such as personnel and payroll; and (3) standards? Secretary, NCVHS, NCHS, CDC, Room provides analysis, design, development, 3. Do members of your organization have 1100, Presidential Building, 6525 implementation and ongoing support in any concerns about the type of transactions Belcrest Road, Hyattsville, Maryland specified under HIPAA? For producers of the utilizing evolving technology, such as data, how available is the information that 20782, telephone (301) 436–7050. the Internet. Information also is available on the you need to report in the transactions? For Dated: May 2, 1997. NCVHS home page of the HHS website: organizations and individuals that use these Lynnda M. Regan, data, is the information useful for bill http://aspe.os.dhhs.gov/ncvhs. Director, Program Support Center. payment, managing the care process, and Dated: May 5, 1997. [FR Doc. 97–12342 Filed 5–9–97; 8:45 am] health policy analysis and assessments? Do James Scanlon, you have comments regarding the quality of BILLING CODE 4160±17±M these data? Director, Division of Data Policy, Office of 4. How can administrative simplification the Assistant Secretary for Planning and Evaluation. best be achieved while balancing clinical and DEPARTMENT OF HEALTH AND payment needs with maintaining privacy [FR Doc. 97–12270 Filed 5–9–97; 8:45 am] HUMAN SERVICES protection for individuals? BILLING CODE 4151±04±M 5. Recognizing the intent of the Centers for Disease Control and administrative simplification provisions of Prevention P.L. 104–191, what coding approach would DEPARTMENT OF HEALTH AND best meet your needs? Please suggest how HUMAN SERVICES [30 DAY±9±97] administrative simplification could be achieved while reducing administrative Statement of Organization, Functions Agency Forms Undergoing Paperwork burden and obtaining clinically useful and Delegations of Authority; Program Reduction Act Review information. Support Center 6. What medical and clinical codes and The Centers for Disease Control and classifications do you use in administrative Part P, (Program Support Center) of Prevention (CDC) publishes a list of transactions now? What do you perceive as the Statement of Organization, information collection requests under the main strengths and weaknesses of the current methods for coding and classification Functions and Delegations of Authority review by the Office of Management and of encounter and enrollment data? for the Department of Health and Budget (OMB) in compliance with the 7. What medical procedure classification Human Services (60 FR 51480, October Paperwork Reduction Act (44 U.S.C. system would you recommend as the initial 2, 1995 as amended most recently at 62 Chapter 35). To request a copy of these 25956 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices requests, call the CDC Reports Clearance Dated: May 5, 1997. DEPARTMENT OF HEALTH AND Office on (404) 639–7090. Send written Wilma G. Johnson, HUMAN SERVICES comments to CDC, Desk Officer; Human Acting Associate Director for Policy Planning Resources and Housing Branch, New And Evaluation, Centers for Disease Control Centers for Disease Control and Executive Office Building, Room 10235; and Prevention (CDC). Prevention Washington, DC 20503. Written [FR Doc. 97–12329 Filed 5–9–97; 8:45 am] ICD±9±CM Coordination and comments should be received within 30 BILLING CODE 4168±18±P Maintenance Committee Meeting days of this notice. National Center for Health Statistics Proposed Project DEPARTMENT OF HEALTH AND (NCHS), of the Centers for Disease HUMAN SERVICES 1. Childhood Lead Poisoning Control and Prevention (CDC), Prevention Program Quarterly Report Centers for Disease Control and announces the following meeting. (0902–0282)—Extension—Lead Prevention Name: ICD–9–CM Coordination and poisoning is the most common and Maintenance Committee meeting. societal devastating environmental Hospital Infection Control Practices Time and Date: 9 a.m.–5 p.m., June 5, disease of young children in the United Advisory Committee; Meeting 1997. States. Severe lead exposure can cause Place: The Health Care Financing coma, convulsions, and even death. In accordance with section 10(a)(2) of Administration Auditorium, 7500 Lower levels of lead, which rarely cause the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Security Boulevard, Baltimore, symptoms, can result in decreased Maryland. intelligence, developmental disabilities, Control and Prevention (CDC) and behavioral disturbances. State and announces the following meeting. Status: Open to the public. (In the interest of security, non-government community health agencies are the Name: Hospital Infection Control Practices employees must show a photo I.D., and principal delivery points for childhood Advisory Committee (HICPAC). sign-in to gain entrance to the building.) lead screening and related medical and Times and Dates: 8:30 a.m.–5 p.m., June 2, environmental management activities. 1997; 8:30 a.m.–1:30 p.m., June 3, 1997. Purpose: The NCHS Data Policy and In FY 1996, CDC awarded 40 grants to Place: CDC, Building 16, Room 1111/ Standards Staff will hold the first of two 1111A, 1600 Clifton Road, NE, Atlanta, fund childhood lead poisoning meetings of the 1997 cycle for the ICD– Georgia 30333. 9–CM Coordination and Maintenance prevention programs. The primary Status: Open to the public, limited only by (C&M) Committee. The C&M meeting is purpose of these grants is for the the space available. a public forum for the presentation of initiation or expansion of state- and Purpose: The Committee is charged with proposed modifications to the community-based childhood lead providing advice and guidance to the International Classification of Diseases, poisoning prevention programs that do Secretary; the Assistant Secretary for Health; Ninth-Revision, Clinical Modification. the following: (1) Screen infants and the Director, CDC; and the Director, National children for elevated blood lead levels, Center for Infectious Diseases (NCID), Matters to be Discussed: Agenda items will include: (2) assure referral for treatment of, and regarding (1) The practice of hospital environmental intervention for, infants infection control; (2) strategies for ICD–10–CM overview surveillance, prevention, and control of and children with elevated blood lead nosocomial infections in U.S. hospitals; and Autonomic Dysreflexia levels, and (3) to provide education (3) updating guidelines and other policy Injury aftercare about childhood lead poisoning. The statements regarding prevention of Neurogenic Bowel purpose of the quarterly report is to nosocomial infections. report data collected by CDC’s grantees. Matters to be Discussed: Agenda items will Malignant Hypertension The report consists of narrative and data include recommendations for healthcare Complications of peritoneal dialysis sections. The purpose of the narrative workers infected with bloodborne pathogens; Testing update on ICD–10 Procedure section is to provide the following: (1) a review of the fourth draft of the Guideline Coding System Highlights of quarterly activities, (2) for Infection Control in Hospital Personnel; review of the first draft of the Guideline for Transmural revascularization discuss issues and activities that have Prevention of Surgical Site Infections; and a Minimally invasive coronary artery significant impact on the program, (3) review of CDC activities of interest to the bypass graft list objectives and discuss progress Committee. Addenda. towards meeting those objectives. The Agenda items are subject to change as purpose of the data section is to provide priorities dictate. Agenda items are subject to change as the following: (1) Screening and case priorities dictate. CONTACT PERSON FOR MORE INFORMATION: confirmation activities, (2) Michele S. Pearson, M.D., Medical CONTACT PERSON FOR ADDITIONAL environmental inspection and hazard Epidemiologist, Investigation and INFORMATION: Amy L. Blum, NCHS, remediation activities, and (3) medical Prevention Branch, Hospital Infections CDC, Presidential Building, 6525 case management activities. The total Program, NCID, CDC, l600 Clifton Road, Belcrest Road, Hyattsville, Maryland annual burden hours are 320. NE, M/S E–69, Atlanta, Georgia 30333, 20782, e-mail, [email protected], telephone 404/639–6413. telephone, 301/436–7050. Number Avg. bur- No. of re- Respond- of re- den/re- sponses/ Dated: May 6, 1997. Dated: May 6, 1997. ents spond- sponse respond- Joseph E. Salter, Joseph E. Salter, ents (in hrs.) ent Acting Director, Management Analysis and Acting Director, Management Analysis and Services Office, Centers for Disease Control Services Office, Centers for Disease Control Grantees 40 2 4 and Prevention (CDC). and Prevention (CDC). [FR Doc. 97–12326 Filed 5–9–97; 8:45 am] [FR Doc. 97–12327 Filed 5–9–97; 8:45 am] BILLING CODE 4163±18±P BILLING CODE 4160±18±P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25957

DEPARTMENT OF HEALTH AND authority in section 1115(a) of the Act; B. Other Section 1115 Demonstration HUMAN SERVICES (2) the procedures we expect States to Proposals use in involving the public in the 1. New, Pending, Approved, Health Care Financing Administration development of proposed demonstration Disapproved, and Withdrawn Proposals [ORD±099±N] projects under section 1115; and (3) the procedures we ordinarily will follow in We did not receive any new proposals New and Pending Demonstration reviewing demonstration proposals. We or approve or disapprove any Other Project Proposals Submitted Pursuant are committed to a thorough and Section 1115 Demonstration Proposals to Section 1115(a) of the Social expeditious review of State requests to during the month of March nor were Security Act: March 1997 conduct such demonstrations. any proposals withdrawn during that As part of our procedures, we publish month. AGENCY: Health Care Financing a notice in the Federal Register with a Pending proposals for the month of Administration (HCFA). monthly listing of all new submissions, January 1997 found in the Federal ACTION: Notice. pending proposals, approvals, Register of March 31, 1997 (62 FR disapprovals, and withdrawn proposals. 15187) remain unchanged, except for SUMMARY: During the month of March, the addition of the Minnesota Long one new proposal for Medicaid Proposals submitted in response to a grant solicitation or other competitive Term Care Facility Waiver (a new demonstration project was submitted to proposal that was received in January). the Department of Health and Human process are reported as received during Services under the authority of section the month that grant or bid is awarded, III. Requests for Copies of a Proposal so as to prevent interference with the 1115 of the Social Security Act. There Requests for copies of a specific awards process. were no proposals approved, Medicaid proposal should be made to disapproved, or withdrawn during that II. Listing of New, Pending, Approved, the State contact listed for the specific time period. Disapproved, and Withdrawn proposal. If further help or information (This notice can be accessed on the Proposals for the Month of March 1997 is needed, inquiries should be directed to HCFA at the address above. Internet at http://www.hcfa.gov/ord/ A. Comprehensive Health Reform sect1115.htm) Programs (Catalog of Federal Domestic Assistance COMMENTS: We will accept written Program, No. 93.779; Health Financing comments on these proposals. We will, 1. New Proposals Research, Demonstrations, and Experiments.) if feasible, acknowledge receipt of all The following comprehensive health Dated: May 1, 1997 comments, but we will not provide reform proposal was received during the Barbara Cooper, written responses to comments. We month of March. Acting Director, Office of Research and will, however, neither approve nor Demonstration Title/State: New Jersey Demonstrations. disapprove any new proposal for at least Managed Charity Care Demonstration. [FR Doc. 97–12272 Filed 5–9–97; 8:45 am] 30 days after the date of this notice to Description: The State is proposing to BILLING CODE 4120±01±P allow time to receive and consider incorporate aspects of managed care comments. Direct comments as into the current charity care program to indicated below. achieve program efficiencies, better DEPARTMENT OF HEALTH AND ADDRESSES: Mail correspondence to: value, and improved care and health HUMAN SERVICES Susan Anderson, Office of Research and outcomes for charity care beneficiaries. Demonstrations, Health Care Financing The demonstration would use the Health Care Financing Administration Administration, Mail Stop C3–11–07, Disproportionate Share Hospital funds [BPO±148±N] 7500 Security Boulevard, Baltimore, MD allocated to the charity care component 21244–1850. and redirect these funds to a new Medicare and Medicaid Programs; FOR FURTHER INFORMATION CONTACT: managed charity care program. Quarterly Listing of Program Susan Anderson (410) 786–3996. Date Received: March 24, 1997. Issuances; Fourth Quarter 1996 SUPPLEMENTARY INFORMATION: State Contact: Laurie Facciarossa, AGENCY: Health Care Financing Division of Medical Assistance and Administration (HCFA), HHS. I. Background Health Services, CN 712, Trenton, NJ ACTION: Notice. Under section 1115 of the Social 08065, (609) 588–4518. Security Act (the Act), the Department Federal Project Officer: Bruce SUMMARY: This notice lists HCFA of Health and Human Services (HHS) Johnson, Health Care Financing manual instructions, substantive and may consider and approve research and Administration, Office of Research and interpretive regulations, and other demonstration proposals with a broad Demonstration, Office of State Health Federal Register notices that were range of policy objectives. These Reform Demonstrations, Mail Stop C3– published during October, November, demonstrations can lead to 18–26, 7500 Security Boulevard, and December of 1996 that relate to the improvements in achieving the Baltimore, MD 21244–1850. Medicare and Medicaid programs. It purposes of the Act. also identifies certain devices with 2. Pending, Approved, Disapproved, or In exercising her discretionary investigational device exemption Withdrawn Proposals authority, the Secretary has developed a numbers approved by the Food and number of policies and procedures for We did not approve or disapprove any Drug Administration that may be reviewing proposals. On September 27, proposals during the month of March potentially covered under Medicare. 1994, we published a notice in the nor were any proposals withdrawn Section 1871(c) of the Social Security Federal Register (59 FR 49249) that during that month. Therefore, pending Act requires that we publish a list of specified (1) The principles that we proposals for the month of January 1997 Medicare issuances in the Federal ordinarily will consider when published in the Federal Register of Register at least every 3 months. approving or disapproving March 31, 1997 (62 FR 15187) remain Although we are not mandated to do so demonstration projects under the unchanged. by statute, for the sake of completeness 25958 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices of the listing, we are including all and Medicaid substantive and notice all investigational device Medicaid issuances and Medicare and interpretive regulations published exemption categorizations, using the Medicaid substantive and interpretive during October through December 1996. investigational device exemption regulations (proposed and final) numbers the Food and Drug II. How to Use the Addenda published during this time frame. Administration assigns. Addendum V This notice is organized so that a includes listings of the Food and Drug FOR FURTHER INFORMATION CONTACT: reader may review the subjects of all Administration-approved Bridget Wilhite, (410) 786–5248 (For manual issuances, memoranda, investigational device exemption Medicare instruction information) substantive and interpretive regulations, numbers that have been approved or Pat Prete, (410) 786–3246 (For Medicaid or Food and Drug Administration- revised during the quarter covered by instruction information) approved investigational device this notice. The listings are organized Sharon Hippler, (410) 786–4633 (For exemptions published during the time according to the categories to which the Food and Drug Administration- frame to determine whether any are of device numbers are assigned (that is, approved investigational device particular interest. We expect it to be Category A or Category B, and identified exemption information) used in concert with previously by the investigational device exemption Cathy Johnson, (410) 786–5241 (For all published notices. Most notably, those number). other information) unfamiliar with a description of our Medicare manuals may wish to review III. How to Obtain Listed Material SUPPLEMENTARY INFORMATION: Table I of our first three notices (53 FR A. Manuals I. Program Issuances 21730, 53 FR 36891, and 53 FR 50577) and the notice published March 31, An individual or organization The Health Care Financing 1993 (58 FR 16837), and those desiring interested in routinely receiving any Administration (HCFA) is responsible information on the Medicare Coverage manual and revisions to it may purchase for administering the Medicare and Issues Manual may wish to review the a subscription to that manual. Those Medicaid programs, which pay for August 21, 1989 publication (54 FR wishing to subscribe should contact health care and related services for 38 34555). either the Government Printing Office million Medicare beneficiaries and 36 To aid the reader, we have organized (GPO) or the National Technical million Medicaid recipients. and divided this current listing into five Information Service (NTIS) at the Administration of these programs addenda. Addendum I lists the following addresses: involves (1) Providing information to publication dates of the most recent Superintendent of Documents, Medicare beneficiaries and Medicaid quarterly listings of program issuances. Government Printing Office, ATTN: recipients, health care providers, and Addendum II identifies previous New Orders, P.O. Box 371954, the public, and (2) effective Federal Register documents that Pittsburgh, PA 15250–7954, communications with regional offices, contain a description of all previously Telephone (202) 512–1800, Fax State governments, State Medicaid published HCFA Medicare and number (202) 512–2250 (for credit Agencies, State Survey Agencies, Medicaid manuals and memoranda. card orders); or various providers of health care, fiscal Addendum III of this notice lists, for National Technical Information Service, intermediaries and carriers that process each of our manuals or Program Department of Commerce, 5825 Port claims and pay bills, and others. To Memoranda, a HCFA transmittal Royal Road, Springfield, VA 22161, implement the various statutes on number unique to that instruction and Telephone (703) 487–4630. which the programs are based, we issue its subject matter. A transmittal may In addition, individual manual regulations under the authority granted consist of a single instruction or many. transmittals and Program Memoranda the Secretary under sections 1102, 1871, Often it is necessary to use information listed in this notice can be purchased and 1902 and related provisions of the in a transmittal in conjunction with from NTIS. Interested parties should Social Security Act (the Act) and also information currently in the manuals. identify the transmittal(s) they want. issue various manuals, memoranda, and Addendum IV lists all substantive and GPO or NTIS can give complete details statements necessary to administer the interpretive Medicare and Medicaid on how to obtain the publications they programs efficiently. regulations and general notices sell. Additionally, all manuals are Section 1871(c)(1) of the Act requires published in the Federal Register available at the following Internet that we publish in the Federal Register during the quarter covered by this address: http//www.hcfa.gov/pubforms/ at least every 3 months a list of all notice. For each item, we list the date progman.htm. Medicare manual instructions, published, the Federal Register citation, interpretive rules, and guidelines of the parts of the Code of Federal B. Regulations and Notices general applicability not issued as Regulations (CFR) that have changed (if Regulations and notices are published regulations. We published our first applicable), the agency file code in the daily Federal Register. Interested notice June 9, 1988 (53 FR 21730). number, the title of the regulation, the individuals may purchase individual Although we are not mandated to do so ending date of the comment period (if copies or subscribe to the Federal by statute, for the sake of completeness applicable), and the effective date (if Register by contacting the GPO at the of the listing of operational and policy applicable). address given above. When ordering statements, we are continuing our On September 19, 1995, we published individual copies, it is necessary to cite practice of including Medicare a final rule (60 FR 48417) establishing either the date of publication or the substantive and interpretive regulations in regulations at 42 CFR 405.201 et seq. volume number and page number. (proposed and final) published during that certain devices with an The Federal Register is also available the 3-month time frame. Since the investigational device exemption on 24x microfiche and as an online publication of our quarterly listing on approved by the Food and Drug database through GPO Access. The June 12, 1992 (57 FR 24797), we Administration and certain services online database is updated by 6 a.m. decided to add Medicaid issuances to related to those devices may be covered each day the Federal Register is our quarterly listings. Accordingly, we under Medicare. That final rule states published. The database includes both list in this notice Medicaid issuances that we will announce in this quarterly text and graphics from Volume 59, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25959

Number 1 (January 2, 1994) forward. software is needed to view the reports Questions concerning Medicaid items Free public access is available on a once the files have been copied to a in Addendum III may be addressed to Wide Area Information Server (WAIS) personal computer disk. Pat Prete, Medicaid Bureau, Office of through the Internet and via Medicaid Policy, Health Care Financing IV. How to Review Listed Material asynchronous dial-in. Internet users can Administration, C4–25–02, 7500 access the database by using the World Transmittals or Program Memoranda Security Boulevard, Baltimore, MD Wide Web; the Superintendent of can be reviewed at a local Federal 21244–1850, Telephone (410) 786–3246. Documents home page address is http:/ Depository Library (FDL). Under the Questions concerning Food and Drug l /www.access.gpo.gov/su docs/, by FDL program, government publications Administration-approved using local WAIS client software, or by are sent to approximately 1400 investigational device exemptions may designated libraries throughout the telnet to swais.access.gpo.gov, then log be addressed to Sharon Hippler, Bureau United States. Interested parties may in as guest (no password required). Dial- of Policy Development, Office of examine the documents at any one of in users should use communications Chronic Care and Insurance Policy, the FDLs. Some may have arrangements software and modem to call (202) 512– Health Care Financing Administration, to transfer material to a local library not 1661; type swais, then log in as guest C4–11–04, 7500 Security Boulevard, designated as an FDL. To locate the (no password required). Baltimore, MD 21244–1850, Telephone nearest FDL, contact any library. (410) 786–4633. C. Rulings In addition, individuals may contact We publish Rulings on an infrequent regional depository libraries, which Questions concerning all other basis. Interested individuals can obtain receive and retain at least one copy of information may be addressed to Cathy copies from the nearest HCFA Regional most Federal government publications, Johnson, Bureau of Policy Development, Office or review them at the nearest either in printed or microfilm form, for Office of Regulations, Health Care regional depository library. We have, on use by the general public. These Financing Administration, C5–12–16, occasion, published Rulings in the libraries provide reference services and 7500 Security Boulevard, Baltimore, MD Federal Register. In addition, we interlibrary loans; however, they are not 21244–1850, Telephone (410) 786–5241. anticipate that Rulings, beginning with sales outlets. Individuals may obtain (Catalog of Federal Domestic Assistance those released in 1995, will soon be information about the location of the Program No. 93.773, Medicare—Hospital available online, through the HCFA nearest regional depository library from Insurance, Program No. 93.774, Medicare— Home Page. any library. Superintendent of Supplementary Medical Insurance Program, Documents numbers for each HCFA and Program No. 93.714, Medical Assistance D. HCFA’s Compact Disk-Read Only publication are shown in Addendum III, Program) Memory (CD–ROM) along with the HCFA publication and Dated: April 18, 1997. Our laws, regulations, and manuals transmittal numbers. To help FDLs Gary Kavanagh, are also available on CD–ROM, which locate the instruction, use the Acting Director, Bureau of Program may be purchased from GPO or NTIS on Superintendent of Documents number, Operations. a subscription or single copy basis. The plus the HCFA transmittal number. For Superintendent of Documents list ID is example, to find the Intermediary Addendum I HCLRM, and the stock number is 717– Manual, Part 2—Fiscal Administration This addendum lists the publication 139–00000–3. The following material is (HCFA Pub. 13–2) transmittal entitled dates of the most recent quarterly on the CD–ROM disk: ‘‘Beneficiary Services,’’ use the listings of program issuances. • Titles XI, XVIII, and XIX of the Act. Superintendent of Documents No. HE • HCFA-related regulations. 22.8/6–2 and the HCFA transmittal November 15, 1995 (60 FR 57435) • HCFA manuals and monthly number 408. April 8, 1996 (61 FR 15491) revisions. June 26, 1996 (61 FR 33119) • HCFA program memoranda. V. General Information The titles of the Compilation of the It is possible that an interested party December 18, 1996 (61 FR 66676) Social Security Laws are current as of may have a specific information need April 21, 1997 (62 FR 19328) January 1, 1995. The remaining portions and not be able to determine from the Addendum II—Description of Manuals, of CD–ROM are updated on a monthly listed information whether the issuance Memoranda, and HCFA Rulings basis. or regulation would fulfill that need. Because of complaints about the Consequently, we are providing An extensive descriptive listing of unreadability of the Appendices information contact persons to answer Medicare manuals and memoranda was (Interpretive Guidelines) in the State general questions concerning these published on June 9, 1988, at 53 FR Operations Manual (SOM), as of March items. Copies are not available through 21730 and supplemented on September 1995, we deleted these appendices from the contact persons. Copies can be 22, 1988, at 53 FR 36891 and December CD–ROM. We intend to re-visit this purchased or reviewed as noted above. 16, 1988, at 53 FR 50577. Also, a issue in the near future, and, with the Questions concerning Medicare items complete description of the Medicare aid of newer technology, we may again in Addendum III may be addressed to Coverage Issues Manual was published be able to include the appendices on Bridget Wilhite, Bureau of Program on August 21, 1989, at 54 FR 34555. A CD–ROM. Operations, Issuances Staff, Health Care brief description of the various Any cost report forms incorporated in Financing Administration, N2–05–03, Medicaid manuals and memoranda that the manuals are included on the CD– 7500 Security Boulevard, Baltimore, we maintain was published on October ROM disk as LOTUS files. LOTUS 21244–1850, Telephone (410) 786–5248. 16, 1992, at 57 FR 47468. 25960 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

ADDENDUM III.ÐMEDICARE AND MEDICAID MANUAL INSTRUCTIONS [October Through December 1996]

Trans. No. Manual/Subject/Publication No.

Intermediary Manual Part 2ÐFiscal Administration (HCFA Pub. 13±2) (Superintendent of Documents No. HE 22.8/6±2)

408 o Beneficiary Services. Provider Services.

Intermediary Manual Part 3ÐClaims Process (HCFA Pub. 13±3) (Superintendent of Documents No. HE 22.8/6)

1689 o Outpatient Observation Services. Bill Review for Partial Hospitalization Services Provided in Community Mental Health Centers. Hospital Outpatient Partial Hospitalization Services. Billing for Hospital Outpatient Services Furnished By Clinical Social Workers. 1690 o HCPCS for Hospital Outpatient Radiology Services and Other Diagnostic Procedures. Radiology HCPCS Codes Subject to the Payment Limit. Other Diagnostic Services HCPCS Codes Subject to the Payment Limit. 1691 o Mammography Screening. 1692 o Outpatient Therapeutic Services. Drugs and Biologicals. 1693 o Rural Health ClinicsÐGeneral. Federally Qualified Health Centers. 1694 o Outpatient Therapeutic Services. Drugs and Biologicals. 1695 o Beneficiary Address Change.

Carriers Manual Part 2ÐProgram Administration (HCFA Pub. 14±2) (Superintendent of Documents No. HE 22.8/7±3)

134 o Beneficiary Services. Provider Services.

Carriers Manual Part 3ÐClaims Process (HCFA Pub. 14±3) (Superintendent of Documents No. HE 22.8/7)

1552 o Paper Remittance Notice. Paper Remittance Notice Requirements. Use of Standard Codes on the Paper Remittance Notice. Paper Remittance Notice Abbreviations. Participation Program and Billing Limitations. 1553 o Incident to Physician's Professional Services. Commonly Furnished in Physician's Offices. Services and Supplies. 1554 o Correct Coding Initiative.

Program Memorandum Intermediaries (HCFA Pub. 60A) (Superintendent of Documents No. HE 22.8/6±5)

A±96±8 o Medicare's Partial Hospitalization Benefit-Eligibility and Scope of Services A±96±9 o Home Health Agency Cost LimitsÐCorrection to the Budget Neutrality Factor. A±96± o Change in Hospice Payment Rates. 10 A±96± o Home Health Agency Cost LimitsÐRevised Correction to the Budget Neutrality Factor. 11

Program Memorandum Carriers (HCFA Pub. 60B) (Superintendent of Documents No. HE 22.8/6±5)

B±96±3 o Coverage of Epoetin Alfa for HIV/AIDS and Cancer Patients Undergoing Chemotherapy. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25961

ADDENDUM III.ÐMEDICARE AND MEDICAID MANUAL INSTRUCTIONSÐContinued [October Through December 1996]

Trans. No. Manual/Subject/Publication No.

Program Memorandum Intermediaries/Carriers (HCFA Pub. 60A/B) (Superintendent of Documents No. HE 22.8/6±5)

AB±96± o Current Status of Medicare Program Memorandums and Letters Issued Before Calendar Year 1996. 10 AB±96± o Nonpayment of Viral Load Testing (Roche Diagnostic Amplicor Test). 11

Program Memorandum Medicaid State Agencies (HCFA Pub. 17) (Superintendent of Documents No. HE 22.8/6±5)

96±1 o Current Status of Medicaid Program Memorandums and Action Transmittals Issued Before Calendar Year 1996.

Peer Review Organization Manual (HCFA Pub. 19) (Superintendent of Documents No. HE 22.8/8±15)

63 o Consumer Representative Hospital Manual (HCFA Pub. 10) Superintendent of Documents No. HE 22.8/2)

701 o Outpatient Observation Services. Billing for Hospital Outpatient Partial Hospitalization Services. Billing for Hospital Outpatient Services Furnished by Clinical Social Workers. 702 o HCPCS for Hospital Outpatient Radiology and Other Diagnostic Procedures. Radiology HCPCS Codes Subject to the Payment Limit. Other Diagnostic Services HCPCS Codes Subject to the Payment Limit. 703 o Billing for Mammography Screening.

Home Health Agency Manual (HCFA Pub. 11) (Superintendent of Documents No. HE 22.8/5)

281 o Billing for Ambulance Services. HCPCS Reporting Requirement.

Skilled Nursing Facility Manual (HCFA Pub. 12) (Superintendent of Documents No. HE 22.8/3)

346 o Billing for Mammography Screening. 347 o Billing for Ambulance Services.

HCPCS Reporting Requirement Medicare Rural Health Clinic and Federally Qualified Health Centers Manual (HCFA Pub. 27) (Superintendent of Documents No. HE 22.8/19:985)

24 o Billing for Mammography Screening by Rural Health Clinics and Federally Qualified Health Centers.

Outpatient Physical Therapy and Comprehensive Outpatient Rehabilitation Facility Manual (HCFA Pub. 9) (Superintendent of Documents No. HE 22.8/9)

128 o Billing Instructions for Partial Hospitalization Services Provided in Community Mental Health Centers.

Coverage Issues Manual (HCFA Pub. 6) Superintendent of Documents No. HE 22.8/14)

90 o Antigens Prepared for Sublingual Administration. 25962 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

ADDENDUM III.ÐMEDICARE AND MEDICAID MANUAL INSTRUCTIONSÐContinued [October Through December 1996]

Trans. No. Manual/Subject/Publication No.

Provider Reimbursement Manual Part 1Ð(HCFA Pub. 15±1) (Superintendent of Documents No. HE 22.8/4)

397 o Travel Expense.

Provider Reimbursement Manual Part IIÐProvider Cost Reporting Forms and Instructions (HCFA Pub. 15±II±AC) (Superintendent of Documents No. HE 22.8/4)

4 o Independent Rural Health Clinic/Federally Qualified Health Center Statistical Data and Certification Statement. Determination of Total Payment.

Provider Reimbursement Manual Part IIÐProvider Cost Reporting Forms and Instructions (HCFA Pub. 15±II±AJ) (Superintendent of Documents No. HE 22.8/4)

1 o Hospital and Hospital Health Care Complex Cost ReportÐForm HCFA 2552±96. 2 o Form HCFA±2552±96 Worksheet.

State Buy-In Manual (HCFA Pub. 24) (Superintendent of Documents No. HE 22.8/11)

1 o Describe the Policies and Procedures Governing the Enrollment of Individuals in the Part A and Part B State Buy-In Program.

State Medicaid ManualÐPart 6 Payment for Services (HCFA Pub. 45±6) (Superintendent of Documents No. HE 22.8/10)

32 o Upper Limits for Prescription Drugs.

Medicare/Medicaid SanctionÐReinstatement Report (HCFA Pub. 69)

96±9 o Report of Physicians/Practitioners, Providers and/or Other Health Care Suppliers. Excluded/ReinstatedÐAugust 1996. 96±10 o Report of Physicians/Practitioners, Providers and/or Other Health Care Suppliers. Excluded/ReinstatedÐSeptember 1996. 96±11 o Report of Physicians/Practitioners, Providers and/or Other Health Care Suppliers. Excluded/ReinstatedÐOctober 1996. 96±12 o Report of Physicians/Practitioners, Providers and/or Other Health Care Suppliers. Excluded/ReinstatedÐNovember 1996.

Medicare Coverage Issues Manual www.hcfa.gov/pubforms/pub6/ determination that antigens, which are For the Medicare Coverage Issues pub6toc.htm to be administered sublingually, are not Manual instruction that was published Transmittal No. 90 covered by Medicare. during the quarter covered by this notice, we give the transmittal number, New Implementing Instruction— the title of the section, and a brief Effective Date: 11/17/96 synopsis of the revisions. The full text Section 45–28, Antigens Prepared for of these revisions is available at the Sublingual Administration.—This following Internet address: http:// section is added to provide a national

ADDENDUM IV.ÐREGULATION DOCUMENTS PUBLISHED IN THE FEDERAL REGISTER

End of com- Effective Publication date FR vol. 61 page CFR part(s) File code* Regulation title ment period date

10/01/96 ...... 51295±51298 ...... BPD±874±N Medicare Program; Update of Ambula- ...... 10/01/96 tory Surgical Center Payment Rates Effective for Services on or After October 1, 1996. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25963

ADDENDUM IV.ÐREGULATION DOCUMENTS PUBLISHED IN THE FEDERAL REGISTERÐContinued

End of com- Effective Publication date FR vol. 61 page CFR part(s) File code* Regulation title ment period date

10/01/96 ...... 51217 412, 413, 489 ... BPD±847±N Medicare Program; Notice of Effective ...... 10/01/96 Date for Changes to the Hospital In- patient Prospective Payment Sys- tems and Fiscal Year 1997 Rates. 10/03/96 ...... 51611±51617 413 ...... BPD±805±F Medicare and Medicaid Programs; ...... 1/04/96 New Payment Methodology for Rou- tine Extended Care Services Pro- vided in a Swing-Bed Hospital. 10/23/96 ...... 55002±55009 ...... OACT±052±N Medicare Program; Monthly Actuarial ...... 01/01/97 Rates and Monthly Supplementary Medical Insurance Premium Rate Beginning January 1, 1997. 11/04/96 ...... 56691±56693 ...... OACT±053±N Medicare Program; Part A Premium ...... 01/01/97 for 1997 for the Uninsured Aged and for Certain Disabled Individuals Who Have Exhausted Other Entitlement. 11/04/96 ...... 56690±56691 ...... OACT±054±N Medicare Program; Inpatient Hospital ...... 01/01/97 Deductible and Hospital and Ex- tended Care Services Coinsurance Amounts for 1997. 11/08/96 ...... 57876±57878 ...... BPD±879±NC Medicare and Medicaid Programs; An- 01/07/97 nouncement of Additional Applica- tion From Hospital Requesting Waiv- ers for Organ Procurement Service Area and Technical Correction. 11/13/97 ...... 58140±58143 431 ...... MB±092±F Medicaid and Aid to Families With De- ...... 11/13/96 pendent Children; Certain Provisions of the National Voter Registration Act of 1993. 11/18/96 ...... 58631 413 ...... BPD±805±CN Medicare and Medicaid Programs; ...... 11/04/96 New Payment Methodology for Rou- tine Extended Care Services Pro- vided in a Swing-Bed Hospital; Cor- rection. 11/19/96 ...... 58885 ...... ORD±093±N New and Pending Demonstration ...... Project Proposals Submitted Pursu- ant to Section 1115(a) of the Social Security Act: September 1996. 11/19/96 ...... 58885±58886 ...... OPL±012±CN Medicare Program; December 16, ...... 1996 Meeting of the Practicing Phy- sicians Advisory Council. 11/21/96 ...... 59198 440 ...... MB±102±F Medicaid Program; Family Planning ...... 11/10/94 Services and Supplies for Individ- uals of Child-Bearing Age. 11/22/96 ...... 59490±59716 410, 415 ...... BPD±852±FC Medicare Program; Revisions to Pay- 01/21/97 01/01/97 ment Policies and Five-Year Review of and Adjustments to the Relative Value Units Under the Physician Fee Schedule for Calendar Year 1997. 11/22/96 ...... 59717±59724 ...... BPD±853±FN Medicare Program; Physician Fee ...... 10/01/96± Schedule Update for Calendar Year 01/01/97 1997 and Physician Volume Per- formance Standard Rates of In- crease for Federal Fiscal Year 1997. 12/02/96 ...... 63740±63749 401, 403, 405, BPO±118-FC Medicare Program; Changes Concern- 01/31/97 01/02/97 411, 413, 447, ing Suspension of Medicare Pay- 493. ments, and Determinations of Allow- able Interest Expenses. 12/09/96 ...... 64914±64918 ...... ORD±094±N New and Pending Demonstration ...... Project Proposals Submitted Pursu- ant to Section 1115(a) of the Social Security Act: October 1996. 12/18/96 ...... 66676 ...... OPL±013±N Medicare Program; Request for Nomi- ...... nations for Members for the Practic- ing Physicians Advisory Council. 12/18/96 ...... 66676±66687 ...... BPO±140±N Medicare and Medicaid Programs; ...... Quarterly Listing of Program Issuances and Coverage Deci- sionsÐSecond Quarter 1996. 25964 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

ADDENDUM IV.ÐREGULATION DOCUMENTS PUBLISHED IN THE FEDERAL REGISTERÐContinued

End of com- Effective Publication date FR vol. 61 page CFR part(s) File code* Regulation title ment period date

12/19/96 ...... 66919±66923 412, 413, 489 ... BPD±847±FCN Medicare Program; Changes to the ...... 10/01/96 Hospital Inpatient Prospective Pay- ment Systems and Fiscal Year 1997 Rates; Corrections. 12/19/96 ...... 67041±67047 ...... BPD±849±FN Medicare Program; Recognition of the ...... 12/19/96 Ambulatory Surgical Center Stand- through ards of the Joint Commission on the 12/19/02 Accreditation of Healthcare Organi- zations and the Accreditation Asso- ciation for Ambulatory Health Care. 12/30/96 ...... 68697±68698 ...... BPD±886±N Department of Health and Human 02/03/97 Services, Health Care Financing Ad- ministration; Department of Labor, Pension and Welfare Benefits Ad- ministration; and Department of the Treasury, Office of Tax Policy and Internal Revenue Services (the Agencies); Health Insurance Port- ability. 12/31/96 ...... 69034 401, 405 ...... BPD±869±CN Medicare Program; Waiver of Recov- ...... 10/21/96 ery of Overpayments. 12/31/96 ...... 69034±69050 417, 434 ...... OMC±010±F Medicare and Medicaid Programs; Re- ...... 01/01/97 quirements for Physician Incentive Plans in Prepaid Health Care Orga- nizations.

Addendum V—Categorization of Food G960183 B2 G910064 from A2 to B4 and Drug Administration-Approved G960187 B1 G910078 from A2 to B4 Investigational Device Exemptions G960189 B2 G910170 from A2 to B4 G910197 from A2 to B4 Under the Food, Drug, and Cosmetic G960191 Be G960197 Be G910202 from A2 to B4 Act (21 U.S.C. 360c), devices fall into G960198 B2 G920142 from B2 to B4 one of three classes. Also, under the G960199 B2 G920143 from A2 to B4 new categorization process to assist G960201 Be G930017 from B2 to A2 HCFA, the Food and Drug G960202 B4 G930054 from A2 to B4 Administration assigns each device with G960204 Be G930115 from A2 to B4 a Food and Drug Administration- G960205 B4 G930190 from A2 to B4 approved investigational device G960206 B2 G930192 from A2 to B4 exemption to one of two categories. To G960210 B4 G940084 from A2 to B2 obtain more information about the G960211 B4 G940088 from A2 to B4 classes or categories, please refer to the G960212 B4 G950083 from A2 to B2 Federal Register notice published on G960215 B2 G950168 from A2 to B4 April 21, 1997 (62 FR 19328). G960217 B4 G950175 from A2 to B4 The following information presents G960219 Be G960060 from A1 to A2 G960113 from A2 to B4 the device number, category (in this G960221 B2 case, A), and criterion code. G960223 B1 [FR Doc. 97–12262 Filed 5–9–97; 8:45 am] G960164 A2 G960224 B2 BILLING CODE 4120±01±P G960186 A2 G960225 B4 G960190 A1 G960226 B2 G960200 A1 G960227 B2 DEPARTMENT OF HEALTH AND G960203 A2 G960229 B1 HUMAN SERVICES G960213 A1 G960232 B4 The following information presents G960236 Be Substance Abuse and Mental Health the device number category (in this G960238 B4 Services Administration case, B), and criterion code. G960239 B1 Agency Information Collection G960242 B4Q G940148 B2 Activities: Proposed Collection; This quarter we are listing previously G940193 B2 Comment Request G950094 B1 published IDE numbers that have G960065 Be changed reimbursement category. They In compliance with Section G960072 B4 are: 3506(c)(2)(A) of the Paperwork G960106 B5 G870181 from A2 to B2 Reduction Act of 1995 for opportunity G960115 Be G880210 from A2 to B4 for public comment on proposed data G960134 B4 G890210 from A2 to B2 collection projects, the Substance Abuse G960144 B4 G900143 from A2 to B4 and Mental Health Services G960166 Be G900246 from A2 to B2 Administration will publish periodic Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25965 summaries of proposed projects. To The basic questionnaire content will Chapter 35). To request a copy of these request more information on the identical to the 1997 NHSDA. A documents, call the SAMHSA Reports proposed projects or to obtain a copy of standardized set of respondent Clearance Officer on (301) 443–8005. the data collection plans and debriefing questions will be also be Mandatory Guidelines for Federal instruments, the SAMHSA Reports administered. Three thousand Workplace Drug Testing Program and Clearance Officer on (301) 443–0525. interviews will be conducted across the Associated Forms—Extension of OMB Comments are invited on: (a) Whether nation with persons age 12 and older. approval will be requested for the the proposed collection of information Each interview will last approximately Federal Custody and Control Form for is necessary for the proper performance one hour. The estimated burden is 3,000 Federal agency and federally regulated of the functions of the agency, including hours. drug testing programs which must whether the information shall have Send comments to Deborah Trunzo, comply with the HHS Mandatory practical utility; (b) the accuracy of the SAMHSA Reports Clearance Officer, Guidelines, for the application and agency’s estimate of the burden of the Room 16–105, Parklawn Building, 5600 inspection forms for the National proposed collection of information; (c) Fishers Lane, Rockville, MD 20857. Laboratory Certification Program ways to enhance the quality, utility, and Written comments should be received (NLCP), and for the reporting and clarity of the information to be within 60 days of this notice. recordkeeping language in the collected; and (d) ways to minimize the Dated: May 5, 1997. Guidelines. The Federal Custody and burden of the collection of information Control Form is used by all Federal Richard Kopanda, on respondents, including through the agencies and employers regulated by the use of automated collection techniques Executive Officer, SAMHSA. Department of Transportation to or other forms of information [FR Doc. 97–12332 Filed 5–9–97; 8:45 am] document the collection and chain of technology. BILLING CODE 4162±20±P custody of urine specimens at the Proposed Project: National Household collection site, for laboratories to report Survey on Drug Abuse: ACASI Field results, and for Medical Review Officers DEPARTMENT OF HEALTH AND Test 2—New—The Substance Abuse to make a determination. No changes are HUMAN SERVICES and Mental Health Services proposed to this form. Prior to an Administration (SAMHSA) will conduct Substance Abuse and Mental Health inspection, a laboratory is required to a field test in October-December, 1997, Services Administration Agency submit specific information regarding to examine alternative designs for an Information Collection Activities Under its laboratory procedures to allow Audio Computer Assisted Self-Interview OMB Review inspectors to become familiar with a (ACASI) version of the National laboratory’s procedures before arriving Household Survey on Drug Abuse Periodically, the Substance Abuse and at the laboratory. The annual total (NHSDA) questionnaire. The Mental Health Services Administration burden estimates for the custody and experimental design will compare (SAMHSA) will publish a list of control form, the NLCP application, the variations in automatic internal information collection requests under NLCP inspection checklist, and NLCP consistency checks, skip patterns, voice OMB review, in compliance with the recordkeeping requirements is 1,517,935 types, and simplified question wording. Paperwork Reduction Act (44 U.S.C. hours, as shown below:

Number of re- Total annual Time per response sponses burden (hours)

Custody and Control Form: Donor ...... 5 min ...... 6,000,000 500,000 Collector ...... 4 min ...... 6,000,000 400,000 Laboratory ...... 3 min ...... 6,000,000 300,000 Medical Review Officer ...... 3 min ...... 6,000,000 300,000 Application ...... 3 hrs ...... 5 15 Inspection Checklist ...... 3 hrs ...... 140 420 Record keeping ...... 250 hrs ...... 70 17,500

Total ...... 1,517,935

Written comments and DEPARTMENT OF THE INTERIOR Permit No. PRT–826939 recommendations concerning the Applicant: Jerome Stefferud, Phoenix, proposed information collection should Fish and Wildlife Service Arizona. be sent within 30 days of this notice to: Virginia Huth, Human Resources and Endangered and Threatened Species Applicant requests authorization to Housing Branch, Office of Management Permit Applications take (using electrofishing, all types of and Budget, New Executive Office nets, minnow traps, snorkeling, and ACTION: Notice of receipt of applications. other accepted techniques) voucher Building, Room 10236, Washington, specimens, and to monitor fish habitats D.C. 20503. SUMMARY: The following applicants have and populations of the Gila topminnow Dated: April 30, 1997. applied for a permit to conduct certain (Poeciliopsis occidentalis) in waters on Richard Kopanda, activities with endangered and/or or adjacent to the Coronado, Prescott, Executive Officer, SAMHSA. threatened species. This notice is and Tonto National Forests, Arizona. [FR Doc. 97–12335 Filed 5–9–97; 8:45 am] provided pursuant to section 10(A) of Permit No. PRT–827366 BILLING CODE 4162±20±P the Endangered Species Act of 1973, as Applicant: Dr. Michael Powell, Alpine, amended (16 U.S.C. 1532, et seq.). Texas. 25966 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Applicant requests authorization to Applicant requests authorization to Permit No. PRT–828647 collect buds, flowers, fruits, seeds, spine survey for golden-cheeked warblers Applicant: Dr. Charles M. Mather, Chickasha, clusters, and whole plants from the (Dendroica chrysoparia) in central Oklahoma. following species: bunched cory cactus Texas, and Houston toads (Bufo Applicant requests authorization to (Coryphantha ramillosa), Sneed houstonensis) in east-central Texas. conduct presence/absence surveys for pincushion cactus (Coryphantha sneedii Permit No. PRT–797127 the Ouachita rock pocketbook (Arkansia var. sneedii), Lee pincushion cactus wheeleri) in the Kiamichi, Little River, (Coryphantha sneedii var leei) (flowers Applicant: Lloyd S. Wagner, Albuquerque, New Mexico. and Red River drainages in southeast and/or fruits only), Lloyd’s mariposa Oklahoma and northeast Texas. cactus (Echinomastus Applicant requests authorization to mariposensis=Neolloydia mariposensis), add the Pecos bluntnose shiner Permit No. PRT–828655 Lloyd’s hedgehog cactus (Echinocereus (Notropis simus pecosensis), and the Rio Applicant: Mike Ford, Albuquerque, New lloydii), and Chisos Mountain hedgehog Grande silvery minnow (Hybognathus Mexico. cactus (Echinocereus chisoensis). amarus) to his U.S. Fish and Wildlife Applicant requests authorization to Permit No. PRT–827367 Service Endangered Species Permit, and conduct presence/absence surveys for Applicant: Levi D. Deike, Lake Havasu City, to take limited numbers of these species the southwestern willow flycatcher Arizona. from the wild to monitor the effects of (Empidonax traillii extimus), Mexican flood control projects and activities on spotted owl (Strix occidentalis lucida), Applicant requests authorization to these protected fishes. and peregrine falcon (Falco peregrinus) handle, measure, tag, and immediately Permit No. PRT–828234 on Bureau of Land Management lands in release unharmed at the capture site, New Mexico. and monitor out-grow activities or Applicant: Steven Towers, Redding, California. razorback suckers (Xyrauchen texanus) Permit No. PRT–828723 and bonytail chubs (Gila elegans) from Applicant requests authorization to Applicant: Dr. C. Val Grant, Logan, Utah. Lake Havasu and the Colorado River conduct presence/absence surveys for Applicant requests authorization to south of the Interstate 40 bridge on the Southwestern willow flycatcher conduct presence/absence surveys for Havasu National Wildlife Refuge in (Empidonax traillii extimus) throughout the southwestern willow flycatcher Arizona and California. its historic range in Arizona, New (Empidonax traillii extimus), and Permit No. PRT–827368 Mexico, and Texas. Mexican spotted owl (Strix occidentalis Applicant: Dr. W.E. Briles, DeKalb, Illinois. Permit No. PRT–798107 lucida), in Las Animas and Costilla Counties, Colorado, and Colfax and Applicant: Kenneth J. Kingsley, Tucson, Applicant requests authorization to Taos Counties, New Mexico. Arizona. captively propagate masked bobwhites DATES: Written comments on these (Colinus virginianus ridgwayi) for the Applicant requests authorization to permit applications must be received on purpose of characterization of the major conduct presence/absence surveys for or before June 11, 1997. histocompatibility complex (a group of the cactus ferruginous pygmy-owl ADDRESSES: Written data or comments loci which have been implicated in (Glaucidium brasilianum cactorum) in should be submitted to the Legal disease resistance). Arizona. Instruments Examiner, Division of Permit No. PRT–827372 Permit No. PRT–822998 Endangered Species/Permits, Ecological Applicant: Dr. William M. Block, Flagstaff, Applicant: John M. McGee, Tucson, Arizona. Services, P.O. Box 1306, Albuquerque, Arizona. New Mexico 87103. Please refer to the Applicant requests authorization to respective permit number for each Applicant requests authorization to conduct presence/absence surveys for application when submitting comments. monitor populations by recording all the cactus ferruginous pygmy-owl All comments received, including sightings (date, time, location, activity, (Glaucidium brasilianum cactorum) in names and addresses, will become part age, class), capture, handle, band, and Arizona. of the official administrative record and attach radio transmitters and satellite may be made available to the public. transmitter units, and release unharmed Permit No. PRT–828640 FOR FURTHER INFORMATION CONTACT: U.S. at the capture sites Mexican spotted Applicant: Dr. Lisa K. Harris, Tucson, Fish and Wildlife Service, Ecological owls (Strix occidentalis lucida), and Arizona. Services, (see address above). Please bald eagles (Haliaeetus leucocephalus) Applicant requests authorization to refer to the respective permit number for wintering on the Coconino National conduct presence/absence surveys for each application when requesting Forest in Arizona. the cactus ferruginous pygmy-owl copies of documents. Documents and Permit No. PRT–827402 (Glaucidium brasilianum cactorum) in other information submitted with these Applicant: Dennis M. Herbert, Ft. Hood, Arizona. applications are available for review, Texas. Permit No. PRT–828642 subject to the requirements of the Privacy Act and Freedom of Information Applicant requests authorization to Applicant: Mary E. Darling, Tucson, Arizona. Act, by any party who submits a written capture, band, and immediately release Applicant requests authorization to request for a copy of such documents unharmed at the capture sites golden- conduct presence/absence surveys for within 30 days of the date of publication cheeked warblers (Dendroica the cactus ferruginous pygmy-owl of this notice, to the address above. chrysoparia) and black-capped vireos (Glaucidium brasilianum cactorum), David Yazzie, (Vireo atricapillus). southwestern willow flycatcher Regional Director, Region 2, Albuquerque, Permit No. PRT–827369 (Empidonax traillii extimus), and the New Mexico. Applicant: John R. (Rusty) Mase, Jr., Austin, Sonora tiger salamander (Ambystoma [FR Doc. 97–12325 Filed 5–9–97; 8:45 am] Texas. tigrinum stebbinsi) in Arizona. BILLING CODE 4510±55±M Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25967

DEPARTMENT OF THE INTERIOR proposed collection of information and SUMMARY: The General Accounting related forms may be obtained by Office Act of 1996, Public Law 104–316, Fish and Wildlife Service contacting the Bureau’s Clearance transferred to the Director of the Office Officer at the phone number listed of Management and Budget (OMB) the Garrison Diversion Unit Federal below. Comments and suggestions on Comptroller General’s authority under 5 Advisory Council Meeting the requirement should be made within U.S.C. 5584 to waive debts arising out AGENCY: Fish and Wildlife Service, 60 days directly to the Bureau Clearance of the erroneous payment of pay and Interior. Officer, U.S. Geological Survey, 208 allowances, travel, transportation, and relocation benefits made to employees ACTION: Notice of meeting. National Center, Reston, VA 20192. As required by OMB regulations at 5 of Executive Branch agencies. The OMB SUMMARY: Pursuant to section 10(a)(2) of CFR 1320.8(d)(1), the U.S. Geological Director subsequently delegated the the Federal Advisory Committee Act (5 Survey solicits specific public authority to waive collection of U.S.C. App. I), this notice announces a comments regarding the proposed erroneous payments from civilian meeting of the Garrison Diversion Unit information collection as to: employees to the Executive Branch Federal Advisory Council (Council) 1. Whether the collection of agency that made the erroneous established under the authority of the information is necessary for the proper payment. The Secretary of the Interior is Garrison Diversion Unit Reformulation performance of the functions of the delegating this authority to waive Act of 1986 (Pub. L. 99–294, May 12, bureau, including whether the collection of erroneous payments from 1986). The meeting is open to the information will have practical utility; employees of the Department of the public. Interested persons may make 2. The accuracy of the bureau’s Interior, to the Office of Hearings and oral statements to the council or file estimate of the burden of the collection Appeals (OHA) pursuant to the written statements for consideration. of information, including the validity of regulations found at 43 CFR 4.1(b)(4). DATES: The Council will meet from 1:00 the methodology and assumptions used; This notice announces OHA’s intent to p.m. to 5:00 p.m. on Wednesday, May 3. The utility, quality, and clarity of implement this new authority pursuant 21, and from 8:00 a.m. to 10:30 a.m. on the information to be collected; and, to the existing regulations establishing Thursday, May 22, 1997. 4. How to minimize the burden of the ‘‘Special Rules Applicable to Other Appeals and Hearings’’ in OHA, which ADDRESSES: The meeting will be held at collection of information on those who are published at 43 CFR Part 4, Subpart the Guest Haus Cafe, 612 Main Avenue, are to respond, including the use of G. Pending further notice, OHA will use Oakes, North Dakota. appropriate automated electronic, the General Accounting Office’s FOR FURTHER INFORMATION CONTACT: mechanical, or other forms of information technology. standards and procedures applicable to Dr. Grady Towns, ND/SD/RW, at (303) waiver of debts before the effective date 236–8145, extension 644. Title: Mine, Development, and Mineral Exploration Supplement. of the transfer of authority, December SUPPLEMENTARY INFORMATION: The OMB Approval Number: 1028–New. 18, 1996, which are published in Title Council will consider and discuss Abstract: Respondents supply the 4, CFR, Chapter I, subchapter G. subjects such as the Kraft Slough status, U.S. Geological Survey with domestic EFFECTIVE DATE: May 9, 1997. acquisition and opportunities, Garrison production, exploration, and mine FOR FURTHER INFORMATION CONTACT: Diversion Unit project update and development data on nonfuel mineral wildlife budget. Garrison Diversion Barry E. Hill, Director, Office of commodities. This information will be Conservancy District Legislative Hearings and Appeals, (703) 235–3810. published as an Annual Report for use proposal, Oakes Test Area, Lonetree SUPPLEMENTARY INFORMATION: Pursuant by Government agencies, industry, and update, Arrowwood National Wildlife to the General Accounting Office Act of the general public. Refuge Environmental Impact 1996, some functions of the Comptroller Statement, and the Audubon National Bureau Form Number: 9–3075. General were transferred to the Director Wildlife Refuge and Wildlife Frequency: Annual. of OMB. See section 101, Public Law Management Area Mitigation Plan. Description of Respondents: Nonfuel 104–316, 110 Stat. 3826. Subsequently, Mineral Producers and Exploration in a determination order dated Dated: May 1, 1997. Operations. December 17, 1996, the Director Ralph O. Morgenwech, Annual Responses: 874. delegated to each Executive Branch Regional Director, Denver, Colorado. Annual Burden Hours: 437. agency the authority under 5 U.S.C. [FR Doc. 97–12328 Filed 5–9–97; 8:45 am] Bureau Clearance Officer: John 5584, to approve the waiver of debts BILLING CODE 4310±55±M Cordyack, 703–648–7313. arising from the erroneous payment of Keith L. Harris, pay and allowances, or travel, Chief, Publications Services Section, Minerals transportation or relocation expenses, to DEPARTMENT OF THE INTERIOR Information Team. employees of that agency. The effect of [FR Doc. 97–12323 Filed 5–9–97; 8:45 am] this order is that the Department of the Geological Survey BILLING CODE 4310±31±M Interior now has the authority to waive Request for Public Comments on collection of these erroneous payments. Information Collection To Be Before the effective date of the transfer, Submitted to the Office of Management DEPARTMENT OF THE INTERIOR these claims were subject to the procedures prescribed by the and Budget for Review Under the Office of Hearings and Appeals Paperwork Reduction Act Comptroller General at 4 CFR Chapter I, Subchapter G (1996). Until OHA A request extending the collection of Delegation of Waivers of Erroneous announces otherwise, OHA’s policy will information listed below will be Payments be to apply these procedures to submitted to the Office of Management AGENCY: Office of Hearings and Appeals, applications for waiver, with the and Budget for approval under the Interior. exception that the Director of OHA will provisions of the Paperwork Reduction consider all waiver applications for ACTION: Notice. Act (44 U.S.C. Chapter 35). Copies of the amounts over $1,500 and all appeals of 25968 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices agency determinations on waiver the time for individual oral comments DEPARTMENT OF THE INTERIOR requests of $1,500 or less, in place of the may be limited. Individuals who plan to General Accounting Office. The Director attend and need further information Bureau of Land Management of OHA will exercise this authority in about the meetings, or need special [UTU±74977] compliance with 43 CFR Part 4, and assistance such as sign language pursuant to the rules enunciated in interpretation or other reasonable Utah; Proposed Reinstatement of Subpart G. accommodations, should contact Debra Terminated Oil and Gas Lease Waiver applications for amounts of Kovar at the Shoshone Resource Area $1,500 or less should be sent to the In accordance with Title IV of the Office, P.O. Box 2–B, Shoshone, ID, Federal Oil and Gas Royalty agency out of which the erroneous 83352, (208) 886–7201. payment arose. For each application for Management Act (Pub. L. 97–451), a waiver of a debt exceeding $1,500, and DATE AND TIME: Date is May 29th, starts petition for reinstatement of oil and gas for an appeal of an Agency’s decision on at 8:00 a.m. in Federal Building Room lease UTU–74977 for lands in San Juan a waiver involving less than $1,500, the B–23, 250 South 4th Ave, Pocatello, County, Utah, was timely filed and claimant should submit the application Idaho. Public comments from 10:00 required rentals accruing from January directly to OHA in accordance with the a.m.–10:30 a.m. on May 29, 1997. 1, 1997, the date of termination, have procedures published at 43 CFR Part 4. been paid. SUPPLEMENTARY INFORMATION: Waiver applications for amounts over The The lessee has agreed to new lease $1,500, as well as requests for review of purpose of the council is to advise the terms for rentals and royalties at rates of 2 agency determinations on waivers Secretary of the Interior, through the $10 per acre and 16 ⁄3 percent, involving less than $1,500, may be sent BLM, on a variety of planning and respectively. The $500 administrative to: Barry E. Hill, Director, Office of management issues associated with the fee has been paid and the lessee has Hearings and Appeals, U.S. Department management of the public lands. reimbursed the Bureau of Land Management for the cost of publishing of the Interior, 4015 Wilson Boulevard, FOR FURTHER INFORMATION CONTACT: Room 1111, Arlington, Virginia 22203. this notice. Contact Debra Kovar, Shoshone Having met all the requirements for Dated: May 5, 1997. Resource Area Office, P.O. Box 2–B, reinstatement of the lease as set out in Barry E. Hill, Shoshone, ID 83352, (208) 886–7201. Section 31 (d) and (e) of the Mineral Director, Office of Hearings and Appeals. Dated: May 2, 1997. Leasing Act of 1920 (30 U.S.C. 188), the Bureau of Land Management is [FR Doc. 97–12291 Filed 5–9–97; 8:45 am] Gary Bliss, BILLING CODE 4310±79±M proposing to reinstate lease UTU–74977, Acting District Manager. effective January 1, 1997, subject to the [FR Doc. 97–12319 Filed 5–9–97; 8:45 am] original terms and conditions of the DEPARTMENT OF THE INTERIOR BILLING CODE 4310±GG±P lease and the increased rental and royalty rates cited above. Bureau of Land Management Robert Lopez, DEPARTMENT OF THE INTERIOR [ID±990±1020±01] Group Leader, Minerals Adjudication Group. Bureau of Land Management [FR Doc. 97–12330 Filed 5–9–97; 8:45 am] Upper Snake River Districts Resource BILLING CODE 4310±DQ±M Advisory Council Meeting Notice of Meeting AGENCY: Bureau of Land Management, DEPARTMENT OF THE INTERIOR Interior. SUMMARY: The Lower Snake River District Resource Advisory Council will ACTION: Resource Advisory Council Bureau of Land Management meeting location and time. meet in Boise to discuss a variety of district and regional issues, including [UTU±70835] SUMMARY: In accordance with the the grazing allotment Analysis, Utah; Proposed Reinstatement of Federal Land Policy and Management Interpretation and Evaluation process, Terminated Oil and Gas Lease Act and the Federal Advisory the Upper Columbia River Basin Committee Act of 1972 (FACA), 5 Environmental Impact Statement, and In accordance with Title IV of the U.S.C., the Department of the Interior, the Draft Owyhee Resource Management Federal Oil and Gas Royalty Bureau of Land Management (BLM) Plan. Management Act (Pub .L. 97–451), a council meeting of the Upper Snake petition for reinstatement of oil and gas DATES: River Districts Resource Advisory June 5, 1997. The meeting will lease UTU–70835 for lands in Emery Council will be held as indicated below. begin at 9:00 AM. A public comment County, Utah, was timely filed and The agenda includes the review of period will begin at 9:30 AM. required rentals accruing from January public comments of the Healthy ADDRESSES: The Lower Snake River 1, 1997, the date of termination, have Rangeland Standard and Guidelines and District Office is located at 3948 been paid. an update on the Supplemental Draft Development Avenue, Boise, Idaho. The lessee has agreed to new lease Bennett Hills Resource Management terms for rentals and royalties at rates of Plan. All meetings are open to the FOR FURTHER INFORMATION CONTACT: $10 per acre and 162⁄3 percent, public. The public may present written Barry Rose, Lower Snake River District respectively. The $500 administrative comments to the council. Each formal Office (208–384–3393). fee has been paid and the lessee has council meeting will have a time Dated: May 6, 1997. reimbursed the Bureau of Land allocated for hearing public comments. Management for the cost of publishing Barry Rose, The public comment period for the this notice. council meeting is listed below. Public Affairs Specialist. Having met all the requirements for Depending on the number of persons [FR Doc. 97–12333 Filed 5–9–97; 8:45 am] reinstatement of the lease as set out in wishing to comment, and time available, BILLING CODE 4310±GG±P Section 31 (d) and (e) of the Mineral Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25969

Leasing Act of 1920 (30 U.S.C. 188), the cannot be achieved prudently or ADDRESSES: Comments and meeting Bureau of Land Management is feasibly elsewhere. The lands contain requests should be sent to the Montana proposing to reinstate lease UTU–70834, no other known public values. The State Director, BLM, P.O. Box 36800, effective January 1, 1997, subject to the planning document and environmental Billings, Montana 59107. original terms and conditions of the assessment/land report covering the FOR FURTHER INFORMATION CONTACT: lease and the increased rental and proposed sale will be available for Sandra Ward, BLM Montana State royalty rates cited above. review at the Bureau of Land Office, 406–255–2949. Management, Pinedale Resource Area Robert Lopez, SUPPLEMENTARY INFORMATION: On April Group Leader, Minerals Adjudication Group. Office, Pinedale, Wyoming. 25, 1997, a petition was approved Conveyance of the above public lands [FR Doc. 97–12331 Filed 5–9–97; 8:45 am] allowing the Bureau of Land will be subject to: BILLING CODE 4310±DQ±M Management to file an application to 1. Reservation of a right-of-way for withdraw the following described ditches and canals pursuant to the Act public land from settlement, sale, of August 30, 1890, 43 U.S.C. 945. DEPARTMENT OF THE INTERIOR location, or entry under the general land 2. Reservation of oil and gas to the laws, including the mining laws, subject Bureau of Land Management United States. to valid existing rights. The land is The public lands described above [WY±040±1430±01; WYW±122360] described as follows: shall be segregated from all forms of Notice of Realty Action; Direct Sale of appropriation under the public land Principal Meridian, Montana Public Lands; Wyoming laws, including the mining laws, upon T. 16 N., R. 19 E., publication of this notice in the Federal sec. 15, lot 15, lots 25 to 28, inclusive, AGENCY: Bureau of Land Management, Register. The segregative effect will end NW1⁄4SW1⁄4, and MS 9204; Interior. upon issuance of the patent or 270 days sec. 16, MS 5974. ACTION: Notice of realty action, sale of from the date of the publication, The area described contains 175.36 acres in public lands in Sublette County. whichever comes first. Fergus County. For a period of forty-five (45) days The purpose of the proposed SUMMARY: The Bureau of Land from the date of issuance of this notice, withdrawal is to protect the unique and Management has determined that the interested parties may submit comments significant geologic resources of Crystal lands described below are suitable for to the Bureau of Land Management, Cave area for recreational purposes. public sale under Section 203 and District Manager, Rock Springs, 280 For a period of 90 days from the date Section 209 of the Federal Land Highway 191 North, Rock Springs, of publication of this notice, all persons Management Policy Act of 1976, 43 Wyoming 82901. Any adverse who wish to submit comments, U.S.C. 1713, 1719. comments will be evaluated by the State suggestions, or objections in connection Director who may sustain, vacate, or Sixth Principal Meridian with the proposed withdrawal may modify this realty action. In the absence present their views in writing to the T 30 N., R. 111 W. of any objections this proposed realty Montana State Director of the Bureau of Section 22, W1⁄2NE1⁄4, NE1⁄4SW1⁄4, action will become final. Land Management. NW1⁄4SE1⁄4. Dated: March 31, 1997. Notice is hereby given that an These lands contain 160 acres. Leslie Theiss, opportunity for a public meeting is FOR FURTHER INFORMATION CONTACT: Area Manager. afforded in connection with the Leslie Theiss, Area Manager, Bureau of [FR Doc. 97–12368 Filed 5–9–97; 8:45 am] proposed withdrawal. All interested Land Management, Pinedale Resource persons who desire a public meeting for BILLING CODE 4310±22±P Area, P.O. Box 768, Pinedale, Wyoming the purpose of being heard on the 82941, 307–367–4358. proposed withdrawal must submit a SUPPLEMENTARY INFORMATION: The DEPARTMENT OF THE INTERIOR written request to the Montana State Bureau of Land Management proposes Director within 90 days from the date of to sell the surface and mineral estates, Bureau of Land Management publication of this notice. Upon excepting oil and gas, to Sublette determination by the authorized officer [MT±924±1430±01; MTM 86164] County and Teton County, pursuant to that a public meeting will be held, a Section 203 and Section 209 of the Proposed Withdrawal and Opportunity notice of the time and place will be Federal Land Management Policy Act of for Public Meeting; MT published in the Federal Register at 1976, 43 U.S.C. 1713, 1719. Sublette least 30 days before the scheduled date County and Teton County wish to AGENCY: Bureau of Land Management, of the meeting. acquire the lands for future landfill Interior. The application will be processed in purposes. ACTION: Notice. accordance with the regulations set The proposed direct sale to Sublette forth in 43 CFR part 2300. County and Teton County would be SUMMARY: The Bureau of Land For a period of 2 years from the date made at fair market value. Additionally, Management proposes to withdraw of publication of this notice in the Sublette County and Teton County will 175.36 acres of public land in Fergus Federal Register, the land will be be required to submit a nonrefundable County to protect the unique and segregated as specified above unless the application fee of $50.00 in accordance significant geologic resources of the application is denied or canceled or the with 43 CFR Subpart 2720, for Crystal Cave area. This notice closes the withdrawal is approved prior to that conveyance of all unreserved mineral land for up to 2 years from surface entry date. The temporary uses which may be interests in the lands. and mining. The land has been and will permitted during this segregative period The proposed sale is consistent with remain open to mineral leasing. are licenses, permits, cooperative the Pinedale Resource Area DATES: Comments and requests for a agreements, or discretionary land use Management Plan and would serve public meeting must be received by authorization of a temporary nature, but important public objectives which August 11, 1997. only with the approval of unauthorized 25970 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices officer of the Bureau of Land OSM will request a 3-year term of manufacturers holding registrations for Management. approval for each information collection the bulk manufacture of the substance Dated: May 2, 1997. activity. an opportunity for a hearing. Comments are invited on: (1) The Thomas P. Lonnie, Therefore, in accordance with Section need for the collection of information Deputy State Director, Division of Resources. 1311.42 of Title 21, Code of Federal for the performance of the functions of Regulations (CFR) notice is hereby given [FR Doc. 97–12320 Filed 5–9–97; 8:45 am] the agency; (2) the accuracy of the BILLING CODE 4310±DP±P that by application dated August 16, agency’s burden estimates; (3) ways to 1996, and relevant written statements of enhance the quality, utility and clarity fact dated January 17, 1997, Astra USA, of the information collection; and (4) DEPARTMENT OF THE INTERIOR Inc., Attn: Charles E. Yoa, Legal ways to minimize the information Department, 50 Otis Street, P.O. Box Office of Surface Mining Reclamation collection burden on respondents, such 4500, Westborough, Massachusetts and Enforcement as use of automated means of collection 01581–4500, made application to the of the information. A summary of the Drug Enforcement Administration to be Notice of Proposed Information public comments will accompany registered as an importer of cocaine Collection OSM’s submission of the information (9041) a basic class of controlled collection request to OMB. substance listed in Schedule II. AGENCY: Office of Surface Mining This notice provides the public with Reclamation and Enforcement. 60 days in which to comment on the The firms plans to manufacture ACTION: Notice and request for following information collection finished dosage pharmaceutical comments. activity: products. Title: Petition process for designation Any manufacturer holding, or SUMMARY: In compliance with the of Federal lands as unsuitable for all or applying for, registration as a bulk Paperwork Reduction Act of 1995, the certain types of surface coal mining manufacturer of this basic class of Office of Surface Mining Reclamation operations and for termination of controlled substance may file written and Enforcement (OSM) is announcing previous designations—30 CFR 769, 30 comments on or objections to the its intention to request approval for the CFR part 769. application described above and may, at collection of information for noncoal OMB Control Number: 1029–0098. the same time, file a written request for reclamation, 30 CFR part 769. Summary: This Part establishes the a hearing on such application in DATES: Comments on the proposed minimum procedures and standards for accordance with 21 CFR 1301.54 in information collection must be received designating Federal lands unsuitable for such form as prescribed by 21 CFR by July 11, 1997, to be assured of certain types of surface mining 1316.47. consideration. operations and for terminating Any such comments, objections, or ADDRESSES: Comments may be mailed to designations pursuant to a petition. The information requested will aid the requests for a hearing may be addressed John A. Trelease, Office of Surface to the Acting Deputy Assistant Mining Reclamation and Enforcement, regulatory authority in the decision making process to approve or Administrator, Office of Diversion 1951 Constitution Ave., NW., Room Control, Drug Enforcement 210—SIB, Washington, DC 20240. disapprove a request. Bureau Form Number: None. Administration, United States Comments may also be submitted Department of Justice, Washington, DC electronically to [email protected]. Frequency of Collection: On occasion. Description of Respondents: People 20537, Attention: DEA Federal Register FOR FURTHER INFORMATION CONTACT: who may be adversely affected by Representative (CCR), and must be filed To request a copy of the information surface mining on Federal lands. no later than July 11, 1997. collection request, explanatory Total Annual Responses: 1. This procedure is to be conducted information and related forms, contact Total Annual Burden Hours: 130. simultaneously with and independent John A. Trelease, at (202) 208–2783. Dated: May 5, 1997. of the procedures described in 21 CFR SUPPLEMENTARY INFORMATION: The Office Arthur W. Abbs, 1311.42 (b), (c), (d), (e), and (f). As noted of Management and Budget (OMB) Chief, Division of Regulatory Support. in a previous notice at 40 FR 43745–46 regulations at 5 CFR 1320, which (September 23, 1975), all applicants for implementing provisions of the [FR Doc. 97–12261 Filed 5–9–97; 8:45 am] BILLING CODE 4310±05±M registration to import basic classes of Paperwork Reduction Act of 1995 (Pub. any controlled substances in Schedule I L. 104–13), require that interested or II are and will continue to be required members of the public and affected DEPARTMENT OF JUSTICE to demonstrate to the Acting Deputy agencies have an opportunity to Assistant Administrator, Office of comment on information collection and Drug Enforcement Administration Diversion Control, Drug Enforcement recordkeeping activities (see 5 CFR Administration that the requirements 1320.8(d)). This notice identifies Importation of Controlled Substances; for such requirements for such information collections that OSM will Notice of Application registration pursuant to 21 U.S.C. be submitting to OMB for extension. 958(a), 21 U.S.C. 823(a), and 21 CFR These collections are contained in 30 Pursuant to Section 1008 of the 1311.42(a), (b), (c), (d), (e), and (f) are CFR Part 769, Petition process for Controlled Substances Import and satisfied. designation of Federal lands as Export Act (21 U.S.C. 958(i)), the unsuitable for all or certain types of Attorney General shall, prior to issuing Dated: April 10, 1997. surface coal mining operations and for a registration under this Section to a Terrance W. Woodworth, termination of previous designations. bulk manufacturer of a controlled Acting Deputy Assistant Administrator, Office OSM has revised burden estimates, substance in Schedule I or II and prior of Diversion Control, Drug Enforcement where appropriate, to reflect current to issuing a regulation under Section Administration. reporting levels or adjustments based on 1002(a) authorizing the importation of [FR Doc. 97–12292 Filed 5–9–97; 8:45 am] reestimates of burden or respondents. such a substance, provide BILLING CODE 4410±09±M Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25971

DEPARTMENT OF JUSTICE Drug Schedule a registration under this Section to a bulk manufacturer of a controlled Drug Enforcement Administration Alfentanil (9737) ...... II substance in Schedule I or II and prior Fentanyl (9801) ...... II to issuing a regulation under Section Importation of Controlled Substances; 1002(a) authorizing the importation of Notice of Application The firm plans to import small such a substance, provide Pursuant to Section 1008 of the reference standard quantities of finished manufacturers holding registrations for Controlled Substances Import and commercial product from its sister the bulk manufacture of the substance Export Act (21 U.S.C. 958(i)), the company in Switzerland for sale to its an opportunity for a hearing. Attorney General shall, prior to issuing customers for drug testing and pharmaceutical research and Therefore, in accordance with a registration under this Section to a § 1311.42 of Title 21, Code of Federal bulk manufacturer of a controlled development. Any manufacturer holding, or Regulations (CFR), notice is hereby substance in Schedule I or II and prior applying for, registration as a bulk given that on March 3, 1997, Lonza to issuing a regulation under Section manufacturer of these basic classes of Riverside, 900 River Road, 1002(a) authorizing the importation of controlled substances may file written Conshohocken, Pennsylvania 19428, such a substance, provide comments on or objections to the made application to the Drug manufacturers holding registrations for application described above and may, at Enforcement Administration to be the bulk manufacture of the substance the same time, file a written request for registered as an importer of an opportunity for a hearing. phenylacetone (8501), a basic class of Therefore, in accordance with a hearing on such application in accordance with 21 CFR 1301.54 in controlled substance listed in Schedule § 1311.42 of Title 21, Code of Federal II. Regulations (CFR), notice is hereby such form as prescribed by 21 CFR given that on March 26, 1997, Lipomed, 1316.47. Any such comments, Any manufacturer holding, or Inc., One Broadway, Cambridge, objections, or requests for a hearing may applying for, registration as a bulk Massachusetts 02142, made application be addressed to the Acting Deputy manufacturer of this basic class of to the Drug Enforcement Administration Assistant Administrator, Office of controlled substance may file written to be registered as an importer of the Diversion Control, Drug Enforcement comments on or objections to the basic classes of controlled substances Administration, United States application described above and may, at listed below: Department of Justice, Washington, D.C. the same time, file a written request for 20537, Attention: DEA Federal Register a hearing on such application in Drug Schedule Representative (CCR), and must be filed accordance with 21 CFR 1301.54 in no later than June 11, 1997. such form as prescribed by 21 CFR Cathinone (1235) ...... I This procedure is to be conducted 1316.47. Methaqualone (2565) ...... I simultaneously with and independent Lysergic acid diethylamide (7315) I Any such comments, objections, or of the procedures described in 21 CFR requests for a hearing may be addressed Tetrahydrocannabinols (7370) ...... I 1311.42 (b), (c), (d), (e), and (f). As noted Mescaline (7381) ...... I to the Acting Deputy Assistant 3,4,5-Trimethoxyamphetamine I in a previous notice at 40 FR 43745–46 Administrator, Office of Diversion (7390). (September 23, 1975), all applicants for Control, Drug Enforcement 4-Bromo-2,5-dimethoxy- I registration to import basic classes of Administration, United States amphetamine (7391). any controlled substances in Schedule I Department of Justice, Washington, D.C. 4-Methyl-2,5-dimethoxy- I or II are and will continue to be required 20537, Attention: DEA Federal Register amphetamine (7395). to demonstrate to the Acting Deputy 2,5-Dimethoxyamphetamine I Representative (CCR), and must be filed Assistant Administrator, Office of no later than June 11, 1997. (7396). Diversion Control, Drug Enforcement 2,5-Dimethoxy-4- I This procedure is to be conducted ethylamphetamine (7399). Administration that the requirements for such registration pursuant to 21 simultaneously with and independent 3,4-Methylenedioxyamphetamine I of the procedures described in 21 CFR (7400). U.S.C. 958(a), 21 U.S.C. 823(a), and 21 3,4-Methylenedioxy-N- I CFR 1311.42 (a), (b), (c), (d), (e), and (f) 1311.42 (b), (c), (d), (e), and (f). As noted ethylamphetamine (7404). are satisfied. in a previous notice at 40 FR 43745–46 3,4-Methylenedioxy- I (September 23, 1975), all applicants for Dated: April 24, 1997. methamphetamine (7405). registration to import a basic class of Psilocybin (7437) ...... I Terrance W. Woodworth, any controlled substance in Schedule I Psilocyn (7438) ...... I Acting Deputy Assistant Administrator, Office or II are and will continue to be required Acetyldihydrocodeine (9051) ...... I of Diversion Control, Drug Enforcement to demonstrate to the Acting Deputy Dihydromorphine (9145) ...... I Administration. Assistant Administrator, Office of Heroin (9200) ...... I [FR Doc. 97–12293 Filed 5–9–97; 8:45 am] Tilidine (9750) ...... I Diversion Control, Drug Enforcement Amphetamine (1100) ...... II BILLING CODE 4410±09±M Administration that the requirements Methamphetamine (1105) ...... II for such registration pursuant to 21 Phencyclidine (7471) ...... II U.S.C. 958(a), 21 U.S.C. 823(a), and 21 Cocaine (9041) ...... II DEPARTMENT OF JUSTICE CFR 1311.42 (a), (b), (c), (d), (e), and (f) Codeine (9050) ...... II are satisfied. Dihydrocodeine (9120) ...... II Drug Enforcement Administration Oxycodone (9143) ...... II Dated: March 31, 1997. Hydromorphone (9150) ...... II Importation of Controlled Substances; Terrance W. Woodworth, Benzoylecgonine (9180) ...... II Notice of Application Acting Deputy Assistant Administrator, Office Methadone (9250) ...... II of Diversion Control, Drug Enforcement Dextropropoxyphene, bulk (non- II Pursuant to Section 1008 of the Administration. dosage forms) (9273). Controlled Substances Import and Morphine (9300) ...... II Export Act (21 U.S.C. 958(i)), the [FR Doc. 97–12294 Filed 5–9–97; 8:45 am] Oxymorphone (9652) ...... II Attorney General shall, prior to issuing BILLING CODE 4410±09±M 25972 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

DEPARTMENT OF JUSTICE No comments or objections have been Any manufacturer holding, or received. DEA has considered the applying for, registration as a bulk Drug Enforcement Administration factors in Title 21, United States Code, manufacturer of these basis classes of section 823(a) and determined that the controlled substances may file written Importer of Controlled Substances; registration of North Pacific Trading comments on or objections to the Notice of Registration Company to import marihuana is application described above and may, at By Notice dated February 7, 1997, and consistent with the public interest and the same time, file a written request for published in the Federal Register on with United States obligations under a hearing on such application in February 21, 1997, (62 FR 8041), international treaties, conventions, or accordance with 21 CFR 1301.54 in Noramco of Delaware, Inc., Division of protocols in effect on May 1, 1971, at such form as prescribed by 21 CFR McNeilab, Inc., 500 Old Swedes this time. Therefore, pursuant to section 1316.47. 1008(a) of the Controlled Substances Landing Road, Wilmington, Delaware Any such comments, objections, or 1980, made application by renewal to Import and Export Act and in accordance with Title 21, Code of requests for a hearing may be addressed, the Drug Enforcement Administration in quintuplicate, to the Acting Deputy (DEA) to be registered as an importer of Federal Regulations, § 1311.42, the Assistant Administrator, Office of the basic classes of controlled above firm is granted registration as an Diversion Control, Drug Enforcement substances listed below: importer of the basic class of controlled substance listed above. Administration, United States Drug Schedule Dated: March 31, 1997. Department of Justice, Washington, D.C. Terrance W. Woodworth, 20537, Attention: DEA Federal Register Opium, raw (9600) ...... II Acting Deputy Assistant Administrator, Office Representative (CCR), and must be filed Poppy Straw Concentrate (9670) II of Diversion Control, Drug Enforcement no later than June 11, 1997. Administration. This procedure is to be conducted No comments or objections have been [FR Doc. 97–12296 Filed 5–9–97; 8:45 am] simultaneously with and independent received. DEA has considered the BILLING CODE 4410±09±M of the procedures described in 21 CFR factors in Title 21, United States Code, Section 823(a) and determined that the 1311.42 (b), (c), (d), (e), and (f). As noted in a previous notice at 40 FR 43745–46 registration of Noramco of Delaware, DEPARTMENT OF JUSTICE Inc. to import the listed controlled (September 23, 1975), all applicants for registration to import basic classes of substances is consistent with the pubic Drug Enforcement Administration interest and with United States any controlled substances in Schedule I obligations under international treaties, Importation of Controlled Substances; or II are and will continue to be required conventions, or protocols in effect on Application to demonstrate to the Acting Deputy May 1 ,1971, at this time. Therefore, Assistant Administrator, Office of Pursuant to section 1008 of the pursuant to Section 1008(a) of the Diversion Control, Drug Enforcement Controlled Substances Import and Controlled Substances Import and Administration that the requirements Export Act (12 U.S.C. 958(i)), the Export Act and in accordance with Title for such registration pursuant to 21 Attorney General shall, prior to issuing 21, Code of Federal Regulations, Section U.S.C. 958 (a), 21 U.S.C. 823(a), and 21 a registration under this section to a 1311.42, the above firm is granted CFR 1311.42 (a), (b), (c), (d), (e), and (f) bulk manufacturer of a controlled registration as an importer of the basic are satisfied. substance in Schedule I of II and prior classes of controlled substances listed to issuing a regulation under section Dated: April 10, 1997. above. 1002(a) authorizing the importation of Terrance W. Woodworth, Dated: March 31, 1997. such a substance, provide Acting Deputy Assistant Administrator, Office Terrance W. Woodworth, manufacturers holding registrations for of Diversion Control, Drug Enforcement Acting Deputy Assistant Administrator, Office the bulk manufacture of the substance Administration. of Diversion Control, Drug Enforcement an opportunity for a hearing. [FR Doc. 97–12297 Filed 5–9–97; 8:45 am] Administration. Therefore, in accordance with BILLING CODE 4410±09±M [FR Doc. 97–12295 Filed 5–9–97; 8:45 am] § 1311.42 of Title 21, Code of Federal BILLING CODE 4410±09±M Regulations (CFR), notice is hereby given that on February 21, 1997, Penick DEPARTMENT OF JUSTICE Corporation, 158 Mount Olivet Avenue, DEPARTMENT OF JUSTICE Newark, New Jersey 07114, made Drug Enforcement Administration application by renewal to the Drug Drug Enforcement Administration Enforcement Administration to be Manufacturer of Controlled registered as an importer of the basic Substances; Application Importer of Controlled Substances; classes of controlled substances listed Registration below: Pursuant to § 1201.43(a) of Title 21 of By Notice dated October 31, 1996, and the Code of Federal Regulations (CFR), published in the Federal Register on Drug Schedule this is notice that on March 17, 1997, November 27, 1996, (61 FR 60305), Research Triangle Institute, Kenneth H. Coca Leaves (9040) ...... II North Pacific Trading Company, 1505 Opium, raw (9600) ...... II Davis, Jr., Hermann Building, East SE Gideon Street, Portland, Oregon Opium poppy (9650) ...... II Institute Drive, P.O. Box 12194, 97202, made application by renewal to Poppy Straw Concentrate (9670) II Research Triangle Part, North Carolina the Drug Enforcement Administration 27709, made application by renewal to (DEA) to be registered as an importer of The firm plans to import the listed the Drug Enforcement Administration marijuana (7360), a basic class of controlled substances for the (DEA) for registration as a bulk controlled substance listed in Schedule manufacture of bulk pharmaceutical manufacturer of the basic classes of I. controlled substances. controlled substances listed below: Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25973

Drug Schedule Drug Schedule such a substance, provide manufacturers holding registrations for Marihuana (7360) ...... I Marihuana (7360) ...... I the bulk manufacture of the substance Cocaine (9041) ...... II Cocaine (9041) ...... II an opportunity for a hearing. Therefore, in accordance with The institute will manufacture Any manufacturer holding, or § 1311.42 of Title 21, Code of Federal marihuana cigarettes for the National applying for, registration as a bulk Institute on Drug Abuse (NIDA) and the manufacturer of these basic classes of Regulations (CFR), notice is hereby cocaine will be used for reference controlled substances may file written given that on March 10, 1997, Roberts standards, human and animal research, comments on or objections to the Laboratories, Inc., 4 Industrial Way as dictated by NIDA. application described above and may, at West, Eatontown, New Jersey 07724, made application by renewal to the Any other such applicant and any the same time, file a written request for Drug Enforcement Administration to be person who is presently registered with a hearing on such application in DEA to manufacture such substances accordance with 21 CFR 1301.54 in registered as an importer of propiram may file comments or objections to the such form as prescribed by 21 CFR (9646), a basic class of controlled issuance of the above application. 1316.47. substance listed in Schedule I. Any such comments, objections, or The firm plans to import the propiram Any such comments or objections requests for a hearing may be addressed, to manufacture in bulk for product may be addressed, in quintuplicate, to in quintuplicate, to the Acting Deputy development. the Acting Deputy Assistant Assistant Administrator, Office of Administrator, Office of Diversion Diversion Control, Drug Enforcement Any manufacturer holding, or Control, Drug Enforcement Administration, United States applying for, registration as a bulk Administration, United States Department of Justice, Washington, DC. manufacturer of this basic class of Department of Justice, Washington, 20537, Attention: DEA Federal Register controlled substance may file written D.C., 20537, Attention: DEA Federal Representative (CCR), and must be filed comments on or objections to the Register Representative (CCR), and must no later than July 11, 1997. application described above and may, at be filed no later than July 11, 1997. This procedure is to be conducted the same time, file a written request for Dated: April 15, 1997. simultaneously with and independent a hearing on such application in Terrance W. Woodworth, of the procedures described in 21 CFR accordance with 21 CFR 1301.54 in Acting Deputy Assistant Administrator, Office 1311.42(b), (c), (d), (e), and (f). As noted such form as prescribed by 21 CFR of Diversion Control, Drug Enforcement in a previous notice at 40 FR 43745–46 1316.47. Administration. (September 23, 1975), all applicants for [FR Doc. 97–12298 Filed 5–9–97; 8:45 am] registration to import basic classes of Any such comments, objections, or requests for a hearing may be addressed BILLING CODE 4410±09±M any controlled substances in Schedule I or II are and will continue to be required to the Acting Deputy Assistance to demonstrate to the Acting Deputy Administrator, Office of Diversion DEPARTMENT OF JUSTICE Assistant Administrator, Office of Control, Drug Enforcement Diversion Control, Drug Enforcement Administration, United States Drug Enforcement Administration Administration that the requirements Department of Justice, Washington, DC for such registration pursuant to 21 20537, Attention: DEA Federal Register Importation of Controlled Substances; U.S.C. 958(a), 21 U.S.C. 823(a), and 21 Representative (CCR), and must be filed Application CFR 1311.42(a), (b), (c), (d), (e), and (f) no later than June 11, 1997. Pursuant to section 1008 of the are satisfied. This procedure is to be conducted Controlled Substances Import and Dated: April 16, 1997. simultaneously with and independent Export Act (21 U.S.C. 958 (i)), the Terrance W. Woodworth, of the procedures described in 21 CFR Attorney General shall, prior to issuing Acting Deputy Assistant Administrator, Office 1311.42 (b), (c), (d), (e), and (f). As noted a registration under this section to a of Diversion Control, Drug Enforcement in a previous notice at 40 FR 43745–46 bulk manufacturer of a controlled Administration. (September 23, 1975), all applicants for substance in Schedule I or II and prior [FR Doc. 97–12299 Filed 5–9–97; 8:45 am] registration to import a basic class of to issuing a regulation under section BILLING CODE 4410±09±M any controlled substance in Schedule I 1002(a) authorizing the importation of or II are and will continue to be required such a substance, provide to demonstrate to the Acting Deputy manufacturers holding registrations for DEPARTMENT OF JUSTICE Assistant Administrator, Office of the bulk manufacture of the substance Diversion Control, Drug Enforcement Drug Enforcement Administration an opportunity for a hearing. Administration that the requirements Therefore, in accordance with Importation of Controlled Substances; for such registration pursuant to 21 § 1311.42 of Title 21, Code of Federal Application U.S.C. 958(a), 21 U.S.C. 823(a), and 21 Regulations (CFR), notice is hereby CFR 1311.42 (a), (b), (c), (d), (e), and (f) given that on March 17, 1997, Research Pursuant to section 1008 of the are satisfied. Triangle Institute, Kenneth H. Davis, Jr., Controlled Substances Import and Hermann Building, East Institute Drive, Export Act (21 U.S.C. 958(i)), the Dated: April 4, 1997. PO. Box 12194, Research Triangle Park, Attorney General shall, prior to issuing Terrance W. Woodworth, North Carolina 27709, made application a registration under this Section to a Acting Deputy Assistant Administrator, Office by renewal to the Drug Enforcement bulk manufacturer of a controlled of Diversion Control, Drug Enforcement Administration to be registered as an substance in Schedule I or II and prior Administration. importer of the basic classes of to issuing a regulation under section [FR Doc. 97–12300 Filed 5–9–97; 8:45 am] controlled substances listed below: 1002(a) authorizing the importation of BILLING CODE 4410±09±M 25974 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

DEPARTMENT OF JUSTICE Administration that the requirements Comments and/or suggestions for such registration pursuant to 21 regarding this notice should be directed Drug Enforcement Administration U.S.C. 958(a), 21 U.S.C. 823(a), and 21 to the Office of Management and CFR 1311.42 (a), (b), (c), (d), (e), and (f) Budget, Office of Information and Importation of Controlled Substances; are satisfied. Regulatory Affairs, ATTN: DOJ Desk Application Dated: April 2, 1997. Officer, Washington, DC 20503. Overview of this information Pursuant to section 1008 of the Terrance W. Woodworth, collection: Controlled Substances Import and Acting Deputy Assistant Administrator, Office Export Act (21 U.S.C. 958(i)), the (1) Type of information collection: of Diversion Control, Drug Enforcement Extension of Current Collection. Attorney General shall, prior to issuing Administration. (2) The title of the form/collection: a registration under this section to a [FR Doc. 97–12301 Filed 5–9–97; 8:45 am] Hate Crime Incident Report and bulk manufacturer of a controlled BILLING CODE 4410±09±M Quarterly Hate Crime Report. substance in Schedule I or II and prior (3) The agency form number, if any, to issuing a regulation under section and applicable component of the 1002(a) authorizing the importation of DEPARTMENT OF JUSTICE Department sponsoring the collection. such a substance, provide Federal Bureau of Identification Form: 11–1 and 11–2. Federal Bureau of manufacturers holding registrations for Identification, Department of Justice. the bulk manufacture of the substance (4) Affected public who will be asked an opportunity for a hearing. Criminal Justice Information Service, Agency Information Collection or required to respond, as well as brief Therefore, in accordance with abstract. Primary: State and Local Law § 1311.42 of Title 21, Code of Federal Activities; Proposed Collection: Comment Request Enforcement Agencies. This collection Regulations (CFR), notice is hereby will gather information necessary to given that on March 17, 1997, Roche AGENCY: Notice of information monitor the bias motivation of selected Diagnostic Systems, Inc., 1080 U.S. collection under review: Hate crime criminal offenses. The resulting Highway 202, Somerville, New Jersey incident reports. This proposed statistics are published annually. 08876–3771, made application by information collection was published in (5) An estimate of the total number of renewal to the Drug Enforcement the Federal Register on March 11, 1997 respondents and the amount of time Administration to be registered as an at 62 FR 11224, utilizing emergency estimated for an average respondent to importer of tetrahydrocannabinols review in addition to allowing a 60-day respond: 48,000 respondents with an (7370), a basic class of controlled comment period. No comments were average of 6 hours and 35 minutes, substance listed in Schedule I. received by the Department of Justice, annually. The tetrahydrocannabinols will be Federal Bureau of Investigation, (6) An estimate of the total public utilized exclusively for non-human Criminal Justice Information Service burden (in hours) associated with the consumption in drug of abuse detection Division. The purpose of this notice is collection: 7,140 hours annually. kits. to allow an additional 30 days for public If additional information is required Any manufacturer holding, or comments. Comments are encouraged contact: Mr. Robert B. Briggs, Clearance applying for, registration as a bulk and will be accepted until June 11, Officer, United States Department of manufacturer of this basic class of 1997. This process is conducted in Justice, Information Management and controlled substance may file written accordance with 5 CFR 1320.10. Security Staff, Justice Management comments on or objections to the Request written comments and Division, Suite 850, Washington Center, application described above and may, at suggestions from the public and affected 1001 G Street, NW., Washington, DC the same time, file a written request for agencies concerning the proposed 20530. a hearing on such application in collection of information. Your Dated: May 6, 1997. accordance with 21 CFR 1301.54 in comments should address one or more Robert B. Briggs, such form as prescribed by 21 CFR of the following four points: 1316.47. (1) Evaluate whether the proposed Department Clearance Officer, United States Department of Justice. Any such comments, objections, or collection of information is necessary requests for a hearing may be addressed for the proper performance of the [FR Doc. 97–12334 Filed 5–9–97; 8:45 am] to the Acting Deputy Assistant functions of the agency, including BILLING CODE 4410±02±M Administrator, Office of Diversion whether the information will have Control, Drug Enforcement practical utility; Administration, United States (2) Evaluate the accuracy of the MERIT SYSTEMS PROTECTION Department of Justice, Washington, DC agencies’ estimate of the burden of the BOARD 20537, Attention: DEA Federal Register proposed collection of information, Agency Information Collection Representative (CCR), and must be filed including the validity of the Activities Under OMB Review no later than June 11, 1997. methodology and assumptions used; This procedure is to be conducted (3) Enhance the quality, utility and Collection simultaneously with and independent clarity of the information to be AGENCY: Merit Systems Protection Board of the procedures described in 21 CFR collected; and (MSPB). 1311.42 (b), (c), (d), (e), and (f). As noted (4) Minimize the burden of the ACTION: Notice. in a previous notice at 40 FR 43745–46 collection of information on those who (September 23, 1975), all applicants for are to respond, including through the SUMMARY: In compliance with the registration to import a basic class of use of appropriate automated, Paperwork Reduction Act (44 U.S.C. any controlled substance in Schedule I electronic, mechanical, or other 3501 et seq.), this notice announces that or II are and will continue to be required technological collection techniques or the Merit Systems Protection Board’s to demonstrate to the Acting Deputy other forms of information technology, request for a one-year extension of Assistant Administrator, Office of e.g., permitting electronic submission of approval of its optional appeal form, Diversion Control, Drug Enforcement responses. Optional Form 283 (Rev. 10/94) has Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25975 been forwarded to the Office of In this regard, comments are being instructions, searching existing data Management and Budget (OMB) for solicited on the public reporting burden. sources, gathering and maintaining the review and comment. The appeal form The reporting burden for the collection data needed, and completing and is currently displayed in 5 CFR Part of information on this form is estimated reviewing the collection of information. 1201, Appendix I, and on the MSPB to vary from 20 minutes to one hour per Web Page at http://www.gpo.gov/mspb/ response, with an average of 30 minutes, index.htm. including time for reviewing

ESTIMATED ANNUAL REPORTING BURDEN

Annual num- Hours per re- 5 CFR section ber of re- Frequency per Total annual sponse Total hours spondents response responses (avg)

1201 and 1209 ...... 9,000 1 9,000 .5 4,500

Send comments regarding the burden Radiation Survey Plan as the License For the U.S. Nuclear Regulatory estimate, or any other aspect of the Termination Plan. Commission. information collection, including John W.N. Hickey, BACKGROUND: NRC initially published suggestions for reducing the burden, to Chief, Low-Level Waste and Decommissioning the addresses shown below. Please refer on March 10, 1997, a Notice of Receipt Projects Branch, Division of Waste to OMB Control No. 3124–0009 in any of the Public Service Company of Management, Office of Nuclear Material correspondence. Colorado Decommissioning/ Safety and Safeguards. Termination Plan in the Federal [FR Doc. 97–12364 Filed 5–9–97; 8:45 am] DATES: Comments must be received on or before June 11, 1997. Register (62 FR 10881), and no BILLING CODE 7590±01±P comments nor requests for hearing were ADDRESSES: Copies of the appeal from received. In addition, on November 12, may be obtained form Arlin 1996, NRC published in the Federal NUCLEAR REGULATORY Winefordner, Merit Systems Protection Register (61 FR 58087) a Notice of a COMMISSION Board, 1120 Vermont Ave., NW., Washington, DC 20419 or by calling Public Meeting with the PSC to discuss [Docket 70±1113] (202) 653–7200. Comments concerning the decommissioning and license Finding of No Significant Impact and the paperwork burden should be termination of the FSV. The Public Notice of Opportunity for a Hearing; addressed to Mr. Winefordner and to Meeting was held on December 3, 1996, Renewal of Special Nuclear Materials Office of Information and Regulatory in the vicinity of the plant, and no License SNM±1097, General Electric Affairs, Office of Management and comments nor requests for a hearing Company, Wilmington, NC Budget, Attention: Desk Officer for were received. MSPB, 725 17th Street, NW., ACTION: Consistent with NRC’s revised The U.S. Nuclear Regulatory Washington, DC 20503. decommissioning regulations, Commission (the NRC) is considering Dated: May 6, 1997. specifically 10 CFR 50.82(a)(9)(iii), NRC the Renewal of Special Nuclear Robert E. Taylor, is redesignating the approved Materials License SNM–1097 for the Clerk of the Board. Decommissioning Plan, the approved continued operation of General Electric (GE) Company’s Nuclear Energy [FR Doc. 97–12273 Filed 5–9–97; 8:45 am] Supplement to the Environmental Report, and the approved Final Production Facility located in BILLING CODE 7400±01±M Wilmington, North Carolina. The Radiation Survey Plan as the licensee’s facility manufactures low-enriched Termination Plan, and is reapproving it, uranium fuel for commercial nuclear as now required by NRC’s regulations. NUCLEAR REGULATORY power reactors. The NRC has See 10 CFR 50.82(a)(10). The NRC has COMMISSION determined not to prepare an made the findings required in 10 CFR environmental impact statement for the [Docket No. 50±267] 50.82(a)(10) for approval of the proposed action, because the renewal of Termination Plan. License SNM–1097 will not have a Notice of Issuance of License FOR FURTHER INFORMATION CONTACT: Mr. significant effect on the quality of the Amendment for the Public Service Clayton L. Pittiglio, Project Manager, human environment for reasons Company of Colorado Fort St. Vrain described in the environmental Nuclear Generating Station Low-Level Waste and Decommissioning Projects Branch, Division of Waste assessment (EA). SUMMARY: The U.S. Nuclear Regulatory Management, Office of Nuclear Material Summary of the Environmental Commission is noticing the issuance of Safety and Safeguards, U.S. Nuclear Assessment License Amendment No. 89 for the Regulatory Commission, Mail Stop T–7– Identification of the Proposed Action Public Service Company’s (PSC) of F27, Washington, DC 20555–0001. Colorado Fort St. Vrain (FSV) Nuclear Telephone (301) 415–6702. The proposed action is the renewal of Generating Station, located near GE’s Special Nuclear Materials License Platteville, Colorado. License Dated at Rockville, MD this 5th day of SNM–1097 for ten years. With this May, 1997. Amendment No. 89 to DPR–34 Renewal, GE will continue to operate redesignated the approved the Wilmington, North Carolina, facility Decommissioning Plan, the approved to convert low-enriched uranium Supplement to the Environmental hexafluoride to uranium dioxide pellets Report, and the approved Final and to fabricate fuel assemblies for light 25976 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices water reactors. GE is authorized to designed to reduce the concentration of content in forage grass is also possess and use up to 50,000 kg of contaminants prior to discharge to the conducted. uranium-235 (235U) contained in Northeast Cape Fear River, via an on- Surface water is monitored by uranium compounds enriched up to 5 site effluent channel. Solid wastes are sampling the Northeast Cape Fear River weight percent in 235U. managed through a combination of both upstream and downstream of the The facility converts low-enriched segregation, reprocessing, off-site effluent channel discharge point near uranium hexafluoride (UF6) to uranium disposal, recycling and incineration. the GE-Wilmington dock. Monthly dioxide (UO2) powder, presses the UO2 Effluents are monitored at or just prior upstream grab samples and weekly into pellets, loads the pellets into fuel to the point of release. Gaseous stack downstream composite samples are rods, and assembles the fuel rods into effluents are sampled continuously analyzed for uranium content. In fuel assemblies. The UF6 to UO2 under isokinetic flow conditions. addition, non-radiological analyses are conversion is currently done using an Samples are analyzed on a daily or performed weekly to quarterly including ammonium diuranate (ADU) process. weekly basis for gross alpha activity. pH, ammonia, nitrate, nitrite, However, with license renewal GE Several stacks are also sampled to temperature, zirconium, conductivity, intends to begin using a new dry monitor fluoride releases. Liquid BOD5, and fecal coliform per NPDES conversion process (DCP), which will effluents from operations are sampled at permit. eventually replace the ADU process. the outfall of the final process basins Sediment samples from the effluent The EA considers both the impacts of using flow proportional composite channel are collected at three locations: continued operation of the ADU process samplers. Samples are analyzed daily at the final process basin outfall, above and the impacts from the DCP, which for uranium, weekly for gross alpha and the effluent channel dam, and below the are expected to be significantly reduced. gross beta particle activity, and semi- effluent channel dam. These samples are collected semiannually and Need for the Proposed Action annually for technetium-99. Non- radiological parameters such as analyzed for uranium concentration. GE performs a necessary service for Samples are also taken of the sediment nitrogen, fluoride, and metals are the commercial nuclear power industry in the storm water channel draining the monitored in compliance with National by fabricating fuel for light water controlled access fuel manufacturing Pollutant Discharge Elimination System reactors. Currently, GE is one of four area. In addition, soil samples are (NPDES) permits. Sanitary wastes are producers in the United States of low- collected from several on-site and off- sampled at the sanitary outfall to the enriched uranium fuel for commercial site locations and analyzed for uranium site effluent channel, also in compliance reactors. Denial of the license renewal content. with NPDES permits. Actual sampling application is an alternative available to To monitor the impact of the facility parameters and frequency may vary the NRC, but would require expansion on groundwater, numerous wells have with NPDES permit or operational of fuel production capacity at an been installed. Shallow monitoring changes. Solid wastes are surveyed prior existing facility or transfer of fuel wells were installed in the uppermost to treatment or off-site disposal. fabrication activities to a new facility. aquifer in the immediate proximity of Action limits, specified in the GE potential sources of contamination such Environmental Impacts of the Proposed facility operating procedures, are set to as lagoons or selected waste storage Action ensure investigation of unusual areas. In addition, monitoring wells for The continued operation of the GE concentrations and corrective actions as the deeper aquifer, which is the facility will result in the continued necessary. This monitoring program is principal water supply in the area, have release of low levels of radioactive and revised as appropriate to accommodate been installed to provide information on nonradioactive materials to the changes in operations, the emergence of the quality of this water supply. In each environment. These include uranium, newly-acquired information, or of these monitoring systems, particular fluoride, ammonia, and nitrates. Under regulatory agency permits and other attention is given to the presence of accident conditions, the facility could authorizations. The effluent monitoring nitrate, which is common to the bulk of release higher concentrations over a program will be expanded with the new the treated effluent streams and is not as short period of time. GE uses a number DCP. This will include monitoring of readily attenuated in the subsurface as of controls to reduce the release of new process off-gas and building are some of the other potential effluents. These effluent streams as well ventilation systems. contaminants. as the environment surrounding the Environmental Monitoring facility are closely monitored. The Impacts From Normal Operations effluent controls, monitoring program, GE conducts an environmental No measurable impacts have been and environmental impacts from routine monitoring program that samples air, observed to air, surface water, or and non-routine operations are vegetation, surface water, sediment, and vegetation due to releases from the GE discussed in detail in the EA prepared groundwater for radioactive and facility. However, there have been by the NRC for this licensing action. nonradioactive contaminants. This impacts to the shallow and the principal information is used to determine aquifers at the site. In addition, historic Effluent Controls and Monitoring impacts to the surrounding area due to discharges have contaminated soil The GE facility produces gaseous, facility operations. beneath the process building and liquid, and solid effluent streams. Continuous ambient air monitoring adjacent to waste water impoundments Gaseous effluents are controlled by use for gross alpha activity is conducted at and disposal trenches for calcium of high efficiency particulate air (HEPA) six air sampling stations located in the fluoride. filtration and appropriate permitted predominant wind directions from fuel Between 1989 and 1995, levels of scrubbers when necessary. Where manufacturing operations, along the gross alpha activity above background grinding, mixing, milling, or handling of nearest site boundary, and in the were identified on several occasions in UO2 powder exists, vented hoods and direction of the nearest offsite a series of wells installed in the shallow glove boxes are used. Liquid effluents residences. At the southwest and aquifer near the final process basins. are controlled by the use of treatment northeast ambient air sampling points, Uranium was detected in one of the systems and wastewater retention basins semi-annual sampling for fluoride wells. Measurements of nitrate, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25977 ammonia, and fluoride in these wells maintains all documents concerning 1994. This river is not used as a were at background levels. GE is this issue. drinking water supply for area residents. currently assessing these data to The release of radioactive material to However, the maximally exposed determine the significance and fate of air and water from the GE facility individual was assumed to use river the contamination. represents a potential negative impact water and river food products at the GE In addition to the wells near the final on the health and safety of the Wilmington dock. The radionuclide process basins, one well near the waste surrounding population. The primary concentration released in liquid effluent treatment facility, showed uranium and component of this impact is an is expected to decrease when the DCP gross alpha activity above background incremental increase in the risk of replaces the ADU process. The TEDE to levels. This well, completed in the cancer due to low levels of radiation the MEI was estimated to be 0.007 mSv/ shallow aquifer, also showed elevated exposure. The impacts due to long-term yr (0.7 mrem/yr) for the current ADU levels of nitrate, ammonia, and fluoride releases from normal operations are process, 0.001 mSv/yr (0.1 mrem/yr) for from 1989 to 1995. It is believed that the summarized below. the DCP process, and 0.008 mSv/yr (0.8 groundwater near the well was The impact is calculated and mrem/yr) during the transitional period. contaminated in 1986 from ammonium presented in terms of committed NRC regulations (10 CFR 20.1301) fluoride waste water as a result of a leak effective dose equivalent (CEDE) and require that the Total Effective Dose in an overhead pipe. Corrective actions organ doses resulting from a single year Equivalent (TEDE) for members of the were taken and the fluoride and of operations. For doses resulting from public not exceed 1.0 mSv (100 mrem) ammonia levels have generally the inhalation or ingestion of uranium, per year. The TEDE is the sum of the decreased in the well since 1987. this quantity is the total effective dose effective dose equivalent from exposure Although average nitrate levels equivalent (TEDE) (or organ dose) that to external radiation for one year and decreased from 1987 to 1991, levels will accrue to an individual over a 50- the CEDE defined above. Estimated have begun to increase since that time. year period beginning with the year the doses for all releases from GE are small GE staff representatives indicate that intake occurs. Doses to a hypothetical fractions of the applicable limits. maximally exposed individual (MEI) are assessment of these data continues. Radiological impacts to workers at the summarized in this section. A detailed Elevated concentrations of nitrate, GE facility were also considered as part description of the calculational methods fluoride, and uranium were also of the EA. During 1994 and 1995, used for the dose assessment is measured in the shallow aquifer beneath approximately 1000 radiation workers at provided in the EA. the manufacturing buildings. The The radionuclide doses were the GE plant were potentially exposed contamination was due to the seepage of estimated using the Hanford to radioactive materials. The TEDE to liquids through a seam in a concrete Environmental Radiation Dosimetry the average worker during this time was floor in the 1970’s and 1980’s. When the Software System GENII computer code. 0.39 cSv (0.39 rem). The maximum contamination was discovered, the floor Atmospheric release exposure pathways TEDE that any worker received during seams were repaired and the included inhalation, ingestion of these years was 2.1 cSv (2.1 rem) during contaminated soil was removed. In contaminated crops and resuspended 1994 and 2.4 cSv (2.4 rem) in 1995. addition, a shallow horizontal dirt, and external exposure to the These doses are well below the NRC groundwater collection system was airborne plume and contaminated limit of 5 cSv per year (5 rem/yr) in 10 installed to contain and collect localized ground. Liquid release exposure CFR 20.1201. After the ADU to DCP contaminated groundwater. pathways included ingestion of transition period is over, it is Although there has been an impact to contaminated drinking water, fish, anticipated that occupational exposures the shallow aquifer, GE has put into mollusks, and crustaceans. would decrease because of a less place measures to assess and to mitigate Based on air effluent data for the past complex process, new equipment, and a these impacts. There is no indication five years, the GE facility releases better separation between the worker that radiological contamination has approximately 100 microcuries of gross and the nuclear material. migrated offsite, and therefore, impacts alpha particle activity per year. This Monitoring data have shown no to the offsite population are not activity is expected to decrease by 50 significant impact from radiological or expected. Remediation of this percent when the DCP replaces the ADU non-radiological releases on surface contamination may be necessary at the conversion process. However, doses water, sediment, soil, groundwater, air time of decommissioning prior to were conservatively calculated quality, or biota outside the boundary of termination of the license and release of assuming a release of 300 microcuries of the GE facility. GE has an excellent the facility. gross alpha particle activity per year. NPDES compliance record. Although The routine monitoring program also The TEDE to the MEI at the site some impact on groundwater and soil identified traces of organics (chlorinated boundary was estimated to be 0.001 has occurred, GE is addressing those solvents and 1,1,1-trichloroethylene) in mSv/yr (0.1 mrem/yr), the dose to the issues. GE operations are expected to the principal aquifer in 1991. The nearest resident, located 760 m south of have little or no impact on cultural contamination was the result of the facility was estimated to be about resources, and to have a positive activities at the site which were 4E–4 mSv/yr (0.04 mrem/yr), and the socioeconomic impact. discontinued over a decade ago. When dose to the population was estimated to Although there are some minority the contaminants were discovered, be 0.0009 person-Sv/yr (0.09 person- communities located within three miles additional monitoring wells were added rem/yr). Inhalation is the major of the facility, no high and adverse to both the site boundaries and the site exposure pathway contributing 99.9 impacts are projected on these interior for the shallow and the percent of the dose. communities. Doses to individuals principal aquifer. In addition, pump and Liquid effluents from the facility are would be much greater at the property treat methods were initiated to contain released to the Northeast Cape Fear boundary of the site. These doses are the spread of contamination. The North River. Measured uranium well below NRC regulatory limits. Carolina Department of Environmental concentrations at the site dock, near the Consequently, there are no Quality regulates these monitoring and effluent outfall averaged 2.8E–9 environmental justice impacts corrective action programs and microcuries per milliliter for 1989– associated with the renewal. 25978 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Impacts From Accidental Releases exposed individual is well below Gelman Building, 2120 L Street NW, federal regulatory limits. Washington, DC. Release of radioactive or hazardous materials under abnormal or accident Alternative to the Proposed Action Opportunity for a Hearing conditions poses a potential risk to An alternative to the proposed action Any person whose interest may be public health and safety and the is to deny renewal of the license. In this affected by the renewal of this license environment. The potential case, GE would shut down processing of may file a request for a hearing. Based consequences of these accidents include special nuclear material to produce on the EA and accompanying safety personal injury, health effects from nuclear fuel, and would decontaminate evaluation, NRC is preparing to renew acute exposures to toxic materials, non- and decommission (D&D) the site in License SNM–1097. Prior to renewing stochastic effects from acute radiation accordance with an approved plan. the license, NRC will determine that GE exposure, and risk of latent cancer With this action, release of radiological has satisfied the requirements of the fatality from exposure to radioactive and non-radiological effluents from Atomic Energy Act of 1954, et seq., and material. Most of these risks are to licensed operations would cease in the NRC requirements. Any request for a workers at the facility, rather than to near term, as would the minimal hearing must be filed with the Office of members of the public. impacts resulting from those releases. the Secretary, U.S. Nuclear Regulatory Severity Category I and Category II Non-renewal of the license would also Commission, Washington, D.C., 20555, accidents resulting in the release of result in significant socioeconomic within 30 days of the publication of this radioactive materials were examined in impacts in New Hanover County and Notice in the Federal Register; must be the EA. Category I represents accidents beyond. These would include loss of served on the NRC staff (Executive that could be anticipated to occur at direct and indirect employment as well Director for Operations, One White Flint least once during the lifetime of the as reduction in tax revenues to North, 11555 Rockville Pike, Rockville, facility. Category II represents accidents surrounding jurisdictions. The MD 20852); and on the licensee (GE that would not be expected to occur environmental impacts of the D&D Nuclear Energy Production Facility, during the lifetime of the facility, but activities would be assessed during NRC P.O. Box 780, Wilmington, NC 28402); are considered credible accidents under review of a detailed D&D plan prepared and must comply with the requirements highly unusual and unlikely conditions. by GE following a thorough site survey. for requesting a hearing set forth in the These include two accidents involving Commission’s regulation 10 CFR 2, Agencies and Persons Consulted the release of non-radioactive materials Subpart L, ‘‘Informal hearings (hydrofluoric acid and hydrogen). During the preparation of the EA, Procedures for Adjudications in The accident analyses demonstrated NRC coordinated with various state and Materials Licensing Proceedings.’’ that no adverse health effects would be local agencies to inform them about The requestor must address the expected to the off-site population due NRC’s ongoing review and to gather following requirements in detail: to the Category I accidents or to the non- information. These contacts included 1. The interest of the requestor in the radiological accidents. However, the North Carolina Department of proceeding; Category II accidents including a large Environment, Health, and Natural 2. How that interest may be affected UF6 cylinder fire that occurs in the Resources (NCEHN), Nongame and by the results of the proceeding, outside storage area at the facility, a Endangered Species Section and the including the reasons why the requestor defluorinator/calciner explosion that NCEHN Division of Radiation Protection should be permitted a hearing; results in a building breach, a major for information on NPDES permit 3. The requestor’s area of concern criticality accident, or a major facility compliance and the NC Environmental about the licensing activity that is the fire that involves a large amount of UO2 Sampling Program. The NCEHN subject matter of the proceeding; and powder could result in significant doses Division of Water Quality and the 4. The circumstances establishing that or toxicity effects to off-site individuals. Division of Air Quality in Wilmington, the request for hearing is timely, that is, However, the occurrence of these the United States Environmental filed within 30 days of the date of this accidents is extremely unlikely. In Protection Agency (USEPA) Region IV Notice. addition, the licensee has developed Superfund Remedial Branch, and the In addressing how the requestor’s operating and emergency procedures to USEPA Toxics Management Division, interest may be affected by the control and minimize the effects of Air and Radiation Technical Branch proceeding, the request should describe these types of accidents. Therefore, were also contacted. the nature of the requestor’s right under license renewal will not have a Finding of No Significant Impact the Atomic Energy Act of 1954, as significant impact on the general amended, to be made a party to the population. The NRC has prepared an EA related proceeding; the nature and extent of the to the renewal of Special Nuclear Conclusion requestor’s property, financial, or other Materials License SNM–1097. On the (e.g., health, safety) interest in the basis of this assessment, the NRC has The staff concludes that the impact to proceeding; and the possible effect of concluded that environmental impacts the environment and to human health any order that may be entered in the that would be created by the proposed and safety from operations at this proceeding upon the requestor’s licensing action would not be facility has been and is expected to interest. remain minimal. Results of the significant and do not warrant the environmental monitoring program preparation of an Environmental Impact Dated at Rockville, Maryland, this 6th day conducted during the previous licensing Statement. Accordingly, it has been of May 1997. period indicate no significant impact to determined that a finding of no For the Nuclear Regulatory Commission. the environment as a result of site significant impact is appropriate. Michael F. Weber, operations. Radioactive materials in The EA and the documents related to Chief, Licensing Branch, Division of Fuel effluents released to the environment this proposed action are available for Cycle Safety and Safeguards, NMSS. are well below regulatory limits. The public inspection and copying at the [FR Doc. 97–12365 Filed 5–9–97; 8:45 am] total dose received by the maximally NRC’s Public Document Room at the BILLING CODE 7590±01±P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25979

NUCLEAR REGULATORY Dated: May 6, 1997. DC. Comments will be most helpful if COMMISSION Sam Duraiswamy, received by July 21, 1997. Chief, Nuclear Reactors Branch. Comments may be submitted Advisory Committee on Reactor [FR Doc. 97–12362 Filed 5–9–97; 8:45 am] electronically, in either ASCII text or Safeguards; Subcommittee Meeting on BILLING CODE 7590±01±P Wordperfect format (version 5.1 or Planning and Procedures; Notice of later), by calling the NRC Electronic Meeting Bulletin Board on FedWorld. The bulletin board may be accessed using a The ACRS Subcommittee on Planning NUCLEAR REGULATORY COMMISSION personal computer, a modem, and one and Procedures will hold a meeting on of the commonly available June 10, 1997, Room T–2B1, 11545 Draft Regulatory Guide; Issuance, communications software packages, or Rockville Pike, Rockville, Maryland. Availability directly via Internet. The entire meeting will be open to If using a personal computer and public attendance, with the exception of The Nuclear Regulatory Commission modem, the NRC subsystem on a portion that may be closed pursuant has issued for public comment proposed FedWorld can be accessed directly by to 5 U.S.C. 552b(c) (2) and (6) to discuss revisions of three guides in its dialing the toll free number 1–800–303– organizational and personnel matters Regulatory Guide Series. This series has 9672. Communication software that relate solely to internal personnel been developed to describe and make parameters should be set as follows: rules and practices of ACRS, and available to the public such information parity to none, data bits to 8, and stop information the release of which would as methods acceptable to the NRC staff bits to 1 (N,8,1). Using ANSI or VT–100 constitute a clearly unwarranted for implementing specific parts of the terminal emulation, the NRC NUREGs invasion of personal privacy. NRC’s regulations, techniques used by and RegGuides for Comment subsystem The agenda for the subject meeting the staff in evaluating specific problems can then be accessed by selecting the shall be as follows: or postulated accidents, and data ‘‘Rules Menu’’ option from the ‘‘NRC Tuesday, June 10, 1997—12:00 Noon needed by the staff in its review of Main Menu.’’ For further information until 1:30 p.m. applications for permits and licenses. about options available for NRC at The Subcommittee will discuss The draft guides are temporarily FedWorld, consult the ‘‘Help/ proposed ACRS activities and related identified as DG–1048, which is the Information Center’’ from the ‘‘NRC matters. It may also discuss the proposed Revision 31 to Regulatory Main Menu.’’ Users will find the qualifications of candidates for Guide 1.84, ‘‘Design and Fabrication ‘‘FedWorld Online User’s Guides’’ appointment to the ACRS. The purpose Code Case Acceptability, ASME Section particularly helpful. Many NRC of this meeting is to gather information, III, Division 1’’; DG–1049, which is the subsystems and databases also have a analyze relevant issues and facts, and to proposed Revision 31 to Regulatory ‘‘Help/Information Center’’ option that formulate proposed positions and Guide 1.85, ‘‘Materials Code Case is tailored to the particular subsystem. actions, as appropriate, for deliberation Acceptability, ASME Section III, The NRC subsystem on FedWorld can by the full Committee. Division 1’’; and DG–1050, which is the also be accessed by a direct dial phone Oral statements may be presented by proposed Revision 12 to Regulatory number for the main FedWorld BBS, members of the public with the Guide 1.147, ‘‘Inservice Inspection Code 703–321–3339, or by using Telnet via concurrence of the Subcommittee Case Acceptability, ASME Section XI, Internet, fedworld.gov. If using 703– Chairman; written statements will be Division 1,’’ and they will be in Division 321–3339 to contact FedWorld, the NRC accepted and made available to the 1, ‘‘Power Reactors.’’ DG–1048 and DG– subsystem will be accessed from the Committee. Electronic recordings will 1049 are being developed to provide main FedWorld menu by selecting the be permitted only during those portions updated guidance on ASME Code Cases ‘‘Regulatory, Government of the meeting that are open to the that are acceptable to the NRC staff for Administration and State Systems,’’ public, and questions may be asked only use in light-water-cooled nuclear power then selecting ‘‘Regulatory Information by members of the Subcommittee, its plants. DG–1050 is being developed to Mall.’’ At that point, a menu will be consultants, and staff. Persons desiring provide updated guidance on ASME displayed that has an option ‘‘U.S. to make oral statements should notify Code Cases that are acceptable to the Nuclear Regulatory Commission’’ that the cognizant ACRS staff person named NRC staff for use in inservice will take you to the NRC Online main below five days prior to the meeting, if inspections of light-water-cooled menu. The NRC Online area also can be possible, so that appropriate nuclear power plants. accessed directly by typing ‘‘/go nrc’’ at arrangements can be made. These draft guides are being issued to a FedWorld command line. If you access Further information regarding topics involve the public in the early stages of NRC from FedWorld’s main menu, you to be discussed, the scheduling of regulatory positions in these areas. The may return to FedWorld by selecting the sessions open to the public, whether the draft guides have not received complete ‘‘Return to FedWorld’’ option from the meeting has been cancelled or staff review and do not represent an NRC Online Main Menu. However, if rescheduled, the Chairman’s ruling on official NRC staff position. you access NRC at FedWorld by using requests for the opportunity to present Public comments are being solicited NRC’s toll-free number, you will have oral statements, and the time allotted on the guides. Comments should be full access to all NRC systems but you therefor can be obtained by contacting accompanied by supporting data. will not have access to the main the cognizant ACRS staff person, Dr. Written comments may be submitted to FedWorld system. John T. Larkins (telephone: 301/415– the Rules Review and Directives Branch, If you contact Fedworld using Telnet, 7360) between 7:30 a.m. and 4:15 p.m. Division of Freedom of Information and you will see the NRC area and menus, (EDT). Persons planning to attend this Publications Services, Office of including the Rules menu. Although meeting are urged to contact the above Administration, U.S. Nuclear Regulatory you will be able to download named individual one or two working Commission, Washington, DC 20555. documents and leave messages, you will days prior to the meeting to be advised Copies of comments received may be not be able to write comments or upload of any changes in schedule, etc., that examined at the NRC Public Document files (comments). If you contact may have occurred. Room, 2120 L Street NW., Washington, Fedworld using FTP, all files can be 25980 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices accessed and downloaded but uploads OFFICE OF PERSONNEL POSTAL SERVICE are not allowed; all you will see is a list MANAGEMENT of files without descriptions (normal Privacy Act of 1974, System of Gopher look). An index file listing all Submission for OMB Review; Records Comment Request for Review of an files within a subdirectory, with AGENCY: Postal Service. descriptions, is included. There is a 15- Expiring Information Collection: ACTION: Notice of the addition of a new minute time limit for FTP access. 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Although a time limit is given for Voice Response System) is used by DATES: This proposal will become comments on these draft guides, retirees and survivors to collect effective without further notice on June comments and suggestions in information for changing FEHB 23, 1997, unless comments received on connection with items for inclusion in enrollments, requesting plan brochures, or before that date that result in a guides currently being developed or requesting a change of address, contrary determination. improvements in all published guides requesting cancellation or suspension of ADDRESSES: Written comments on this are encouraged at any time. FEHB benefits, requesting payment proposal should be mailed or delivered directly to the Office of Personnel to Payroll Accounting/Records, United Regulatory guides are available for Management where the FEHB payment States Postal Service, 475 L’Enfant Plaza inspection at the Commission’s Public is greater than the monthly annuity SW, Room 8800, Washington, DC Document Room, 2120 L Street NW., amount, or requesting a copy of the 20260–5243. Copies of all written Washington, DC. Requests for single FEHB Customer Satisfaction Survey comments will be available at the above copies of active or draft guides (which results. We are replacing the OPM 2809 address for public inspection and may be reproduced) or for placement on EZ1 and OPM 2809 EZ2 with the IVR photocopying between 8 a.m. and 4:45 an automatic distribution list for single technology to improve our response p.m., Monday through Friday. copies of future draft guides in specific time to our customers. FOR FURTHER INFORMATION CONTACT: divisions should be made in writing to We estimate 75,000 requests will be Betty E. Sheriff, (202) 268–2608. the U.S. Nuclear Regulatory completed annually. Each request takes SUPPLEMENTARY INFORMATION: System of Commission, Washington, DC 20555, approximately 10 minutes to complete. records USPS 140.020, Postage—Postage Attention: Distribution and Mail The annual estimated burden is 12,525 Meter Records, collects information hours. Services Section. Telephone requests concerning postage meter use. This For copies of this proposal, contact cannot be accommodated. Regulatory notice adds a routine use consistent Jim Farron on (202) 418–3208, or E-mail guides are not copyrighted, and with existing practice and postal to [email protected] Commission approval is not required to regulations and clarifies a routine use reproduce them. DATES: Comments on this proposal and other segments of the system (5 U.S.C. 552(a)) should be received on or before June 11, description as explained below. 1997. Dated at Rockville, Maryland, this 28th day Customers who wish to pay postage of April 1997. ADDRESSES: Send or deliver comments using a postage meter may request authorization from the Postal Service. If For the Nuclear Regulatory Commission. to—Lorraine E. Dettman, Chief, Operations Support Division, authorization is granted, the customer is Lawrence C. Shao, Retirement and Insurance Service, U.S. issued a license to use a postage meter. Director, Division of Engineering Technology, Office of Personnel Management, 1900 E Postage meters are available only by Office of Nuclear Regulatory Research. Street, NW, Room 3349, Washington, lease from authorized manufacturers. [FR Doc. 97–12363 Filed 5–9–97; 8:45 am] DC 20415. Because the Postal Service holds these BILLING CODE 7590±01±P FOR INFORMATION REGARDING manufacturers responsible for the ADMINISTRATIVE COORDINATION CONTACT: control, operation, maintenance, and Mary Beth Smith-Toomey, Management replacement of customer meters, the Services Division, (202) 606–0623. Postal Service and the manufacturers must exchange relevant information Office of Personnel Management. about the meter holders. For example, if James B. King, a meter manufacturer cannot locate one Director. of its meters in service, the Postal [FR Doc. 97–12346 Filed 5–9–97; 8:45 am] Service requires the manufacturer to BILLING CODE 6325±01±M take several actions. One of those Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25981 actions is to contact the local post office type kept within system USPS 140.020. or its affiliates, dealers, subsidiaries, or to verify the location of the meter holder The Act does not permit the Postal franchises for administering the postage as shown in meter records kept at that Service to disclose lists of postal meter program. Release will be limited post office. In another example, the customers or other persons. It also does to relevant information about that Postal Service might need to disclose to not require the Postal Service to disclose manufacturer’s customers only. a meter manufacturer that a holder’s information that could cause * * * * * license has been revoked so that the competitive harm. The Postal Service meter can be retrieved by the has traditionally considered the mailing SYSTEM MANAGER(S) AND ADDRESS: manufacturer. New routine use No. 2 habits of a particular customer exempt [CHANGE TO READ] CHIEF makes express that the Postal Service from disclosure under the Postal MARKETING OFFICER, SENIOR VICE may make such necessary disclosures to Reorganization Act. PRESIDENT, UNITED STATES POSTAL an authorized meter manufacturer, its Pursuant to 5 U.S.C. 552a(e)(11), SERVICE, 475 L’ENFANT PLZ. SW., affiliates, dealers, subsidiaries, or interested persons are invited to submit WASHINGTON, DC 20260–2400. franchises. written data, views, or arguments on NOTIFICATION PROCEDURE: Minor changes are also made to the this proposal. A report of the new system description. Clarifying language routine use has been sent to Congress [CHANGE TO READ] Individuals is added to routine use No. 1. The and to the Office of Management and wanting to know whether information language does not alter its scope of Budget for their evaluation. about them is maintained in this system authority but merely conforms to The most recent description of USPS of records must address inquiries in applicable regulations by stating which 140.020 appears at 54 FR 43701, dated writing to the postmaster of their information a requester must provide October 26, 1989. It is proposed that the licensing post office. When making this before the Postal Service will disclose description be amended as follows: request, an individual must supply the information. The system location is license number and his or her name as amended to include the site of a new USPS 140.020 it appears on the meter license. centralized system for processing SYSTEM NAME: * * * * * license applications. In addition, the Postage—Postage Meter Records, descriptions of the categories of records RECORD SOURCE CATEGORIES: 140.020. in the system, the record source [CHANGE TO READ] License categories, and the notification SYSTEM LOCATIONS: applicants, licensees, postal officials procedures are strengthened. Finally, [CHANGE TO READ] Post offices and administering meter licenses; and the system manager’s name is changed the National Customer Support Center, authorized manufacturers of postage to reflect recent changes in Memphis, TN. meters. organizational units. * * * * * Stanley F. Mires, The system changes are not expected Chief Counsel, Legislative. to have any effect on individual privacy CATEGORIES OF RECORDS IN THE SYSTEM: [FR Doc. 97–12267 Filed 5–9–97; 8:45 am] rights. Most information kept within the [CHANGE TO READ] Customer name BILLING CODE 1170±12±P system pertains to businesses rather and address, change of address than individuals. To the extent information, corporate business information is kept about individuals, customer information (CBCIS) number, SECURITIES AND EXCHANGE the changes do not in any manner alter business tax identification number, COMMISSION the nature or broaden the types of business profile information, estimated information already kept in the system. annual metered postage and annual Submission for OMB Review; New routine use No. 2 supports a long- percentage of metered mail by type, post Comment Request standing practice and need to disclose office where mail is entered, license information to postage meter number, date of issuance, license Upon Written Request, Copies Available manufacturers for administering postage application, and transaction documents. From: Securities and Exchange Commission, Office of Filings and Information Services, meter activities. Information about a * * * * * meter user will be disclosed only as Washington, DC 20549. necessary and only to the manufacturer ROUTINE USES OF RECORDS MAINTAINED IN THE Extension or its affiliates, dealers, subsidiaries, or SYSTEM, INCLUDING CATEGORIES OF USERS AND Rule 6a–1 and Form 1, SEC File No. 270–18; franchises supplying the meter to that THE PURPOSES OF SUCH USES: OMB Control No. 3235–0017. user. The integrity of information kept [CHANGE TO READ] General routine Rule 6a–2 and Form 1–A; SEC File No. 270– will be enhanced by the central tracking use statements a, b, c, d, e, f, g, h, j, and 13; OMB Control No. 3235–0022. system. That system will monitor meter m listed in the prefatory statement at the Rule 15Ba2–1 and Form MSD; SEC File No. inspections by manufacturers to provide beginning of the Postal Service’s 270–88; OMB Control No. 3235–0083. maintenance of more accurate records. published system notices apply to this Rule 17Ac2–2 and Form TA–2; SEC File No. Finally, the privacy protections system. Other routine uses follow: 270–298; OMB Control No. 3235–0337. extended to these records are not 1. The name and address of a meter Notice is hereby given that pursuant diminished in any manner. Paper user, and the name of any person to the Paperwork Reduction Act of 1995 records continue to be kept in secured applying for a permit on behalf of the (44 U.S.C. 3501 et seq.), the Securities areas of post offices, with access user, may be disclosed to any member and Exchange Commission restricted to those individuals who have of the public provided that the requester (‘‘Commission’’) has submitted to the an official need. Automated records are at the time of request supplies the Office of Management and Budget protected by security packages and applicable meter serial number and the requests for approval of extension on password access. name or ZIP Code of the licensing post previously approved collections of In addition to the protections imposed office as they information: by the Privacy Act, the Postal 2. Records or information from this Rule 6a–1 and Form 1 states that the Reorganization Act imposes restrictions system may be disclosed to an Commission may not grant registration on the disclosure of information of the authorized postage meter manufacturer to an exchange as a national securities 25982 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices exchange unless it finds, among other Securities and Exchange Commission at II. Self-Regulatory Organization’s things, that the exchange is organized so the address below. Any comments Statement of the Purpose of, and that it has the capacity to carry out the concerning the accuracy of the Statutory Basis for, the Proposed Rule purposes and to comply with the estimated average burden hours for Change Securities Exchange Act of 1934 compliance with Commission rules and In its filing with the Commission, the (‘‘Exchange Act’’). Form 1 is necessary forms should be directed to Michael E. Amex included statements concerning because it requires the information Bartell, Associate Executive Director, the purpose of and basis for the needed by the Commission to determine Office of Information Technology, proposed rule change and discussed any whether granting registration to an Securities and Exchange Commission, comments it received on the proposed exchange would be appropriate. 450 Fifth Street, N.W., Washington, D.C. rule change. The text of these statements Because Form 1 is filed on a one-time 20549 and Desk Officer for the may be examined at the places specified basis by an exchange, it is estimated that Securities and Exchange Commission, in Item IV below. The Amex has approximately 1 respondent incurs an Office of Information and Regulatory prepared summaries, set forth in average of 45 burden hours annually to Affairs, Office of Management and sections A, B and C below, of the most comply with the rule. Budget, Room 3208, New Executive significant aspects of such statements. Rule 6a–2 requires that registered and Office Building, Washington, D.C. exempted national securities exchanges 20503. A. Self-Regulatory Organization’s file Form 1–A on an annual basis. Form Statement of the Purpose of, and 1–A is necessary because it informs the Dated: May 6, 1997. Statutory Basis for, the Proposed Rule Commission of any changes to Form 1 Margaret H. McFarland, Change Deputy Secretary. during the exchange’s preceding fiscal 1. Purpose year. [FR Doc. 97–12353 Filed 5–9–97; 8:45 am] Form 1–A is required to be filed BILLING CODE 8010±01±M Rule 170 (‘‘Rule’’), the primary rule annually by a registered or exempted governing a specialist’s functions, exchange to update information restricts a specialist’s transactions in his required to be filed on Form 1 which SECURITIES AND EXCHANGE or her specialty stock to those that are has changed during the exchange’s COMMISSION reasonably necessary to the preceding fiscal year. Such information maintenance of a fair and orderly is elicited, pursuant to the requirements [Release No. 34±38573; File No. SR±Amex± market. Specifically, paragraph (d) of of Rule 6a–1 under the Exchange Act, 97±10] the Rule provides that a specialist is on Form 1. It is estimated that affirmatively required to engage in a approximately 9 respondents incur a Self-Regulatory Organizations; Notice course of dealings for his own account total of 270 burden hours annually to of Filing of Proposed Rule Change by to minimize order disparities and comply with the rule. the American Stock Exchange, Inc. contribute to continuity and depth in Rule 15Ba2–1 provides that an Relating to Amendments to Rule the market, and is precluded from application for registration by a bank 170.01 Pertaining to Specialists trading for his own account unless such municipal securities dealer must be Establishing a Position dealing is necessary for the maintenance filed on Form MSD. The information of a fair and orderly market. The price required to be disclosed on Form MSD May 5, 1997. trend of a security should thus be is necessary for the Commission to Pursuant to Section 19(b)(1) of the determined by incoming orders rather determine whether or not registration as Securities Exchange Act of 1934 than the specialist’s proprietary a municipal securities dealer should be (‘‘Act’’),1 and Rule 19b–4 thereunder,2 dealings. granted. notice is hereby given that on February Commentary .01 to the Rule sets forth It is estimated that approximately 40 24, 1997, the American Stock Exchange, specific requirements which are respondents will utilize this application Inc. (‘‘Amex’’ or ‘‘Exchange’’) filed with applicable when a specialist is procedure annually, with a total burden the Securities and Exchange establishing or increasing a position, of 60 hours, based upon past Commission (‘‘Commission’’) the and provides that a specialist should submissions. proposed rule change as described in effect such transactions in a reasonable Rule 17Ac2–2 requires transfer agents, Items I, II, and III below, which Items and orderly manner in relation to the who are not exempt, to file an annual have been prepared by the Exchange. condition of the general market, the report of their business activities on The Commission is publishing this market in the particular stock and the Form TA–2 with the Commission, the notice to solicit comments on the adequacy of his position to meet the Comptroller of the Currency, the Board proposed rule change from interested immediate and reasonably anticipated of Governors of the Federal Reserve persons. needs of the market. In particular, paragraph (b) of the Rule provides that System, or the Federal Deposit I. Self-Regulatory Organization’s a specialist must obtain Floor Official Insurance Corporation. Statement of the Terms of Substance of It is estimated that approximately approval prior to effecting the purchase the Proposed Rule Change 1,000 respondents are exempt from of all or substantially all the stock providing certain information contained The Amex, pursuant to Rule 19b–4 of offered on the book at a price equal to in the annual report. An additional 400 the Act, proposes to amend the last sale, when such offer represents non-exempt respondents will file an Commentary .01 to Exchange Rule 170 all or substantially all the stock offered annual report. The total annual burden to permit a specialist to provide in the market. Paragraph (c) provides is 1,000 hours for exempt respondents liquidity to orders on the book in that he similarly must obtain Floor and 2,000 hours for non-exempt stabilizing transactions without the Official approval prior to supplying all respondents, based upon past necessity of first obtaining Floor Official or substantially all the stock bid for on submissions. approval. the book at a price equal to the last sale. General comments regarding the In addition, paragraph (a) prohibits a estimated burden hours should be 1 15 U.S.C. 78s(b)(1) specialist from purchasing stock at a directed to the Desk Officer for the 2 17 CFR 240.19b–4. price above the last sale in the same Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25983 trading session, without Floor Official on the offer and sells on the bid). Each remove impediments to and perfect the approval. Paragraph (d) requires him to of these situations can then be mechanism of a free and open market re-offer or re-bid where necessary after individually reviewed by the Exchange and a national market system, as well as effecting the transactions described in Trading Analysis staff to determine to protect investors and the public paragraphs (a), (b), and (c). whether the specialist was acting interest. The Amex states that the restrictions appropriately. With respect to the contained in paragraphs (b) and (c) were proposed rule change, the Exchange B. Self-Regulatory Organization’s intended to strike a balance between staff would look at how large the Statement on Burden on Competition protecting the auction market from specialist’s position was prior to the The Amex does not believe that the unnecessary specialist trading and transaction, whether there were proposed rule change will impose any providing immediate liquidity to orders imbalances in the limit orders on his inappropriate burden on competition. that come to the Floor. The Floor book which necessitated the transaction, Official’s function, at the time Rule 170 and whether, if the market subsequently C. Self-Regulatory Organization’s was adopted, was to operate as a control ‘‘turned around’’ he used a reasonable Statement on Comments on the mechanism to ensure that the specialist amount of the inventory acquired in the Proposed Rule Change Received From did not trade unnecessarily. transaction to offset any imbalance Members, Participants or Others The Amex contends that although the between supply and demand. need to obtain Floor Official approval For example, assume that a customer No written comments were solicited or received with respect to the proposed was reasonable in the past, before enters an order to sell XYZ stock at 101⁄8 technology enabled markets to move (the last sale and a minus tick) when the rule change. quickly within seconds, it now has the market is quoted 10–101⁄4. And assume III. Date of Effectiveness of the effect, under certain circumstances, of that instead of executing the order Proposed Rule Change and Timing for reducing liquidity and disadvantaging immediately, which the specialist is Commission Action orders entered with the specialist. If an entitled to do, he displays it, changing order is brought to the specialist, he is the quote to 10–101⁄8. Because no buy Within 35 days of the date of free to execute it immediately without side interest develops at 101⁄8, several publication of this notice in the Federal displaying it first. Under such minutes later the specialist determines Register or within such longer period (i) circumstances, the specialist may that it is appropriate to take the offer. He As the Commission may designate up to purchase or sell all or substantially all must now locate and explain the 90 days of such date if it finds such the stock offered or bid for, at a price circumstances to a Floor Official, and longer period to be appropriate and equal to the last sale, without obtaining during this time the market may move publishes its reasons for so finding or Floor Official approval. However, if the lower, either on the Amex or on another (ii) as to which the Amex consents, the specialist initially decides instead to market, so that the specialist would no Commission will: display the order, providing longer pay 101⁄8 for the stock. Had the (A) By order approve such proposed transparency, in the hopes of either specialist been free to take the offer rule change, or narrowing the market or generating without seeking Floor Official approval, (B) Institute proceedings to determine interest on the opposite side, but the customer would have received an whether the proposed rule change thereafter determines to take the offer or execution and the Exchange staff would should be disapproved. hit the bid, he must obtain Floor Official have reviewed the circumstances approval. surrounding the transaction to IV. Solicitation of Comments Accordingly, it is proposed that determine whether it appeared to be Commentary .01 be amended to provide consistent with the specialist’s Interested persons are invited to that a specialist is not required to obtain affirmative and negative obligations. In submit written data, views and Floor Official approval with respect to appropriate cases, the specialist’s arguments concerning the foregoing. the purchase, on a zero minus tick, of actions could, of course, be referred to Persons making written submissions stock offered on the book, or the sale, on the Exchange’s Enforcement Division for should file six copies thereof with the a zero plus tick, of stock bid for on the possible disciplinary action. Secretary, Securities and Exchange book. A specialist is the buyer and seller The Amex believes that the proposed Commission, 450 Fifth Street, N.W., of last resort, and is expected to step in change carves out an exception to the Washington, D.C. 20549. Copies of the when there is a disparity between existing provisions, but would provide submission, all subsequent supply and demand. In this situation, a distinct benefit to the market by amendments, all written statements the specialist would only be purchasing permitting the specialist to satisfy a with respect to the proposed rule the stock offered because there is customer’s order more expeditiously, change that are filed with the inadequate demand for the stock. The while enabling him to enhance the Commission, and all written transaction in question would be liquidity, depth and transparency of the communications relating to the stabilizing, in that he is buying on a zero market as the buyer or seller of last proposed rule change between the minus tick, against the direction of the resort. Commission and any person, other than market, rather than directing the course those that may be withheld from the of the market. 2. Basis public in accordance with the In addition, the Amex contends that The Amex believes that the proposed provisions of 5 U.S.C. 552, will be with the advent of improved rule change is consistent with Section available for inspection and copying in technology, the Exchange’s surveillance 6(b) of the Act in general and furthers the Commission’s Public Reference systems can now provide an adequate the objectives of Section 6(b)(5) 3 in Room in Washington, D.C. Copies of substitute for Floor Official Approval in particular in that it is designed to such filing will also be available for such circumstances. In the last few promote just and equitable principles of inspection and copying at the principal years, the Exchange has developed an trade, to prevent fraudulent and office of the Amex. All submissions automated computer program which manipulative acts and practices, and to should refer to the file number in the identifies each instance in which a caption above and should be submitted specialist crosses the market (i.e., buys 3 15 U.S.C. 78f(b)(5). by June 2, 1997. 25984 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

For the Commission by the Division of A. Self-Regulatory Organization’s the objectives of Section 6(b)(5) 3 in that Market Regulation, pursuant to delegated Statement of the Purpose of, and it is designed to promote just and authority. Statutory Basis for, the Proposed Rule equitable principles of trade, to prevent Margaret H. McFarland, Change fraudulent and manipulative acts and Deputy Secretary. practices, and to remove impediments 1. Purpose [FR Doc. 97–12283 Filed 5–9–97; 8:45 am] to, and perfect the mechanism of a free BILLING CODE 8010±01±M Rule 104 governs specialists’ dealings and open market and a national market in their specialty stocks. In particular, system, as well as to protect investors Rule 104.10(5)(i) describes certain types and the public interest. SECURITIES AND EXCHANGE of transactions to establish or increase a COMMISSION specialist’s position which are not to be B. Self-Regulatory Organization’s effected unless they are ‘‘reasonably Statement on Burden on Competition [Release No. 34±38574; File No. SR±NYSE± necessary to render the specialist’s The NYSE does not believe that the 97±10] position adequate to’’ the needs of the proposed rule change will impose any market. Currently, these restrictions inappropriate burden on competition. Self-Regulatory Organizations; Notice apply equally to transactions that are of Filing of Proposed Rule Change by C. Self-Regulatory Organization’s against the market trend (‘‘stabilizing’’) Statement on Comments on the the New York Stock Exchange, Inc. and those that are with the market trend Relating to Amendments to Rule Proposed Rule Change Received From (‘‘destabilizing’’). The Exchange is Members, Participants or Others 104.10(5) Pertaining to Specialists proposing to apply these restrictions Establishing a Position. only to destabilizing transactions. No written comments were solicited Specifically, the revision to Rule or received with respect to the proposed May 5, 1997. rule change. Pursuant to Section 19(b)(1) of the 104.10(5)(i)(B) would prohibit the Securities Exchange Act of 1934 specialist from establishing or III. Date of Effectiveness of the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 increasing his or her long position by Proposed Rule Change and Timing for notice is hereby given that on March 25, purchasing more than 50% of the stock Commission Action offered for sale in the market on a zero- 1997, the New York Stock Exchange, Within 35 days of the date of Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with plus tick (i.e., at a price equal to the last sale and above the previous different publication of this notice in the Federal the Securities and Exchange Register or within such longer period (i) Commission the proposed rule change price sale). There would be no restriction on purchasing stock on a As the Commission may designate up to as described in Items I, II and III below, 90 days of such date if it finds such which Items have been prepared by the zero-minus tick to establish or increase a position, as such transactions are longer period to be appropriate and NYSE. The Commission is publishing publishes its reasons for so finding or this notice to solicit comments on the stabilizing in nature and are perceived as being beneficial to the market. (ii) as to which the self-regulatory proposed rule change from interested organization consents, the Commission Paragraph (C) of Rule 104 would be persons. will: deleted to permit the specialist to (A) By order approve the proposed I. Self-Regulatory Organization’s establish or increase his or her short Statement of the Terms of Substance of rule change, or position by selling stock to the bid (B) Institute proceedings to determine the Proposed Rule Change without restriction on a zero-plus tick, whether the proposed rule change The NYSE, pursuant to Rule 19b–4 of as these transactions are stabilizing in should be disapproved. the Act, proposes to amend Exchange nature. Prohibitions on short sales on Rule 104.10 to remove certain zero-minus ticks are contained in SEC IV. Solicitation of Comments restrictions on specialists’ stabilizing Rule 10a–1 under the Act and Exchange Interested persons are invited to purchases and sales. The text of the Rule 440B. submit written data, views and proposed rule change is available at the References to paragraph 104.(5)(i)(C) arguments concerning the foregoing. Office of the Secretary, the NYSE and at elsewhere in the rule would be removed Persons making written submissions the Office of the Secretary, the NYSE and paragraph (D) would be renumbered should file six copies thereof with the and at the Commission. as (C). Secretary, Securities and Exchange The proposed amendments are Commission, 450 Fifth Street N.W., II. Self-Regulatory Organization’s intended to enhance the specialist’s Washington, D.C. 20549. Statement of the Purpose of, and ability to deal for his or her own Copies of the submission, all Statutory Basis for, the Proposed Rule account to provide support to the subsequent amendments, all written Change market. Under the revised rules, statements with respect to the proposed In its filing with the Commission, the specialists will, to a greater degree, be rule change that are filed with the NYSE included statements concerning able to counter the market trend in a Commission, and all written the purpose of and basis for the stock through effecting proprietary communications relating to the proposed rule change and discussed any transactions that are stabilizing. In proposed rule change between the comments it received on the proposed today’s markets, characterized by Commission and any person, other than rule change. The text of these statements increased volatility and institutional those that may be withheld from the may be examined at the places specified activity, the use of dealer capital in this public in accordance with the in Item IV below. The NYSE has fashion can add liquidity in a manner provisions of 5 U.S.C. 552, will be prepared summaries, set forth in Section beneficial to the market. available for inspection and copying in A, B, and C below, of the most 2. Statutory Basis the Commission’s Public Reference significant aspects of such statements. Room at 450 Fifth Street, N.W., The NYSE believes that the proposed Washington, D.C. 20549. 1 15 U.S.C. 78s(b)(1). rule change is consistent with Section 2 17 CFR 240.19b–4. 6(b) of the Act in general and furthers 3 15 U.S.C. 78f(b)(5). Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25985

Copies of such filing will also be differentials set forth in the chart below. eliminate the maximum quote spread of available for inspection and copying at For such series, the bid/ask differential 1⁄8, currently applicable to options the principal office of the above- may be as wide as the quotation for the where the bid is less than $.50, such mentioned self-regulatory organization. underlying security on the primary that the maximum quote spread for All submissions should refer to the file market. options where the bid is less than $2.00 The following chart summarizes the 1 number in the caption above and should will be ⁄4. This is identical to the quote be submitted by June 2, 1997. proposed option quote spread spread parameters of the other options For the Commission, by the Division of parameters with additions italicized and exchanges.5 Market Regulation, pursuant to delegated deletions in brackets: authority. Second, the proposal is intended to Margaret H. McFarland, Maxi- recognize that in certain market mum conditions, the existing parameters are Deputy Secretary. Equity option quote too restrictive and should not apply. [FR Doc. 97–12284 Filed 5–9–97; 8:45 am] spread More specifically, for equity options BILLING CODE 8010±01±M Less than [$.50 ...... [1¤8] only, the maximum quote spread for in- $.50 to less than] $2.00 ...... 1¤4 the-money series 6 where the market for $2.00 to less than $5.00 ...... 3¤8 SECURITIES AND EXCHANGE the underlying security is wider, the $5.00 to less than $10.00 ...... 1¤2 applicable parameter may be as wide as COMMISSION $10.00 to less than $20.00 ...... 3¤4 the quotation for the underlying security [Release No. 34±38576; File No. SR±Phlx± $20.00 and greater ...... 1 97±16] on the primary market. For instance, The bid/ask differentials stated above where the market for the underlying Self-Regulatory Organizations; shall not apply to in-the-money series security is 20–21, and the bid for an in- Philadelphia Stock Exchange, Inc.; where the market for the underlying the-money series is $7, the applicable Notice of Filing of Proposed Rule security is wider than the differentials maximum quote spread should be 1⁄2, Change Relating To Option Quote set forth above. For such series, the bid/ but under the proposed language, the Spread Parameters ask differentials may be as wide as the parameter would be $1, which is the quotation for the underlying security on spread in the underlying security. The May 6, 1997. the primary market. Exchange believes that this proposal is Pursuant to Section 19(b)(1) of the The complete text of the proposed a reasonable response to market Securities Exchange Act of 1934 rule change is attached as Exhibit B to conditions and consistent with the rules (‘‘Act’’),1 notice is hereby given that on 3 file No. SR–Phlx–97–16. 7 April 2, 1997, the Philadelphia Stock of other exchanges. Exchange Inc., (‘‘Phlx’’ or ‘‘Exchange’’) II. Self-Regulatory Organization’s The Exchange notes that a violation of filed with the Securities and Exchange Statement of the Purpose of, and the maximum quote spread parameter Commission (‘‘Commission’’) the Statutory Basis for, the Proposed Rule may result in a fine pursuant to Options Change proposed rule change as described in Floor Procedure Advice (‘‘Advice’’) F– Items I, II, and III below, which Items In its filing with the Commission, 6.8 Because the Exchange is proposing have been prepared by Phlx. The Phlx included statements concerning to amend an Advice to which a fine Commission is publishing this notice to the purpose of and basis for the pursuant to the minor rule applies, it solicit comments on the proposed rule proposed rule change. The text of these follows that the minor rule plan will change from interested persons. statements may be examined at the incorporate this amendment.9 It should places specified in Item IV below. Phlx I. Self-Regulatory Organization’s be noted, however, that quote spread has prepared summaries, set forth in Statement of the Terms of Substance of parameters are not applicable during Sections A, B, and C below, of the most the Proposed Rule Change significant aspects of such statements. fast market conditions, pursuant to Pursuant to Rule 19b–4 of the Act,2 Floor Procedure Advice F–10, Phlx proposes to amend the maximum A. Self-Regulatory Organization’s Extraordinary Market Conditions, and bid/ask differentials (i.e., quote spread Statement of the Purpose of, and parameters) applicable to equity and Statutory Basis for, the Proposed Rule 5 See e.g., Amex Rule 958(c)(i); and CBOE Rule index options. Specifically, the Change 8.7(b)(iv). Exchange proposes to amend Rule 1014 Quote spread parameters govern the 6 In-the-money series are defined as those series width of market quotations, establishing where, in the case of a call option, the current (c)(i)(A) and Floor Procedure Advice market price of the stock is higher than the strike (‘‘Advice’’) F–6, Option Quote a maximum width based on the option price, or, in the case of a put, the current market 4 Parameters, by eliminating the 1⁄8 bid. Currently, Rule 1014(c)(i)(A) and price of the stock is lower than the strike price. maximum quote spread currently Advice F–6 contain the quote spread 7 See supra note 5. applicable to options where the bid is parameters applicable to equity and 8 Violations of Advice F–6 may result in the less than $.50. As a result, the maximum index options. issuance of a fine pursuant to the Exchange’s minor rule violation enforcement and reporting plan quote spread for equity and index This proposal is intended to update (‘‘minor rule plan’’). For fine schedule, see Exhibit options where the bid is less than $2.00 the Exchange’s option quote spread B of File No. SR–PHLX–97–16. will be 1⁄4. parameters, in view of the parameters 9 The Phlx’s minor rule plan, codified in Phlx The Exchange also proposes to adopt applicable on other option exchanges. Rule 970, contains floor procedure advices, such as a provision enabling the maximum The first aspect of the proposal is to Advice F–6, with accompanying fine schedules. Exchange Act Rule 19d–1(c)(2) authorizes national quote spread in an equity option to be securities exchanges to adopt minor rule violation widened with regard to in-the-money 3 Complete copies of the proposed rule change plans for summary discipline and abbreviated series where the market for the and Exhibit B are available for review at the reporting; Exchange Act Rule 19d–1(c)(1) requires underlying security is wider than the primary office of the Phlx, and in the Public prompt filing with the Commission of any final Reference Room at the Commission. disciplinary actions. However, minor rule 4 For example, if the maximum quote spread for violations not exceeding $2,500 are deemed not 1 15 U.S.C. 78s(b)(1). an equity option is 1⁄4, then the following is an final, thereby permitting periodic, as opposed to 2 17 CFR 240.19b–4. acceptable quotation: 11⁄4—11⁄2. immediate, reporting. 25986 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices different quote spread parameters are IV. Solicitation of Comments Form No.: N/A. 10 not a violation of Advice F–6. Interested persons are invited to Description of Respondents: Disaster The Exchange believes that the submit written data, views, and Loan Recipients. proposed rule change is necessary in arguments concerning the foregoing. Annual Responses: 3,000. light of competitive conditions, and Persons making written submissions Annual Burden: 300. consistent with Section 6(b)(5) of the Title: ‘‘Survey of Minority Enterprise 11 should file six copies thereof with the Act, in that it is designed to promote Secretary, Securities and Exchange Development Program Participants’’. just and equitable principles of trade, Commission, 450 Fifth Street, NW., Type of Request: New Information prevent fraudulent and manipulative Washington, DC 20549. Copies of the Collection. acts and practices, as well as protect submission, all subsequent Form No: N/A. investors and the public interest. amendments, all written statements Description of Respondents: MED Specifically, the Exchange believes with respect to the proposed rule Participants. the proposal should facilitate the market change that are filed with the Annual Responses: 3,000. making function by adjusting the quote Commission, and all written Annual Burden: 300. spread parameter to reflect the market communications relating to the Title: ‘‘Survey of the Service Corps of for the underlying security and current proposed rule change between the Retired Executives’’. market conditions, thereby promoting Commission and any person, other than Type of Request: New Information just and equitable principles of trade. those that may be withheld from the Collection. Although the proposed quote spread public in accordance with the Form No.: N/A. parameters may result in wide quotes in provisions of 5 U.S.C. 552, will be Description of Respondents: SCORE certain circumstances, the Exchange available for inspection and copying in Members. believes that such quote spread the Commission’s Public Reference Annual Responses: 3,000. parameters are nevertheless reasonable, Section, 450 Fifth Street, NW., Annual Burden: 300. in line with other options exchanges, Washington, DC 20549. Copies of such Title: ‘‘Survey of Small Business and continue to perform a regulatory filing will also be available for Development Centers’’ function in the options marketplace, inspections and copying at the principal Type of Request: New Information which is consistent with the objectives office of Phlx. All submissions should Collection. of the Act, by preventing fraudulent and refer to File No. SR–Phlx–97–16 and Form No.: N/A. manipulative acts and practices and should be submitted by June 2, 1997. Description of Respondents: SBDC’s. protecting investors and the public Annual Responses: 1,000. interest. For the Commission by the Division of Market Regulation, pursuant to delegated Annual Burden: 100. B. Self-Regulatory Organization’s authority.12 Title: ‘‘Survey of National Advisory Statement on Burden on Competition Margaret H. McFarland, Council Members’’. The Phlx does not believe that the Deputy Secretary. Type of Request: New Information proposed rule change will impose any [FR Doc. 97–12352 Filed 5–9–97; 8:45 am] Collection. inappropriate burden on competition. BILLING CODE 8010±01±M Form No.: N/A. Description of Respondents: National C. Self-Regulatory Organization’s Advisory Council Members. Statement on Comments on the SMALL BUSINESS ADMINISTRATION Annual Responses: 115. Proposed Rule Change Received from Annual Burden: 11.5. Members, Participants, or Others Data Collection Available for Public Title: ‘‘Survey of U.S. Export Comments were neither solicited nor Comments and Recommendations Assistance Centers Customers’’. received. Type of Request: New Information ACTION: Notice and request for Collection. III. Date of Effectiveness of the comments. Proposed Rule Change and Timing for Form No.: N/A. Commission Action SUMMARY: In accordance with the Description of Respondents: USEAC Users. Within 35 days of the date of Paperwork Reduction Act of 1995, this notice announces the Small Business Annual Responses: 2,000. publication of this notice in the Federal Annual Burden: 200. Register or within such longer period (i) Administration’s intentions to request Title: ‘‘Survey of Women-owned as the Commission may designate up to approval on a new, and/or currently Businesses’’. 90 days or such date if it finds such approved information collection. Type of Request: New Information longer period to be appropriate and DATES: Comments should be submitted Collection. publishes its reasons for so finding or on or before July 11, 1997. Form No.: N/A. (ii) as to which the Phlx consents, the FOR FURTHER INFORMATION CONTACT: Description of Respondents: Women Commission will: Curtis B. Rich, Management Analyst, (A) By order approve such proposed Small Business Administration, 409 3rd Owned Businesses. rule change or Street, SW., Suite 5000, Washington, Annual Responses: 3,000. (B) Institute proceedings to determine D.C. 20416. Phone Number: 202–205– Annual Burden: 300. whether the proposed rule change 6629. Title: ‘‘Survey of Minority-Owned should be disapproved. Businesses’’. SUPPLEMENTARY INFORMATION: Type of Request: New Information 10 Advice F–10 states that, in the interest of a fair Title: ‘‘Survey of Disaster Loan Collection. and orderly market, two floor officials may declare Recipients’’. Form No.: N/A. a ‘‘fast market,’’ during which displayed quotes are Type of Request: New Information Description of Respondents: Minority- not firm and the volume guarantees of Advice A– 11 are not applicable; nevertheless, best efforts are Collection. Owned Businesses. required to display quotes and fill orders. Annual Responses: 6,000. 11 15 U.S.C. 78f(b)(5). 12 17 CFR 200.30–3(a)(12). Annual Burden: 600. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25987

Title: ‘‘Customer Service Comment Annual Responses: 3,000. and all other pertinent information, SBA Card’’. Annual Burden: 300. issued License No. 05/05/0225 on May Type of Request: New Information Title: ‘‘Survey of the SBA 2, 1997, to Norwest Equity Partners VI, Collection. Procurement Automated Source L.P. to operate as a small business Form No.: N/A. Selection System Users’’. investment company. Description of Respondents: SBA’s Type of Request: New Information (Catalog of Federal Domestic Assistance Service Locations. Collection. Program No. 59.011, Small Business Annual Responses: 10,000. Form No.: N/A. Investment Companies) Annual Burden: .3333. Description of Respondents: PASS Dated: May 6, 1997. Title: ‘‘Survey of SBA Loan System Users. Don A. Christensen, Recipients’’. Annual Responses: 1,000. Associate Administrator for Investment. Type of Request: New Information Annual Burden: 100. [FR Doc. 97–12350 Filed 5–9–97; 8:45 am] Collection. Title: ‘‘Survey of SBA Advocacy and BILLING CODE 8025±01±P Form No.: N/A. Trade Group Members (NAGGL, Description of Respondents: SBA NADCO, Women’s Business Counsel, Loan Recipients. etc)’’. SMALL BUSINESS ADMINISTRATION Type of Request: New Information Annual Responses: 6,000. Declaration of Disaster #2951; State of Annual Burden: 600. Collection. Form No.: N/A. Florida Title: ‘‘Survey of SBA Lenders Description of Respondents: Trade Recipients’’. Group Members. Manatee County and the contiguous Type of Request: New Information Annual Responses: 3,000. Counties of DeSoto, Hardee, Collection. Annual Burden: 300. Hillsborough, Polk, and Sarasota in the Form No.: N/A. Comments: Send all comments State of Florida constitute a disaster area Description of Respondents: regarding this information collection to as a result of damages caused by severe Participating Guaranty Lenders. George Price, Director, Market Research, flooding which occurred on April 26, Annual Responses: 3,000. Office Marketing and Customer Service, 1997. Applications for loans for Annual Burden: 300. Small Business Administration, 409 3rd physical damage may be filed until the close of business on July 1, 1997 and for Title: ‘‘Survey of the SBA’s Electronic Street, S.W., Suite 7600, Washington, economic injury until the close of Information Services’’. D.C. 20416. Phone No.: 202–205–6744. Send comments regarding whether business on February 2, 1998 at the Type of Request: New Information address listed below or other locally Collection. this information collection is necessary for the proper performance of the announced locations: U.S. Small Form No.: N/A. Business Administration, Disaster Area Description of Respondents: Users of function of the agency, accuracy of burden estimate, in addition to ways to 2 Office, One Baltimore Place, Suite the SBA’s Homepage and Electronic 300, Atlanta, GA 30308. Bulletin Board. minimize this estimate, and ways to Annual Responses: 30,000. enhance the quality. The interest rates are: Dated: May 5, 1997. Annual Burden: 3,000. Percent Title: ‘‘Survey of Small Business Jacqueline White, Innovative Research Program Chief, Administrative Information Branch. For Physical Damage: Participants’’. [FR Doc. 97–12409 Filed 5–9–97; 8:45 am] Homeowners With Credit Avail- able Elsewhere ...... 8.000 Type of Request: New Information BILLING CODE 8025±01±P Homeowners Without Credit Collection. Available Elsewhere ...... 4.000 Form No.: N/A. Businesses With Credit Available Description of Respondents: SBIR SMALL BUSINESS ADMINISTRATION Elsewhere ...... 8.000 Participants. Businesses and Non-Profit Orga- Norwest Equity Partners VI, L.P. nizations Without Credit Avail- Annual Responses: 500. (License No. 05/05±0225); Notice of Annual Burden: 50. able Elsewhere ...... 4.000 Issuance of a Small Business Others (Iincluding Non-Profit Or- Title: ‘‘Survey of the SBA’s Investment Company License ganizations) With Credit Avail- Publications’’. able Elsewhere ...... 7.250 Type of Request: New Information On September 17, 1996, an For Economic Injury: Collection. application was filed by Norwest Equity Businesses and Small Agricul- Form No.: N/A. Partners VI, L.P., at 2800 Piper Jaffray tural Cooperatives Without Credit Available Elsewhere ..... 4.000 Description of Respondents: Tower, 222 South Ninth Street, Customers that use SBA Publications. Minneapolis, Minnesota, with the Small Business Administration (SBA) Annual Responses: 3,000. The number assigned to this disaster pursuant to Section 107.102 of the Annual Burden: 300. for physical damage is 295106 and for Regulations governing small business economic injury the number is 948800. Title: ‘‘Survey of the SBA Office of investment companies (13 C.F.R. Government Contracting’s Customers’’. 107.102 (1996)) for a license to operate (Catalog of Federal Domestic Assistance Program Nos. 59002 and 59008) Type of Request: New Information as a small business investment Collection. company. Dated: May 2, 1997. Form No.: N/A. Notice is hereby given that, pursuant Aida Alvarez, Description of Respondents: to Section 301(c) of the Small Business Administrator. Recipients of Assistance from SBA Investment Act of 1958, as amended, [FR Doc. 97–12351 Filed 5–9–97; 8:45 am] Office of Government Contracting. after having considered the application BILLING CODE 8025±01±P 25988 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

SMALL BUSINESS ADMINISTRATION ACTION: Request for public comments. Among other modifications, the revised guidelines encourage Parties to provide National Small Business Development SUMMARY: In June 1992, the United information on actions implemented by Center Advisory Board; Public Meeting States signed the United Nations regional and local governments or the Framework Convention on Climate private sector. At its 12th Plenary The U.S. Small Business Change (UNFCCC). Pursuant to the Administration National Small Business meeting in September 1996, the reporting requirements under Articles Intergovernmental Panel on climate Development Center Advisory Board 4.2 and 12 of the Convention and to will hold a public meeting on Monday Change (IPCC) approved additional proposed format guidelines later guidance with respect to the and Tuesday, May 19–20, 1997, from adopted by the UNFCCC Conference of 8:15 am to 4:15 pm, at the New Mexico methodologies to inventory greenhouse the Parties (COP) at its first session, the gas emissions. These revised Small Business Development Center, United States submitted the U.S. methodologies have been approved by Santa Fe Community College, Santa Fe, Climate Action Report (USCAR) to the the UNFCCC’s Subsidiary Body for New Mexico, to discuss such matters as UNFCCC Secretariat. At its second Scientific and Technological Advice may be presented by members, staff of session, the COP to the UNFCCC agreed (SBSTA) for use in preparing national the U.S. Small Business Administration, that the second national communications, recognizing that the or others present. communications from developed delay in their adoption could cause For further information, write or call country Parties would be due on April difficulty for Party countries in using Mary Ann Holl, SBA, 409 3rd Street, 15, 1997. SW, 4th Floor, Washington, DC 20416, However, because the Department of them in plan preparation. We have 202/205–7302. State wants to provide a public followed both sets of guidelines, to the opportunity to comment on a draft text extent possible, in the preparation of the Dated: May 2, 1997. second USCAR. Michael Novelli, of the Second USCAR, we will not make our submission in the desired time Director, National Advisory Council. The Second USCAR frame. We have already notified the [FR Doc. 97–12348 Filed 5–9–97; 8:45 am] UNFCCC Secretariat that we will be The draft version of the second BILLING CODE 8025±01±M tardy in submitting the final document USCAR reviews key elements contained which we anticipate doing at the July in the initial climate Change Action meeting of the UNFCCC Subsidiary Plan including: an update on key SMALL BUSINESS ADMINISTRATION Bodies. baseline assumptions; a review and assessment of activities to date under Region V Advisory Council Meeting; SUPPLEMENTARY INFORMATION: the almost 50 actions listed in the plan; Public Meeting Background and update of the list of actions The U.S. Small Business reflecting changes initiated by In accordance with the UNFCCC’s responsible agencies since the plan was Administration Region V Advisory reporting requirements as specified in Council, located in the geographical first proposed in 1993. The document Articles 4.2 and 12, and following also reflects information submitted to area of Milwaukee, Wisconsin will hold reporting guidelines developed (and the Council on Environmental Quality a public meeting on Monday, May 19, adopted by the UNFCCC COP at its first in response to a request for comments 1997, at 12:00 p.m. to 1:00 p.m. at the session), the United States prepared the on the original Climate Change Action Metro Milwaukee Area Chamber U.S. Climate Action Report (USCAR) Plan which was published in the (MMAC), Association of Commerce and submitted it to the UNFCCC Federal Register on August 24, 1995, Building—Fourth Floor, in the Secretariat in October 1994. (60 FR 44022) and information Milwaukee Room, 756 North Milwaukee The USCAR provided a description of presented at a subsequent public Street, Milwaukee, Wisconsin 53203. the U.S. program designed to reduce hearing held on September 22, 1995. The purpose of this meeting is to emissions to 1990 levels by the year In keeping with international discuss such matters as may be 2000. The initial USCAR incorporated guidelines, the draft second USCAR presented by members, staff of the U.S. much of the information contained in provides an inventory of U.S. Small Business Administration, or other the first Climate Change Action Plan greenhouse gas emissions and sinks, parties. announced by President Clinton and estimated effects of mitigation measures For further information write or call Vice President Gore on October 19, and policies on future emissions levels, Wesley L. Scott, (414) 287–4161, 1993. Milwaukee Branch Office, 310 West At the Second COP, the Parties and describes U.S. involvement in Wisconsin Avenue, Suite 400, requested developed country Parties to international programs including Milwaukee, Wisconsin 53203. the Convention to submit to the associated contributions and funding Michael P. Novelli, UNFCCC Secretariat, in accordance with efforts. Director, National Advisory Council. Articles 12.1 and 12.2 of the In addition, the text includes a [FR Doc. 97–12349 Filed 5–9–97; 8:45 am] Convention, a second national discussion of U.S. national circumstances which affect U.S. BILLING CODE 8025±01±M communication by April 15, 1997. Parties that submitted first reports in vulnerability and responses to climate 1996 are to provide an update by the change. Information on the U.S. Global Change Research Program, the largest DEPARTMENT OF STATE 1997 deadline and Parties with economies in transition are to provide climate change research program in the [Public Notice 2529] their second communication by April world, and on adaptation programs is also presented. Preparation of Second U.S. Climate 15, 1998. Developing country Parties Action Report have different guidelines and due dates Table of Contents of the Second USCAR for their first communications. I. Introduction AGENCY: Bureau of Oceans and The Parties to the UNFCCC also II. National Circumstances International Environmental and adopted revisions to the guidelines for III. Greenhouse Gas Inventory Scientific Affairs, Department of State. the reports at their second session. IV. Impacts and Adaptation Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25989

V. Research Dated: May 2, 1997. OFFICE OF THE UNITED STATES VI. Education, Training, and Outreach Rafe Pomerance, TRADE REPRESENTATIVE VII. Policies and Measures to Mitigate Deputy Assistant Secretary for Environment Climate Change and Development, Bureau of Oceans and Implementation of the First Round of VIII. International Activities International Environmental and Scientific Accelerated Tariff Eliminations Under Public Input Process Affairs. Provisions of the North American Free [FR Doc. 97–12444 Filed 5–8–97; 10:46 am] Trade Agreement The Department of State published a BILLING CODE 4710±09±M AGENCY: Office of the United States Federal Register notice (citation) in Trade Representative. December 1996 to solicit contributions ACTION: Notification of articles proposed and comments on all aspects of the first DEPARTMENT OF STATE for accelerated tariff elimination under USCAR and in particular, on issues the North American Free Trade related to regional, local, and private [Public Notice No. 2541] Agreement. sector actions to address climate change. Unfortunately, we received no Overseas Schools Advisory Council; SUMMARY: Section 201(b) of the North responses. Notice of Meeting American Free Trade Agreement In spite of the lack of response, we Implementation Act of 1993 (‘‘the Act’’) remain committed to providing the The Overseas School Advisory grants the President, subject to the public with an opportunity to review Council, Department of State, will hold consultation and lay-over requirements the second draft and provide comments its Annual Meeting on Thursday, June of section 103(a) of the Act, the on the text. Because of time constraints, 26, 1997 at 9:30 a.m. in Conference authority to proclaim any accelerated the draft is somewhat rough in terms of Room 1406, Department of State schedule for duty elimination that may formatting and graphics, and is still Building, 2201 C Street, N.W., be agreed to by the United States, under interagency review. We anticipate Washington, D.C. The Meeting is open Mexico and Canada under Article 302(3) that on the basis of further input, some to the public. of the North American Free Trade of the projections of the effects of The Overseas Schools Advisory Agreement (‘‘the NAFTA’’). This notice measures—and of the aggregate effect of Council works closely with the U.S. is intended to inform the public of those the U.S. program—might change. We business community in improving those articles on which the United States, also anticipate that on the basis of American-sponsored schools overseas Canada and Mexico have provisionally further input, some of the projections of which are assisted by the Department of agreed to accelerate the elimination of the effects of measures—and of the State and which are attended by duties. aggregate effect of the U.S. program— dependents of U.S. government families FOR FURTHER INFORMATION CONTACT: might change. We also anticipate the and children of employees of U.S. Office of Western Hemisphere Affairs, inclusion of additional material, corporations and foundations abroad. Office of the United States Trade particularly in the sections on ‘‘The Representative, Room 522, 600 17th Future’’ pending the completion of This meeting will deal with issues Street, NW., Washington, DC 20508; internal Administration analysis. related to the work and the support telephone (202) 395–3412; fax: (202) provided by the Overseas Schools We invite input on all aspects of the 395–9675. Advisory Council to the American- SUPPLEMENTARY INFORMATION: The document including its substance, sponsored overseas schools. format, and graphics. Comments following Federal Register notices received in response to this Federal Members of the general public may provide information on the first round. Register notice will be considered in the attend the meeting and join in the Request for petitions appeared revisions to the draft of the second discussion, subject to the instructions of December 23, 1993 (58 FR 68186); a national communication. Interested the Chairman. Admittance of public request for comments on list of products parties may request individual members will be limited to the seating to be considered appeared May 23, 1994 chapter(s) or the entire text. available. Access to the State (59 FR 26688). Department is controlled and individual Article 302 of the North American DATES: Written comments on the draft building passes are required for each Free Trade Agreement (NAFTA) permits text of the second USCAR should be attendee. Persons who plan to attend the Parties to consider and agree to received on or before noon, May 23, should so advise the office of Dr. Keith accelerate the elimination of customs 1997. The deadline cannot be extended D. Miller, Department of State, Office of duties on goods of a Party. Pursuant to because of an extremely tight timetable Overseas Schools, SA–29, Room 245, this provision, the United States, for the report’s preparation in Washington, D.C. 20522–2902, Canada and Mexico solicited requests anticipation of the July submission date. telephone 703–875–7800, prior to May from interested parties in early 1994. At the request of the United States ADDRESSES: Comments should be 30, 1997. Visitors will be asked to submitted to: Mr. Daniel Reifsnyder, provide their date of birth and Social Government, the Parties agreed to OES/EGC, Room 4330, U.S. Department Security number at the time they consider requests on an expedited basis, of State, Washington, DC 20520–7818. register their intention to attend and and for that reason also agreed to Comments may also be faxed to Mr. must carry a valid photo ID with them consider a short list of items in the first Reifsnyder at (202) 647–0191. Copies of to the meeting. All attendees must use round. As a result, approximately 207 8-digit the draft Second National the C Street entrance to the building. tariff subheadings or parts of Communication may be obtained from Dated: April 28, 1997. subheadings were considered by the Mr. Reifsnyder’s office. Keith D. Miller, three Parties. As a part of the process, FOR FURTHER INFORMATION CONTACT: Mr. Executive Secretary, Overseas Schools USTR requested the advice of the USITC Daniel A. Reifsnyder, Director, Office of Advisory Council. and the private sector trade advisory Global Change, U.S. Department of State [FR Doc. 97–12318 Filed 5–9–97; 8:45 am] groups. As has been practice under tariff at (202) 647–4069. BILLING CODE 4710±24±M acceleration rounds conducted under 25990 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices the provisions of the United States- attached listing the agreed products. have expressed no objection to Canada Free Trade Agreement, the Annex 1 lists the products for which the eliminating tariffs for the products United States did not agree to provide United States proposes to immediately appearing in Annex I. In addition, the accelerated tariff elimination for those eliminate the remaining tariffs. Annex II ITC provided a report to USTR products subject to negative advice. In also shows the U.S. reductions, as well indicating that the proposed a similar manner, the governments of as the comparable reductions agreed to eliminations would have no harmful Canada and Mexico declined to agree to by Canada and Mexico. As a rule, impact on the United States. acceleration for products subject to eliminations are being proposed on a The Parties intend to implement the negative comments by their interested reciprocal basis. For products that do accelerated tariff eliminations effective parties. not show such reciprocal elimination, it July 1, 1997. A separate Federal The Parties did agree to accelerated is in most cases due to the fact that tariff elimination on the remaining duties have already been eliminated. Register notice will be published products, involving all or parts of The final column of the annex indicates shortly providing information on the approximately 80 8-digit tariff lines for those few cases where a Party declined initiation of a second round of NAFTA which one or more of the Parties have to participate in the reductions. Accelerated Tariff Eliminations. provisionally agreed to eliminate the As noted above, the relevant private Peter F. Allgeier, duties at the conclusion of the necessary sector advisory committees were Associate U.S. Trade Representative for the domestic procedures. Two annexes are consulted throughout this process, and Western Hemisphere.

ANNEX 1.ÐNAFTA TARIFF ACCELERATION ROUND ONEÐU.S. TARIFF REDUCTIONS

Tariff reduced Short product description US HS No. for Comment

Processed Artichokes ...... 20059080 Mexico ...... Tahini ...... 20081990 Canada ...... Acceleration on part of 8-digit number only. Trimethoprim ...... 29335922 Mexico ...... Acceleration on part of 8-digit number only. Hexamethylenetetramine ...... 29339087 Mexico ...... Sulfamethoxazole ...... 29350048 Mexico ...... Acceleration on part of 8-digit number only. Polyethylene tape laminated with thermoplastic adhe- 39219050 Canada ...... Acceleration on part of 8-digit number only. sive. Venetian blinds of wood ...... 44219040 Canada, Mexico Acceleration on part of 8-digit number only. Elastomeric monofilaments of polyurethane ...... 54041080 Mexico, Canada Acceleration on part of 8-digit number only. Imitations of Catgut ...... 56049000 Canada ...... Metallized yarn ...... 56050010 Mexico ...... 56050090 Woven fabrics of polyethylene, coated or laminated 59039025 Mexico ...... Acceleration on part of 8-digit number only. with plastics on one side only. Printed Cotton towels ...... 63029100 Mexico ...... Acceleration on part of 8-digit number only. Briquettes for gas fuel barbecues ...... 68159940 Canada ...... Acceleration on part of 8-digit number only. Briquettes for gas fuel barbecues ...... 69149080 Canada ...... Acceleration on part of 8-digit number only. Screws and bolts, whether or not with their nuts and 731815xx Canada, Mexico Acceleration on parts of 6-digit number only. washers, for aircraft. Screws and bolts, whether or not with their nuts and 750890xx Canada ...... Acceleration on part of 8-digit number only. washers, for aircraft, of nickel. Casting-grade zinc, containing by weight less than 79011210 Canada, Mexico 99.99% of zinc. Other zinc ...... 79011250 Canada ...... Screws and bolts, whether or not with their nuts and 81089030 Canada ...... Acceleration on part of 8-digit number only. washers, for aircraft, of titanium. Electric switches, other than motor starter switches ..... 85365080 Mexico, ...... Other bicycle parts ...... 87149190 Mexico, Canada Appliance timers ...... 910700 Canada ...... Acceleration on parts of 6-digit number only. Parts for appliances timers ...... 91149030 Canada ...... Acceleration on part of 8-digit number only. 91149050 Brushes constituting parts of machines ...... 96035080 Canada ...... All remaining duties will be eliminated immediately on these products.

ANNEX II.ÐNAFTA TARIFF ACCELERATION ROUND ONEÐCONCORDANCE

Product description US HS No. Cnd HS No. Mex HS No. USA Mexico Canada Comment

Processed Artichokes ...... 20059080 N/A 20059099 M US US-Mex only. Tahini ...... 20081990 20081990 20081999 C US, C US, M Sodium Cyanide ...... 28371100 28371100 28371101 US, C 2-Ethyl-hexanol ...... 29051600 29051600 29061602 US, C M Lovastatin and simvastatin ...... 29322950 29322900 29322999 US, C M Trimethoprim ...... 29335922 29335900 29335906 M US, C M Enalapril maleate ...... 29339053 29339000 29339057 US, C M Hexamethylenetetramine ...... 29339087 29339000 29339035 MM Sulfamethoxazole ...... 29350048 29350000 29350028 M US, C M Sulfamerizine ...... 29350042 29350000 29350099 US, C M Vitamin C and its derivatives ...... 29362700 29362700 29362701 US, C Dexamethasone ...... 29372200 29372200 29379909 US, C Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25991

ANNEX II.ÐNAFTA TARIFF ACCELERATION ROUND ONEÐCONCORDANCEÐContinued

Product description US HS No. Cnd HS No. Mex HS No. USA Mexico Canada Comment

Tetracycline chlorohydrate ...... 29413000 29413000 29413001 US, C M Gentamycin ...... 29419050 29419000 29419016 US, C M Film without sprocket holes, of a width not 37023100 37023100 37023101 US, C exceeding 105 mm, for color photography (polychrome). Film without sprocket holes, of a width ex- 37024100 37024100 37024101 US, C ceeding 610 mm and a length exceeding 200 mm, for color photography (polychrome). Film, for color photography (polychrome), of 37025300 37025300 37025301 US, C a width exceeding 16 mm but not exceed- ing 35 mm and a length not exceeding 30 m, for slides. Film, for color photography (polychrome), of 37025400 37025400 37025401 US, C a width exceeding 16 mm but not exceed- ing 35 mm and a length not exceeding 30 m, other than for slides. Film, for color photography (polychrome), of 37025500 37025500 37025501 US, C a width exceeding 16 mm but not exceed- ing 35 and of a length exceeding 30 m. Black and white motion picture film, of a 37029200 27029290 37029201 US, C width not exceeding 16 mm and of a length exceeding 14 m. Color motion picture film, of a width exceed- 37029400 37029490 37029401 US, C ing 16 mm but not exceeding 35 mm and of a length exceeding 30 m. Polyethylene tape laminated with thermo- 39219050 39219090 39219008 C US, C US, M plastic adhesive. Venetian blinds of wood ...... 44219040 44219040 44219099 C, M US, C US, M Paper of a kind for use in making masking 48083000 48083090 48083002 US, C tape. Elastomeric monofilaments of polyurethane .. 54041080 54041090 54041005 M, C C US, M Imitations of Catgut ...... 56049000 56049000 56049003, C US US-Can only. 56049004 Metallized yarn ...... 56050010, 56050000 5605001 M US, C M 56050090 Woven fabrics of polyethylene, coated or 59039025 59039020 59039002 M US laminated with plastics on one side only. Printed Cotton towels ...... 63029100 63029100 63029101 M US Briquettes for gas fuel barbecues ...... 68159940 68159991, 68159901, C US 68159999 68159999 Ceramic tableware, other than of porcelain or 69120010, 69120000 69120001, CM Mex-Can china. 69120020, 69120099 only. 69120035, 69120039, 69120041, 69120044, 69120045, 69120046, 69120048, 69120059 Briquettes for gas fuel barbecues ...... 69149080 69149000 69149099 C US, M Screws and bolts, whether or not with their 731815xx 73181500 73181501 C, M US, M nuts and washers, for aircraft. Screws and bolts, whether or not with their 750890xx 75089020 75089099 C US, C US, M nuts and washers, for aircraft, of nickel. Casting-grade zinc, containing by weight less 79011210 79011200 79011201 C, M US, C than 99.99% of zinc. Other zinc ...... 79011250 C Screws and bolts, whether or not with their 81089030 81089090 81089099 C US, C US, M nuts and washers, for aircraft, of titanium. Scissors & ShearsÐBlanks and blades ...... 82130030, 82130020, 82130001 US 82130060, 82130030 82130090 Tobacco drying machines ...... 84199090 84193190 84193105 US, C Parts of tobacco drying machines ...... 84199080 84199099 US, C M Dishwashers ...... 84221100 N/A 84221101 US Mex-US only. Parts of dishwashers ...... 84229002, N/A 84229002, US 84229004, 84229003, 84220006 84229004 Machines for cleaning by pressure ...... 84243010, 84243000 84243001 US, C M 84243090 25992 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

ANNEX II.ÐNAFTA TARIFF ACCELERATION ROUND ONEÐCONCORDANCEÐContinued

Product description US HS No. Cnd HS No. Mex HS No. USA Mexico Canada Comment

Excavating machines ...... 84295950 84295910, 84295901 US, C 84295920, 84295990 Parts for excavating machines ...... 84314100, 84314190 84314101, US, C M 84214990 84314103, 84314199 Other parts for excavating machines ...... 84314990 84314902, US, C M 84314999 Clothes dryers ...... 84512100 N/A 84512101, US US-Mex only. 84512199 Metal casting machines ...... 84543000 84543010, 84543001 US, C 84543090 Metal processing machines ...... 84798100 84798110, 84798101 US, C 84798190 Electric switches, other than motor starter 85365080 85365010, 85365001, M US-Mex only. switches. 85365080, 85365010, 85365091, 85365011 85365099 Other bicycle parts ...... 87149190 M, C Bicycle Hubs, other than coaster braking 87149305, 87149300 87149301 M hubs and hub brakes, and free-wheel 84719315, sprocket-wheels. 84719324, 84719328, 84719335, 84719370 Bicycle parts, other than of subheading No. 87149910, 87149920 87149901 M Can-Mex 8714.91, 8714.92, 8714.93, 8714.94, 87149950, only. 8714.95 or 8714.96. 87149960, 87149980, 87149990 Appliance timers ...... 91070040, 91070010, 91070001 C US, M 91070080 91070020, 91070090 Parts for appliance timers ...... 91149030, 91149020, 91149001, C US 91149050 91149030, 91149099 91149090 Brushes constituting parts of machines ...... 96035080 96035090 96035001 C US, M All remaining tariffs will be eliminated immediately. The 3rd, 4th and 5th columns show the reductions each county provides for the other NAFA parties.

[FR Doc. 97–12405 Filed 5–9–97; 8:45 am] Mexico and Canada under Article 302(3) and most dutiable goods traded between BILLING CODE 3190±01±M of the North American Free Trade Mexico and Canada. Duties on goods Agreement (‘‘the NAFTA’’). This notice traded between the United States and opens the second round of Canada remain subject to the tariff OFFICE OF THE UNITED STATES consideration for accelerated tariff elimination timetables agreed to under TRADE REPRESENTATIVE elimination under the NAFTA, and the U.S-Canada Free Trade Agreement describes the procedure for filing (CFTA). All goods covered by the tariff Initiation of the Second Round of petitions. The closing date for filing elimination provisions agreed to by the Accelerated Tariff Elimination Talks petitions requesting consideration is United States and Canada will be duty Under Provisions of the North June 13, 1997. The three NAFTA free as of January 1, 1998. American Free Trade Agreement governments will announce the Article 302(3) of the NAFTA provides AGENCY: Office of the United States products being provided accelerated that, at the request of any party to the Trade Representative. reductions on or before December 15, NAFTA, the parties shall consult to 1997, with implementation planned for ACTION: Notification of an opportunity to consider accelerating the elimination of early 1998. file petitions requesting accelerated customs duties set out in the FOR FURTHER INFORMATION CONTACT: tariff elimination under the North Agreement. Section 201(b) of the Act American Free Trade Agreement. Office of Western Hemisphere Affairs, grants the President, subject to certain Office of the United States Trade consultation and layover requirements, SUMMARY: Section 201(b) of the North Representative, Room 522, 600 17th the authority to proclaim any such American Free Trade Agreement Street, N.W., Washington, D.C. 20508; agreed acceleration of the elimination of Implementation Act of 1993 (‘‘the Act’’) telephone: (202) 395–3412; fax: (202) a U.S. duty. The Statement of grants the President, subject to the 395–9675. Administrative Action (SAA) which was consultation and lay-over requirements SUPPLEMENTARY INFORMATION: Annex approved by the Congress along with of section 103(a) of the Act, the 302.2 of the NAFTA establishes the the NAFTA and Sec. 201(b)(2) of the Act authority to proclaim any accelerated timetable for the staged elimination of state that the President may not schedule for duty elimination that may tariffs on all dutiable goods traded consider a request to accelerate the be agreed to by the United States, between Mexico and the United States staging of duty reductions for an article Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25993 for which the U.S. tariff phaseout period subject to the limitations noted above. If Washington, D.C. 20508, telephone is more than 10 years if a request for met, petitions submitted in 1994 can be (202) 395–3412. Petitioners are acceleration with respect to such an considered in this second round. encouraged to submit requests to USTR article has been considered and denied However, the NAFTA parties will via the Internet or on a properly in the preceding 3 calendar years. (That consider petitions on previously formatted computer disk. The form, and is, a request denied in 1997 cannot be rejected requests only when there is instructions for electronic submissions reconsidered before 2001.) However, no evidence that conditions have changed can be obtained, beginning May 20, such products were considered during sufficiently since the prior decision to 1997, from the USTR Internet home the first NAFTA tariff acceleration merit reconsideration. As for any other page: www.ustr.gov under the ‘‘What’s round. No decision has been made at request, petitioners must file new, New’’ heading. this time regarding a third round. complete, petitions to have such Based on the above, and on the requests considered. IV. General Instructions experience gained in conducting the (2) Products subject to petitions filed 1. Each harmonized tariff system prior round, the following procedures in 1994 but not considered in the first (HTS) number must have a separate will apply to the second tariff round can be considered in the second petition; that is, each petition may acceleration round, subject to future round, if they will continue to be request accelerated tariff elimination for modifications. dutiable after January 1, 1998. However, a single product only. All information due to the time elapsed since these I. Articles Which May Be Petitioned contained in a petition must pertain petitions were received, petitioners are solely to the single product that is the Petitions for accelerated tariff asked to file new petitions to confirm subject of the petition. A single petition elimination may be filed only for their continued interest and provide requesting acceleration on more than articles for which the duty is currently updated information. one product cannot be considered. scheduled to be eliminated after January 2. Product description (number 5). II. Timetable 1, 1998, as noted in Annex 302.2 of the Petitions for acceleration of an entire 8- NAFTA, and modified by the first tariff Petitions requesting consideration of digit tariff subheading must provide the acceleration round and any addition accelerated duty elimination are due at HTS descriptions for the United States tariff reductions implemented by each USTR by 5:00 p.m., June 13, 1997. and Mexico, and for Canada when of the parties. Requests may be made to USTR will then published a preliminary relevant. Whenever possible, petitions the United States government with list of the products to be presented to should be for the entire 8-digit tariff respect to trade in originating products Mexico and request comments on this line. However, petitions for acceleration between the United States and Mexico. list as specified in that notice. for only certain products classified As noted above, all applicable trade Trinational meetings will begin shortly within an 8-digit subheading can be between the United States and Canada thereafter, with the announcement of considered when necessary. Such will be duty free on January 1, 1998, the agreed package of accelerated tariffs petitions must provide the following that is, before the conclusion of the to be made by December 15, 1997. additional information in Section C: second tariff acceleration round. Implementation under the applicable a. A full and complete description of Therefore, no U.S.-Canada requests will domestic procedures will then begin in the article; be considered. In addition, no U.S.- each country, and should be completed b. The article’s principal use in the Mexico requests will be considered for in approximately 90 days. Advice from United States; products with tariff elimination the United States International Trade c. The reason the full tariff line currently scheduled for January 1, 1998. Commission (USITC) and the Trade should not be considered; Finally, requests for elimination of Advisory Committee will also be d. The article’s commercial, common duties between Mexico and Canada can requested for all products on the or technical name or designation; and, be requested through the United States preliminary list. as appropriate: government only when U.S.-Mexico (1) Illustrative literature; duties are also subject to that request. III. Format of Petitions (2) The relative quantity by weight of Requests for accelerated duty A model petition format and the each component materials for articles elimination on trade solely between information requested is shown in the composed of two or more materials; Mexico and Canada should be made to annex to this notice. In order to be (3) Chemical analysis, flow charts, the governments of Mexico or Canada. considered, petitions for accelerated CAS number, etc.; USTR will generally not act on a tariff eliminations must conform to the e. Any other information that may petition unless most U.S. producers of model format and contain all essential assist in determining the appropriate that particular product consider the data elements. tariff classification of the article; request for acceleration to be non- If a submission contains business f. A statement of the reason(s) the controversial. Petitions may request confidential material, the specific petitioner believes that the article is acceleration of reductions by one or all material must be so identified in order classified in the 8-digit tariff subheading of the NAFTA parties. Normally, the to receive confidential treatment. In which the petitioner has entered in acceleration of the elimination of tariffs such cases, both a non-confidential and number 7 of the petition (e.g., will be pursued on a reciprocal basis. a business confidential version of the outstanding classification by Customs or Since the consultations will be petition, each clearly marked as to its a classification by Customs on trinational, petitions requesting status, must be submitted. None of the liquidated entries of the article in acceleration by other than all parties information provided in sections A and question) and; must note the reasons for excluding any B of the petition may be designated g. A copy of any rulings issued by the party. business confidential. U.S. Customs Service or the appropriate A copy of the petition format and this authorities in the Government of Mexico Regarding Products Subject to Petitions notice can be obtained from the Office specifying the classification of the Filed in 1994 of the Western Hemisphere, Office of petitioned product in the Harmonized (1) Products considered for, but not the United States Trade Representative Tariff Schedule of the United States, granted, accelerated reductions are (USTR), Room 522, 600 17th Street, NW, and the Tariff Schedule of Mexico. 25994 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

h. A statement of the reasons why submissions can be obtained, beginning equally to corresponding U.S. tariff accelerated duty elimination should be May 20, 1997, from the USTR Internet treatment, and vice versa. Petitions considered for only a portion of the 8- home page: www.ustr.gov under the requesting other than reciprocal digit tariff subheading. Petitions for ‘‘What’s New’’ heading. Technical acceleration must note the reasons for products within an 8-digit which do not questions regarding electronic the exclusion of the other party. provide the above information cannot be submission may be made after May 20 Peter F. Allgeier, considered. Brand names or trademarks by contacting the USTR computer Associate U.S. Trade Representative for the are not acceptable as product operations office at (202) 395–3417 Western Hemisphere. descriptions for this purpose and their during business hours. use may result in rejection of the b. Paper submissions: Petitions must Model Petition To Accelerate the Removal of Tariffs Under the North American Free petition. be type-written and submitted in 10 Trade Agreement 3. 8-digit tariff subheading (number copies, in English, at the earliest 6). Petitions for acceleration of tariff possible date, but not later than June 13, 1997 Round Form for U.S. Petitioners elimination under the 1997 U.S. and 1997 to: Office of the Western Section A. Petitioner Identification Mexican tariff schedules must provide Hemisphere, Office of the United States 1. Petitioner: llllllllllllll the correct applicable 8-digit tariff Trade Representative, Room 501, 600 2. Address: lllllllllllllll subheading number for each of the tariff 17th Street, NW, Washington, D.C. 3. Contact Person: llllllllllll schedules. As noted above, not more 20508, ATTN: NAFTA Tariff 4. Telephone Number: (lll) llllll than one 8-digit subheading in each Acceleration desk. Petitions received Section B. Product Identification and Tariff tariff schedule must be listed in a after the deadline cannot be considered. Information petition. The tariff subheading is llllllllll V. Consideration of Petitions 5. Product Description: requested for Canada in the event lllllllllllllllllllll Mexico and Canada consider All petitions received by June 13, (Important: See paragraph IV.3 of General acceleration. Commodity numbers 1997, and containing complete and Instructions. Supplement in Section C, if contained in Schedule B, Statistical correct information as required in this necessary.) Classification of Domestic and Foreign notice will be reviewed and a decision 6. The product is classified in the following made as to which articles will be 8-digit tariff subheading: Commodities Exported from the United lllll States, cannot be substituted for the proposed to the Government of Mexico a. in the 1997 Harmonized for possible accelerated tariff Tariff Schedule of the United States number of the 8-digit tariff subheading b. lllll in the 1997 Tariff Schedule in the United States, Mexican or elimination. As noted above, petitions of Mexico Canadian tariff schedules. Petitions for articles on which the duty is c. lllll in the 1997 Customs Tariff of using Schedule B commodity numbers currently scheduled for elimination on Canada for this purpose cannot be considered. or before January 1, 1998 in Annex (Note: petitions cannot be accepted without Petitioners are responsible for assuring 302.2 of the NAFTA, as modified, this information.) that the products of interest are cannot be considered. 7. Petitioner/Product Relationship (check all classified in the tariff subheading being Petitions not containing complete and that apply): a. l Producer in the United States petitioned. We recommend that accurate information required in l numbers 1 through 11 of sections A and b. Importer in the United States petitions include the information c. l Exporter in the United States described in paragraph 3 above on B cannot be considered. d. l Consumer in the United States representative products for which the Petitions not containing complete and e. l Other, in the United States petitioner is seeking accelerated tariff accurate information required in Specify: lllll elimination. numbers 1 through 11 of sections A and f. l Producer in Mexico 4. Petitioner/product relationship B cannot be considered. g. l Importer in Mexico (number 7). At least one item must be Petitions for products previously h. l Exporter in Mexico l checked. If item ‘‘e’’, ‘‘j’’ or ‘‘o’’ is considered for acceleration under the i. Consumer in Mexico j. l Other, in Mexico checked, specify the relationship or NAFTA will be considered only if USTR lllll determines that circumstances have Specify: interest that the petitioner has in the k. l Producer in Canada product. sufficiently changed to warrant l. l Importer in Canada 5. Supplemental information (Section reconsideration at this time. Such m. l Exporter in Canada C). This section of the petition should petitions should include information in n. l Consumer in Canada be used to provide information Section C of the petition documenting o. l Other, in Canada supplementing that provided in such a change. Products considered in Specify: lllll numbers 1 through 11 (specify the the first NAFTA rounds are listed in the 8. This petition: l relevant number(s) being Federal Register notice May 23, 1994, a. —covers all products in the U.S. 8- supplemented), or any other relevant Volume 59, Number 98, at pages 26688 digit tariff subheading b. l—does not cover all products in the information that may assist in through 26690. Information on whether U.S. 8-digit tariff subheading consideration of the petition. a product was considered in the first c. l—covers all products in the Mexican 6. Submission of petitions. NAFTA product round may also be 8-digit tariff subheading a. Electronic submissions: USTR obtained from: The Office of the U.S. d. l—does not cover all products in the prefers that petitions be submitted in Trade Representative, NAFTA Mexican 8-digit tariff subheading electronic form, either interactively via Acceleration Help Desk (202) 395–3412, e. l—covers all products in the Canadian the Internet, or by submission of floppy or The U.S. Department of Commerce, 8-digit tariff subheading l disk. If disks are being submitted, one Office of NAFTA (202) 482–0305. f. —does not cover all products in the hard copy of each petition should also Normally, the accelerated elimination Canadian 8-digit tariff subheading (Important: If items ‘‘b’’, ‘‘d’’ or ‘‘f’’ are be enclosed; if multiple requests are of tariffs between the United States and checked, the information required in being filed, they may be submitted on a Mexico will be pursued on a reciprocal paragraph 3 of the General Instructions single disk, with a hard copy list of all basis. Petitions containing requests for for product descriptions of single the petitions by HTS number included. the accelerated elimination of Mexican products within an 8-digit subheading The form, and instructions for electronic tariffs will be treated as applying must be provided with this petition.) Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 25995

9. Under the NAFTA, the duty is currently b. l the Mexican duty on the U.S. Section C. Supplemental Information scheduled to be eliminated on January 1: (Note: if the request is not made for both (Use additional pages as necessary.) For U.S. imports: l1999 l2000 l2001 Parties, note reason for exclusion, such lll l2002 l2003 l2004 l2005 l2006 as current duty-free status.) Signature of person filing the petition: l lllllllllllllllllllll 2007 11. The petitioner requests elimination of the l l l lllllllllllll For Mexico imports: 1999 2000 2001 tariff/s: Title or position: l l l l l llllllllllllllllll 2002 2003 2004 2005 2006 a. l immediately without further staging Date: l2007 b. l with accelerated staging 10. Accelerated removal is requested for: [FR Doc. 97–12406 Filed 5–9–97; 8:45 am] Specify: lllll a. l the United States duty on Mexico BILLING CODE 3190±01±M 25996

Corrections Federal Register Vol. 62, No. 91

Monday, May 12, 1997

This section of the FEDERAL REGISTER second line, ‘‘685096545’’ should read 10. On the same page in the same contains editorial corrections of previously ‘‘685–6545’’. column, the heading ‘‘N05520095’’ published Presidential, Rule, Proposed Rule, 3. On the same page, in the same should read ‘‘N05520–5’’. and Notice documents. These corrections are column, under FOR FURTHUR 11. On page 18593, in the second prepared by the Office of the Federal INFORMATION CONTACT:, in the Register. Agency prepared corrections are third line, ‘‘325096545’’ should read column, in the first paragraph, in the issued as signed documents and appear in ‘‘325–6545’’. second line from the bottom, the appropriate document categories ‘‘P0952390926’’ should read ‘‘P–5239– elsewhere in the issue. 4. On the same page, in the same column, in the second paragraph under 26’’. SUPPLEMENTARY INFORMATION:, BILLING CODE 1505-01-D in the tenth line, ‘‘Circular No. A09130’’ DEPARTMENT OF DEFENSE should read ‘‘Circular No. A–130’’. 5. On the same page, in the same DEPARTMENT OF HOUSING AND Department of the Navy column, the heading, ‘‘N05520095’’ URBAN DEVELOPMENT should read ‘‘N05520–5’’. Privacy Act of 1974; System of 6. On the same page, in the third [Docket No. FR-4200-N-59] Records column, in the second paragraph under Correction SYSTEM LOCATION:, in the fifth line, Notice of Proposed Information ‘‘21090092902’’ should read ‘‘21090– Collection for Public Comment In notice document 97–9736, 2902’’. beginning on page 18590, in the issue of 7. On the same page, in the same Correction Wednesday, April 16, 1997, make the column, in the fifth paragraph, in the In notice document 97–11533 following corrections: tenth line, ‘‘20395095720’’ should read ‘‘20395–5720’’. beginning on page 24499 in the issue of 1. On page 18590, in the second 8. On the same page, in the same Monday, May 5, 1997, make the column, under ADDRESSES:, in the column, in the sixth paragraph, in the following correction: sixth line, ‘‘20350092000’’ should read eighth line, ‘‘70149097800’’ should read ‘‘20350–2000’’. On page 24499, in the second column, ‘‘70149–7800’’. in the DATES section, ‘‘June 7, 1997’’ 2. On the same page, in the same 9. On page 18592, in the first column, should read ‘‘July 7, 1997’’. column, under FOR FURTHUR in the ninth line ‘‘P0952390926’’ should BILLING CODE 1505-01-D INFORMATION CONTACT:, in the read ‘‘P–5239–26’’. federal register May 12,1997 Monday Proposed Rule and theUseofHazardousWasteasFill; Processing andBevillExclusionIssues, and MineralProcessingWastes, Treatment StandardsforMetalWastes Second SupplementalProposalon Provisions; FinalRule Miscellaneous HazardousWaste Certain ProcessedMaterials;and Streamlining, ExemptionsFromRCRAfor Wastes, PaperworkReductionand Treatment StandardsforWoodPreserving Land DisposalRestrictionsPhaseIV: 40 CFRPart148,etal. Protection Agency Environmental Part II 25997 25998 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION p.m. EST, toll-free, at 800–424–9346; 3. Technology- versus Risk-based AGENCY (703) 412–9810 from Government Treatment Limits phones or if in the Washington, DC local 4. UTS Limits and the Performance of Remedial Treatment Technologies 40 CFR Parts 148, 261, 268, and 271 calling area; or 800–553–7672 for the IV. Improvements to the Land Disposal hearing impaired. For more detailed RIN 2050 AE05 Restrictions Program information on specific aspects of the A. Significant Reduction in LDR [FRL 5816±5] rulemaking, contact the Waste Paperwork Treatment Branch (5302W), Office of 1. Background Land Disposal RestrictionsÐPhase IV: Solid Waste (OSW), U.S. Environmental 2. Discussion of Specific Paperwork Treatment Standards for Wood Protection Agency, 401 M Street SW., Changes Washington, DC 20460; phone (703) B. Clean-up of LDR Requirements in 40 Preserving Wastes, Paperwork CFR 268 Reduction and Streamlining, 308–8434. For technical information on 1. Section 268.1 Exemptions From RCRA for Certain the treatment standards for wood 2. Section 268.4 Processed Materials; and preserving wastes, ask for Nick Vizzone; 3. Section 268.5 Miscellaneous Hazardous Waste for information on paperwork reduction 4. Section 268.7 Provisions and clean-up of Part 268, call Rhonda 5. Section 268.9 Minnick at (703) 308–8771 or Nick 6. References to section 268.32 AGENCY: Environmental Protection Vizzone at (703) 308–8460. Contact 7. Sections 268.34–268.37 Agency (EPA, the Agency). 8. References to sections 268.41–268.43 Kristina Meson at (703) 308–8488 for 9. Appendices ACTION: Final rule. information on the exclusions for scrap C. Clarifications of Point of Generation metal and shredded circuit boards. Call 1. General Discussion SUMMARY: The Agency is finalizing Pan Lee at (703) 308–8478 for 2. Boiler Cleanout treatment standards for hazardous information on the capacity analyses. 3. Sludge From High TOC (Total Organic wastes generated from wood preserving For questions on the regulatory impact Carbon) D001 Treated in Tank Based operations, and is making a conforming analyses, contact Paul Borst at (703) Systems amendment to the standard for wastes 308–0481. For other questions, call Sue 4. Tank Rinsate D. POLYM Method of Treatment for High- from production of chlorinated Slotnick at (703) 308–8434. aliphatics which carry the F024 TOC (Total Organic Carbon) Ignitable hazardous waste code. These treatment SUPPLEMENTARY INFORMATION: D001 Wastes E. Decision to Retain Current Treatment standards will minimize threats to Availability of Rule on Internet Standard for Multi-Source Leachate human health and the environment (Waste Code F039) posed by these wastes. In addition, this This rule is available on the Internet. V. Status of Proposed Provisions on Leaks, final rule revises the land disposal Please follow these instructions to Sludges, and Air Emissions from RCRA– restrictions (LDR) program to access the rule electronically: From the Equivalent Treatment of Decharacterized significantly reduce paperwork World Wide Web (WWW), type http:// Wastewaters in Clean Water Act Surface requirements by 1.6 million hours. This www.epa.gov/rules and regulations. In Impoundments rule also finalizes both the decision to addition, several technical background VI. Decision Not to Ban Nonamenable Wastes from Biological Treatment employ polymerization as an alternative documents contained in the docket supporting this rule will be available on VII. Capacity Determinations For Wood method of treatment for certain ignitable Preserving Wastes wastes as well as the decision not to ban the Internet at http://www.epa.gov/ A. Introduction certain wastes from biological treatment offices and regions/oswer. B. Available Capacity because there is no need to classify Table of Contents 1. Thermal Treatment 2. Stabilization these wastes as ‘‘nonamenable.’’ It also I. Background clarifies an exception from LDR 3. Wastewater Treatment II. Potentially Regulated Entities C. Required Capacity and Comparison with requirements for de minimis amounts of III. New Land Disposal Restrictions Available Capacity characteristic wastewaters. Finally, this Treatment Standards for Wastes from D. Mixed Radioactive Wastes rule excludes processed circuit boards Wood Preserving (Waste Codes F032, E. Phase IV Wood Preserving Wastes and scrap metal from RCRA regulation F034, and F035) and Revised Treatment Injected Into Underground Injection which is intended to promote the goal Standard for Chlorinated Aliphatics Control (UIC) Class I Wells Injected into of safe recycling. Waste (F024) Class I Wells A. Summary F. Summary of Variance Determinations EFFECTIVE DATE: This final rule is B. Determination of BDAT VIII. Changes to Definition of Solid Waste to effective on August 11, 1997 except 1. General Exclude Processed Scrap Metal and §§ 148.18(b) and 268.30(b), which are 2. F032 wastewaters Shredded Circuit Boards From RCRA effective on May 12, 1999. 3. F034 wastes Jurisdiction ADDRESSES: The public docket for this 4. F035 wastes A. Processed Scrap Metal rulemaking is available for public C. Alternative Combustion Treatment 1. Summary of Proposal Standard for Dioxins and Furans in F032 inspection at EPA’s RCRA Docket, 2. Modifications to the proposal 1. Today’s action B. Shredded Circuit Boards located at Crystal Gateway, First Floor, 2. Background 1. The Proposal 1235 Jefferson Davis Highway, 3. Summary of Phase IV NODA for F032 2. Exclusion For Shredded Circuit Boards Arlington, Virginia. The regulatory 4. Review of Major Comments on Phase IV Conditioned On Containerized Storage docket for this final rule contains a NODA and Promulgation of A Modified Prior To Recovery number of background materials. To Version of Suboption Three 3. Limitation on Mercury Switches, obtain a list of these items, contact the 5. Revised Treatment Standard for F024 Mercury Relays, Nickel-Cadmium RCRA Docket at 703–603–9230 and Wastes Batteries and Lithium Batteries request the list of references in EPA D. Soil and Debris Contaminated with 4. Clarification of regulatory status of # Wood Preserving Wastes secondary materials associated with the Docket F–97–PH4F–FFFFF. 1. Summary of comments generation or management of circuit FOR FURTHER INFORMATION CONTACT: The 2. LDR Requirements Do Apply to boards. RCRA Hotline between 9:00 a.m.–6:00 Contaminated Media IX. State Authority Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 25999

A. Applicability of Rules in Authorized EPA proposed the Phase IV rule in environment. For this reason, Congress States two proposed rules (60 FR 43654, required that hazardous wastes be B. Abbreviated Authorization Procedures August 22, 1995; and 61 FR 2338, pretreated before disposal by ‘‘treatment C. Effect on State Authorization January 25, 1996), and subsequently [which] should be the best that has been D. Less stringent requirements X. Regulatory Requirements issued a Notice of Data Availability on demonstrated to be achievable.’’ A. Regulatory Impact Analysis Pursuant to Phase IV issues (61 FR 21418, May 10, Congressional Record of July 25, 1984 Executive Order 12866 1996). The attached rule finalizes (S9178). The technology-based approach 1. Methodology Section portions of those earlier proposals. of the land disposal restrictions 2. Volume Results Other proposed revisions are in a provides a measure of insurance against 3. Cost Results second supplemental proposed rule the potential for failure in these land 4. Economic Impact Results elsewhere in this Federal Register. based units. 5. Benefit Estimate Results EPA estimates that the directly Given these facts, and evident B. Regulatory Flexibility Analysis measurable benefits associated with the Congressional intent, EPA continues to C. Unfunded Mandates Reform Act land disposal restrictions treatment D. Paperwork Reduction Act believe that the LDR prohibitions and XI. Environmental Justice standards in this rule are limited treatment standards are justified in A. Applicability of Executive Order 12898 relative to the costs that may be many instances. EPA sets treatment B. Potential Effects incurred. Therefore, the relative priority standards that reduce toxicity and XII. Submission to Congress and General of addressing these risks could be mobility of hazardous constituents (or Accounting Office questioned. However, we do not believe, require recycling), and EPA also I. Background for this specific action, that a simple requires that the treated wastes be cost effectiveness measure alone placed in reasonably secure land In the 1984 Hazardous and Solid provides a sufficient basis for decision- disposal units. However, EPA does Waste Amendments (HSWA) of the making. As discussed below, the believe that, in some situations, the Resource Conservation and Recovery preference for permanent treatment of current LDR rules may not provide the Act (RCRA), Congress specified that hazardous wastes is part of the basic optimum regulatory approach. In those land disposal of hazardous waste is policy structure which Congress enacted situations, EPA will look to other prohibited unless the waste meets when it amended RCRA in 1984, and mechanisms to address those relatively treatment standards established by EPA. reflects concern over the technological low risk scenarios. HSWA requires that treatment standards uncertainties regarding risks and long must substantially diminish the toxicity term protectiveness of land disposal and II. Potentially Regulated Entities or mobility of hazardous waste, so that the intent to assure that waste Entities potentially regulated by this short and long term threats to human management practices are protective for final rule vary according to the section health and the environment are future generations. of the rule. The following table breaks minimized. The treatment standards are The whole premise of the LDR down the categories industries that may part of the Land Disposal Restrictions legislation is that risks posed by land be regulated according to each major Program. disposal of hazardous wastes are section. The table is not intended to be Today’s final rule is one part of the inherently uncertain to evaluate and exhaustive, but rather to provide a guide collection of land disposal restrictions that land-based units are incapable of for readers regarding entities likely to be (LDR) rules known as ‘‘Phase IV.’’ They long term containment. Land disposal regulated by this action. This table lists are the latest in a series of LDR rules units (such as landfills, surface the types of entities that EPA is now that establish treatment standards for impoundments, and waste piles) are aware could potentially be regulated by newly listed and identified wastes, and engineered units that can and have this action. Other types of entities not that resolve other hazardous waste failed in the past with significant listed in the table could also be matters. consequences to human health and the regulated.

TABLE OF ENTITIESÐPOTENTIALLY AFFECTED BY THE PHASE IV FINAL RULE

Section of the rule Category Examples of entities potentially affected

Addition to 40 CFR § 268.40ÐTreatment standards for Wood Preserving Hazardous Waste Any person that generates over 100kg wood preserving wastes. Generators. of F032, F034, or F035. Hazardous Waste Treatment Facilities .. Facilities that treat F032, F034, or F035. Modifications to 40 CFR § 268.7ÐWaste Analysis and Rec- Hazardous Waste Generators ...... Any person who generates over 100kg ordkeeping. of prohibited hazardous waste, or over 1 kg of acute hazardous waste in a calendar month. Hazardous Waste Treatment Facilities .. Facilities permitted under 40 CFR Part 270 for incinerators, surface im- poundments, and/or land treatment facilities. Hazardous Waste Disposal Facilities .... Facilities permitted under 40 CFR Part 270 for landfills, and/or injection wells. Addition of §§ 261.4(a)(12) and 261.4(a)(13)ÐExclusion Scrap Metal and/or Circuit Board Gen- Persons who generate scrap metal, as from the definition of solid waste for excluded scrap metal erators. defined under 40 CFR § 261.1(c)(6) and shredded circuit boards. (e.g., Die Casters, Metal Stampers, Machining Parts). Scrap Metal Salvage and Storage Facilities that store scrap metal, but do Yards. not generate or recycle. 26000 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE OF ENTITIESÐPOTENTIALLY AFFECTED BY THE PHASE IV FINAL RULEÐContinued

Section of the rule Category Examples of entities potentially affected

Scrap Metal Recyclers ...... Facilities that process scrap metal as defined in 40 CFR § 261.1(c)(10). Circuit Board Shredders ...... Facilities that shred circuit boards. Point of generation; Decision not to ban nonamenable Hazardous Waste Generators ...... Any person who generates over 100kg wastes. of prohibited hazardous waste, or over 1 kg of acute hazardous waste in a calendar month. Hazardous Waste Treatment Facilities .. Facilities that perform biological treat- ment in surface impoundments.

III. New Land Disposal Restrictions explained in the Final Best may yield an effluent with higher Treatment Standards for Wastes From Demonstrated Available Technology concentrations than those proposed by Wood Preserving (Waste Codes F032, Background Document for Wood EPA. F034, and F035) and Revised Treatment Preserving Wastes—F032, F034, and EPA has examined the available data Standard for Chlorinated Aliphatics F035 (Wood Preserving Background on the characterization of F032, Waste (F024) Document for this rule), EPA has prevailing management practices for A. Summary determined that wastewater treatment wastewaters as difficult to treat as F032, technologies such as biological and for wastewaters managed by EPA is promulgating UTS limits as treatment, steam stripping, carbon biological treatment systems. EPA the treatment standards for the adsorption, or combinations of these acknowledges that the concentrations of hazardous constituents in wood technologies can treat organics regulated D/F in F032 wastewaters, as generated, preserving wastes F032, F034, and F035, in F032 and F034 to the concentration are much higher than those treated by as proposed. (See 60 FR 43654, August levels promulgated today. These the biological treatment system 24, 1995; 60 FR 546451, October 25, wastewater treatment technologies are supporting the existing UTS limits for 1995; and 61 FR 21417, May 10, 1996.) available to, or in use at, existing wood D/F. However, based on the available In addition, EPA is establishing a preserving facilities. data on wastewater treatment practices compliance alternative for dioxin and For metals in nonwastewater forms of at wood preserving facilities, EPA furan (D/F) constituents in F032, F034, and F035, EPA has believes that prevailing wastewater nonwastewater and wastewater forms of determined that the promulgated treatment practices can be optimized or F032, namely allowing use of a method treatment standards can be based on upgraded to meet the D/F limits of treatment—combustion—for these (slag) vitrification for arsenic and on promulgated for F032 wastewaters. As constituents. Thus, if this method of stabilization for chromium (total). The explained in the BDAT Background treatment is utilized, combustion treatment standard for arsenic also can Document, pretreatment steps can be, residues would not have to be analyzed be achieved using stabilization and are, used to reduce influent for D/F constituents. The alternative is treatment (see the Wood Preserving concentrations to biotreatment units to only available for F032 residues from Background Document). For wastewater levels comparable to those on which the units subject to the standards in Part forms of F032, F034, and F035, EPA has treatment standards are based, and EPA 264 subpart O or Part 266 subpart H, or determined that treatment levels can be believes the same level of performance from interim status incinerators which achieved by lime addition followed by is achievable for wood preservers. (See have made a specific demonstration that sedimentation and filtration for arsenic, the wood preserving background they operate in a manner equivalent to and by chemical precipitation followed document and the BDAT response to a Part 264 or Part 266 combustion unit. by sedimentation for chromium. (Of comments document for additional EPA also is amending the treatment course, since no method of treatment is discussion on EPA’s rationale and data standard previously established for required to be used under the review.) F024 wastes. EPA is adopting the promulgated treatment standards, any Another commenter asked EPA to alternative compliance standard for type of treatment other than withdraw its proposal for the regulation F032 as the standard for F024. The impermissible dilution may be used to of D/F constituents in F032 practical effect of this change will be to achieve these concentration levels.) wastewaters. The commenter believes limit somewhat the type of facilities that that the regulation of PCP and can combust F024. 2. F032 Wastewaters polynuclear aromatic hydrocarbons B. Determination of BDAT Some commenters felt that the limits (PAH) can ensure the reduction of D/F proposed for D/F in F032 wastewaters, in F032 wastewaters. The commenter 1. General namely the existing UTS limits, were also submitted data with regard to EPA has determined that combustion not achievable. Commenters felt that concentrations of D/F, PCP, and PAH (CMBST) represents BDAT for organics EPA’s own wastewater characterization analytes in two effluent F032 in nonwastewater forms of F032 and data showed that the D/F concentrations wastewaters treated by activated carbon F034 (i.e., the treatment standards are in untreated F032 wastewaters were adsorption. These data appear to based on the performance of combustion orders of magnitude higher than the support the commenter’s statement that technology). For organics in wastewater untreated concentrations in the monitoring of PCP and PAHs may serve forms of F032 and F034, EPA has wastewater samples used in establishing as a surrogate candidate for the determined that a single treatment the UTS limits. They also emphasized reduction of D/F levels in these technology or a normal wastewater that biological treatment normally particular effluent wastewaters. treatment train can meet the treatment removes D/F constituents in the order of However, EPA lacks data to determine standards promulgated today. As 78% of influent pollutants and thus, if the alternative surrogate constituents Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26001 proposed for regulation can also serve as UTS limits that are based on the leaves open the real possibility of these surrogates for monitoring the treatment performance of stabilization wastes being refused treatment, an of D/F in wastewater treatment effluents technologies. environmentally worse result. EPA also resulting from other treatment None of these commenters have notes that its experience with F024 technology trains that may achieve the submitted treatment performance data waste treatment, for which there is a proposed UTS, and has therefore chosen supporting their inability to meet the parallel treatment regime, has been not to adopt this suggestion. proposed UTS limits, nor have they satisfactory: these wastes are effectively documented that their waste will treated by combustion technology, and 3. F034 Wastes behave differently when treated by sufficient treatment capacity has Some commenters objected to EPA’s stabilization or vitrification practices. remained available once EPA proposed regulation of arsenic and The treatment technology supporting promulgated the alternative treatment chromium in F034 wastes, but their numerical limits for arsenic in standard which did not require analysis arguments were not persuasive. One nonwastewater forms of F032 is of D/F in treatment residues. argument was that F034 wastes typically vitrification. However, EPA believes 2. Background do not contain arsenic and chromium that arsenic limits can also be achieved and that they should only be regulated via stabilization based on treatment data EPA proposed numerical treatment if chromated copper arsenate (CCA) is supporting the promulgation of the UTS standards for F032 constituents on used at the facility generating F034 at limit for arsenic (see Final Best August 22, 1995. Several members of concentrations exceeding treatment Demonstrated Available Technology the regulated community expressed standards. EPA’s data supporting the (BDAT) Background Document for concern that EPA’s proposal to regulate listing of F034 wastes in fact show that Universal Standards Volume A: D/F constituents in F032 may result in arsenic and chromium are frequently Universal Standards for Nonwastewater problems finding treatment facilities present in F034. (See Background Forms of Listed Hazardous Wastes). In willing to accept the waste. D/F are very Document Supporting the Final Listing addition, today’s promulgated treatment controversial hazardous waste for Wastes from Wood Preserving levels do not preclude the use of other constituents that often trigger public Processes, November, 1990.) Further, treatment alternatives such as opposition if documented at any EPA determined that these two metal stabilization, as long as such concentrations regardless of the constituents are toxic and that their alternatives do not constitute land estimated risks presented. D/F concentrations in untreated F034 wastes disposal or impermissible dilution. As a monitoring also adds significantly to also supported the listing of these result, EPA is promulgating treatment monitoring costs. See generally, 55 FR at wastes as RCRA hazardous waste F034. limits for arsenic as proposed. 22580–81. Commenters emphasized that (See Background Document Supporting owners and operators of combustion the Final Listing for Wood Preserving C. Alternative Combustion Treatment devices had informed them that their Wastes from Wood Preserving, Standard for Dioxins and Furans in combustion facilities will not accept November, 1990; 55 FR 50458–59, F032 F032 if EPA requires the monitoring of December 6, 1990; and 53 FR 53299– 1. Today’s Action D/F in combustion residues. Further, 300, Table 13, December 30, 1988.) commenters noted that if combustion is Because treatment of organic This notice establishes combustion conducted properly, analysis of D/F is constituents in F034 may not reduce the (defined at 40 CFR 268.42, Table 1, unnecessary. mobility of these metals, EPA is CMBST) as an alternative compliance The American Wood Preservers promulgating treatment standards that treatment standard option for D/F in Institute (AWPI) and the Penta Task will assure that the mobility of these F032. Combustion is the basis for the D/ Force asked EPA to consider metal constituents is reduced prior to F numerical limits, and properly establishing an alternative treatment disposal, consistent with a core LDR conducted combustion should standard that sets a method of treatment requirement to develop treatment effectively destroy D/F constituents, If as an alternative to the numerical limits standards which ‘‘substantially reduce this method of treatment is used to treat for D/F in F032. the likelihood of migration of hazardous F032 in certain specified combustion The Penta Task Force submitted data constituents from the waste * * *’’. devices, there is no need to monitor to show that the concentrations of D/F RCRA section 3004(m)(1). Furthermore, compliance with the D/F numerical in F032 are substantially lower than EPA points out that treaters of this limits established for D/F constituents. those EPA reported in the F032 Listing waste can address the monitoring of However, all other organic and metal Background Document. They stated these metal constituents in their permit constituents will require monitoring their belief, along with AWPI, that D/F Waste Analysis Plans (WAP). See 55 FR prior to disposal. This approach is in F032 should be regulated like D/F in at 22669, June 1, 1990; Chemical Waste patterned after EPA’s promulgation of a F024. Management v. EPA, 976 F.2d 2, 31 similar alternative treatment standard 3. Summary of Phase IV NODA for F032 (D.C. Cir. 1992); cert. denied 113 S.Ct. for D/F in F024 (wastes from production 1961 (1993). of chlorinated aliphatics). See 55 FR EPA examined these new data and 22580–81, June 1, 1990. EPA discussed concerns and proposed in the NODA to 4. F035 Wastes this approach in detail in a Notice of codify combustion (CMBST) as an Other commenters were concerned Data Availability (NODA) that appeared alternative method of treatment for D/F with the achievability of arsenic limits in the Federal Register on May 10, 1996 in F032. EPA also requested comments in wastewater and nonwastewater forms (61 FR 21418). on potential regulatory controls on of F035. One commenter was concerned In general, EPA is providing a method combustion devices to assure that D/F that EPA was mandating the use of of treatment as an alternative to actual destruction is conducted only in well- vitrification as opposed to setting a D/F measurement that will be equally designed and well-operated combustion numerical limit. Other commenters felt protective, and will assure availability devices. EPA proposed three regulatory that vitrification is an inappropriate of effective treatment for these wastes. suboptions for implementing a CMBST technology for setting arsenic treatment The alternative, namely not providing standard. One suboption was to merely limits and that EPA should set, instead, the alternative treatment standard, apply the existing F024 alternative 26002 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations combustion treatment standard to F032 agrees with the commenters that interim furnaces, the interim status standards with applicable regulatory controls in status boilers and industrial furnaces for hazardous waste incinerators do not Part 264, 265, or 266. The second operated under Part 266 should qualify contain controls on good combustion suboption was to revise the alternative for the proposed alternative CMBST (i.e., CO or THC controls), a DRE D/F standard for F024, and establish for compliance standard as well. These requirement, or explicit standards for D/ F024 and F032, a CMBST standard devices are subject to interim status F. EPA is concerned, therefore, that the alternative, that would limit the combustion controls which limit carbon combustion of F032 and F024 in Part combustion of F032 and F024 to RCRA monoxide (CO) or total hydrocarbon 265 incinerators may not consistently permitted or interim status combustion levels (THC) in combustion gases, thus achieve the treatment objectives sought devices which have demonstrated the ensuring that the devices operate under by the alternative combustion ability to achieve a dioxin toxicity good combustion conditions. The compliance treatment standard. As a equivalent (TEQ) air emission discharge standards also can include explicit result, EPA cannot support the limit of 0.2 ng/dscm. The third control of D/F under specified promulgation of suboption 1 for suboption was to revise the F024 conditions (see section 266.103 (c)(1)). incinerators operated under Part 265. standard, and to establish an alternative Although these controls do not provide (See also 265.352(a), forbidding standard for F024 and F032 that limits the explicit demonstration of combustion of the acutely hazardous D/ the combustion of F024 and F032 to destruction of toxic organics in the F-containing wastes in interim status RCRA permitted combustion devices. waste feed that the DRE (Destruction hazardous waste incinerators.) (In all of these options, and in today’s and Removal Efficiency) for permitted Although EPA’s finding here is that final rule, the restriction on types of combustion devices standard provides, the interim status incinerator standards devices applies only to facilities opting the Agency believes that they establish may be inadequate for qualifying for a to comply with the D/F standard good combustion, and may, in some CMBST treatment standard for D/F, EPA without analyzing treatment residues.) cases, provide even better assurance of believes that on an ad-hoc basis, a site- operations under good combustion specific determination can be made 4. Review of Major Comments on Phase conditions than the bare DRE standard. pursuant to 40 CFR Part 268.42(b) to IV NODA and Promulgation of A Accordingly, the Agency believes that extend the availability of a ‘‘CMBST’’ Modified Version of Suboption Three it is not necessary to restrict burning to treatment standard to an individual The majority of commenters RCRA-permitted devices because boilers interim status incinerator. The supported the proposed compliance and industrial furnaces operating under availability of a CMBST treatment alternative setting CMBST as a method interim status are required to operate standard to a facility combusting F032 of treatment for D/F. In addition, the under good combustion conditions or F024 in a Part 265 incinerator will majority of commenters preferred which should ensure destruction of require the accomplishment of a two- suboption 1 (i.e., allow combustion in a toxic organic compounds in the waste step process. One step is for the facility RCRA interim status or permitted feed. to demonstrate to a regional or state device) to ensure that combustion is The Agency acknowledges that official that the combustion of D/F in conducted in well-designed and well- ensuring that the combustion device F032 (or F024, if applicable) at the operated devices. A significant number operates under good combustion facility uses controls to assure good of commenters also were concerned that conditions (i.e., either under a DRE combustion and control of D/F. These adoption of suboption 3 may have standard or by limiting carbon would typically be the CO/THC excluded the use of well-designed and monoxide (CO) and total hydrocarbon standards and D/F standards found in well-operated interim status combustion levels (THC) in stack gas) may not Part 266. The second step is that the devices operated under the Part 266 necessarily ensure control of D/F facility solicits from EPA’s Headquarters rules applicable to boilers and industrial emissions. This is because D/F can be an equivalent treatment determination furnaces. formed in the post-combustion zone of under Part 268.42(b). (EPA believes both The majority of commenters argued the device—in the duct work and steps are necessary because normally that it would be premature for the particulate matter control devices that some type of direct interaction with the Agency to adopt suboption 2 whereby a operate at temperatures above 350°F. Region or State with the facility is D/F emission limit of 0.2 ng/dscm TEQ Boilers and industrial furnaces needed to evaluate performance of the would be established given that the operating under these conditions must combustion process, and the treatment Agency has only recently proposed such comply with specific D/F emission equivalency administrative process an emission standard for hazardous standards. (See 40 CFR 266.103(c)(1) remains an EPA Headquarters task.) waste burning incinerators, cement, and and 266.104(e).) In addition, under existing Omnibus permit authority, 5. Revised Treatment Standard for F024 lightweight aggregate kilns under the Wastes maximum achievable control permit writers have the authority, if the technology (MACT) rule. See 61 FR permitting authority demonstrates that The current F024 treatment standard 17358 (April 19, 1996).1 The Agency it is necessary to protect human health requires CMBST as a method of believes that this concern is warranted and the environment (RCRA section treatment, which, under the definition given that EPA has received substantial 3005(c)(3)), to impose operating at 268.42, Table 1, allows combustion in comments on whether that standard is requirements more stringent than those Part 265 Subpart O interim status appropriate for those devices and has authorized by regulations. This incinerator (along with other types of not made a final decision as to an authority could be invoked (assuming combustion devices). Today’s rule appropriate standard. the requisite showing is made) to justify makes the treatment standard for F024 The Agency believes that suboption 3 controls on permitted hazardous waste identical to today’s alternative (i.e., allow combustion of FO24 and incinerators. combustion standard for F032. The FO32 only in RCRA-permitted devices), EPA currently lacks similar Omnibus existing standard allows combustion in as proposed, was too restrictive. EPA permit authorities for incinerators permitted units or interim status regulated under Part 265, Subpart O. In incinerators (Part 265 subpart O). The 1 Also available via Internet: ‘‘http:// addition, unlike the standards for new standard would require that an www.epa.gov/epaoswer/cmbust.htm’’. interim status boilers and industrial interim status incinerator receive a Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26003 determination of equivalent treatment caused by past land disposal of these two or more treatment technologies to under 268.42(b), as described for the wastes (see, e.g. the background achieve the limits, as EPA’s Technical F032 standard above. As described documents to the Listing rules for F032, Guidance documents point out. This is, above, this restricts the burning to F034, and F035) warrant treatment however, a site-specific determination, facilities with combustion controls that which effectively destroys, removes, or and the ability of a treatment train to ensure proper destruction of D/F. immobilizes hazardous constituents to meet or fail UTS or cleanup limits can the promulgated levels. only be assessed through the findings of D. Soil and Debris Contaminated With a feasibility study. Wood Preserving Wastes 4. UTS Limits and the Performance of Remedial Treatment Technologies IV. Improvements to the Land Disposal 1. Summary of Comments The third issue raised by the Restrictions Program Several commenters asked EPA to commenters is whether or not the UTS revise its policy that media A. Significant Reduction in LDR limits promulgated for organics can be Paperwork contaminated with hazardous listed achieved by all remediation wastes is subject to the treatment technologies currently being used at Summary: The LDR regulations standard for the contaminated waste, wood preserving facilities. The UTS heretofore required hazardous waste and to set instead risk-based treatment limits promulgated for organics and D/ handlers to include LDR notifications levels. They asked EPA to delay the F regulated in nonwastewater forms of with each shipment of waste sent to applicability of the Phase IV final rule wood preserving wastes are based on treaters or disposers. Today EPA is until the Hazardous Waste Identification the performance of (and are routinely amending the rule to require only a one- Rule for contaminated hazardous media achievable by) combustion technologies. time notification, rather than with each is promulgated in order to lessen EPA does not have to set treatment shipment of hazardous waste. The one- potential disruptions to ongoing standards that are achievable by all, or time notification would apply to remediation activities. In addition, other even several, treatment technologies. shipments of all restricted hazardous commenters argued that the proposed The treatment limits promulgated for D/ wastes, and so would include lab packs. treatment standards for organics and D/ F constituents in nonwastewater forms No new notification would be required F were unachievable by remediation of F032 are based on the combustion of unless there were a change in the waste, technologies. solids, liquids, and soils contaminated process, or receiving facility. This amendment will save approximately 2. LDR Requirements Do Apply to with D/F constituents, namely acutely 1,630,000 hours spent by the private Contaminated Media hazardous wastes F020, F022, F023, F026, and F027 (see 51 FR 1733, January sector on paperwork. EPA is also Commenters stated that hazardous 14, 1986). EPA’s existing technical promulgating other paperwork media should be exempt from LDR guidance documents describing reduction actions, as proposed. requirements until EPA finalizes HWIR technological options for treating 1. Background for contaminated media. This issue was contaminants found at wood preserving settled in the Phase II final rule (50 FR facilities often recommend incineration In January 1995, EPA announced a at 47986–7, September 19, 1994) if not as a viable technology for cleaning up goal to reduce the reporting and record before, and it is not being reopened in ‘‘hot spots’’ of organics and D/F keeping burden imposed by its this final rule. contaminants. These guidance regulations by 25 percent by June 30, 1996. This announcement initiated 3. Technology-versus Risk-based documents also emphasize that implementation of one of the Treatment Limits incineration is usually able to treat below cleanup levels and LDR treatment reinvention projects set forth in the The principal objection to the limits. (See Presumptive Remedies for President’s March 16, 1995, report, proposed treatment standards was that Soils, Sediments, and Sludges at Wood ‘‘Reinventing Environmental the values do not reflect risk, that is, the Treater Sites, Directive 9200.5–162, Regulations.’’ The baseline from which standards are based on performance of NTIS #PB–95–963410; Technology the 25 percent reduction was to be a treatment technology rather than on Selection Guide for Wood Treater Sites, calculated was the reporting and record assessment of risks to the human health EPA 540–F–93–020 or Pub.9360.0– keeping burden hours as described in and the environment posed by the 46FS; and Contaminants and Remedial the Information Collection Request (ICR) waste. The question of technology- Options at Wood Preserving Sites, EPA/ documentation as of January 1, 1995. versus risk-based treatment standards 600/R–92/182.) 2. Discussion of Specific Paperwork has been raised throughout the Available data on the performance of development of the land disposal noncombustion technologies such as Changes restrictions program. The Agency is not thermal desorption and chemical The LDR program imposes a reopening this issue in this final rule. dehalogenation also do not necessarily significant reporting and record keeping See, instead discussion in the Phase II support the commenters’ claim that burden that is being decreased final rule (59 FR at 47986, September other remedial technologies will fail to significantly by changes being made in 19, 1994). EPA does specifically find, meet the treatment limits promulgated today’s rule. It is estimated that the however, that the treatment standards today. Based on the available changes being made today result in a for these contaminated media are not information, EPA believes that chemical reduction of over 1.6 million hours per established below levels at which dehalogenation (for D/F and chlorinated year of paperwork burden. Furthermore, threats to human health and the organic constituents) and thermal these changes are not likely to environment are minimized. In part, desorption (for organics and D/F compromise the protectiveness or this finding turns on the Agency’s constituents) generally can be optimized enforceability of the LDR regulations. present inability to quantify this level. to meet the UTS limits promulgated Most commenters on this issue In addition, for these wastes, the today. (See Wood Preserving supported the proposed paperwork presence of extremely toxic hazardous Background Document and Technical changes. Almost all commenters constituents (arsenic, D/F, PCP), plus Guidance documents cited above.) addressing this issue agreed that the the widespread contamination already Furthermore, it may be necessary to use proposed changes made sense, and that 26004 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations it would be beneficial to the regulated required only when a change in the for this one-time notification and community to reduce the paperwork waste affects the determination of which certification are much the same as those burden. A few commenters expressed treatment standards apply. The Agency discussed above. concern that the reductions in LDR agrees that only when a change in the In § 268.7(a)(5), EPA is removing the paperwork could be an incentive for waste affects the determination of which requirement that generators treating on- mismanagement of hazardous wastes. treatment standards apply must the site in tanks or containers have to The Agency acknowledges that although generator create a new LDR notification. submit waste analysis plans to States the potential for mismanagement is real, The Agency proposed that the one- and Regions. Instead, the plans must inspection and enforcement efforts have time notification requirement would not merely be kept in their on-site files, as been, and will continue to be, a apply to lab packs. Under the LDR proposed. disincentive to facilities to provide false program, a generator of a lab pack can The Agency is changing the record or misleading information about the either meet the treatment standards and retention time period in § 268.7(a)(8) hazardous wastes at their sites. This paperwork requirements for all the from five to three years, in order to disincentive is believed to be far more hazardous wastes included in the lab make LDR requirements consistent with important than the frequency with pack, or meet the streamlined lab pack other RCRA record retention periods. which the regulated community must requirements of § 268.42 and the Under § 268.7(b)(4), the treatment create notification and certifications. paperwork requirements of § 268.7(a)(9) facility is only required to submit a one- The Agency, therefore, is promulgating (old § 268.7(a)(8)). Several commenters time notification and certification to the the paperwork reductions despite this disagreed with the proposed approach, receiving facility, rather than submit concern. stating that while lab packs can be one with each shipment of waste. A Much of the language specifying what highly variable in hazardous waste copy of the notification and certification must be included on LDR notifications content, there are instances where must be kept in the treatment facility’s has been rewritten to include reductions routine and consistent lab packs are files. If the waste, treatment system, or in paperwork burden and to make it shipped by generators on a regular basis. the receiving land disposal facility easier for the regulated community to It was also pointed out that if the lab changes, the treatment facility must understand the requirements to which it pack generator decided to meet the send a new notification and certification must adhere. Rewriting this section has treatment standards of each waste in the to the land disposal facility, and place resulted in the renumbering of the lab pack rather than the § 268.42 a copy of these records in their files. regulatory paragraphs. The new alternative lab pack standards, it would Furthermore, the treatment facility numbering for this section is used in be allowable to produce a one-time notification requirements have been this discussion. Also, the generator notification for each waste the lab pack consolidated into a table at § 268.7(b)(4). paperwork requirements are contained. Therefore, it did not seem Finally, the Agency wishes to clarify consolidated into a table at § 268.7(a)(4). equitable to make a lab pack generator that any records kept in connection with Under the requirements of § 268.7(a), that chose to use the alternative lab pack the LDR program may be stored generators managing restricted standards produce a notification for electronically, eliminating the need to hazardous wastes must determine each shipment, while a lab pack actually maintain paper copies. EPA whether their wastes meet the generator meeting the treatment wants to encourage electronic storage of applicable treatment standards at the standards for each hazardous waste in LDR notifications. However, because of point of generation, or are otherwise the lab pack could produce one-time the complex issues involved in exempt from those standards. notifications for each waste, so long as electronic data interchange (EDI), EPA Generators then must notify, in writing, their waste, process or receiving facility cannot at this time include standards for either the treatment or disposal facility did not change. Therefore, EPA has electronic storage of LDR notifications about their waste. The Agency is decided to change its proposed in this final rule. The Agency may changing the notification requirement approach, and is including generators of develop those standards at a future date. under § 268.7(a)(2) from one requiring a lab packs in the one-time notification Until such general standards for notice accompany each waste shipment provisions of this final rule. allowing electronic storage of to one allowing an one-time notification Furthermore, the lab pack notification information are developed, EPA would that would accompany the first waste requirements of § 268.7(a)(8) are note that it has, on one occasion, shipment and would also be placed in streamlined in today’s rule to include confirmed that the use of an image the generator’s files. If a generator only the requirements of §§ 268.7(a)(2), scanning system developed by Safety repeatedly generates wastes which do 268.7(a)(6), and 268.7(a)(7). This is Kleen Corporation was sufficient to not meet the applicable treatment possible because the alternative meet hazardous waste manifest standards, but the composition of these treatment standard for lab packs recordkeeping requirements (see wastes, or the process generating the specifies a method of treatment rather attachment to the letter to Catherine A. wastes, or the treatment facility than concentration levels that would McCord in the docket). This system was receiving the wastes does not change, have to be monitored after treatment. used to scan, store, and retrieve images then the generator is only required to There is, therefore, no need to know of original hazardous waste manifests submit a one-time notification to the whether the wastes in the lab packs are with handwritten signatures. Although receiving treatment facility and to place wastewaters or nonwastewaters or are the letter confirmed only that Safety a copy in their files. If the waste, hazardous debris (these are the data Kleen’s system met these requirements, process, or the receiving treatment items being deleted from the lab pack the Agency noted that similar systems facility changes, the generator is notification). used by others might also be able to required to send a new notice to the In § 268.7(a)(3), the Agency is meet RCRA requirements. receiving facility, and place a copy of changing the notification requirement so this new notice in their files. One that a generator whose waste meets the B. Clean-up of LDR Requirements in 40 commenter stated that the concept of appropriate treatment standards as CFR 268 what constituted a change in one’s generated is only required to submit a EPA is rewriting portions of the LDR waste was vague and should be clarified one-time notification and certification to regulations to help the regulated so that a new notification would be the receiving facility. The requirements community understand better what they Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26005 are required to do to comply with year’’ case-by-case capacity variance. prohibitions would continue to apply. today’s rule. Clean-up tasks such as Some commenters stated that the With the advent of the requirement to removing extraneous cross references, proposed change would hinder treat for underlying hazardous eliminating unneeded language, necessary treatment capacity from being constituents reasonably expected to be removing unneeded appendices, and brought on-line expeditiously, and that present in characteristic wastes, there other similar actions have been taken to requiring a renewal application for a no longer are any situations where eliminate confusion for the regulated second-year extension allows the California list prohibitions could create community. A noteworthy change is the Agency to evaluate whether the an exclusive treatment standard. elimination of the California List applicant has made a good-faith effort to Consequently, there is no need to retain requirements that were promulgated in develop or locate hazardous waste any reference to California list 1987, because they have been treatment capacity. The Agency is prohibitions in the regulations. superseded by more specific treatment persuaded by the commenter’s concerns standards. In addition, a clarification and is, therefore, not making the 7. Sections 268.34–268.37 has been made at 40 CFR 268.1(e) that proposed change to § 268.5. As has The information about the dates of the de minimis provision applies to always been the case in the LDR waste prohibition provided in characteristic wastes as well as program, case-by-case extension §§ 268.34–268.37 is removed because commercial chemical products and applicants must make a separate the treatment standards for the wastes intermediates. application for a renewal of their case- are all now in effect, eliminating any need to retain the dates. 1. Section 268.1 by-case extension if the initial one-year period is not sufficient to develop 8. References to Sections 268.41–268.43 Section 268.1(e)(4) is clarified so that treatment capacity. the de minimis provision applies to References in Part 268 to LDR minor losses of characteristic wastes as 4. Section 268.7 treatment standards that have well as to minor releases of commercial In section 268.7(c)(2), the sentence, previously been found in tables in chemical products and intermediates. ‘‘* * * test method described in §§ 268.41, 268.42, and 268.43, are EPA actually made this clarification appendix I of this part or using any changed to refer to the consolidated already in the Phase III final rule (see 61 methods required by generators under table in 268.40. FR at 15597), but inadvertently omitted § 268.32 of this part * * *’’ is changed 9. Appendices it from the Phase III withdrawal notice to read, ‘‘* * * test method described in (see 61 FR 15662). The withdrawal ‘Test Methods for Evaluating Solid Appendix I is removed and reserved notice should have removed paragraph Waste, Physical/Chemical Methods,’ because the TCLP test method reference 268.1(e)(4)(ii) only, because it dealt with EPA Publication SW–846.’’ Specific to SW–846 will be incorporated into the the special de minimis provisions for reference to EPA Publication SW–846 text of the regulatory language. characteristic wastes being injected into for the Toxicity Characteristic Leaching Appendix II to Part 268 is also Class I injection wells (and thus, subject Procedure gives the regulated removed and reserved because it to the Land Disposal Program Flexibility community a more direct reference for incorrectly refers to treatment standards Act of 1996, the impetus for the details of the test method. in §§ 268.41, 268.42, and 268.43 (they withdrawal notice. See 61 FR 15661). A are now in § 268.40); furthermore, there typographical error made it appear that 5. Section 268.9 is no longer a need for a reference to the the entire paragraph (e) was being In § 268.9, paragraph (a) has been solvent treatment standards. withdrawn, which was not the intention clarified to better describe how wastes Appendix III is removed and reserved of the Agency. Therefore, today’s should be identified for purposes of the because the California List treatment regulatory language contains the text of LDR program when they are both listed standards have been superseded by 268.1(e) in its entirety, and clarifies that and characteristic hazardous wastes. Universal Treatment Standards plus the the de minimis provision applies to In § 268.9(d)(1)(ii), the language has requirement to treat underlying characteristic wastes. been edited to clarify that if all hazardous constituents in characteristic underlying hazardous constituents hazardous wastes. Thus, there is no 2. Section 268.4 reasonably expected to be present in a need for a listing of halogenated organic Section 268.4(a)(2)(iv) is changed to characteristic waste will be monitored, compounds under the California List. read, ‘‘Recordkeeping. The sampling, then the generator need not list any of Appendix VI is amended to clarify analysis, and recordkeeping provisions them on the LDR notification. If, on the that land disposed characteristic wastes of §§ 264.13 and 265.13 apply.’’ other hand, a subset of all underlying that also contain underlying hazardous Referencing the §§ 264.13 and 265.13 hazardous constituents will be constituents must be treated not only by requirements in § 268.4 clarifies that monitored, they must be included on a ‘‘deactivating’’ technology to remove there are no additional recordkeeping the LDR notification. the characteristic, but also treated to requirements at § 268.4; the general achieve the Universal Treatment 6. References to Section 268.32 facility recordkeeping requirements Standard for underlying hazardous apply, thus the LDR program does not References to § 268.32 and RCRA constituents. add additional burden. 3004(d), California List wastes, are Appendix VII has been updated to removed, because the treatment include all the effective dates of all 3. Section 268.5 standards for the these wastes have been surface disposed hazardous wastes for The Agency proposed to amend superseded by subsequent treatment which there are treatment standards. § 268.5(e) so that an applicant could standards. See generally 55 FR at 22675 Likewise, Appendix VIII has been apply for and be granted additional time (June 1, 1990) noting the general updated. (up to one year) when first applying for principle that California list Appendix X is removed and reserved a case-by-case extension of the effective prohibitions no longer apply once a because it summarized paperwork date. Commenters argued, however, that more specific treatment standard requirements that are clarified in tables it would be inappropriate for EPA to applies, and noting the handful of in today’s rule at sections 268.7(a) and grant what would be, in effect, a ‘‘two- situations where California list (b). 26006 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

The Agency is committed to possibly redefining the point at which rinse water during each cleaning. The identifying new ways the LDR program LDR prohibitions attach. EPA presented initial rinsate stream frequently is can be simplified, and will continue to three options: (1) when there are similar characteristically hazardous, exhibiting seek additional opportunities for such wastewater streams generated by similar the TC for lead and chromium plus the streamlining efforts in the future. processes; (2) when there are waste characteristic of corrosivity. streams from a single process; and (3) at The rinsate from this process is C. Clarifications of Point of Generation a point of aggregation called ‘‘battery combined in a tank (or potentially, Summary: EPA is identifying the limits.’’ 60 FR 11715–717. several tanks), usually temporary tanks point of generation of wastes from boiler EPA considered these options because brought on-site for the cleaning process, cleanout and for certain ignitable wastes of the potential reach of the Chemical and then either discharged to surface treated in tanks. The significance of this Waste Management opinion on impoundments prior to NPDES action is to define the point at which a generally successful wastewater discharge (which commingled wastes determination is made as to whether or management operations carried out would normally be exempt from RCRA not the LDR prohibitions attach to the pursuant to the Clean Water Act (i.e. Subtitle C by virtue of the Bevill wastes generated from these activities. treatment of aggregated wastewaters, Amendment) or directly fed to the In some cases, the broader question of some of which at one time exhibited a boilers (a practice typically raising no whether a hazardous waste is even hazardous waste characteristic, issues of LDR applicability since no generated also can be presented. A pursuant to the National Pollutant land disposal is involved). The issue in waste which is not identified or listed Discharge Elimination System question is whether waste is considered as hazardous at the point LDR regulations for direct dischargers and generated after each rinse (acid and prohibitions would attach, the so-called pretreatment regulations for indirect water) or at the end of the cleaning of ‘‘point of generation’’ is not prohibited dischargers) and the Safe Drinking the boiler when the rinsates have been from land disposal. Conversely, if a Water Act (injection of decharacterized combined; in other words, whether a waste is hazardous (i.e. identified or wastewaters into Class I non-hazardous determination is made for each rinse or listed) at that point, LDR prohibitions injection wells under the Underground for combined rinses. If the latter, then typically do attach notwithstanding that Injection Control program). However, on the rinsate would be hazardous waste the waste may no longer be ‘‘hazardous’’ March 26, 1996, President Clinton (and as one consequence, potentially at the point it is land disposed. EPA is signed into law the Land Disposal prohibited from land disposal) only if not finalizing options discussed in the Program Flexibility Act of 1996. This the combined rinsates exhibit a Phase III LDR rule (60 FR 11715, March Act provided, among other things, that characteristic. Note that this is not 2, 1995) which discussed more far- decharacterized wastes managed in the strictly an LDR issue but presents the reaching alternatives for defining the types of wastewater management issue of whether a unit is regulated, in point at which LDR prohibitions can systems described above are no longer this case the tank that receives the attach, but is issuing interpretations prohibited from land disposal so long as rinsate. applicable to several discrete fact they are not hazardous wastes at the The Agency is today clarifying that, situations involving questions point they are land disposed. See specific to power plant boiler cleanout implicating this issue. generally 61 FR 61660 (April 8, 1996). (and potentially, to other sporadic cleaning activities involving multiple 1. General Discussion As a result, EPA no longer believes there is any need to fundamentally reexamine rinses), generation is at the completion Since November 1986, EPA has the issue of where LDR prohibitions of the entire cleanout process. EPA required determinations as to whether attach, and is not acting on these parts believes that the mass loading of LDR prohibitions attach to be made at of the Phase III proposal. hazardous constituents from the process the point when hazardous wastes are However, the Agency has identified to the environment will not be affected generated (51 FR 40620). This issue took specific issues which may be considered by this determination, since a given on critical import in the so-called Third ‘‘point of generation’’ issues, and which amount of cleanout fluid and water is Third rule when EPA addressed the were not addressed by the Land needed to complete the task in every issue of treatment standards for wastes Disposal Program Flexibility Act of case. Cf. 60 FR at 11716 noting that in that exhibit a hazardous waste 1996. In today’s rule, EPA is addressing such situations the underlying policy of characteristic, and whether LDR these specific issues. In each case the prohibition on dilution is not prohibitions could apply to wastes that discussed below, the Agency believes implicated. The agency views the initially exhibit a characteristic but no that the existing regulatory language is cleanout of the boilers as one process longer do so (i.e. are ‘‘non-hazardous’’ adequate, but clarification is necessary and therefore does not consider the in that they are no longer identified or to prevent inappropriate interpretations. mixing of acid rinse and water rinse as listed as hazardous) at the point they are In making these interpretations, EPA is impermissible dilution but as a single land disposed. By adhering to the in some cases clarifying not only LDR waste rinsate resulting from the single principle that LDR prohibitions attach at applicability, but also generally where cleanout process. This waste is subject the point of waste generation, EPA the determination as to whether a waste to regulation if it exhibits a maintained that these de-characterized is hazardous must be made. characteristic, and subject to LDR wastes must still be treated to satisfy prohibitions if it exhibits a EPA-established treatment standards, 2. Boiler Cleanout characteristic and is going to be land notwithstanding that the wastes are no Power plant boilers are generally disposed. longer identified as hazardous. 55 FR at taken out of service and cleaned out Today’s clarification of the point of 22651–52. The D.C. Circuit sustained once every 3 years (an average of one generation for boiler cleanout is limited this interpretation as permissible in unit every year per facility). The to the situation in which the entire Chemical Waste Management v. EPA, cleaning process generally consists of an quantity of boiler cleanout rinses are 976 F.2d 2, 13–14 (D.C. Cir. 1992) cert. initial rinse of an acid cleaning solution contained in a single container so that denied 113 S. Ct. 1961 (1993). and one or two rinses of water, hazardous waste and LDR In the Phase III LDR rule, EPA generating an average of several determinations can be made based upon solicited comment on the issue of hundred thousand gallons of acid wash/ the commingling of all the rinses Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26007 together. If, for example, a temporary nonwastewaters are inadvertently exhibit a characteristic, remains in tank is brought on-site but does not have placed in wastewater treatment systems effect. See 61 FR 15662. sufficient capacity to handle the in small quantities, for legitimate D. POLYM Method of Treatment for estimated several hundred thousand wastewater treatment, thereupon High-TOC (Total Organic Carbon) gallons of rinsate at once, the waste will becoming wastewaters (as defined in Ignitable D001 Wastes likely have to be managed in separate 268.2(f) of the rules), and subsequently loads. In such instances, the generator generating a sludge. See 58 FR 29871, Summary: Today’s rule establishes an will still be required to make hazardous May 24, 1993 (‘‘In the Third Third final alternative treatment standard of waste and LDR determinations for each rule, EPA stated that for characteristic POLYM (polymerization) for high-TOC separate load. wastes, each change of treatability group D001 wastes originally intended as In adopting today’s interpretation, in a treatment train marked a new point chemical components in the commercial EPA emphasizes that this type of of generation for determining if a manufacture of plastics. In the cleaning is a batch operation occurring characteristic waste was prohibited from polymerization treatment process at widely-spaced intervals and land disposal’’). Consequently, because (POLYM), the wastes are reacted to involving temporary storage units (i.e. the sludge generated from the tank- produce a chemically stable plastic in units that are removed from the based wastewater treatment system is a the same manner that commercial premises after receiving the rinsate). different treatability group from the plastics are formed. Thus, the interpretation does not ever wastewater from which it is generated, Discussion: The National Marine apply where a surface impoundment it would be considered to be a newly Manufacturer’s Association contacted receives rinsate (see, e.g., Chemical generated waste that should be EPA with concerns that the May 1993 Waste Management v. EPA, 976 F. 2d at evaluated at its point of generation to Interim Final Rule prohibited the 20 n. 4 (placement of any amount of determine if it is hazardous, and if so, practice of polymerizing excess characteristic waste in a surface to then determine the appropriate LDR polyester/styrene waste left over from impoundment makes the unit a standard. (Also, please note that the manufacture of modular shower regulated unit even if diluted to non- elsewhere in today’s notice the Agency stalls and recreational boats, among characteristic levels afterwards)). The clarifies that the LDR de minimis other things. EPA proposed to add interpretation also does not apply where exemption applies to small, inadvertent, polymerization (POLYM) to the set of there are permanent storage units releases of characteristic waste into required methods of treatment involved. EPA also notes the evident wastewater treatment systems. As a designated as BDAT for high-TOC point that if commingled rinses still practical matter, the de minimis ignitable (D001) wastes resulting from exhibit a hazardous waste characteristic, exemption probably makes the question commercial polymerization processes. the receiving tank is a regulated unit. moot, because larger releases would not (60 FR 43679, August 22, 1995.) In these Persons owning or operating such tanks typically occur since they would likely manufacturing processes, polyester/ have the same obligations as other interfere with wastewater treatment styrene reacts with methyl ethyl ketone generators to determine whether the systems operation.) (MEK) peroxide in a mold to form waste exhibits a characteristic. See fiberglass. The ignitable waste 262.11. 4. Tank Rinsate polyester/styrene and MEK peroxide are An issue arises when high-TOC the wastes of concern. 3. Sludge From High TOC (Total ignitable wastes are stored in tanks, and Small quantities of polyester/styrene Organic Carbon) D001 Treated in Tank some residue from these wastes remains monomers and MEK peroxide wastes Based Systems in the tanks after the tanks are emptied can be reacted together to create Many generators introduce waste into and rinsed. The initial high-TOC fiberglass scraps. The scraps are inert tank-based wastewater treatment ignitable waste is considered a and do not exhibit the hazardous waste systems where the resulting effluent is nonwastewater with the treatment characteristics of toxicity, ignitability, discharged to a POTW or to navigable standard of CMBST (combustion) or corrosivity, or reactivity. It is this waters, and the resulting wastewater RORG (recovery of organics). However, practice that is referred to as treatment sludge is land disposed. At it is EPA’s view that the rinsate from an polymerization for the purposes of this times, the waste that is placed in the empty tank (see 47 FR 1250, January 11, rule. The waste polyester/styrene tank-based system exhibits the ignitable 1982, for guidance on empty waste monomers and MEK peroxide are characteristic. If the organic content of tanks) is a newly generated wastewater currently regulated as high-TOC the wastewater is sufficiently high, the and the high-TOC ignitable waste ignitable wastes (40 CFR 268.9) for liquid waste—when first released—can treatment standards do not attach. The which the current standard is treatment meet the definition of nonwastewater rinsate must be evaluated at its point of by CMBST (combustion) or by RORGS found in 40 CFR Part 268.2(d). generation, i.e., after the complete (recovery of organics) before land The fact situation of concern can rinsing of the empty tank, and, if it disposal. Neither CMBST nor RORGS involve releases of high TOC ignitable exhibits a characteristic (or for some allows for polymerization (as an wastes (which have a designated reason is listed independently) it is exclusive treatment method) of high- method of treatment), raising a question subject to treatment standards for that TOC ignitable wastes. The Agency of whether that treatment standard for characteristic (or listed waste), rather believes that the practice of high TOC waste still applies to sludge than to the form of the waste from polymerizing high-TOC ignitable waste generated from the wastewater which it originated. This determination polymers and monomers which are treatment, even if the sludge is not itself also applies to tanks that are used to chemical components in the high TOC ignitable waste. collect wastewaters that are listed solely manufacture of plastics to a It is EPA’s view that the sludge in this because they exhibit a characteristic noncharacteristic inert mass adequately situation should be viewed as a new (i.e., ignitability, corrosivity, or minimizes threats posed by disposal of treatability group. Put another way, the reactivity). EPA has stated that the the waste. change of treatability group principle existing rule, which provides that the Today EPA is establishing POLYM as applies to situations where liquid dilution prohibition does not apply to an alternative to CMBST or RORGS only wastes which are technically wastewaters listed solely because they for those high-TOC D001 wastes 26008 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations originally intended as chemical Maxi- Further, under 268.42(b), persons may components in the commercial mum % petition the Agency for a determination manufacture of plastics. POLYM Appendix VIII constituents in of equivalent treatment for their specific uncured requires the addition of the same resin polymerization process, if it is not polymerizing component or catalyst to included in today’s rule. the deactivated high-TOC D001 phthalic anhydride ...... (1) Finally, in response to inquiries, EPA monomer stream intended for land notes that POLYM treatment (or for that 1 disposal. POLYM is defined as Trace. matter, most types of treatment) can ‘‘formation of complex high-molecular Of the constituents listed in the table occur at the site of generation without weight solids through polymerization of above, methyl methacrylate (a having to obtain a RCRA permit, monomers with high-TOC D001 monomer) and methyl ethyl ketone provided treatment occurs in tanks, nonwastewaters which are chemical peroxide (a catalyst), are chemically containers or containment buildings and components in the manufacture of converted by the polymerization process these units comply with the substantive plastics.’’ and form part of the solid polymer. standards set out in 40 CFR 262.34 EPA acknowledges that POLYM is not EPA has decided to promulgate (standards for so-called 90-day generator as effective at destroying all of the POLYM as a treatment standard rather tanks, containers, and containment hazardous constituents of the materials than dealing with this issue on an buildings). See 51 FR at 10168 (March as CMBST, the specified treatment individual basis via Determination of 24, 1986). EPA notes further that these standard for high-TOC D001 Equivalent Treatment (DET) petitions. standards for 90-day units may include nonwastewaters. However, as defined, As defined, equivalency need not compliance with the RCRA air emission POLYM is the same process that is used remove every single molecule of standards set out in subparts AA, BB, in the actual manufacturing of plastic constituents as the comparison and CC of part 265 (assuming the waste products such as water pipe and technology to be considered equivalent. satisfies the applicability criteria set out watercraft. To allow materials and a A similar issue involving high-TOC in these rules). See generally, 61 FR at process to be used to construct water ignitable waste was addressed in a 59934–35 (Nov. 25, 1996) and 59 FR pipe and boat hulls, but prohibit the Determination of Equivalent Treatment 62896 (Dec. 6, 1994). In addition, same process to be used to treat excess (see DET IBM Essex Junction, VT). In POLYM treatment occurring in units materials from those same processes that determination, the high-TOC waste requiring a permit could be subject to does not make sense. In addition, the was being treated to a slightly lower the corresponding standards for air treatment of these chemical components level than combustion. EPA did so, in emissions found in Part 264 subparts using POLYM does convert an ignitable part, because the treatment process was AA, BB and CC. waste into a non-ignitable solid prior to achieving very substantial destruction of E. Decision To Retain Current disposal. Treatment occurs as the hazardous constituents, and otherwise Treatment Standard for Multi-Source organic materials react to form a hard, assuring that the special concerns Leachate (Waste Code F039) inert material. Data submitted by the regarding treatment of high-TOC Composites Institute (see CI Memo 20 ignitable wastes, such as interference In the Phase IV proposed rule, EPA DEC 96) show that of the Appendix VIII with wastewater treatment systems, suggested that with the promulgation of constituents that are present in scrap were not present. Similarly, in this the Universal Treatment Standards uncured polyester resins, greater than instance, POLYM will destroy most of (UTS), there was no longer a need for 50% of the constituents are chemically the hazardous constituents present and the separate list of constituents for converted by the polymerization process substantially immobilize those that multisource leachate (F039) in the to form a part of the solid polymer. The remain. In addition, there is no Treatment Standards for Hazardous remaining constituents are physically possibility that this treatment method Wastes table at 40 CFR 268.40. EPA bound in the solid polymer matrix. The will interfere with wastewater proposed that F039 would be treated to Agency believes that the low quantities treatment. Finally, EPA notes that the meet all the UTS for the constituents at of Appendix VIII constituents are POLYM process appears to be as § 268.48, with the exceptions of sufficiently bound in the polymer efficient as the other type of allowable fluoride, vanadium, and zinc, which are matrix so as to minimize the threats treatment method for high-TOC not underlying hazardous constituents. posed by disposal of the ignitable wastes, namely RORGS Several commenters, however, noncharacteristic inert mass of scrap (recovery of organics). Thus, EPA pointed out that such an action would material. Below is a table showing the believes that the POLYM process be more than a simplification of existing Appendix VIII constituents typically evaluated here, along with CMBST and treatment standards. Rather, it would found in scrap uncured polyester resins: REORG, satisfies the section 3004(m) add several constituents to those for requirement that threats be minimized which EPA has set treatment standards Maxi- by treatment, and also could satisfy the in F039, without notice and an mum % equivalency standard in 268.42(b). opportunity for comment. The Agency Appendix VIII constituents in A number of commenters have has reexamined the F039 list of uncured resin solicited EPA to expand the definition constituents and agrees with of POLYM to include other types of commenters that changing F039 to cross Methyl methacrylate ...... 10.0 polymerization processes. EPA reference the UTS constituents at Antimony trioxide ...... 3.0 appreciates the suggestions of the § 268.48 would add regulated Dibutyl phthalate ...... 1.8 commenters. However, the Agency does constituents to F039. This was not the Butyl benzyl phthalate ...... 1.05 not currently have enough data to intent of the proposed change. Dimethyl phthalate ...... 1.05 evaluate the effects of expanding the Therefore, the Agency is not Methyl ethyl ketone peroxide ...... 1.05 Dioctyl phthalate ...... 0.75 definition. The Agency will consider the promulgating any change to F039 in this Methyl ethyl ketone ...... 0.09 idea of expanding the definition of final rule. The treatment standard levels P-benzoquinone ...... 0.05 POLYM and solicits any data that for the hazardous constituents in F039 Maleic anhydride ...... (1) commenters may have regarding are identical to the UTS for those phthalic acid esters NOS ...... (1) additional methods of polymerization. constituents, so retaining the current Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26009 treatment standard constituent list for Flexibility Act of 1996, signed by the capacity of these treatments. See the F039 does not decrease environmental President on March 26, 1996, provides Background Document for further protection in comparison with changing that the wastes in question are no longer information.) the standard. prohibited from land disposal once 1. Thermal Treatment rendered nonhazardous. Because they V. Status of Proposed Provisions on are decharacterized before they enter the EPA estimates that there are less than Leaks, Sludges, and Air Emissions 50,000 tons per year of soil combustion From RCRA-Equivalent Treatment of impoundment, these wastes are no longer prohibited wastes under RCRA. capacity, approximately 144,000 tons Decharacterized Wastewaters in Clean per year of commercial sludge/solid Water Act Surface Impoundments VII. Capacity Determinations for Wood combustion capacity, and 886,000 tons In the August 22, 1995 Phase IV Preserving Wastes per year of commercial liquid proposal, EPA discussed three options A. Introduction combustion capacity available for Phase for ensuring that underlying hazardous IV Wood Preserving Wastes. This constituents in decharacterized wastes This section summarizes the results of accounts for treatment facilities without were not released to the environment the capacity analysis for the wastes updated permits for the newly listed via leaks, sludges, and air emissions covered by this rule. For background wastes or that likely will not wish to from surface impoundments in systems information on data sources, accept the wastes for other reasons (e.g. regulated by the Clean Water Act or Safe methodology, and details of the capacity dioxin/furan monitoring requirements, Drinking Water Act (60 FR 43655). analysis for each group of wastes low BTU, or other undesirable waste (Decharacterized wastes are wastes covered in this rule, see ‘‘Background characteristics). which initially exhibited a hazardous Document for Capacity Analysis for characteristic of ignitability, corrosivity, Land Disposal Restrictions, Phase IV— 2. Stabilization reactivity, or toxicity when generated Wood Preserving Wastes (Final Rule).’’ EPA estimates that there are but are no longer characteristic). On In general, EPA’s capacity analysis approximately 1.1 million tons of March 16, 1996, the President signed focuses on the amount of waste to be available stabilization capacity, with the Land Disposal Program Flexibility restricted from land disposal that is most of it able to meet the treatment Act of 1996, which provides that the currently managed in land-based units requirements for the newly listed wood wastes in question are no longer and that will require alternative preserving wastes. prohibited from land disposal once treatment as a result of the LDRs. The rendered nonhazardous. As a result, on quantity of wastes that are not managed 3. Wastewater Treatment April 8, 1996, EPA withdrew its in land-based units (e.g., wastewater EPA estimates that there are treatment standards for these wastes (61 managed only in RCRA exempt tanks, approximately 37 to 47 million tons per FR 15660). Today EPA announces that with direct discharge to a Publicly year of available wastewater treatment it will not finalize, at this time, the Owned Treatment Works (POTW)) is capacity. The various treatment provisions for leaks, sludges, and air not included in the quantities requiring technologies that form the basis of this emissions that EPA proposed on August alternative treatment as a result of the capacity are routinely able to meet the 22, 1995 (60 FR 43655–43677). LDRs. Also, wastes that do not require treatment standards of the wood Furthermore, the treatment standards alternative treatment (e.g., those that are preserving wastewaters. for TC metal wastes discussed in the currently treated using an appropriate C. Required Capacity and Comparison proposal accompanying today’s rule do treatment technology) are not included With Available Capacity not apply to TC metal wastes if the in these quantity estimates. characteristic is removed and the wastes EPA’s decisions on whether to grant EPA estimates that very small are subsequently treated in a unit whose a national capacity variance are based quantities of wood preserving discharge is regulated by the Clean on the availability of alternative wastewater (approximately 440 tons of Water Act or, for underground injection treatment or recovery technologies. organic wastewater and 13,000 tons of wells, the Safe Drinking Water Act. Consequently, the methodology focuses inorganic wastewater) will require However, the Land Disposal on deriving estimates of the quantities alternative treatment capacity in order Flexibility Act does mandate EPA to of waste that will require either to comply with the LDRs. EPA estimates undertake a study to determine any commercial treatment or the that less than 10,000 tons of potential risks posed by cross-media construction of new on-site treatment as nonwastewaters (8,700 tons of organic transfer of hazardous constituents from a result of the LDRs. EPA attempts to nonwastewaters and 1,300 tons of these surface impoundments. The subtract from the required capacity inorganic nonwastewaters) will require findings of this study, begun by the estimates the quantities of waste that alternative treatment as a result of the Agency in April, 1996, may result in will be treated adequately either on site LDRs. proposed regulations for these units, if in existing systems or off site by EPA believes that combustion, risks are in fact found that would facilities owned by the same company combustion followed by stabilization, or warrant such regulation. as the generator (i.e., captive facilities). stabilization will meet the treatment standards for nonwastewaters of wood VI. Decision Not To Ban Nonamenable B. Available Capacity preserving wastes. For wastes with Wastes From Biological Treatment Available capacity was estimated for arsenic, although the basis of the EPA is not prohibiting certain the three treatment technology treatment for arsenic is vitrification, decharacterized wastes from land-based categories: combustion, stabilization, EPA believes that the standard can also wastewater treatment systems on the and wastewater treatment that are be met by stabilization. Also, in general, basis of whether the constituents in expected to be used for the wastes in chemical precipitation will meet the those wastes are ‘‘amenable’’ to today’s rule. (Numerous other types of treatment standards for the inorganic biological treatment. As is discussed in treatment also can meet the treatment wastewater. EPA identified specific the April 8, 1996 partial withdrawal standards for much of these wastes, wastewater treatment technologies that notice to the LDR Phase III final rule (61 although the Agency did not find it support UTS for these wastes and FR 15660), the Land Disposal Program necessary to estimate the available concluded that the wastewater 26010 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations treatment practices at the wood extensions have already expired. Thus, EPA has determined that at least six preserving facilities can be optimized to EPA has determined that sufficient commercial injection well facilities with meet the proposed limits. (Please see alternative treatment capacity is not no-migration petitions would be BDAT Background Document for available, and is granting a two-year allowed to inject wood preserving details.) There is sufficient liquid and national capacity extension of the wastewaters without needing to amend sludge/solid combustion capacity for effective date for radioactive wastes their petitions. The rationale for this both the organic wood preserving mixed with RCRA wastes for which determination is located in the RCRA wastewaters and nonwastewaters. In standards are being promulgated today, docket. EPA has further determined that addition, EPA believes that there is including soil and debris. these wells have unused injection sufficient chemical precipitation E. Phase IV Wood Preserving Wastes capacity exceeding the amount of wood capacity for the inorganic wastewater. Injected Into Underground Injection preserving waste generated annually Finally, ample stabilization capacity Control (UIC) Class I Wells Injected Into (EPA Regional communications in the exists for the inorganic nonwastewaters. Class I Wells RCRA docket). Thus, even if all wood Therefore, EPA is not granting a preserving wastewaters presently variance for the newly listed wood EPA estimated the volume of waste injected would have to find new preserving wastes. regulated in today’s rule that is capacity, sufficient capacity exists. In Some commenters provided data on currently injected into UIC wells. This addition, there is commercial soil and debris contaminated with wood volume is a conservative estimate based wastewater treatment capacity that preserving wastes. The regulated on highly complex non-segregable waste could accommodate some of this communities are quite concerned about stream mixtures, and it may be that the volume. actual volume injected is less. A very the availability of treatment capacity Based on this information, the Agency small volume of newly listed wood using established technologies as well has reassessed its position since the as the potential for innovative preserving wastes (F032, F034 and proposed rule and decided not to grant technologies to provide additional F035) may be injected into Class I Wells. a two-year national capacity extension treatment capacity. EPA has examined These wastes are either injected at wells of the effective date for wood preserving the available data and information located at the site of generation, or are waste being injected at Class I facilities. submitted by commenters and from sent off-site for injection in commercial As discussed above, there appears to be other sources such as Superfund Record Class I wells. sufficient protective disposal capacity of Decisions. The Agency estimated that These wells have existing no- (i.e. approved no-migration disposal combustion capacity available to treat migration determinations. However, capacity) which can accommodate all of soils and debris contaminated with even if an injection well has received a the currently-injected wood preserving newly listed wood preserving wastes is no-migration petition, it can inject a less than 50,000 tons per year. In newly prohibited waste only if the wastewaters, even if all this wastewater contrast, EPA estimates that well over waste is similar to wastes included in will be diverted from injection wells 100,000 tons per year of soil and debris the initial no-migration petition. The currently used. may require additional combustion new wastes must behave hydraulically EPA notes further that commenters capacity. Furthermore, logistics issues and chemically in a similar manner to did not claim that there was insufficient may severely hamper the ability of site those already included in the initial capacity to manage these wastes. managers to obtain adequate alternative petition demonstration such that they However, it should be noted that RCRA treatment in the near term. Therefore, will not interfere with the containment section 3004(h)(3) provides individual given the lack of available capacity and capability of the injection zone and the facilities opportunity to demonstrate other issues associated with soil and location of the waste plume will not that inadequate protective treatment or debris contaminated with F032, F034, significantly differ from the initial disposal capacity is available. and F035 wood preserving wastes, EPA demonstration. (See 40 CFR 148.20 (f) , Substantive standards are set out in 40 is granting a two-year extension of the and UIC Guidance No. 74.) Based on CFR § 268.5 and in UIC Guidance No. effective date for these wastes. these principles, EPA has investigated 69. whether the no-migration determination F. Summary of Variance Determinations D. Mixed Radioactive Wastes for the wells injecting these wood Despite the uncertainty about preserving wastes allow continued Table 1 lists each category of RCRA quantities of mixed radioactive wastes injection. If injection is not presently wastes for which EPA is today setting that will require treatment as a result of allowed due to the need to amend a LDR standards. For each category, this today’s rule, any new commercial petition, the well would not be table indicates whether EPA is granting capacity that becomes available will be providing any capacity, because none of a national capacity extension of the needed for mixed radioactive wastes these facilities operate treatment effective date for land-disposed wastes that were regulated in previous LDR processes capable of achieving the or injected wastes managed by UIC rulemakings and whose capacity treatment standard for these wastes. Class I injection wells.

TABLE 1.ÐNATIONAL CAPACITY EXTENSIONS OF THE EFFECTIVE DATE FOR NEWLY LISTED AND IDENTIFIED WASTES

Deep well- Waste description Surface-disposed injected wastes wastes

Newly Listed Wood Preserving Wastes (F032, F034, F035) ...... No...... No. Soil and Debris Contaminated with Newly Listed Wood Preserving Wastes ...... Two-year...... N/A Mixed Wood Preserving and Radioactive Wastes, Including Soil and Debris ...... Two-year ...... Two-year Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26011

VIII. Changes to Definition of Solid waste for processed scrap metal being the exclusion from the definition of Waste to Exclude Processed Scrap recycled. solid waste to include obsolete scrap Metal and Shredded Circuit Boards metal. Providing an exclusion from the 2. Modifications to the Proposal From RCRA Jurisdiction definition of solid waste for obsolete The Agency received approximately scrap metal at this time would be Summary: As proposed on January 25, twenty-five comments concerning the premature and is better addressed in the 1995 (FR 61 2338), EPA is today proposed scrap metal and shredded Definition of Solid Waste rulemaking, amending the definition of solid waste circuit board exclusions. The comments due to be proposed in the near future. to exclude from RCRA jurisdiction two were generally supportive of the Second, the Agency clarifies that the types of materials: processed scrap exclusions. A background document, exclusion for processed scrap metal metal and containerized shredded the major comments received, and being recycled applies to scrap metal circuit boards. Agency responses on the proposed that has undergone a processing step (as A. Processed Scrap Metal processed scrap metal exclusion can be defined in the preamble to the proposed found in the docket for this rulemaking. rule) regardless of who does the 1. Summary of Proposal Comments on the shredded circuit processing. In other words, a processing The Agency proposed the exclusion of board exclusion can also be found in step may be performed by the generator, processed scrap metal and shredded this background document. an intermediate scrap handler (e.g. In response to comment on the circuit boards being recycled from the broker, scrap processor), or a scrap proposed exclusion to the definition of Definition of Solid Waste in the January recycler. Once the scrap metal has solid waste for processed scrap metal 25, 1996 proposed Phase IV LDR undergone a processing step, it may being recycled, the Agency has made supplemental rulemaking. Currently, qualify for today’s exclusion. several modifications to the exclusion in scrap metal being reclaimed is a solid Third, the Agency has added the final rule. First, the Agency has waste, but completely exempt from chopping, crushing, flattening, cutting expanded the exclusion to cover and sorting, processes typically used in RCRA Subtitle C regulations. The unprocessed home and unprocessed proposal would have amended the the processing of scrap metal for prompt scrap metal being recycled. recycling, to the definition of processed definition of solid waste to exclude Home scrap is scrap metal generated by processed scrap metal and containerized scrap metal in today’s final rule. In steel mills, foundries, and refineries today’s final rule, the definition of shredded circuit boards that are being such as turnings, cuttings, punchings, recycled from RCRA jurisdiction. In the processing reads: ‘‘manually or and borings. Prompt scrap, also known physically altered to either separate it proposal, the Agency did not propose to as industrial or new scrap metal, is make changes to the current definition into distinct materials to enhance generated by the metal working/ economic value or to improve the of scrap metal: ‘‘bits and pieces of metal fabrication industries and includes such parts (e.g., bars, turnings, rods, sheets, handling of materials. Additionally, to scrap metal as turnings, cuttings, avoid confusion, the definition of wire) or metal pieces that are combined punchings, and borings. These together with bolts and soldering (e.g., processed scrap metal has been categories of scrap metal do not fit the reworded to clarify the status of radiators, scrap automobiles, railroad definition of processed scrap metal agglomerated fines, drosses and other box cars), which when worn or found in the proposal because they related materials. Therefore, in today’s superfluous can be recycled.’’ often do not require a processing step final rule, the category of processed The proposal defined processed scrap before being sent for recycling. The scrap metal now includes but is not metal as ‘‘scrap metal which has been Agency evaluated unprocessed home limited to scrap metal which has been manually or mechanically altered to scrap and prompt scrap metal and found baled, shredded, sheared, chopped, either separate it into distinct materials that these categories of scrap metal are crushed, flattened, cut, melted, or to enhance economic value or to substantially similar to processed scrap separated by metal type (i.e., sorted), improve the handling of materials. metal due to established markets for the and, fines, drosses and related materials Processed scrap metal includes but is material’s utilization, inherent positive not limited to scrap metal which has economic value of the material, the which have been agglomerated.’’ Note been bailed, shredded, sheared, melted, physical form of the material, and that circuit boards that are shredded and agglomerated (for fines, drosses and absence of damage incidents attributable being sent for recycling are covered related materials which are not scrap to the material. Based on this analysis, under the exclusion from the definition metal prior to agglomeration) or the Agency has expanded scope of the of solid waste for shredded circuit separated by metal type.’’ The Agency exclusion to include both unprocessed boards being recycled (261.4(a)(13)) see believes that processed scrap metal home and unprocessed prompt scrap discussion following) and are not being recycled is distinct from other metal. In the final rule, the term covered under the definition of secondary materials defined as wastes ‘‘excluded scrap metal’’ will be used to excluded scrap metal. when recycled due to established reflect this decision. Commenters also B. Shredded Circuit Boards markets for the material’s utilization, suggested the Agency evaluate obsolete inherent positive economic value of the scrap metal (scrap which is composed of 1. The Proposal material, the physical form of the worn out metal or a metal product that In the proposed rule, EPA proposed to material, and absence of damage has outlived it original use, such as exclude shredded circuit boards being incidents attributable to the material, automobile hulks, railroad cars, reclaimed from the definition of solid and is therefore sufficiently product-like aluminum beverage cans, steel beams waste in order to facilitate their that maintaining RCRA regulatory from torn down buildings, and recovery. 61 F.R. 2339, 2361. The jurisdiction over this material is not household appliances) using the same proposed exclusion was conditioned on necessary. A summary of the proposed factors. The Agency has not found the storage of the shredded circuit exclusion from the definition of solid sufficient data to fully evaluate boards in containers prior to recovery waste for shredded circuit boards being unprocessed obsolete scrap metal. that would be adequate to prevent a recycled follows the discussion of the Therefore, in today’s final rule the release of the boards to the exclusion from the definition of solid Agency is not expanding the scope of environment. This condition was 26012 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations specified as a performance standard container during shipment. Shredding primary mineral processing and rather than a design standard to allow also improves the assaying of the refining. the handler maximum flexibility in shipment for base metal and precious Regarding the second criterion of the selecting the method of containment. metal content by homogenizing the load value of the material after it has been Today, EPA is finalizing this exclusion thus assuring a representative sample is reclaimed, shredded circuit boards as proposed with an additional taken for the assay. Shredding also generally have positive economic value limitation that shredded circuit boards destroys proprietary information from (i.e., the smelter pays the shredder for excluded from RCRA jurisdiction be free generators or manufacturers of the the assayed base and precious metal of mercury switches, mercury relays, boards thus better assuring value of the shipment). The typical nickel-cadmium batteries and lithium confidentiality to the generator or price range for shredded circuit boards batteries. manufacturer when making a decision is between a negative $0.25 per lb. and to recycle. Some generators may be $5 per lb. One recycling company 2. Exclusion for Shredded Circuit concerned about proprietary reported an annual average price of Boards Conditioned on Containerized information contained in used whole shredded circuit boards of $1.50 per Storage Prior to Recovery circuit boards being transferred to pound which is greater than the current EPA explained in the proposal that competitors once the boards are out of market price for refined copper metal. shredded circuit boards merit exclusion the generator’s control. Regarding the third criterion of how from RCRA regulation in order to Second, shredded boards have the partially reclaimed material facilitate their recovery when they are qualities which are similar to primary compares to the analogous raw material, properly stored in containers to prevent materials such as virgin mineral recyclers have indicated that shredded their release to the environment. As concentrates that are processed and circuit boards typically have assays of presented in the proposal, the necessity refined for base metal and precious that average 10 percent copper, between for the proposed exclusion for shredded metal values. These qualities satisfy the one-half and one-third that of primary circuit boards is that the process of criteria EPA considers when evaluating copper concentrates. Shredded circuit shredding the circuit boards causes the whether a partially-reclaimed solid board copper assays reported in boards to lose the scrap metal waste is commodity-like and is not part literature evaluated in completion of exemption (see 40 CFR § 261.6(a)(3)(ii)) of the waste management problem and this rule ranged between 11 percent and that currently applies to used whole thus is appropriate to exclude from 18 percent copper. Shredded circuit circuit boards. This scrap metal RCRA subtitle C jurisdiction through boards also frequently contain precious exemption allows used whole circuit issuance of a variance. EPA believes that metal values such as gold, silver or boards being recycled to be shipped in these criteria are relevant in platinum that enhance the economic commerce without being subject to determining whether a general value of the material. Moreover, the RCRA regulation including generator exclusion is justified. See 40 CFR reported recycling efficiency for copper, manifesting and export requirements. 261.30(c)& 261.31(c). These criteria are: gold, silver and platinum exceeds 90 The process of shredding the boards (1) The degree of processing the material percent for this type of material. produces small fines from the whole has undergone and the degree of further Although toxic metal content for board which are dispersible and do not processing that is required, (2) the value primary copper concentrates is variable meet the RCRA regulatory definition of of the material after it has been depending on the ore body it comes scrap metal. The application of RCRA reclaimed, (3) the degree to which the from, reported assays for circuit boards regulatory provisions to shredded reclaimed material is like an analogous are comparable in lead and lower in boards may present serious raw material, (4) the extent to which an arsenic content than reported primary disincentives to their recovery. As end market for the reclaimed material is copper concentrate assays. Although explained in the proposal, generator guaranteed, (5) the extent to which a shredded circuit boards are manifesting and export requirements material is managed to minimize loss comparatively dispersible in may result in significant delays in and (6) other relevant factors (such as comparison to primary copper shipments of shredded boards to the presence of cyanide or other foreign concentrates, the conditional recovery operations such as smelters. materials). requirement for the exclusion stipulates Many intermediate precious metal Regarding the first criterion, shredded that the shredded circuit boards must be reclaimers, e.g. shredders, operate on a circuit boards have been processed stored in containers sufficient to prevent short cash flow and depend on prompt through shredders, hammer mills and a release to the environment prior to payment for shipments of shredded similar devices to decrease their size. recovery reduces any greater likelihood circuit boards in order to pay the Value is added to the boards, as of release from shredded boards in generators of the used circuit boards for indicated above, because the boards are comparison to primary copper supplying them to the intermediate easier to handle, assay and ship without concentrates. reclaimers. concerns of generator confidentiality The fourth criterion EPA uses to For the following reasons, EPA that might exist if the boards were evaluate partially-reclaimed secondary believes that shredded circuit boards shipped to the smelters as whole boards. materials is the extent to which an end destined for reclamation when properly Further processing for the shredded market is guaranteed for the material. containerized and free of mercury boards includes both smelting and Continuous demand from primary switches, mercury relays, nickel- refining to extract base metals such as smelters for base metals and precious cadmium batteries and lithium batteries copper and precious metals such as metals from shredded circuit boards are an appropriate secondary material to gold, silver and platinum group metals. should result from the positive be excluded from RCRA regulation. As And while a substantial amount of economic value of the boards, the discussed in the proposal, shredding is further processing remains, EPA relative ease of handling and assaying of beneficial to the recovery process. believes that shredded circuit boards the boards and the diminishing Shredding improves the recovery of the can be thought of as secondary quantities of primary copper ore boards by improving handling of feedstocks similar to primary ore concentrates. According to the Bureau shredded boards through increasing the concentrates that have undergone of Mines Mineral Commodity bulk density of the boards in the beneficiation and are destined for Summaries 1994, reported and apparent Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26013 consumption for copper, silver and which contain mercury switches, As stated in the proposal shredded platinum group metals has either mercury relays, nickel-cadmium circuit boards do not meet the definition remained constant or increased between batteries, and lithium batteries. EPA is of scrap metal because the shredded 1989 and 1993. Reported consumption concerned about the potential material contains fines which are too of gold decreased slightly between 1989 environmental impact of these materials small to qualify as scrap metal. and 1993 from 115 metric tons and 100 that are associated with printed circuit Shredded circuit boards that are not free metric tons. Secondary gold production board production and management after of mercury switches, mercury relays, decreased slightly over the same period the boards are spent. Ordinarily, nickel-cadmium batteries, and lithium from 158 metric tons to 130 metric tons. commercial printed circuit board batteries would be subject to applicable The price of gold declined over the recyclers, both intermediate processors parts of RCRA regulation, 40 CFR Parts same period from $382 per troy ounce (e.g. shredders) and smelters, do not 260 through 266, Part 268, Part 270, Part to $355 per troy ounce. By 1996, the want mercury switches, mercury relays, 273 and Part 124. Shredded circuit price of gold has increased to over $380 nickel-cadmium batteries and lithium boards with economically recoverable per troy ounce. batteries in shipments of shredded quantities of precious metals are still The fifth criterion EPA uses to boards sent from the intermediate eligible for conditional exemption from evaluate partially-reclaimed materials is processor to the smelter. However, regulation under 40 CFR Part 266 the extent to which the material is because these items may be very small, Subpart F. This provision allows managed to minimize loss. The they may, on occasion, escape visual recyclable materials containing an proposed exclusion is conditioned on inspection and become shredded along economically recoverable amount of the proper storage of shredded circuit with printed circuit boards. When this precious metals to be exempt from many boards in containers prior to recovery. happens, EPA is concerned about the RCRA regulatory provisions. However, As mentioned in the proposal, the potential release of mercury or cadmium these materials are still subject to shredded boards are usually stored in to the environment. For this reason, manifesting, export and speculative super sacks (sacks that are reinforced EPA is limiting the scope of the accumulation requirements. 40 CFR woven resin and designed to exclusion for shredded boards to 266.70. accommodate bulk shipments), gaylord shipments that are free of mercury containers (also known as tri-wall boxes 4. Clarification of Regulatory Status of switches, mercury relays, nickel- composed of three layers of cardboard Secondary Materials Associated With cadmium batteries or lithium batteries. with two layers of corrugation) and 55 the Generation or Management of gallon drums. Open bulk shipments of Free of these materials means that Circuit Boards board by rail, truck or barge are not mercury switches, mercury relays, nickel-cadmium batteries and lithium Several commenters requested within the scope of this exclusion. In clarification in today’s rule about the addition to the storage requirement, the batteries are not or have not been part of the batch of circuit boards shredded current regulatory status of secondary economic value of the boards also materials associated with the generation provides an incentive for handlers to to add value. In addition, EPA reiterates that in enforcement actions that it is the or management of printed circuit prevent releases to the environment. At boards. These materials include: spent an average market value of $1.50 per respondent in the action who bears the burden of proof in documenting that a solder baths (pot dumps), sweeps, pound for one recycler, the incentive to baghouse dust, and solder dross. These prevent releases is substantial. The material for which an exclusion is claimed from the definition of solid commenters also requested exclusion of Agency notes that containerization in these materials from RCRA jurisdiction and of itself was not the only reason the waste meets the appropriate regulatory definition or exclusion. 40 CFR 261.2(f). in today’s rule. Agency concluded that shredded circuit Spent solder baths, also known as pot boards should be excluded from the Shredded circuit boards that are not free dumps, are solidified pieces of tin-lead definition of solid waste. The other five of mercury switches, mercury relays, solder baths used in the production of factors supported this determination as nickel-cadmium batteries, and lithium printed circuit boards. Prior to 1993, well. batteries when reclaimed are solid Finally, EPA considers other relevant wastes. This is so because these used EPA had classified spent solder baths as factors when evaluating the exclusion of shredded circuit boards are spent spent materials, which, absent the scrap partially-reclaimed materials from materials. Spent materials being metal designation, would be fully RCRA jurisdiction through the variance. reclaimed are solid wastes that, when regulated under RCRA hazardous waste In the context of shredded circuit they exhibit a characteristic or are regulation. In 1993, EPA issued a letter boards, other relevant factors include: listed, are also hazardous wastes. 40 to the Lead Industries Association (1) The presence of both materials CFR 261.1(b)(1), 261.2(c)(3). As stated in stating that spent solder baths meet the possibly attached to printed circuit the proposal, EPA established in 1992 definition of scrap metal and are boards that are ordinarily outside of the that whole used circuit boards could be therefore exempt from RCRA regulation definition of scrap metal such as considered scrap metal. The whole used under the regulatory exemption for mercury switches, mercury relays, circuit boards are therefore exempt from scrap metal being recycled. This nickel-cadmium batteries and lithium RCRA regulation. See 40 CFR interpretation continues to be the batteries, and (2) the frequency of 261.6(a)(3)(ii) stating scrap metal being Agency view. foreign materials mixed with but not recycled is exempt from RCRA Sweeps refer alternatively to a part of the circuit board itself. EPA’s regulation. (Please note that whole used powdered material that is a residue of concern about these materials is circuit boards which contain mercury thermal recovery of precious metal- discussed below. switches, mercury relays, nickel- bearing secondary material (often ash cadmium batteries, or lithium batteries that is crushed into particulate form in 3. Limitation on Mercury Switches, also do not meet the definition of scrap a ball mill or similar device) or Mercury Relays, Nickel-Cadmium metal because mercury (being a liquid particulate material that is collected Batteries and Lithium Batteries metal) and batteries are not within the from firms handling precious metals Printed circuit boards may contain or scope of the definition of scrap metal. such as jewelers and metal finishers. be incorporated into electronic products See 50 F.R. 614, 624 (January 4, 1985).) Sweeps have been previously classified 26014 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations by EPA as a by-product. 2 As such, when IX. State Authority scope of a State’s submittal, for authorization, to a State certification sent for reclamation, sweeps are not A. Applicability of Rules in Authorized and copies of applicable regulations and solid waste and are excluded from States RCRA jurisdiction regulation when statutes. EPA would then conduct a considered hazardous solely by Under section 3006 of RCRA, EPA short review of the State’s request, exhibiting a characteristic. may authorize qualified States to primarily consisting of a completeness Characteristic by-products are not solid administer and enforce the RCRA check (see 60 FR 43686 for a full program within the State. Following wastes when reclaimed. 40 CFR description of the proposed procedures). authorization, EPA retains enforcement 261.2(c)(3). In contrast, when sweeps In the HWIR-Media proposed rule, EPA authority under sections 3008, 3013, are derived from source material that proposed another set of abbreviated and 7003 of RCRA, although authorized authorization procedures for more meets the description of a listed States have primary enforcement hazardous waste, the sweeps are solid significant rulemakings, called Category responsibility. The standards and 2 (see 61 FR 18780, April 29, 1996). In wastes that are also hazardous wastes requirements for authorization are this latter proposal, EPA designated the and are regulated under the appropriate found in 40 CFR Part 271. procedures outlined in the Phase IV RCRA regulation provisions. 40 CFR Prior to HSWA, a State with final proposal as Category 1. In that proposal, 261.2(c)(3). For example, often authorization administered its EPA also presented an expanded combustible material such as a rag, filter hazardous waste program in lieu of EPA discussion on the need for and the or paper is used to clean up a secondary administering the Federal program in intent of the streamlined procedures. material such as a spent solvent that that State. The Federal requirements no EPA also proposed a set of modified may: (1) contain precious metals and (2) longer applied in the authorized State, Category 1 procedures for the meets one of the F001 through F005 and EPA could not issue permits for any authorization of a proposed rule for listing descriptions for solvents. The facilities that the State was authorized mineral processing wastes on January rag, filter or paper will be burned to an to permit. When new, more stringent 25, 1996 (see 62 FR 2338). ash that it homogenized in order to Federal requirements were promulgated Although EPA is firmly committed to assay its precious metal content. The or enacted, the State was obliged to streamlining the RCRA State ash when crushed is turned into a enact equivalent authority within authorization procedures, the Agency sweep. The sweep carries the F-listed specified time frames. New Federal has decided not to finalize the proposed hazardous waste code that was requirements did not take effect in an Category 1 authorization procedures in associated with the original source authorized State until the State adopted today’s notice. EPA believes that public material (i.e., solvent). Listed by- the requirements as State law. comments from the August 22, 1995, products, in contrast to characteristic In contrast, under RCRA section and January 25, 1996, proposals and by-products, are solid and hazardous 3006(g) (42 U.S.C. 6926(g)), new comments submitted for the recent wastes when reclaimed. requirements and prohibitions imposed HWIR-contaminated media proposal by HSWA take effect in authorized should all be considered before EPA has classified baghouse dust States at the same time that they take finalizing new procedures for from precious metal recovery furnaces effect in unauthorized States. EPA is authorization. This full consideration 3 as a sludge. As with the by-product directed to carry out these requirements will enable EPA to make the best classification for sweeps, baghouse dust and prohibitions in authorized States, decision regarding how the is not a solid and hazardous waste when including the issuance of permits, until authorization process should work. EPA it would be considered hazardous only the State is granted authorization to do intends to address all significant public for exhibiting a characteristic such as so. comments for all three notices and toxicity. However, if the source material Today’s treatment standards for wood finalize streamlined authorization to the furnace contained a listed preserving wastes are being procedures when the HWIR-Media rule hazardous waste, then the baghouse promulgated pursuant to sections 3004 is promulgated. dust would be considered a solid and (d) through (k), and 3004(m), of RCRA hazardous waste due to its classification (42 U.S.C. 6924 (d) through (k), and C. Effect on State Authorization as a listed sludge being reclaimed. Also 6924(m)). Therefore, the Agency is Because today’s Phase IV LDR rule is as with the sweeps, even if the baghouse adding today’s rule to Table 1 in 40 CFR being promulgated under HSWA dust is a listed sludge, it may still be 271.1(j), which identifies the Federal authority, those sections of today’s rule conditionally exempt from RCRA program requirements that are that expand the coverage of the LDR regulation under 40 CFR Part 266 promulgated pursuant to HSWA. States program (e.g., to newly listed wood Subpart F if it contains economically may apply for final authorization for the preserving wastes) would be recoverable levels of precious metals. HSWA provisions in Table 1, as implemented by EPA on the effective discussed in the following section of date of today’s rule in authorized States Finally, EPA currently classifies this preamble. Table 2 in 40 CFR until their programs are modified to solder dross as a characteristic by- 271.1(j) is also modified to indicate that adopt these rules and the modification product when reclaimed. As such, this this rule is a self-implementing is approved by EPA. These new material is already excluded from the provision of HSWA. treatment standards also result in a definition of solid waste and not more stringent Federal program than regulated under the RCRA regulations. B. Abbreviated Authorization before. Therefore States are required to Therefore, including solder dross in Procedures adopt them in accordance with the today’s final rule would be duplicative. In the August 22, 1995, LDR Phase IV requirements below. proposed rule, EPA proposed a set of Because today’s rule is promulgated 2 August 26, 1992 memorandum from Sylvia K. streamlined authorization procedures pursuant to HSWA, a State submitting a Lowrance, Director, U.S.E.P.A., Office of Solid that would apply to new rules that were program modification may apply to Waste to Waste Management Division Directors U.S.E.P.A., Regions I–X on the Regulatory Status of minor or routine in nature. This receive interim or final authorization Printed Circuit Boards. procedure was designed to expedite the under RCRA section 3006(g)(2) or 3 Ibid. authorization process by reducing the 3006(b), respectively, on the basis of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26015 requirements that are substantially the scope of the Federal program, States 1. Methodology Section equivalent or equivalent to EPA’s. The are not required to modify their The Agency estimated the volumes of procedures and schedule for State programs. EPA views the parts of waste affected by today’s rule to program modifications for final today’s rule other than the new determine the national level authorization are described in 40 CFR treatment standards for newly listed incremental costs (for both the baseline 271.21. It should be noted that all wood preserving wastes to be less and post-regulatory scenarios), HSWA interim authorizations will stringent. However, since these other economic impacts (defined as the expire January 1, 2003. (See § 271.24 parts of today’s final rule make difference between the industrial and 57 FR 60132, December 18, 1992.) significant improvements to the LDR activity under post-regulatory Section 271.21(e)(2) requires that program, EPA strongly encourages States with final authorization must conditions and the industrial activity in States to adopt and become authorized modify their programs to reflect Federal the absence of regulation), and benefits for them. program changes and to subsequently (including estimation of pollutant loadings reductions, estimation of submit the modification to EPA for X. Regulatory Requirements approval. The deadline by which the reductions in exceedences of health- State would have to modify its program A. Regulatory Impact Analysis Pursuant based levels, and qualitative description to adopt these regulations is specified in to Executive Order 12866 of the potential benefits.) The procedure section 271.21(e). This deadline can be for estimating the volumes of newly Executive Order No. 12866 requires extended in certain cases (see section listed wood preserving wastes affected agencies to determine whether a 271.21(e)(3)). Once EPA approves the by today’s final rule is detailed in the modification, the State requirements regulatory action is ‘‘significant.’’ The background document ‘‘Regulatory become Subtitle C RCRA requirements. Order defines a ‘‘significant’’ regulatory Impact Analysis of the Final Phase IV States with authorized RCRA action as one that ‘‘is likely to result in Land Disposal Restrictions Rule for programs may already have a rule that may: (1) Have an annual Wood Preserving Wastes, F032, F034 requirements similar to those in today’s effect on the economy of $100 million and F035,’’ which was placed in the rule. These State regulations have not or more or adversely affect, in a material docket for today’s final rule. been assessed against the Federal way, the economy, a sector of the 2. Volume Results regulations being proposed today to economy, productivity, competition, determine whether they meet the tests jobs, the environment, public health or The Agency has estimated that 469 for authorization. Thus, a State is not safety, or State, local, or tribal active facilities generate an estimated authorized to implement these governments or communities; (2) create range of 3,860 tons to 18,808 tons requirements in lieu of EPA until the serious inconsistency or otherwise annually of newly listed wood State program modifications are interfere with an action taken or preserving wastes including F032, F034, approved. Of course, states with existing planned by another agency; (3) and F035 nonwastewaters. The Agency standards could continue to administer materially alter the budgetary impact of has estimated that active 469 facilities generate an estimated range of 3,860 and enforce their standards as a matter entitlements, grants, user fees, or loan tons to 18,808 tons annually of newly of State law. In implementing the programs or the rights and obligations of listed wood preserving wastes including Federal program, EPA will work with recipients; or (4) raise novel legal or F032, F034, and F035 nonwastewaters. States under agreements to minimize policy issues arising out of legal In addition the Agency has estimated duplication of efforts. In most cases, mandates, the President’s priorities, or EPA expects that it will be able to defer that there are approximately 1000 the principles set forth in the Executive inactive or abandoned wood preserving to the States in their efforts to Order.’’ implement their programs rather than sites that have contaminated soil and take separate actions under Federal The Agency estimated the costs of debris that may require some type of authority. today’s final rule to determine if it is a remediation. One Agency estimate for States that submit official applications significant regulation as defined by the the total volume of wood preserving for final authorization less than 12 Executive Order. The analysis contaminated soil and debris requiring months after the effective date of these considered compliance cost and either in-situ or ex-situ treatment is 37 regulations may, but are not required to economic impacts for newly listed and million tons based on an extrapolation include standards equivalent to these identified wastes affected by this rule. of the average quantity of excavated regulations in their application. This rule covers three wood preserving soils from wood preserving Superfund However, the State must modify its wastes (F032, F034, and F035). EPA has sites. For purposes of the capacity program by the deadline set forth in determined that this rule is significant analysis in today’s rule, the Agency is § 271.21(e). States that submit official according to the definition in Executive using an alternate estimate of over applications for final authorization 12 Order 12866. Accordingly, this rule has 100,000 tons as the basis of setting the months after the effective date of these been reviewed by the Office of national capacity variance for wood regulations must include standards Management and Budget. preserving soil and debris. equivalent to these regulations in their 3. Cost Results application. The requirements a State Detailed discussions of the must meet when submitting its final methodology used for estimating the EPA estimated the incremental authorization application are set forth in costs, economic impacts and the treatment cost attributable to Phase IV 40 CFR 271.3. benefits attributable to today’s final rule, LDRs to total between $3.1 million and followed by a presentation of the cost, $17.7 million per year for generators of D. Less Stringent Requirements economic impact and benefit results newly listed wood preserving wastes. In Section 3009 of RCRA allows States to may be found in the background addition, EPA has estimated that impose standards that are more document, ‘‘Regulatory Impact Analysis administrative requirements for stringent than the Federal program (see of the Final Phase IV Land Disposal reporting and record keeping from 40 CFR 270.1(i)). Thus, for those Federal Restrictions Rule,’’ which was placed in today’s rule will result in a cost of $0.2 changes that are less stringent or reduce the docket for today’s final rule. million per year for owners and 26016 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations operators of inactive and abandoned media that incur administrative costs for other nontoxic or toxic preservatives wood preserving sites. This estimate is treatability variances, waste analysis resulting in less expensive treatment of based on the costs of thermal plans, and other RCRA activities. The wastes may result in lower costs to these destruction and stabilization of F032 Agency will estimate the volume and wood preserving facilities. Finally, data and F034 non-wastewaters; the costs of cost of remediating contaminated media collected to estimate the upper bound stabilization of F035 non-wastewaters; as affected by the HWIR Contaminated quantity of F032 generated at these and the incremental cost of disposing of Media final rule. This will include the facilities included values for mixed the residuals from the treatment of the evaluation of all soils and sludges that F032/F034/F035 wastes (meaning that 3,860–18,808 tons of waste. would otherwise have been treated in- the generator reported combined Today’s final rule provides a two year situ whose management and treatment volumes for F032 and other wood capacity variance during which costs could change, either because of preserving wastes) such that the total cleanups of these sites may continue provisions of the HWIR Contaminated volume of F032 is probably much lower without being affected by the Land Media final rule; changes in relative than the data suggests. Disposal Restriction treatment standards prices for alternative treatment For inactive and abandoned wood promulgated in today’s rule. This technologies; or increases in market preserving sites that require provision will reduce the costs of prices of treatment resulting from such remediation, EPA believes that there managing media contaminated by these shifts in demand. EPA will use the same should not be a significant economic listed wastes to the extent that facility baseline for estimating these costs that impact resulting from today’s rule. Of operators and site managers take the Agency uses to estimate cost the estimated 1000 sites, based on the advantage of it. Also, many sites are savings. frequency of wood preserving using in-situ remedies where no soil is Superfund cleanups, EPA projects that excavated at the site. This type of 4. Economic Impact Results over 200 inactive and abandoned sites remediation does not trigger any of the The Agency has estimated the will use in-situ remedies and thus not requirements promulgated in today’s economic impacts of today’s final rule incur any costs under today’s rule. In rule. to be small. EPA conducted an initial addition, EPA projects that the Prospectively, future rulemakings screening analysis of the impacts of the remaining 800 sites will incur only such as the Hazardous Waste Phase IV LDR rule on small wood administrative costs associated with Indentification Final Rule for preserving facilities. Results of the recordkeeping and reporting contaminated media may result in initial screening analysis indicate that requirements that average $240 in quantities of contaminated soil being the cost of compliance for the majority annualized cost per site. Given that the removed from RCRA jurisdiction or of active wood preserving facilities that reported average cost of cleaning up subject to less rigorous cleanup levels use inorganic wood preservatives and wood preserving Superfund sites is $9.3 than the current universal treatment generate F035 wastes is less than one million,4 EPA believes that these standards. Inactive and abandoned percent of total their estimated administrative costs should not wood preserving sites may avail revenues. In contrast, active wood significantly affect remedial activities at themselves of exemptions from today’s preserving facilities that use creosote inactive and abandoned wood promulgated treatment standards such and pentachlorophenol as a preserving sites. as a no-migration petition (40 CFR Part preservatives and generated F032 and 268.6) or site specific treatability F034 wastes have been estimated to 5. Benefit Estimate Results variances (40 CFR Part 268.44(h)). incur upper bound compliance costs EPA has not performed analysis Further reductions in treatment cost that may exceed one percent of this sufficient to estimate risks to actual will accrue to the extent that (1) EPA subsector’s revenues. individuals or populations exposed to acts to remove media contaminated with Some active wood preserving these listed wastes under conditions of these listed wastes from RCRA facilities that use creosote and Subtitle C management without LDRs. jurisdiction and (2) facility operators pentachlorophenol as preservatives may However, EPA has completed a and site managers petition for, and EPA incur upper bound compliance costs qualitative benefits analysis of the types grants, these no-migration petitions and that will exceed one percent of their of benefits that may result from today’s treatability variances. For the foregoing estimated revenues. EPA believes, rule. This analysis is described in reasons, EPA does not believe that however, that in looking at the affected greater detail in the regulatory impact incremental treatment costs will accrue universe of active wood preserving analysis for newly identified listed to contaminated media cleanups at facilities, today’s final rule will not wood preserving hazardous waste inactive or abandoned wood preserving constitute a significant impact to a placed in today’s docket. Benefits for sites. Accordingly, EPA has not substantial number of them. First, only this final rule as measured by individual estimated incremental treatment costs 18 or roughly 4 percent of over 469 or population risk reduction require that would result from the selection of wood preserving facilities are expected substantially more information than the a more expensive remedy in order to to incur compliance costs that exceed 2 Agency has available now. Further, site avoid triggering LDR treatment percent of their revenues or more than specific information on waste requirements. Although EPA believes 25 percent of their long run profits. Of characterization, hydrogeological that this scenario is unlikely, such costs the remaining 49 facilities or 10 percent parameters, meteorological conditions are possible. with upper bound estimated compliance and demographic patterns would be With respect to media contaminated costs exceeding 1 percent of their needed for a representative number of with listed wood preserving wastes, revenue, none are expected to incur facilities before national estimates of EPA’s estimate of the costs of today’s compliance costs exceeding 2 percent of final rule includes only the firm revenues or 25 percent of long term 4 Shreekant Gupta, George Van Houtven, and administrative costs of applying for profits. Second, industry information Maureen L. Cropper, ‘‘Do Benefits and Costs Matter treatability variances which the Agency suggests that there is a trend within the in Environmental Regulation? ’’, in anaylzing Superfund, Economics, Science and Law, ed. has the discretion to grant subsequent to wood preserving industry away from Richard L. Revesz and Richard B. Stewart this action. EPA estimates that there are using pentachlorophenol as a (Washington, D.C.: Resources for the Future, 1996), 35 million tons of such contaminated preservative. Product substitution to p. 97. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26017 population risk could be calculated. The entities. The only relief available for development of EPA regulatory Agency does not have sufficient small entities is the existing small proposals with significant Federal information to complete a quantitative quantity generator provisions and intergovernmental mandates, and individual or population risk estimate. conditionally exempt small quantity informing, educating, and advising them While waste management rules to generator exemptions found in 40 CFR on compliance with the regulatory protect ground water have been 262.11–12, and 261.5, respectively. requirements. promulgated in the past to control These exemptions basically prescribe EPA has determined that this rule otherwise unacceptable individual risks, 100 kilograms (kg) per calendar month does not contain a Federal mandate that it is unusual to predict high ‘population generation of hazardous waste as the may result in expenditures of $100 risks’ unless there is an unusually large limit below which one is exempted from million or more for State, local, and water supply well impacted by the complying with the RCRA standards. Tribal governments, in the aggregate, or facility, simply because ground water Given this statutory constraint, the the private sector in any one year. EPA contamination generally moves slowly Agency was unable to frame a series of has estimated that the total potential and locally. It has been the agency’s small entity options from which to cost to State, local, and Tribal experience that regulations with land select the lowest cost approach; rather, governments would not exceed disposal restrictions have been found to the Agency was legally bound to approximately $200,000 per year over produce relatively small, quantifiable regulate the land disposal of the ten years. Thus, today’s rule is not population risk reductions to hazardous wastes covered in today’s subject to the requirements of sections individuals exposed to contaminated rule without regard to the size of the 202 and 205 of the UMRA. groundwater via private wells. For entity being regulated. For the reasons D. Paperwork Reduction Act example, in the analysis of Land stated above in the economic impact Disposal Restrictions Phase II (40 CFR discussion of section X.A, I hereby The information collection Parts 148, et al.) for organic toxicity certify that today’s final rule will not requirements in this rule have been wastes, some of the individual risk were have a significant impact on a submitted for approval to the Office of in the range of 10¥4, the population risk substantial number of small entities in Management and Budget (OMB) under reductions were found to be only about the wood preserving sector. the Paperwork Reduction Act, 44 U.S.C. 0.22 cases of cancer per year. 3501 et seq. An Information Collection If population densities and prevalence C. Unfunded Mandates Reform Act Request (ICR) document has been of private ground water wells around Title II of the Unfunded Mandates prepared by EPA: OSWER ICR No. wood preserving facilities are similar to Reform Act of 1995 (UMBRA), Public 1442.14 would amend the existing ICR other waste management facilities, it is Law 104–4, establishes requirements for approved under OMB Control No. 2050– the Agency’s expectation that land Federal agencies to assess the effects of 0085. This ICR has not been approved disposal restrictions for hazardous wood their regulatory actions on State, Tribal, by OMB and the information collection preserving wastes would also achieve and local governments and the private requirements, although they are less relatively small, quantifiable population sector. Under section 202 of the UMRA, stringent than those previously required risk reductions. For these reasons and EPA generally must prepare a written by the EPA, are not enforceable until the data limitations cited above, the statement, including a cost-benefit OMB approves the ICR. EPA will Agency has not attempted to address the analysis, for proposed and final rules publish a document in the Federal quantification of population risk with ‘‘Federal mandates’’ that may Register when OMB approves the reduction for this final rule. result in expenditures to State, local, information collection requirements Nevertheless, the Agency has and Tribal governments, in the showing the valid OMB control number. concluded that LDR rules like today’s aggregate, or to the private sector, of Until then, persons are not required to rule may produce benefits in the area of $100 million or more in any one year. respond to collections of information in ecological risk reduction and reduced When a written statement is needed for this ICR. natural resource damage. EPA has not an EPA rule, section 205 of the UMRA Copies of this ICR may be obtained developed a quantitative assessment of generally requires EPA to identify and from Sandy Farmer, OPPE Regulatory these benefits categories because of consider a reasonable number of Information Division; U.S. budgetary and data limitations. regulatory alternatives and adopt the Environmental Protection Agency least costly, most cost-effective, or least (2136); 401 M St., S.W.; Washington, B. Regulatory Flexibility Analysis burdensome alternative that achieves D.C. 20460 or by calling (202) 260–2740. Pursuant to the Regulatory Flexibility the objectives of the rule. The Include the ICR number in any request. Act of 1980, 5 U.S.C. 601 et seq., when provisions of section 205 do not apply The annual public reporting and an agency publishes a notice of when they are inconsistent with recordkeeping burden for this collection rulemaking, for a rule that will have a applicable law. Moreover, section 205 of information is estimated to be significant effect on a substantial allows EPA to adopt an alternative other reduced by 8 hours per response. number of small entities, the agency than the least costly, most cost-effective Burden means the total time, effort, or must prepare and make available for or least burdensome alternative if the financial resources expended by persons public comment a regulatory flexibility Administrator publishes with the final to generate, maintain, retain, or disclose analysis that considers the effect of the rule an explanation why that alternative or provide information to or for a rule on small entities (i.e.: small was not adopted. Before EPA establishes Federal agency. This includes the time businesses, small organizations, and any regulatory requirements that may needed to review instructions; develop small governmental jurisdictions). significantly or uniquely affect small acquire, install, and utilize technology In assessing the regulatory approach governments, including Tribal and systems for the purposes of for dealing with small entities in today’s governments, it must have developed collecting, validating, and verifying proposed rule, the Agency had to under section 203 of the UMRA a small information, processing and consider that due to the statutory government agency plan. The plan must maintaining information, and comply requirements of the RCRA LDR program, provide for notifying potentially with any previously applicable no legal avenues exist for the Agency to affected small governments, giving them instructions and requirements, train provide relief from the LDR’s for small meaningful and timely input in the personnel to be able to respond to a 26018 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations collection of information; search data and other required information to the Hazardous waste numbers F032, F034, sources; complete and review the U.S. Senate, the U.S. House of F035 that are mixed with radioactive collection of information; and transmit Representatives, and the Comptroller wastes are prohibited from underground or otherwise disclose the information. General of the General Accounting injection. An agency may not conduct or sponsor, Office prior to publication of the rule in * * * * * and a person is not required to respond today’s Federal Register. This rule is to, a collection of information unless it not a ‘‘major rule’’ as defined by 5 PART 261ÐIDENTIFICATION AND displays a currently valid OMB control U.S.C. 804(2). LISTING OF HAZARDOUS WASTE number. The OMB control numbers for List of Subjects EPA’s regulations are listed in 40 CFR Subpart AÐGeneral Part 9 and 48 CFR Chapter 15. 40 CFR Part 148 Send comments on the Agency’s 3. The authority citation for part 261 Administrative practice and continues to read as follows: burden reduction, the accuracy of the procedure, Hazardous waste, Reporting provided burden estimates, and any and recordkeeping requirements, Water Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938. suggested methods for minimizing supply. respondent burden, including through 4. Section 261.1 is amended by the use of automated collection of 40 CFR Part 261 adding paragraphs (c) (9) through (12) to techniques to the Director, OPPE Environmental protection, Hazardous read as follows: Regulatory Information Division; U.S. waste, Recycling, Reporting and Environmental Protection Agency recordkeeping requirements. § 261.1 Purpose and scope. (2136); 401 M St., S.W.; Washington, DC * * * * * 20460; and to the Office of Information 40 CFR Part 268 (c) * * * and Regulatory Affairs, Office of Environmental protection, Hazardous (9) ‘‘Excluded scrap metal’’ is Management and Budget, 725 17th St., waste, Reporting and recordkeeping processed scrap metal, unprocessed N.W., Washington, D.C. 20503, marked requirements. home scrap metal, and unprocessed ‘‘Attention: Desk Officer for EPA.’’ 40 CFR Part 271 prompt scrap metal. Include the ICR number in any (10) ‘‘Processed scrap metal’’ is scrap correspondence. Administrative practice and metal which has been manually or procedure, Hazardous materials XI. Environmental Justice physically altered to either separate it transportation, Hazardous waste, into distinct materials to enhance A. Applicability of Executive Order Penalties, Reporting and recordkeeping economic value or to improve the 12898 requirements. handling of materials. Processed scrap EPA is committed to address Dated: April 18, 1997. metal includes, but is not limited to environmental justice concerns and is Carol M. Browner, scrap metal which has been baled, assuming a leadership role in Administrator. shredded, sheared, chopped, crushed, flattened, cut, melted, or separated by environmental justice initiatives to For the reasons set out in the metal type (i.e., sorted), and, fines, enhance environmental quality for all preamble, Title 40, chapter I of the Code drosses and related materials which residents of the United States. The of Federal Regulations is amended as have been agglomerated. (Note: Agencies goals are to ensure that no follows: segment of the population, regardless of shredded circuit boards being sent for race, color, national origin, or income PART 148ÐHAZARDOUS WASTE recycling are not considered processed bears disproportionately high and INJECTION RESTRICTIONS scrap metal. They are covered under the adverse human health and exclusion from the definition of solid environmental effects as a result of 1. The authority citation for Part 148 waste for shredded circuit boards being EPA’s policies, programs, and activities, continues to read as follows: recycled (§ 261.4(a)(13)). and all people live in clean and Authority: Section 3004, Resource (11) ‘‘Home scrap metal’’ is scrap sustainable communities. Conservation and Recovery Act, 42 U.S.C. metal as generated by steel mills, 6901, et seq. foundries, and refineries such as B. Potential Effects 2. Section 148.18 is amended by turnings, cuttings, punchings, and Today’s rule is intended to reduce revising the heading, redesignating borings. risks of disposing hazardous wastes, and paragraphs (a) through (c) as (c) through (12) ‘‘Prompt scrap metal’’ is scrap to benefit all populations. This rule is (e) respectively, and by adding metal as generated by the metal not expected to cause any paragraphs (a) and (b) to read as follows: working/fabrication industries and disproportionate impacts to minority or includes such scrap metal as turnings, low income communities versus § 148.18 Waste specific prohibitionsÐ cuttings, punchings, and borings. affluent or non-minority communities. newly listed and identified wastes. Prompt scrap is also known as (a) Effective August 11, 1997, the industrial or new scrap metal. XII. Submission to Congress and wastes specified in 40 CFR part 261 as 5. Section 261.2(c) is amended by General Accounting Office EPA Hazardous waste numbers F032, revising table 1 to read as follows: Under 5 U.S.C. 801(a)(1)(A) as added F034, F035 are prohibited from by the Small Business Regulatory underground injection. § 261.2 Definition of solid waste. Enforcement Fairness Act of 1996, EPA (b) Effective May 12, 1999, the wastes * * * * * submitted a report containing this rule specified in 40 CFR part 261 as EPA (c) * * * Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26019

TABLE 1

Use constitut- Energy recov- Speculative ing disposal ery/fuel Reclamation accumulation (§ 261.2(c)(1)) (§ 261.2(c)(2)) (§ 261.2(c)(3)) (§ 261.2(c)(4))

(1) (2) (3) (4)

Spent Materials ...... (*) (*) (*) (*) Sludges (listed in 40 CFR Part 261.31 or 261.32 ...... (*) (*) (*) (*) Sludges exhibiting a characteristic of hazardous waste ...... (*) (*) ...... (*) By-products (listed in 40 CFR 261.31 or 261.32) ...... (*) (*) (*) (*) By-products exhibiting a characteristic of hazardous waste ...... (*) (*) ...... (*) Commercial chemical products listed in 40 CFR 261.33 ...... (*) (*) ...... Scrap metal other than excluded scrap metal (see 261.1(c)(9)) ...... (*) (*) (*) (*) Note: The terms ``spent materials'', ``sludges'', ``by-products'', and ``scrap metal'' and ``processed scrap metal'' are defined in § 261.1.

* * * * * 1 kilogram of acute hazardous waste per certification that the requirements of 6. Section 261.4(a) is amended by month, as defined in § 261.5 of this § 268.4(a)(3) have been met. The adding paragraphs (a) (13) and (14) to chapter; following certification is required: read as follows: (2) Waste pesticides that a farmer * * * * * disposes of pursuant to § 262.70; § 261.4 Exclusions. 11. Section 268.7 is amended by (3) Wastes identified or listed as revising the section heading: revising (a) * * * hazardous after November 8, 1984 for paragraph (a); by removing paragraph (13) Excluded scrap metal (processed which EPA has not promulgated land (b)(2) and redesignating paragraphs scrap metal, unprocessed home scrap disposal prohibitions or treatment (b)(3) through (b)(7) as (b)(2) through metal, and unprocessed prompt scrap standards; (b)(6) respectively; and by revising the metal) being recycled. (4) De minimis losses of characteristic introductory text of paragraph (b), and (14) Shredded circuit boards being wastes to wastewaters are not revising paragraphs (b)(1), newly recycled provided that they are: considered to be prohibited wastes and designated paragraphs (b)(2) through (i) Stored in containers sufficient to are defined as losses from normal (b)(4), (c)(1), and (c)(2) to read as prevent a release to the environment material handling operations (e.g. spills follows: prior to recovery; and from the unloading or transfer of (ii) Free of mercury switches, mercury materials from bins or other containers, § 268.7 Testing, tracking, and relays and nickel-cadmium batteries and leaks from pipes, valves or other devices recordkeeping requirements for generators, lithium batteries. used to transfer materials); minor leaks treaters, and disposal facilities. * * * * * of process equipment, storage tanks or (a) Requirements for generators: (1) 7. Section 261.6 is amended by containers; leaks from well-maintained Determine if the waste has to be treated revising paragraph (a)(3)(ii) to read as pump packings and seals; sample before being land disposed, as follows: follows: purgings; and relief device discharges; A generator of a hazardous waste must discharges from safety showers and determine if the waste has to be treated § 261.6 Requirements for recyclable rinsing and cleaning of personal safety before it can be land disposed. This is materials. equipment; rinsate from empty done by determining if the hazardous (a) * * * containers or from containers that are waste meets the treatment standards in (3) * * * rendered empty by that rinsing; and § 268.40 or § 268.45. This determination (ii) Scrap metal that is not excluded laboratory wastes not exceeding one per can be made in either of two ways: under § 261.4(a)(13); cent of the total flow of wastewater into testing the waste or using knowledge of * * * * * the facility’s headworks on an annual the waste. If the generator tests the basis, or with a combined annualized waste, testing would normally PART 268ÐLAND DISPOSAL average concentration not exceeding one determine the total concentration of RESTRICTIONS part per million in the headworks of the hazardous constituents, or the facility’s wastewater treatment or concentration of hazardous constituents 8. The authority citation for part 268 pretreatment facility. in an extract of the waste obtained using continues to read as follows: * * * * * test method 1311 in ‘‘Test Methods for Authority: 42 U.S.C. 6905, 6912(a), 6921, 10. Section 268.4 is amended by Evaluating Solid Waste, Physical/ and 6924. revising paragraphs (a)(2)(iv), and (a)(4) Chemical Methods,’’ EPA Publication introductory text to read as follows: SW–846, as referenced in § 260.11 of Subpart AÐGeneral this chapter, depending on whether the 9. Section 268.1 is amended by § 268.4 Treatment surface impoundment treatment standard for the waste is revising paragraph (e) to read as follows: exemption. expressed as a total concentration or (a) * * * concentration of hazardous constituent § 268.1 Purpose, scope and applicability. (2) * * * in the waste’s extract. In addition, some * * * * * (iv) Recordkeeping: Sampling and hazardous wastes must be treated by (e) The following hazardous wastes testing and recordkeeping provisions of particular treatment methods before are not subject to any provision of part §§ 264.13 and 265.13 of this chapter they can be land disposed. These 268: apply. treatment standards are also found in (1) Waste generated by small quantity * * * * * § 268.40, and are described in detail in generators of less than 100 kilograms of (4) The owner or operator submits to § 268.42, Table 1. These wastes do not non-acute hazardous waste or less than the Regional Administrator a written need to be tested (however, if they are 26020 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations in a waste mixture, other wastes with (i) With the initial shipment of waste definition of hazardous waste under concentration level treatment standards to each treatment, storage, or disposal § 261.3(f) of this chapter are not subject would have to be tested). If a generator facility, the generator must send a one- to these requirements. determines they are managing a waste time written notice to each treatment, (4) For reporting, tracking and that displays a hazardous characteristic storage, or disposal facility receiving the recordkeeping when exceptions allow of ignitability, corrosivity, reactivity, or waste, and place a copy in the file. The certain wastes that do not meet the toxicity, they must comply with the notice must include the information treatment standards to be land disposed: special requirements of § 268.9 of this indicated in column ‘‘268.7(a)(3)’’ of the There are certain exemptions from the part in addition to any applicable Generator Paperwork Requirements requirement that hazardous wastes meet requirements in this section. Table in § 268.7(a)(4) and the following treatment standards before they can be (2) If the waste does not meet the certification statement, signed by an land disposed. These include, but are treatment standard: With the initial authorized representative: not limited to case-by-case extensions shipment of waste to each treatment or I certify under penalty of law that I under § 268.5, disposal in a no- storage facility, the generator must send personally have examined and am familiar migration unit under § 268.6, or a a one-time written notice to each with the waste through analysis and testing national capacity variance or case-by- treatment or storage facility receiving or through knowledge of the waste to support case capacity variance under subpart C the waste, and place a copy in the file. this certification that the waste complies with the treatment standards specified in 40 of this part. If a generator’s waste is so The notice must include the information CFR part 268 subpart D. I believe that the exempt, then with the initial shipment in column ‘‘268.7(a)(2)’’ of the Generator information I submitted is true, accurate, and of waste, the generator must send a one- Paperwork Requirements Table in complete. I am aware that there are time written notice to each land § 268.7(a)(4). No further notification is significant penalties for submitting a false disposal facility receiving the waste. necessary until such time that the waste certification, including the possibility of a The notice must include the information or facility change, in which case a new fine and imprisonment. indicated in column ‘‘268.7(a)(4)’’ of the notification must be sent and a copy (ii) If the waste changes, the generator Generator Paperwork Requirements placed in the generator’s file. must send a new notice and certification Table below. If the waste changes, the (3) If the waste meets the treatment to the receiving facility, and place a generator must send a new notice to the standard at the original point of copy in their files. Generators of receiving facility, and place a copy in generation: hazardous debris excluded from the their files.

GENERATOR PAPERWORK REQUIREMENTS TABLE

§ 268.7 § 268.7 § 268.7 § 268.7 Required information (a)(2) (a)(3) (a)(4) (a)(9)

1. EPA Hazardous Waste and Manifest numbers ...... ✔ ✔ ✔ ✔ 2. Statement: this waste is not prohibited from land disposal ...... ✔ 3. The waste is subject to the LDRs. The constituents of concern for F001±F005, and F039, and underlying hazardous constituents (for wastes that are not managed in a Clean Water Act (CWA) or CWA-equivalent facility), unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the LDR notice ...... ✔ ✔ 4. The notice must include the applicable wastewater/ nonwastewater category (see §§ 268.2(d) and (f)) and subdivisions made within a waste code based on waste- specific criteria (such as D003 reactive cyanide) ...... ✔ ✔ 5. Waste analysis data (when available) ...... ✔ ✔ ✔ 6. Date the waste is subject to the prohibition ...... ✔ 7. For hazardous debris, when treating with the alternative treatment technologies provided by § 268.45: the contaminants subject to treatment, as described in § 268.45(b); and an indication that these contaminants are being treated to comply with § 268.45 ...... ✔ ✔ 8. A certification is needed (see applicable section for exact wording) ...... ✔ ✔

(5) If a generator is managing and (i) The waste analysis plan must be (6) If a generator determines that the treating prohibited waste in tanks, based on a detailed chemical and waste is restricted based solely on his containers, or containment buildings physical analysis of a representative knowledge of the waste, all supporting regulated under 40 CFR 262.34 to meet sample of the prohibited waste(s) being data used to make this determination applicable LDR treatment standards treated, and contain all information must be retained on-site in the found at § 268.40, the generator must necessary to treat the waste(s) in generator’s files. If a generator develop and follow a written waste accordance with the requirements of determines that the waste is restricted analysis plan which describes the this part, including the selected testing based on testing this waste or an extract procedures they will carry out to frequency. developed using the test method 1311 in comply with the treatment standards. ‘‘Test Methods for Evaluating Solid (ii) Such plan must be kept in the (Generators treating hazardous debris Waste, Physical/Chemical Methods,’’ under the alternative treatment facility’s on-site files and made EPA Publication SW–846, as referenced standards of Table 1, § 268.45, however, available to inspectors. in § 260.11 of this chapter, and all waste are not subject to these waste analysis (iii) Wastes shipped off-site pursuant analysis data must be retained on-site in requirements.) The plan must be kept on to this paragraph must comply with the the generator’s files. site in the generator’s records, and the notification requirements of (7) If a generator determines that he is following requirements must be met: § 268.7(a)(3). managing a restricted waste that is Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26021 excluded from the definition of the Generator Paperwork Requirements automatically extended during the hazardous or solid waste or exempt Table of paragraph (a)(4) of this section, course of any unresolved enforcement from Subtitle C regulation, under 40 and the following certification. The action regarding the regulated activity or CFR 261.2 through 261.6 subsequent to certification, which must be signed by as requested by the Administrator. the point of generation (including an authorized representative and must (b) Treatment facilities must test their deactivated characteristic hazardous be placed in the generator’s files, must wastes according to the frequency wastes managed in wastewater say the following: specified in their waste analysis plans treatment systems subject to the Clean I certify under penalty of law that I as required by 40 CFR 264.13 (for Water Act (CWA) as specified at 40 CFR personally have examined and am familiar permitted TSDs) or 40 CFR 265.13 (for 261.4(a)(2), or are CWA-equivalent), he with the waste and that the lab pack contains interim status facilities). Such testing must place a one-time notice stating only wastes that have not been excluded must be performed as provided in such generation, subsequent exclusion under appendix IV to 40 CFR part 268 and paragraphs (b)(1), (b)(2) and (b)(3) of this from the definition of hazardous or solid that this lab pack will be sent to a section. waste or exemption from RCRA Subtitle combustion facility in compliance with the alternative treatment standards for lab packs (1) For wastes with treatment C regulation, and the disposition of the standards expressed as concentrations waste, in the facility’s file. at 40 CFR 268.42(c). I am aware that there are significant penalties for submitting a false in the waste extract (TCLP), the owner (8) Generators must retain on-site a or operator of the treatment facility must copy of all notices, certifications, waste certification, including the possibility of fine or imprisonment. test an extract of the treatment residues, analysis data, and other documentation using test method 1311 (the Toxicity produced pursuant to this section for at (ii) No further notification is necessary until such time that the Characteristic Leaching Procedure, least three years from the date that the described in ‘‘Test Methods for waste that is the subject of such wastes in the lab pack change, or the Evaluating Solid Waste, Physical/ documentation was last sent to on-site receiving facility changes, in which case Chemical Methods,’’ EPA Publication or off-site treatment, storage, or a new notice and certification must be SW–846 as incorporated by reference in disposal. The three year record retention sent and a copy placed in the § 260.11 of this chapter), to assure that period is automatically extended during generator’s file. the treatment residues extract meet the the course of any unresolved (iii) If the lab pack contains applicable treatment standards. enforcement action regarding the characteristic hazardous wastes (D001– regulated activity or as requested by the D043), underlying hazardous (2) For wastes with treatment Administrator. The requirements of this constituents (as defined in § 268.2(i)) standards expressed as concentrations paragraph apply to solid wastes even need not be determined. in the waste, the owner or operator of when the hazardous characteristic is (iv) The generator must also comply the treatment facility must test the removed prior to disposal, or when the with the requirements in paragraphs treatment residues (not an extract of waste is excluded from the definition of (a)(6) and (a)(7) of this section. such residues) to assure that they meet hazardous or solid waste under 40 CFR (10) Small quantity generators with the applicable treatment standards. 261.2 through 261.6, or exempted from tolling agreements pursuant to 40 CFR (3) A one-time notice must be sent Subtitle C regulation, subsequent to the 262.20(e) must comply with the with the initial shipment of waste to the point of generation. applicable notification and certification land disposal facility. A copy of the (9) If a generator is managing a lab requirements of paragraph (a) of this notice must be placed in the treatment pack containing hazardous wastes and section for the initial shipment of the facility’s file. wishes to use the alternative treatment waste subject to the agreement. Such (i) No further notification is necessary standard for lab packs found at generators must retain on-site a copy of until such time that the waste or § 268.42(c): the notification and certification, receiving facility change, in which case (i) With the initial shipment of waste together with the tolling agreement, for a new notice must be sent and a copy to a treatment facility, the generator at least three years after termination or placed in the treatment facility’s file. must submit a notice that provides the expiration of the agreement. The three- (ii) The one-time notice must include information in column ‘‘§ 268.7(a)(9)’’ in year record retention period is these requirements:

TREATMENT FACILITY PAPERWORK REQUIREMENTS TABLE

Required information § 268.7(b)

1. EPA Hazardous Waste and Manifest numbers ...... ✔ 2. The waste is subject to the LDRs. The constituents of concern for F001-F005, and F039, and underlying hazardous constitu- ents (for wastes that are not managed in a Clean Water Act (CWA) or CWA-equivalent facility), unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the LDR notice...... ✔ 3. The notice must include the applicable wastewater/ nonwastewater category (see §§ 268.2(d) and (f)) and subdivisions made within a waste code based on waste-specific criteria (such as D003 reactive cyanide) ...... ✔ 4. Waste analysis data (when available) ...... ✔ 5. A certification statement is needed (see applicable section for exact wording) ...... ✔

(4) The treatment facility must submit disposal facility. The certification must certification. Based on my inquiry of those a one-time certification signed by an state: individuals immediately responsible for obtaining this information, I believe that the authorized representative with the I certify under penalty of law that I have treatment process has been operated and initial shipment of waste or treatment personally examined and am familiar with residue of a restricted waste to the land maintained properly so as to comply with the the treatment technology and operation of the treatment standards specified in 40 CFR treatment process used to support this 268.40 without impermissible dilution of the 26022 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations prohibited waste. I am aware there are plan as required by § 264.13 or § 265.13 contaminated with F032, F034, F035; significant penalties for submitting a false of this chapter. and radioactive wastes mixed with EPA certification, including the possibility of fine Hazardous waste numbers F032, F034, and imprisonment. * * * * * 12. Section 268.9 is amended by and F035. (i) A copy of the certification must be revising paragraph (a) and (d)(1)(ii) to (c) Between May 12, 1997 and May placed in the treatment facility’s on-site read as follows: 12, 1999, soil and debris contaminated files. If the waste or treatment residue with F032, F034, F035; and radioactive changes, or the receiving facility § 268.9 Special rules regarding wastes that waste mixed with F032, F034, and F035 exhibit a characteristic. changes, a new certification must be may be disposed in a landfill or surface sent to the receiving facility, and a copy (a) The initial generator of a solid impoundment only if such unit is in placed in the file. waste must determine each EPA compliance with the requirements (ii) Debris excluded from the Hazardous Waste Number (waste code) specified in § 268.5(h)(2) of this part. applicable to the waste in order to definition of hazardous waste under (d) The requirements of paragraphs (a) determine the applicable treatment § 261.3(e) of this chapter (i.e., debris and (b) of this section do not apply if: standards under subpart D of this part. treated by an extraction or destruction (1) The wastes meet the applicable technology provided by Table 1, For purposes of part 268, the waste will carry the waste code for any applicable treatment standards specified in Subpart § 268.45, and debris that the Director D of this part; has determined does not contain listed waste (Part 261, Subpart D). In (2) Persons have been granted an hazardous waste), however, is subject to addition, where the waste exhibits a exemption from a prohibition pursuant the notification and certification characteristic, the waste will carry one to a petition under § 268.6, with respect requirements of paragraph (d) of this or more of the characteristic waste codes to those wastes and units covered by the section rather than the certification (Part 261, Subpart C), except when the petition; requirements of this paragraph. treatment standard for the listed waste (iii) For wastes with organic operates in lieu of the treatment (3) The wastes meet the applicable constituents having treatment standards standard for the characteristic waste, as alternate treatment standards expressed as concentration levels, if specified in paragraph (b) of this established pursuant to a petition compliance with the treatment section. If the generator determines that granted under § 268.44; or standards is based in whole or in part their waste displays a hazardous (4) Persons have been granted an on the analytical detection limit characteristic (and is not D001 extension to the effective date of a alternative specified in § 268.40(d), the nonwastewaters treated by CMBST, prohibition pursuant to § 268.5, with certification, signed by an authorized RORGS, OR POLYM of § 268.42, Table respect to those wastes covered by the representative, must state the following: 1), the generator must determine the extension. underlying hazardous constituents (as I certify under penalty of law that I have (e) To determine whether a hazardous personally examined and am familiar with defined at § 268.2(i)) in the waste identified in this section exceeds the treatment technology and operation of the characteristic waste. the applicable treatment standards treatment process used to support this * * * * * specified in § 268.40, the initial certification. Based on my inquiry of those (d) * * * generator must test a sample of the individuals immediately responsible for (1) * * * waste extract or the entire waste, obtaining this information, I believe that the (ii) A description of the waste as depending on whether the treatment nonwastewater organic constituents have initially generated, including the standards are expressed as been treated by combustion units as specified applicable EPA hazardous waste concentrations in the waste extract or in 268.42, Table 1. I have been unable to code(s), treatability group(s), and detect the nonwastewater organic the waste, or the generator may use constituents, despite having used best good- underlying hazardous constituents (as knowledge of the waste. If the waste faith efforts to analyze for such constituents. defined in § 268.2(i)), unless the waste contains constituents in excess of the I am aware there are significant penalties for will be treated and monitored for all applicable Universal Treatment submitting a false certification, including the underlying hazardous constituents. If all Standard levels of § 268.48 of this part, possibility of fine and imprisonment. underlying hazardous constituents will the waste is prohibited from land * * * * * be treated and monitored, there is no disposal, and all requirements of part (c) * * * requirement to list any of the underlying 268 are applicable, except as otherwise (1) Have copies of the notice and hazardous constituents on the notice. specified. certifications specified in paragraph (a) * * * * * §§ 268.32, 268.33, 268.34, 268.35 and 286.36 or (b) of this section. [Removed and Reserved] (2) Test the waste, or an extract of the Subpart CÐProhibitions on Land waste or treatment residue developed Disposal 14. Sections 268.32, 268.33, 268.34, using test method 1311 (the Toxicity 268.35, and 268.36 are removed and 13. Section 268.30 is revised to read Characteristic Leaching Procedure), reserved. as follows: described in ‘‘Test Methods for Subpart DÐTreatment Standards Evaluating Solid Waste, Physical/ § 268.30 Waste specific prohibitionsÐ Chemical Methods,’’ EPA Publication wood preserving wastes. 15. In § 268.40 the Table of Treatment SW–846 as incorporated by reference in (a) Effective August 11, 1997, the Standards is amended by adding, in § 260.11 of this chapter), to assure that following wastes are prohibited from alpha-numerical order, entries for F032, the wastes or treatment residues are in land disposal: the wastes specified in 40 F034, and F035, and revising entries for compliance with the applicable CFR part 261 as EPA Hazardous Waste D001, F024 to read as follows: treatment standards set forth in subpart numbers F032, F034, and F035. D of this part. Such testing must be (b) Effective May 12, 1999, the § 268.40 Applicability of treatment performed according to the frequency following wastes are prohibited from standards. specified in the facility’s waste analysis land disposal: soil and debris * * * * * Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26023

TREATMENT STANDARDS FOR HAZARDOUS WASTES [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Concentration in Waste Waste description and treat- 5 1 3 mg/kg unless code ment/regulatory subcategory 2 Concentration in mg/l ; Common name CAS No. 4 noted as ``mg/l or technology code TCLP''; or tech- nology code

D001 9 ...... High TOC Ignitable Char- NA ...... NA NA ...... RORGS; CMBST; acteristic Liquids Sub- OR POLYM category based on 40 CFR 261.21(a)(1)ÐGreater than or equal to 10% total organic carbon. (Note: This sub- category consists of nonwastewaters only.).

******* F024 ...... Process wastes, including but All F024 wastes ...... NA CMBST 11 ...... CMBST 11 not limited to, distillation resi- 2-Chloro-1,3-butadiene ...... 126±99±8 0.057 ...... 0.28 dues, heavy ends, tars, and 3-Chloropropylene ...... 107±05±1 0.036 ...... 30 reactor clean-out wastes, 1,1-Dichloroethane ...... 75±34±3 0.059 ...... 6.0 from the production of cer- 1,2-Dichloroethane ...... 107±06±2 0.21 ...... 6.0 tain chlorinated aliphatic hy- 1,2-Dichloropropane ...... 78±87±5 0.85 ...... 18 drocarbons by free radical cis-1,3-Dichloropropylene ...... 10061±01±5 0.036 ...... 18 catalyzed processes. These trans-1,3-Dichloropropylene ...... 10061±02±6 0.036 ...... 18 chlorinated aliphatic hydro- bis(2-Ethylhexyl) phthalate ...... 117±81±7 0.28 ...... 28 carbons are those having Hexachloroethane ...... 67±72±1 0.055 ...... 30 carbon chain lengths ranging Chromium (Total) ...... 7440±47±3 2.77 ...... 0.86 mg/l TCLP from one to and including Nickel ...... 7440±02±0 3.98 ...... 5.0 mg/l TCLP five, with varying amounts and positions of chlorine substitution. (This listing does not include wastewaters, wastewater treatment sludges, spent catalysts, and wastes listed in § 261.31 or § 261.32.).

******* F032 ...... Wastewaters (except those that Acenaphthene ...... 83±32±9 0.059 ...... 3.4 have not come into contact Anthracene ...... 120±12±7 0.059 ...... 3.4 with process contaminants), Benz(a)anthracene ...... 56±55±3 0.059 ...... 3.4 process residuals, preserva- Benzo(b)fluoranthene (difficult to 205±99±2 0.11 ...... 6.8 tive drippage, and spent for- distinguish from benzo(k) fluo- mulations from wood pre- ranthene). serving processes generated Benzo(k)fluoranthene (difficult to 207±08±9 0.11 ...... 6.8 at plants that currently use or distinguish from benzo(b) fluo- have previously used ranthene). chlorophenolic formulations Benzo(a)pyrene ...... 50±32±8 0.061 ...... 3.4 (except potentially cross-con- Chrysene ...... 218±01±9 0.059 ...... 3.4 taminated wastes that have Dibenz(a,h)anthracene ...... 53±70±3 0.055 ...... 8.2 had the F032 waste code 2-4-Dimethyl phenol ...... 105±67±9 0.036 ...... 14 deleted in accordance with Fluorene ...... 86±73±7 0.059 ...... 3.4 § 261.35 of this chapter or Hexachlorodibenzo-p-dioxins ...... NA 0.000063 or CMBST 11 .. 0.001 or CMBST 11 potentially cross-contami- Hexachlorodibenzofurans ...... NA 0.000063 or CMBST 11 .. 0.001 or CMBST 11 nated wastes that are other- Indeno (1,2,3-c,d) pyrene ...... 193±39±5 0.0055 ...... 3.4 wise currently regulated as Naphthalene ...... 91±20±3 0.059 ...... 5.6 hazardous wastes (i.e., F034 Pentachlorodibenzo-p-dioxins ..... NA 0.000063 or CMBST 11 .. 0.001 or CMBST 11 or F035), and where the Pentachlorodibenzofurans ...... NA 0.000035 or CMBST 11 .. 0.001 or CMBST 11 generator does not resume Pentachlorophenol ...... 87±86±5 0.089 ...... 7.4 or initiate use of Phenanthrene ...... 85±01±8 0.059 ...... 5.6 chlorophenolic formulations). Phenol ...... 108±95±2 0.039 ...... 6.2 This listing does not include Pyrene ...... 129±00±0 0.067 ...... 8.2 K001 bottom sediment Tetrachlorodibenzo-p-dioxins ...... NA 0.000063 or CMBST 11 .. 0.001 or CMBST 11 sludge from the treatment of Tetrachlorodibenzofurans ...... NA 0.000063 or CMBST 11 .. 0.001 or CMBST 11 wastewater from wood pre- 2,3,4,6-Tetrachlorophenol ...... 58±90±2 0.030 ...... 7.4 serving processes that use 2,4,6-Trichlorophenol ...... 88±06±2 0.035 ...... 7.4 creosote and/or penta- Arsenic ...... 7440±38±2 1.4 ...... 5.0 mg/l TCLP chlorophenol. Chromium (Total) ...... 7440±47±3 2.77 ...... 0.86 mg/lTCLP 26024 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Concentration in Waste Waste description and treat- 5 1 3 mg/kg unless code ment/regulatory subcategory 2 Concentration in mg/l ; Common name CAS No. 4 noted as ``mg/l or technology code TCLP''; or tech- nology code

F034 ...... Wastewaters (except those that Acenaphthene ...... 83±32±9 0.059 ...... 3.4 have not come into contact Anthracene ...... 120±12±7 0.059 ...... 3.4 with process contaminants), Benz(a)anthracene ...... 56±55±3 0.059 ...... 3.4 process residuals, preserva- Benzo(b)fluoranthene (difficult to 205±99±2 0.11 ...... 6.8 tive drippage, and spent for- distinguish from mulations from wood pre- benzo(k)fluoranthene). serving processes generated Benzo(k)fluoranthene (difficult to 207±08±9 0.11 ...... 6.8 at plants that use creosote distinguish from formulations. This listing benzo(b)fluoranthene). does not include K001 bot- Benzo(a)pyrene ...... 50±32±8 0.061 ...... 3.4 tom sediment sludge from Chrysene ...... 218±01±9 0.059 ...... 3.4 the treatment of wastewater Dibenz(a,h)anthracene ...... 53±70±3 0.055 ...... 8.2 from wood preserving proc- Fluorene ...... 86±73±7 0.059 ...... 3.4 esses that use creosote and/ Indeno (1,2,3-c,d) pyrene ...... 193±39±5 0.0055 ...... 3.4 or pentachlorophenol. Naphthalene ...... 91±20±3 0.059 ...... 5.6 Phenanthrene ...... 85±01±8 0.059 ...... 5.6 Pyrene ...... 129±00±0 0.067 ...... 8.2 Arsenic ...... 7440±38±2 1.4 ...... 5.0 mg/l TCLP Chromium (Total) ...... 7440±47±3 2.77 ...... 0.86 mg/l TCLP F035 ...... Wastewaters (except those that Arsenic ...... 7440±38±2 1.4 ...... 5.0 mg/l TCLP have not come into contact Chromium (Total) ...... 7440±47±3 2.77 ...... 0.86 mg/l TCLP with process contaminants), process residuals, preserva- tive drippage, and spent for- mulations from wood pre- serving processes processes generated at plants that use inorganic preservatives con- taining arsenic or chromium. This listing does not include K001 bottom sediment sludge from the treatment of wastewater from wood pre- serving processes that use creosote and/or pentachlorophenol.

*******

FOOTNOTES TO TREATMENT STANDARDS TABLE 268.40: 1 The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Regulatory Subcategories are provided, as needed, to distinguish between applicability of different standards. 2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 3 Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite samples. 4 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in § 268.42 Table 1Ð Technology Codes and Descriptions of Technology-Based Standards. 5 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O, or part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may comply with these treatment standards according to provisions in § 268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples. 6 Where an alternate treatment standard or set of alternate standards has been indicated, a facility may comply with this alternate standard, but only for the Treatment/Regulatory Subcategory or physical form (i.e., wastewater and/or nonwastewater) specified for that alternate standard. 7 Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or 9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA Publication SW±846, as incorporated by reference in 40 CFR 260.11, with a sam- ple size of 10 grams and a distillation time of one hour and 15 minutes. 8 These wastes, when rendered nonhazardous and then subsequently managed in CWA, or CWA-equivalent systems are not subject to treat- ment standards. (See § 268.1(c) (3) and (4)). 9 These wastes, when rendered nonhazardous and then subsequently injected in a Class I SDWA well are not subject to treatment standards. (See 40 CFR part 148.1(d)). 10 Between August 26, 1996, and August 26, 1997, the treatment standard for this waste may be satisfied by either meeting the constituent concentrations in this table or by treating the waste by the specified technologies: combustion, as defined by the technolgy code CMBST at § 268.42 Table 1 of this part, for nonwastewaters; and, biodegradation as definded by the technolgy code BIODG, carbon adsorption as defined by the technology code CARBN, chemical oxidation as defined by the technology code CHOXD, or combustion as defined as technolgy code CMBST at § 268.42 Table 1 of this part, for wastewaters. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26025

TREATMENT STANDARDS FOR HAZARDOUS WASTES [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Concentration in Waste Waste description and treat- 5 1 3 mg/kg unless code ment/regulatory subcategory 2 Concentration in mg/l ; Common name CAS No. 4 noted as ``mg/l or technology code TCLP''; or tech- nology code

11 For these wastes, the definition of CMBST is limited to: (1) combustion units operating under 40 CFR 266, (2) combustion units permitted under 40 CFR Part 264, Subpart O, or (3) combustion units operating under 40 CFR 265, Subpart O, which have obtained a determination of equivalent treatment under 268.42(b).

* * * * * § 268.42 [Amended] of Technology-Based Standards, in 16. Section 268.42 is amended by alphabetical order, to read as follows: adding the entry ‘‘POLYM’’ into Table * * * * * 1.— Technology Codes and Description

TABLE 1.ÐTECHNOLOGY CODES AND DESCRIPTION OF TECHNOLOGY-BASED STANDARDS

Technology code Description of technology-based standards

******* POLYM: ...... Formation of complex high-molecular weight solids through polymerization of monomers in high-TOC D001 non-wastewaters which are chemical components in the manufacture of plastics.

*******

* * * * * Appendices I, II, III, and X to Part 268 hazardous constituents (see § 268.2(i)) must [Removed and Reserved] be treated not only by a ‘‘deactivating’’ 17. Section 268.44 is amended by technology to remove the characteristic, but revising both entries in the ‘‘see also’’ 18. Appendices I, II, III, and X to part also to achieve the universal treatment column of the table in paragraph (o) to 268 are removed and reserved. standards (UTS) for underlying hazardous read ‘‘§ 268.40’’ and by revising the 19. The introductory language of constituents. The following appendix introductory language of paragraph (o) appendix VI to part 268 is revised to presents a partial list of technologies, and the heading of the table in read as follows: utilizing the five letter technology codes paragraph (o) to read as follows: established in 40 CFR 268.42 Table 1, that Appendix VI to Part 268— may be useful in meeting the treatment Recommended Technologies to Achieve § 268.44 Variance from a treatment standard. Use of these specific technologies standard. Deactivation of Characteristics in is not mandatory and does not preclude Section 268.42 direct reuse, recovery, and/or the use of other * * * * * pretreatment technologies, provided The treatment standard for many deactivation is achieved and underlying (o) The following facilities are characteristic wastes is stated in the § 268.40 excluded from the treatment standards hazardous constituents are treated to achieve Table of Treatment Standards as the UTS. under § 268.40 and are subject to the ‘‘Deactivation and meet UTS.’’ EPA has following constituent concentrations: determined that many technologies, when * * * * * used alone or in combination, can achieve 20. Appendix VII to Part 268 is Table—Wastes Excluded from the the deactivation portion of the treatment revised to read as follows: Treatment Standards Under § 268.40. standard. Characteristic wastes that are not Appendix VII to Part 268—LDR * * * * * managed in a facility regulated by the Clean Water Act (CWA) or in a CWA-equivalent Effective Dates of Surface Disposed facility, and that also contain underlying Prohibited Hazardous Wastes

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LIST

Waste code Waste category Effective date

D001 c ...... All (except High TOC Ignitable Liquids) ...... Aug. 9, 1993. D001 ...... High TOC Ignitable Liquids ...... Aug. 8, 1990. D002 c ...... All ...... Aug. 9, 1993. D003 e ...... All ...... July 8, 1996. D004 ...... Nonwastewater ...... May 8, 1992. D004 ...... Wastewater ...... Aug. 8, 1992. D005 ...... All ...... Aug. 8, 1990. D006 ...... All ...... Aug. 8, 1990. D007 ...... All ...... Aug. 8, 1990. D008 ...... Lead materials before secondary smelting ...... May 8, 1992. 26026 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

D008 ...... All others ...... Aug. 8, 1990. D009 ...... Nonwastewater ...... May 8, 1992. D009 ...... All others ...... Aug. 8, 1990. D010 ...... All ...... Aug. 8, 1990. D011 ...... All ...... Aug. 8, 1990. D012 (that exhibit the toxicity characteristic based All ...... Dec. 14, 1994. on the TCLP) d. D013 (that exhibit the toxicity characteristic based All ...... Dec. 14, 1994. on the TCLP) d. D014 (that exhibit the toxicity characteristic based All ...... Dec. 14, 1994. on the TCLP) d. D015 (that exhibit the toxicity characteristic based All ...... Dec. 14, 1994. on the TCLP) d. D016 (that exhibit the toxicity characteristic based All ...... Dec. 14, 1994. on the TCLP) d. D017 (that exhibit the toxicity characteristic based All ...... Dec. 14, 1994. on the TCLP) d. D018 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D018 ...... All others ...... Dec. 19, 1994. D019 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D019 ...... All others ...... Dec. 19, 1994. D020 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D020 ...... All others ...... Dec. 19, 1994. D021 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D021 ...... All others ...... Dec. 19, 1994. D022 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D022 ...... All others ...... Dec. 19, 1994. D023 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D023 ...... All others ...... Dec. 19, 1994. D024 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D024 ...... All others ...... Dec. 19, 1994. D025 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D025 ...... All others ...... Dec. 19, 1994. D026 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D026 ...... All others ...... Dec. 19, 1994. D027 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D027 ...... All others ...... Dec. 19, 1994. D028 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D028 ...... All others ...... Dec. 19, 1994. D029 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D029 ...... All others ...... Dec. 19, 1994. D030 ...... Mixed with radioactive wastes ...... Sept. 19. 1996. D030 ...... All others ...... Dec. 19, 1994. D031 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D031 ...... All others ...... Dec. 19, 1994. D032 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D032 ...... All others ...... Dec. 19, 1994. D033 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D033 ...... All others ...... Dec. 19, 1994. D034 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D034 ...... All others ...... Dec. 19, 1994. D035 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D035 ...... All others ...... Dec. 19, 1994. D036 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D036 ...... All others ...... Dec. 19, 1994. D037 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D037 ...... All others ...... Dec. 19, 1994. D038 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D038 ...... All others ...... Dec. 19, 1994. D039 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D039 ...... All others ...... Dec. 19, 1994. D040 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D040 ...... All others ...... Dec. 19, 1994. D041 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D041 ...... All others ...... Dec. 19, 1994. D042 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D042 ...... All others ...... Dec. 19, 1994. D043 ...... Mixed with radioactive wastes ...... Sept. 19, 1996. D043 ...... All others ...... Dec. 19, 1994. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26027

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

F001 ...... Small quantity generators, CERCLA response/RCRA corrective action, Nov. 8, 1988. initial generator's solvent-water mixtures, solvent-containing sludges and solids. F001 ...... All others ...... Nov. 8, 1986. F002 (1,1,2-trichloroethane) ...... Wastewater and Nonwastewater ...... Aug. 8, 1990. F002 ...... Small quantity generators, CERCLA response/RCRA corrective action, Nov. 8, 1988. initial generator's solvent-water mixtures, solvent-containing sludges and solids. F002 ...... All others ...... Nov. 8, 1986. F003 ...... Small quantity generators, CERCLA response/RCRA corrective action, Nov. 8, 1988. initial generator's solvent-water mixtures, solvent-containing sludges and solids. F003 ...... All others ...... Nov. 8, 1986. F004 ...... Small quantity generators, CERCLA response/RCRA corrective action, Nov. 8, 1988. initial generator's solvent-water mixtures, solvent-containing sludges and solids. F004 ...... All others ...... Nov. 8, 1986. F005 (benzene, 2-ethoxy ethanol, 2-nitropropane) Wastewater and Nonwastewater ...... Aug. 8, 1990. F005 ...... Small quantity generators, CERCLA response/RCRA corrective action, Nov. 8, 1988. initial generator's solvent-water mixtures, solvent-containing sludges and solids. F005 ...... All others ...... Nov. 8, 1986. F006 ...... Wastewater ...... Aug. 8, 1990. F006 ...... Nonwastewater ...... Aug. 8, 1988. F006 (cyanides) ...... Nonwastewater ...... July 8, 1989. F007 ...... All ...... July 8, 1989. F008 ...... All ...... July 8, 1989. F009 ...... All ...... July 8, 1989. F010 ...... All ...... June 8, 1989. F011 (cyanides) ...... Nonwastewater ...... Dec. 8, 1989. F011 ...... All others ...... July 8, 1989. F012 (cyanides) ...... Nonwastewater ...... Dec. 8, 1989. F012 ...... All others ...... July 8, 1989. F019 ...... All ...... Aug. 8, 1990. F020 ...... All ...... Nov. 8, 1988. F021 ...... All ...... Nov. 8, 1988. F025 ...... All ...... Aug. 8, 1990. F026 ...... All ...... Nov. 8, 1988. F027 ...... All ...... Nov. 8, 1988. F028 ...... All ...... Nov. 8, 1988. F032 ...... Mixed with radioactive wastes ...... May 12, 1999 F032 ...... All others ...... May 12, 1997 F033 ...... Mixed with radioactive wastes ...... May 12, 1999 F033 ...... All others ...... May 12, 1997 F034 ...... Mixed with radioactive wastes ...... May 12, 1999 F034 ...... All others ...... May 12, 1997 F037 ...... Not generated from surface impoundment cleanouts or closures ...... June 30, 1993. F037 ...... Generated from surface impoundment cleanouts or closures ...... June 30, 1994. F037 ...... Mixed with radioactive wastes ...... June 30, 1994. F038 ...... Not generated from surface impoundment cleanouts or closures ...... June 30, 1993. F038 ...... Generated from surface impoundment cleanouts or closures ...... June 30, 1994. F038 ...... Mixed with radioactive wastes ...... June 30, 1994. F039 ...... Wastewater ...... Aug. 8, 1990. F039 ...... Nonwastewater ...... May 8, 1992. K001 (organics) b ...... All ...... Aug. 8, 1988. K001 ...... All others ...... Aug. 8, 1988. K002 ...... All ...... Aug. 8, 1990. K003 ...... All ...... Aug. 8, 1990. K004 ...... Wastewater ...... Aug. 8, 1990. K004 ...... Nonwastewater ...... Aug. 8, 1988. K005 ...... Wastewater ...... Aug. 8, 1990. K005 ...... Nonwastewater ...... June 8, 1989. K006 ...... All ...... Aug. 8, 1990. K007 ...... Wastewater ...... Aug. 8, 1990. K007 ...... Nonwastewater ...... June 8, 1989. K008 ...... Wastewater ...... Aug. 8, 1990. K008 ...... Nonwastewater ...... Aug. 8, 1988. K009 ...... All ...... June 8, 1989. K010 ...... All ...... June 8, 1989. K011 ...... Wastewater ...... Aug. 8, 1990. K011 ...... Nonwastewater ...... June 8, 1989. 26028 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

K013 ...... Wastewater ...... Aug. 8, 1990. K013 ...... Nonwastewater ...... June 8, 1989. K014 ...... Wastewater ...... Aug. 8, 1990. K014 ...... Nonwastewater ...... June 8, 1989. K015 ...... Wastewater ...... Aug. 8, 1988. K015 ...... Nonwastewater ...... Aug. 8, 1990. K016 ...... All ...... Aug. 8, 1988. K017 ...... All ...... Aug. 8, 1990. K018 ...... All ...... Aug. 8, 1988. K019 ...... All ...... Aug. 8, 1988. K020 ...... All ...... Aug. 8, 1988. K021 ...... Wastewater ...... Aug. 8, 1990. K021 ...... Nonwastewater ...... Aug. 8, 1988. K022 ...... Wastewater ...... Aug. 8, 1990. K022 ...... Nonwastewater ...... Aug. 8, 1988. K023 ...... All ...... June 8, 1989. K024 ...... All ...... Aug. 8, 1988. K025 ...... Wastewater ...... Aug. 8, 1990. K025 ...... Nonwastewater ...... Aug. 8, 1988. K026 ...... All ...... Aug. 8, 1990. K027 ...... All ...... June 8, 1989. K028 (metals) ...... Nonwastewater ...... Aug. 8, 1990. K028 ...... All others ...... June 8, 1989. K029 ...... Wastewater ...... Aug. 8, 1990. K029 ...... Nonwastewater ...... June 8, 1989. K030 ...... All ...... Aug. 8, 1988. K031 ...... Wastewater ...... Aug. 8, 1990. K031 ...... Nonwastewater ...... May 8, 1992. K032 ...... All ...... Aug. 8, 1990. K033 ...... All ...... Aug. 8, 1990. K034 ...... All ...... Aug. 8, 1990. K035 ...... All ...... Aug. 8, 1990. K036 ...... Wastewater ...... June 8, 1989. K036 ...... Nonwastewater ...... Aug. 8, 1988. K037 b ...... Wastewater ...... Aug. 8, 1988. K037 ...... Nonwastewater ...... Aug. 8, 1988. K038 ...... All ...... June 8, 1989. K039 ...... All ...... June 8, 1989. K040 ...... All ...... June 8, 1989. K041 ...... All ...... Aug. 8, 1990. K042 ...... All ...... Aug. 8, 1990. K043 ...... All ...... June 8, 1989. K044 ...... All ...... Aug. 8, 1988. K045 ...... All ...... Aug. 8, 1988. K046 (Nonreactive) ...... Nonwastewater ...... Aug. 8, 1988. K046 ...... All others ...... Aug. 8, 1990. K047 ...... All ...... Aug. 8, 1988. K048 ...... Wastewater ...... Aug. 8, 1990. K048 ...... Nonwastewater ...... Nov. 8, 1990. K049 ...... Wastewater ...... Aug. 8, 1990. K049 ...... Nonwastewater ...... Nov. 8, 1990. K050 ...... Wastewater ...... Aug. 8, 1990. K050 ...... Nonwastewater ...... Nov. 8, 1990. K051 ...... Wastewater ...... Aug. 8, 1990. K051 ...... Nonwastewater ...... Nov. 8, 1990. K052 ...... Wastewater ...... Aug. 8, 1990. K052 ...... Nonwastewater ...... Nov. 8, 1990. K060 ...... Wastewater ...... Aug. 8, 1990. K060 ...... Nonwastewater ...... Aug. 8, 1988. K061 ...... Wastewater ...... Aug. 8, 1990. K061 ...... Nonwastewater ...... June 30, 1992. K062 ...... All ...... Aug. 8, 1988. K069 (Non-Calcium Sulfate) ...... Nonwastewater ...... Aug. 8, 1988. K069 ...... All others ...... Aug. 8, 1990. K071 ...... All ...... Aug. 8, 1990. K073 ...... All ...... Aug. 8, 1990. K083 ...... All ...... Aug. 8, 1990. K084 ...... Wastewater ...... Aug. 8, 1990. K084 ...... Nonwastewater ...... May 8, 1992. K085 ...... All ...... Aug. 8, 1990. K086 (organics) b ...... All ...... Aug. 8, 1988. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26029

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

K086 ...... All others ...... Aug. 8, 1988. K087 ...... All ...... Aug. 8, 1988. K088 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K088 ...... All others ...... Jan. 8, 1997. K093 ...... All ...... June 8, 1989. K094 ...... All ...... June 8, 1989. K095 ...... Wastewater ...... Aug. 8, 1990. K095 ...... Nonwastewater ...... June 8, 1989. K096 ...... Wastewater ...... Aug. 8, 1990. K096 ...... Nonwastewater ...... June 8, 1989. K097 ...... All ...... Aug. 8, 1990. K098 ...... All ...... Aug. 8, 1990. K099 ...... All ...... Aug. 8, 1988. K100 ...... Wastewater ...... Aug. 8, 1990. K100 ...... Nonwastewater ...... Aug. 8, 1988. K101 (organics) ...... Wastewater ...... Aug. 8, 1988. K101 (metals) ...... Wastewater ...... Aug. 8, 1990. K101 (organics) ...... Nonwastewater ...... Aug. 8, 1988. K101 (metals) ...... Nonwastewater ...... May 8, 1992. K102 (organics) ...... Wastewater ...... Aug. 8, 1988. K102 (metals) ...... Wastewater ...... Aug. 8, 1990. K102 (organics) ...... Nonwastewater ...... Aug. 8, 1988. K102 (metals) ...... Nonwastewater ...... May 8, 1992. K103 ...... All ...... Aug. 8, 1988. K104 ...... All ...... Aug. 8, 1988. K105 ...... All ...... Aug. 8, 1990. K106 ...... Wastewater ...... Aug. 8, 1990. K106 ...... Nonwastewater ...... May 8, 1992. K107 ...... Mixed with radioactive wastes ...... June 30, 1994. K107 ...... All others ...... Nov. 9, 1992. K108 ...... Mixed with radioactive wastes ...... June 30, 1994. K108 ...... All others ...... Nov. 9, 1992. K109 ...... Mixed with radioactive wastes ...... June 30, 1994. K109 ...... All others ...... Nov. 9, 1992. K110 ...... Mixed with radioactive wastes ...... June 30, 1994. K110 ...... All others ...... Nov. 9, 1992. K111 ...... Mixed with radioactive wastes ...... June 30, 1994. K111 ...... All others ...... Nov. 9, 1992. K112 ...... Mixed with radioactive wastes ...... June 30, 1994. K112 ...... All others ...... Nov. 9, 1992. K113 ...... All ...... June 8, 1989. K114 ...... All ...... June 8, 1989. K115 ...... All ...... June 8, 1989. K116 ...... All ...... June 8, 1989. K117 ...... Mixed with radioactive wastes ...... June 30, 1994. K117 ...... All others ...... Nov. 9, 1992. K118 ...... Mixed with radioactive wastes ...... June 30, 1994. K118 ...... All others ...... Nov. 9, 1992. K123 ...... Mixed with radioactive wastes ...... June 30, 1994. K123 ...... All others ...... Nov. 9, 1992. K124 ...... Mixed with radioactive wastes ...... June 30, 1994. K124 ...... All others ...... Nov. 9, 1992. K125 ...... Mixed with radioactive wastes ...... June 30, 1994. K125 ...... All others ...... Nov. 9, 1992. K126 ...... Mixed with radioactive wastes ...... June 30, 1994. K126 ...... All others ...... Nov. 9, 1992. K131 ...... Mixed with radioactive wastes ...... June 30, 1994. K131 ...... All others ...... Nov. 9, 1992. K132 ...... Mixed with radioactive wastes ...... June 30, 1994. K132 ...... All others ...... Nov. 9, 1992. K136 ...... Mixed with radioactive wastes ...... June 30, 1994. K136 ...... All others ...... Nov. 9, 1992. K141 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K141 ...... All others ...... Dec. 19, 1994. K142 ...... Mixed with radioactive wastes ...... Sep. 19, 1996.. K142 ...... All others ...... Dec. 19, 1994. K143 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K143 ...... All others ...... Dec. 19, 1994. K144 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K144 ...... All others ...... Dec. 19, 1994. K145 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. 26030 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

K145 ...... All others ...... Dec. 19, 1994. K147 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K147 ...... All others ...... Dec. 19, 1994. K148 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K148 ...... All others ...... Dec. 19, 1994. K149 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K149 ...... All others ...... Dec. 19, 1994. K150 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K150 ...... All others ...... Dec. 19, 1994. K151 ...... Mixed with radioactive wastes ...... Sep. 19, 1996. K151 ...... All others ...... Dec. 19, 1994. K156 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K156 ...... All others ...... July 8, 1996. K157 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K157 ...... All others ...... July 8, 1996. K158 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K158 ...... All others ...... July 8, 1996. K159 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K159 ...... All others ...... July 8, 1996. K160 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K160 ...... All others ...... July 8, 1996. K161 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. K161 ...... All others ...... July 8, 1996. P001 ...... All ...... Aug. 8, 1990. P002 ...... All ...... Aug. 8, 1990. P003 ...... All ...... Aug. 8, 1990. P004 ...... All ...... Aug. 8, 1990. P005 ...... All ...... Aug. 8, 1990. P006 ...... All ...... Aug. 8, 1990. P007 ...... All ...... Aug. 8, 1990. P008 ...... All ...... Aug. 8, 1990. P009 ...... All ...... Aug. 8, 1990. P010 ...... Wastewater ...... Aug. 8, 1990. P010 ...... Nonwastewater ...... May 8, 1992. P011 ...... Wastewater ...... Aug. 8, 1990. P011 ...... Nonwastewater ...... May 8, 1992. P012 ...... Wastewater ...... Aug. 8, 1990. P012 ...... Nonwastewater ...... May 8, 1992. P013 (barium) ...... Nonwastewater ...... Aug. 8, 1990. P013 ...... All others ...... June 8, 1989. P014 ...... All ...... Aug. 8, 1990. P015 ...... All ...... Aug. 8, 1990. P016 ...... All ...... Aug. 8, 1990. P017 ...... All ...... Aug. 8, 1990. P018 ...... All ...... Aug. 8, 1990. P020 ...... All ...... Aug. 8, 1990. P021 ...... All ...... June 8, 1989. P022 ...... All ...... Aug. 8, 1990. P023 ...... All ...... Aug. 8, 1990. P024 ...... All ...... Aug. 8, 1990. P026 ...... All ...... Aug. 8, 1990. P027 ...... All ...... Aug. 8, 1990. P028 ...... All ...... Aug. 8, 1990. P029 ...... All ...... June 8, 1989. P030 ...... All ...... June 8, 1989. P031 ...... All ...... Aug. 8, 1990. P033 ...... All ...... Aug. 8, 1990. P034 ...... All ...... Aug. 8, 1990. P036 ...... Wastewater ...... Aug. 8, 1990. P036 ...... Nonwastewater ...... May 8, 1992. P037 ...... All ...... Aug. 8, 1990. P038 ...... Wastewater ...... Aug. 8, 1990. P038 ...... Nonwastewater ...... May 8, 1992. P039 ...... All ...... June 8, 1989. P040 ...... All ...... June 8, 1989. P041 ...... All ...... June 8, 1989. P042 ...... All ...... Aug. 8, 1990. P043 ...... All ...... June 8, 1989. P044 ...... All ...... June 8, 1989. P045 ...... All ...... Aug. 8, 1990. P046 ...... All ...... Aug. 8, 1990. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26031

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

P047 ...... All ...... Aug. 8, 1990. P048 ...... All ...... Aug. 8, 1990. P049 ...... All ...... Aug. 8, 1990. P050 ...... All ...... Aug. 8, 1990. P051 ...... All ...... Aug. 8, 1990. P054 ...... All ...... Aug. 8, 1990. P056 ...... All ...... Aug. 8, 1990. P057 ...... All ...... Aug. 8, 1990. P058 ...... All ...... Aug. 8, 1990. P059 ...... All ...... Aug. 8, 1990. P060 ...... All ...... Aug. 8, 1990. P062 ...... All ...... June 8, 1989. P063 ...... All ...... June 8, 1989. P064 ...... All ...... Aug. 8, 1990. P065 ...... Wastewater ...... Aug. 8, 1990. P065 ...... Nonwastewater ...... May 8, 1992. P066 ...... All ...... Aug. 8, 1990. P067 ...... All ...... Aug. 8, 1990. P068 ...... All ...... Aug. 8, 1990. P069 ...... All ...... Aug. 8, 1990. P070 ...... All ...... Aug. 8, 1990. P071 ...... All ...... June 8, 1989. P072 ...... All ...... Aug. 8, 1990. P073 ...... All ...... Aug. 8, 1990. P074 ...... All ...... June 8, 1989. P075 ...... All ...... Aug. 8, 1990. P076 ...... All ...... Aug. 8, 1990. P077 ...... All ...... Aug. 8, 1990. P078 ...... All ...... Aug. 8, 1990. P081 ...... All ...... Aug. 8, 1990. P082 ...... All ...... Aug. 8, 1990. P084 ...... All ...... Aug. 8, 1990. P085 ...... All ...... June 8, 1989. P087 ...... All ...... May 8, 1992. P088 ...... All ...... Aug. 8, 1990. P089 ...... All ...... June 8, 1989. P092 ...... Wastewater ...... Aug. 8, 1990. P092 ...... Nonwastewater ...... May 8, 1992. P093 ...... All ...... Aug. 8, 1990. P094 ...... All ...... June 8, 1989. P095 ...... All ...... Aug. 8, 1990. P096 ...... All ...... Aug. 8, 1990. P097 ...... All ...... June 8, 1989. P098 ...... All ...... June 8, 1989. P099 (silver) ...... Wastewater ...... Aug. 8, 1990. P099 ...... All others ...... June 8, 1989. P101 ...... All ...... Aug. 8, 1990. P102 ...... All ...... Aug. 8, 1990. P103 ...... All ...... Aug. 8, 1990. P104 (silver) ...... Wastewater ...... Aug. 8, 1990. P104 ...... All others ...... June 8, 1989. P105 ...... All ...... Aug. 8, 1990. P106 ...... All ...... June 8, 1989. P108 ...... All ...... Aug. 8, 1990. P109 ...... All ...... June 8, 1989. P110 ...... All ...... Aug. 8, 1990. P111 ...... All ...... June 8, 1989. P112 ...... All ...... Aug. 8, 1990. P113 ...... All ...... Aug. 8, 1990. P114 ...... All ...... Aug. 8, 1990. P115 ...... All ...... Aug. 8, 1990. P116 ...... All ...... Aug. 8, 1990. P118 ...... All ...... Aug. 8, 1990. P119 ...... All ...... Aug. 8, 1990. P120 ...... All ...... Aug. 8, 1990. P121 ...... All ...... June 8, 1989. P122 ...... All ...... Aug. 8, 1990. P123 ...... All ...... Aug. 8, 1990. P127 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P127 ...... All others ...... July 8, 1996. P128 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. 26032 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

P128 ...... All others ...... July 8, 1996. P185 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P185 ...... All others ...... July 8, 1996. P188 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P188 ...... All others ...... July 8, 1996. P189 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P189 ...... All others ...... July 8, 1996. P190 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P190 ...... All others ...... July 8, 1996. P191 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P191 ...... All others ...... July 8, 1996. P192 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P192 ...... All others ...... July 8, 1996. P194 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P194 ...... All others ...... July 8, 1996. P196 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P196 ...... All others ...... July 8, 1996. P197 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P197 ...... All others ...... July 8, 1996. P198 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P198 ...... All others ...... July 8, 1996. P199 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P199 ...... All others ...... July 8, 1996. P201 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P201 ...... All others ...... July 8, 1996. P202 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P202 ...... All others ...... July 8, 1996. P203 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P203 ...... All others ...... July 8, 1996. P204 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P204 ...... All others ...... July 8, 1996. P205 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. P205 ...... All others ...... July 8, 1996. U001 ...... All ...... Aug. 8, 1990. U002 ...... All ...... Aug. 8, 1990. U003 ...... All ...... Aug. 8, 1990. U004 ...... All ...... Aug. 8, 1990. U005 ...... All ...... Aug. 8, 1990. U006 ...... All ...... Aug. 8, 1990. U007 ...... All ...... Aug. 8, 1990. U008 ...... All ...... Aug. 8, 1990. U009 ...... All ...... Aug. 8, 1990. U010 ...... All ...... Aug. 8, 1990. U011 ...... All ...... Aug. 8, 1990. U012 ...... All ...... Aug. 8, 1990. U014 ...... All ...... Aug. 8, 1990. U015 ...... All ...... Aug. 8, 1990. U016 ...... All ...... Aug. 8, 1990. U017 ...... All ...... Aug. 8, 1990. U018 ...... All ...... Aug. 8, 1990. U019 ...... All ...... Aug. 8, 1990. U020 ...... All ...... Aug. 8, 1990. U021 ...... All ...... Aug. 8, 1990. U022 ...... All ...... Aug. 8, 1990. U023 ...... All ...... Aug. 8, 1990. U024 ...... All ...... Aug. 8, 1990. U025 ...... All ...... Aug. 8, 1990. U026 ...... All ...... Aug. 8, 1990. U027 ...... All ...... Aug. 8, 1990. U028 ...... All ...... June 8, 1989. U029 ...... All ...... Aug. 8, 1990. U030 ...... All ...... Aug. 8, 1990. U031 ...... All ...... Aug. 8, 1990. U032 ...... All ...... Aug. 8, 1990. U033 ...... All ...... Aug. 8, 1990. U034 ...... All ...... Aug. 8, 1990. U035 ...... All ...... Aug. 8, 1990. U036 ...... All ...... Aug. 8, 1990. U037 ...... All ...... Aug. 8, 1990. U038 ...... All ...... Aug. 8, 1990. U039 ...... All ...... Aug. 8, 1990. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26033

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

U041 ...... All ...... Aug. 8, 1990. U042 ...... All ...... Aug. 8, 1990. U043 ...... All ...... Aug. 8, 1990. U044 ...... All ...... Aug. 8, 1990. U045 ...... All ...... Aug. 8, 1990. U046 ...... All ...... Aug. 8, 1990. U047 ...... All ...... Aug. 8, 1990. U048 ...... All ...... Aug. 8, 1990. U049 ...... All ...... Aug. 8, 1990. U050 ...... All ...... Aug. 8, 1990. U051 ...... All ...... Aug. 8, 1990. U052 ...... All ...... Aug. 8, 1990. U053 ...... All ...... Aug. 8, 1990. U055 ...... All ...... Aug. 8, 1990. U056 ...... All ...... Aug. 8, 1990. U057 ...... All ...... Aug. 8, 1990. U058 ...... All ...... June 8, 1989. U059 ...... All ...... Aug. 8, 1990. U060 ...... All ...... Aug. 8, 1990. U061 ...... All ...... Aug. 8, 1990. U062 ...... All ...... Aug. 8, 1990. U063 ...... All ...... Aug. 8, 1990. U064 ...... All ...... Aug. 8, 1990. U066 ...... All ...... Aug. 8, 1990. U067 ...... All ...... Aug. 8, 1990. U068 ...... All ...... Aug. 8, 1990. U069 ...... All ...... June 30, 1992. U070 ...... All ...... Aug. 8, 1990. U071 ...... All ...... Aug. 8, 1990. U072 ...... All ...... Aug. 8, 1990. U073 ...... All ...... Aug. 8, 1990. U074 ...... All ...... Aug. 8, 1990. U075 ...... All ...... Aug. 8, 1990. U076 ...... All ...... Aug. 8, 1990. U077 ...... All ...... Aug. 8, 1990. U078 ...... All ...... Aug. 8, 1990. U079 ...... All ...... Aug. 8, 1990. U080 ...... All ...... Aug. 8, 1990. U081 ...... All ...... Aug. 8, 1990. U082 ...... All ...... Aug. 8, 1990. U083 ...... All ...... Aug. 8, 1990. U084 ...... All ...... Aug. 8, 1990. U085 ...... All ...... Aug. 8, 1990. U086 ...... All ...... Aug. 8, 1990. U087 ...... All ...... June 8, 1989. U088 ...... All ...... June 8, 1989. U089 ...... All ...... Aug. 8, 1990. U090 ...... All ...... Aug. 8, 1990. U091 ...... All ...... Aug. 8, 1990. U092 ...... All ...... Aug. 8, 1990. U093 ...... All ...... Aug. 8, 1990. U094 ...... All ...... Aug. 8, 1990. U095 ...... All ...... Aug. 8, 1990. U096 ...... All ...... Aug. 8, 1990. U097 ...... All ...... Aug. 8, 1990. U098 ...... All ...... Aug. 8, 1990. U099 ...... All ...... Aug. 8, 1990. U101 ...... All ...... Aug. 8, 1990. U102 ...... All ...... June 8, 1989. U103 ...... All ...... Aug. 8, 1990. U105 ...... All ...... Aug. 8, 1990. U106 ...... All ...... Aug. 8, 1990. U107 ...... All ...... June 8, 1989. U108 ...... All ...... Aug. 8, 1990. U109 ...... All ...... Aug. 8, 1990. U110 ...... All ...... Aug. 8, 1990. U111 ...... All ...... Aug. 8, 1990. U112 ...... All ...... Aug. 8, 1990. U113 ...... All ...... Aug. 8, 1990. U114 ...... All ...... Aug. 8, 1990. U115 ...... All ...... Aug. 8, 1990. 26034 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

U116 ...... All ...... Aug. 8, 1990. U117 ...... All ...... Aug. 8, 1990. U118 ...... All ...... Aug. 8, 1990. U119 ...... All ...... Aug. 8, 1990. U120 ...... All ...... Aug. 8, 1990. U121 ...... All ...... Aug. 8, 1990. U122 ...... All ...... Aug. 8, 1990. U123 ...... All ...... Aug. 8, 1990. U124 ...... All ...... Aug. 8, 1990. U125 ...... All ...... Aug. 8, 1990. U126 ...... All ...... Aug. 8, 1990. U127 ...... All ...... Aug. 8, 1990. U128 ...... All ...... Aug. 8, 1990. U129 ...... All ...... Aug. 8, 1990. U130 ...... All ...... Aug. 8, 1990. U131 ...... All ...... Aug. 8, 1990. U132 ...... All ...... Aug. 8, 1990. U133 ...... All ...... Aug. 8, 1990. U134 ...... All ...... Aug. 8, 1990. U135 ...... All ...... Aug. 8, 1990. U136 ...... Wastewater ...... Aug. 8, 1990. U136 ...... Nonwastewater ...... May 8, 1992. U137 ...... All ...... Aug. 8, 1990. U138 ...... All ...... Aug. 8, 1990. U140 ...... All ...... Aug. 8, 1990. U141 ...... All ...... Aug. 8, 1990. U142 ...... All ...... Aug. 8, 1990. U143 ...... All ...... Aug. 8, 1990. U144 ...... All ...... Aug. 8, 1990. U145 ...... All ...... Aug. 8, 1990. U146 ...... All ...... Aug. 8, 1990. U147 ...... All ...... Aug. 8, 1990. U148 ...... All ...... Aug. 8, 1990. U149 ...... All ...... Aug. 8, 1990. U150 ...... All ...... Aug. 8, 1990. U151 ...... Wastewater ...... Aug. 8, 1990. U151 ...... Nonwastewater ...... May 8, 1992. U152 ...... All ...... Aug. 8, 1990. U153 ...... All ...... Aug. 8, 1990. U154 ...... All ...... Aug. 8, 1990. U155 ...... All ...... Aug. 8, 1990. U156 ...... All ...... Aug. 8, 1990. U157 ...... All ...... Aug. 8, 1990. U158 ...... All ...... Aug. 8, 1990. U159 ...... All ...... Aug. 8, 1990. U160 ...... All ...... Aug. 8, 1990. U161 ...... All ...... Aug. 8, 1990. U162 ...... All ...... Aug. 8, 1990. U163 ...... All ...... Aug. 8, 1990. U164 ...... All ...... Aug. 8, 1990. U165 ...... All ...... Aug. 8, 1990. U166 ...... All ...... Aug. 8, 1990. U167 ...... All ...... Aug. 8, 1990. U168 ...... All ...... Aug. 8, 1990. U169 ...... All ...... Aug. 8, 1990. U170 ...... All ...... Aug. 8, 1990. U171 ...... All ...... Aug. 8, 1990. U172 ...... All ...... Aug. 8, 1990. U173 ...... All ...... Aug. 8, 1990. U174 ...... All ...... Aug. 8, 1990. U176 ...... All ...... Aug. 8, 1990. U177 ...... All ...... Aug. 8, 1990. U178 ...... All ...... Aug. 8, 1990. U179 ...... All ...... Aug. 8, 1990. U180 ...... All ...... Aug. 8, 1990. U181 ...... All ...... Aug. 8, 1990. U182 ...... All ...... Aug. 8, 1990. U183 ...... All ...... Aug. 8, 1990. U184 ...... All ...... Aug. 8, 1990. U185 ...... All ...... Aug. 8, 1990. U186 ...... All ...... Aug. 8, 1990. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26035

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

U187 ...... All ...... Aug. 8, 1990. U188 ...... All ...... Aug. 8, 1990. U189 ...... All ...... Aug. 8, 1990. U190 ...... All ...... June 8, 1989. U191 ...... All ...... Aug. 8, 1990. U192 ...... All ...... Aug. 8, 1990. U193 ...... All ...... Aug. 8, 1990. U194 ...... All ...... June 8, 1989. U196 ...... All ...... Aug. 8, 1990. U197 ...... All ...... Aug. 8, 1990. U200 ...... All ...... Aug. 8, 1990. U201 ...... All ...... Aug. 8, 1990. U202 ...... All ...... Aug. 8, 1990. U203 ...... All ...... Aug. 8, 1990. U204 ...... All ...... Aug. 8, 1990. U205 ...... All ...... Aug. 8, 1990. U206 ...... All ...... Aug. 8, 1990. U207 ...... All ...... Aug. 8, 1990. U208 ...... All ...... Aug. 8, 1990. U209 ...... All ...... Aug. 8, 1990. U210 ...... All ...... Aug. 8, 1990. U211 ...... All ...... Aug. 8, 1990. U213 ...... All ...... Aug. 8, 1990. U214 ...... All ...... Aug. 8, 1990. U215 ...... All ...... Aug. 8, 1990. U216 ...... All ...... Aug. 8, 1990. U217 ...... All ...... Aug. 8, 1990. U218 ...... All ...... Aug. 8, 1990. U219 ...... All ...... Aug. 8, 1990. U220 ...... All ...... Aug. 8, 1990. U221 ...... All ...... June 8, 1989. U222 ...... All ...... Aug. 8, 1990. U223 ...... All ...... June 8, 1989. U225 ...... All ...... Aug. 8, 1990. U226 ...... All ...... Aug. 8, 1990. U227 ...... All ...... Aug. 8, 1990. U228 ...... All ...... Aug. 8, 1990. U234 ...... All ...... Aug. 8, 1990. U235 ...... All ...... June 8, 1989. U236 ...... All ...... Aug. 8, 1990. U237 ...... All ...... Aug. 8, 1990. U238 ...... All ...... Aug. 8, 1990. U239 ...... All ...... Aug. 8, 1990. U240 ...... All ...... Aug. 8, 1990. U243 ...... All ...... Aug. 8, 1990. U244 ...... All ...... Aug. 8, 1990. U246 ...... All ...... Aug. 8, 1990. U247 ...... All ...... Aug. 8, 1990. U248 ...... All ...... Aug. 8, 1990. U249 ...... All ...... Aug. 8, 1990. U271 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U271 ...... All others ...... July 8, 1996. U277 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U277 ...... All others ...... July 8, 1996. U278 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U278 ...... All others ...... July 8, 1996. U279 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U279 ...... All others ...... July 8, 1996. U280 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U280 ...... All others ...... July 8, 1996. U328 ...... Mixed with radioactive wastes ...... June 30, 1994. U328 ...... All others ...... Nov. 9, 1992. U353 ...... Mixed with radioactive wastes ...... June 30, 1994. U353 ...... All others ...... Nov. 9, 1992. U359 ...... Mixed with radioactive wastes ...... June 30, 1994. U359 ...... All others ...... Nov. 9, 1992. U364 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U364 ...... All others ...... July 8, 1996. U365 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U365 ...... All others ...... July 8, 1996. U366 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. 26036 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

U366 ...... All others ...... July 8, 1996. U367 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U367 ...... All others ...... July 8, 1996. U372 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U372 ...... All others ...... July 8, 1996. U373 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U373 ...... All others ...... July 8, 1996. U375 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U375 ...... All others ...... July 8, 1996. U376 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U376 ...... All others ...... July 8, 1996. U377 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U377 ...... All others ...... July 8, 1996. U378 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U378 ...... All others ...... July 8, 1996. U379 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U379 ...... All others ...... July 8, 1996. U381 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U381 ...... All others ...... July 8, 1996. U382 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U382 ...... All others ...... July 8, 1996. U383 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U383 ...... All others ...... July 8, 1996. U384 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U384 ...... All others ...... July 8, 1996. U385 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U385 ...... All others ...... July 8, 1996. U386 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U386 ...... All others ...... July 8, 1996. U387 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U387 ...... All others ...... July 8, 1996. U389 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U389 ...... All others ...... July 8, 1996. U390 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U390 ...... All others ...... July 8, 1996. U391 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U391 ...... All others ...... July 8, 1996. U392 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U392 ...... All others ...... July 8, 1996. U393 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U393 ...... All others ...... July 8, 1996. U394 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U394 ...... All others ...... July 8, 1996. U395 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U395 ...... All others ...... July 8, 1996. U396 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U396 ...... All others ...... July 8, 1996. U400 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U400 ...... All others ...... July 8, 1996. U401 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U401 ...... All others ...... July 8, 1996. U402 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U402 ...... All others ...... July 8, 1996. U403 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U403 ...... All others ...... July 8, 1996. U404 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U404 ...... All others ...... July 8, 1996. U407 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U407 ...... All others ...... July 8, 1996. U409 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U409 ...... All others ...... July 8, 1996. U410 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U410 ...... All others ...... July 8, 1996. U411 ...... Mixed with radioactive wastes ...... Apr. 8, 1998. U411 ...... All others ...... July 8, 1996. a This table does not include mixed radioactive wastes (from the First, Second, and Third Third rules) which received national capacity variance until May 8, 1992. This table also does not include contaminated soil and debris wastes. b The standard was revised in the Third Third Final Rule (55 FR 22520, June 1, 1990). c The standard was revised in the Third Third Emergency Rule (58 FR 29860, May 24, 1993); the original effective date was August 8, 1990. d The standard was revised in the Phase II Final Rule (59 FR 47982, Sept. 19, 1994); the original effective date was August 8, 1990. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26037

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES (NON-SOIL AND DEBRIS) REGULATED IN THE LDRS aÐ COMPREHENSIVE LISTÐContinued

Waste code Waste category Effective date

e The standards for selected reactive wastes was revised in the Phase III Final Rule (61 FR 15566, Apr. 8, 1996); the original effective date was August 8, 1990.

TABLE 2.ÐSUMMARY OF EFFECTIVE DATES OF LAND DISPOSAL RESTRICTIONS FOR CONTAMINATED SOIL AND DEBRIS (CSD)

Restricted hazardous waste in CSD Effective date

1. Solvent±(F001±F005) and dioxin±(F020±F023 and F026±F028) containing soil and debris from CERCLA response or Nov. 8, 1990. RCRA corrective actions. 2. Soil and debris not from CERCLA response or RCRA corrective actions contaminated with less than 1% total solvents Nov. 8, 1988. (F001±F005) or dioxins (F020±F023 and F026±F028). 3 All soil and debris contaminated with First Third wastes for which treatment standards are based on incineration ...... Aug. 8, 1990. 4. All soil and debris contaminated with Second Third wastes for which treatment standards are based on incineration ...... June 8, 1991. 5. All soil and debris contaminated with Third Third wastes or, First or Second Third ``soft hammer'' wastes which had treat- May 8, 1992. ment standards promulgated in the Third Third rule, for which treatment standards are based on incineration, vitrification, or mercury retorting, acid leaching followed by chemical precipitation, or thermal recovery of metals; as well as all inorganic solids debris contaminated with D004±D011 wastes, and all soil and debris contaminated with mixed RCRA/radioactive wastes. 6. Soil and debris contaminated with D012±D043, K141±K145, and K147±151 wastes ...... Dec. 19, 1994. 7. Debris (only) contaminated with F037, F038, K107±K112, K117, K118, K123±K126, K131, K132, K136, U328, U353, U359 Dec. 19, 1994 8. Soil and debris contaminated with K156±K161, P127, P128, P188±P192, P194, P196±P199, P201±P205, U271, U277± July 8, 1996. U280, U364±U367, U372, U373, U375±U379, U381±U387, U389±U396, U400±U404, U407, and U409±U411 wastes. 9. Soil and debris contaminated with K088 wastes ...... Jan. 8, 1997. 10. Soil and debris contaminated with radioactive wastes mixed with K088, K156±K161, P127, P128, P188±P192, P194, April 8, 1998. P196±P199, P201±P205, U271, U277±U280, U364±U367, U372, U373, U375±U379, U381±U387, U389±U396, U400± U404, U407, and U409±U411 wastes. 11. Soil and debris contaminated with F032, F034, and F035 ...... May 12, 1997. Note: Appendix VII is provided for the convenience of the reader.

21. Appendix VIII to Part 268 is Appendix VIII to Part 268—LDR revised to read as follows: Effective Dates of Surface Disposed Prohibited Hazardous Wastes

NATIONAL CAPACITY LDR VARIANCES FOR UIC WASTES a

Waste code Waste category Effective date

F001±F005 ...... All spent F001±F005 solvent containing less than 1 percent total F001± Aug. 8, 1990. F005 solvent constituents. D001 (except High TOC Ignitable Liquids Sub- All ...... Feb. 10, 1994. category)c. D001 (High TOC Ignitable Characteristic Liquids Nonwastewater ...... Sept. 19, 1995. Subcategory). D002b ...... All ...... May 8, 1992. D002c ...... All ...... Feb. 10, 1994. D003 (cyanides) ...... All ...... May 8, 1992. D003 (sulfides) ...... All ...... May 8, 1992. D003 (explosives, reactives) ...... All ...... May 8, 1992. D007 ...... All ...... May 8, 1992. D009 ...... Nonwastewater ...... May 8, 1992. D012 ...... All ...... Sept. 19, 1995. D013 ...... All ...... Sept. 19, 1995. D014 ...... All ...... Sept. 19, 1995. D015 ...... All ...... Sept. 19, 1995. D016 ...... All ...... Sept. 19, 1995. D017 ...... All ...... Sept. 19, 1995. D018 ...... All, including mixed with radioactive wastes ...... Apr. 8, 1998. D019 ...... All, including mixed with radioactive wastes ...... Apr. 8, 1998. D020 ...... All, including mixed with radioactive wastes ...... Apr. 8, 1998. D021 ...... All, including mixed with radioactive wastes ...... Apr. 8, 1998. D022 ...... All, including mixed with radioactive wastes ...... Apr. 8, 1998. D023 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D024 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D025 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D026 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D027 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D028 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. 26038 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

NATIONAL CAPACITY LDR VARIANCES FOR UIC WASTES aÐContinued

Waste code Waste category Effective date

D029 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D030 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D031 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D032 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D033 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D034 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D035 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D036 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D037 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D038 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D039 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D040 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D041 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D042 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. D043 ...... All, including mixed radioactive wastes ...... Apr. 8, 1998. F007 ...... All ...... June 8, 1991. F032 ...... All, including mixed radioactive wastes ...... May 12, 1999. F034 ...... All, including mixed radioactive wastes ...... May 12,1999. F035 ...... All, including mixed radioactive wastes ...... May 12, 1999. F037 ...... All ...... Nov. 8, 1992. F038 ...... All ...... Nov. 8, 1992. F039 ...... Wastewater ...... May 8, 1992. K009 ...... Wastewater ...... June 8, 1991. K011 ...... Nonwastewater ...... June 8, 1991. K011 ...... Wastewater ...... May 8, 1992. K011 ...... Nonwastewater ...... June 8, 1991. K011 ...... Wastewater ...... May 8, 1992. K013 ...... Nonwastewater ...... June 8, 1991. K013 ...... Wastewater ...... May 8, 1992. K014 ...... All ...... May 8, 1992. K016 (dilute) ...... All ...... June 8, 1991. K049 ...... All ...... Aug. 8, 1990. K050 ...... All ...... Aug. 8, 1990. K051 ...... All ...... Aug. 8, 1990. K052 ...... All ...... Aug. 8, 1990. K062 ...... All ...... Aug. 8, 1990. K071 ...... All ...... Aug. 8, 1990. K088 ...... All ...... Jan. 8, 1997. K104 ...... All ...... Aug. 8, 1990. K107 ...... All ...... Nov. 8, 1992. K108 ...... All ...... Nov. 9, 1992. K109 ...... All ...... Nov. 9, 1992. K110 ...... All ...... Nov. 9, 1992. K111 ...... All ...... Nov. 9, 1992. K112 ...... All ...... Nov. 9, 1992. K117 ...... All ...... June 30, 1995. K118 ...... All ...... June 30, 1995. K123 ...... All ...... Nov. 9, 1992. K124 ...... All ...... Nov. 9, 1992. K125 ...... All ...... Nov. 9, 1992. K126 ...... All ...... Nov. 9, 1992. K131 ...... All ...... June 30, 1995. K132 ...... All ...... June 30, 1995. K136 ...... All ...... Nov. 9, 1992. K141 ...... All ...... Dec. 19, 1994. K142 ...... All ...... Dec. 19, 1994. K143 ...... All ...... Dec. 19, 1994. K144 ...... All ...... Dec. 19, 1994. K145 ...... All ...... Dec. 19, 1994. K147 ...... All ...... Dec. 19, 1994. K148 ...... All ...... Dec. 19, 1994. K149 ...... All ...... Dec. 19, 1994. K150 ...... All ...... Dec. 19, 1994. K151 ...... All ...... Dec. 19, 1994. K156 ...... All ...... July 8, 1996. K157 ...... All ...... July 8, 1996. K158 ...... All ...... July 8, 1996. K159 ...... All ...... July 8, 1996. K160 ...... All ...... July 8, 1996. K161 ...... All ...... July 8, 1996. P127 ...... All ...... July 8, 1996. P128 ...... All ...... July 8, 1996. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26039

NATIONAL CAPACITY LDR VARIANCES FOR UIC WASTES aÐContinued

Waste code Waste category Effective date

P185 ...... All ...... July 8, 1996. P188 ...... All ...... July 8, 1996. P189 ...... All ...... July 8, 1996. P190 ...... All ...... July 8, 1996. P191 ...... All ...... July 8, 1996. P192 ...... All ...... July 8, 1996. P194 ...... All ...... July 8, 1996. P196 ...... All ...... July 8, 1996. P197 ...... All ...... July 8, 1996. P198 ...... All ...... July 8, 1996. P199 ...... All ...... July 8, 1996. P201 ...... All ...... July 8, 1996. P202 ...... All ...... July 8, 1996. P203 ...... All ...... July 8, 1996. P204 ...... All ...... July 8, 1996. P205 ...... All ...... July 8, 1996. U271 ...... All ...... July 8, 1996. U277 ...... All ...... July 8, 1996. U278 ...... All ...... July 8, 1996. U279 ...... All ...... July 8, 1996. U280 ...... All ...... July 8, 1996. U328 ...... All ...... Nov. 9, 1992. U353 ...... All ...... Nov. 9, 1992. U359 ...... All ...... Nov. 9, 1992. U364 ...... All ...... July 8, 1996. U365 ...... All ...... July 8, 1996. U366 ...... All ...... July 8, 1996. U367 ...... All ...... July 8, 1996. U372 ...... All ...... July 8, 1996. U373 ...... All ...... July 8, 1996. U375 ...... All ...... July 8, 1996. U376 ...... All ...... July 8, 1996. U377 ...... All ...... July 8, 1996. U378 ...... All ...... July 8, 1996. U379 ...... All ...... July 8, 1996. U381 ...... All ...... July 8, 1996. U382 ...... All ...... July 8, 1996. U383 ...... All ...... July 8, 1996. U384 ...... All ...... July 8, 1996. U385 ...... All ...... July 8, 1996. U386 ...... All ...... July 8, 1996. U387 ...... All ...... July 8, 1996. U389 ...... All ...... July 8, 1996. U390 ...... All ...... July 8, 1996. U391 ...... All ...... July 8, 1996. U392 ...... All ...... July 8, 1996. U395 ...... All ...... July 8, 1996. U396 ...... All ...... July 8, 1996. U400 ...... All ...... July 8, 1996. U401 ...... All ...... July 8, 1996. U402 ...... All ...... July 8, 1996. U403 ...... All ...... July 8, 1996. U404 ...... All ...... July 8, 1996. U407 ...... All ...... July 8, 1996. U409 ...... All ...... July 8, 1996. U410 ...... All ...... July 8, 1996. U411 ...... All ...... July 8, 1996. a Wastes that are deep well disposed on-site receive a six-month variance, with restrictions effective in November 1990. b Deepwell injected D002 liquids with a pH less than 2 must meet the California List treatment standards on August 8, 1990. c Managed in systems defined in 40 CFR 144.6(e) and 14.6(e) as Class V injection wells, that do not engage in CWA-equivalent treatment be- fore injection. NOTE: This table is provided for the convenience of the reader.

PART 271ÐREQUIREMENTS FOR Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 Subpart AÐRequirements for Final AUTHORIZATION OF STATE and 1361. Authorization HAZARDOUS WASTE PROGRAMS 23. Section 271.1(j) is amended by 22. The authority citation for Part 271 adding the following entries to Table 1 in chronological order by effective date continues to read as follows: in the Federal Register, and by adding 26040 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations the following entries to Table 2 in publication in the Federal Register, to § 271.1 Purpose and scope. chronological order by date of read as follows: * * * * * (j) * * *

TABLE 1.ÐREGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Federal Promulgation date Title of regulation Register ref- Effective date erence

******* May 12, 1997 ...... Land Disposal Restrictions for Wood Preserving Wastes and Paperwork Reduc- 62 FR August 11, tions. 26040 1997.

*******

TABLE 2.ÐSELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

Federal Register Effective date Self-implementing provision RCRA citation reference

******* August 11, 1997 ...... Prohibition on land disposal of wood preserving 3004(g)(4)(c) and 3004 (m) ...... May 12, 1997. wastes. 62 FR 26040 May 12, 1999 ...... Prohibition on land disposal of radioactive waste and 3004(m)...... Do. soil and debris mixed with wood preserving wastes.

*******

* * * * * [FR Doc. 97–11636 Filed 5–9–97; 8:45 am] BILLING CODE 6560±50±P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26041

ENVIRONMENTAL PROTECTION made to the Arlington, VA, address SUPPLEMENTARY INFORMATION: AGENCY below. An original and two copies of Availability of Rule on the Internet Confidential Business Information (CBI) 40 CFR Parts 148, 261, 266, 268, and must be submitted under separate cover Please follow these instructions to access the rule: 271 to : RCRA CBI Document Control From the World Wide Web (WWW), RIN 2050 AE05 Officer, Office of Solid Waste (5305W), type http://www.epa.gov/rules and U.S. EPA, 401 M Street, SW, [FRL±5816±6] regulations. In addition, several Washington, DC 20460. For information technical background documents on submittal of comments Land Disposal Restrictions Phase IV: contained in the docket supporting this Second Supplemental Proposal on electronically, see the section called rule will be available on the Internet at Treatment Standards for Metal Wastes ‘‘Electronic Submittal of Comments’’ in http://www.epa.gov/offices and regions/ and Mineral Processing Wastes, SUPPLEMENTARY INFORMATION below. oswer. Mineral Processing and Bevill Public comments and supporting Electronic Submittal of Comments Exclusion Issues, and the Use of materials are available for viewing in Hazardous Waste as Fill the RCRA Information Center (RIC), In an effort to reduce unnecessary paper use, EPA is asking prospective located at Crystal Gateway I, First Floor, AGENCY: Environmental Protection commenters to voluntarily submit one 1235 Jefferson Davis Highway, Agency. copy of their comments, in addition to Arlington, Virginia. The RIC is open ACTION: Supplemental proposed rule. the paper copy, in either of two from 9:00 a.m. to 4:00 p.m., Monday electronic methods: diskettes or the SUMMARY: This is the third proposed through Friday, except on Federal Internet. Commenters can send their rule related to treatment standards for holidays. To review docket materials, it comments to the RCRA Information certain metal wastes and wastes from is recommended that the public make Center on labeled personal computer mineral processing. EPA is seeking an appointment by calling (703) 603– diskettes in ASCII (TEXT) format or a comment on additional proposed 9230. The public may copy a maximum word processing format that can be provisions and on new data. This of 100 pages from any regulatory converted to ASCII (TEXT). It is proposed rule would revise universal document at no cost. Additional copies essential to specify on the disk label the treatment standards (UTS) for twelve cost $0.15 per page. The index and some word processing software and version/ metal constituents when they are in supporting materials are available edition as well as the commenter’s hazardous waste. Affected wastes electronically. See the SUPPLEMENTARY name. Please use mailing envelopes include ‘‘TC metal’’ wastes (those INFORMATION section for information on designed to physically protect the containing high levels of certain metals), accessing them. submitted diskettes. To send copies by mineral processing wastes, and other Internet, address them to: rcra- metal-bearing wastes. These treatment FOR FURTHER INFORMATION CONTACT: [email protected]. All comments standards are being revised to provide RCRA Hotline between 9:00 a.m. and sent by Internet must be ASCII files, consistency in the LDR standards while 6:00 p.m. EST, toll free at (800) 424– avoiding the use of special characters minimizing threats to human health and 9346; or (703) 412–9810 from and any form of encryption. Comments the environment. This proposed rule Government phones or if in the in electronic format should also be also addresses the issue of the sampling Washington, D.C. local calling area; or identified by the docket number F–97– method for compliance with treatment (800) 553–7672 for the hearing 2P4P–FFFFF. Commenters should not standards. EPA is seeking comment on impaired. Questions can also be submit electronically any confidential a conditional exclusion for secondary directed to the Waste Treatment Branch business information (CBI). EPA mineral processing materials, on co- (5302W), Office of Solid Waste (OSW), emphasizes that submission of processing of materials in Bevill-exempt U.S. Environmental Protection Agency, comments electronically is not mining units, and on whether certain 401 M Street S.W., Washington, D.C. mandatory, nor will it result in any mineral processing and mining wastes 20460; phone (703) 308–8434. For advantage or disadvantage to any currently excluded from federal commenter. For further information on hazardous waste regulations warrant information on the issue of treatment the electronic submission of diskettes, regulatory controls. Also included is an standards for metal-bearing wastes, ask contact Sue Slotnick at the Waste exclusion from the definition of solid for Elaine Eby or Anita Cummings. Treatment Branch, (703) 308–8462, or waste for certain materials reused by Anita Cummings is the contact for LDR Rhonda Minnick at (703) 308–8771. wood preserving operations, a clarified treatment standards for mineral policy on EPA-approved variances from processing wastes and for the issue of Table of Contents hazardous waste treatment, and a grab versus composite sampling I. Background prohibition on the use of most methods. For information on secondary II. Potentially Regulated Entities hazardous wastes as fill material. mineral processing materials and Bevill III. Revised Treatment Standards for Twelve Metal Constituents in Nonwastewater DATES: Comments on this proposed rule issues, call Van Housman at (703) 308– 8419 or Stephen Hoffman at (703) 308– Forms of TC Metal and Other Wastes must be submitted by July 11, 1997. A. Summary ADDRESSES: Commenters must send an 8413. Contact Stephen Bergman for B. Applicability original and two copies of their questions on the exclusion for wood C. Background comments to: RCRA Information Center preserving wastewaters. For information D. Proposal of Revised Treatment (RIC), Office of Solid Waste (5305G), on the capacity analyses, call Bill Kline Standards for Metal Constituents in TC U.S. Environmental Protection Agency at (703) 308–8440. For questions on the Metal and Other Metal-bearing Wastes Headquarters (EPA, HQ), 401 M. Street, regulatory impact analyses, contact Paul 1. August 22, 1995 Proposed Treatment Standards for TC Wastes SW, Washington, DC 20460. Borst at (703) 308–0481. For other 2. Comments to the August 22, 1995 Commenters must place Docket Number questions, call Sue Slotnick at (703) Proposal F–97–2P4P–FFFFF on their comments. 308–8462. 3. Development of Revised UTS for TC Hand deliveries of comments should be Metal Wastes 26042 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

4. Proposed Revision of UTS for Selenium C. Unfunded Mandates Reform Act hazardous wastes is part of the basic 5. Proposed Revision of UTS for Beryllium D. Paperwork Reduction Act policy structure which Congress enacted 6. Proposed Revision of UTS for Silver XII. Environmental Justice when it amended RCRA in 1984, and 7. Demonstrating Compliance by Grab or A. Applicability of Executive Order 12898 Composite Sampling B. Potential Effects reflects concern over the technological IV. Revised Treatment Standards for Mineral XIII. Appendices uncertainties regarding risks and long Processing Wastes term protectiveness of land disposal and A. Summary I. Background the intent to assure that waste B. Discussion In the 1984 Hazardous and Solid management practices are protective for V. Proposal of New Options for Mineral Waste Amendments (HSWA) of the future generations. Processing Materials Resource Conservation and Recovery A. New Option—Land Storage of The whole premise of the LDR Secondary Materials Act (RCRA), Congress specified that legislation is that risks posed by land 1. General Discussion land disposal of hazardous waste is disposal of hazardous wastes are prohibited unless the waste meets 2. Criteria for High Volumes of Bevill- inherently uncertain to evaluate and Exempt Mining and Mineral Processing treatment standards established by EPA. that land-based units are incapable of Wastes HSWA requires that treatment standards 3. Containment Units must substantially diminish the toxicity long term containment. Land disposal 4. Class of Materials Outside of RCRA or mobility of hazardous waste, so that units (such as landfills, surface Jurisdiction short- and long-term threats to human impoundments, and waste piles) are B. New Option—Non-Bevill Materials Used health and the environment are engineered units that can and have as Alternative Feedstocks failed in the past with significant C. High Risk Mining Wastes Excluded by minimized. The treatment standards are the Bevill Amendment part of the Land Disposal Restrictions consequences to human health and the 1. General Discussion Program. environment. For this reason, Congress 2. Wastes Eligible for the Bevill Exclusion Today’s proposed rule is one part of required that hazardous wastes be VI. Proposed Exclusion of Wood Preserving the collection of land disposal pretreated before disposal by ‘‘treatment Wastewaters and Spent Wood Preserving restrictions (LDR) rules known as [which] should be the best that has been Solutions From Classification as Solid ‘‘Phase IV.’’ They are the latest in a demonstrated to be achievable.’’ Waste under RCRA series of LDR rules that establish A. Background Congressional Record of July 25, l984 1. Request for Comment in Land Disposal treatment standards for newly listed and (S9178). The technology-based approach Restrictions Phase IV Proposed Rule identified wastes, and that resolve other of the land disposal restrictions 2. Statutory Remedy Considered by hazardous waste matters. EPA proposed provides a measure of insurance against Congress the Phase IV rule in two proposed rules the potential for failure in these land B. Rationale for Proposal (60 FR 43654, August 22, 1995; and 61 based units. C. Wastes Commonly Reused by the Wood FR 2338, January 25, 1996). It Preserving Industry subsequently issued a Notice of Data Given these facts, and evident D. Current Regulatory Status of Recycled Availability on Phase IV issues (61 FR Congressional intent, EPA continues to Wastewaters and Spent Wood Preserving 21418, May 10, 1996). The attached believe that the LDR prohibitions and Solutions proposed rule proposes, in some cases, treatment standards are justified in E. Proposed Exclusion of Wastewaters and many instances. EPA sets treatment Spent Wood Preserving Solutions that alternative approaches from those in are Recycled earlier proposals. These changes in standards that reduce toxicity and 1. General approach are being proposed in mobility of hazardous constituents (or 2. Conditions for Exclusion response to additional data or comments require recycling), and EPA also 3. Process Residuals that were submitted on the previous requires that the treated wastes be 4. Notification proposals. placed in reasonably secure land 5. Conditions Under Which the Exclusion Other issues from the Phase IV notices disposal units. However, EPA does Would No Longer Apply did not require additional proposal. believe that, in some situations, the VII. Proposal to Amend Treatment Variance Rules These are being finalized today in a current LDR rules may not provide the A. Background Phase IV rule appearing elsewhere in optimum regulatory approach. In those B. Clarified Regulatory Language today’s Federal Register. The final rule situations, EPA will look to other C. The CITGO Variance Under the is titled ‘‘Land Disposal Restrictions— mechanisms to address those relatively Proposed Standard Phase IV: Treatment Standards for low risk scenarios. VIII. Ban on Use of Prohibited Hazardous Wood Preserving Wastes, Paperwork Waste as Fill Material Reduction and Streamlining, II. Potentially Regulated Entities IX. Capacity Determination Exemptions from RCRA for Certain Entities potentially regulated by this A. TC Metal Wastes Processed Materials; and Miscellaneous B. Mineral Processing Wastes final rule vary according to the section C. Phase IV Mineral Processing and TC Hazardous Waste Provisions.’’ EPA estimates that the directly of the rule. The following table shows Metal Wastes Injected Into Underground the industry categories that may be Injection Control (UIC) Class I Wells measurable benefits associated with the X. State Authority land disposal restrictions treatment regulated according to each major A. Applicability of Rules in Authorized standards in this rule are limited section of the rule. The table is not States relative to the costs that may be intended to be exhaustive, but rather to B. Abbreviated Authorization Procedures incurred. Therefore, the relative priority provide a guide for readers regarding C. Effect on State Authorization of addressing these risks could be entities likely to be regulated by this D. Less stringent requirements questioned. However, we do not believe, action. This table lists the types of XI. Regulatory Requirements entities that EPA is now aware could A. Regulatory Impact Analysis Pursuant to for this specific action, that a simple Executive Order 12866 cost effectiveness measure alone potentially be regulated by this action. 1. Methodology Section provides a sufficient basis for decision- Other types of entities not listed in the 2. Results making. As discussed below, the table could also be regulated. B. Regulatory Flexibility Analysis preference for permanent treatment of Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26043

TABLE OF ENTITIES POTENTIALLY AFFECTED BY THE PHASE IV 2ND SUPPLEMENTAL PROPOSAL

Section of the rule Category Examples of entities potentially affected

Treatment Standards for TC metal hazardous Small or Large Quantity Generators of Toxicity Any party that generates greater than 100 kg wastes, characteristic mineral processing Characteristic (TC) metal hazardous wastes of hazardous waste or 1 kg of acute hazard- wastes, and other metal-bearing wastes. (D004±D011), characteristic mineral proc- ous waste, and generates TC metal hazard- essing waste, or any hazardous waste re- ous wastes or characteristic mineral proc- quired to meet the LDR treatment standard essing wastes. Major industries generating for barium, cadmium, chromium, lead, silver, TC metal wastes include: primary mineral selenium, antimony, beryllium, nickel, thal- processing, alkalines and chlorine, industrial lium, vanadium, or zinc. inorganic chemicals, industrial organic Facilities that treat TC metal hazardous chemicals, blast furnaces and steel mills, wastes, characteristic mineral processing metal plating and polishing, aircraft parts wastes, and other metal-bearing hazardous and equipment. wastes. Mineral Processing Secondary Materials, and Generators ...... Any person who generates secondary mate- Bevill Issues. Storage and Recycling Facilities ...... rials from the primary mineral processing in- dustry that are destined for recovery of min- eral values Facilities that store and/or recycle secondary materials from the primary mineral process- ing industry. Exclusion for Recycled Wood Preserving Proc- Wood Preserving Facilities ...... Facilities that generate and reclaim drippage ess Wastewaters. and wastewaters on-site from the wood processing industry.

III. Revised Treatment Standards for 113 S. Ct. 1961 (1993). Consequently, stringent for listed wastes (and Twelve Metal Constituents in treatment to levels lower than the characteristic wastes such as corrosive Nonwastewater Forms of TC Metal and characteristic levels normally is wastes that are not characteristic for Other Wastes required. Id. Commenters took issue metals), but would lower (make more with the Agency’s use of data from stringent) the lead standard for TC metal A. Summary previous rulemakings (those wastes required to meet UTS. establishing UTS) in setting the TC EPA is proposing to revise the B. Applicability universal treatment standards (UTS) for metal standards. After considering twelve metal constituents: barium, comments and new information, EPA The new treatment standards would cadmium, chromium (total), lead, believes applying the UTS levels to TC apply to four sets of hazardous wastes. selenium, silver, antimony, beryllium, metal waste is still quite valid, but in The first is TC metal wastes, which are nickel, thallium, vanadium, and zinc some cases the new data indicate that those found to be characteristic because that can be found in nonwastewater the UTS levels should be modified to one of their metal concentrations is forms of hazardous waste. (Note, better reflect the universe of wastes that higher than the TC level. One group of vanadium and zinc are not regulated as would now be subject to the standards. TC metal wastes would be subject to underlying hazardous constituents in As a result, the Agency is proposing treatment standards for the first time: characteristic wastes.) The revised to modify the proposal so that the those which are found hazardous by standards for eight of the metal treatment standards for the following testing with the Toxic Characteristic constituents are higher numerical levels metal wastes would be higher (less Leaching Procedure (TCLP) but not by (less stringent) than their existing UTS; stringent) than the current UTS: barium, the Extraction Procedure that was the revised standards for four of the beryllium, cadmium, nickel, lead, formerly used. This somewhat arcane metal constituents are lower than their thallium, vanadium, and selenium. The distinction (necessitated by statutory existing UTS. In the original Phase IV Agency is proposing to lower the UTS language) is discussed in more detail in proposal (August 22, 1995; 60 FR for antimony, chromium (total), silver, the following section. EPA proposed 43582), EPA proposed to apply the UTS and zinc. The revised UTS levels for all standards for all TC metal wastes on to wastes that exhibit the characteristic twelve metal constituents would apply August 22, 1995 (60 FR 43582), and of toxicity, as measured by the Toxicity to all wastes, listed or characteristic, today’s action would modify the Characteristic Leaching Procedure that are subject to UTS. In some cases, proposed standards, as discussed in (TCLP). See 40 CFR 261.24. This the proposed increase in UTS still detail below. The second set of wastes procedure measures the possibility that would lower the existing standard affected by this rule are currently a waste may leach toxic metals above a (making it more stringent) for the TC subject to UTS, so for these wastes, the designated concentration level, and so is metal waste in question. An example is proposed standards may provide a measure of the potential mobility of the constituent lead. The current UTS regulatory relief; these are the other toxic metals in a waste. Currently, TC standard is 0.37 milligrams per liter, characteristic wastes (toxic organic, metal wastes are subject to LDR while the standard for TC metal wastes ignitable, corrosive, or reactive) that standards that are the same as the TC is 5.0 milligrams per liter, because these contain any of the nine metal levels. However, these levels are wastes have been subject to the TC level constituents as underlying hazardous typically higher than those for which rather than to UTS prior to this rule. constituents. The third set of wastes also threats posed by land disposal of the Today’s proposal would revise the UTS would generally have less stringent wastes are minimized. Chemical Waste level for lead from 0.37 milligrams per standards. These are listed wastes that Management v. EPA, 976 F.2d2, 13– liter to 0.75 milligrams per liter TCLP. are required to treat any of the nine 14.26–27 (D.C. Cir. 1992); cert. denied This would make the lead standard less metal constituents to meet the 26044 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules numerical universal treatment Procedure (EP), which remain change in the treatment levels for standards. Finally, one last set is being hazardous because they also exhibit the arsenic (D004) or mercury-retort required to meet LDR treatment TC. EPA already promulgated treatment residues (D007), and those constituents standards for the first time: mineral standards for this latter class of wastes are not discussed further in today’s processing wastes that exhibit a (wastes identified as hazardous which notice. hazardous waste characteristic. (See 55 exhibit both EP and TC toxicity), but 2. Comments to the August 22, 1995 FR at 22667 (June 1, 1990) explaining these standards were established at the Proposal why mineral processing wastes no characteristic level. 55 FR 22520, June 1, longer considered eligible for exempt 1990. In response to the Phase IV proposal, status under the Bevill amendment are The D.C. Circuit remanded the the Agency received numerous classified as ‘‘newly identified’’ for standards for lead and chromium as comments on the proposed treatment purposes of LDR prohibitions, and, being insufficiently stringent when data standards. The commenters raised three hence, not yet subject to LDRs until EPA indicated that further increments of basic issues with regard to the data used adopts regulations expressly prohibiting treatment were technically feasible. 976 to develop the standards: (1) them from land disposal and F. 2d at 27, 32. These proposed characteristic metal wastes were establishing treatment standards for standards would, among other things, extremely variable and that the data them.) The Agency proposed treatment respond to that remand. The standards used to calculate the treatment standards for those wastes on January also would satisfy EPA’s legal standards were not representative of the 25, 1996 (61 FR 2359), and today’s obligations to develop treatment diversity of TC metal wastes; (2) while action seeks comment on revisions to standards for newly identified both HTMR and stabilization were those proposed standards. hazardous wastes within 6 months determined to be BDAT, the standards C. Background following the wastes’ identification as were based solely on HTMR, a hazardous, RCRA section 3004(g)(4), technology not commercially available Land disposal of hazardous wastes is subsequently extended by consent for many TC metal wastes; and (3) the largely prohibited by statute, unless the decree. (EDF v. Reilly, Cir No. 89–0598, standards were not uniformly wastes are treated before land disposal D.D.C.) achievable when waste streams with to satisfy treatment standards multiple toxic metals were being established by EPA. RCRA sections D. Proposal of Revised Treatment treated. In light of these concerns, the 3004(d)–(g),(m). In developing these Standards for Metal Constituents in TC commenters urged the Agency to obtain treatment standards, EPA has sought to Metal and Other Metal-bearing Wastes additional data that would demonstrate make the standards as uniform as 1. August 22, 1995 Proposed Treatment the effectiveness of stabilization on TC possible while adhering to the ultimate Standards for TC Wastes metal waste streams and to more fully requirement that the standards be characterize the diversity of these waste sufficient to minimize threats to human In support of the Phase IV proposal health and the environment. The results (60 FR 43654), EPA performed a streams. are the UTS whereby the Agency has, comprehensive re-evaluation of the The following commenters provided wherever possible, developed the same available treatment performance data the Agency with stabilization numerical limit for a hazardous from both listed and characteristic performance data: Battery Council constituent in all of the hazardous wastes for all metal constituents in the International, American Foundrymen’s wastes where the constituent is present. UTS table. This analysis was conducted Association, Chemical Waste See 268.40 and 59 FR 47982, September in order to determine whether UTS Management and the Environmental 19, 1994. levels could appropriately be transferred Treatment Council. These commenters Today’s notice reproposes treatment to TC metal wastes. Treatment standards provided extensive composite data on standards for the following toxic metals: for most of the toxic metals in the stabilization of various TC metal barium, cadmium, chromium, lead, nonwastewater listed wastes were based wastes. While each of the data sets selenium, silver, antimony, beryllium, upon the performance of High provided information on the various nickel, thallium, vanadium, and zinc. Temperature Metal Recovery (HTMR), performance levels of stabilization Since it affects the UTS, the following based on treatment of hazardous wastes treatment, they did not provide the hazardous wastes would be affected: (a) K061, K062 and F006 (59 FR 47998, Agency with the full range of characteristic hazardous wastes where September 19, l994). At that time, the information necessary to re-evaluate or these metals are present as Underlying Agency determined that both HTMR re-calculate the treatment standards Hazardous Constituents (See 268.2(I) and stabilization were BDAT and that based on EPA’s BDAT protocol (see and 59 FR 47982, September 19, 1994); while the majority of the UTS numbers USEPA ‘‘Final Best Demonstrated and (b) listed wastes which have were based on High Temperature Metal Available Technology (BDAT) treatment standards for one or more of Recovery, stabilization was also capable Background Document for Quality these metals. In addition, these of treating to the UTS levels. (See Assurance/Quality Control Procedures standards would affect the treatment USEPA, ‘‘Background Document for and Methodology’’, Office of Solid standards for wastes that exhibit the Treatment Technologies’’, June 1991; Waste, October 23, 1991). The Agency, characteristic of toxicity as measured by and USEPA, ‘‘Metals Recovery convinced that additional data were the Toxicity Characteristic Leaching Processes for RCRA Hazardous Waste’’, needed to further assess the treatment of Procedure (TCLP) because of the December 1994). As such, the Agency TC metal wastes, attempted to obtain presence of these metals. These include proposed that the metal UTS should the additional information from the both the wastes that are newly also be the LDR treatment standards for commenters; however, the information/ identified because they exhibit the characteristic metal wastes. This data required by the commenters that toxicity characteristic (TC), which are resulted in the proposed change of would result in the generation of a not yet prohibited from land disposal, treatment standards for six TC metal ‘‘BDAT’’ quality data set has not been and wastes that were already identified constituents (barium, cadmium, forthcoming. The reader is referred to as hazardous under the predecessor chromium (total), lead, selenium and the rulemaking docket for analysis and leaching protocol, the Extraction silver). The Agency did not propose a discussion of the data submittals. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26045

3. Development of Revised UTS for TC Supporting the Reproposed Treatment 4. Proposed Revision of UTS for Metal Wastes Standards for D005, D006, D007, D008, Selenium In response to the concerns raised by D010, and D011 Wastes and the In the Phase IV proposal, the Agency the commenters regarding the lack of Proposed Revision to the Universal proposed a treatment standard of 0.16 stabilization data for TC metal wastes, Treatment Standards for Barium, mg/l for nonwastewater forms of D010- and the concern that some UTS levels Cadmium, Chromium (total), Lead, selenium (60 FR 43654, August 22, may be unachievable by stabilization, Selenium, Silver, Antimony, Beryllium, 1995). This number was the UTS level the Agency began an effort to obtain Nickel, Thallium, Vanadium and Zinc. for selenium that was promulgated in additional treatment performance data Note again that while EPA has the Phase II rule (59 FR 47980, that better characterized the diversity of developed data and is proposing new September 19, 1994). Today, the Agency metal wastes. During September l996, treatment standards for vanadium and is proposing to change the UTS for EPA conducted site visits at three zinc, they are not regulated as selenium to 5.7 mg/l TCLP and retain hazardous waste treatment facilities. underlying hazardous constituents. the current treatment standard of 5.7 In addition, between October 1994 These facilities represented different mg/l TCLP for D010 waste. This would and December 1995, the Agency types of treatment operations: one in effect create a uniform standard of 5.7 obtained performance data from one facility was a large commercial TSDF HTMR facility based totally on grab mg/l TCLP for nonwastewater forms of that employed conventional samples. (The reader is referred to items selenium. (The Agency received no stabilization techniques to treat a wide 3 and 16 in the aforementioned docket comment on the proposed wastewater array of inorganic metal wastes and materials for a complete discussion of treatment standard for selenium and is another was an on-site treatment facility the HTMR data set.) The assessment of not asking for further comment on this that focused on the stabilization of the new data sets began with the issue.) Several commenters suggested that inorganic metal slag. A third facility was calculation of treatment standards for commercial and focused on stabilization each of the two data sets, i.e., EPA establish the treatment standard for of inorganic materials using non- stabilization and HTMR. Next, the selenium at the TC level (1.0 mg/l) for conventional stabilization techniques. Agency compared these treatment nonwastewaters or promulgate a revised During these site visits, the Agency levels. Based on this comparison, the treatment standard for D010 based on either gathered performance data from Agency selected the highest standard for stabilization performance data. company records or requested the each metal to establish UTS and to Commenters proposed alternative collection of actual treatment allow for process variability and treatment standards for D010 wastes performance data through sampling and detection limit difficulties. The Agency that ranged from 0.20 mg/l to 10.0 mg/ analysis. The facilities provided the believes that this approach is consistent l. The commenters argued that the Agency with detailed performance data with the intent of UTS and derives proposed standard of 0.16 mg/l which consistent with BDAT protocols limits achievable by both HTMR and was based on the performance of High (including effluent grab samples). stabilization technologies. The new data Temperature Metals Recovery (HTMR) The performance data represented a also confirmed that the other proposed was not achievable by stabilization and wide range of metal-bearing wastes levels (i.e., UTS) proposed on August that commercial HTMR units may not (both listed and characteristic) that the 22, 1995 for TC metal waste and on accept selenium-containing wastes Agency believes represents the most January 25, 1996 for mineral processing making the technology unavailable, or at difficult to treat metal-bearing wastes. waste are in fact achievable with grab least, not suitable as the technology The types of wastes treated included sampling by both stabilization and basis for a uniformly-applicable mineral processing wastes, baghouse HTMR. Therefore, EPA is not proposing treatment standard. Furthermore, the dust, battery slag, soils, pot solids, to modify any levels except those commenters argued that the Agency did recycling by-products, and sludge. TCLP discussed here. not account for the difficulties in values in the untreated wastes included As a result of this new analysis, the stabilizing wastes containing high levels 4430 mg/l lead, 1580 mg/l chromium, Agency is today proposing to change the of selenium in conjunction with the 82 mg/l barium and 4280 mg/l treatment standard for the following TC presence of other metals when cadmium. In addition, numerous waste metal constituents as well as their developing the treatment standard. streams contained multiple metals associated UTS: barium, cadmium, One comment focused on the inability which would be representative of a chromium, lead, and silver. In addition, to stabilize selenium-containing wastes characteristic waste with UHCs, while the Agency is proposing to change the in the presence of other metals. The other waste streams had significant UTS for antimony, nickel, thallium, commenter stated that they did not feel concentrations of combination metals vanadium, beryllium, and zinc. With that 0.16 mg/l TCLP for nonwastewater including: lead and cadmium, barium these changes, the Agency is forms of D010 was routinely achievable and lead, and chromium and antimony. establishing metal treatment standards utilizing best operating practices. As The Agency reviewed all the using performance data based solely on stated in their comment, selenium has a performance data and the facility grab samples. EPA used the same pH and solubility that is significantly treatment operations. It determined that methodology, sometimes called ‘‘C 99’’ different from other characteristic at least two of the facilities were well- in calculating today’s proposed levels metals. Selenium’s minimum solubility designed and well-operated and (i.e., the proposed UTS levels) as has is at a neutral to mildly acidic pH (6.5– represented BDAT technology for the been used in past rulemakings (56 FR 7.5), while it is highly soluble in the full range of TC metals and the metal 41164, August 18, 1991) and the BDAT alkaline pH range (8–12). The other UHCs that are often found in these Background Document for K061 dated characteristic metals have a minimum wastes. The reader is referred to the August 1991. The table at the end of this solubility in the strongly alkaline pH rulemaking docket for a complete section provides information detailing range (8–12), while their solubility discussion of the site visits and the data the standards generated by both data increases at neutral and acidic pH collected by the Agency. See item sets as well as the newly proposed levels. This difference in solubilities, numbers 2, 5,6, 17, 18, 19,and 20 in the standards. The Agency discusses next the commenter stated, creates a problem docket submittal entitled, Documents two metals where data are still limited. for treating wastes with a mixture of 26046 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules characteristic metals which include The Agency has also decided to 6. Proposed Revision of UTS for Silver selenium. Since there is a difference in propose a change in the UTS for solubilities for the metals depending on selenium from 0.16 mg/l to 5.7 mg/l EPA proposed a concentration level of the pH of the stabilized wastes, if a TCLP. While the Agency has 0.30 mg/l as the treatment standard for neutral pH is maintained in treatment, performance data showing treatment silver nonwastewaters, based on data selenium will not leach but the other levels for selenium of between 0.16 to from the treatment of K061 waste metals will, if a high pH is maintained, 0.29 mg/l TCLP for stabilization and sampled on a composite basis. See 60 the selenium will leach while the other HTMR technologies, these levels seem FR 43684, August 22, 1995. Citing low metals will not. In light of these to be achievable only with extremely human health risks from silver, distinctly different pH/solubility curves low concentrations of selenium in the commenters stated that EPA should not for selenium and other characteristic untreated waste. Therefore, the Agency be setting a treatment standard for silver metals, the commenter believes that the feels that this standard does not reflect that is lower than the characteristic treatment standard for selenium should the true diversity of the waste stream, level of 5.0, and instead should remove be established at a higher level. In nor is it reflective of the most difficult silver from the list of TC constituents support of the commenters claims, a to treat selenium waste. As such, the altogether. Later, EPA issued a Notice of laboratory study was submitted showing Agency feels that 5.7 mg/l TCLP is a Data Availability which stated that EPA the leachability of selenium while better assessment of treatability and a was not prepared to make a decision on varying pH and binder to waste ratios. more appropriate standard. whether or not to retain silver on the TC list, but that the Agency was The Agency has researched the claims 5. Proposed Revision of UTS for considering two new treatment standard made by the commenter and concurs Beryllium options: a UTS level of 5.0 mg/l, or a with his assertions. The Agency is In the Phase IV proposal, the Agency level of 5.0 mg/l for D011 while convinced that wastes containing proposed to change the UTS for maintaining a UTS of 0.30 mg/l for all selenium concentrations greater than 1.0 beryllium from 0.014 mg/l TCLP to 0.04 other silver-containing waste. See 61 FR mg/l TCLP in the presence of other mg/l TCLP, based on composite data (60 21420, May 10, 1996. metals, e.g., cadmium, lead or FR 43683, August 22, 1995). A chromium may encounter difficulties in commenter was critical of the proposed EPA is still studying silver in order to stabilization due to the different beryllium level and stated that 0.04 decide on its status as a TC waste, and solubility curves noted above. While it mg/l TCLP was too stringent and not is not proposing any change to that may be possible to treat a D010 waste supported by stabilization data. status in today’s notice. However, EPA to the proposed treatment standard of However, the Agency has been unable to is proposing a revised UTS, based on 0.16 mg/l TCLP, in the absence of other obtain, despite repeated efforts, any the new data on metal constituents metal contaminants, the Agency cannot treatment performance data from that discussed above. For silver, the data is be certain that this would or could commenter to validate claims that the based on treatment by High occur. The Agency believes that it is treatment standard is not achievable. Temperature Metals Recovery and on more realistic to assume that treatment Also, the Agency recognizes that the preferred method of grab sampling. will occur in the presence of other proposing to use composite data was an The data supports a level of 0.11 mg/l metals thus limiting the effectiveness of error, as this is not consistent with for silver nonwastewaters, making the stabilization on selenium. As such, the BDAT methodology, as discussed above. standard more stringent than proposed Agency has decided to propose to As such, the Agency is proposing a UTS in either of the earlier notices. for beryllium based on available maintain the current treatment standard EPA believes that silver wastes are for nonwastewater forms of D010 at 5.7 performance data from the stabilization and HTMR facilities described above. generally recycled due to their mg/l TCLP. This standard is based on economic value and are covered by the the stabilization of a D010 waste These data, which admittedly do not include incoming waste with high special streamlined standards for containing 700 ppm selenium and is recyclable materials utilized for considered by the Agency to be the most beryllium levels, show that the appropriate treatment level is 0.018 precious metal recovery at 40 CFR Part difficult to treat selenium waste. See the 266.70 Subpart F. There may be little or Third rule (55 FR 22574, June 1, 1990.) mg/l. Therefore, the Agency is today proposing a revised UTS of 0.018 mg/l no land disposal of silver wastes, hence The Agency notes that because this TCLP (actually 0.02 mg/l, due to little or no impact of applying a new treatment standard is above the level of rounding) for nonwastewaters based on treatment standard. EPA is today leachable selenium that defines the the performance of HTMR using grab seeking information on quantities of waste as D010 (1.0 mg/l TCLP), D010 samples. The Agency is however, silver nonwastewaters that would be wastes that are generated at a level soliciting comment on whether there are affected by LDR treatment standards, between 5.7 mg/l and 1.0 mg/l TCLP difficulties in treating various and on whether a level of 0.11 mg/l is meet the treatment standard but are still beryllium-containing waste streams. achievable for those wastes if they exist. considered to be hazardous wastes The Agency welcomes the opportunity However, as discussed above, standards (assuming the TCLP value exceeds 1.0 to evaluate any performance data and in the LDR program can be either mg/l) and, therefore, must be land reminds the reader should any technology- or risk-based. In the absence disposed in a Subtitle C facility. In hazardous beryllium production wastes of definitive risk information, the addition, since the treatment standard fail to meet the 0.018 mg/l TCLP level Agency sets technology-based for selenium is above its characteristic (if finalized), the facility may apply for standards. Data from both HTMR and level, selenium would not be recognized a treatability variance under 40 CFR stabilization technologies show 0.11 as an UHC. 268.42. mg/l is achievable for nonwastewaters. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26047

PROPOSED UNIVERSAL TREATMENT STANDARDS FOR TWELVE METAL CONSTITUENTS CALCULATED FROM HTMR AND STABILIZATION SAMPLE SETS* [Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]

Proposed TC level (mg/ Existing UTS HTMR grab Stabilization UTS level Waste code Constituent l) level samples (mg/ grab samples (revised) (mg/l TCLP) l TCLP) (mg/l TCLP) (mg/l TCLP)

D005 ...... Barium ...... 100 7.6 3.3 21 21 D006 ...... Cadmium ...... 1.0 0.19 0.20 0.014 0.20 D007 ...... Chromium ...... 5.0 0.86 0.85 0.13 0.85 D008 ...... Lead ...... 5.0 0.37 0.12 0.75 0.75 D010 ...... Selenium ...... 1.0 0.16 0.29 0.12 5.7 D011 ...... Silver ...... 5.0 0.30 0.11 0.0084 0.11 Antimony ...... 2.1 0.043 0.068 ** 0.07 Beryllium ...... 0.014 0.02 0.012 ** 0.02 Nickel ...... 5.0 13.6 0.082 13.6 Thallium ...... 0.078 ...... 0.20 0.20 Vanadium *** ...... 0.23 0.015 1.6 1.6 Zinc *** ...... 5.3 3.8 4.3 4.3 * The proposed universal treatment standard (UTS) was established by selecting the higher of the two treatment standards that were cal- culated from stabilized wastes and HTMR residues. ** The proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mg/l TCLP. *** Vanadium and zinc are not underlying hazardous constituents.

7. Demonstrating Compliance by Grab or K061, K062, and F006 managed at Phase IV proposal, 60 FR 43654, August Composite Sampling certain facilities, as described below. 22, 1995). EPA is rectifying this problem in the EPA has long preferred that Current treatment standards for hazardous waste K061, K062, and F006 short term by allowing two HTMR compliance with the LDR standards for facilities, Horse head Resource nonwastewaters be based on grab were based partially on the use of composite rather than grab sampling. Development Company Inc. and samples (a one-time sample taken from International Metals Reclamation any part of the waste), rather than That is, the data for certain of the hazardous constituents regulated under Company Inc. to comply with the composite samples (a combination of current treatment standards for K061, samples collected at various locations that standard— namely beryllium, nickel, lead, silver, cadmium, and K062, and F006 through use of for a given waste, or samples collected composite samples. The two facilities thallium— were obtained exclusively over time from that waste). This is must follow the procedures contained in from composite samples, and the data because ‘‘grab samples normally reflect two documents in appendices to this for vanadium and zinc came partially maximum process variability, and thus preamble, entitled ‘‘Procedures For would reasonably characterize the range from composite samples. (See Horse Head Development Company to of treatment system performance.’’ (See memorandum from Richard Kinch to Establish Compliance With RCRA 54 FR at 26605–06, June 23, 1989; 55 FR RCRA Docket dated August 19, 1991, Treatment Standards at 40 CFR 268.40 at 22539, June 1, 1990.) This type of regarding promulgation of K061. See and 268.48 for K061, K062, and F006 sampling is in keeping with the ultimate also 57 FR at 37207, August 18, 1992, residuals; and ‘‘Procedures For objective of the land disposal which explains that K061 standards INMETCO to Establish Compliance restrictions program: that all of the were transferred to K062 and F006). The With RCRA Treatment Standards at 40 hazardous waste to be land disposed be BDAT technology for this waste code CFR 268.40 and 268.48 for K061, K062, treated in a way that minimizes the was High Temperature Metal Recovery and F006 residuals.’’ threats that land disposal could pose, (HTMR), and the composite samples However, EPA’s ultimate intent is to not just that some average portion of the used to develop parts of the standard require compliance with UTS on a grab waste be so treated (a possible result of indeed came from HTMR facilities. Id. basis for all facilities, including HTMR using composite sampling). In addition, The two HTMR facilities involved in facilities treating K061, K062, or F006. there is an implementation advantage to developing the data for the current As discussed above, EPA has received use of grab sampling, since enforcement standards have pointed out in additional grab sample data on metal- for EPA, authorized states, or citizen comments to the Phase IV proposal and bearing hazardous waste that was not groups is facilitated if enforcement can to earlier LDR rules that they may not available at the time UTS was be based on individual sampling events be able to achieve the metal treatment promulgated. As discussed above, EPA (as occurs with grab sampling). standards for these waste codes if has proposed to use the new data to The universal treatment standards for enforcement is based on grab sampling, revise the UTS standards for some nonwastewaters are consequently and that such enforcement is constituents. It appears that with the enforced on the basis of grab sampling. unwarranted for their facilities since the new UTS metal levels proposed in this The revisions to those standards for underlying data used to develop the notice, that HTMR facilities should be toxic metals reproposed today would treatment standard for these wastes able to meet UTS on a grab sampling likewise be enforced on the basis of grab included composite data. (See basis. There are some data (from one sampling, and, in all cases are based on comments from Horsehead Resource facility) supporting this position, and grab sampling data. EPA intends to Development Company, Inc. and EPA has requested additional data from maintain that regime, with the International Metals Reclamation the other facility, which has indicated it temporary exception of three wastes: Company, Inc. in the docket for the will provide additional data within six 26048 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules months. Therefore, EPA will consider facilities that generated metal-bearing standard through groundwater data received until six months from the remediation waste (10%), metal monitoring; technical standard by date this notice is published in the manufacturing waste (10%), foundry design and construction; or a Federal Register before making a final wastes (6%), and spent metallic wastes determination by a state or EPA Region decision. The Agency will act sooner, if (6%), most of which exhibited a that the unit is functioning as a process in its judgement there is little likelihood characteristic or were listed hazardous unit. See generally 61 FR at 2339–2351. that additional data will be available wastes. As discussed in section II above, In response to this proposal, the Agency within six months. Currently the this new data has convinced the Agency received 101 comments, many Agency’s view is that the UTS levels that some revisions should be made to providing the Agency new information proposed today can be met by both the UTS. With these revisions, the about the identification, management, stabilization and HTMR, and grab Agency concludes that UTS levels are and volumes of particular wastes. sampling must be required in all cases. achievable for mineral processing The information from the comments, wastes, as for other TC metal wastes. further analysis of existing data, and IV. Revised Treatment Standards for new data collected since the January 25, Mineral Processing Wastes V. Proposal of New Options for Mineral 1996 proposal indicate that mineral Processing Materials A. Summary processing secondary materials are Today’s proposal seeks comment on generated in smaller volumes than EPA EPA is proposing to apply Universal several specific options considered by previously believed. Further, this new Treatment Standards, as revised today, the Agency related to recycling of information indicates that a significant to the newly identified mineral secondary materials from mineral number of secondary mineral processing processing wastes. The revised processing, and to wastes excluded by materials are not stored in land-based treatment standards can be found in the the Bevill Amendment. This proposal is units. The Agency also has gathered table at the end of the section in this a supplement to, and not a replacement additional data indicating that land- preamble on treatment standards for TC of, the January 25, 1996 proposed rule. based storage of secondary materials metal wastes. The first issue pertains to the land contributes to environmental releases. B. Discussion storage of hazardous mineral processing Based on this information, the Agency questions the necessity of land-based On August 22, 1995 the Agency secondary materials—that is, sludges, byproducts or spent materials generated storage units for most of the mineral requested comment on a proposed processing industry. rulemaking which would apply LDR by and legitimately recycled within the mineral processing industry sector, The Agency today is proposing a new treatment standards to all characteristic option that would restrict the use of metal wastes (60 FR 43654), and on which secondary materials would be either identified or listed as hazardous land-based units for secondary materials January 25, 1996 EPA proposed that generated by and recycled within the those same standards apply to mineral wastes if they are first classified as solid wastes (see 50 FR at 616, n.4, and 627 mineral processing industry. This new processing waste that exhibit a option would condition exclusion from characteristic of hazardous waste. As (Jan. 4, 1985))— and when such storage could occur without the secondary being a solid waste on storage in units noted above, such wastes are considered that are not land-based—typically tanks, to be ‘‘newly identified’’ for purposes of materials being RCRA ‘‘solid wastes’’. The second issue involves whether the containers, or buildings. Thus, if a timing of LDR prohibitions. The hazardous secondary material from comments received suggested that the wastes generated when a facility uses alternative feedstocks along with Bevill mineral process is legitimately recycled proposed treatment standards could not within another mineral processing be achieved using stabilization raw materials retain Bevill-exempt status. EPA is proposing and seeking operation, it would not be a solid waste treatment; and that more stabilization provided the storage that precedes the technology performance data was comment on new options for addressing these issues. The final matter addressed recycling does not entail land necessary to set treatment levels for TC placement. This proposal is metals. Since the receipt of these is a limited solicitation of comment on the question of whether the risks posed conceptually the same as the one EPA comments the Agency has conducted proposed for the oil-bearing secondary site visits to facilities using stabilization by some wastes which are currently Bevill-exempt warrant future regulatory materials generated by and recycled technology to treat mineral processing within the petroleum industry. See 60 controls by the Agency. or similar wastes, i.e. TC metal wastes. FR 57753 (Nov. 20, 1995). The Agency See Section II above for the discussion A. New Option—Land Storage of would make an exception where there is of TC metal waste. Secondary Materials a volumetric necessity to use land-based The new data from these site visits storage units to store hazardous 1. General Discussion reaffirm the Agency’s position that the secondary materials. The Agency is mineral processing wastes are similar In the January 25, 1996, rule, the proposing as the volumetric cut-off (i.e., no harder to treat) than those Agency proposed changes to the current 45,000 tons per year for solids and one wastes from which the Universal definition of solid waste by providing a million tons per year for liquids— Treatment Standards (UTS) were conditional exclusion for primary consistent with the high volume criteria established. (In addition to the new data mineral processing secondary materials previously established by the Agency on TC metal waste referenced above, that are further processed within the for 20 special mineral processing see: Modified Background Document industry. Under this approach, mineral wastes. (See 54 FR 36629, September 1, dated December, 1996 and BDAT processing secondary materials would 1989). High volume hazardous Background Document for TC Metals not be solid wastes if certain conditions secondary materials, to the extent that dated August, 1995; and Background are met. These conditions included any exist, would be subject to the land Document for Universal Treatment meeting criteria to ensure that legitimate storage conditions based on the Standards dated September, 1994). reprocessing was occurring and that the concepts proposed in the January 25, Specifically, the new site visit data land-based unit was functioning as a 1996 Proposed Rule. (See 61 FR at came from facilities treating primary or process unit and not a waste disposal 2345–48). Further, in today’s notice EPA secondary mineral processing (68%); unit. These include: a performance is providing information on what types Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26049 of tanks, containers, and buildings In the case of piles, the storage advances, process changes, and would be suitable as storage structures. practice of allowing secondary materials sometimes in response to increasing In general, the Agency is proposing that to erode due to rainfall and to be carried environmental liability. these units be able to contain the away by the prevailing winds can pose The Agency’s review of comments on secondary materials, but would not actual or potential threats to human the volumes and the management require that the units satisfy subtitle C health and environment and are practices of secondary materials design, operation, and performance suggestive of waste disposal practices. generated support the observation that standards. (See Non-RCRA Tanks, (See Damage Cases and Environmental facilities are less likely to use land- Containers, and Buildings, EPA, 1997). Releases, EPA, 1997). The same is true based units and are managing more This approach, again, is analogous to for surface impoundments where hazardous secondary materials in that proposed for oil-bearing secondary materials are allowed to migrate to contained units. Based on the comments materials generated by and recycled contaminate soils and groundwater. In received and further evaluation of new within the petroleum industry. contrast to these practices, most other data, the Agency has found the volumes The Agency received comments that industries which generally store of hazardous secondary materials from land based units were not protective secondary materials destined for mineral processing to be much lower due to uncontrolled releases of recycling in tanks, containers, or than earlier believed. Specifically, EPA hazardous constituents. In evaluating buildings. Further, and more found that of the 119 hazardous waste the comments, the Agency identified importantly, these land-based storage streams, 117 (98 percent) were additional information which practices can result in the types of generated in quantities lower than the characterizes how mineral processing environmental damage that RCRA was respective Bevill high volume cutoffs for land-based units can release or threaten designed to prevent.1 Such materials solid and liquids. Even more to release hazardous constituents. (See can be viewed as ‘‘part of the waste demonstrative is that 79 (48 solid wastes Damage Cases and Environmental disposal problem’’ when stored in land- and 31 liquid wastes) of the 119 waste Releases, EPA 1997). Also, the Agency based units, and hence ‘‘discarded’’ streams are generated in quantities less has found that use of land-based units (within the meaning of the statutory than 5,000 tons per year. (See to store hazardous secondary materials definition of solid waste, RCRA section Characterization of Mineral Processing is less common than EPA previously 1004 (27)). American Mining Congress Wastes and Materials, EPA, 1997). believed, indicating that land-based v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. EPA’s assumption that there was storage may not be such an integral 1990). The Agency is proposing production-related necessity for mineral practice of the mineral processing conditions that would better define processing facilities to utilize land- industry. Further, as noted in the when discard is not occurring, such as based storage units is also called into preceding paragraph, the information storage in a tank, container, or building. question by comparison of other provided by commenters indicates that The Agency received sufficient industries’ storage practices with the volumes of mineral processing comment on the jurisdictional solid respect to comparable metal-bearing secondary materials may be lower than waste issues in the January 25, 1996 rule wastes which are likewise recycled for expected, indicating that land-based and requests that commenters direct metal recovery. For example, electric arc storage may not always be necessary their comments solely to the new furnace dust from steel smelting (K061) because comparable quantities of options in today’s notice. is a similar metal-bearing waste that is secondary materials from other As noted earlier, EPA initially found also re-processed. K061 is generated at industrial sectors are typically managed that land-based units at mineral the average rate of 4,662 tons per facility in tanks, containers, and buildings. This processing sites have historically been a per year. However, K061 is stored in information is provided in the RCRA significant part of the production tanks, containers, and buildings, not on docket for public review and comment. processes typical of the mining and the land. There is no evidence that such (See Characterization of Mineral mineral processing industries. (See 61 management poses an undue burden on Processing Wastes and Materials, EPA FR at 2340–41). The Agency reasoned the generators or processors of K061. 1997). that land-based units were necessary Further, there are many similarities between the recycling of K061 and the The information collected by the due to large volumes of materials recycling of hazardous secondary Agency indicates that mineral managed by this industry (or, in some materials by the mineral processing processing hazardous secondary cases, due to the heat of the material industry. In both cases, metal-bearing materials stored in land-based units can precluding any other type of immediate dust that bears resemblance to the raw pose actual and potential threats to handling) and historical practices for material metal concentrate being human health and the environment. Due the mineral industry. However, the smelted is generated as part of a to particle size reduction, heat, and Agency also noted that there is a trend for some mineral processing facilities to smelting process. chemical reactions in the processing The Agency has seen a trend for steps, metal compounds and other manage secondary materials in tanks or other units which provide containment mineral processing wastes to be placed constituents become more mobile and in tanks upon generation and treatment. concentrated. (54 FR 36614–36619, integrity. The Agency believes that the trend toward storage of secondary This is the case for spent potliners K088 September 1, 1989). Specifically, EPA listed waste, a primary mineral has found cases where land storage materials in tanks, containers, and buildings is a function of technological processing waste and one of the (surface impoundments and piles) of remanded smelting wastes. hazardous secondary mineral processing 1 Approximately 23 facilities generate an materials awaiting recycling increase See RCRA Section 1003(b), 42 U.S.C. 6902(b) (‘‘The Congress hereby declares it to be the national average of 5,400 tons per year of K088, the potential for groundwater policy of the United States that, wherever feasible, an aggregate of 125,000 tons per year.2 contamination, contaminated runoff, the generation of hazardous waste is to be reduced One facility, Reynolds Metal Company, windblown dust, and soil or eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, contamination and increase the cost of stored, or disposed of so as to minimize the present 2 EPA Background Document for Capacity cleanup. (See Damage Cases and and future threat to human health and the Analysis for Land Disposal Restrictions, Volume 1, Environmental Releases, EPA, 1997). environment.’’) February 1996. 26050 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules is able to store and treat almost the processing at 45,000 tons per facility and buildings indicates that wide entire nation’s production of K088 in waste stream per year and the high variety of commercially available units tanks, containers, and buildings. In the volume cutoff for liquids at one million meet or exceed these criteria. The case of spent aluminum potliners, the tons per facility waste stream per year. capacity, design, and function of these industry does not appear to be unduly In the case of extraction/beneficiation containment units are as varied as the burdened by storing this waste in tanks, wastes, the Agency published a construction materials. (See Non-RCRA containers, or buildings. determination that regulation of such Tanks, Containers, and Buildings, EPA, Commenters presented little in the wastes under Subtitle C of RCRA was 1997). This report provides examples of way of data or compelling technical not warranted, primarily because what the Agency considers to be reasons why mineral processing traditional hazardous waste controls acceptable containment units for the hazardous secondary materials cannot applied to large volume mining wastes storage of mineral processing secondary be stored in units other than land-based may be technically infeasible or materials. units. One commenter stated that economically impractical. July 3, 1986 As discussed in this report, an molten copper slag needs to be poured (51 FR 24496). In today’s rule, the acceptable tank or container must be onto the ground because no container Agency is soliciting comment on free standing and not a surface would withstand the heat during the whether large volume secondary impoundment, be manufactured of a cooling process. However, the Agency materials from mineral processing material suitable for storage of its finds this example unpersuasive should similarly be given special contents, and meet comparable because copper slag is one of the special consideration. The Agency is soliciting specification as those established by 20 mineral processing wastes and comment on whether large volume ASTM, API, or other industry standards. therefore isn’t subject to subtitle C secondary materials from mineral Additional descriptions of these regulation (See 261.4(b)(7)). In any case, processing may require land-based standards and examples of acceptable the copper slag is stored and transported storage because of technical infeasibility storage units are described in EPA’s in metal containers prior to being land or production-related necessity. technical background document. (See applied, indicating that land storage is Under this new option, (actually a Non-RCRA Tanks, Containers, and not an exclusive alternative. In addition, subset of the January 25 proposal) those Buildings, EPA, 1997.) An acceptable the slag is typically put back into the mineral processing secondary materials building containment unit must be a beneficiation or smelting operation that meet or exceed the high volume man-made structure and foundation within 24 hours, which is a practice criteria would be eligible for the constructed from non-earthen materials, indicating immediate reuse and not conditional exclusion as proposed in have walls (which may be removable), discard. (Additional discussion on the the January 25, 1996 Proposed Rule (61 and have a roof suitable for diverting concept of immediate reuse can be FR 2338). Specifically, if large volume rainwater away from the foundation. In found in Section IV.A.4-Class of secondary materials are stored on the considering criteria for tanks, Materials Outside of RCRA Jurisdiction.) land, such storage unit must meet either containers, and buildings, EPA is One commenter stated that red and risk based performance standards, or placing special emphasis upon practical brown muds from bauxite refining minimum design criteria, or receive a considerations, such as the need to required surface impoundment due to site-specific determination that the unit transport materials in and out of the large volumes. Here also the Agency is a process unit and not a waste unit in a reasonable fashion. The finds this example unpersuasive disposal unit. 61 FR at 2345–47. The Agency believes that buildings with one because red and brown muds are generally applicable conditions related or more open doors or removable walls included in the special 20 mineral to legitimate recycling and speculative accessible to machinery, such as a front- processing wastes and therefore are not accumulation would also apply. 61 FR end loader, are acceptable. The Agency subject to subtitle C regulation (See at 2342–45. In essence, today’s proposal solicits comment as to whether a three 261.4(b)(7)). Commenters did not applies one additional condition: to be sided concrete bunker, with no roof, identify any other materials for which stored in a land-based unit, the used to store flue dust is an acceptable land-based storage was a compelled secondary material must be generated building or whether a tank or container mode of management. on a per waste stream annual basis that needs to be covered or have a fixed or meets or exceeds the high volume removable lid. Such containment units 2. Criteria for High Volumes of Bevill- criteria. The Agency solicits comments may be acceptable in geographic regions Exempt Mining and Mineral Processing on this proposed regulatory approach. with sparse rainfall. Wastes The Agency would not require that High volume is the principal indicator 3. Containment Units these units meet full Subtitle C of whether a particular waste is EPA has collected information on a requirement for storage units of amenable to management under Subtitle variety of tanks, containers, and hazardous wastes. Specifically, the C of RCRA. In developing the high buildings. The unit must function as a Subpart J requirements for tanks at 40 volume criterion for special mineral process unit and should be designed to CFR 265.190–265.201 would not be processing waste, the Agency evaluated contain the material placed in it with required. The Agency believes that an four methodological issues: (1) The reasonable certainty, that is, the appropriate indicia of containment appropriate degree of aggregation of secondary materials must be stored in a should include a comparison of how waste streams; (2) the basis for way that distinguishes the unit from a this industry stores its primary quantitative analysis (facility specific waste disposal unit. Generally, a feedstocks and products, which is vs. industry wide); (3) the units of containment unit should be an typically in non-subtitle C tanks, measure; and, (4) the types of other engineered unit made of non-earthen containers, or buildings. The Agency wastes to be used as the basis for materials providing structural support. believes that it is reasonable not to comparison. (For a detailed discussion The Agency believes that most condition an exclusion on using units on establishing the high volume criteria containment units currently in use by that meet all of the subtitle C standards. see 54 FR 15327–31, April 17, 1989). the mineral industry would meet this These standards were not created to The Agency established a high volume description. The Agency’s review of demarcate a line between wastes and cutoff for solid wastes from mineral currently available tanks, containers, non-wastes, and, similarly, are not the Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26051 necessary benchmark for ascertaining if occurring. These materials have always jurisdiction, regardless of whether it is a unit functions as part of a production been outside of RCRA jurisdiction and stored on the land. The Agency believes process or is being used as a mode of are unaffected by this or the January 25 that while most facilities could comply discard. Indeed, even raw materials proposal. An example are copper with a much shorter time period, the containment structures would not meet reverts, a refined copper material that two day period allows flexibility to all of the subtitle C requirements. The falls on the ground when molten copper perform the major steps necessary for Agency solicits comment on this is transferred within the smelter.3 The recycling. The Agency believes that approach. common industry practice is to pick up there are generally five major steps: (1) reverts on an hourly basis and put them 4. Class of Materials Outside of RCRA Generation of the secondary material; back into the smelting process. These Jurisdiction (2) sampling of the material (3) chemical are not secondary materials (sludges, and property analysis of the material; (4) In the January 25 proposal, the spent materials, or byproducts) at all but processing decisions; and (5) placing Agency stated that the statutory rather some type of in-process material material back into the process.4 Even if definition of solid waste, as well as the that is being put to further use. There is only one of the steps were to occur in judicial opinions construing it, must be no use for reverts other than to be added a separate eight hour shift the entire taken into account in addressing EPA’s to a copper smelting operation for sequence would require 40 production jurisdiction over mineral processing continued refining. Further, the Agency hours, which is well within the two day secondary materials. 61 FR 2341. In is not aware of any case where reverts allowable period. The Agency believes American Mining Congress v. EPA, 824 have been abandoned, discarded, or that this is a worst case scenario, and F. 2d 1177 (D.C. Cir. 1987) (‘‘AMC I’’), whose land storage has contributed to certainly within the zone of reasonable the court found that EPA’s jurisdiction environmental problems. Copper reverts durations from which EPA could select does not extend to materials that are have always been outside of RCRA a value, because most facilities process destined for immediate reuse in another jurisdiction. materials in a much shorter time period phase of the industry’s ongoing The second category are secondary than the two day (48 hour) period. production process. 824 F. 2d at 1186. materials whose management practices The Agency realizes there are Subsequent judicial opinions have indicate that ongoing process immediate occasions where a processing device clarified the narrow scope of AMC I, so reuse is occurring. An example of an must be taken off line for maintenance. that the only absolute bar on the immediately reused secondary material There are occasions where machinery Agency’s authority to define recycled would be copper flue dust generated breaks down and extensive repair is secondary materials as solid wastes is to from smelting operations. Most facilities needed. In such cases, the facility ‘‘materials that are destined for routinely store flue dusts for very short usually has parallel or backup devices immediate reuse in another phase of the periods of time before returning the to continue production. Nevertheless, industry’s ongoing production process’ material to the smelting process. Similar the Agency realizes that this may not and that have not yet become part of the to reverts, copper flue dust has no other always be the case and that sometimes waste disposal problem.’’’ American use other than to be returned to the production stops for extended periods Mining Congress v. EPA, 907 F. 2d 1179, smelting process for continued refining. of time. The point is that 1186 (D.C. Cir. 1990) (‘‘AMC II’’) However, unlike reverts, the Agency has notwithstanding the main line quoting AMC I, 824 F. 2d at 1186 n2. In information indicating that some flue production stoppages, secondary the January 25 rule, the Agency focused dusts are stored for extended periods of materials destined for immediate reuse its attention on land-based units which time and have contributed to are routinely put back into production by their very nature are unable to environmental problems. (See Damage expeditiously. To make allowance for prevent releases of secondary materials. Cases and Environmental Releases, EPA, production stoppages, the Agency is 61 FR 2342. While storage of secondary 1997). The Agency believes that proposing that the tolling of the two day materials on the land is one indication environmental releases are a function of period for immediate reuse would also of discard, other practices such as lack the length of storage time for these stop. The tolling would continue on the of immediate reuse is an indication that materials. next production day. Put another way, unit is part of the waste management Defining a particular time period that a production day counts towards one problem. The Agency has damage case constitutes immediate reuse raises day of the two day limit. information involving the several considerations. The Agency has In today’s proposal, the Agency is environmental release of product-like found that most mineral processing limiting the two day immediate reuse materials being stored for extended facilities operate 365 days per year, 24 exclusion only to on-site processing, periods of time. (See Damage Cases and hours per day. Because of this that is, where a material is generated Environmental Releases, EPA, 1997). continuous production schedule, and reused in the same or similar Conversely, materials that are secondary materials that are destined for process at the same facility. EPA immediately reused in a process is a immediate reuse are routinely placed believes that this is a reasonable practice indicative of on-going back into the process on an hourly basis interpretation of the ‘‘immediate reuse’’ processing that is outside the scope of and most are recycled within one or two RCRA subtitle C. days. The Agency believes that a time test articulated in the judicial opinions. Based on the Agency’s study of period of two days is an appropriate Once secondary materials are mineral processing industry practices standard for immediate reuse. This transferred off-site, the transaction is and review of comments on this subject means that a secondary material that is less continuous, and elements of discard from the January 25 proposal, the put back into production within two 4 These steps are based upon information Agency believes initially that there are days of generation is outside of RCRA obtained from the Society of Mining Engineers two categories of materials that are Mineral Processing Handbook, Volume 2, Section included in the definition of immediate 3 Reverts are matte and copper spilled in the 30—Sampling and Testing, and Section 14G— reuse. The first are materials that by converter aisle in the process of being transferred Purchase of Copper Concentrates and Cement to ladles from one part of the smelting process to Copper (1985); By-products Recycling at ASARCO. their very nature are being continually another. See Memorandum from Roderick Dwyer, Processing of Drosses, Slages, and Dusts, G. Archer, processed and whose management National Mining Association, to James Berlow, EPA, B. Dunn, and F. Ojebuoboh, The Minerals, Metals, practices indicate that discard is not August 31, 1995. and Materials Society (1991). 26052 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules such as use of land-based storage can be comparing wastes generated by processing operations and any materials assessed in determining if management processing exclusively Bevill raw generated in industries other than of the material has become part of the materials with wastes from co- mining or mineral processing, regardless waste disposal problem. AMC II, 907 F. processing alternative feedstocks and of whether the material exhibits a 2d at 1186. Further, the exclusion does showing that the addition of the hazardous characteristic. not apply to secondary materials in alternative feedstocks did not have Under this option, the 50 percent either category that are managed in a either a statistically significant effect, or, criteria for Bevill eligibility, as way indicative of disposal. in the alternative, an environmentally discussed in the January 25, 1996 The Agency solicits comment on the significant effect. Wastes not proposed rule at 61 FR 2351, would not appropriateness of a two day time ‘‘significantly affected’’ remained the be applicable. Similarly, the period; whether there are more practical type of waste EPA had determined significantly affected test proposed at 61 or appropriate measures of immediate warrant Subtitle C exemption. 61 FR at FR 2351 would no longer be applicable. reuse; and whether this exclusion 2351. Since under today’s proposal, any should apply beyond on-site processing. Most industry commenters supported addition of a non-Bevill feedstock Further, the Agency solicits comment the 50 percent criteria but disagreed would disqualify the resulting wastes on what other specific materials would with the need for a quantified from the Bevill exemption, the 50 qualify under the immediate reuse legitimacy test and the significantly percent and significantly affected tests exception. affected test. Further, industry would be redundant. commenters argued that these tests were This proposal is based on the B. New Option—Non-Bevill Materials unworkable as applied to their wastes. following principles. First, the Bevill Used as Alternative Feedstocks Industry commenters also argued that exemption allows for management of The Agency is proposing an option Congress intended the Bevill what would otherwise be hazardous related to the case where a process Amendment to be interpreted broadly, waste outside of subtitle C controls. which generates a waste exemption to include not only solid waste from the This uncontrolled management has led from subtitle C regulation under the extraction, beneficiation, and mineral to instances of, widespread, and serious Bevill amendment uses as partial processing of ores and minerals but also environmental damage. (See Damage feedstock something other than a Bevill wastes generated when (1) non-Bevill Cases and Environmental Releases, EPA, raw material. An example would be a feedstocks are added to a unit that 1997). In light of this, EPA believes it is copper beneficiation mill which uses generates a Bevill waste and (2) non- sound policy to interpret the scope of by-products from primary zinc Bevill wastes are added directly to a the exclusion to the narrowest manufacture as an auxiliary feedstock Bevill waste. permissible in order to limit the amount along with copper ore. This new option At the outset, it is important to note of hazardous waste escaping regulatory would limit availability of the Bevill the distinction between these two control. Second, the Bevill amendment exemption to wastes generated scenarios. The new option discussed in creates an unfortunate incentive to exclusively from the use of Bevill raw today’s proposal addresses the first maximize volume of Bevill waste materials, namely ores and minerals. scenario in which non-Bevill feedstocks generated. Put another way, there is an Because of the potential additive risk are co-processed with Bevill raw incentive to maximize the volume of posed by the co-processing of non-Bevill materials in a unit that generates a material processed through the Bevill materials, the Agency is proposing an Bevill waste. The second scenario, circuit because the resulting wastes are option that would ‘prevent which refers to direct disposal of a non- accorded Bevill exempt status. contaminants from non-Bevilled Bevill waste with a Bevill waste, was Compounding the problem, the co- materials to be afforded the Bevill addressed in the January 25, 1996 processing can frequently make the exclusion. This option is not an proposed rule and EPA’s proposed resulting wastes more toxic. Again, alternative to the option of restricting approach for dealing with that scenario given the exempt status of the wastes, use of land-based storage units is not being modified by today’s notice.5 EPA believes it makes sense to limit the discussed in the section entitled ‘‘New Under today’s new option, in order scope of the exemption and reduce this Option—Land Storage of Secondary for a waste to qualify for the Bevill incentive for waste maximization. These Materials.’’ It is an independent exclusion, all feedstocks entering the points are discussed more fully below. proposal which could be adopted unit must be solely derived from the Co-processing of non-Bevill feedstock regardless of the Agency’s decision on extraction, beneficiation or processing has changed significantly since the land-based storage units. of a virgin ore or mineral. This means Agency performed its Congressionally In the January 25 proposal, the that only extracted virgin ores used as mandated studies. When EPA studied Agency discussed one option for a feedstock to a beneficiation operation extraction, beneficiation, and mineral evaluating wastes generated from these and only concentrates derived from processing wastes in the 1985 and 1990 types of co-processing operations. 61 FR beneficiation and then used as a Reports to Congress, the Agency did not at 2351. In order for the waste to qualify feedstock to mineral processing would specifically study the practice of co- for the Bevill exclusion under that be eligible for the Bevill exclusion. If processing alternative feedstock with proposal, the Agency proposed the alternative materials are used as Bevill feedstocks. In the case of following criteria: (1) The waste needs feedstocks, the resulting waste would beneficiation, the Agency believed this to result from operations that process not be eligible for the Bevill exclusion. practice was conducted on such a small greater than 50% beneficiation raw For purposes of this proposal, scale as to warrant little or no mention materials; (2) the material being co- alternative feedstocks include secondary in the 1985 Report to Congress and 1986 processed would have to meet the tests materials generated from mineral Regulatory Determination. For mineral for legitimate recycling proposed in the processing the Agency believed that January 25 notice; and (3) the resulting 5 See Proposed Amendment to Bevill Mixture both co-processing and co-disposal of waste could not be ‘‘significantly Rule, 61 FR at 2352. The Agency proposed that hazardous materials was performed on Subtitle C requirements would apply when non- affected’’ by addition of the co- Bevill hazardous wastes are disposed with, stored such a small scale that it addressed both processed, alternative feedstock. This with, mixed with or otherwise combined with situations under a general Bevill ‘‘significantly affected’’ test involved Bevill-exempt solid wastes. mixture rule. (See 54 FR 36622–23 and Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26053 also 61 FR 2352). The Agency’s cases from beneficiation and mineral cleanup costs due to hazardous continued study of mining and mineral processing sites and similarly found that substances found at mine and mineral processing indicates that co-processing non-Bevill materials may have processing sites is significant (See Costs of non-Bevill feedstocks is becoming contributed to the environmental of Remediation at Mine Site, EPA, much more prevalent. This could be problems at these sites. Id. Because of 1997). because as EPA has implemented the the potential additive risk posed by the The Agency also believes that this LDR program, generators have sought co-processing of non-Bevill materials, approach could assist in more simpler alternative outlets for waste rather than the Agency is proposing an option that application of the exemption. The paying for the required treatment. For would prevent contaminants from non- application of the Bevill exemption example, copper smelting operations Bevill materials being afforded the poses many practical difficulties, currently process a substantial portion Bevill exclusion. especially where non-Bevill feedstocks of the nation’s F006 listed hazardous The Agency believes that co- are co-processed and other industrial electroplating wastes, a practice that did processing even nonhazardous wastes are stored and mixed with Bevill not exist when EPA studied the Bevill alternative feedstocks can also feedstocks. There can be a significant special waste, copper slag, produced by potentially pose additional risks when implementation burden (e.g., analytical this smelting. Based on environmental co-processed in a unit generating Bevill testing, assessing a facility’s material damages from copper slag and other waste. Some alternative feedstocks, balance and operating costs) associated Bevill wastes, the Agency is concerned while not exhibiting a RCRA hazardous with discerning in some cases whether about the contribution of contaminants characteristic, often still contain co-processing of alternative feedstocks from non-Bevill sources. The Agency hazardous constituents that ultimately is a legitimate form of recycling or seeks additional data on the types, are disposed with the Bevill wastes. simply a method of disposal. quantities, and management practices of These hazardous constituents are found In these instances, as noted earlier, non-Bevill feedstock which are co- in remediation wastes at mining sites, the Bevill exemption creates an processed by units that generate Bevill adding to the cleanup costs. (See incentive to maximize generation of wastes.6 Damage Cases and Environmental wastes. Any secondary materials, The Agency believes that the addition Releases, EPA, 1997). The Agency’s including those that are low volume and of hazardous substances from non-Bevill views are influenced in part on highly toxic, that are used as a feedstock sources only makes the risk posed by Horsehead Resources Corp. v. Browner in a beneficiation unit are afforded the exempt mining wastes greater. In light 16 F.3d 1246, 1258 where the Court same Bevill protection as a large volume of the environmental damages caused by held that ‘‘it simply makes no sense to mining waste. Given that beneficiation Bevill wastes, the high cost of permit Bevill devices to become units generally recover only a fraction of remediation, and the contribution of inadequately regulated dumping material in a feedstock (often less than contaminants from non-Bevill grounds for hazardous materials.’’ The one percent of the volume or weight) the feedstocks, the Agency is taking Agency is proposing that the co- majority of the alternative feedstock comment on a rigorously narrow processing of alternative feedstocks, ultimately is discarded along with the reading of the Bevill exemption and even those that do not exhibit a Bevill waste. Further, the remainder proposing this option which removes characteristic under RCRA, results in often has contaminant concentrations the Bevill exclusion for wastes that are the loss of the Bevill exemption for the greater than the Bevill waste. (See generated from a unit or device that co- resulting wastes. The Agency solicits Characterization of Mineral Processing processes non-Bevill alternative comment on this approach. Wastes and Materials, EPA, 1997) By feedstocks. Under this option, non- There are situations where secondary clearly defining which feedstocks are Bevill feedstocks may still be processed materials generated from mineral derived from the mining of an ore or in a Bevill device or unit; however, the processing would be given Bevill mineral and therefore Bevill eligible, resulting wastes will not be afforded the protection. This is when the secondary regulators would be more readily able to Bevill exclusion. The Agency found material is independently classified as a determine which wastes found at a mine cases where alternative feedstocks may Bevill waste, for example, it is one of or mineral processing sites qualify for the enumerated special mineral the Bevill exemption and which do not. have contributed to the quantities of processing wastes streams or a However, there would be negative hazardous constituents found at mining beneficiation waste. (See § 261.4(b)(7)). aspects of this restriction on alternative and mineral processing sites. (See Under today’s proposal, the use of a feedstocks. First, there are limits to Damage Cases and Environmental Bevill waste as an alternative feedstock EPA’s knowledge of environmental Releases, EPA, 1997.) In addition, the does not change the Bevill status of a damage caused by Bevill wastes. Most Agency has reviewed other damage resulting waste. For example, copper Bevill wastes are disposed of in land- slag (a special 20 waste) used as an based units and the Agency can measure 6 EPA notes that it has established a different type of rule covering the status of cement kiln dust alternative feedstock for a copper the degree of contamination caused by generated when a cement kiln co-processes beneficiation operation would not the overall disposal practice. In many hazardous waste fuel along with its normal raw change the Bevill status of the resulting cases it is difficult to distinguish materials. In this case, the cement kiln dust retains tailings. The Agency believes that use of between the contribution of Bevill status so long as the dust is not ‘‘significantly affected’’ by the hazardous waste co-processing. 40 a Bevill waste as an alternative contaminants from alternative CFR 266.112. There is an important distinction feedstock does not have an overall feedstocks and contaminants from between this situation and co-processing in the impact on the toxicity of the resulting Bevill-exempt wastes. Some alternative beneficiation/mineral processing setting which waste since any Bevill waste can be feedstocks may not pose any additive justifies a different regulatory approach. A cement kiln which burns hazardous waste must obtain a land-disposed without regard to co- risk to the resulting Bevill wastes, and subtitle C permit for its hazardous waste storage disposal with another Bevill waste. this option may needlessly restrict and combustion activities, and must subject its The benefits to the option proposed legitimate recycling and cause industry entire facility (including cement kiln dust today include a reduction of hazardous to forgo economical recovery of management) to RCRA corrective action in the event of releases. There thus are substantial substances found in the resulting Bevill minerals. This may be especially true in environmental safeguards present which justify a wastes and a potential reduction of the case where the alternative feedstock more lenient interpretation of Bevill status. environmental risks. The environmental does not exhibit the toxicity 26054 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules characteristic (TC). Removing Bevill- prepared a report that includes a history Bevill exclusion, the D.C. Circuit Court exempt status if such materials are used of the Bevill Amendment and the of Appeals found that Congress as an alternative feedstock may Agency’s activities, description of intended the Bevill Amendment to be therefore not result in improved mining practices, information about limited to ‘‘special wastes’’ that are high environmental management. A useful actual and potential environmental volume and low hazard.7 The Agency means of recycling the alternative threats caused by mining and mineral subsequently defined special wastes to feedstock also might be eliminated. The processing wastes, and information include only extraction/beneficiation Agency solicits comment on this about new risk assessment techniques wastes and 20 mineral processing proposed option generally as well as the that may be applicable to mining wastes. The Agency developed a high specific proposal to eliminate the wastes. This report is presented in the volume, low hazard criteria (e.g., 45,000 applicability of Bevill for co-processing RCRA docket for review and comment. tons per year for solids, one million tons nonhazardous materials. (See Risks Posed by Bevill Mining per year for liquids as generated) for This restriction would not be Wastes, EPA, 1997). Any regulatory mineral processing waste, consistent applicable to materials such as water or activity regarding the examination of with the direction from the D.C. Circuit acid that are otherwise effective risk posed by Bevill wastes would be decisions, but did not apply these substitutes for commercial products; addressed in a future rulemaking other criteria on a wastestream by these materials are not being reclaimed than Phase IV. wastestream basis for the previously and are not solid wastes. (See Based on the information in this addressed extraction/beneficiation 261.2(e)(ii)). The Agency solicits report, the Agency is therefore seeking wastes. 54 FR 36619. Courts have also comment on whether there may be comment on whether reexamination of found that small volume hazardous situations where water or acid is a solid some Bevill wastes is warranted. In wastes are outside the scope of Bevill.8 waste because they are being reclaimed today’s notice, the Agency is not It is clear from the legislative history in a Bevill unit and whether the proposing any specific change to the that both EPA and Congress intended alternative feedstock restriction should current Bevill exclusion nor has it the ‘‘special waste’’ concept to have a apply. concluded that any particular course of finite scope that did not encompass The Agency seeks comment on this action is most appropriate. Rather, the wastes from operations that produce option, which would remove the Bevill Agency is presenting new information wastes in volumes similar to other exclusion for wastes resulting from the on risks posed by Bevill wastes and is manufacturing operations. 54 FR 15325. co-processing of non Bevill feedstocks. posing the question of whether some Further, the Court in Horse head As previously stated, the Agency also waste streams require additional study Resources v. Browner (16 F.3d 1246, seek comments on whether this or regulatory controls given the 1258) held that the large volume criteria restriction should apply to all non- availability of new risk assessment applies to all Bevill wastes, and not just Bevill feedstock or only to those that techniques. Conversely, the Agency is those from mineral processing. exhibit a hazardous characteristic, also soliciting comment on whether Under section 3001(b)(3)(A)(ii) of specifically the TC. (261.24). more protective environmental practices RCRA, the Bevill exclusion is available have been put in place and, if so, for ‘‘solid waste from the extraction, C. High Risk Mining Wastes Excluded by whether future regulatory actions are beneficiation and process of ores and the Bevill Amendment necessary. minerals’’ (emphasis added). In determining whether a particular waste 1. General Discussion 2. Wastes Eligible for the Bevill is, in fact, from one of these processes, Exclusion The Agency is presenting new the Agency has generally evaluated information on threats to human health Commenters on the January 25 whether the waste is ‘‘uniquely and the environment from Bevill mining proposed rule contend that the Agency and mineral processing wastes and was proposing to narrow the current 7 ‘‘[T]he structure of the Bevill Amendment posing the question of whether certain Bevill exemption by identifying certain suggests that Congress intended to single out high- wastes currently excluded under Bevill wastes in its technical background volume ‘special wastes’ for regulatory suspension when it excluded ‘solid waste from the extraction, warrant further study or regulatory documents that would be subject to beneficiation and processing of ores and controls. The Agency also is soliciting Subtitle C requirements. The Agency minerals.’ ’’ Environmental Defense Fund v. EPA, comment on whether a high volume test includes a discussion in that document 852 F.2d 1316, 1327 (D.C. Cir. 1988). The Court also or other method should be applied to and made it available to the public decided that ‘‘[t]he legislative history of the Bevill Amendment establishes that the key to wastes in order to determine Bevill because EPA believes that it is helpful understanding Congress’ intent is the concept of eligibility. for all parties to understand which ‘‘special waste’’ articulated in the regulations As part of the information gathering wastes are indeed eligible for the Bevill proposed by EPA on December 18, 1978 following efforts under the Phase IV rulemaking, exclusion for purposes of this rule when the enactment of RCRA.’’ Id. See 43 FR 58911 the Agency has continued to learn more (1978) and 50 FR 40293 (1985). finalized. As discussed in previous 8 The D.C. Circuit Court of Appeals held that the about management practices in the sections of today’s notice, small volume Agency’s attempt to exclude six low volume, high mining and mineral processing hazardous waste may contribute to the hazard smelting wastes was an ‘‘impermissibly over industry, and has reached the point overall risk posed by some Bevill wastes broad interpretation of the Bevill Amendment.’’ EDF II at 1330. ‘‘Since EPA found that those six where public input would help focus and reduction of these waste streams smelter wastes are low volume and high hazard the Agency’s future efforts in would be desirable. The Agency wastes, it cannot refuse to list them [as hazardous determining how best to address the currently determines whether Bevill is wastes].’’ EDF II at 1327. The Agency notes that risks posed by Bevill wastes. The applicable on a case-by-case qualitative these six smelting wastes (which includes K088 potliners and K064 acid plant blowdown) are Agency’s concerns include issues basis. The Agency is soliciting comment generated in quantities greater than most of the non- involving environmental and natural on whether to maintain the current Bevill secondary materials at issue. ‘‘Because the resource damages from acid mine qualitative assessment, or establish Court explicitly determined that the six smelting drainage, the use of cyanide and other some other method to determine Bevill wastes are not high volume, low hazard wastes, the generation rates of these wastes can and should toxic chemicals, radioactivity, stability eligibility. serve as a lower bound below which wastes should of tailings and waste rock piles, and in- In addressing the issue of whether not be afforded Bevill status.’’ 54 FR 15330 April situ mining methods. The Agency certain wastes should be eligible for the 17, 1989. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26055 associated’’ with the enumerated uniquely associated with mineral would alter some determinations processes. The Agency defines non- processing, beneficiation and extraction, contained in the technical background uniquely associated wastes to be non- and this conclusion is reflected in the document to the Phase IV Supplemental indigenous to mining, small in volume, technical background document to the Proposal involving contact operations. and generated by many other non-Bevill Phase IV proposal. As stated in the Lead anodes, spent kerosene solvent, industrial operations. (See 45 FR 76619, previous section, the Agency believes it and crud from copper solvent extraction November 19, 1980 and 54 FR 36623, is sound policy to interpret the scope of and electrowinning; and crucibles, September 1, 1989). Examples of non- the exclusion narrowly in order to cupels, and acid cleaning solution from uniquely associated wastes include prevent Bevill waste from being a gold heap leach operations, would all be spent solvents, pesticide wastes, and dumping ground for hazardous waste considered uniquely associated and discarded commercial chemicals. In the and to reduce any incentives for waste therefore Bevill wastes under this Agency’s view, these wastes are maximization. The Agency believes approach. A variation of this approach logically viewed as not being ‘‘from’’ that, given the extent of interest in would be to utilize the contact mineral processing, beneficiation or EPA’s practice in this area, solicitation principle, as stated above, but to extraction and therefore are not subject of public comment would help ensure consider small volume wastes that to the Bevill exclusion. that EPA’s application of the Bevill exhibit a hazardous characteristic both When applied to ancillary operations exclusion in particular cases is based on before and after contact with the Bevill located at a mine site, such as sound policies reflecting public input. waste, feedstock, or product, as being degreasing solvents from vehicle Recognizing that the ‘‘uniquely non-uniquely associated. This option maintenance, it is relatively associated’’ principle can be difficult to would maintain the determination that straightforward to apply the uniquely apply in certain cases, the Agency is non-contact wastes are non-uniquely associated principle and determine that considering whether a simple associated. Where contact is involved, the spent solvents are not uniquely application of the high volume the option may increase the number of associated with mining and therefore thresholds to determine Bevill eligibility uniquely associated wastes identified in are not eligible for the Bevill exclusion. for beneficiation and extraction wastes the technical background document to In this example the solvents are small discussed above might be preferable to the Phase IV Supplemental Proposal. volume, highly toxic, not indigenous to application of the uniquely associated However, lead anodes, spent kerosene the ore being mined, and commonly principle. Under this option, there solvent, and crud from copper solvent generated from other industrial sectors. would be no need to consider the non- extraction and electrowinning, and However, it becomes more difficult to uniquely associated principle because crucibles, cupels, and acid cleaning make such determinations when a small any waste stream from the extraction, solution from gold heap leach volume material comes into contact beneficiation, or processing of an ore or operations would be considered non- with a beneficiated ore or mineral mineral that is not high volume would uniquely associated (all of these small during normal operations. Through not be a Bevill waste. This option has volume wastes are inherently contact the small volume material may the advantage of being simple to apply hazardous—they would be hazardous acquire some of the chemical and is consistent with the broad waste when disposed regardless of composition of the Bevill waste (e.g., a parameters of Congressional intent that whether contact occurred). The Agency solvent absorbs some of the Bevill Bevill generally applies only to high solicits comment on whether to stay waste). Having acquired some of the volume wastes. This option would help with the existing qualitative approach, prevent additional toxic constituents chemical properties of the Bevill waste, or whether any of the above options being disposed with Bevill wastes, under what circumstances, if any, provides a clearer and more appropriate encourage recycling, and may result in should the solvent be considered a definition of the uniquely associated reduction of cleanup costs. The Agency Bevill waste when discarded? Some principle. The Agency solicits comment solicits comment on whether a large commenters contend that Congress on this and other potential analytical volume standard should be a intended the Bevill Amendment to be frameworks that the Agency and States determining factor for Bevill eligibility interpreted broadly and that the could utilize in evaluating whether a and, if so, whether the mineral particular waste is subject to the Bevill Agency’s application of the uniquely processing high volume standards of exclusion. associated principle is an impermissible 9 45,000 tons per year per waste stream interpretation. for solids and one million tons per year VI. Proposed Exclusion of Wood In its studies of the mineral industry, per waste stream for liquids are Preserving Wastewaters and Spent the Agency found several small volume appropriate measures of high volume. Wood Preserving Solutions From wastes that come into contact with a The Agency also solicits public input Classification as Solid Waste Under 10 Bevill waste. These include lead regarding other potential approaches RCRA anodes, spent kerosene solvent, and that could be applied in evaluating Summary: EPA is proposing to amend crud from copper solvent extraction and whether a particular waste is uniquely the regulations under the Resource electrowinning; and crucibles, cupels, associated, and therefore excluded Conservation and Recovery Act (RCRA) and acid cleaning solution from gold under the Bevill Amendment. One to provide an exclusion from the heap leach operations. All of these small approach would be to adhere to a definition of solid waste for certain volume wastes are inherently hazardous principle that any material that comes materials generated and recycled by the (they would be hazardous waste when into contact with a Bevill waste, wood preserving industry. Specifically, disposed regardless of whether contact feedstock, or product during normal the provisions would exclude wood occurred). The Agency believes that process operations becomes a uniquely preserving wastewaters and spent wood these wastes may be viewed as not being associated Bevill waste when discarded. preserving solutions from classification This approach would be consistent with as solid waste under RCRA, provided 9 Comments of the National Mining Association past determinations that non-contact that they are recycled and reused on-site on the supplemental Proposal to Phase IV, April 24, 1996. Docket F–95–PH4A–FFFFF. operations are non-uniquely associated, in the production process for their 10 Identification and Description of Mineral such as degreasing solvents from vehicle original intended purpose, the materials Processing Sectors and Waste Streams, EPA, 1995. maintenance. The approach, however, are managed to prevent release, and 26056 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules they meet other conditions specified in environmental organization. These purpose. Under today’s approach, the following section. The Agency seeks comments were noticed in a May 10, wastewaters and spent wood preserving public comment on this proposal. 1996 Notice of Data Availability solutions that are recycled on-site for (NODA) at 61 FR 21418 for the LDR their original intended purpose at a A. Background proposed rule and were made available wood preserving facility are not solid EPA first raised the possibility of for public review as part of the docket wastes if they are recycled in a manner providing a regulatory exclusion from for that rule. All comments received to that meets the conditions discussed the definition of solid waste for the date concerning a possible exclusion for below. We believe that an exclusion is wood preserving industry’s recycled recycled wood preserving wastewaters justified given the degree to which wastewaters in the August 22, 1995 are currently available in the docket for recycling of these materials as evaluated Land Disposal Restrictions (LDR) Phase the August proposal or the NODA. using the criteria set out in 40 CFR IV proposed rule (60 FR 43654). In that 260.31(b) is, on an industry-wide basis, 2. Statutory Remedy Considered by proposed rule EPA stated that it may be an essential part of the production Congress inappropriate to regulate a reclamation process and does not contribute to the process under RCRA when that process While EPA was soliciting comment on waste management problem. It is is an essential part of production and the feasibility of an exclusion for the important to clarify that today’s the materials being reclaimed are not industry’s recycled wastewaters, proposal is for an exclusion from the part of the waste disposal problem. We Congress was considering action to definition of solid waste and not for a acknowledged that under the current provide a statutory exclusion from the variance as provided for under 40 CFR system, it is possible for a wood definition of solid waste for these 260.30. EPA is simply using the preserving plant that reclaims its materials. Congressional staff asked EPA § 260.31(b) variance criteria to aid in an wastewaters as an essential step in the to provide technical review and advice evaluation of whether an industry-wide production process to successfully as they developed H.R. 2335, a bill that exclusion is justified. It is only through petition EPA for a site-specific variance would have exempted ‘‘materials compliance with the conditions EPA is (even though these wastes contact a drip contained, collected, and reused in an presenting today that a wood preserving pad, which is a regulated hazardous on-site production process that prevents plant would be able to claim the waste management unit), provided that releases to the environment’’ from the exclusion. the reclamation operation meets the definition of solid waste. In its comments on the August 22, standards and criteria identified under As part of this process, EPA staff 1995 Federal Register (in a letter dated 40 CFR 260.31(b). participated in a number of meetings November 20, 1995, hereafter referred to Under the current regulatory program, with Congressional staff and as ‘‘the AWPI letter’’), the American EPA may grant site-specific, case-by- representatives from the wood Wood Preservers Institute (AWPI) case variances from the definition of preserving industry and was able to addressed the § 260.31(b) criteria and solid waste (and therefore from the gather additional information to assist explained how the wood preservers regulations under RCRA to which EPA in determining whether or not the meet them on an industry-wide basis. persons handling solid and hazardous industry would be able to successfully AWPI’s comments are included in the waste are subject) for materials that are meet the evaluation criteria EPA had docket for the August 1995 proposed recycled in certain ways, (see 40 CFR discussed in the August 22, 1995 rule. 260.30 and 40 CFR 260.31). Any solid Federal Register notice. EPA added this As mentioned above, in the August waste generator may petition EPA for a information, submitted by both EPA and 22, 1995 Federal Register notice EPA variance from the definition of solid industry representatives at the request expressed particular interest in the waste based upon these criteria. of Congressional staff, to the LDR Phase extent to which the industry could show IV rulemaking docket. This information that its reclamation operations meet the 1. Request for Comment in Land was not referenced in the May 10, 1996 § 260.31(b)(3) criterion that a material be Disposal Restrictions Phase IV Proposed NODA because EPA had not yet handled before reclamation to minimize Rule gathered it. It is currently available for loss. Accordingly, EPA is today In the August 22, 1995 LDR proposal, review in the docket for the May 10, proposing conditions that should ensure EPA requested comment on granting an 1996 NODA. that any facility meeting the conditions exclusion from the definition of solid would be minimizing loss of its B. Rationale for Proposal waste for production wastewaters being wastewaters and spent wood preserving reclaimed by the wood preserving The August 22, 1995 LDR notice solutions prior to reclamation. With industry if the wood preservers could provided no specific regulatory respect to other criteria under demonstrate on an industry-wide basis language for an exclusion for the § 260.31(b), EPA believes that the that reclamation of these wastewaters wastewaters generated and recycled by recycling of wastewaters and spent when reclaimed meet the eight variance the wood preserving industry because wood preserving solutions is essential to criteria under § 260.31(b). EPA asked for the Agency was at that time soliciting the financial well being of waterborne comment on the extent to which the information to determine whether wood preserving plants (see discussion industry as a whole could meet the proposing such an exclusion would be under section D below and page eight of criteria. We expressed particular interest justified given the criteria referenced the AWPI letter) and therefore meets the in the extent to which the industry above. Based upon the information EPA criteria set out in § 260.31(b)(1) for those could show that its reclamation received, EPA believes an exclusion is plants. Without recycling their operations meet the criterion under appropriate and therefore, today, EPA is wastewater and preservative, wood § 260.31(b)(3). This provision requires a soliciting public comment on a preserving plants would have to demonstration that a material is handled conditional exclusion from the purchase fresh water and preservative in a manner that minimizes loss before definition of solid waste for wood and pay for their disposal. It is our reclamation. preserving wastewaters and spent wood understanding that reuse of wastewaters EPA received comments from the preserving solutions that are recycled and spent wood preserving solutions is wood preserving industry, a state and reused on-site at a wood preserving standard practice at waterborne plants, regulatory agency, and a national plant for their original intended which are subject to zero discharge Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26057 requirements under the federal Clean door sumps (which collect liquid if they are recycled according to the Water Act and therefore, those plants outside of the retort) is often collected conditions discussed below. meet the criteria set out in and fed back into the production 2. Conditions for Exclusion § 260.31(b)(2). The condition that these process. The industry also commonly materials be recycled and reused on-site reuses both drippage collected from drip a. Materials are Recycled and Reused virtually assures close proximity of the pads (as is required under RCRA On-Site in the Production Process for recycling operation to the primary regulations) and wastewaters that it Their Original Intended Purpose. Under production process (§ 260.31(b)(5)) and generates during production. The this proposal, the exclusion would that the materials are generated and combination of the economic incentive apply only to wastewaters and spent reclaimed by the same party to make use of existing resources and wood preserving solutions that are (§ 260.31(b)(7)). In its letter, AWPI the regulatory requirements under the recycled and reused on-site in the stated that ‘‘in both oilborne and Clean Water Act (see 40 CFR Part 429) production process for their original waterborne processes, the reclamation for the discharge of the industry’s intended purpose. As mentioned above, operation is located within, and is an effluent waste, including a zero when EPA initially raised the possibility integral component of, the production discharge requirement for waterborne of developing an exclusion for in- process area.’’ We are also proposing plants, make the reuse of wastewater an process wastewaters recycled on-site at that the exclusion for wastewaters and attractive and necessary alternative to wood preserving plants (60 FR 43654), spent wood preserving solutions being disposal. the Agency said that a decision to grant reclaimed be conditioned on the such an exclusion would be based upon reclaimed materials being used for their D. Current Regulatory Status of the degree to which the industry could original intended purpose when Recycled Wastewaters and Spent Wood demonstrate that the handling of these returned to the production process Preserving Solutions materials at wood preserving plants (§ 260.31(b)(6)). It is EPA’s Under the current regulations, wood meet the 40 CFR 260.31(b) criteria, on understanding (and is stated by AWPI in preserving wastewaters and spent wood an industry-wide basis. One of these their letter) that the reused materials, preserving solutions are regulated as criteria is ‘‘whether the reclaimed once reclaimed, are returned to the solid and hazardous wastes until they material is used for the purpose for process in substantially their original are reclaimed by filtration, oil water which it was originally produced when form (§ 260.31(b)(6)), and that the short separation or other means. The it is returned to the original process amount of time . EPA believes that the reclaimed materials are no longer ** *’’ (40 CFR 260.31(b)(6)). By industry also meets § 260.31(b)(4) regulated as solid and hazardous wastes requiring that these materials be used criteria concerning the amount of time once the reclamation process is for their original intended purpose, it is between generation and reclamation and completed provided they are used to our intention that they should be reclamation and return to the primary treat wood. EPA issued a Federal generally reused to treat wood. For production process § 260.31(b)(4)) Register Notice clarifying the regulatory example, at many wood preserving supports finding that reclamation is an status of these materials on July 1, 1991 plants once water has been used to wash essential part of the production process. (56 FR 30192). For example, water that hazardous wastes off drip pads, it is According to AWPI’s letter, recoverable is used to wash spent wood preserving collected and returned to a tank in order materials are reclaimed immediately solutions from a drip pad is regulated as to be used to treat wood, with no upon generation at both waterborne and a solid and hazardous waste under the releases to the environment. Because oilborne plants; and are immediately current system. Once the water such a recycling operation (provided available for reuse at waterborne plants containing the spent solutions has been that it is managed to prevent releases to and are available for reuse after 24–48 reclaimed, it is no longer considered a the environment) returns the hours at oilborne plants. solid and hazardous waste if it is put preservative to the process to treat wood and adequately addresses the eight EPA believes that plants meeting the back into the retort or otherwise used to variance criteria, EPA is proposing an conditions proposed today will be treat wood. See § 261.3(c)(2)(i) (final exclusion for appropriately managed recycling their wastewaters and spent sentence). (Once the recycled water has wastewaters and wood preserving solutions in a manner that is protective been used to treat wood and is ready for solutions that are reused for their of human health and the environment. discard or further reclamation, it is original intended purpose. EPA has not Today APIARY seeking comment on the again regulated as a solid and hazardous evaluated whether any other use of regulatory language proposed below that waste.) would allow for the implementation of these materials might merit an exclusion this exclusion. E. Proposed Exclusion of Wastewaters from the definition of solid waste. and Spent Wood Preserving Solutions Therefore, for the purposes of today’s C. Wastes Commonly Reused by the That are Recycled proposal ‘‘original intended purpose’’ Wood Preserving Industry does not include uses other than Wood preserving wastewaters 1. General treating wood. containing spent wood preserving Today EPA is asking for comment on b. Materials are Managed to Prevent solutions are commonly reused by wood amending the definition of solid waste Release. The exclusion EPA is preserving plants that use chromated to exclude wastewaters and spent wood proposing today would only apply to copper arsenate (CCA) as a preservative preserving solutions that are recycled those materials that are managed to and by other waterborne plants (as from regulation as solid and hazardous prevent releases to the land and opposed to oilborne plants which use wastes if they are managed in a way that groundwater. This condition is to assure pentachlorophenol or creosote as a meets certain conditions. This would that any plant claiming this exclusion is preservative). Typical pressure mean that, if this proposal is finalized, adequately handling its recyclable treatment processes involve the reuse of wastewaters and spent wood preserving wastewaters and spent wood preserving preservatives from work, storage, and solutions that are currently regulated as solutions to minimize loss prior to mixing tanks for use in the retort. solid and hazardous wastes prior to reclamation. Based on our experience, Preservative formulation lost with reclamation, would no longer be management to prevent releases would wastewater or through drippage into the regulated as solid and hazardous wastes include, but not necessarily be limited 26058 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules to, compliance with the standards for wood preserving solutions are excluded VII. Proposal to Amend Treatment drip pads under Subpart W of 40 CFR from the definition of solid waste under Variance Rules Parts 264 and 265 and maintenance of this provision. Summary: EPA is also proposing the sumps receiving the wastewaters It is not EPA’s intent or belief that the today to clarify the regulatory standard and spent solutions from the drip pad proposed exclusion for recycled wood under which variances from treatment and retort to prevent leaching into the preserving wastewaters and spent standards adopted to implement the land and groundwater. solutions in any way reduces the Land Disposal Restrictions (LDR) This exclusion would not apply to obligations that wood preserving plants program are decided, see 40 CFR 268. 44 wastewaters and spent wood preserving have under 40 CFR Part 264, Subpart W (a) and (h), to explicitly reflect EPA’s solutions that are at any time managed and Part 265, Subpart W, including the long-standing and reasonable in a surface impoundment. We would requirements for drip pads and the interpretation that a treatment variance not consider this type of operation to be requirements under § 264.570(c) and can be granted when treatment of the adequate management of these materials § 265.440(c) for response to infrequent to minimize loss prior to reclamation. waste to the level or by the method and incidental drippage in storage specified in the regulations is not c. Units Can Be Visually or Otherwise yards. EPA requests comment from any Determined to Prevent Releases. In appropriate, whether or not it is party who believes it does reduce these technically feasible to treat the waste to order for EPA to adequately assure requirements. compliance with the condition to that level or by that method. In addition, prevent releases to the land and 3. Process Residuals EPA is clarifying that, in EPA’s view, groundwater, the Agency proposes to the one such variance (involving CITGO The Agency wishes to emphasize that require that any plant claiming this Petroleum) adopted through rulemaking today’s proposed exclusion from the exemption assure that inspectors are under the existing regulations using the definition of solid waste for wood able to visually or otherwise determine ‘‘not appropriate’’ test satisfies the preserving wastewaters and spent wood that the plant is preventing such clarified regulations just as it satisfied preserving solutions which are recycled releases. For example, an inspector the existing rules. To eliminate any and reused on-site in the production should be able to visually or otherwise ambiguity, EPA is considering ascertain whether the bottom and sides process for their original intended recodifying the CITGO variance under of a sump (which is often made of purpose at wood preserving plants the clarified standard; the Agency concrete) are preventing releases to the pertains only to these materials. The requests comment on this approach. proposed exclusion does not apply to land and groundwater. This could be A. Background assured by having a secondary residuals which may be produced from, containment system that could be i.e., derived from, these wastewaters Under RCRA section 3004(m), EPA is observed or by providing a means to and spent wood preserving solutions. required to promulgate treatment easily empty a sump to allow for Process residuals derived from these standards for a hazardous waste which inspection or through other means. excluded wastewaters and spent wood ‘‘specif[y] those levels or methods of d. Drip Pads Must Comply with preserving solutions continue to meet treatment, if any, which substantially Subpart W Standards. The exclusion the hazardous waste listing description diminish the toxicity of the waste or that EPA is proposing today would for EPA hazardous waste numbers substantially reduce the likelihood of require any plant claiming the exclusion FO32, FO34 and FO35 (See § 261.31(a)) migration of hazardous constituents and collecting or managing its wastes on and must be managed as RCRA from the waste so that short-term and a drip pad to comply with the regulatory hazardous wastes. long-term threats to human health and drip pad standards referenced above. 4. Notification the environment are minimized.’’ RCRA EPA has recognized that there is a section 3004(m)(1). These treatment potential for certain plants that are Today the Agency is also seeking standards are typically expressed as currently large quantity generators to be comment on whether a plant claiming constituent concentration limits; newly classified as conditionally the proposed exclusion should be however, in some cases the treatment exempt small quantity generators required to place a notification form to standard is specified as a method of (CESQG) (see 40 CFR 261.5) solely by that effect in its files on-site and/or treatment. LDR treatment standards virtue of the exclusion proposed today. required to submit it to either EPA or a typically must be satisfied before a Unless EPA explicitly requires state regulatory authority so that an hazardous waste is land disposed. To compliance with the Subpart W drip inspector is able to review it. The satisfy RCRA Section 3004(m), EPA has pad standards as EPA proposes to do, notification form would identify, among chosen to promulgate treatment were a plant to avail itself of this new other things, the specific dates for standards based on performance of the generator status, it would not be which a wood preserving plant was ‘‘best demonstrated available compelled to comply with these claiming this exclusion. technology’’ (BDAT), see 51 FR 40, 572, 40, 578 (Nov. 7, 1986); provided such requirements. The Agency is convinced 5. Conditions Under Which the standards are not established at a point that a plant’s failure to comply with the Exclusion Would No Longer Apply drip pad standards under RCRA would beyond which threats are minimized. result in failure to meet the 40 CFR Today EPA is also seeking comment See Hazardous Waste Treatment 260.31(b) variance criteria (See, e.g., concerning the conditions under which Council v. EPA, 886 F.2d 355, 361–66 260.31(b)(3)). Therefore, the Agency is the proposed exclusion, once claimed, (D.C. Cir. 1989) (upholding establishing proposing that in order to qualify for would no longer apply. For example, technology-based treatment standards as this exclusion, a plant would need to among other things, EPA seeks comment a reasonable construction of section comply with the Subpart W drip pad on whether the spill of a small quantity 3004(m)), cert. denied, 498 U.S. 849 standards regardless of whether that of excluded material would void the (1990) (‘‘HWTC III’’). plant generates no more than 100 kg of exclusion for only the spilled material When EPA decided to implement hazardous waste per month (which is or for all of the wastewaters and spent RCRA section 3004(m) by means of the definition of a CESQG under 40 CFR wood preserving solutions generated by technology-based treatment standards, 261.5(a)) once its wastewaters and spent the plant and, if so, for how long. the Agency recognized that there may be Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26059 wastes for which the treatment standard would result in combustion of re-draft 40 CFR 268.44 to explicitly standards would be unachievable or for large amounts of soil or wastewater, conform with the Agency’s long- which the treatment standards would be given that EPA’s policy is that standing and reasonable interpretation inappropriate. 51 FR at 40605–06 (Nov. combustion of large amounts of of the regulatory standards for treatment 7, 1986). For such wastes, EPA contaminated media is generally variances and to remove possible established standards and procedures inappropriate. See 55 FR at 8760, 8761. confusion. This proposed clarification is for granting so-called treatment EPA has also approved treatment included in today’s notice. EPA is variances. 40 CFR 268.44. A treatment variances using the ‘‘not appropriate’’ further clarifying that the one national variance establishes an alternative LDR test in situations where imposition of treatment variance finalized thus far treatment standard for the waste in BDAT treatment would lead to using the ‘‘not appropriate’’ test would question. 40 CFR 268.44(o). Section environmentally counterproductive also satisfy the clarified regulations 268.44(a) states: ‘‘where the treatment results, notably by creating being proposed today. This is the standard is expressed as a concentration disincentives to engage in remediation, treatment variance recently granted to in a waste or waste extract and a waste see 61 FR at 55720–22; 54 FR 15566, CITGO Petroleum Co. 61 FR 55718 (Oct. cannot be treated to the specified level, 15568 (October 10, 1989); 55 FR at 28, 1996). In EPA’s view, the revision of or where the treatment technology is not 8760–62; 61 FR at 18812; and EPA the treatment variance regulations it is appropriate to the waste, the generator believes its long-standing interpretation proposing today simply clarifies, and in or treatment facility may petition the that 40 CFR 268.44 provides two no way changes, the current standards Administrator for a variance from the separate, independent tests under which for evaluating treatment variances; treatment standard. The petitioner must treatment variance applications can be therefore, by definition the variance demonstrate that because the physical evaluated to be a reasonable reading of already issued to CITGO under the or chemical properties of the waste the regulatory language. In particular, current regulations and standard would differs significantly from the wastes the clause in the first sentence of 268. satisfy the clarified regulations. analyzed in developing the treatment 44 (a) that waste ‘‘cannot be treated to However, to remove any ambiguity on standard, the waste cannot be treated to the specified level’’ is mirrored in the the status of CITGO’s treatment specified levels or by the specified second sentence of the rule, where a variance, and the standard it must meet, methods.’’ demonstration must be made that EPA is considering whether it would be This same standard applies when a ‘‘waste cannot be treated to specified better to re-codify the variance under treatment variance is granted on a site- levels or by specified methods’’ the clarified regulations (should the specific basis, see 268.44 (h), although (emphasis added). The second sentence Agency finalize that part of today’s site-specific variances may be processed of the rule—referring to a demonstration proposal). without rulemaking. 53 FR at 31199– that the waste differs chemically or B. Clarified Regulatory Language 200 (August 17, 1988). physically—thus relates to the first EPA has consistently interpreted the EPA is proposing to revise 40 CFR treatment variance test: technical 40 CFR 268.44 treatment variance 268.44 (a) and (h) to clarify that there infeasibility. It does not (or need not be provision as creating two independent are two separate and independent tests read to) apply to situations where tests under which treatment variance for approving treatment variances. The treatment is ‘‘not appropriate’’, since applications can be considered: first, amended rule (if finalized) would thus this test on its face deals with situations where the waste in question cannot be explicitly conform with EPA’s long- where wastes can be treated to a treated to the levels or by the methods standing and reasonable interpretation specified level or by a specified method, established in the rules; and second that treatment variances may be granted but it is inappropriate to do so. where such treatment may be feasible for either of two independent reasons: 1) but nevertheless ‘‘not appropriate’’. See However, commenters on previous EPA where, due to physical or chemical 61 FR 55718 at 55720–21 (Oct. 28, actions have pointed out that the differences in the waste matrix, the 1996); 53 FR at 31200 (August 17, 1988); language of the rule is ambiguous, in waste cannot be treated to the level used 55 FR 8666, 8760 (March 8, 1990); 61 FR that it might be read to require a as the basis for the treatment standard 18780, 18811 (April 29, 1996). The test demonstration that a waste is physically (or, in those few instances where the based on unachievability requires a or chemically different along with a treatment standard is a method of demonstration that the waste’s physical showing that the waste cannot be treatment, where the method physically or chemical properties differ from those treated to a specified level or by a cannot be performed); and 2) where it is used to establish the treatment standard particular method whenever a treatment inappropriate to require treatment to the and must include a demonstration that variance is sought, even if such level or by the method set out in the the waste ‘‘cannot be treated to specified treatment would be inappropriate; this regulations although such treatment is 11 levels or by specified methods’’ (see was not EPA’s intent. Given the technically possible. second sentence of 268. 44 (a) and (h)). importance of treatment variances to the In EPA’s experience, approval of The ‘‘not appropriate’’ test is not various EPA remediation programs, see treatment variances based on the elaborated upon in the rule. In the 55 FR at 8760–61 and National ‘‘inappropriate’’ test depends largely on Agency’s experience, treatment Electrical Manufacturers Association v. site-and waste-specific circumstances. variances approved under the ‘‘not EPA, 99 F.3d 1170, 1171 (D.C. Cir. Therefore, the Agency is not proposing appropriate’’ test are often based on the 1996), EPA presently believes it better to detailed regulatory criteria for totality of site-and waste-specific approving variances based on the circumstances at any given site. EPA has 11 The Environmental Technology Council and ‘‘inappropriate’’ standard. Based on our the Louisiana Environmental Action Network most often approved treatment (LEAN) have petitioned for review of a particular implementation of the program to date, variances using the ‘‘not appropriate’’ treatability variance and are arguing that the some examples of where variances test in situations where imposition of provision can only be read in this manner. LEAN based on the ‘‘inappropriate’’ test might BDAT treatment, while technically v. EPA, no. 97– (D.C. Cir.). EPA disagrees and be approved are where the treatment believes its present long-standing interpretation to feasible, nevertheless is unsuitable or be a reasonable construction of the rule’s language, standard is unsuitable from a technical impractical from a technical standpoint, and to be amply supported on policy grounds. 61 standpoint, as when it would result in for example when the treatment FR at 55721. combustion of large amounts of soil or 26060 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules other media that contain hazardous the treatment standards are not to be in treatment technically inappropriate waste or where imposition of the technology-forcing. See 131 Cong. Rec. to the matrix at hand or in foregoing treatment standard can reasonably be S 9178 (daily ed., July 25, 1984) other, substantial environmental found to increase risks for example, by (statement of Sen. Chaffee); see also 56 benefits, that standard is not ‘‘best.’’ See discouraging optimized remediation of FR at 12355 (March 25, 1991); 55 FR 61 FR at 55724 and at 55721 (citing case land disposal units. A specific example 6640–43 (Feb. 26, 1990); Chemical authority). of this second situation would be at a Waste Management v. EPA, 976 F.2d 2, Finally, some commenters on remediation site where the cost of LDR 15–16 (treatment standard need not be previous EPA actions have expressed treatment would lead a reasonable based on BDAT, in this case, treatment serious concern that considering remediator to choose the legally standards for ignitable, corrosive, or treatment variances in situations where permissible option of managing wastes reactive wastes) (D.C. Cir. 1992). application of the nationally applicable within an ‘‘area of contamination’’ Second, EPA does not believe that LDR standard might cause a net (which would not trigger LDRs and RCRA Section 3004(m) requires, or environmental detriment could subject would likely involve little or no waste Congress intended, that EPA impose EPA to a form of ‘‘environmental treatment) over a more protective option technically inappropriate technologies blackmail,’’ where the Agency might be of removing the wastes for treatment even when they arguably could lead to pressured to adjust an appropriate and disposal (which would trigger lower treatment levels. For example, treatment standard in order to allow less LDRs) (see 55 FR at 8760). Situations EPA has generally based the national treatment as part of site remediation and, therefore, this approach should be where imposition of the BDAT LDR treatment standards for organic precluded. While EPA agrees that the treatment standard (or specified contaminants in wastewaters on net environmental detriment approach treatment method) could expose site technologies other than incineration (or should be carefully applied in workers to immediate dangers, such as other combustion), even though such consideration of site-and waste-specific from explosion or fire and situations organics could be treated to lower levels circumstances, EPA does not agree with where an innovative technology that, if the wastewaters were incinerated. commenters who suggested it be while not BDAT, results in significant This is because incineration (or other precluded. In implementing its various treatment and shows significant promise combustion) is not normally an could be other examples of cases where remedial programs, EPA has found that appropriate technology for wastewaters, the BDAT standard (or specified there simply are situations where notwithstanding its capability of treatment method) might be federal law provides a legal alternative achieving lower constituent inappropriate. EPA specifically solicits to leave wastes in place, and direct concentration levels than conventional comment as to whether these application of the existing treatment wastewater treatment. See 55 FR 8761. circumstances (or other circumstances) standards may create an incentive to Similarly, EPA has long believed that are reasonable formulations of utilize that legal alternative. Id.; 54 FR combustion of large volumes of circumstances where treatment at 41566–569. It is at least worth contaminated soil, such as much of the variances based on the ‘‘inappropriate’’ examining through the treatment soil routinely encountered during test might be considered and on variance process whether there is an whether EPA should, in future CERCLA remedial actions or RCRA alternative that serves the dual statutory rulemakings, further define regulatory corrective actions, is inappropriate and objectives of safe remediation and criteria for variances approved based on would yield little, if any, environmental pretreatment before land disposal. benefit over non-combustion treatment the ‘‘inappropriate’’ test. C. The CITGO Variance Under the In all cases, treatment variances must options. In other situations, EPA has Proposed Standard result in an alternative treatment found that imposition of the BDAT standard which would have to be standard, while technically possible, It is EPA’s view that the treatability satisfied before the waste could be land provides a strong incentive for facility variance granted to CITGO Petroleum, disposed. These alternative treatment owner/operators to choose legal 55 FR 55718 (Oct. 28, 1996), remains standards must comply with the remedial alternatives that minimize valid under the clarified treatment statutory standard of RCRA Section applicability of the RCRA land disposal variance standard proposed in this 3004(m) by minimizing threats to restrictions (e.g., consolidating and notice. CITGO operates a large (26 acre) human health and the environment. capping waste within an area of surface impoundment which must be Some commenters on previous EPA contamination), a result obviously not closed. The impoundment contains actions have questioned EPA’s legal contemplated by Congress in enacting approximately 375,000 tons of authority to vary from treatment the land disposal restriction. EPA wastewater treatment sludge listed as standards based on BDAT absent a believes that in the limited situations hazardous wastes F037 and F038. The finding that the BDAT standard is where an existing treatment standard is State of Louisiana, EPA’s Region 6, and outright unachievable because of reasonably found to be inappropriate the company all believe the best way to physical or chemical differences in the because imposition of the BDAT close the unit is to remove the sludge, waste. EPA disagrees for the following standard is technically inappropriate or treat it through air sparging to remove reasons. would increase risks, including risks and destroy the most hazardous First, the ‘‘minimize threat’’ standard posed by continued land disposal, the constituent (benzene) to levels in RCRA Section 3004 (m) allows EPA facts would also indicate that the achievable by BDAT, treat cyanide and latitude in determining what levels or alternative standard set out in the metals to levels achievable by BDAT, methods of treatment minimizes short- treatment variance legitimately and treat semi-volatile hazardous and long-term threats to human health minimizes threats posed by land constituents significantly, although not and the environment. Not only is the disposal, taking into account both the to levels meeting the BDAT standard. statute ambiguous on the degree to land disposal that has already occurred (While the alternative treatment which threats must be minimized (see and that which will occur. In this standards established in the treatment HWTC III, 886 F.2d at 372 (concurring regard, EPA notes that the Agency variance for semi-volatiles are, for some opinion)), but the legislative history to believes it can be argued that where constituents, significantly higher than section 3004 (m) states explicitly that imposition of the BDAT standard results the treatment standard based on BDAT, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26061 the semi-volatile constituents are treated ambiguity over the CITGO treatment exposure pathways include direct and, in any case, are not the variance by re-codifying the variance exposure via inhalation, ingestion constituents in the CITGO waste that under the clarified regulations (particularly by small children), dermal drive its risk to human health or the (assuming EPA finalizes this portion of contact, surface runoff, and leaching to environment.) Treatment residues are today’s proposal). groundwater. Human exposure can also occur via indirect exposure pathways, then disposed in a commercial subtitle VIII. Ban on Use of Prohibited such as ingestion of fish, animals, fruits C landfill. CITGO successfully removed Hazardous Waste as Fill Material and treated approximately 600,000 tons or vegetables which have been of sludge by this method before the LDR SUMMARY: EPA is today contaminated by hazardous constituents prohibition for F 037/038 wastes took supplementing its March 2, 1995 released from the fill area. The number effect. Treatment of the remaining proposal (60 FR at 11732) to ban the of environmental exposure pathways are sludge to meet standards reflecting placement of prohibited hazardous just as numerous. performance of BDAT (in this case, wastes (that is, wastes prohibited from This potential for harm is confirmed almost certainly some type of land disposal unless they meet land by many damage incidents caused by combustion process) is likely to be cost- disposal restrictions treatment utilization of wastes as fill material. The prohibitive and, at the least, creates an standards, including wastes that damage incidents include sites now on incentive for the company to seek to initially exhibited a characteristic of the Superfund National Priorities List, avoid triggering LDR requirements even hazardous waste but no longer do at the and an incident of direct human if it means forgoing optimal closure of point they are placed as fill material) as exposure (resulting in elevated blood the impoundment. The federal rules do a fill material. This proposal would ban lead levels in children) when prohibited provide closure options by means other use as fill unless the waste meets the hazardous wastes were used as fill than waste removal. The closure rules LDR treatment standard applicable to it, material in a residential area. See provide that an impoundment can close and either of two conditions are summaries in the administrative record. with wastes in place provided it can satisfied: (a) The placement occurs If one assumes that utilization of satisfy the standards for post-closure exclusively in a regulated unit (i.e. a wastes as fill material is a type of 12 care of a landfill. 40 CFR 265.111, unit, like a landfill, which is subject to hazardous waste recycling activity, 265.228 and 265.310. EPA found that subtitle C regulation); or, (b) the person the current RCRA rules would classify CITGO would likely pursue these intending to utilize the hazardous waste it as a type of ‘‘use constituting as fill material is able to make a options, delaying if not precluding disposal.’’ 40 CFR 261.2(c)(1). The rules demonstration to the appropriate closure by removal, and possibly then provide that a use constituting regulatory officials that the placement of resulting in no treatment of the disposal can legally occur if the the waste will be protective of human hazardous sludges at all. For these hazardous wastes are incorporated into health and the environment (within the a product, undergo a chemical reaction reasons, EPA found that the treatment meaning of RCRA section 3004(d)(1)), so as to be inseparable by physical technology on which the standard is taking into account the factors means, and meet all treatment standards based is not appropriate for this waste enumerated in RCRA section established under the Land Disposal because imposition of the requirement 3004(d)(1)(A), (B), and (C), as well as all Restrictions (LDR) program applicable would likely result in a net possible exposure pathways, i.e., to the hazardous waste incorporated environmental detriment. 55 FR at exposure pathways that may reasonably into the waste-derived product. 40 CFR 55719–722. The alternative treatment occur at the specific site. As EPA 266.20(b). In adopting these standards, standard requires the same level of explains more fully in today’s EPA was not certain that any of these treatment which had proved successful supplemental notice, this demonstration uses could be conducted in a protective on the 600,000 tons of sludge before the must be made ‘‘to a reasonable degree of manner. 50 FR at 646, 647 (Jan. 4, 1985); LDR prohibition took effect. certainty,’’ as set out in RCRA section 53 FR at 17605 (May 17, 1988). In EPA’s view, these facts satisfy the 3004(d)(1). By ‘‘fill material,’’ EPA However, the Agency was unwilling to ‘‘not appropriate’’ test in the clarified means prohibited waste used in place of prohibit all such uses—the likely effect treatment variance regulations proposed such materials as sand or dirt which of imposing full-scale subtitle C today, just as they satisfy the existing fills in significant levels of depression rules. EPA has already found that the in the land, such as gullies or ditches. 12 See 45 FR at 33093 (May 19, 1980); 48 FR at situation presented in CITGO’s Revised regulatory language is provided 14985 (April 4, 1983); and 60 FR at 14732 (March treatment variance application meets 2, 1995) where EPA noted that in most cases that to help clarify the scope of the proposal, this activity is a sham use. This is due to the the standards of 40 CFR 268.44 (a) and and the process for demonstrating that marginal nature of the claimed recycling activity (h) as the Agency interprets and the use is safe. (replacing dirt to fill depressions), resemblance of implements them. By definition, if EPA the activity to uncontrolled waste dumping, and amends 40 CFR 268.44 (a) and (h) to A. General Discussion likelihood that hazardous constituents in the wastes are just being gotten rid of. Thus, the threshold step explicitly conform to the Agency’s The basis for this proposal is in determining whether disposition of hazardous longstanding and reasonable essentially the same as EPA originally waste as fill material is legal is to determine if this interpretation of the treatment variance proposed. Utilization of prohibited is a ‘‘use’’ at all, or simply is sham recycling, i.e., regulations, then the one national hazardous wastes as fill material is, in land disposal pure and simple. See United States v. Marine Shale Processors, 81 F.3d 1361, 1365 (5th variance (CITGO) approved under the the abstract, the least protective type of Cir. 1996) (‘‘sham recycling, as opposed to current regulations would meet the land disposal in that there are no legitimate recycling, occurs when the hazardous terms of the new, clarified, regulations. commercial specifications or necessary waste purportedly recycled contributes in no significant way to the production of the product EPA, however, recognizes that the same physical constraints on the placement of allegedly resulting from the recycling’’) id., at 1366 ambiguity that commenters have the waste. There thus are no safeguards (endorsing so-called toxics along for the ride identified in the current 268.44 (a) and to prevent exposure to humans or to the concept, whereby it is relevant in assessing whether (h) regulations underlies EPA’s approval environment from the hazardous an activity is sham recycling to determine what hazardous constituents contribute to the alleged of the CITGO treatment variance. EPA constituents that are released, and no recycling activity and conceivably to find that an therefore requests comment on whether barriers stopping the releases from activity is a sham if the hazardous constituents do the Agency should eliminate any occurring. The types of potential not contribute significantly). 26062 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules controls—and also felt that imposition wastes’ ultimate disposition is as fill road construction projects at least of the LDR treatment standard material (again, unless the site-specific include supervision of activities with requirement afforded some level of demonstration described above is regard to, for example wetlands and protection. 53 FR at 17605. made). waterways, fill could be placed directly Because utilization of hazardous in sensitive areas without any type of B. Deferral of Ban Pending Study wastes as fill material is lacking in any regulatory agency approval. Further, fill control, EPA has concluded that this Some commenters on the original may be placed in virtually unlimited current conditioned deferral of proposal have contended that EPA amounts, while use in road construction regulation should not apply to the should defer action on the proposed ban (whether road bed or top coating) often activity. This conclusion is directly on hazardous waste as fill until risks is limited by the extent of road being founded in the language and policy of could be studied further. The Agency built, as well as supervision by highway the LDR statutory provisions. Land disagrees that further studies are needed agencies. As such, exposures and risks disposal of hazardous wastes is in order to go forward with the posed by use as fill are extremely prohibited unless the prohibition on proposed action. While the commenter dependent on site specific disposal ‘‘is not required in order to is correct that nonhazardous slags have circumstances, and we do not think at protect human health and the been used for many years as fill, the this time that the Agency will be able to environment’’ taking into account the Agency has the responsibility to ensure set national levels of toxic constituents uncertainties associated with assessing that residues from hazardous waste that would be safe in all fill settings. safety of land disposal, including the treatment are appropriately regulated, difficulty of making long-term and this requires a minimization of C. Site Specific Approval Process predictions of wastes’ behavior, and the threats to human health and the This is not to say, however, that it is persistence, toxicity, mobility, and environment prior to land placement as impossible to utilize a treated hazardous bioaccumulative propensity of wastes’ fill, and ultimate protectiveness of the waste as a fill material. EPA’s current hazardous constituents. RCRA section actual disposal. thinking is that the current treatment 3004(d)(1) (repeated in 3004 (e)(1) and As EPA explained at proposal, the standards are inadequate, and that EPA (g)(5) as well). Ordinarily, land disposal treatment standards do not assure the is unable to develop other standards occurring after hazardous wastes have requisite minimization of threat or that would be sufficient to assure been treated to satisfy the standards ultimate safety for a number of reasons. protection, absent further site-specific established by EPA pursuant to section 60 FR at 14473. In particular, the investigation. EPA noted in the March 2, 3004(m) (which standards are to assure standards do not regulate the total metal 1995 proposal that if someone could that short- and long-term threats to content of a waste, typically requiring show that a specific use as fill was safe, human health and the environment only reduction in metal constituents’ it would be allowed. EPA is proposing posed by land disposal of the waste ‘‘are mobility, as measured by the TCLP. revised, more detailed regulatory minimized’’) will sufficiently ensure the However, when evaluating use as fill language to require, in addition to requisite protectiveness. RCRA section material, the total concentration of requiring these wastes (like all other 3004(m)(1). However, the ultimate metals is highly important due to the prohibited wastes) to meet LDR requirement of protectiveness remains number of exposure pathways standards before disposal, that a site- even after hazardous wastes have been (including direct inhalation and specific demonstration (for each treated. 60 FR at 14473; 56 FR at 41168 ingestion) which do not depend on intended fill site) be made showing that (August 19, 1991); NRDC v. EPA, 907 leaching to release hazardous the treatment has minimized all F.2d 1146, 1171–72 (D.C. Cir. 1990) constituents. Id. In addition, the TCLP potential threats posed by the placement (dissenting opinion). (or any single leaching test) may not be of the waste fill material, and assured EPA is indicating here that the the appropriate means of evaluating ultimate safety of the disposal. This existing LDR treatment standards do not potential for leaching given the wide demonstration would be made either to result in this requisite minimization of range of potential conditions to which the EPA Region where the fill site is threats when hazardous wastes are to be hazardous waste utilized as fill could be located, or, in the case of States utilized as fill material. Thus, there is exposed. See 62 FR at 1994–95 (January authorized to operate this part of the no treatment of which EPA is aware that 14, 1997). In addition, since the existing program, to the authorized State. The can be determined, in the absence of LDR standards are technology-based demonstration would have to address site-specific investigation, to adequately rather than risk-based, EPA does not all potential exposure pathways posed minimize the threats posed by this form believe that they are an adequate by the particular fill site, would of land disposal. See RCRA section surrogate for determining that threats specifically have to address the land 3004(m)(1) which requires EPA to have been minimized when one takes disposal protectiveness factors set out in establish ‘‘levels or methods of into account the uncontrolled use as fill. the statute at section 3004(d)(1) (A), (B), treatment, if any, which minimize short- 60 FR at 14473. and (C), plus address all exposure EPA is planning to further identify and long-term threats’ (emphasis pathways to humans or to the and assess risks from major current uses added). Accordingly, EPA has proposed environment that are reasonably likely of High Temperature Metal Recovery to modify the BDAT treatment standards to occur, and would have to (HTMR) slags from treatment of K061, for all hazardous wastes to make clear demonstrate safety ‘‘to a reasonable K062, and F006 wastes. However, EPA that wastes treated to meet these degree of certainty.’’ The burden of is concerned that use of any hazardous standards may still not be utilized as fill making the demonstration is on the waste, including HTMR slag, as a fill material absent a site-specific applicant. See RCRA section 3004(d)(1) demonstration as described in 40 CFR material represents a marginal use for likewise assigning the burden of proof 266.20(b)(2). Similarly, EPA is finding which regulatory authorities would lose to the applicant in the case of no- that the ultimate protectiveness the ability to understand where it is migration petitions.13 Comments are standard in RCRA sections 3004 (d)(1), placed or how much is used, making (e)(1) and (g)(5) remains unsatisfied, generic risk analysis extremely difficult. 13 There are similarities in this type of even after hazardous wastes are treated Fill material might be used in any demonstration and the no-migration test required to to meet existing LDR standards, if the setting, without any controls. While show that it is safe to dispose of hazardous wastes Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26063 requested on the revised regulatory test associated with the definition. EPA be available to the environment via language. wishes to avoid situations where many of the exposure pathways present hazardous waste fills in areas but some D. Application of the Ban To when the wastes are placed on the land other use is claimed for the material that Decharacterized Wastes without control, i.e. utilized as fill arguably makes it a different type of material. See the discussion above Further, EPA wishes to make clear activity. As stated at original proposal, indicating why total metal that the proposed rule would apply to the Agency is acting to stop prohibited concentrations remain critical in all hazardous wastes subject to Land hazardous wastes from being used in an evaluating the protectiveness of this Disposal Restriction prohibitions. This uncontrolled manner, in substantial type of land disposal. Likewise, vitrified includes all wastes that are identified or volumes to fill in space (at least without wastes may contain undestroyed listed as hazardous at the point they are a detailed demonstration and finding organics, or insufficiently immobilized generated, and thus includes wastes that that the use is protective). The reference metals which likewise are capable of are listed as a result of the mixture and in the definition to filling in significant posing harm when placed on the land derived from rules. In addition, the rule spaces makes clear that uses which have in this uncontrolled manner. For these applies to wastes that initially exhibit a the incidental effect of filling or characteristic but no longer exhibit that reasons, at this time EPA does not leveling, such as use as road-base or use believe vitrified material should be characteristic at the point they are land a fertilizer or other uses that are subject exempt from the ban. disposed (i.e., used as fill material). This to commercial specifications or physical means that if a person intends to utilize constraints but incidentally fill in space Finally, a number of commenters a characteristic hazardous waste as fill in addition to other functions, are not questioned whether the prohibition material, and treats the waste so that it included within the definition of ‘‘fill would apply to situations where no longer exhibits a characteristic, the material.’’ Also, the prohibition does not prohibited wastes are landfilled, or rule nevertheless applies. See Chemical apply to materials used as legitimate whether it would apply to remediation Waste Management v. EPA, 976 F. 2d 2, ingredients in asphalt or concrete. activities, including those carried out 12–14 (land disposal prohibitions apply Some significant concerns were raised pursuant to RCRA corrective action or to wastes that are hazardous when by producers of K061-slag over the Superfund authorities. EPA wishes to generated; thus, the prohibition—i.e., scope of the proposed ban, in particular clarify that the prohibition would only the substantive LDR requirements— as it would apply to road building apply to situations where recycling is continues to attach to characteristic operations. EPA wishes to clarify that involved, ‘‘use as fill’’ being a term of wastes that no longer exhibit a (as noted above), use as road bed, and art referring to a situation where characteristic when they are land use as road ‘‘top coat’’ are not intended prohibited wastes are being legitimately disposed). These so-called to be banned under the proposed fill recycled in a manner constituting decharacterized wastes could provisions. While there may be some disposal through use as a fill material. nevertheless continue to pose the same ambiguity in these terms, EPA intends United States v. Marine Shale types of substantial harm when utilized to allow further study use of legitimate Processors, 81 F.3d at 1365. (As noted as fill material as wastes still identified road construction materials, meeting above, see fn. 4 supra, EPA is skeptical or listed as hazardous at the point of any specification set by the highway that this claimed use is legitimate disposal. This is because department in the State in which the recycling.) Thus, the rule would not decharacterization does not necessarily material is used. While some filling of apply to situations where prohibited remove or immobilize hazardous depressions may of course occur in road wastes are land disposed and an constituents. Id., 55 FR 22655. construction, EPA would not consider incidental effect of the disposal is to fill Consequently the proposed prohibition this use as fill, unless the depressions in depressions (as in remediation would apply to all initially hazardous were well beyond what is necessary for situations where treated soils are wastes. road construction. EPA has provided returned to the ground and raise a some new regulatory language to clarify E. Clarification of Scope of Ban gradient). The policy basis for the the scope of the proposal and welcomes (definition of ‘‘fill’’) distinction is that disposal of prohibited further comment to help refine the wastes is typically heavily regulated (for Commenters indicated some definition. confusion over the definition of ‘‘fill.’’ In addition, EPA is proposing to add example, through subtitle C unit EPA has slightly altered the definition the prohibition to 40 CFR 268.40, as standards, or, in remediation situations, of ‘‘fill material’’ from that proposed in well as to the use constituting disposal through site specific regulatory the March 2, 1995 notice. That provision in 40 CFR 266.20. This would oversight; see 61 FR 18782 (April 29, definition stated essentially that fill make clear that this action both 1996)). In these situations, the existing material was used as a substitute for implements the LDR provisions and LDR treatment standards should be low-grade materials to raise land levels, modifies the existing treatment sufficient to assure that the threats fill in depressions, and so forth. Today’s standards to the extent prohibited posed by land disposal of wastes are supplemental language preserves the wastes are used as fill material. being minimized. Thus, the only key concept that fill material raises land situation covered by the prohibition levels, fills in significant depressions F. Other Clarifications would be the uncontrolled placement of (such as gullies or ditches) but removes A commenter maintained that the prohibited hazardous wastes (including any suggestion that there is an intent proposed ban should not apply to treatment residues from these wastes) vitrified material, arguing that by outside the system of safeguards which that are not treated to satisfy the treatment definition vitrified materials do not pose normally would ensure that threats to standards that EPA establishes. However, because the wastes have been treated, the demonstration a threat to human health and the human health and the environment are need not satisfy the no-migration test. Rather, environment. This cannot be presumed minimized. This situation is where the ultimate safety would have to be demonstrated, a priori, however. Vitrification prohibited wastes are being recycled taking into account the specific factors Congress technology, for example, does not legitimately as fill material—assuming it noted as essential to ultimate land disposal safety determinations and considering all exposure reduce total metal concentrations in is possible to make this showing— pathways that are reasonably likely to occur. treatment residue in which metals could pursuant to 40 CFR 266.20(b). 26064 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

IX. Capacity Determination treatability problems and that a two-year are unable to make a successful no- national capacity variance is needed to migration demonstration, constructing a A. TC Metal Wastes develop and construct treatment treatment facility on-site would require EPA is not proposing to revise any capacity (Phase IV Notice of Data a substantial amount of economic capacity variance decision for TC metal Availability, 61 FR 21418, May 10, resources and effort. The EPA believes wastes. However, after considering new 1996). On August 21, 1996, FMC that, at this time, a reasonable amount information and comments in response submitted additional data to the docket of time should be given to construct to the originally proposed rule (August for the supplemental proposed rule (61 necessary treatment facilities. Therefore, 22, 1995; 60 FR 43654) and Notice of FR 2338, January 25, 1996, RCRA the Agency is granting a two-year Data Availability (May 10, 1996; 61 FR Docket F–95–PH4A–FFFFF). After capacity variance for these wastes. The 21418), EPA has performed an updated careful review of the additional data, the Agency requested comments on capacity analysis to better reflect the Agency has initially determined that capacity determinations, generation, current available and required capacity these wastes would require a national characteristics, and management of for the universe of wastes that would capacity variance, and therefore is these wastes at Class I injection well now be subject to the standards. For proposing to grant a two-year national facilities in the proposed supplemental background information on data capacity variance for these three waste rule on January 25, 1996. However, no sources, methodology, and details of the streams. specific applicable comments on capacity analysis for these wastes Regarding characteristically potentially affected Class I facilities covered in this rule, see ‘‘Background hazardous arsenic nonwastewaters and were received for the mineral processing Document for Capacity Analysis for High Mercury Subcategory or for TC wastes in the August 22, 1995 Land Disposal Restrictions—Phase IV nonwastewaters (i.e., 260 mg/kg and proposed rule. The Agency is again (Second Supplemental): Toxicity above total mercury), EPA had proposed requesting this information and Characteristic Metal Wastes and Newly to grant a one-year national capacity additionally asks that it include mixed- Identified Mineral Processing Wastes variance. However, treatment data radioactive waste. This information may (Proposed Rule).’’ Based on the results submitted by commenters and data assist the Agency in determining of the capacity analysis, EPA proposes collected by the Agency from site visits whether the Land Disposal Program to not grant a national capacity variance to commercial waste treatment facilities Flexibility Act of 1996 may further for the TC metal wastes, including soil indicate that the newly identified minimize the impact of this rulemaking and debris, covered by today’s proposed mineral processing wastes do not on Class I injection well facilities rule. contain arsenic and mercury at levels disposing decharacterized waste that is B. Mineral Processing Wastes that could not be treated to UTS. Thus, presently being treated as Phase IV the Agency is no longer proposing to hazardous. The Agency estimates that As discussed in Section IV, Proposal grant a capacity variance for these of New Options for Mineral Processing, the 10 to 11 million tons of this wastes. currently injected waste may be reduced EPA is considering several regulatory Details of the methodology and by as much as 4 to 5 million tons options for the newly identified estimates of affected facilities and waste annually at Class I nonhazardous recycled mineral processing wastes. quantities are provided in the capacity facilities. Two of these options are expected to analysis background document. significantly increase the estimate of X. State Authority required capacity discussed in the C. Phase IV Mineral Processing and TC proposed rule. One option, which Metal Wastes Injected Into Underground A. Applicability of Rules in Authorized would require storage of materials to be Injection Control (UIC) Class I Wells States recycled in the equivalent of RCRA Class I injection wells currently inject Under section 3006 of RCRA, EPA regulated tanks, containers, or buildings approximately 10 to 11 million tons of may authorize qualified States to prior to recycling, is expected to result newly identified mineral processing and administer and enforce the RCRA in a moderate increase in required TC metals waste (D004–D011). These program within the State. Following capacity. The other option, which waste volumes vary in amounts from authorization, EPA retains enforcement would prohibit the introduction of any facility to facility and are generally authority under sections 3008, 3013, secondary material into any mining or disposed on-site. None of the mineral and 7003 of RCRA, although authorized mineral processing unit that generates a processing facilities transport their States have primary enforcement Bevill-exempt waste, is expected to waste off-site or currently have the responsibility. The standards and result in a larger increase in required necessary capacity to treat their waste requirements for authorization are capacity. Nevertheless, the Agency on-site by BDAT. Some facilities found in 40 CFR Part 271. expects that any such increases can be generating TC metal waste that are Prior to HSWA, a State with final readily met by available on-site or off- unable to dispose or treat their waste authorization administered its site capacity, and therefore is not on-site may send their waste to a hazardous waste program in lieu of EPA changing the proposed national capacity commercial facility. However, these administering the Federal program in variance determination for most of these commercial facilities must be approved that State. The Federal requirements no wastes. for the disposal of these restricted longer applied in the authorized State, Three waste streams that now appear waste. For those facilities affected by the and EPA could not issue permits for any to be lacking adequate capacity are prohibitions which are unable to make facilities that the State was authorized Medusa scrubber blowdown, Anderson a successful no-migration to permit. When new, more stringent filter media rinsate, and furnace demonstration, constructing a treatment Federal requirements were promulgated building washdown as generated by the facility on-site would be the only or enacted, the State was obliged to elemental phosphorus processing permissible alternative in meeting LDR enact equivalent authority within industry. A major generator of these treatment standards for their hazardous specified time frames. New Federal waste streams, the FMC Corporation’s wastes. The Agency remains steadfast in requirements did not take effect in an Pocatello, Idaho facility, has stated that its belief that for those facilities affected authorized State until the State adopted these waste streams pose unique by the Land Band prohibitions which the requirements as State law. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26065

In contrast, under RCRA section check (see 60 FR 43686 for a full Section 271.21(e)(2) requires that 3006(g) (42 U.S.C. 6926(g)), new description of the proposed procedures). States with final authorization must requirements and prohibitions imposed In the HWIR-Media proposed rule, modify their programs to reflect Federal by HSWA take effect in authorized EPA proposed another set of abbreviated program changes and to subsequently States at the same time that they take authorization procedures for more submit the modification to EPA for effect in unauthorized States. EPA is significant rulemakings, called Category approval. The deadline by which the directed to carry out these requirements 2 (see 61 FR 18780, April 29, 1996). In State must modify its program to adopt and prohibitions in authorized States, this latter proposal, EPA designated the this proposed regulation will be including the issuance of permits, until procedures outlined in the August 1995 determined by the date of promulgation the State is granted authorization to do Phase IV proposal as Category 1. EPA in of the final rule in accordance with so. this notice, also presented an expanded § 271.21(e). This deadline can be Parts of today’s rule are proposed discussion on the need for and the extended in certain cases (see section pursuant to sections 3004(d) through intent of the streamlined procedures. § 271.21(e)(3)). Once EPA approves the (k), and 3004(m) (42 U.S.C. 6924(d) Today, EPA is requesting comment modification, the State requirements through (k), and 6924(m)) of RCRA, a regarding under which Category should become Subtitle C RCRA requirements. section added by HSWA. These parts the authorization of States for the States with authorized RCRA are those provisions regarding the proposed provisions be placed. EPA programs may already have treatment standards for metal bearing believes that the proposed revisions to requirements similar to those in today’s rule. These State regulations have not wastes and mineral processing wastes. the universal treatment standards, and been assessed against the Federal Therefore, the Agency is proposing to the new waste exclusions should be regulations being proposed today to add the requirement to Table 1 in 40 placed in Category 1. EPA believes that determine whether they meet the tests CFR 271.1(j), which identifies the these provisions will not significantly for authorization. Thus, a State is not Federal program requirements that are expand the scope of the RCRA program, authorized to implement these promulgated pursuant to HSWA and and will be easily adopted by States. requirements in lieu of EPA until the that take effect in all states regardless of EPA proposed modified Category 1 State program modifications are their authorization status. States may authorization process for mineral approved. Of course, states with existing apply for interim or final authorization processing wastes on January 25, 1996 for the HSWA provisions in Table 1, as standards could continue to administer (61 FR 2364). Today’s proposal modifies and enforce their standards as a matter discussed in the following cection of the management scheme for these of State law. In implementing the this preamble. The Agency is also materials from what was proposed in Federal program, EPA will work with proposing to modify Table 2 in 40 CFR the January 25, 1996 notice, but does States under agreements to minimize 271.1(j) to indicate that the treatment not propose new authorization duplication of efforts. In most cases, standards are self-implementing procedures, except that the procedures EPA expects that it will be able to defer provisions of HSWA. in the January 1996 notice would apply to the States in their efforts to Other parts of today’s proposed rule only to situations in which the mineral implement their programs rather than would not be effective in authorized processing waste volumes are high take separate actions under Federal States since the requirements would not enough to be eligible for the special authority. be imposed pursuant to HSWA. These conditional exclusion made available to States that submit official applications parts relate to the definition of solid them at 261.4 in this proposed rule. EPA for final authorization less than 12 waste and include storage of mineral will consider public comments on that months after the effective date of these processing secondary materials, the type proposal when finalizing the regulations are not required to include of feedstocks used in Bevill-exempt authorization procedures. EPA will standards equivalent to these mining units, and the exclusion of address which authorization procedures regulations in their application. certain wood preserving wastewaters will apply to this rule either in the final However, the State must modify its and spent wood preserving solutions. HWIR-Media rule or the final Phase IV program by the deadline set forth in Thus, these requirements will be rule, whichever is promulgated first. § 271.21(e). States that submit official applicable only in those States that do C. Effect on State Authorization applications for final authorization 12 not have final authorization. In months after the effective date of these authorized States, the requirements will As noted above, EPA would regulations must include standards not be applicable until the State revises implement today’s proposal in equivalent to these regulations in their its program to adopt equivalent authorized States until they modify application. The requirements a State requirements under State law. their programs to adopt these rules and must meet when submitting its final the modification is approved by EPA. B. Abbreviated Authorization authorization application are set forth in Because parts of the rule is proposed Procedures 40 CFR 271.3. pursuant to HSWA, a State submitting a In the Phase IV proposal dated August program modification may apply to D. Less Stringent Requirements 22, 1995, EPA proposed a set of receive interim or final authorization Section 3009 of RCRA allows States to streamlined authorization procedures under RCRA section 3006(g)(2) or impose standards that are more that would apply to new rules that were 3006(b), respectively, on the basis of stringent than the Federal program (see minor or routine in nature. This requirements that are substantially 40 CFR 270.1(I)). Thus, for those Federal procedure was designed to expedite the equivalent or equivalent to EPA’s. The changes that are less stringent or reduce authorization process by reducing the procedures and schedule for State the scope of the Federal program, States scope of a State’s sebmittal for program modifications for final are not required to modify their authorization, to a State certification authorization are described in 40 CFR programs. The parts of the rule that EPA and copies of applicable regulations and 271.21. It should be noted that all views as less stringent are the exclusion statutes. EPA would then conduct a HSWA interim authorizations will for processed wood preserving short review of the State’s request, expire January 1, 2003. (See § 271.24 wastewaters, and the revised universal primarily consisting of a completeness and 57 FR 60132, December 18, 1992.) treatment standards for antimony, 26066 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules barium, beryllium, cadmium, lead, presentation of the cost, economic a maximum of $13 million. This range nickel, selenium, thallium, and impact and benefit results may be found reflects uncertainty surrounding both vanadium. However, EPA believes that in the background document, the quantity of these materials generated these proposed changes improve the ‘‘Regulatory Impact Analysis of the and the proportion of that quantity that RCRA program, thus EPA will strongly Phase IV Land Disposal Restrictions is considered characteristically encourage States to adopt and become Second Supplemental Proposed Rule for hazardous by EPA. authorized for these provisions when Newly Identified Mineral Processing For the option in today’s rule that they are finalized. Wastes and TC Metal Wastes,’’ which limits the Bevill exemption to wastes was placed in the docket for today’s generated exclusively from the use of XI. Regulatory Requirements proposed rule. Bevill raw materials, EPA estimates the expected compliance costs of this A. Regulatory Impact Analysis Pursuant 1. Methodology Section to Executive Order 12866 option are $36.6 million. The range of The Agency estimated the volumes of compliance costs for this option varies Executive Order No. 12866 requires waste affected by today’s rule to from a minimum of $31.8 million to a agencies to determine whether a determine the national level maximum of $42 million. regulatory action is ‘‘significant.’’ The incremental costs (for both the baseline Together, the expected case Order defines a ‘‘significant’’ regulatory and post-regulatory scenarios), compliance costs for both options action as one that ‘‘is likely to result in economic impacts (including first-order related to mineral processing are $45 a rule that may: (1) Have an annual measures such as the estimated million with a range between $37 effect on the economy of $100 million percentage of compliance cost to million and $55 million. or more or adversely affect, in a material industry or firm revenues), and benefits For comparison, EPA evaluated two way, the economy, a sector of the (including estimation of pollutant additional alternative options to the first economy, productivity, competition, loadings reductions, estimation of EPA option in today’s rule prohibiting jobs, the environment, public health or reductions in exceedences of health- land storage of mineral processing safety, or State, local, or tribal based levels, and qualitative description residues above high volume threshold. governments or communities; (2) create of the potential benefits.) The procedure The first alternative option would serious inconsistency or otherwise for estimating the volumes of formerly require that in addition to prohibiting interfere with an action taken or Bevill-exempt mineral processing land storage, mineral processing planned by another agency; (3) wastes, and TC metal wastes affected by residues would be required to be stored materially alter the budgetary impact of today’s proposed rule is detailed in the in units such as tanks, containers and entitlements, grants, user fees, or loan background document ‘‘Regulatory buildings that meet RCRA Subtitle C programs or the rights and obligations of Impact Analysis of the Proposed Phase Part 264 standards (Subpart I standards recipients; or (4) raise novel legal or IV Land Disposal Restrictions Rule for for containers, Subpart J standards for policy issues arising out of legal Newly Identified Mineral Processing tanks and Subpart DD standards for mandates, the President’s priorities, or Wastes and TC Metal Wastes,’’ which containment buildings). In addition, this the principles set forth in the Executive was placed in the docket for today’s option assumed that the Bevill Order.’’ proposed rule. exemption is limited to wastes The Agency estimated the costs of generated exclusively from the use of 2. Results today’s proposed rule to determine if it Bevill raw materials. EPA estimates is a significant regulation as defined by a. Volume Results. EPA estimates that expected case compliance costs for this the Executive Order. The analysis there are 29 mineral commodity sectors option to be $58 million with a range of considered compliance cost and potentially affected by today’s rule, $46 million to $75 million. economic impacts for newly listed and including an estimated 136 facilities The second alternative option for identified wastes affected by this rule. that generate 118 streams of newly which EPA estimated compliance costs Newly identified mineral processing identified mineral processing wastes. for today’s rule models the placement of wastes covered under this rule include The estimated volume is 20 million newly identified mineral processing 118 mineral processing wastes tons. Based on public comment and residues into land based units such as identified as potentially Agency research, the Agency believes surface impoundments and waste piles. characteristically hazardous. Also that the potentially affected TC metal This option models no design or covered under this rule are TC metal universe (other than mineral processing performance standards for the units and wastes including foundry sands and wastes) is limited to certain lead-bearing no legitimacy or ‘‘significantly affects’’ secondary lead slags. Finally, this rule D008 hazardous wastes. Of the affected test for the placement of mineral covers a conditional exclusion from the TC metal universe, the Agency estimates processing residues into either Bevill definition of solid waste for wood there are 791 non-ferrous foundries that process units or non-Bevill process preserving wastewaters and spent wood generate approximately 300,000 tons of units. EPA estimates expected case preserving solutions that are recycled hazardous foundry sands. EPA did not compliance costs for this alternative on-site for their original purpose. EPA prepare an estimate of volumes of option to be $0.2 million. estimates the total compliance cost of potentially excluded wood preserving The cost results for these options are the rule is $55 million annually, and wastewaters and spent wood preserving a function of two factors: (1) The concludes that this rule is significant solutions for this rulemaking. expense associated with purchasing according to the definition in E.O. b. Cost Results. For the option new storage units or upgrading existing 12866. The Office of Management and presented in today’s rule that prohibits storage units, and (2) the transfer of Budget has reviewed this rule. land storage of mineral processing some mineral processing residues either Detailed discussions of the residues (below the high volume from recycling to disposal resulting in methodology used for estimating the threshold) prior to being recycled, EPA increased costs or from disposal to costs, economic impacts and the estimates these expected case recycling resulting in a cost savings. benefits attributable to today’s proposed compliance costs to be $8.4 million. The For TC metal hazardous wastes, the rule for newly identified mineral estimated cost range for this option is Agency estimates that incremental costs processing wastes, followed by a between a minimum of $5.2 million and resulting from the promulgation of the Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26067 proposed treatment standards for TC percentage of compliance costs to the d. Risk Screen Estimate Results. The nonwastewaters are $10 million economic value of the minerals that are Agency has estimated the quantifiable annually. Based on public comment and produced. In the expected case scenario individual results for newly identified data collected from commercial of the two proposed options combined mineral processing wastes associated hazardous waste treaters EPA believes to limit the exclusion from RCRA with today’s proposed rule to be above that the many D008 TC lead wastes are jurisdiction of wastes from Bevill levels of concern for cancer and already treated to these proposed levels process units to those process units to noncancer risks for specific mineral when waste handlers treat to the current those that receive only virgin materials processing streams in both groundwater treatment standards. Therefore, no and to condition the exclusion from and nongroundwater pathways. additional treatment reagent or capital RCRA for mineral processing residues Screening risk results suggest that equipment associated with treatment is being recycled to those residues which individual cancer and non-cancer risks required with these wastes. Other data are stored in non-land based units up to may be decreased below 1 x 10 -5 and submitted by the American 5 of the 29 commodity sectors are below a reference dose ratio of 1 in a Foundrymen’s Society indicates that expected to incur compliance costs number of mineral processing facilities. additional treatment reagents may be equal to or greater than 3 percent of the These screening results are linked required to meet proposed UTS for economic value of the mineral primarily with mineral processing foundry wastes. EPA has evaluated commodities produced under the wastewaters stored in surface these data and determined that Agency’s proposed option in today’s impoundments prior to reuse. The data additional reagent may be required for rule. These sectors include: cadmium, used to calculate these results are based foundry wastes such as sands and lead, mercury, pyrobitumens, mineral on the groundwater pathway as well as baghouse dusts to treat cadmium to the waxes & natural asphalt, and selenium. other potential routes of exposure such proposed levels. Detailed information The range of percentages in these as air or surface water. The risk on EPA’s estimate of costs associated sectors is between 3 percent (selenium) screening results indicate that the with this treatment of foundry sands can and 173 percent (mercury). Because highest individual risks are associated be found in the regulatory impact many of these sectors are actually co- with exposure through groundwater and analysis placed in the docket. processed with other mineral surface water pathways. These results For conditionally excluded wood commodity sectors, these impacts may are also limited to a subset of the preserving wastewaters and spent wood be distributed over the economic value mineral processing universe being preserving solution, EPA believes that of the other minerals, rather than regulated today where the Agency has the conditional exclusion from the concentrated solely on the mineral collected data from individual mineral definition of solid waste will result in commodity associated with generating processing facilities. EPA also notes that cost savings rather than imposing costs the waste. The exception is the primary in completing these individual risk on wood preserving facilities. First, this lead sector would incur expected case results that the entire mass of hazardous conditional exclusion retains existing compliance costs equal to constituents available for release in the regulatory alternatives for the wood approximately 13 percent of that waste management unit was available preserving industry. It is likely that the sector’s sales. EPA solicits comment on for release through pathway. This exclusion will provide regulatory relief the economic impacts to the primary results in overestimation in risk due to to wood preserving facilities that as a lead sector and other affected sectors double counting of constituent mass. To result of not having to count spent resulting from this combined option and address this factor, EPA conducted mass wastewasters in their monthly each option separately. EPA solicits balance calculations for all non- hazardous waste generation rate are able specific public comment on the groundwater release pathways. These to classify themselves as small quantity potential for lost revenues to mineral calculations indicate that this potential generators (SQGs) that generate between processing facilities with Bevill process overestimate would result in negligible 100 and 1000 kilograms per month. For units (e.g., beneficiation units and high bias because only a very small wood preserving facilities that are able volume mineral processing units) that percentage of hazardous constituents in to qualify as SQGs, no Biennial are unable to receive secondary the waste mass is available for release. Reporting System reporting materials as alternative feedstocks that In addition, EPA did not conduct these requirements apply. 40 CFR 262.41. are generated from outside of the mass balance calculations for the Furthermore, SQGs have longer accumulation times of 180 days mineral processing industry. groundwater pathway because compared to 90 days with large quantity Because the Agency believes that limitations in the methodology for generators. 40 CFR 262.34(d). Longer there are no incremental costs which individual groundwater risks accumulation times mean less associated with today’s proposed rule were calculated. The Agency believes expensive transportation for off-site for handlers of many D008 TC metal that the potential bias in risk results for shipments. Wood preserving facilities hazardous wastes and wood preserving both surface impoundments and waste that are able to qualify as conditionally- facilities that recycle wood preserving piles is low. exempt small quantity generators wastewaters and spent wood preserving EPA requests comment on how (CESQGs) would be subject to even solutions, EPA believes that there are no constituents’ mass should be partitioned fewer regulatory requirements. See 40 economic impacts to generators of these across pathways to yield more accurate CFR 261.5. materials. For TC hazardous foundry risk estimates. As stated above the c. Economic Impact Results. sands, EPA estimates that incremental Agency’s efforts to evaluate benefits for Economic impacts from today’s rule for costs attributable to this rule are less mineral processing wastes was limited mineral processing facilities may or may than one percent of industry revenues to calculations for central tendency and not be substantial for selected mineral and therefore should not create a high-end individual risk. Due to data processing sectors depending on the significant impact to these facilities. limitations, the Agency was unable to actual storage and management of More detailed information on this evaluate benefits including population mineral processing residues prior to estimate can be found in the regulatory benefits. In general, the Agency’s being recycled. First order economic impact analysis placed into today’s experience has been that it is unusual to impacts are expressed in terms of a docket. predict high population risks unless 26068 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules there is an unusually large water well provisions and conditionally exempt local, or tribal governments in the supply impacted by the facility because small quantity generator exemptions aggregate, or to the private sector, will ground water contamination generally found in 40 CFR 262.11–12, and 261.5, be $100 million or more in any one year. moves slowly and locally. respectively. These exemptions Under Section 205, EPA must select the Although the regulatory impact basically prescribe 100 kilograms (kg) most cost-effective and least analysis completed for today’s rule does per calendar month generation of burdensome alternative that achieves not address benefits associated with hazardous waste as the limit below the objective of the rule and is ecological risk reduction and a decrease which one is exempted from complying consistent with the statutory in natural resource damages, based on a with the RCRA standards. requirements. Section 203 requires EPA review of available information on Given this statutory constraint, the to establish a plan for informing and damage incidents associated with Agency was unable to frame a series of advising any small governments that mining and mineral processing small entity options from which to may be significantly impacted by the operations,14 the Agency’s experience is select the lowest cost approach; rather, rule. that, while these types of benefits are the Agency was legally bound to EPA does not believe that today’s extremely difficult to quantify, this rule regulate the land disposal of the proposed rule will result in significant may produce benefits in the area of hazardous wastes covered in today’s impacts to small governments and ecological risk reduction and reduced rule without regard to the size of the moreover that this rule does not include natural resource damage. entity being regulated. a Federal mandate that may result in Notwithstanding these statutory estimated costs of $100 million or more B. Regulatory Flexibility Analysis constraints, for the reasons discussed to either State, local, or tribal Pursuant to the Regulatory Flexibility above in the economic impact section governments in the aggregate. As stated Act of 1980, 5 U.S.C. 601 et seq., when on nonferrous foundries, the Agency above, the private sector is not expected an agency publishes a notice of does not believe that today’s proposed to incur costs exceeding $100 million rulemaking, for a rule that will have a rule will have a significant impact on a per year. EPA has fulfilled the significant effect on a substantial substantial number of small entities in requirement for analysis under the number of small entities, the agency TC metals sector based on the results Unfunded Mandates Reform Act. must prepare and make available for discussed above in the economic impact public comment a regulatory flexibility section. D. Paperwork Reduction Act analysis that considers the effect of the EPA has also clarified in today’s rule The information collection rule on small entities (i.e., small that petitioners of restricted wastes that requirements in this proposed rule have businesses, small organizations, and wish to obtain a treatment variance do been submitted for approval to the small governmental jurisdictions). not have to show technical infeasibility Office of Management and Budget With respect to mineral processing when the treatment technology is not (OMB) under the Paperwork Reduction facilities that are small entities, EPA appropriate to the waste. Because this Act, 44 U.S.C. 3501 et seq. An believes that EPA’s proposed option in clarification does not impose an adverse Information Collection Request (ICR) today’s rule will not pose a significant economic impact to any small entity document has been prepared by EPA: impact to a substantial number of these that is either generator of restricted OSWER ICR No. 1442.15 would amend facilities. EPA identified 22 firms waste or an owner/operator of a the existing ICR approved under OMB owning 24 mineral processing facilities treatment, storage or disposal facility Control No. 2050–0085. This ICR has that are small businesses based on the managing such waste that is petitioning not been approved by OMB and the number of employees in each firm. the Agency for a variance from the information collection requirements are Under the Agency’s proposed option, treatment standard, EPA is certifying not enforceable until OMB approves the zero firms out of the 24 identified that there is no significant impact to a ICR. EPA will publish a document in incurred estimated compliance costs substantial number of small entities the Federal Register when OMB that exceed 1 percent of reported firm potentially affected by this clarification. approves the information collection revenues. In assessing the regulatory Finally, with respect to wood requirements showing the valid OMB approach for dealing with small entities preserving facilities that recycle spent control number. Until then, persons are affected by the TC metal treatment wood preserving solutions and wood not required to respond to collections of standards in today’s proposed rule, the preserving wastewaters on-site for their information in this ICR. Agency had to consider that due to the original purpose, EPA believes that Copies of this ICR may be obtained statutory requirements of the RCRA LDR today’s conditional exclusion for these from Sandy Farmer, OPPE Regulatory program, no legal avenues exist for the materials will not pose a significant Information Division; U.S. Agency to provide relief from the LDR’s impact on a substantial number of these Environmental Protection Agency for small entities. The only relief firms. As stated above, the conditional (2136); 401 M St., S.W.; Washington, available for small entities is the exclusion does not alter existing D.C. 20460 or by calling (202) 260–2740. existing small quantity generator regulatory alternatives and provides Include the ICR number in any request. greater flexibility for wood preservers in The annual public reporting and 14 See Human Health and Environmental calculating monthly generation rates of recordkeeping burden for this collection Damages from Mining and Mineral Processing of information is estimated to be 16 Wastes, Technical Background Document hazardous wastes. EPA believes that this Supporting the Supplemental Proposed Rule will result in a cost savings to these hours per response. Burden means the Applying Phase IV Land Disposal Restrictions to firms rather than imposing additional total time, effort, or financial resources Newly Identified Mineral Processing Wastes, U.S. waste management costs. expended by persons to generate, Office of Solid Waste, U.S. Environmental maintain, retain, or disclose or provide Protection Agency, December 1995; Ecological Risk C. Unfunded Mandates Reform Act Assessment Southshore Wetlands for the Kennecott information to or for a Federal agency. Utah Copper Salt Lake City, Utah. Working Draft Under Section 202 of the Unfunded This includes the time needed to review March 4, 1996; May 7, 1996 letter from Max H. Mandates Reform Act of 1995, signed instructions; develop, acquire, install, Dodson, Assistant Regional Administrator for Ecosystem Protection and Remediation, U.S.E.P.A, into law on March 22, 1995, EPA must and utilize technology and systems for Region VIII to Michael Shapiro, Director, Office of prepare a statement to accompany any the purposes of collecting, validating, Solid Waste, U.S.E.P.A. rule where the estimated costs to State, and verifying information, processing Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26069 and maintaining information, and communities versus affluent or non- sample of the residuals collected by HRD that comply with any previously applicable minority communities. includes the period during which U.S. EPA instructions and requirements, train The Agency is soliciting comment and collected the 8-hour composite sample. The personnel to be able to respond to a input from all stakeholders, including sampling preparation and testing procedure members of the environmental justice used by HRD for this requested composite collection of information; search data sample will be in accordance with the sources; complete and review the community and members of the Sampling Protocol. collection of information; and transmit regulated community. The Agency is c. If the results of the TCLP tests on the or otherwise disclose the information. interested in receiving additional HRD composite sample do not exceed the An agency may not conduct or sponsor, information and/or comment on the applicable numerical limits specified in 40 and a person is not required to respond following: CFR 268.40 or 268.48, the residuals will be to, a collection of information unless it 1. Information on facilities with determined to be in compliance with the displays a currently valid OMB control surface impoundments that have applicable treatment standards set forth in those provisions. number. The OMB control numbers for evaluated potential ecological, human EPA’s regulations are listed in 40 CFR health (taking into account subsistence Sampling and Analysis Protocol Part 9 and 48 CFR Chapter 15. patterns and sensitive populations) and HRD will use the following sampling and socioeconomic impacts to minority or Send comments on the Agency’s analysis protocol for K061, K062, or F006 low-income communities. residuals produced at its facilities. burden reduction, the accuracy of the 2. Information on hazardous materials 1. Grab samples of the wastes are taken provided burden estimates, and any stored, used, and transported in the every two hours of operation from the suggested methods for minimizing community. product stream. respondent burden, including through 2. All of the two-hour interval samples are the use of automated collection of XIII. Appendices blended to form a daily composite. 3. The daily composite is riffled down to techniques to the Director, OPPE Appendix 1—Sampling Procedures for Regulatory Information Division; U.S. approximately 100 grams, which is added to Horsehead Resource Development the sample container used for the production Environmental Protection Agency Company, Inc. (2136); 401 M St., S.W.; Washington, DC lot composite. 4. When the production composite is 20460; and to the Office of Information EPA has established the following procedures which will be used by Horsehead completed (four to seven days), the residuals and Regulatory Affairs, Office of in the composite sample container are riffled Management and Budget, 725 17th St., Resource Development Company, Inc. (‘‘HRD’’) to demonstrate compliance with to produce approximately 300 grams N.W., Washington, D.C. 20503, marked RCRA treatment standards for K061, K062, composite, which is prepared for TCP testing. ‘‘Attention: Desk Officer for EPA.’’ and F006 residuals (‘‘the residuals’’). U.S. 5. The TCLP and QA/QC procedures Include the ICR number in any EPA enforcement of the treatment standards utilized are those described in Method 1311 correspondence. applicable will be either on the basis of the (TCLP) of SW–846—Test Methods for Phase I and Phase II procedures, or on the Evaluating Solid Waste (U.S. EPA Office of XII. Environmental Justice Sampling Protocol below. Nothing in this Solid Waste and Emergency Response). A. Applicability of Executive Order document should be read to in any way affect Appendix 2—Sampling Procedures For EPA’s ability to obtain samples or other International Metals Reclamation 12898 information under Section 3007 of RCRA. Company, Inc. EPA is committed to address Phase I Procedure environmental justice concerns and is EPA has established the following U.S. EPA may collect an 8-hour composite procedures which will be used by assuming a leadership role in sample of dhe residuals as they are produced. International Metals Reclamation Company, environmental justice initiatives to The 8-hour composite sample will be based Inc. (‘‘INMETCO’’) to demonstrate enhance environmental quality for all on eight grab samples, one taken every hour, compliance with RCRA treatment standards residents of the United States. The with compositing and testing performed in for K061, K062, and F006 (‘‘slag’’). U.S. EPA Agencies goals are to ensure that no accordance with the Sampling Protocol. enforcement of the treatment standards Upon request, HRD will be supplied on-site applicable will be either on the basis of segment of the population, regardless of with splits of all samples. U.S. EPA will Procedures I and II, or on the Sampling race, color, national origin, or income perform a TCLP test on the 8-hour composite Protocol or as described below. Such bears disproportionately high and sample of the residuals. If the results of the demonstration will be deemed sufficient for adverse human health and TCLP test do not exceed the applicable compliance purposes. To the extent that U.S. environmental effects as a result of numerical limits specified in 40 CFR 268.40 or 268.48, the residuals will be determined EPA may exercise jurisdiction to determine EPA’s policies, programs, and activities, the compliance of INMETCO’s slag with and all people live in clean and to be in compliance with the applicable treatment standards set forth in those applicable treatment standards, the sustainable communities. provisions. compliance determination will be based either on the attached Sampling Protocol or B. Potential Effects If the results of the test exceed any of the applicable numerical limits specified in 40 on the procedures described below. Nothing Today’s proposed rule covers high- CFR 268.40 or 268.48, such results will only in these procedures should be read to in any be used to initiate the Phase II Procedure to way affect EPA’s ability to obtain samples or metal wastes (‘‘TC metal wastes,’’ other information under Section 3007 of hazardous mineral processing wastes, be followed as described below, and will not be the basis for any determination of RCRA. and mineral processing materials. The noncompliance. rule involves not one site, but will Phase I Procedure possibly affect many facilities Phase II Procedure U.S. EPA may collect or direct the nationwide, with the potential for If further action is required as a result of collection of a composite sample of impacts to minority or low-income the Phase I Procedure, the following Phase II INMETCO’s slags as they are produced communities. Today’s proposal is Procedure will be conducted: during a period of up to 24 hours. If U.S. EPA representatives wish to collect the samples intended to reduce risks to human a. U.S. EPA will inform HRD of the results of the Phase I testing and concurrently themselves, they will comply with all safety health and the environment, and to provide HRD with copies of such results and requirements and procedures specified by benefit all populations. It is not all supporting information. INMETCO. The composite sample will be expected to cause any disproportionate b. HRD will provide to U.S. EPA, upon based on grab samples, one taken from each impacts to minority or low income request, the TCLP results of a composite slag tap that occurs during the period of up 26070 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules to 24 hours specified by EPA, with 40 CFR Part 261 4. Section 261.2(c) is amended by compositing and testing performed in revising paragraph (c) (3) to read as accordance with the Sampling Protocol. EPA Environmental protection, Hazardous follows: understands that slag is tapped from waste, Recycling, Reporting and INMETCO’s furnace most frequently during recordkeeping requirements. § 261.2 Definition of Solid Waste. nighttime hours. Upon request, INMETCO * * * * * will be supplied on-site with splits of all 40 CFR Part 266 samples taken by EPA. U.S. EPA will perform (c) * * * a TCLP test on the composite sample of the Energy, Hazardous waste, Recycling, (3) Reclaimed. Materials noted with a slag. If the results of the TCLP test do not Reporting and recordkeeping ‘‘*’’ in column 3 of Table 1 are solid exceed the applicable numerical limits 40 CFR Part 268 wastes when reclaimed. However, all specified in 40 CFR 268.40 or 268.48, the slag secondary materials generated within will be determined in compliance with the Hazardous waste, Reporting and the primary mineral processing industry applicable treatment standards set forth in recordkeeping requirements. those provisions. (other than hazardous wastes listed in If the results of the test exceed any of the 40 CFR Part 271 Subpart D of this part) are solid wastes applicable numerical limits specified in 40 when reclaimed unless excluded under CFR 268.40 or 268.48, such results will be Administrative practice and § 261.4(a) (15) and (16). used, if at all, only to initiate the Phase II procedure, Hazardous materials * * * * * Procedure described below, and will not be transportation, Hazardous waste, 4. Section 261.3(a) is amended by the basis for any determination of Penalties, Reporting and recordkeeping noncompliance. revising the first sentence of paragraph requirements. (a)(2)(i), and by revising paragraph Phase II Procedure Dated: April 18, 1997. (a)(2)(iii) to read as follows: If further action is required as a result of Carol M. Browner, § 261.3 Definition of hazardous waste. the Phase I Procedure, the following Phase II Administrator. Procedure will be conducted: (a) * * * a. U.S. EPA will inform INMETCO of the For the reasons set out in the (2) * * * results of the Phase I testing and concurrently preamble, Title 40, chapter I of the Code (i) It exhibits any of the characteristics provide INMETCO with copies of such of Federal Regulations is proposed to be of hazardous waste identified in Subpart results and all supporting information. amended as follows: b. Upon request, INMETCO will provide to C. * * * U.S. EPA, the TCLP results for a composite PART 148ÐHAZARDOUS WASTE * * * * * sample of slags produced by INMETCO INJECTION RESTRICTIONS (iii) It is a mixture of a solid waste and during a period not to exceed one month, a hazardous waste that is listed in which period may be selected by INMETCO 1. The authority citation for Part 148 provided that it will include the day on subpart D of this part solely because it which U.S. EPA collected the composite continues to read as follows: exhibits one or more of the sample tested during Phase I. The sample Authority: Section 3004, Resource characteristics of hazardous waste preparation and testing procedure used by Conservation and Recovery Act, 42 U.S.C. identified in subpart C of this part. INMETCO for this requested composite 6901, et seq. (However, nonwastewater mixtures are sample will be in accordance with the still subject to the requirements of part 2. Section 148.18 is amended by Sampling Protocol. 268 of this chapter, even if they no redesignating paragraphs (a) through (c) c. If the results of the TCLP tests on the longer exhibit a characteristic at the composite sample described in paragraph as (b) through (d) respectively, and by point of land disposal.) 2.b. above do not exceed the applicable adding paragraph (a) to read as follows: numerical limits specified in 40 CFR 268.40 * * * * * or 268.48, the slag will be determined to be § 148.18 Waste specific prohibitionsÐ 6. Section 261.4 is amended by in compliance with the applicable treatment newly listed and identified wastes. adding paragraphs (a)(9)(iii), (a)(15), and standards set forth in those provisions. (a) Effective [Insert date 2 years from (a)(16), and by revising paragraph (b)(7) Sampling and Analysis Protocol date of publication of the final rule], the to read as follows: wastes specified in 40 CFR part 261 as INMETCO will use the following sampling § 261.4 Exclusions. and analysis protocol for high temperature EPA Hazardous waste numbers D004— metals recovery slag produced at its facility. D011 (as measured by the Toxicity (a) * * * 1. A grab sample of INMETCOs slag will Characteristic Leaching Procedure); (9) * * * be taken from every slag tap. mixed D004-D011 TC/radioactive (iii) Wood preserving wastewaters and 2. The grab samples from slag taps wastes; characteristic hazardous wastes spent wood preserving solutions that are occurring during a period not to exceed one from mineral processing operations; and recycled and reused on-site in the month will be blended to form a composite sample of at least 100 grams in weight. The mixed characteristic hazardous mineral production process for their original composite sample will be prepared for TCLP processing wastes/radioactive wastes intended purpose at wood preserving testing. are prohibited from underground plants; provided that these wastewaters 3. The TCLP and QA/QC procedures injection. and spent wood preserving solutions are utilized will be those described in Method * * * * * managed to prevent release to the land 1311 (TCLP) of SW–846: Test Methods for and the groundwater and that the units Evaluating Solid Waste (U.S. EPA Office of PART 261ÐIDENTIFICATION AND can be visually or otherwise determined Solid Waste and Emergency Response). LISTING OF HAZARDOUS WASTE to prevent such releases; and provided List of Subjects that if these wastewaters are collected or Subpart AÐGeneral managed on drip pads, those pads are in 40 CFR Part 148 compliance with the regulatory drip pad Administrative practice and 3. The authority citation for Part 261 standards, regardless of whether the procedure, Hazardous waste, Reporting continues to read as follows: plant would generate less than 100 kg and recordkeeping requirements, Water Authority: 42 U.S.C. 6905, 6912(a), 6921, per month of hazardous waste once supply. 6922, 6924(y) and 6938. such wastewaters and spent wood Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26071 preserving solutions are excluded under levels exceeding the groundwater (b) * * * this provision. protection standard, the owner/operator (7) Solid waste from the extraction, * * * * * must perform corrective action which beneficiation, and processing of ores (15) Large volume streams of attains the groundwater protection and minerals (including coal, secondary materials (other than standard. During the time when the phosphate, rock, and overburden from hazardous wastes listed in Subpart D of standard is exceeded, no further mineral the mining of uranium ore), except as this Part) generated within the primary processing secondary materials may be provided by § 266.112 of this chapter for mineral processing industry from which placed in the unit; or, facilities that burn or process hazardous minerals, acids, or water values are (2) Satisfies any of the following waste. Solid wastes from the recovered by a primary mineral design standards: for surface beneficiation of ores and minerals must processing industry production process, impoundments or piles containing free be uniquely associated with and provided that: liquids, is constructed to have the originate from the extracted ore or (i) The material contains recoverable equivalent transmissivity of a liner mineral that undergoes one or more of amounts of minerals, acids, or water; comprised of a 40 mil geomembrane the following activities in preparation (ii) The materials are not accumulated liner on 12 inches of soil with at least for mineral processing: crushing, speculatively (as defined at 10<-5> cm/sec hydraulic conductivity; grinding, washing, dissolution, § 261.1(c)(8)); and for piles not containing free liquids, crystallization, filtration, sorting, sizing, (iii) The secondary material is is located on concrete, asphalt, or soil drying, sintering, pelletizing, generated in a quantity over 45,000 tons any of which have the equivalent briquetting, calcining to remove water per year per waste stream as generated transmissivity of three feet of clay with and/or carbon dioxide, roasting, for solid wastes and one million tons 10<-7> cm/sec hydraulic conductivity; autoclaving and/or chlorination in per year per waste stream as generated or preparation for leaching (except where for liquids wastes. (3) Receives a site-specific the roasting and/or autoclaving (iv) The owner or operator provides a determination from the Regional sequence produces a final or notice to the Regional Administrator or Administrator or the State Director that intermediate product that does not State Director, identifying the following the unit is a process unit and not a undergo further beneficiation or information: the types of materials to be waste disposal unit because the unit is processing); gravity concentration; recycled and the location of the designed and operated to minimize magnetic separation; electrostatic recycling process; and the annual releases to the environment and separation; flotation, ion exchange; quantities expected to be placed in land- generally is not part of the waste solvent extraction/electrowinning; based units; and, disposal problem. This determination precipitation, amalgamation, and heap, (v) The materials are stored or shall consider prevention of adverse dump, vat, tank, and in situ leaching. otherwise managed in process units. A affects on ground-water quality, surface For purposes of § 261.4(b)(7), alternative ‘‘process unit’’ is a tank, container, water quality, and air quality feedstocks, which are secondary containment building or other unit that considering the factors set out in 40 CFR materials or materials not naturally is not land-based. A process unit also 267.10. occurring in the extracted ore or mineral can include a pile or surface (B) However, process units do not undergoing beneficiation, are not impoundment that: include any wastewater treatment eligible for the hazardous waste (A) Is designed and operated so as to surface impoundment whose discharge exclusion. For the purposes of satisfy any of the following alternative is ultimately regulated under either § 261.4(b)(7), solid waste from the performance conditions: section 402 or 307(b) of the Clean Water processing of ores and minerals (1) The owner or operator ensures that Act (including facilities which have originate solely from a beneficiation the unit satisfies a groundwater eliminated the discharge of wastewater). activity and includes only the following protection standard not exceeding: the (16) Secondary materials generated wastes as generated: maximum contaminant level (MCL) for within the primary mineral processing (i) Slag from primary copper metals in Appendix VIII of Part 261 industry from which minerals, acids, or processing; (antimony, arsenic, barium, beryllium, water are recovered and are stored in (ii) Slag from primary lead processing; (iii) Red and brown muds from cadmium, chromium (total), lead, tanks, containers or buildings meeting bauxite refining; mercury, nickel, selenium, silver, and the following minimum integrity (iv) Phosphogypsum from phosphoric thallium); weak acid dissociable standards: the tank or containment unit acid production; cyanide level of 0.2 ppm; the corrosivity should be an engineered structure with a man-made floor, walls, and a roof all (v) Slag from elemental phosphorous standard in § 261.22 (an aqueous production ; solution with a pH equal to or less than of which are made of non-earthen materials providing structural support, (vi) Gasifier ash from coal gasification; 2.0 or equal to or greater than 12.5); and (vii) Process wastewater from coal the tank or container must be free the ignitability standard in § 261.21 at a gasification; (viii) Calcium sulfate standing and not a surface location no further than 150 meters from wastewater treatment plant sludge from impoundment (as defined in 40 CFR the unit boundary. To demonstrate that primary copper production; this condition is satisfied, the unit must 260.10), be manufactured of a material (ix) Slag tailings from primary copper have a groundwater monitoring system suitable for storage of its contents, and processing; consisting of a minimum of one meet appropriate specifications such as (x) Fluorogypsum from hydrofluoric upgradient well and three downgradient those established by either ASTM, API, acid production; wells. Such monitoring wells must be or UL standards. The minimum criteria (xi) Process wastewater from capable of detecting, sampling, and for a building is that the structure must hydrofluoric acid production; assessing whether the groundwater be man-made, constructed from non- (xii) Air pollution control dust/sludge protection standard is satisfied pursuant earthen materials, and have a roof from iron blast furnaces; (xiii) Iron blast to the provisions of 40 CFR 258.51 suitable for diverting rainwater away furnace slag; (except for 40 CFR 258.51(b), 258.53, from the foundation. (xiv) Treated residue from roasting/ and 258.54). If a release is detected at * * * * * leaching of chrome ore; 26072 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

(xv) Process wastewater from primary (vi) This approval is unnecessary if (1) The wastes meet the applicable magnesium processing by the the fill area is a regulated unit. By, ‘‘fill treatment standards specified in Subpart anhydrous process; material,’’ EPA means any prohibited D of this part; (xvi) Process wastewater from hazardous waste used in place of such (2) Persons have been granted an phosphoric acid production; materials as natural soil or sand, the exemption from a prohibition pursuant (xvii) Basic oxygen furnace and open man-made addition of which to land to a petition under § 268.6, with respect hearth furnace air pollution control levels the land, occupies space in the to those wastes and units covered by the dust/sludge from carbon steel land, or fills in man-made or naturally petition; production; occurring significant depressions in (3) The wastes meet the applicable (xviii) Basic oxygen furnace and open land (for example, ditches, gullies, alternate treatment standards hearth furnace slag from carbon steel channels, holes, ruts, trenches or the established pursuant to a petition production; like), whether or not the addition of the granted under § 268.44; or (xix) Chloride process waste solids prohibited hazardous waste is intended (4) Persons have been granted an from titanium tetrachloride production; to achieve a purpose unrelated to the extension to the effective date of a (xx) Slag from primary zinc leveling land, occupying space in the prohibition pursuant to § 268.5, with processing. land, or filling in man-made or naturally respect to these wastes covered by the * * * * * occurring depressions in land. extension. * * * * * (e) To determine whether a hazardous PART 266ÐSTANDARDS FOR THE waste identified in this section exceeds MANAGEMENT OF SPECIFIC PART 268ÐLAND DISPOSAL the applicable treatment standards HAZARDOUS WASTES AND SPECIFIC RESTRICTIONS specified in § 268.40, the initial generator must test a sample of the TYPES OF HAZARDOUS WASTE 9. The authority citation for Part 268 waste extract or the entire waste, MANAGEMENT FACILITIES continues to read as follows: depending on whether the treatment 7. The authority citation for Part 266 Authority: 42 U.S.C. 6905, 6912(a), 6921, standards are expressed as continues to read as follows: and 6924. concentrations in the waste extract or Authority: 42 U.S.C. 6905, 6912(a), 6924, Subpart CÐProhibitions on Land the waste, or the generator may use and 6934. Disposal knowledge of the waste. If the waste 8. Section 266.20(b) is amended by contains constituents (including 10. Section § 268.32 is added to read redesignating the existing paragraph (b) underlying hazardous constituents in as follows: as (b)(1), and adding a new paragraph characteristic wastes) in excess of the applicable Universal Treatment (b)(2) to read as follows: § 268.32 Waste specific prohibitionsÐ toxicity characteristic metal wastes. Standard levels of § 268.48 of this Part, § 266.20 Applicability. the waste is prohibited from land (a) Effective August 11, 1997, the disposal, and all requirements of part * * * * * following wastes are prohibited from 268 are applicable, except as otherwise (b) * * * land disposal: the wastes specified in 40 specified. (2) In addition, prohibited hazardous CFR 261 as EPA Hazardous Waste waste (including wastes that exhibit a numbers D004—D011 (as measured by * * * * * characteristic at the point they are the Toxicity Characteristic Leaching Subpart DÐTreatment Standards generated but no longer exhibit a Procedure) and soil and debris characteristic at the point they are used contaminated with these wastes; 11. Section 268.40 is amended by as fill material) may be used as a fill characteristic hazardous wastes from revising paragraph (e), adding paragraph material only if the Regional mineral processing operations; and, soil (h), and amending the Table of Administrator or State Director first and debris contaminated with Treatment Standards by revising the finds, on a site-specific basis, to a characteristic hazardous wastes from entries D004—D011; F006; F007; F008; reasonable degree of certainty, that the mineral processing operations. F009; F011; F012; F019; F024; F032; fill material will be used in a manner (b) Effective May 12, 1999, the F034; F035; F037; F038; F039; K001; protective of human health and the following wastes are prohibited from K002; K003; K004; K005; K006; K007; environment and which minimizes land disposal: soil and debris K008; K015; K021; K022; K028; K046; short-term and long-term threats posed contaminated with radioactive wastes K048; K049; K050; K051; K052; K061; by the land disposal of the waste as fill, mixed with EPA Hazardous waste K062; K069; K086; K087; K088; K100; considering the following factors: numbers D004—D011 (as measured by K115; K161; P013; PO73; P074; P099; (i) The long term uncertainties the Toxicity Characteristic Leaching P103; P104; P110; P114; U032; U051; associated with land disposal; Procedure) and with characteristic U144; U145; U146; U204; and U205 to (ii) The goal of managing hazardous mineral processing wastes. read as follows: waste in an appropriate manner in the (c) Between May 12, 1997 and May first instance; 12, 1999, radioactive waste mixed with § 268.40 Applicability of Treatment (iii) The persistence, toxicity, D004—D011 (as measured by the Standards. mobility, and propensity to Toxicity Characteristic Leaching * * * * * bioaccumulate of such hazardous waste Procedure) wastes and/or soil and (e) For characteristic wastes (D001– and their hazardous constituents; debris, or mixed with characteristic D043) that are subject to treatment (iv) All pathways of exposure to mineral processing wastes, may be standards in the following table hazardous constituents to which human disposed in a landfill or surface ‘‘Treatment Standards for Hazardous or environmental receptors could impoundment only if such unit is in Wastes,’’ and are not managed in a reasonably be exposed; and, compliance with the requirements wastewater treatment system that is (v) Other factors relating to specified in § 268.5(h)(2) of this Part. regulated under the Clean Water Act protectiveness of human health and the (d) The requirements of paragraphs (a) (CWA), that is CWA-equivalent, or that environment, as appropriate. and (b) of this section do not apply if: is injected into a Class I nonhazardous Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26073 deep injection well, all underlying (h) The hazardous wastes included in protective of human health and the hazardous constituents (as defined in the ‘‘Treatment Standards for Hazardous environment as set out in § 266.20(b) of § 268.2(i)) must meet Universal Wastes’’ table are prohibited from use as this Part, or the fill area is a regulated Treatment Standards, found in § 268.48, a fill material, as defined at § 266.20(b) unit. ‘‘Table UTS,’’ prior to land disposal as of this Part, unless and until the * * * * * defined in § 268.2(c) of this part. placement of the waste or waste residue * * * * * is demonstrated and determined to be

TREATMENT STANDARDS FOR HAZARDOUS WASTES [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters

Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

******* D004 9 ...... Wastes that exhibit, or are expected to ex- Arsenic ...... 7440±38±2 1.4 and meet 5.0 mg/l TCLP and hibit, the characteristic of toxicity for ar- § 268.48 stand- meet § 268.48 senic based on the toxicity characteristic ards 8. standards.8 leaching procedure (TCLP) in SW846. D005 9 ...... Wastes that exhibit, or are expected to ex- Barium ...... 7440±39±3 1.2 and meet 21 mg/l TCLP and hibit, the characteristic of toxicity for bar- § 268.48 stand- meet § 268.48 ium based on the toxicity characteristic ards 8. standards.8 leaching procedure (TCLP) in SW846. D006 9 ...... Wastes that exhibit, or are expected to ex- Cadmium ...... 7440±43±9 0.69 and meet 0.20 mg/l TCLP and hibit, the characteristic of toxicity for § 268.48 stand- meet § 268.48 cadmium based on the toxicity char- ards 8. standards.8 acteristic leaching procedure (TCLP) in SW846. Cadmium Containing Batteries Sub- Cadmium ...... 7440±43±9 NA ...... RTHRM category. (Note: This subcategory con- sists of nonwastewaters only). D007 9 ...... Wastes that exhibit, or are expected to ex- Chromium (Total) ..... 7440±47±3 2.77 and meet 0.85 mg/l TCLP and hibit, the characteristic of toxicity for § 268.48 stand- meet § 268.48 chromium based on the toxicity char- ards 8. standards.8 acteristic leaching procedure (TCLP) in SW846. D008 9 ...... Wastes that exhibit, or are expected to ex- Lead ...... 7439±92±1 0.69 and meet 0.75 mg/l TCLP and hibit, the characteristic of toxicity for § 268.48 stand- meet § 268.48 lead based on the toxicity characteristic ards 8. standards.8 leaching procedure (TCLP) in SW846. Lead Acid Batteries Subcategory (Note: Lead ...... 7439±92±1 NA ...... RLEAD This standard only applies to lead acid batteries that are identified as RCRA hazardous wastes and that are not ex- cluded elsewhere from regulation under the land disposal restrictions of 40 CFR 268 or exempted under other EPA regu- lations (see 40 CFR 266.80). This sub- category consists of nonwastewaters only). Radioactive Lead Solids Subcategory Lead ...... 7439±92±1 NA ...... MACRO. (Note: these lead solids include, but are not limited to, all forms of lead shielding and other elemental forms of lead. These lead solids do not include treat- ment residuals such as hydroxide sludges, other wastewater treatment re- siduals, or incinerator ashes that can undergo conventional pozzolanic sta- bilization, nor do they include organo- lead materials that can be incinerated and stabilized as ash. This subcategory consists of nonwastewaters only). 26074 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

D009 9 ...... Nonwastewaters that exhibit, or are ex- Mercury ...... 7439±97±6 NA ...... IMERC; OR pected to exhibit, the characteristic of RMERC. toxicity for mercury based on the toxicity characteristic leaching procedure (TCLP) in SW846; and contain greater than or equal to 260 mg/kg total mer- cury that also contain organics and are not incinerator residues. (High Mercury- Organic Subcategory). Nonwastewaters that exhibit, or are ex- Mercury ...... 7439±97±6 NA ...... RMERC. pected to exhibit, the characteristic of toxicity for mercury based on the toxicity characteristic leaching procedure (TCLP) in SW846; and contain greater than or equal to 260 mg/kg total mer- cury that are inorganic, including inciner- ator residues and residues from RMERC. (High Mercury-Inorganic Sub- category). Nonwastewaters that exhibit, or are ex- Mercury ...... 7439±97±6 NA ...... 0.025 mg/l TCLP pected to exhibit, the characteristic of and meet § 268.48 toxicity for mercury based on the toxicity standards.8 characteristic leaching procedure (TCLP) in SW846; and contain less than 260 mg/kg total mercury. (Low Mercury Subcategory). All D009 wastewaters ...... Mercury ...... 7439±97±6 0.15 and meet NA. § 268.48 stand- ards 8. Elemental mercury contaminated with ra- Mercury ...... 7439±97±6 NA ...... AMLGM. dioactive materials. (Note: This sub- category consists of nonwastewaters only). Hydraulic oil contaminated with Mercury Mercury ...... 7439±97±6 NA ...... IMERC. Radioactive Materials Subcategory. (Note: This subcategory consists of nonwastewaters only). D010 9 ...... Wastes that exhibit, or are expected to ex- Selenium ...... 7782±49±2 0.82 and meet 5.7 mg/l TCLP and hibit, the characteristic of toxicity for se- § 268.48 stand- meet § 268.48 lenium based on the toxicity characteris- ards 8. standards 8 tic leaching procedure (TCLP) in SW846. D011 9 ...... Wastes that exhibit, or are expected to ex- Silver ...... 7440±22±4 0.43 and meet 0.11 mg/l TCLP and hibit, the characteristic of toxicity for sil- § 268.48 stand- meet § 268.48 ver based on the toxicity characteristic ards 8. standards 8 leaching procedure (TCLP) in SW846.

******* F006 ...... Wastewater treatment sludges from elec- Cadmium ...... 7440±43±9 0.69 ...... 0.20 mg/l TCLP. troplating operations except from the fol- Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. lowing processes: (1) Sulfuric acid an- Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. odizing of aluminum; (2) tin plating on Cyanides (Ame- 57±12±5 0.86 ...... 30. carbon steel; (3) zinc plating (seg- nable) 7. regated basis) on carbon steel; (4) alu- Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. minum or zinc-aluminum plating on car- Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. bon steel; (5) cleaning/stripping associ- Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP. ated with tin, zinc and aluminum plating on carbon steel; and (6) chemical etch- ing and milling of aluminum. F007 ...... Spent cyanide plating bath solutions from Cadmium ...... 7440±43±9 NA ...... 0.20 mg/l TCLP. electroplating operations. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590 Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26075

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP. F008 ...... Plating bath residues from the bottom of Cadmium ...... 7440±43±9 NA ...... 0.20 mg/l TCLP. plating baths from electroplating oper- Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. ations where cyanides are used in the Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. process. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP. F009 ...... Spent stripping and cleaning bath solu- Cadmium ...... 7440±43±9 NA ...... 0.20 mg/l TCLP. tions from electroplating operations Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. where cyanides are used in the process. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP.

******* F011 ...... Spent cyanide solutions from salt bath pot Cadmium ...... 7440±43±9 NA ...... 0.20 mg/l TCLP. cleaning from metal heat treating oper- Chromium (Total) 7 .. 7440±47±3 2.77 ...... 0.85 mg/l TCLP. ations. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP. F012 ...... Quenching wastewater treatment sludges Cadmium ...... 7440±43±9 NA ...... 0.20 mg/l TCLP. from metal heat treating operations Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. where cyanides are used in the process. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP. F019 ...... Wastewater treatment sludges from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. chemical conversion coating of alu- Cyanides (Total)7 ..... 57±12±5 1.2 ...... 590 minum except from zirconium Cyanides (Ame- 57±12±5 0.86 ...... 30 phosphating in aluminum can washing nable)7. when such phosphating is an exclusive conversion coating process.

******* F024 ...... Process wastes, including but not limited * * * * to, distillation residues, heavy ends, Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP tars, and reactor clean-out wastes, from Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. the production of certain chlorinated ali- phatic hydrocarbons by free radical catalyzed processes. These chlorinated aliphatic hydrocarbons are those having carbon chain lengths ranging from one to and including five, with varying amounts and positions of chlorine sub- stitution. (This listing does not include wastewaters, wastewater treatment sludges, spent catalysts, and wastes listed in § 261.31 or § 261.32.) 26076 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

******* F032 ...... Wastewaters (except those that have not * *** come into contact with process contami- nants), process residuals, preservative drippage, and spent formulations from wood preserving processes generated at plants that currently use or have pre- viously used chlorophenolic formulations (except potentially cross-contaminated wastes that have had the F032 waste code deleted in accordance with § 261.35 of this chapter or potentially cross-contaminated wastes that are oth- erwise currently regulated as hazardous wastes (i.e., F034 or F035), and where the generator does not resume or initi- ate use of chlorophenolic formulations). This listing does not include K001 bot- tom sediment sludge from the treatment of wastewater from wood preserving processes that use creosote and/or penta-chlorophenol. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. F034 ...... Wastewaters (except those that have not * * * * come into contact with process contami- Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. nants), process residuals, preservative drippage, and spent formulations from wood preserving processes generated at plants that use creosote formulations. This listing does not include K001 bot- tom sediment sludge from the treatment of wastewater from wood preserving processes that use creosote and/or pentachlorophenol. F035 ...... Wastewaters (except those that have not Arsenic ...... 7440±38±2 1.4 ...... 5.0 mg/l TCLP. come into contact with process contami- Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. nants), process residuals, preservative drippage, and spent formulations from wood preserving processes processes generated at plants that use inorganic preservatives containing arsenic or chro- mium. This listing does not include K001 bottom sediment sludge from the treat- ment of wastewater from wood preserv- ing processes that use creosote and/or pentachlorophenol. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26077

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

F037 ...... Petroleum refinery primary oil/water/solids * * * * separation sludge-Any sludge generated Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. from the gravitational separation of oil/ * * * * water/solids during the storage or treat- Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP. ment of process wastewaters and oily cooling wastewaters from petroleum re- fineries. Such sludges include, but are not limited to, those generated in: oil/ water/solids separators; tanks and im- poundments; ditches and other convey- ances; sumps; and stormwater units re- ceiving dry weather flow. Sludge gen- erated in stormwater units that do not receive dry weather flow, sludges gen- erated from non-contact once-through cooling waters segregated for treatment from other process or oily cooling wa- ters, sludges generated in aggressive biological treatment units as defined in § 261.31(b)(2) (including sludges gen- erated in one or more additional units after wastewaters have been treated in aggressive biological treatment units) and K051 wastes are not included in this listing. F038 ...... Petroleum refinery secondary (emulsified) * * * * oil/water/solids separation sludge and/or Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. float generated from the physical and/or * * * * chemical separation of oil/water/solids in Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP. process wastewaters and oily cooling wastewaters from petroleum refineries. Such wastes include, but are not limited to, all sludges and floats generated in: induced air floatation (IAF) units, tanks and impoundments, and all sludges generated in DAF units. Sludges gen- erated in stormwater units that do not receive dry weather flow, sludges gen- erated from non-contact once-through cooling waters segregated for treatment from other process or oily cooling wa- ters, sludges and floats generated in ag- gressive biological treatment units as defined in § 261.31(b)(2) (including sludges and floats generated in one or more additional units after wastewaters have been treated in aggressive biologi- cal units) and F037, K048, and K051 are not included in this listing. F039 ...... Leachate (liquids that have percolated * * * * through land disposed wastes) resulting Antimony ...... 7440±36±0 1.9 ...... 0.07 mg/l TCLP. from the disposal of more than one re- stricted waste classified as hazardous under subpart D of this part. (Leachate resulting from the disposal of one or more of the following EPA Hazardous Wastes and no other Hazardous Wastes retains its EPA Hazardous Waste Num- ber(s): F020, F021, F022, F026, F027, and/or F028.). **** Barium ...... 7440±39±3 1.2 ...... 21 mg/lTCLP. Beryllium ...... 7440±41±7 0.82 ...... NA. Cadmium ...... 7440±43±9 0.69 ...... 0.20 mg/l TCLP. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. 26078 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

**** Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. **** Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP. Silver ...... 7440±22±4 0.43 ...... 0.11 mg/l TCLP. **** K001 ...... Bottom sediment sludge from the treat- * * * * ment of wastewaters from wood pre- Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. serving processes that use creosote and/or pentachlorophenol. K002 ...... Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of chrome yellow and orange Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. pigments. K003 ...... Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of molybdate orange pig- Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. ments. K004 ...... Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of zinc yellow pigments. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. K005 ...... Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of chrome green pigments. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590 K006 ...... Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of chrome oxide green pig- Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. ments (anhydrous). Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of chrome oxide green pig- Lead ...... 7439±92±1 0.69 ...... NA ments (hydrated). K007 ...... Wastewater treatment sludge from the Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. production of iron blue pigments. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590 K008 ...... Oven residue from the production of Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. chrome oxide green pigments. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP.

* ...... ** ...... * * *. K015 ...... Still bottoms from the distillation of benzyl **** chloride. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/lTCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP.

******* K021 ...... Aqueous spent antimony catalyst waste Carbon tetrachloride 56±23±5 0.057 ...... 6.0. from fluoromethanes production. Chloroform ...... 67±66±3 0.046 ...... 6.0. Antimony ...... 7440±36±0 1.9 ...... 0.07 mg/l TCLP. K022 ...... Distillation bottom tars from the production **** of phenol/acetone from cumene. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP.

******* K028 ...... Spent catalyst from the hydrochlorinator **** reactor in the production of 1,1,1- trichloroethane. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP.

******* K046 ...... Wastewater treatment sludges from the Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. manufacturing, formulation and loading of lead-based initiating compounds.

******* K048 ...... Dissolved air flotation (DAF) float from the **** petroleum refining industry. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26079

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. **** Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP. K049 ...... Slop oil emulsion solids from the petro- **** leum refining industry. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. **** Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP. K050 ...... Heat exchanger bundle cleaning sludge **** from the petroleum refining industry. Chromium (Total) 7440±47±3 2.77 ...... 0.85 mg/l TCLP. **** Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP. K051 ...... API separator sludge from the petroleum **** refining industry. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. **** Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP. K052 ...... Tank bottoms (leaded) from the petroleum **** refining industry. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. **** Lead ...... 7439±92 10.69 ...... NA Nickel ...... 7440±02±0 NA ...... 13.6 mg/l TCLP.

******* K061 ...... Emission control dust/sludge from the pri- Antimony ...... 7440±36±0 NA ...... 0.07 mg/l TCLP. mary production of steel in electric fur- naces. Arsenic ...... 7440±38±2 NA ...... 5.0 mg/l TCLP. Barium ...... 7440±39±3 NA ...... 21 mg/l TCLP. Beryllium ...... 7440±41±7 NA ...... 0.02 mg/l TCLP. Cadmium ...... 7440±43±9 0.69 ...... 0.20 mg/l TCLP. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Mercury ...... 7439±97±6 NA ...... 0.025 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Selenium ...... 7782±49±2 NA ...... 5.7 mg/l TCLP. Silver ...... 7440±22±4 NA ...... 0.11 mg/l TCLP. Thallium ...... 7440±28±0 NA ...... 0.20 mg/l TCLP. Zinc ...... 7440±66±6 NA ...... 4.3 mg/l TCLP. K062 ...... Spent pickle liquor generated by steel fin- Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. ishing operations of facilities within the Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. iron and steel industry (SIC Codes 331 and 332). Nickel ...... 7440±02±0 3.98 ...... NA. K069 ...... Emission control dust/sludge from second- Cadmium ...... 7440±43±9 0.69 ...... 0.20 mg/l TCLP. ary lead smelting.ÐCalcium Sulfate Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. (Low Lead) Subcategory. Emission control dust/sludge from second- NA ...... NA NA ...... RLEAD. ary lead smelting.ÐNon-Calcium Sulfate (High Lead) Subcategory.

******* K086 ...... Solvent wastes and sludges, caustic **** washes and sludges, or water washes and sludges from cleaning tubs and equipment used in the formulation of ink from pigments, driers, soaps, and sta- bilizers containing chromium and lead. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. Lead 7439±92±1 ...... 0.69 0.75 mg/l TCLP.. K087 ...... Decanter tank tar sludge from coking op- **** erations. Lead 7439±92±1 ...... 0.69 0.75 mg/l TCLP.. 26080 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

K088 ...... Spent potliners from primary aluminum re- * *** duction. Antimony ...... 7440±36±0 1.9 ...... 0.07 mg/l TCLP. **** Barium ...... 7440±39±3 1.2 ...... 21 mg/l TCLP. Beryllium ...... 7440±41±7 0.82 ...... 0.02 mg/l TCLP. Cadmium ...... 7440±43±9 0.69 ...... 0.20 mg/l TCLP. Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. **** Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP. Silver ...... 7440±22±4 0.43 ...... 0.11 mg/l TCLP. ****

******* K100 ...... Waste leaching solution from acid leaching Cadmium ...... 7440±43±9 0.69 ...... 0.20 mg/l TCLP. of emission control dust/sludge from Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP. secondary lead smelting. Lead 7439±92±1 ...... 0.69 0.75 mg/l TCLP..

******* K115 ...... Heavy ends from the purification of Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. toluenediamine in the production of NA ...... NA CARBN; or CMBST CMBST. toluenediamine via hydrogenation of di- nitrotoluene.

******* K161 ...... Purification solids (including filtration, Antimony ...... 7440±36±0 1.9 ...... 0.07 mg/l TCLP. evaporation, and centrifugation solids), Arsenic ...... 7440±38±2 1.9 ...... 5.0 mg/l TCLP. baghouse dust and floor sweepings from the production of dithiocarbamate acids and their salts.10. Carbon disulfied ...... 75±15±0 3.8 ...... 4.8 mg/l TCLP. Dithiocarbamates NA 0.028 ...... 28. (total). Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP.

******* P013 ...... Barium cyanide ...... Barium ...... 7440±39±3 NA ...... 21 mg/l TCLP. Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7.

******* P073 ...... Nickel carbonyl ...... Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP. P074 ...... Nickel cyanide ...... Cyanides (Total 7 ..... 57±12±5 1.2 ...... 590 Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Nickel ...... 7440±02±0 3.98 ...... 13.6 mg/l TCLP.

******* P099 ...... Potassium silver cyanide ...... Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Silver ...... 7440±22±4 0.43 ...... 0.11 mg/l TCLP.

******* P103 ...... Selenourea ...... Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP. P104 ...... Silver cyanide ...... Cyanides (Total) 7 .... 57±12±5 1.2 ...... 590. Cyanides (Ame- 57±12±5 0.86 ...... 30. nable) 7. Silver ...... 7440±22±4 0.43 ...... 0.11 mg/l TCLP. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26081

TREATMENT STANDARDS FOR HAZARDOUS WASTESÐContinued [Note: NA means not applicable]

Regulated hazardous constituent Wastewaters Nonwastewaters Waste description and treatment/regu- Concentration in mg/ Waste code 1 Concentration in mg/ 5 latory subcategory 2 3 kg unless noted as Common name CAS No. l ; or technology ``mg/l TCLP''; or code 4 technology code 4

******* P110 ...... Tetraethyl lead ...... Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP.

******* P114 ...... Thallium selenite ...... Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP.

******* U032 ...... Calcium chromate ...... Chromium (Total) ..... 7440±47±3 2.77 ...... 0.85 mg/l TCLP.

****** U051 ...... Creosote ...... * * * * Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP.

****** U144 ...... Lead acetate ...... Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. U145 ...... Lead phosphate ...... Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP. U146 ...... Lead subacetate ...... Lead ...... 7439±92±1 0.69 ...... 0.75 mg/l TCLP

****** U204 ...... Selenium dioxide ...... Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP U205 ...... Selenium sulfide ...... Selenium ...... 7782±49±2 0.82 ...... 5.7 mg/l TCLP.

****** Footnotes to Treatment Standards Table 268.40: 1 The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Regulatory Subcategories are provided, as needed, to distinguish between applicability of different standards. 2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 3 Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite samples. 4 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in § 268.42 Table 1Ð Technology Codes and Descriptions of Technology-Based Standards. 5 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O, or part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may comply with these treatment standards according to provisions in § 268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples. 6 Where an alternate treatment standard or set of alternate standards has been indicated, a facility may comply with this alternate standard, but only for the Treatment/Regulatory Subcategory or physical form (i.e., wastewater and/or nonwastewater) specified for that alternate standard. 7 Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or 9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA Publication SW±846, as incorporated by reference in 40 CFR 260.11, with a sam- ple size of 10 grams and a distillation time of one hour and 15 minutes. 8 These wastes, when rendered nonhazardous and then subsequently managed in CWA, or CWA-equivalent systems are not subject to treat- ment standards. (See § 268.1(c)(3)and (4)). 9 These wastes, when rendered nonhazardous and then subsequently injected in a Class I SDWA well are not subject to treatment standards. (See 40 CFR part 148.1(d)). 10 Between August 26, 1996, and August 26, 1997, the treatment standard for this waste may be satisfied by either meeting the constituent concentrations in this table or by treating the waste by the specified technologies: combustion, as defined by the technolgy code CMBST at § 268.42 Table 1 of this part, for nonwastewaters; and, biodegradation as definded by the technolgy code BIODG, carbon adsorption as defined by the technology code CARBN, chemical oxidation as defined by the technology code CHOXD, or combustion as defined as technolgy code CMBST at § 268.42 Table 1 of this part, for wastewaters. 11 For these wastes, the definition of CMBST is limited to: (1) combustion units operating under 40 CFR 266, (2) combustion units permitted under 40 CFR Part 264, Subpart O, or (3) combustion units operating under 40 CFR 265, Subpart O, which have obtained a determination of equivalent treatment under 268.42 (b).

* * * * * show that this is the case, the petitioner standard, even though such treatment is 12. Section 268.44 (a) and (h) are must demonstrate that because the technically possible. revised to read as follows: physical or chemical properties of the * * * * * waste differs significantly from waste § 268.44 Variance from a treatment (h) EPA may grant a treatability standard. analyzed in developing the treatment variance if: standard, the waste cannot be so treated; (a) EPA may grant a treatability (1) It is not physically possible to treat or variance if: the waste to the level specified in the (1) It is not physically possible to treat (2) It is inappropriate to require the treatment standard, or by the method the waste to the level specified in the waste to be treated to the level specified specified as the treatment standard. To treatment standard, or by the method in the treatment standard or by the show that this is the case, the petitioner specified as the treatment standard. To method specified as the treatment must demonstrate that because the 26082 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules physical or chemical properties of the method specified as the treatment Inorganic constituents’’ for antimony, waste differs significantly from waste standard, even though such treatment is barium, beryllium, cadmium, analyzed in developing the treatment technically possible. chromium, lead, nickel, selenium, standard, the waste cannot be so treated; * * * * * silver, thallium, vanadium, and zinc to or read as follows: (2) It is inappropriate to require the 13. The universal treatment standards waste to be treated to the level specified table in § 268.48 is amended by revising § 268.48 Universal treatment standards in the treatment standard or by the the entries in the column under ‘‘II. (a) * * *

UNIVERSAL TREATMENT STANDARDS [Note: NA means not applicable]

Wastewater Nonwastewater standard standard 1 Regulated constituent common name CAS No. Concentration in mg/ Concentration 3 2 kg unless noted as in mg/l ``mg/l TCLP''

******* II. Inorganic Constituents: Antimony ...... 7440±36±0 1.9 0.07 mg/l TCLP.

******* Barium ...... 7440±39±3 1.2 21 mg/l TCLP. Beryllium ...... 7440±41±7 0.82 0.02 mg/l TCLP. Cadmium ...... 7440±43±9 0.69 0.20 mg/l TCLP. Chromium (Total) ...... 7440±47±3 2.77 0.85 mg/l TCLP.

******* Lead ...... 7439±92±1 0.69 0.75 mg/l TCLP.

******* Nickel ...... 7440±02±0 3.98 13.6 mg/l TCLP. Selenium 5 ...... 7782±49±2 0.82 5.7 mg/l TCLP. Silver ...... 7440±22±4 0.43 0.11 mg/l TCLP.

******* Thallium ...... 7440±28±0 1.4 0.20 mg/l TCLP. Vanadium 5 ...... 7440±62±2 4.3 1.6 mg/l TCLP. Zinc 5 ...... 7440±66±6 2.61 4.3 mg/l TCLP. 1 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with it's salts and/or esters, the CAS number is given for the parent compound only. 2 Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite samples. 3 Except for Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR part 265, sub- part O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analy- sis of grab samples. 4 Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or 9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA Publication SW±846, as incorporated by reference in 40 CFR 260.11, with a sam- ple size of 10 grams and a distillation time of one hour and 15 minutes. 5 These constituents are not ``underlying hazardous constituents'' in characteristic wastes, according to the definition at § 268.2(i). 6 Between August 26, 1996, and August 26, 1997, these constituents are not ``underlying hazardous constituents'' as defined at § 268.2(i) of this Part.

PART 271ÐREQUIREMENTS FOR Subpart AÐRequirements for Final 2 in chronological order by effective AUTHORIZATION OF STATE Authorization date in the Federal Register, to read as HAZARDOUS WASTE PROGRAMS follows: 15. Section 271.1(j) is amended by 14. The authority citation for Part 271 adding the following entries to Table 1 § 271.1 Purpose and scope. continues to read as follows: in chronological order by date of * * * * * Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 publication in the Federal Register, and (j) * * * and 1361. by adding the following entries to Table Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules 26083

TABLE 1.ÐREGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation FEDERAL REGISTER reference Effective date

******* [Insert date of publication of final Land Disposal Restrictions Phase [Insert FR page numbers]...... [Insert date of 90 days from date rule in the FEDERAL REGISTER IV Second Supplemental Pro- of publication of final rule]. [FR]. posal.

*******

TABLE 2.ÐSELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation FEDERAL REGISTER reference

******* [Insert date 90 days from date of Prohibition on land disposal of 3004(g)(4)(c) and 3004(m) ...... [Insert date of publication of final publication of final rule]. TC-metal wastes and wastes rule] [Insert FR volume and from mineral processing. page numbers]. [Same as above] [Insert date 2 years from date of ...... 3004 (m). publication of final rule].

*******

* * * * * Administrator shall notify the State that (4) In the certification, the citations to 16. Section 271.28 is added to read as the application is incomplete. This the specific statutes, administrative follows: notice shall include a concise statement regulations and where appropriate, § 271.28 Streamlined authorization of the deficiencies which form the basis judicial decisions are not included or procedures. for this determination. The State must incomplete. (a) The procedures contained in this also include a written assurance that the (e) Within 60 days after receipt of a section may be used by a State when State has the legal authority to complete final application from a State revising it program by applying for implement the key requirements of this for final authorization to implement a authorization for the requirements in rule. The State program must rule or rules specified in paragraph (a) part 268 that are in effect as of (insert demonstrate: of this section, absent information in the effective date of final rule), provided a (1) That it can distinguish land-based possession of EPA, the Administrator State is authorized for Land Disposal units receiving mineral processing shall publish an immediate final notice Restrictions rules up to and including residuals from those units operating as of the decision to grant final those in effect as of May 8, 1990. waste disposal units, based in part on authorization as follows: factors set out in 40 CFR 261.4(a)(14) (b) An application for a revision of a (1) In the Federal Register; State’s program for the provisions stated and 40 CFR 267.10; in paragraph (a) of this section shall (2) That it imposes preventive (2) In enough of the largest consist of: measures (including design and newspapers in the State to attract (1) A certification from the State that operating conditions) on these units; Statewide attention; and, its laws provide authority that is (3) That it establishes groundwater (3) By mailing to persons on the State equivalent to and no less stringent than protection criteria; agency mailing list and to any other the provisions specified in paragraph (4) That it requires groundwater persons whom the Agency has reason to (a), and which includes references to the monitoring; believe are interested. (5) That it detects and remediate specific statutes, administrative (f) The public notice under paragraph releases of hazardous constituents from regulations and where appropriate, (e) of this section shall summarize the the unit to groundwater should such judicial decisions. State statutes and State program revision and provide for releases occur; and regulations cited in the State an opportunity to comment for a period (6) The State program must provide certification shall be fully effective at of 30 days. the time the certification is signed; for public participation in the process of (2) Copies of all applicable State developing requirements for particular (g) Approval of State program statutes and regulations; and land-based units. revisions under this section shall (3) Certification from the State that its (d) For purposes of this section, an become effective 60 days after the date laws provide authority that is equivalent incomplete application is one where: of publication in the Federal Register in to and no less stringent than the (1) Copies of applicable statutes or accordance with paragraph (e) of this provisions specified in paragraph (c) of regulations were not included; section, unless a significant adverse this section. (2) The statutes or regulations relied comment pertaining to the State (c) Within 30 days of receipt by EPA on by the State to implement the program revision discussed in the of a State’s application for final program revisions are not yet in effect; document is received by the end of the authorization to implement a rule (3) The State is not authorized to comment period. If a significant adverse specified in paragraph (a) of this implement the prerequisite RCRA rules comment is received, the Administrator section, if the Administrator determines as specified in paragraph (a) of this shall so notify the State and shall, that the application is not complete, the section; or, within 60 days after the date of 26084 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules publication, publish in the Federal Register either: (1) A withdrawal of the immediate final decision; or (2) A document containing a response to comments and either affirming that the immediate final decision takes effect or reversing the decision. [FR Doc. 97–11637 Filed 5–9–97; 8:45 am] BILLING CODE 6560±50±P federal register May 12,1997 Monday Notice Domestic MailClassificationsandFees; Standards; FinalRule;Changesin Special ServicesReform;Implementation 39 CFRPart111 Postal Service Part III 26085 26086 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

POSTAL SERVICE followed the requests made by the of mail or to the fees for other special Postal Service to increase the fee for services, none of which were included 39 CFR Part 111 certified mail, merge the two options for in the filing. return receipt service, merge the two Post Office Box Service Special Services Reform; options for return receipt for Implementation Standards merchandise, increase the maximum Under the final rule, the Postal AGENCY: Postal Service. available indemnity for insured mail to Service establishes new fee groups and ACTION: Final rule. $5,000, add optional insurance for adjusts certain post office box fees to Express Mail and refine the current recover a greater proportion of cost. The SUMMARY: This final rule presents the available indemnity structure, simplify changes to post office box service and full text of the Domestic Mail Manual the fee schedule for registered mail, and fees pursue the policy of providing each (DMM) standards adopted by the Postal eliminate special delivery. Although the customer with one form of free delivery. Service to implement the Decision of PRC did not recommend a fee for postal In post offices that do not provide the Governors of the United States cards (renamed stamped cards), it did carrier delivery, the final rule eliminates Postal Service on the Recommended suggest that the Postal Service remove box fees for customers who are Decision of the Postal Rate Commission costs unique to stamped cards from total ineligible for any form of carrier on Special Services Fees and postal and postcard subclass costs to delivery (from any post office). Fees are Classifications, Docket No. MC96–3. support any proposed fee in addition to also eliminated for box customers who This final rule affects only the fees for, the face value of the cards. are ineligible for carrier service at and certain attributes of, the following Based on extensive analysis of the delivery offices, except for those special services and their users: post PRC’s Recommended Decision and customers who reside in the immediate office box and caller service, certified deliberation as to its consequences to vicinity of the office. These latter mail, insurance (insured mail and the Postal Service and its customers, customers will be afforded continued Express Mail), parcel airlift, postal and pursuant to 39 U.S.C. 3625, the access to general delivery service. cards, registered mail, return receipt, Governors acted on the PRC’s return receipt for merchandise, and recommendations on May 5, 1997. Caller Service special delivery. As appropriate, Decision of the Governors of the United Under the final rule, the Postal clarifications are included. States Postal Service on the Service extends caller service to Group DATES: This final rule is effective at Recommended Decision of the Postal D post offices (formerly categorized as 12:01 a.m., Sunday, June 8, 1997. Rate Commission on Special Services Group II offices) for those customers, Comments allowed herein must be Fees and Classifications, Docket No. especially commercial mailers, who received on or before May 27, 1997. MC96–3. desire this service. The Group D caller The Governors determined to approve ADDRESSES: Mail or deliver written service fee is set at the Group C the PRC’s recommendations, and the comments to the Manager, Mail (formerly categorized as Group IC) Board of Governors set an Preparation and Standards, USPS annual rate of $450. The fees for Groups implementation date of June 8, 1997, for Headquarters, 475 L’Enfant Plaza SW, A, B, and C do not change from the those rate and classification changes to current fees. Room 6800, Washington DC 20260– take effect. A notice announcing the 2405. Copies of all written comments Governors’ Decision and the issuance of Certified Mail will be available at the above address for final Domestic Mail Classification inspection and photocopying between 9 Schedule and Rate Schedule changes is Under the final rule, the Postal a.m. and 4 p.m., Monday through published elsewhere in this issue of the Service raises the certified mail fee from Friday. Federal Register. $1.10 to $1.35 to align its price more FOR FURTHER INFORMATION CONTACT: Neil This final rule contains the DMM appropriately with the cost of providing Berger, (202) 268–2859, or John Nagla, standards adopted by the Postal Service this service. (202) 268–4686. to implement the Governors’ decision. Insured Mail and Insured Express Mail SUPPLEMENTARY INFORMATION: On June 7, As appropriate, clarifications are 1996, pursuant to its authority under 39 included. Under the final rule, the Postal U.S.C. 3621, et seq., the Postal Service In its testimony before the PRC, the Service increases from $600 to $5,000 filed with the Postal Rate Commission Postal Service presented extensive the maximum indemnity available for (PRC) a request for a recommended evidence concerning the prudence and insured mail. It should be noted that the decision on several special service necessity of certain pricing and handling of insured mail is not changed reform proposals. The PRC designated classification reforms that it was seeking and the distinction is maintained the filing as Docket No. MC96–3. The for post office box service and certain between ‘‘unnumbered insured mail’’ PRC published a notice of the filing, special services. Despite the differences (i.e., mail insured for $50 or less) and with a description of the Postal between the Postal Service’s Request ‘‘numbered insured mail’’ (i.e., mail Service’s proposals, on June 21, 1996, in and the PRC’s Recommended Decision, insured for more than $50). The Postal the Federal Register (61 FR 31968– which the Governors have approved, the Service increases from $500 to $5,000 31979). value and efficacy of many elements of the maximum indemnity for Pursuant to 39 U.S.C. 3624, on April the Request remain undiminished. merchandise sent by Express Mail. This 2, 1997, the PRC issued its Using new data and analysis obtained increase to $5,000 will enable the Postal Recommended Decision on the Postal since the last omnibus rate case, the Service to compete more effectively in Service’s Request to the Governors of Postal Service, with its filing, sought the the parcel market for higher value items the Postal Service. The PRC’s reform of several special services to such as electronic and computer Recommended Decision made revisions improve customer satisfaction and to equipment. to some of the restructuring of the post account for cost and customer demand. Several other reforms and office box fees requested by the Postal The final rule does not encompass any clarifications are made to describe Service. In other areas, the PRC’s changes to the rates or preparation payable and nonpayble claims. In Recommended Decision generally standards for the classes and subclasses addition, for negotiable items, currency, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26087 or bullion, mailed as Express Mail, the Special Delivery Service of provisions on which comment is maximum indemnity is $15. Under the final rule, the Postal sought is short and straightforward. Concurrently, the indemnity for Service eliminates domestic special Customers and mailers should have Express Mail document reconstruction delivery service because the demand for little difficulty evaluating the effect of is reduced from $50,000 to $500 per it has virtually disappeared. Consumers these provisions on their personal or piece and $500,000 to $5,000 per who request expedited delivery service commercial mailing requirements. occurrence in response to industry most frequently use Priority Mail or Second, the Postal Service wants to changes from exclusive reliance on Express Mail. A 2-pound Priority Mail ensure that customers and mailers have sufficient time after the close of the paper documents to the growing use of package costs only $3, compared with comment period and publication of any electronically generated documents that $12.95 for the same Priority Mail possible revisions to this final rule to can be reconstructed easily. Indemnity package sent as special delivery ($3 make the necessary changes to their will be paid according to value for items postage plus $9.95 special delivery fee). operations before the June 8, 1997, valued at $15 or less. A 2-pound Express Mail Post Office to Addressee package costs $15.00. implementation date. After review of Parcel Airlift Express Mail, unlike special delivery the comments received, the Postal Service will modify the corresponding Under the final rule, the Postal service and Priority Mail, includes a delivery guarantee and insurance at no standards if such modification is Service increases from $25 to $50 the additional charge. determined to be appropriate. minimum insurance amount required Although exempt by 39 U.S.C. 410(a) on a parcel airlift (PAL) package if Stamped Cards from the notice and comment return receipt or restricted delivery Under the final rule, the Postal requirements of the Administrative service is requested. Service renames postal cards as stamped Procedure Act (5 U.S.C. 553 (b), (c)) Registered Mail cards. Unlike stamped envelopes, regarding rulemaking, the Postal Service stamped cards will continue to be sold invites comment on the revisions of Under the final rule, the Postal at no additional charge above their face sections D910, S010, S500, S913, S915, Service simplifies the registered mail fee value of postage. The designation and S917 of the Domestic Mail Manual, schedule by eliminating the uninsured stamped cards emphasizes the similar incorporated by reference in the Code of schedule for declared values of more nature of this stationery item with Federal Regulations. See 39 CFR part than $100 for the reasons that most stamped envelopes. 111. mailers of registered mail want Scope of Changes insurance and the dual fee schedules PART 111Ð[AMENDED] differ by less than $1 in the lower ranges To the extent that this final rule to no more than $2.70 in the topmost establishes standards that were not 1. The authority citation for 39 CFR range of coverage. The elimination of previously published for public part 111 continues to read as follows: two parallel fee schedules also conforms comment, the Postal Service has Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, to the overall Postal Service goal of determined to seek and consider 401, 403, 404, 3001–3011, 3201–3219, 3403– simplifying its services and products for comments from customers. This 3406, 3621, 3626, 5001. consumers. The maximum insurance opportunity for public comment is coverage for registered mail service restricted to matters concerning 2. In view of the foregoing, amend the remains at the current limit of $25,000. implementing policies that are not following sections of Domestic Mail determined directly from the PRC’s Manual Issue 51 as set forth below: Return Receipt Services Recommended Decision and the A ADDRESSING Governors’ Decision. The provisions for Under the final rule, the two basic which comments are solicited are as A000 Basic Addressing service offerings for return receipt follows: service are merged and made into one A010 General Addressing Standards 1. Standards for post office box service offering, available for a fee of service as provided in DMM D910, $1.10 (the current fee for the service [In 1.2d, replace ‘‘postal cards’’ with including eligibility for box service in showing to whom, signature, and date ‘‘stamped cards’’; no other change to offices that offer no form of carrier delivered). For return receipt for text.] delivery. merchandise, the two basic service * * * * * 2. Standards for indemnity as offerings are also merged and made into provided in DMM S010, S500, and A900 Customer Support one service, available for a fee of $1.20 S913, including the revised rate (the current fee for showing to whom, schedules for insured mail service and A910 Mailing List Services signature, and date delivered). The for Express Mail. [In 1.5, 3.2, and 5.2, replace ‘‘postal enhanced return receipt service 3. Standards for return receipt service includes the address of delivery if card[s]’’ with ‘‘stamped card[s]’’; no and return receipt service for other change to text.] different from the address on the merchandise in DMM S915 and S917, mailpiece. including the merger of the options * * * * * Also a classification change for return currently available. C CHARACTERISTICS AND receipt for merchandise limits the After considering the potential effect CONTENT availability of service in the First-Class of these provisions, the Postal Service Mail classification structure to Priority has determined to allow 15 days for C000 General Information Mail. In addition, a clarification public comment. Although a longer * * * * * specifies the subclasses of Standard comment period is usually provided, Mail for which return receipt for the Postal Service concluded that a 15- C020 Restricted or Nonmailable merchandise service is currently day comment period was warranted in Articles and Substances available. this case for two reasons. First, the list * * * * * 26088 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

C022 Perishables size box becomes available; by offering 3.7 Forwarding [In 3.1f, remove ‘‘special delivery or’’; a smaller or larger box at its fee; or by A post office box may not be used in 3.7, remove ‘‘special delivery or’’; no offering caller service. when the primary purpose is, through other change to text.] * * * * * change-of-address orders, to have the * * * * * 2.0 SERVICE USPS forward or transfer mail to another address free of charge. C030 Nonmailable Written, Printed, [Amend 2.0 by revising 2.2 and 2.3 * * * * * and Graphic Matter and adding new 2.4 to read as follows:] [Revise 4.0 to read as follows:] C031 Written, Printed, and Graphic * * * * * 4.0 BASIS OF FEES AND PAYMENT Matter Generally 2.2 Transferring Service [In 3.2 and 5.6, replace ‘‘postal card’’ 4.1 General with ‘‘stamped card or postcard’’; no Post office box service may be Post office box fees are based on the other change to text.] transferred, without payment of an size of box provided and the fee group * * * * * additional fee, to any box of the same of the administering facility as size and fee group at a different facility identified in 5.0. C100 First-Class Mail of the same post office. To transfer 4.2 Box Size [In 2.1, 2.3, and 2.9, replace ‘‘postal service, the box customer must submit card[s]’’ with ‘‘stamped card[s]’’; no a new application either to the facility Box sizes are standardized and the other change to text.] where service is currently provided or fees for boxes increase with box size. * * * * * to the facility where service is desired. The following chart describes A box customer may transfer service no approximate box capacities and frontal C600 Standard Mail more than once in any semiannual dimensions. [In 2.2, remove ‘‘special delivery or’’; payment period and must submit a completed Form 3575 or Form 3575- Box Capacity Width and height no other change to text.] size (cubic inches) (linear inches) * * * * * WWW at the time of transfer. 2.3 Minor 1 ...... Under 296 ...... 3 by 5.5. DEPOSIT, COLLECTION, AND 2 ...... 296 through 499 5 by 5.5. DELIVERY Post office box service may be 3 ...... 500 through 999 11 by 5.5. * * * * * provided to a minor (a person under 18 4 ...... 1,000 through 11 by 11. years of age) unless the minor’s parent 1,999. D900 Other Delivery Services or guardian submits a written objection 5 ...... 2,000 or more .... 22.5 by 12. D910 Post Office Box Service to the appropriate postmaster. 4.3 Definitions of Facilities for Fee 1.0 BASIC INFORMATION 2.4 Proof of Physical Address Groups [Amend 1.0 by revising 1.1; by An applicant for post office box All facilities administered by a single removing current 1.7; by redesignating service or a current box customer independent post office (including any current 1.6 as 1.7; and by adding new seeking renewal must identify his or her classified or contract station or branch, 1.6 to read as follows:] physical address (i.e., an individual’s community post office, or detached post 1.1 Purpose residence or a business’s location) to the office box unit) belong to the same fee postmaster of the office where service is group as that post office and use a single Post office box service is a premium sought or provided. If the postmaster fee schedule, except as provided in 5.3. service offered for a fee to any customer cannot confirm the physical address, the Additionally, the type of carrier delivery requiring more than free carrier delivery applicant or box customer must provide service available at any one facility or general delivery and for no fee to proof of the physical address (e.g., a administered by a post office determines certain customers who are not eligible utility bill, current lease, mortgage, deed the fee group applicable to all of that for carrier delivery. The service allows of trust, a driver’s license, or voter post office’s facilities, as provided in a customer to obtain mail during the registration card). A business with 5.1. All box locations administered by a hours the box lobby is open. Post office multiple locations may, on providing single mail processing facility belong to box service does not include alternate appropriate evidence, use any one or the same fee group as identified in 5.2 means of delivery established to replace, more of such location(s) as its physical and use a single fee schedule, except as simplify, or extend carrier delivery address. provided in 5.3. service. A postmaster and a box customer may not make any agreement 3.0 CONDITIONS OF USE 4.4 Fee Changes that contravenes the regulations on post A change in post office box service [Amend 3.0 by revising 3.2, 3.3, and office box service or its fees. fees can arise from a general fee change, 3.7 to read as follows:] * * * * * an administrative change in carrier * * * * * service, a change in definitions in 4.3, 1.6 Box Availability 3.2 Updating or a change in facility groupings in 5.0. When no box of the appropriate size Any change in post office box service is available, an application for box When any information required to be fees takes effect on the date of the action service may be handled, at the provided by the box customer on Form that caused the change unless an official postmaster’s discretion, in any one or 1093 changes, the customer must notify announcement specifies another date. If more of the following ways: by referring the post office of such changes. a post office box service fee is increased, the customer to another postal facility 3.3 Mail Only no customer must pay at the new rate with available capacity; by placing the until the end of the period already paid, customer’s name on a waiting list for Only mail and official USPS notices and no retroactive adjustment is to be box service; by providing general may be placed into a post office box. made for a payment received before the delivery service until an appropriate * * * * * date of the change. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26089

4.5 Payment paid in advance. A change of payment b. Post Office With Only Rural or All fees are for a semiannual (6- period date may not be used to Highway Contract Carrier Delivery. A month) period, and must be paid in circumvent a change in box fees. post office that does not provide city advance for no less than one but no 4.10 Academic Institutions carrier delivery but provides only rural more than two semiannual periods, carrier or highway contract carrier The USPS does not set or collect fees except as provided under 4.7, 4.8, and delivery at any of its administered for boxes owned by an academic 4.11. Fees may be paid using cash, facilities applies Group D fees, except as institution if the boxes are separate from credit or debit card, or check or money provided in 5.3, with two exceptions: designated USPS areas and serviced by order payable to the postmaster. A employees or agents of the institution. (1) A customer whose physical mailed payment must be received by the residence or business location is within postmaster on or before the due date. 4.11 Adjusting Fees the geographic boundaries of any 4.6 Payment Period In postal facilities primarily serving delivery area ZIP Code administered by that non-city delivery post office, who is Except under 4.8, the beginning date academic institutions or their students, box fees may be adjusted to fit the ineligible for any form of carrier for a box fee payment period is delivery service, who does not receive determined by the approval date of the semester schedules, using the matrix below. Charges are rounded up to the carrier delivery via an out-of-bounds application. The period begins on the delivery receptacle, and who resides first day of either the same month if the next multiple of $0.10. No refund is made for discontinued service when a outside the immediate vicinity of the application is approved on or before the post office as specified in Postal 15th of the month, or the next month if box is obtained under this standard. Operations Manual 653, may obtain one approved after the 15th of the month. Service period Adjusted fee box of the smallest available size at the After that, box fees for service renewal Group E fee (no fee). may be paid any time during the last 30 95 days or 1¤2 semiannual fee (or 1¤4 an- days of the service period, but no later less. nual fee). (2) A customer whose ineligibility for than the last day of the service period. 96 to 140 3¤4 semiannual fee (or 3¤8 an- carrier service arises from residing in days. nual fee). the immediate vicinity of the post office 4.7 U.S. Agencies 1 141 to 190 Full semiannual fee (or ¤2 as specified in Postal Operations Federal agencies whose payment days. annual fee). Manual 653 is afforded continued period coincides with the federal fiscal 191 to 230 11¤4 semiannual fee (or 5¤8 access to general delivery service. year may pay their box fees during the days. annual fee). 231 to 270 11¤2 semiannual fee (or 3¤4 c. Post Office Without Any Carrier first quarter rather than in advance. days. annual fee). Delivery. A post office that does not 4.8 Exception for Group D and E 271 days to 2 semiannual fees (or full an- provide any form of carrier delivery Offices full year. nual fee). (i.e., a nondelivery post office) exists within the geographic delivery Postmasters at Group D and Group E [Add new 5.0 and redesignate current offices with fewer than 500 post office boundaries of other post offices. A 5.0 through 7.0 as 6.0 through 8.0, nondelivery post office applies Group D boxes may set April 1 and October 1 as respectively.] the beginning of payment periods for fees or Group E fees (no fees), based on box customers in their offices. Payment 5.0 FEE GROUP ASSIGNMENTS the box customer’s physical residence or business location relative to the periods beginning other than April 1 or 5.1 Post Offices October 1 are brought into alignment geographic boundaries of the post office with these respective dates by adjusting For purposes of fee group assignment, containing the nondelivery office, as fees as follows: and as defined in 4.3, a post office follows: a. New service, one-sixth of the includes all subordinate facilities or (1) If the box customer’s physical semiannual fee is charged for each units administered by that post office, residence or business location is inside remaining month between the beginning such as classified stations, classified the geographic ZIP Code boundaries of of the new payment period and the next branches, and contractor-operated the post office containing the April 1 or October 1. facilities. Additionally, the type of nondelivery office, and the customer is b. Existing service, one-sixth of the carrier delivery service available at any eligible for carrier delivery service, a semiannual fee is charged for each one facility administered by a post box at the nondelivery office is provided remaining month between the end of all office determines the fee group at the Group D fee. If the customer is not currently paid periods and the next applicable to all facilities of that post eligible for carrier delivery service and April 1 or October 1. office as follows: does not receive carrier delivery via an c. Next one or two semiannual a. Post Office With City Delivery. A out-of-bounds delivery receptacle, a box payment periods, an adjustment may be post office that provides city carrier at either the nondelivery office or the accepted in addition to fees. delivery at any of its administered containing delivery office is provided at facilities applies Group C fees, except as the Group E fee (no fee). 4.9 Change of Payment Period provided in 5.3. A customer whose Except for customers at post offices physical residence or business location (2) If the box customer’s physical subject to 4.8, a box customer of record is within the geographic boundaries of residence or business location is outside may change the payment period by any delivery area ZIP Code the geographic ZIP Code boundaries of submitting a new application noting the administered by that city delivery post the post office containing the month to be used as the start of the office, who is ineligible for any form of nondelivery office, a box is provided at revised payment period. The date carrier delivery service from that post the Group D fee. selected must be before the end of the office and who does not receive carrier 5.2 Mail Processing Facilities current payment period. The unused fee delivery via an out-of-bounds delivery for the period being discontinued may receptacle, may obtain one box of the Mail processing facilities with post be refunded under 6.0, and the fee for smallest available size at the Group E office boxes apply Group C fees to post the new payment period must be fully fee (no fee). office boxes, except as provided in 5.3. 26090 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

5.3 Facilities Assigned Location-Based exceptions to the fee groupings Box Fees described in 5.1 and 5.2. Group A or B The facilities defined by the ZIP fees apply as identified. Codes in Exhibit 5.3 constitute

EXHIBIT 5.3.ÐFACILITIES ASSIGNED LOCATION-BASED BOX FEES

Group Location ZIP codes

A ...... New York, NY ...... 10001±10299. B ...... Boston, MA ...... 02113, 02115, 02117, 02128, 02134, 02135, 02139, 02140, 02142, 02146, 02158± 02162, 02164±02168, 02178, 02179, 02181, 02205, 02214±02216, 02218, 02238. Staten Island, NY ...... 10301±10399. Long Island City, NY ...... 11101±11199. Brooklyn, NY ...... 11201±11299. Queens (Flushing), NY ...... 11301±11399. Queens (Jamaica), NY ...... 11401±11499. Queens (Far Rockaway), NY ...... 11601±11699. Philadelphia, PA ...... 19101±19104, 19105, 19107. Washington, DC ...... 20004±20009, 20013, 20026, 20033, 20035, 20036, 20037, 20038, 20043, 20044, 20050, 20056 Bethesda, MD ...... 20813, 20824, 20825, 20827 Arlington, VA ...... 22202, 22209, 22210, 22216. McLean, VA ...... 22103. Chicago, IL ...... 60606, 60610, 60611, 60654, 60664, 60680, 60681, 60684, 60690. Los Angeles, CA ...... 90019, 90024, 90025, 90034, 90035, 90048, 90049, 90064, 90067, 90069. Beverly Hills, CA ...... 90210±90212. Santa Monica, CA ...... 90401±90405. San Francisco, CA ...... 94101, 94107, 94108, 94126, 94133, 94147, 94159, 94164. Honolulu, HI ...... 96801±96815, 96830.

[Revised redesignated 6.0 to read as 7.0 KEYS 8.3 Customer Appeal follows:] [No change to redesignated 7.0.] The applicant or box customer may 6.0 FEE REFUND [Revise redesignated 8.0 to read as file a petition appealing the postmaster’s follows:] determination to refuse or terminate 6.1 Calculation 8.0 SERVICE REFUSAL OR service within 20 calendar days after TERMINATION notice, as specified in the postmaster’s When post office box service is determination and 39 CFR 958. The terminated or surrendered, the unused 8.1 Refusal filing of a petition prevents the portion of the fee may be refunded as A postmaster may refuse to approve postmaster’s determination from taking follows. For the current semiannual effect and transfers the case to the USPS payment period, if service is post office box service if: the applicant submits a falsified or incomplete Judicial Officer. The Administrative discontinued any time within the first 3 Law Judge’s or the Judicial Officer’s months of the payment period, one-half application for box service; within the 2 years immediately before submitting the decision under 39 CFR 958 constitutes the fee is refunded; if discontinued after the final USPS decision. the third month of the payment period, application, the applicant physically none of the fee is refunded. The entire abused a box or violated a standard on 8.4 Surrendered Box fee is refunded for any semiannual the care or use of a box; or there is substantial reason to believe that the A post office box is deemed payment period that begins after the surrendered if the box customer submits termination or surrender date. box is to be used for activities as described in 3.6 or 3.7. a permanent change-of-address order, 6.2 Discontinued Postal Facility refuses or fails to pay the appropriate 8.2 Termination fees by the due date, or submits a When a postal facility is discontinued A postmaster may terminate post written notice to discontinue service. A or relocated, a box customer at that office box service, including that of a box is not considered surrendered if the facility may obtain a refund of unused customer paying a Group E fee, if the box customer dies or disappears before box fees if box service at that location box customer or its representative the end of the period for which the box is discontinued and additional travel of falsifies the application for the box; is issued, the box customer submits a 1⁄4 mile or more (from the physical physically abuses the box; refuses to temporary change-of-address order, or address on the customer’s Form 1093) is update information on the box any person other than the box customer required to obtain equivalent service. application; violates any standard on submits a change-of-address order for For this purpose, one-sixth of a the care or use of the box; conducts mail going to the box. semiannual fee is refunded for each himself or herself in a violent, D920 Caller Service month left in the payment period. The threatening, or otherwise abusive refund is computed from the first day of manner on postal premises; or uses it for [Revise 1.0 to read as follows:] that month (if the effective date of the any unlawful activity as described in 1.0 BASIC INFORMATION facility discontinuance is on or before 3.6. The customer is notified of the the 15th of the month) or from the first postmaster’s determination to refuse or 1.1 Purpose day of the next month (if the effective terminate service and of the appeal Caller service is a premium service date is after the 15th of the month). procedures for that determination. available for a fee to any customer Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26091 requiring more than free carrier service box, or use one or more additional boxes [Revise 3.0 to read as follows:] or the largest installed box size, or to (subject to availability) to which mail 3.0 CONDITIONS OF USE any customer who is required to use will be addressed. A customer required caller service by standard. The service to use caller service because of the mail 3.1 Mail Receipt allows a customer to pick up mail at a volume received may, once per An individual caller or organization post office call window or loading dock semiannual payment period, make a may receive mail properly addressed to when the office is open. Caller service written request to the postmaster for a the caller number. Mail addressed only does not include general delivery new determination of whether current to a caller number is delivered to the service. A customer may obtain caller mail volume requires continued use of caller so long as no improper or service for receiving the mail of a client, caller service. unlawful business is conducted. A subject to D042. A postmaster and a 1.8 U.S. Agencies and Schools caller who, as a regular practice, wants caller may not make any agreement that Federal agencies and the various to call for mail at a postal facility more contravenes the regulations on caller than once in any 24-hour period must service or its fees. schools and departments within educational institutions are considered obtain the postmaster’s approval of the 1.2 Caller separate customers for 1.7. pickup schedule. A caller is the person signing the 1.9 Eligible Customers 3.2 Updating application as an individual, or the Caller service may be provided to the When any information required to be organization represented by the provided by the caller on Form 1093 individual signing the application. following: a. A new customer planning to receive changes, the caller must notify the post 1.3 Service Types an incoming volume of mail that cannot office of such changes. Destination caller service is caller fit into the largest available post office 3.3 Unlawful Activity box. service provided at the postal facility to Caller service may not be used for, or which the caller’s mail is addressed. b. A customer wanting a post office box when a box is unavailable, and the in connection with, a scheme or Origin caller service (accelerated reply enterprise that violates any federal, mail) is described in 7.0. postmaster determines that such service does not adversely affect postal state, or local law; breaches an 1.4 Caller Service Number operations. agreement between the caller and a federal, state, or local agency for the Except for origin caller service, the c. A customer formerly receiving firm caller to discontinue a specified activity; customer (including a customer using a holdout service. or violates or attempts to evade any post office box number) is assigned a [Revise 2.0 to read as follows:] order of a court or administrative body. caller service number before caller 2.0 SERVICE service may begin. A caller number is 3.4 Forwarding 2.1 Application assigned for each separation used. A caller number may not be used Except under 1.5, mail addressed to a To apply for caller service, the when the primary purpose is, through caller service customer must include applicant must complete all relevant change-of-address orders, to have the ‘‘Post Office Box’’ or ‘‘PO BOX’’ spaces on Form 1093 and submit it to USPS forward or transfer mail to followed by the assigned number in the any postal facility that provides public another address free of charge. mailing address immediately above the window service. The facility need not [Revise 4.0 to read as follows:] city, state, and ZIP Code. A caller of be the one where destination caller record may reserve caller numbers for service is desired. An incomplete or 4.0 BASIS OF FEES AND PAYMENT future use. The postmaster determines falsified application is sufficient reason 4.1 Basic Caller Fee the reserved numbers and may restrict to deny or discontinue service. An this service. application is not considered approved The caller service fee groups are until the USPS verifies the applicant’s shown in Exhibit 4.1 and are charged 1.5 Exemption identity. per semiannual (6-month) period. The A postmaster may exempt any fee must be paid for each caller number customer continuously receiving firm 2.2 Transferring Service or separation used, with two exceptions: holdout service since July 3, 1994, from Caller service may be transferred, a. If a caller uses many caller the standard in 1.4 that correspondents without payment of an additional fee, to numbers, but receives only a bulk must use the assigned post office box a different facility of the same post delivery of mail not separated to those (caller service) number in the address. office if that facility has caller service. numbers either because this mail is To transfer service, the caller must sorted to the customer’s unique 5-digit 1.6 Restriction submit a new application either to the ZIP Code or because sortation is made The USPS may restrict caller service facility where service is currently by caller name or other identification, if such service adversely affects postal provided or to the facility where service the basic caller fee is charged only for operations. is desired. A caller may transfer service each separation actually made. The reserved number fee is charged for each 1.7 Required Use no more than once in any semiannual payment period and must submit a of the caller numbers to which mail Subject to D910, when mail for a completed Form 3575 or Form 3575– received by the caller is addressed. customer’s post office box(es) exceeds WWW at the time of transfer. b. Caller service is available in box fee the capacity of the box(es) on 12 of any Group D post offices on the same basis 20 consecutive business days (excluding 2.3 Minor and fee as Group C offices. The one Saturdays, Sundays, and national Caller service may be provided to a exception is when a box service holidays), or when the customer seeks minor (a person under 18 years of age) applicant is provided a single caller multiple caller service separations, the unless the minor’s parent or guardian service separation instead of a box postmaster can require the customer to submits a written objection to the because of a shortage of available boxes use caller service, change to a larger postmaster. (see D910), in which case the fee 26092 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations charged is the fee for the largest installed box rather than the fee for caller service.

EXHIBIT 4.1.ÐCALLER SERVICE GROUPS

Group Location ZIP Codes

A ...... New York, NY ...... 10001±10299. B ...... Boston, MA ...... 02113, 02115, 02117, 02128, 02134, 02135, 02139, 02140, 02142, 02146, 02158± 02162, 02164±02168, 02178, 02179, 02181, 02205, 02214±02216, 02218, 02238. Staten Island, NY ...... 10301±10399. Long Island City, NY ...... 11101±11199. Brooklyn, NY ...... 11201±11299. Queens (Flushing), NY ...... 11301±11399. Queens (Jamaica), NY ...... 11401±11499. Queens (Far Rockaway), NY ...... 11601±11699. Philadelphia, PA ...... 19101±19104, 19105, 19107. Washington, DC ...... 20004±20009, 20013, 20026, 20033, 20035, 20036, 20037, 20038, 20043, 20044, 20050, 20056. Bethesda, MD ...... 20813, 20824, 20825, 20827. Arlington, VA ...... 22202, 22209, 22210, 22216. McLean, VA ...... 22103. Chicago, IL ...... 60606, 60610, 60611, 60654, 60664, 60680, 60681, 60684, 60690. Los Angeles, CA ...... 90019, 90024, 90025, 90034, 90035, 90048, 90049, 90064, 90067, 90069. Beverly Hills, CA ...... 90210±90212.. Santa Monica, CA ...... 90401±90405. San Francisco, CA ...... 94101, 94107, 94108, 94126, 94133, 94147, 94159, 94164. Honolulu, HI ...... 96801±96815, 96830. C ...... All post offices with city delivery and all nondelivery mail processing facilities not listed in Group A or B. D ...... All post offices with no city delivery but with only rural or highway contract delivery and not listed in Group A or B.

4.2 Reserved Number 4.6 Payment Period discontinued. For the current The beginning date for a caller fee semiannual payment period, if service is The required fee is charged per discontinued any time within the first 3 calendar year or any part of such a payment period is determined by the approval date of the application. The months of the payment period, one-half calendar year for each number reserved the fee is refunded; if discontinued after by a customer. period begins on the first day of either the same month if the application is the third month of the payment period, 4.3 Fee Changes approved on or before the 15th of the none of the fee is refunded. month, or the next month if approved 5.2 Discontinued Postal Facility A change in caller service fees can after the 15th of the month. After that, arise from a general fee change, a change caller fees for renewal of service may be When a postal facility is discontinued in customer eligibility under 4.1b, or a paid any time during the last 30 days of or relocated, a caller service customer at change in facility groupings in 4.1. Any the service period, but no later than the that facility may obtain a refund of change in caller service fees takes effect last day of the service period. unused caller service fees if caller on the date of the action that caused the service at that location is discontinued change unless an official announcement 4.7 Change of Payment Period and additional travel of 1⁄4 mile or more specifies another date. If a caller service A caller of record may change the (from the physical address on the fee is increased, no customer must pay payment period by submitting a new caller’s Form 1093) is required to obtain at the new rate until the end of the application noting the month to be used equivalent service. For this purpose, period already paid, and no retroactive as the start of the revised payment one-sixth of a semiannual fee is adjustment is to be made for a payment period. The date selected must be before refunded for each month left in the received before the date of the change. the end of the current payment period. payment period. The refund is computed from the first day of that 4.4 Box Number The unused fee for the period being discontinued may be refunded under month (if the effective date of the If a caller uses a physical post office 5.0, and the fee for the new payment facility discontinuance is on or before box to obtain a caller number, the period must be fully paid in advance. A the 15th of the month) or from the first applicable fees for both post office box change of payment period date may not day of the next month (if the effective service and caller service must be paid. be used to circumvent a change in caller date is after the 15th of the month). service fees. [Revise 6.0 to read as follows:] 4.5 Payment [Revise 5.0 to read as follows:] 6.0 SERVICE REFUSAL OR Caller fees are charged for a 5.0 FEE REFUND TERMINATION semiannual (6-month) period and must 6.1 Refusal be paid in advance for no less than one 5.1 Discontinued Number but no more than two semiannual When a destination caller service A postmaster may refuse to approve periods. Fees may be paid using cash, number is discontinued or surrendered, caller service if the applicant submits a credit or debit card, or check or money the unused portion of the fee for that falsified or incomplete application for order payable to the postmaster. A number may be refunded. The entire fee caller service; within the 2 years mailed payment must be received by the is refunded for any semiannual payment immediately before submitting the postmaster on or before the due date. period after that in which the service is application, the applicant violated a Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26093 standard on the use of the service; or b. To a customer whose mail volume F020 Forwarding there is substantial reason to believe or service level (e.g., mail accumulation) [In 3.3, replace ‘‘postal cards’’ with that the service is to be used for cannot reasonably be accommodated. ‘‘stamped cards’’; in 3.7, remove the activities described in 3.3 or 3.4. * * * * * second sentence; no other change to 6.2 Termination E ELIGIBILITY text.] A postmaster may terminate caller E000 Special Eligibility Standards F030 Address Correction, Address service if the caller or its representative SM * * * * * Change, FASTforward , and Return falsifies the application for the service; Services refuses to update information on the E020 Department of State Mail application; violates any standard on [In 5.3, replace ‘‘postal cards’’ with the use of the service; conducts himself [In 2.3, remove ‘‘special delivery’’; no ‘‘stamped cards’’; no other change to or herself in a violent, threatening, or other change to text.] text.] otherwise abusive manner on postal E030 Mail Sent by U.S. Armed Forces G GENERAL INFORMATION premises; or uses it for any unlawful activity as described in 3.3. The caller [In 2.6, remove the second sentence; G000 The USPS and Mailing is notified of the postmaster’s no other change to text.] Standards determination to refuse or terminate * * * * * G010 Basic Business Information service and of the appeal procedures to that determination. E060 Official Mail (Penalty) G011 Post Offices and Postal Services 6.3 Customer Appeal [In 9.2 and 9.6d, replace ‘‘postal [Amend Exhibit 1.5 by replacing the card[s]’’ with ‘‘stamped card[s]’’; no seventh column heading ‘‘Special The applicant or caller may file a other change to text.] Delivery’’ with ‘‘Express Mail’’; petition opposing the postmaster’s * * * * * replacing ‘‘Holiday schedule’’ with determination to refuse or terminate ‘‘Holiday’’; and by adding under service within 20 calendar days after E100 First-Class Mail ‘‘Definition of Terms,’’ ‘‘Holiday— notice, as specified in the postmaster’s E110 Basic Standards Service determined by national, area, determination and 39 CFR 958. The and/or district guidelines’’; no other filing of a petition prevents the [In 3.1, 3.2, and 3.2a, replace ‘‘postal change to text.] postmaster’s determination from taking card[s]’’ with ‘‘stamped card[s]’’; no effect and transfers the case to the USPS other change to text.] G013 Trademarks and Copyrights Judicial Officer. The Administrative * * * * * [In 2.1, replace ‘‘postal cards’’ with Law Judge’s or Judicial Officer’s ‘‘stamped cards’’; no other change to decision under 39 CFR 958 constitutes E600 Standard Mail text.] the final USPS decision. E610 Basic Standards * * * * * 6.4 Surrendered Service * * * * * P POSTAGE AND PAYMENT Caller service is deemed surrendered E612 Additional Standards for METHODS if the caller submits a permanent Standard Mail (A) change-of-address order, fails or refuses P000 Basic Information to pay the appropriate fees by the due [In 4.1, remove ‘‘special delivery’’ in P010 General Standards date, or submits a written notice to the third sentence; no other change to * * * * * discontinue service. text.] * * * * * * * * * * P014 Refunds and Exchanges D930 General Delivery and Firm E620 Nonautomation Nonpresort 1.0 STAMP EXCHANGES Holdout Rates [In 1.5, 1.6, 1.6c, 1.6d, 1.8b, 1.8c, and 1.0 GENERAL DELIVERY [In 2.2d, remove ‘‘special delivery’’; in 1.8d, replace ‘‘postal card[s]’’ with [Amend 1.0 by revising 1.1 and 1.2 to 2.5 introductory text, remove ‘‘special ‘‘stamped card[s]’’; no other change to read as follows:] delivery or’’; no other change to text.] text.] 1.1 Purpose E630 Nonautomation Presort Rates 2.0 POSTAGE AND FEES REFUNDS * * * * * General delivery is intended primarily [In 3.1, remove ‘‘special delivery’’ in as a temporary means of delivery: the last sentence; no other change to 2.4 Full Refund a. For transients and customers not text.] permanently located. [In 2.4f, remove ‘‘special delivery,’’; b. For customers who want post office * * * * * no other change to text.] box service when boxes are unavailable. F FORWARDING AND RELATED * * * * * c. For customers whose eligibility for SERVICES carrier delivery is restricted by Postal 2.7 Unallowable Refunds F000 Basic Services Operations Manual 653. [Amend 2.7 by revising 2.7b to read as 1.2 Service Restrictions F010 Basic Information follows:] General delivery is available at only [In 3.0a, remove ‘‘special delivery’’; in Refunds are not made for the one facility under the administration of 4.5, remove 4.5c and redesignate current following: a multifacility post office. A postmaster 4.5d and 4.5e as 4.5c and 4.5d, * * * * * may refuse or restrict general delivery: respectively; in 5.1, replace ‘‘postal b. Collect on delivery (COD), Express a. To a customer who is unable to cards’’ with ‘‘stamped cards’’; no other Mail insurance, insured, and registered present suitable identification. change to text.] fees after the USPS accepts the article, 26094 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations even if the article is later withdrawn P023 Precanceled Stamps P100 First-Class Mail from the mail. * * * * * [In 1.1 and 1.3, replace ‘‘P[p]ostal [In 2.1, replace ‘‘postal cards’’ with cards’’ with ‘‘S[s]tamped cards’’; in 3.1, ‘‘stamped cards’’; no other change to P020 Postage Stamps and Stationery replace ‘‘postal cards’’ with ‘‘stamped text.] P021 Stamped Stationery cards’’; no other change to text.] * * * * * [In 3.1, revise the heading to read P030 Postage Meters and Meter R RATES AND FEES ‘‘Stamped Card’’ and replace ‘‘P[p]ostal Stamps cards’’ with ‘‘S[s]tamped cards’’; in 4.0, R000 Stamps and Stationery replace ‘‘postal cards’’ with ‘‘stamped [In 4.8, remove ‘‘special delivery,’’; in * * * * * cards (formerly called postal cards)’’; no 4.10, remove ‘‘or special delivery mail,’’; other change to text.] in 5.4b, remove ‘‘special delivery mail [Revise the heading and text of 3.0 to or’’; no other change to text.] read as follows:] P022 Adhesive Stamps * * * * * 3.0 STAMPED CARDS [In 2.2d, replace ‘‘postal cards’’ with ‘‘stamped cards’’; no other change to Stamped cards are priced as follows: text.]

Total Configuration Postage Fee price

Cut single card ...... $0.20 $0.00 $0.20 Sheet of 40 cards ...... 8.00 0.00 8.00 Double reply-paid card ...... 0.40 0.00 0.40

* * * * * 7.0 EXPRESS MAIL INSURANCE Insurance coverage desired Fee R100 First-Class Mail Fee, in addition to postage and other fees, for additional Express Mail [In 1.1 and in the Summary of First- Insured mail maximum liability: $5,000.00. insurance: Class Rates, replace ‘‘postal cards’’ with a. For amount of merchandise ‘‘stamped cards’’; no other change to 9.0 MAILING LIST SERVICE insurance liability: text.] [No change to redesignated 9.0.] * * * * * Insurance coverage desired Fee R900 Services 10.0 MERCHANDISE RETURN SERVICE [Remove current 19.0; renumber $0.01 to 500.00 ...... None current 7.0 through 18.0 as 8.0 through 500.01 to 5,000.00 .... $0.90 for each $100 [No change to redesignated 10.0.] 19.0, respectively; add new 7.0; and or fraction thereof over $500 in insur- 11.0 METER SERVICE revise other sections to read as follows:] ance coverage de- * * * * * sired [No change to redesignated 11.0.] [Revise 3.0 to read as follows:] Merchandise maximum liability: $5,000.00. 12.0 MONEY ORDER 3.0 CALLER SERVICE Fees are charged as follows: b. Document reconstruction [No change to redesignated 12.0.] a. For service provided, per maximum liability: $500.00. 13.0 PARCEL AIRLIFT (PAL) semiannual period: [Revise redesignated 8.0 to read as follows:] [No change to redesignated 13.0.] Fee group Fee 8.0 INSURED MAIL 14.0 PERMIT IMPRINT A ...... $250.00 Fee, in addition to postage and other B ...... 240.00 [No change to redesignated 14.0.] fees, for merchandise insurance C ...... 225.00 [Revise redesignated 15.0 to read as D ...... 225.00 liability: follows:] Insurance coverage b. For each reserved call number, per desired Fee 15.0 POST OFFICE BOX SERVICE calendar year (all post offices): $30.00. * * * * * $0.01 to 50.00 ...... $0.75 For service provided as described in [Revise 5.0 to read as follows:] 50.01 to 100.00 ...... 1.60 D910: 100.01 to 5,000.00 .... 1.60 plus $0.90 for 5.0 CERTIFIED MAIL each $100 or frac- a. Deposit per key issued: $1.00. Fee, in addition to postage and other tion thereof over b. Box fee per semiannual (6-month) first $100 in insur- period: fees, per mailpiece: $1.35. ance coverage de- * * * * * sired [Add new 7.0 to read as follows:] Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26095

Fee Box size and fee group 1 2 3 4 5

A ...... $24.00 $37.00 $64.00 $121.00 $209.00 B ...... 22.00 33.00 56.00 109.00 186.00 C ...... 20.00 29.00 52.00 86.00 144.00 D ...... 6.00 10.00 18.00 26.50 41.50 E ...... 0.00 0.00 0.00 0.00 0.00

[Revise redesignated 16.0 to read as 16.0 REGISTERED MAIL that value as shown in Exhibit 16.0. Any follows:] article sent as registered mail is insured, The mailer must declare the full value except that the mailer may elect not to of the article at the time of mailing and insure articles valued up to and must pay the appropriate fee based on including $100.

EXHIBIT 16.0.ÐREGISTRY FEES

Declared value (dollars) Fee (in addition to postage)

(Without Insurance): 0.00 to 100.00 ...... $ 4.85 (With Insurance): 0.00 to 100.00 ...... 4.95 100.01 to 500.00 ...... 5.40 500.01 to 1,000.00 ...... 5.85 1,000.01 to 2,000.00 ...... 6.30 2,000.01 to 3,000.00 ...... 6.75 3,000.01 to 4,000.00 ...... 7.20 4,000.01 to 5,000.00 ...... 7.65 5,000.01 to 6,000.00 ...... 8.10 6,000.01 to 7,000.00 ...... 8.55 7,000.01 to 8,000.00 ...... 9.00 8,000.01 to 9,000.00 ...... 9.45 9,000.01 to 10,000.00 ...... 9.90 10,000.01 to 11,000.00 ...... 10.35 11,000.01 to 12,000.00 ...... 10.80 12,000.01 to 13,000.00 ...... 11.25 13,000.01 to 14,000.00 ...... 11.70 14,000.01 to 15,000.00 ...... 12.15 15,000.01 to 16,000.00 ...... 12.60 16,000.01 to 17,000.00 ...... 13.05 17,000.01 to 18,000.00 ...... 13.50 18,000.01 to 19,000.00 ...... 13.95 19,000.01 to 20,000.00 ...... 14.40 20,000.01 to 21,000.00 ...... 14.85 21,000.01 to 22,000.00 ...... 15.30 22,000.01 to 23,000.00 ...... 15.75 23,000.01 to 24,000.00 ...... 16.20 24,000.01 to 25,000.00 ...... 16.65 (Additional fees for articles valued over $25,000 are for handling only.) 25,000.01 to 1,000,000.00 ...... $16.65 plus handling charge of $0.45 per $1,000 or fraction over first $25,000. 1,000,000.01 to 15,000,000.00 ...... $455.40 plus handling charge of $0.45 per $1,000 or fraction over first $1,000,000. Over 15,000,000.00 ...... $6,755.40 plus additional charges may be made based on weight, space, and value.

Registered mail maximum insurance liability: $25,000.00.

17.0 RESTRICTED DELIVERY Type Fee 19.0 RETURN RECEIPT FOR MERCHANDISE [No change to redesignated 17.0.] Requested at time of mailing show- [Revise redesignated 18.0 to read as ing to whom, signature, date, and Fee, in addition to postage and other follows:] addressee's address (if different) $1.10 fees, per mailpiece: Requested after mailing showing 18.0 RETURN RECEIPT only to whom and date delivered .. 6.60 Type Fee Fee, in addition to postage and other [Revise redesignated 19.0 to read as Showing to whom, signature, date, fees, per mailpiece: and addressee's address (if dif- follows:] ferent) ...... $1.20 26096 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

Type Fee d. Reasonable costs incurred (4) Catastrophic loss for multiple duplicating documents such as: Express Mail items, such as a major fire, Delivery record ...... 6.60 * * * * * limited to $5,000, regardless of the number of Express Mail items, or the 20.0 SPECIAL HANDLING 2.12 Payable Express Mail Claims identity or number of customers [Revise 2.12 to read as follows:] involved. Each claim resulting from a [No change to 20.0.] In addition to the payable claims in catastrophic loss first is adjudicated S SPECIAL SERVICES 2.11, the following are payable for individually. If the preliminary Express Mail: S000 Miscellaneous Services adjudication exceeds $5,000, the a. For Express Mail insurance, percentage of the sum represented by S010 Indemnity Claims nonnegotiable documents are insured each individual settlement is applied to against loss, damage, or rifling while in * * * * * the $5,000 to determine each claimant’s transit. Coverage is limited to $500 per pro rata share of the final settlement, not 2.0 GENERAL FILING piece (the unit on which postage is to exceed $500 per piece. INSTRUCTIONS paid), subject to a maximum limit per b. Merchandise insurance coverage is * * * * * occurrence as provided in 2.12a(4). provided against loss, damage, or rifling Claims for document reconstruction and is limited to $500. (Additional 2.5 Evidence of Insurance insurance must be supported by a insurance, up to a maximum liability of [Revise 2.5 to read as follows:] statement of expense incurred in $5,000, may be purchased for reconstruction. For this standard, while For a claim involving insured, COD, merchandise valued at more than $500.) in transit begins when the USPS c. For negotiable items, currency, or registered, or Express Mail service, the receives custody of the insured material customer must present any of the bullion, the maximum indemnity is $15. and ends when the material is delivered * * * * * following evidence showing that the to the addressee or, if undeliverable, particular service was purchased: when the sender receives the material 2.14 Nonpayable Claims a. The original mailing receipt issued on return. Nonnegotiable documents [Amend 2.14 by revising the at the time of mailing (reproduced include audit and business records, copies are not acceptable). introductory text and 2.14r, 2.14s, and commercial papers, and such other 2.14t to read as follows:] b. The wrapper showing the names written instruments for the conduct and Indemnity is not paid for collect on and addresses of the sender and the operation of banks and banking delivery (COD), insured, or registered addressee and the proper mail institutions that have not been made service or for Express Mail in these endorsement, tag, or label showing that negotiable or cannot be negotiated or situations: the article was sent insured, COD, converted into cash without forgery. registered with postal insurance, or * * * * * Nonnegotiable documents can be in r. Negotiable items (defined as Express Mail. If only the wrapper is hard copy, disk, tape, microfilm, or instruments that can be converted to submitted, indemnity can be limited to other forms of data storage. Articles cash without resort to forgery), $100 for insured, $50 for COD, $100 for such as artwork, collector or antique currency, or bullion valued in total at registered mail, and $500 for Express items, books, pamphlets, readers proofs, more than $15 per shipment sent by Mail. repro proofs, separation negatives, Express Mail, except under 2.12c. engineering drawings, blueprints, * * * * * s. Consequential loss of Express Mail circulars, advertisements, film, 2.9 Proof of Loss claimed, except under 2.12a(3). negatives, and photographs are t. Nonmailable items, prohibited [Revise 2.9 to read as follows:] considered merchandise, not items, or restricted items not prepared To file a claim, the sender must documents. Indemnity for document and mailed according to postal reconstruction is paid as follows: provide proof of loss of insured or standards, or any item packaged in such (1) For payments made (or which are registered mail. Proof of loss is not a manner that it could not have reached payable) for reasonable costs incurred in required for COD or Express Mail its destination undamaged in the normal the reconstruction of the exact duplicate claims. Any one of these documents is course of the mail. acceptable: of a lost or damaged nonnegotiable * * * * * a. A letter or statement from the document. Indemnity is not paid for the addressee, dated at least 30 days (15 cost of preparing the document mailed, S070 Mixed Classes or for the mailer’s time in preparing the days for registered mail) after the date 1.0 BASIC INFORMATION that the article was mailed, reporting document mailed or reconstructed. that the addressee did not receive the Except for the per page copying cost, [Revise 1.1 to read as follows:] article. The statement or a copy of it indemnity is not paid for documents if For a Priority Mail drop shipment, must be attached to the claim. copies of the lost document are enclosed First-Class Mail may be sent available or if they could have been certified; enclosed Standard Mail may * * * * * made before mailing. be sent special handling. Enclosed mail, 2.11 Payable Claim (2) Reasonable reconstruction regardless of class, may not be sent expenses incurred or obligated between registered, insured, or collect on [Amend 2.11 by revising 2.11d to read the time of guaranteed or scheduled delivery (COD). No special services may as follows:] delivery and actual delivery. be given to the Priority Mail segment of Insurance for loss or damage to (3) Loss sustained by the use of funds the drop shipment. insured, registered, or COD mail within to maintain cash balances during the [Revise the heading and text of 1.2 to the amount covered by the fee paid or period of document reconstruction read as follows:] within the indemnity limits for Express (based on the applicable Federal Mail explained in 2.12 is payable for the Reserve discount rate). The period 1.2 Special Handling following: begins at the scheduled delivery time A combination mailpiece sent as a * * * * * and may not exceed 15 days. Standard Mail parcel may be sent using Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26097 special handling; only one special Standard Mail). The enclosed mail may 2.0 MAILING handling fee applies to the parcel. not be sent collect on delivery (COD), * * * * * * * * * * insured, or registered. For Express Mail indemnity coverage, the content of each [Amend 2.5 by revising 2.5b and 2.5c S500 Special Services for Express Mail Express Mail pouch is considered one to read as follows:] 1.0 AVAILABLE SERVICES mailpiece. 2.5 Procedure * * * * * S900 Special Postal Services A mailer of certified mail must: S910 Security and Accountability 1.5 Insurance and Indemnity * * * * * [Amend 1.5 by removing current 1.5a, S911 Registered Mail b. If a return receipt is requested, 1.5d, and 1.5e and redesignating and 1.0 BASIC INFORMATION: check the block on the mailing receipt revising current 1.5b as 1.5a, current to show the fee. Near the certified mail [Revise 1.1 to read as follows:] 1.5c as 1.5b, current 1.5f as 1.5c, and endorsement on the address side, add current 1.5g as 1.5d to read as follows:] 1.1 Description the endorsement ‘‘Return Receipt Express Mail is insured against loss, Registered mail is the most secure Requested.’’ Enter the certified mail damage, or rifling, subject to these service that the USPS offers. It number on the return receipt card, standards: incorporates a system of receipts to address it to himself or herself, and a. Insurance coverage for Express Mail monitor the movement of the mail from attach it to the back of a small envelope drop shipment ends on receipt at the the point of acceptance to delivery. or on the front of a package or large destination postal facility. envelope, if the card does not cover the b. All Express Mail signed for by the Registered mail service provides the sender with a mailing receipt, and a address. Enter the name and delivery addressee, the addressee’s agent, or the address on the reverse of the return delivery employee constitutes a valid delivery record is kept at the post office of address. receipt to show where the receipt is to delivery, and no indemnity for loss is be sent. When a return receipt is * * * * * paid. A waiver of signature may not be requested, a complete return address used for Express Mail COD or Express 2.0 FEES AND LIABILITY (sender’s name and delivery address) is Mail with additional insurance. required on the mailpiece. The name c. Merchandise insurance coverage is * * * * * [Remove current 2.4 and redesignate and delivery address entered on the provided against loss, damage, or rifling reverse of the return receipt do not have and is limited to $500. (Additional current 2.5 as 2.4, current 2.6 as 2.5, current 2.7 as 2.6, and current 2.8 as to match the sender’s name and return insurance under 1.6 may be purchased, address on the mailpiece. up to a maximum liability of $5,000, for 2.7; revise 2.3 and redesignated 2.4 to merchandise valued at more than $500.) read as follows:] c. Affix to the envelope enough postage to pay for the certified mail fee Nonnegotiable documents are insured 2.3 Postal Insurance against loss, damage, or rifling, up to and First-Class Mail rate and, if Postal insurance is provided for $500 per piece, subject to the maximum requested, the return receipt fee. articles valued at more than $100, up to limit per occurrence as defined in S010. * * * * * a maximum insured value of $25,000, d. Additional terms, coverage, and and is included in the fee. For articles S913 Insured Mail procedures of indemnity claims are in valued at $100 or less, postal insurance S010. may be purchased by the sender at the 1.0 BASIC INFORMATION [Add new 1.6 to read as follows:] time of mailing, subject to the standards [Revise 1.1 and 1.5 to read as follows:] 1.6 Additional Insurance for registered mail and payment of the 1.1 Description Additional insurance, up to a corresponding fee. maximum coverage of $5,000, may be 2.4 Refund Insured mail provides up to $5,000 purchased for merchandise valued at A fee for registered mail is not indemnity coverage for a lost, rifled, or more than $500 sent by Express Mail. refunded after the USPS accepts the damaged article, subject to the standards The insurance fee is entered in the block mail even if the sender later withdraws for the service and payment of the marked ‘‘Insurance’’ on the mailing the mail under 3.9. A fee for return applicable fee. No record of insured label. If the label does not contain this receipt service or restricted delivery mail is kept at the office of mailing. specific block, the mailer uses the service is not refunded unless the USPS Insured mail service provides the sender ‘‘COD’’ block by crossing out ‘‘COD,’’ fails to provide the service. The sender with a mailing receipt. For mail insured writing ‘‘INS’’ to the right, and entering must present the registered mail receipt for more than $50, a delivery record is the fee for the applicable coverage. showing payment for these services. kept at the post office of address. Coverage is limited to the actual value * * * * * Insured mail is dispatched and handled of the contents, regardless of the fee in transit as ordinary mail. paid, or the highest insurance value S912 Certified Mail * * * * * increment for which the fee is fully paid, whichever is lower. If a waiver of 1.0 BASIC INFORMATION 1.5 Additional Services signature is requested, additional * * * * * insurance coverage is void. [Revise 1.2 to read as follows:] Subject to applicable standards and fees, special handling, parcel airlift, and * * * * * 1.2 Eligible Matter [Revise 3.0 to read as follows:] merchandise return services may also be Only mailable matter on which used with insured mail. Restricted 3.0 EXPRESS MAIL DROP SHIPMENT postage is paid at a First-Class Mail rate delivery service and return receipt Mail enclosed in an Express Mail (including Priority Mail) may be service (Form 3811) may be obtained for drop shipment may be sent certified (if accepted as certified mail. parcels insured for more than $50. First-Class Mail) or special handling (if * * * * * * * * * * 26098 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

S915 Return Receipt requested after mailing, and restricted surcharge applies to certain categories of delivery service is not available. items mailed at Parcel Post inter-BMC 1.0 BASIC INFORMATION rates as required in E620. [Revise the heading of 1.3 and text of 1.2 Availability 1.1, 1.2, and 1.3 to read as follows:] The service is available only for 1.2 Availability merchandise sent at the postage rates for 1.1 Description Special handling service is available Priority Mail, Single-Piece Standard only for Single-Piece Standard Mail, Return receipt service provides a Mail, Parcel Post, Bound Printed Matter, Parcel Post, Bound Printed Matter, mailer with evidence of delivery. A Special Standard Mail, or Library Mail. Special Standard Mail, and Library return receipt also supplies the This service may not be used on Mail. recipient’s actual delivery address if it international mail. is different from the address used by the * * * * * sender. A return receipt may be 1.3 Additional Services 1.5 Fee and Postage requested before or after mailing. Special handling is available for Single-Piece Standard Mail, Parcel Post, The applicable special handling fee 1.2 Availability Bound Printed Matter, Special Standard must be paid in addition to postage for The service is available only for Mail, and Library Mail, subject to each addressed piece for which special Express Mail and mail sent as certified, payment of the applicable fee. handling service is desired. Except for collect on delivery (COD), insured for official mail, the special handling fee more than $50, or registered mail. After 1.4 Endorsement must be paid at the time of mailing. For delivery, the USPS mails the return Form 3804 is used for return receipt official mail, the special handling fee is receipt to the sender. for merchandise service. The form and collected under established the endorsement ‘‘Return Receipt reimbursement procedures. 1.3 Endorsement Requested’’ must be placed above the * * * * * Mail for which return receipt service address and to the right of the return 2.0 PARCEL AIRLIFT (PAL) is requested must be endorsed ‘‘Return address. Receipt Requested’’ above the delivery * * * * * * * * * * address and to the right of the return [Redesignate current 3.3 and 3.4 as address. 2.0 MAILING 2.4 and 2.5, respectively; add new 2.3 to * * * * * [In 2.2d, remove ‘‘special delivery or’’; read as follows:] no other change to text.] S917 Return Receipt for Merchandise 2.3 Additional Services * * * * * 1.0 BASIC INFORMATION The following services are available if S930 Handling [Revise the heading of 1.4 and text of the applicable standards for the services [Remove current 1.0; renumber 2.0 1.1, 1.2, 1.3, and 1.4 to read as follows:] are met and the additional service fees and 3.0 as 1.0 and 2.0, respectively, and paid: 1.1 Description revise redesignated 1.1, 1.2, and 1.5 to a. Certificate of mailing. Return receipt for merchandise read as follows:] b. Insured mail. service is a form of return receipt 1.0 SPECIAL HANDLING c. Restricted delivery (if insured for service that provides the sender with a more than $50). 1.1 Description mailing receipt and a return receipt. A d. Return receipt (if insured for more delivery record is kept at the post office Special handling service provides than $50). of address, but no record is kept at the preferential handling, but not e. Special handling. office of mailing. A return receipt for preferential delivery, to the extent * * * * * merchandise also supplies the practicable in dispatch and recipient’s actual delivery address if it transportation. The service does not An appropriate amendment to 39 CFR is different from the address used by the itself insure the article against loss or 111.3 to reflect these changes will be sender. Mail using this service is damage. Special handling service is published. dispatched and handled in transit as mandatory for material that requires Stanley F. Mires, ordinary mail. This service does not extra care in handling, transportation, Chief Counsel, Legislative. include insurance coverage. A return and delivery. Unless the special [FR Doc. 97–12209 Filed 5–7–97; 9:57 am] receipt for merchandise may not be handling fee is paid, a nonmachinable BILLING CODE 7710±12±P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26099

POSTAL SERVICE reform proposals. The PRC designated implementation date of June 8, 1997, for the filing as Docket No. MC96–3. The those fee and classification changes to Special Services Reform; Changes in PRC published a notice of the filing, take effect. A copy of the attachments to Domestic Mail Classifications and Fees with a description of the Postal that Decision, setting forth the Service’s proposals, on June 21, 1996, in AGENCY: Postal Service. classification and fee changes approved the Federal Register (61 FR 31968– by the Governors, is set forth below. ACTION: Notice of implementation of 31979). changes to the Domestic Mail On April 2, 1997, pursuant to its Also on May 5, 1997, the Board of Classification Schedule and authority under 39 U.S.C. 3624, the PRC Governors of the Postal Service, accompanying fee changes. issued its Recommended Decision on pursuant to their authority under 39 U.S.C. 3625(f), determined to make the SUMMARY: the Postal Service’s Request to the This notice sets forth the fee and classification changes approved changes to the Domestic Mail Governors of the Postal Service. The by the Governors effective at 12:01 a.m. Classification Schedule and the PRC recommended most of the on June 8, 1997 (Resolution No. 97–7). accompanying fee changes to be proposed mail classification changes implemented as a result of the May 5, and some of the fee changes requested In accordance with the Decision of the 1997 Decision of the Governors of the by the Postal Service. Governors and Resolution No. 97–7, the United States Postal Service on Special Pursuant to 39 U.S.C. 3625, the Postal Service hereby gives notice that Governors of the United States Postal Services Fees and Classifications. the classification and fee changes set Service acted on the PRC’s forth below will become effective at EFFECTIVE DATE: June 8, 1997. recommendations on May 5, 1997. FOR FURTHER INFORMATION CONTACT: Decision of the Governors of the United 12:01 a.m. on June 8, 1997. David Rubin, (202) 268–2986. States Postal Service on the Implementing regulations also become SUPPLEMENTARY INFORMATION: On June 7, Recommended Decision of the Postal effective at that time, as noted elsewhere 1996, pursuant to its authority under 39 Rate Commission on Special Services in this issue. U.S.C. 3621, et seq., the Postal Service Fees and Classifications, Docket No. Stanley F. Mires, filed with the Postal Rate Commission MC96–3. The Governors determined to Chief Counsel, Legislative. (PRC) a request for a recommended approve the PRC’s recommendations, decision on several special service and the Board of Governors set an BILLING CODE 7710±12±P 26100 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26101 26102 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26103 26104 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26105 26106 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26107 26108 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26109 26110 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26111 26112 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26113 26114 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26115 26116 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26117 26118 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26119 26120 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26121 26122 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26123 26124 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26125 26126 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26127 26128 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26129 26130 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26131 26132 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26133 26134 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26135 26136 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26137

[FR Doc. 97–12208 Filed 5–7–97; 9:57 am] BILLING CODE 7710±12±C federal register May 12,1997 Monday Equipment, andPoolHeaters;FinalRule Furnaces/Boilers, VentedHomeHeating Consumer Products:TestProceduresfor Energy ConservationProgramfor 10 CFRPart430 Renewable Energy Office ofEnergyEfficiencyand Energy Department of Part IV 26139 26140 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

DEPARTMENT OF ENERGY Tullie Circle, NE, Atlanta, GA 30329, consumer household products currently (1–800–5–ASHRAE). Copies of the ANSI subject to this Program (referred to Office of Energy Efficiency and Standard Z21.56–1994 can be obtained hereinafter as ‘‘covered products’’) Renewable Energy from the ANSI, Inc., 11 West 42nd include furnaces/boilers, vented home Street, New York, N.Y. 10036, (212) heating equipment, and pool heaters, 10 CFR Part 430 642–4936. the subjects of today’s notice. [Docket No. EE±RM±93±501] Under the EPCA, the Program consists FOR FURTHER INFORMATION CONTACT: essentially of three parts: Testing, RIN 1904±AA45 Cyrus H. Nasseri, U.S. Department of labeling, and Federal energy conservation standards. The Energy Conservation Program for Energy, Office of Energy Efficiency Department, in consultation with the Consumer Products: Test Procedures and Renewable Energy, Mail Station, National Institute of Standards and for Furnaces/Boilers, Vented Home EE–43, 1000 Independence Avenue, Technology (NIST), is required to Heating Equipment, and Pool Heaters SW, Washington, D.C. 20585–0121, (202) 586–9142, FAX (202) 586–4617. amend or establish new test procedures AGENCY: Office of Energy Efficiency and Eugene Margolis, Esq., U.S. Department as appropriate for each of the covered Renewable Energy, Department of of Energy, Office of General Counsel, products. EPCA section 323, 42 U.S.C. Energy. Mail Station, GC–72, 1000 6293. Test procedures appear at 10 CFR ACTION: Final rule. Independence Avenue, SW, part 430, subpart B. The purpose of the Washington, D.C. 20585–0103, (202) test procedures is to produce test results SUMMARY: The Energy Policy and 586–9507. that measure energy efficiency, energy Conservation Act, as amended, requires use, or estimated annual operating cost the Department of Energy (DOE or the SUPPLEMENTARY INFORMATION: of a covered product during a Department) to administer an energy I. Introduction representative average use cycle or conservation program for certain major A. Authority period of use. The procedures must not household appliances and commercial B. Background be unduly burdensome to conduct. equipment. Among other program II. Discussion of Comments EPCA section 323(b)(3), 42 U.S.C. 6293 elements, the Act requires that standard A. Furnaces (b)(3). A test procedure is not required B. Vented Home Heating Equipment if DOE determines by rule that one methods of testing be prescribed for C. Pool Heaters each covered product. Today’s final rule cannot be developed. EPCA section III. Procedural Requirements 323(d)(1), 42 U.S.C. 6293(d)(1). amends the test procedures for furnaces A. Review Under the National and boilers, vented home heating Environmental Policy Act of 1969 One hundred and eighty days after a equipment, and pool heaters. B. Review Under Executive Order 12866, test procedure for a product is adopted, no manufacturer may represent the EFFECTIVE DATE: This rule is effective ‘‘Regulatory Planning and Review’’ energy consumption of, or the cost of November 10, 1997. The incorporation C. Review Under the Regulatory Flexibility energy consumed by, the product, by reference of certain publications Act D. Review Under Executive Order 12612, except as reflected in tests conducted listed in the regulations is approved by ‘‘Federalism’’ according to the DOE procedure. EPCA the Director of the Federal Register as of E. Review Under Section 32 of the Federal section 323(c)(2), 42 U.S.C. 6293(c)(2). November 10, 1997. Energy Administration Act of 1974 However, the 180-day period referred to ADDRESSES: The Department is F. Review Under Executive Order 12630, in section 323(c)(2) may be extended for incorporating by reference test ‘‘Governmental Actions and Interference With Constitutionally Protected Property up to an additional 180 days if the standards from the American Society of Secretary determines that the Heating, Refrigerating and Air- Rights’’ G. Review Under the Paperwork Reduction requirements of section 323(c)(2) would Conditioning Engineers, Inc. (ASHRAE) Act of 1980 impose an undue burden. EPCA section and the American National Standards H. Review Under Executive Order 12988, 323(c)(3), 42 U.S.C. 6293 (c)(3). Institute, Inc. (ANSI). These standards ‘‘Civil Justice Reform’’ Section 323(e) of the Act requires are listed below: I. Unfunded Mandates Reform Act Review DOE to determine to what extent, if any, American National Standards J. Review Under Small Business Regulatory a proposed test procedure would alter Institute/American Society of Heating, Enforcement Fairness Act of 1996 the measured energy efficiency or Refrigerating, and Air-Conditioning I. Introduction measured energy use of any covered Engineers Standard 103–1993, product as determined under the ‘‘Methods of Testing for Annual Fuel A. Authority existing test procedure. If DOE Utilization Efficiency of Residential Part B of Title III of the Energy Policy determines that an amended test Central Furnaces and Boilers,’’ and and Conservation Act, Pub. L. 94–163, procedure would alter the measured American National Standards Institute as amended by the National Energy efficiency or measured energy use of a Standard Z21.56–1994, ‘‘Gas-Fired Pool Conservation Policy Act (NECPA) covered product, DOE is required to Heaters.’’ Pub. L. 95–619, the National Appliance amend the related energy conservation Copies of these standards may be Energy Conservation Act (NAECA) of standard accordingly. In determining viewed at the Department of Energy 1987, Pub. L. 100–12, the National the amended standard, DOE is required Freedom of Information Reading Room, Appliance Energy Conservation to measure the energy efficiency or Forrestal Building, Room 1E–190, 1000 Amendments of 1988 (NAECA 1988), energy use of representative samples of Independence Avenue, SW., Pub. L. 100–357 and the Energy Policy covered products that minimally Washington, DC 20585, (202) 586–6020 Act of 1992 (EPACT), Pub. L. 102–486, comply with the existing standard. The between the hours of 9 a.m. and 4 p.m., created the Energy Conservation average efficiency of these Monday through Friday, except Federal Program for Consumer Products other representative samples, tested using the holidays. than Automobiles (Program).1 The 13 amended test procedure, constitutes the Copies of the ANSI/ASHRAE Standard 103–1993 can be obtained 1 Part B of Title III of the Energy Policy and final rule as the ‘‘Act’’ or EPCA. Part B of Title III from ASHRAE Publication Sales, 1791 Conservation Act , as amended, is referred to in this is codified at 42 U.S.C. 6291–6309. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26141 amended standard. EPCA section procedures to address these issues. 58 opening and power vented units 323(e)(2), 42 U.S.C. 6293(e)(2). FR 44538. A public hearing was held in employing post purge during the off- Washington, DC on January 5, 1994. cycle. In addition, however, today’s B. Background After reviewing the comments notice incorporates into DOE’s test On March 28, 1984, the Department presented at the public hearing on procedure provisions that are published in the Federal Register a final January 5, 1994, and additional written modifications of certain sections of rule, hereinafter referred to as the 1984 comments submitted following the ANSI/ASHRAE Standard 103–1993. Final Rule, amending the test public hearing, the Department decided Those modifications include the limit procedures for furnaces, vented home to reopen the public comment period to on air circulation blower delay time at heating equipment, and unvented home solicit additional comments on one burner shut-off for furnaces with heating equipment. 49 FR 12148. For subject of particular concern to unvarying control on blower delay time, furnaces, the 1984 Final Rule referenced commenters in the 1993 Proposed deletion of the insulation requirement the ANSI/ASHRAE Standard 103–1982 Rule—the application of a on the internal vent pipe of downflow entitled ‘‘Methods of Testing for Heating multiplication factor to the auxiliary furnace during the cool-down and heat- Seasonal Efficiency of Central Furnaces electricity consumption of a fossil- up tests, deletion of the requirement for and Boilers.’’ In addition, it prescribed fueled appliance. The proposed the sealing of cabinet ventilation furnace test procedures for systems and multiplication factor in the 1993 openings during the jacket loss issues that were not adequately covered Proposed Rule consisted of the ratio of measurement, longer allowed free post by the ANSI/ASHRAE Standard 103– the electrical ‘‘source energy’’ (the purge time for power vented units 1982. Those included, for example, amount of energy used in producing the employing post purge, and input provisions for modulating and electricity consumed by the appliance) requirement on interrupted ignition condensing furnaces and boilers. to the electrical ‘‘site energy’’ (the device. In addition, today’s final rule Particularly impacted were units with amount of electricity consumed by the provides procedures for the calculation thermal stack dampers. Other deviations appliance). The multiplication factor of the annual fossil fuel and auxiliary between the 1984 Final Rule and ANSI/ was used in the two proposed new electrical energy consumptions. ASHRAE Standard 103–1982 related to energy descriptors, named Energy (2) DOE is amending the test oversize factors, furnaces without draft Factor (EF) and Annual Efficiency (AE), procedure for vented home heating relief or direct exhaust system, hot proposed by the Department to include equipment by, first, including modified water boiler minimum return (inlet) the auxiliary electrical energy calculation procedures for the weighted water temperature and minimum water consumption by fossil-fueled average steady-state efficiency and temperature rise, pump delay on boiler appliances. Annual Fuel Utilization Efficiency controls, an improved method for the On January 20, 1995, the Department (AFUE) for certain manually-controlled determination of the S/F factor (the ratio published a Federal Register notice, heaters, and secondly, adding a of stack gas mass flow rate to flue gas reopening the comment period to seek procedure for calculating the annual mass flow rate) for furnaces and boilers, comments on a revision of the proposed energy consumption of fossil fuel and and the option of an assigned jacket loss definition of the multiplication factor. auxiliary electrical energy for vented value instead of actual measurement. The new proposed definition was the home heating equipment. The Department originally published ratio of the cost of electricity to the cost (3) DOE is amending the test a test procedure for vented home of fossil fuel to the consumer. 60 FR procedure for pool heaters by updating heating equipment on May 2, 1978. 43 4348. The 30-day public comment the referenced ANSI standard for pool FR 20182. The Department amended period was extended by an additional heaters from ANSI Z21.56–1986 to ANSI this test procedure in the 1984 Final 30 days at the request of commenters Z21.56–1994. DOE is also adding a Rule, to include a simplified vented and was closed on March 21, 1995. procedure for calculating the annual heater test procedure for heaters with Today’s notice amends the test energy consumption of fossil fuel and modulating controls, manually procedures for furnaces and boilers, auxiliary electrical energy for pool controlled vented heaters, vented vented home heating equipment, and heaters and a pool heater heating heaters equipped with thermal stack pool heaters as follows: seasonal efficiency descriptor that takes dampers, and floor furnaces. 49 FR (1) DOE is amending the test into account the energy consumption by 12169. procedure for furnaces and boilers first, The Department published the pool to incorporate provisions contained in the pilot light during the standby period heater test procedure final rule on test procedure waivers granted to of the pool heating season. February 7, 1989, referencing ANSI different manufacturers from 1985 to II. Discussion of Comments Standard Z21.56–1986 for gas pool 1996 and secondly, to include test heaters and extending the test procedure procedures for new product designs. To A. Furnaces to cover oil-fired pool heaters. 54 FR accomplish this, the ANSI/ASHRAE In general, the comments received 6076. Standard 103–1993 is incorporated by were supportive of the goals of the Since 1984, through cooperative reference into the test procedure, in the proposed amendments to incorporate efforts with the furnace industry and place of ANSI/ASHRAE 103–1988 that provisions contained in waivers through the DOE test procedure waiver was referenced in the 1993 proposed previously granted, to include test process, DOE has become aware of rule. (See below at II. a. 23. ‘‘ANSI/ procedures for new product designs, several additional issues regarding ASHRAE Standard 103–1993.’’) This and to capture the electrical furnace and vented home heating incorporation establishes revised test consumption of furnaces. However, the equipment test procedures. On August procedures for the following furnaces comments by various organizations 23, 1993, DOE published in the Federal and features: Atmospheric furnaces with presented disagreements with DOE’s Register a proposed rule and notice of burner air inlet dampers or flue proposal on the effect of some of the public hearing, hereinafter referred to as dampers; the jacket loss measurement amendments on the measured AFUE. the 1993 Proposed Rule, to amend the for downflow furnaces; and furnaces Additionally, many comments were furnace, vented home heating and boilers employing electro- received on the proposed formulation of equipment, and pool heater test mechanical stack dampers with delayed energy descriptors to capture electrical 26142 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations consumption, on both the 1993 GAMA suggested further study on the delay time of 20 seconds during the Proposed Rule and the January 20, 1995, third category before implementation. heat-up test. This is achieved by Federal Register notice. Consolidated Industries, Carrier bypassing the electronic control, if the In its testimony and written Corp., and Lennox Industries supported designed non-adjustable, unvarying statement, the Gas Appliance GAMA’s statement. (Consolidated, No. delay time is less than 20 seconds. Manufacturers Association (GAMA) 21, at 1; Carrier, No. 12, at 1; and Both GAMA and Inter-City Products classified the proposed revisions to the Lennox, Transcript, at 77). Inter-City opposed the requirement of a minimum current test procedure contained in the Products presented the same list of 20-second delay during the heat-up test 1993 Proposed Rule into three revisions regarding their potential for furnaces with designed, unvarying categories. (GAMA, No. 8, at 2).2 impact on AFUE as GAMA did. Many blower time delay at burner start-up. The first category comprised changes of the other commenters referred to Amana Refrigeration, Inc., stated that that GAMA states would not lower the GAMA’s classification of the three DOE’s reason of avoiding a cold draft in measured AFUE of most existing categories of proposed revisions to the the occupied zone is an issue of furnace and boiler models, including DOE test procedure in their oral and comfort, not energy efficiency, and that written statements and these categories changes to bring the test procedures in DOE should let the competitive are referred to in the discussion of line with waivers previously granted. marketplace design products that fulfill GAMA stated its support for the comments below. The following discussion addresses consumers’ desires. (Amana, No. 2, at immediate implementation of most of 1). Inter-City Products stated that DOE the first category of changes. the comments received on the proposed rule. should not define what occupant The second category included comfort is, and as advances in heat changes that GAMA states would lower 1. Furnaces and Boilers With Small Air exchanger technology come about, low the measured AFUE of most existing Passage in the Flue mass heat exchanger with very short furnace and boiler models. Such a In the 1993 Proposed Rule, DOE heat-up characteristics will evolve change, GAMA claimed, would require proposed to change the limiting value of allowing short on-time delays. Inter-City the Department to amend the furnace 10 percent from a flow rate ratio to an Products also stated that mandating and boiler efficiency standards because area ratio. Both GAMA and Inter-City time delays as to occupant comfort is to of the impact on existing models that Products supported the proposed prescribe the design of a furnace and marginally meet the standard. revision. (GAMA, No. 8, at 2; and Inter- would not necessarily reflect the true According to GAMA, this would cause City, No. 7, at 4). No other commenters operation and efficiency of current or confusion in the marketplace, offered comment on this issue. The future furnace designs. (Inter-City, No. accustomed as it is to the current Department is adopting the change in 7, at 2). GAMA and York International standard, a minimum AFUE of 78 sections 8.2.1.2.2 and 8.3.1.2 of ANSI/ Corp. gave similar reasons as Inter-City percent for warm air furnaces. ASHRAE Standard 103–1993 in today’s Products for opposing the 20-second Additionally, GAMA asserted that a final rule. requirement, and stated that DOE is reduction in the measured AFUE would acting outside its authority in factoring result in many units no longer 2. Air Circulation Blower Delay at occupant comfort into the efficiency test qualifying for utility rebate programs Burner Ignition procedure. Further they stated that it is that require an AFUE of at least 80 The 1993 Proposed Rule specified a for the marketplace, not DOE, to percent. GAMA stated the view that minimum blower delay time of 20 discourage the sale of furnaces that do these changes would place a heavy seconds during the heat-up test for not provide a reasonable level of burden on manufacturers and requested furnaces designed with non-adjustable, occupant comfort. In addition, the a delay in the implementation of the unvarying delay time that is less than 20 complexity of the electronic controls second category of changes until any seconds. The current furnace test used in today’s furnaces makes it very revised efficiency standards went into procedure requires a 1.5-minute delay difficult for a field installer or repairer effect. GAMA puts the following between the ignition of the burner and to modify an unvarying blower time changes in this category: Revised the starting of the blower. delay. (GAMA, No. 8, at 16; and York, calculation for the effectiveness of Manufacturers have requested and been No. 10, at 3.) Carrier Corp. and electro-mechanical stack dampers; granted waivers from this requirement Consolidated Industries both supported power vented systems employing post because of an unvarying time delay GAMA’s statement. (Carrier No. 12, at 1; purge after burner shut-off; sealing of designed into their specific models. The and Consolidated, No. 21, at 1.) Mr. cabinet ventilation openings during designed time delay granted in the Woodworth stated that comfort should jacket loss test; insulation of horizontal waivers varied from 20 seconds to 66 not be the basis for provisions being mounted external draft diverters; seconds among the specific models with included in a laboratory test procedure. insulation of the flue collector box for 30 seconds as the predominant time Further, he suggested that the procedure power vented units; insulation of the delay. The manufacturers claimed should be changed to agree with section internal flue pipe for downflow furnaces increases in the AFUE value of from 0.4 9.6.1 of ANSI/ASHRAE Standard 103– during heat-up and cool-down tests; to 2.0 percentage points if the designed 1993, that does not include the 20- minimum values for the draft factor DP time delays were used in the rating test second requirement. (Woodworth, No. and DF; measurement of water pump instead of the 1.5 minutes specified in 20, at 5). energy consumption; and test the current test procedure. The In the current test procedure for requirement for modulating boilers. Department’s granting of the waivers furnaces, the 1.5-minute fan delay at The third category was the addition of permitted those manufacturers to test burner ignition was specified on the the proposed AE energy descriptor. units with blowers having unvarying basis of obtaining a low overall cost of time delay designed into them. In the 2 combined fossil fuel and auxiliary Written comments on the 1993 Proposed Rule 1993 Proposed Rule, the Department 3 were assigned docket numbers and are numbered electrical energy consumption. This consecutively. Comments presented at the January proposed test procedures to allow 5, 1994, public hearing are contained in the testing with an unvarying time delay, 3 Unpublished National Bureau of Standards transcript. but also proposed a minimum blower report, Joseph Chi, ‘‘A Note on Effect of HX Weights Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26143 was balanced with the historically provide the same blower delay time that draft and a higher rating that fail to accepted industry practice in furnace is specified for units with adjustable achieve a reasonable level of occupant operation of providing occupant blower control, shall be tested with the comfort. (CEC, No. 25, at 1). comfort. In granting the waiver requests, blower control bypassed, and the blower In the current test procedure for the Department recognized the advances manually controlled to give the delay furnaces, the requirement for maximum made by manufacturers on lighter time specified during the cool-down fan delay time after burner shut-off was weight heat exchanger designs with fan- test. This delay time is three minutes for specified on the basis of obtaining an assisted combustion systems over the non-condensing, or 1.5 minutes for overall low cost of combined fossil fuel past decade. These advances permitted condensing furnaces, or 40°F and auxiliary electrical energy a faster heat-up of the heat exchanger temperature difference, whichever gives consumption balanced with the and a shorter fan delay time while still the longer time delay. historically accepted industry practice achieving the desired low overall energy During the cool-down test, the extant in furnace operation to provide consumption. In the 1993 proposed test procedure allows a delay in blower occupant comfort. The after burner shut- rule, the Department believed that there shut-off of three minutes (1.5 minutes off is defined as three minutes, or 1.5 is a limit to reducing the weight of the for condensing furnaces) or until the minutes for condensing furnaces, after heat exchanger and, in turn, a limit to supply air temperature drops to a value the burner shuts off, or until the supply the achievable minimum fan delay time. of 40°F above the inlet air temperature, air temperature drops to a value of 40°F This is evident from the fan delay times whichever gives the longer time delay. above the inlet air temperature, in the waiver requests, that were mostly ANSI/ASHRAE Standard 103–1993 whichever gives a longer fan-on time. greater than or equal to 30 seconds. It provided an additional exception The Department recognized the heat is possible, however, that as new (section 9.5.1.2.2) that for a furnace capacity of a heavier mass heat material and technology evolve, an even without adjustable fan control, the delay exchanger in retaining a greater amount lighter weight heat exchanger with shall be as designed. of heat energy. This is evidenced by the better heat transfer performance will be Both GAMA and Inter-City Products, specification in the existing test developed. Such a heat exchanger could as well as other commenters, expressed procedure of either three minutes (1.5 result in a faster furnace heat-up and opposition to the specified maximum minutes for condensing furnaces) or allow a fan delay time of less than 20 time delays for blowers with unvarying 40°F differential in plenum to return air seconds. The 20-second minimum fan time delay in the proposed test temperature, whichever gives a longer delay time might become inappropriate procedure during the cool-down test. fan-on time. The removal of the for these better-designed furnaces of the Inter-City Products stated that older or maximum fan-on time requirement future. Nevertheless, for furnaces heavier mass heat exchangers may could encourage some manufacturers to lacking such designs, the Department require more than three minutes of cool- lengthen the fan-on time after burner believes that without the minimum fan down time. They gave the same reasons shut off without an accompanying delay requirement used during the test as given in Inter-City Products’ improvement in furnace design. The for furnaces with non-adjustable, comments against blower time delay at manufacturers could do this by simply unvarying fan delay control, a burner ignition in opposing the use of changing the electronics in the manufacturer could simply modify the occupant comfort as the criterion in controller. Those furnaces would be furnace’s electronic control without any determining the maximum allowable able to obtain a slightly higher resulting improvement in its heat time delay. (Inter-City, No. 7, at 2). calculated AFUE by using a lower flue transfer performance. Thus, the GAMA gave similar reasons as Inter-City gas temperature measured at nine manufacturer would obtain a higher Products in opposing the requirement minutes after burner shut-off when the AFUE value. The Department assumes with respect to high mass heat fan runs longer. Those furnaces that consideration of consumer exchangers. Further, they gave the same however, would actually be consuming satisfaction in the long term will reasons as given in GAMA’s comments greater electrical energy than the savings prevent that practice. against blower time delay at burner in fossil fuel. This would be contrary to Based on the above reasons, the ignition in opposing the use of occupant the intent of EPCA to reduce the Department has decided to drop the comfort as a criterion in the test nation’s overall energy consumption. proposed requirement of a 20-second procedure. GAMA also pointed out the Based on the reasons given above, and minimum fan delay for furnaces difficulty of adjusting an unvarying the fact that the proposed provision designed with a non-adjustable, electronic time delay control in the does not affect the rating of any existing unvarying blower time delay during the field. (GAMA, No. 8, at 16). York furnaces, today’s final rule prescribes heat-up test. Instead, DOE is adopting International gave similar reasons as the maximum blower delay time the procedure specified in section 9.6.1 GAMA. (York International, No. 10, at criterion specified in the 1993 Proposed of ANSI/ASHRAE Standard 103–1993 in 3). Carrier Corp. and Consolidated Rule. This specification is for a furnace today’s final rule. Industries both supported GAMA’s designed with an unvarying blower time statement. (Carrier, No. 12, at 1; and delay during the cool-down test in 3. Air Circulation Blower Delay at Consolidated, No. 21, at 1). The today’s final rule. Burner Shut-off California Energy Commission (CEC) With respect to the comment by the In the 1993 Proposed Rule, DOE pointed out that the wording in section CEC, the Department agrees that the proposed a modification to the ANSI/ 8.4 of appendix N in the 1993 Proposed wording in the 1993 Proposed Rule is ASHRAE Standard 103–1988 version of Rule is misleading. It stated that the misleading. In today’s rule, therefore, the procedure now specified in section time delay criterion of 40°F temperature the wording of ANSI/ASHRAE Standard 9.5.1.2.2 of ANSI/ASHRAE Standard difference between supply air and 103–1993, section 9.5.1.2.1, which ° 103–1993. The modification requires return air for units with adjustable fan includes the 40 F temperature that a furnace, if designed with an control can be interpreted as not difference for condensing furnaces, is unvarying time delay that does not applying to condensing furnaces. Also, adopted instead. CEC also commented the time to reach the 40°F differential that for certain furnaces the 40°F on annual performance and cost of Operation of a after burner shut-off may be shorter than temperature differential could be furnace,’’ February, 1978. three minutes, resulting in both a cold reached in less than three minutes and 26144 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations thus creating a possible cold draft. The 6. Blower Compartment Heat Loss in ANSI/ASHRAE Standard 103–1993, blower time delay criterion is prescribed During Jacket Loss Test which is referenced in today’s final rule. for blowers with adjustable time delay Both GAMA and Inter-City Products 9. Tests Requirement for Modulating control in the current furnace test Units procedure. Changing the criterion supported the proposal in the 1993 would require the retesting of many Proposed Rule to exclude the surface In the 1993 Proposed Rule, DOE existing furnaces. Also, the criterion area of the blower compartment in the proposed to correct the following was agreed to by consensus of the jacket loss test. The CEC believed that discrepancy between the current DOE ASHRAE Standard Project Committee the blower compartment should not be test procedure and ANSI/ASHRAE (SPC) 103 and specified in ANSI/ considered as part of the duct system Standard 103–1988, which DOE and that the heat loss through the ASHRAE Standard 103–1993. The proposed to reference. The current DOE blower compartment should be Department sees no reason to change test procedure requires that for step measured in the jacket loss test. It stated that criterion presently. modulating units, the steady-state that if the blower compartment is efficiency test shall be conducted at In the 1993 Proposed Rule, the considered as the duct system, then the both the maximum and the reduced Department also specified an exception insulation requirement for duct systems input rates. The ANSI/ASHRAE to the delay time requirement for in building codes will apply to the Standard 103–1988 required the above furnaces that employ a single motor to compartment. The CEC believed that tests at the reduced rate only. The 1993 drive a power burner and the air this is not presently done to the furnace Proposed Rule made clear that DOE circulation blower. In that case, the cabinet in the field and, in addition, would continue to require testing at power burner and the blower would be manufacturers and others may both rates. stopped together. The current test recommend against the insulation of the Both GAMA and Inter-City Products procedure includes this exception of cabinet. (CEC, No. 25, at 2). supported the proposal for testing simultaneous start/stop operations The Department believes that for most modulating furnaces. GAMA put the during both the heat-up and the cool- furnaces, the blower compartment is in proposed correction to ANSI/ASHRAE down tests. ANSI/ASHRAE Standard the return air side of the cabinet. The Standard 103–1988 for testing 103–1993 specifically includes this surface temperature of the blower modulating boilers into the category of exception in the heat-up test but it is not compartment will be nearly the same as proposals on which it asked for delay in specified in the section for the cool- the air temperature around the implementation until revised efficiency down test. The Department considered compartment, and the heat loss from standards are adopted. (GAMA, No. 8, at it to be only an inadvertent omission in that surface to the test room air will be 4; and Inter-City, No. 7, at 4). Carrier Corp. and Consolidated Industries both ANSI/ASHRAE Standard 103–1993. negligible. The added burden of supported GAMA’s position. (Carrier, There was no comment received on this instrumenting the blower compartment No. 12, at 1; and Consolidated, No. 21, issue, and the Department is specifying, surface with thermocouples is not at 1). The Department does not agree in today’s final rule, the modification to justified. The Department is therefore with the comments that the correction is ANSI/ASHRAE Standard 103–1993. The not adopting the CEC’s suggestion of a revision to the existing DOE test Department specifies that if a single requiring some mechanism for procedure for modulating boilers. Such motor drives a power burner and the air measuring the heat loss from the blower a test is already included. Specifically, circulating blower, the power burner compartment. The Department is the conditions (at rated input or reduced and the blower shall be stopped together adopting the provision of excluding the during the cool-down test. input) under which heat-up and cool- surface area of the blower compartment down tests are to be conducted are 4. Burner Box Inlet Damper and Flue in the jacket loss test as specified in the already specified in the current DOE test Damper ANSI/ASHRAE Standard 103–1993 procedure. (See sections 3.1, 3.2, 3.4, referenced in today’s final rule. and 4.5 of appendix N to subpart B of Both GAMA and Inter-City Products 7. Revised Piping Arrangement for Hot part 430.) The proposed clarification for supported the proposal to include a Water Boilers the optional tracer gas test at rated input tracer gas test method for atmospheric or at a reduced input rate is to make furnaces with inlet or flue dampers. Both GAMA and Inter-City Products certain that the resulting measured draft (GAMA, No. 8, at 2; and Inter-City, No. supported the proposal in the 1993 factor DP value(s) would be consistent 7, at 4). There were no other comments Proposed Rule for a revised piping with the other measured quantities on this issue. The Department has arrangement for hot water boilers. when they are combined in the included this provision in today’s final (GAMA, No. 8, at 2; and Inter-City, No. calculation procedure for the off-cycle rule. 7, at 4). This was the only comment on losses. The Department believes that 5. Jacket Loss Test for Downflow this issue. The Department has adopted this clarification will have either no Furnaces this provision as specified in ANSI/ effect, or negligible effect on an ASHRAE Standard 103–1993, which is insignificant number of units. The proposal in the 1993 Proposed referenced in today’s final rule. Such a requirement was not clearly Rule to include a jacket loss test for 8. Maintaining of Draft During Off-Cycle stated in ANSI/ASHRAE Standard 103– downflow furnaces was supported by 1988, but in DOE’s view it was implicit both GAMA and Inter-City Products. Both GAMA and Inter-City Products in that standard. The Department (GAMA, No. 8, at 2; and Inter-City, No. supported the proposal to maintain draft proposed this provision in the 1993 7, at 4). These were the only comments during off-cycle for only those oil-fueled Proposed Rule only to clarify the on this issue. The Department is or power gas burner furnaces that language in the then-referenced ANSI/ adopting the proposed jacket loss test employ barometric dampers for draft ASHRAE Standard 103-1988. The procedure for downflow furnaces as control. (GAMA, No. 8, at 2; and Inter- Department has therefore adopted this specified in ANSI/ASHRAE Standard City, No. 7, at 4). This was the only provision as specified in ANSI/ASHRAE 103–1993 referenced in today’s final comment on this issue. The Department Standard 103–1993, which is referenced rule. has adopted this provision as specified in today’s final rule. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26145

10. On-Cycle Time Constant and Off- within the 30-second interval. The flow rate as a base to compute the flue Cycle Time Constant effect, however, could be large if the loss during the post purge period, the Both GAMA and Inter-City Products damper closing time delay were to be loss will be higher than it should be. supported the proposal for the on-cycle extended for a long period. Such an Energy Kinetics suggests that a tracer time constant and off-cycle time extension would take advantage of the gas option be allowed for this type of deficiency in the current procedure, system. (Energy Kinetics, No. 16, at 6). constant. (GAMA, No. 8, at 2; and Inter- where the damper is assumed to close The independent commenter, Mr. City, No. 7, at 4). The Department has instantaneously after the burner shut- John Woodworth asserted that, based on adopted this provision as specified in off. The Department has therefore, research conducted at Brookhaven ANSI/ASHRAE Standard 103–1993, adopted the revision as proposed in the National Laboratory, the post-purge which is referenced in today’s final rule. 1993 Proposed Rule (and as included in provisions are not accurate for oil-fired 11. Multiplication Factor for Jacket Loss ANSI/ASHRAE Standard 103–1993) in furnaces and boilers with relatively long for Finned Tube Boilers for Isolated today’s final rule. post purge-periods. He reasons that, to Combustion System (ICS) reduce the test burden on 13. Power Vented Systems Employing manufacturers, the provisions assume a In the 1993 Proposed Rule, DOE Post Purge After Burner Shut-Off linearly decreasing flue gas temperature proposed to use the multiplication In the 1993 Proposed Rule, the between the beginning and the end of factor of Cj=0.50. Both GAMA and Inter- maximum free post purge time was the post purge period. Thus, City Products supported the proposal specified to be five seconds for both gas- measurements at only two points are for the value of the multiplication factor and oil-fired furnaces and boilers. There required in the calculation. According for jacket loss for finned tube boilers. were seven comments on this proposal. to Mr. Woodworth, this assumption of a (GAMA, No. 8, at 3; and Inter-City, No. GAMA stated that the proposed linearly varying temperature is valid 7, at 4). The Department has adopted maximum free post purge time would only for a limited interval, since the this provision as specified in ANSI/ significantly reduce the measured AFUE temperature will eventually level off to ASHRAE Standard 103–1993, which is of most existing models, and require nearly ambient conditions over a long referenced in today’s final rule. DOE to amend the NAECA furnace and purge period. Mr. Woodworth 12. Calculation Procedure for Electro- boiler efficiency standards for existing recommends that DOE adopt the Mechanical Stack Dampers models that marginally meet the current provisions of ANSI/ASHRAE Standard minimum standard of 78 percent AFUE 103–1993 which limit the post purge GAMA commented that the proposed for furnaces and 80 percent for boilers. period during the test to 180 seconds. calculation procedure for evaluating the (GAMA, No. 8, at 4). Carrier Corp., (Woodworth, No. 20, at 4). effectiveness of a stack damper would Consolidated Industries, and Lennox The Department believes that the use reduce the measured AFUE of both Industries all supported GAMA’s of a post purge in power vented units furnaces and boilers. (GAMA, No. 8, at position. (Carrier, No. 12, at 1; during the off-cycle, when longer than 3). GAMA believes that the proposed Consolidated, No. 21, at 1; and Lennox, necessary, is a waste of energy because changes would affect the efficiency Transcript, at 77). a forced purge increases the loss of the rating of existing warm air furnaces. Inter-City Products requested that the residue heat in the furnace or boiler In the case of warm air furnaces, the implementation of this and other through the vent system. A forced purge Department has considered the category 2 revisions be postponed to a is the forced combustion air flow comment and disagrees with the future rulemaking, coordinated with through the heat exchanger. Given the statement that the proposed changes implementation of amendments to deficiencies in the existing test would affect the efficiency rating of furnace minimum efficiency standards. procedure described in the 1993 existing warm air furnaces. Referring to To support its request, Inter-City Proposed Rule, DOE is aware that the Table 6, System Numbers, and sections Products commented that DOE needs to current procedure could encourage a 11.2.9.18, 11.2.10.3 and 11.2.10.4 of lower the minimum standard on manufacturer to use a long post purge ANSI/ASHRAE 103–1993, a stack marginal units to correspond to changes period to obtain a higher calculated damper’s operation has no effect on a in test procedure measurements, and AFUE rating while actually wasting warm air furnace installed as an Isolated address the problem associated with the more energy through the vent system. Combustion System (ICS) No. 9 or 10. utility rebate program. Inter-City Tests conducted at NIST on a gas Because the existing non-weatherized Products further stated that for the furnace with an induced draft warm air furnaces are rated as ICS manufacturers to modify these models, combustion blower showed that systems, the problems cited by GAMA such that they attain the 80 percent increasing the post purge interval do not apply to existing furnaces. Also, AFUE value, the redesigned equipment increased the flue loss, but the because any direct vent system is may operate in the condensing region calculated AFUE based on current test defined as system No. 9 or 10, the that can affect performance, reliability, procedure showed an increase in value. problems likewise would not apply to and life of both the equipment and the The discrepancy between the AFUE direct vent systems such as those used associated vent system. (Inter-City, No. based on the current calculation for most mobile home furnaces. 7, at 3). procedure, and on the proposed In the case of boilers, which are Energy Kinetics, Inc. commented that calculation procedure, becomes installed indoors and rated as indoor the proposed revision does not cover progressively greater with an increasing systems, the effect of the revisions on systems equipped with a power burner post purge period. The difference was the measured AFUE would be very and a draft inducer. Energy Kinetics 0.9 percentage points with 30 seconds small. For most existing boilers the stated that the off-cycle flue gas flow post purge and increased to 4.5 stack damper closes within 30 seconds rate with only the inducer on, but not percentage points with 180 seconds post after the main burner is shut off, and the the power burner, is significantly purge. Yet the calculated AFUE based effect will be on the order of 0.1 reduced from the on-cycle flow rate. on the current test procedure showed a percentage-point change in AFUE. The According to Energy Kinetics, since the gain (from the condition of no post effect is therefore negligible for any proposed revision in the 1993 Proposed purge) of about 0.2 percentage points at stack damper that is completely closed Rule uses the on-cycle flue gas volume 30 seconds post purge to nearly 1.0 26146 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations percentage point at 180 seconds post Woodworth. If the designed post purge Inter-City, the revised procedure would purge. time is longer than 180 seconds, the lower the baseline efficiencies of Data gathered indicated that the six blower control is to be bypassed and the equipment currently at 78 percent. major control manufacturers surveyed blower manually turned off during the (Inter-City, No.7, at 2). The CEC all have post purge timing of 30 seconds cool-down test. This provision is suggested that air leakage during the or less on their post purge control specified in ANSI/ASHRAE Standard jacket loss test from any part of the equipment. The data was gathered by 103–1993, which is referenced in furnace cabinet should represent the the Lawrence Berkeley National today’s final rule. performance of the product as installed Laboratory (LBNL) for DOE regarding The comment by Energy Kinetics on in the field. Any joints, holes, or other the current practice of the furnace the difference in the flue gas flow rate openings should remain as shipped by industry. The survey showed that if the between the on-cycle (power burner and the manufacturer and should not be free post purge time is extended from inducer on) and off-cycle (only inducer taped or sealed for the test. (CEC, No. five seconds, as proposed in the 1993 on during post purge) on oil-fired 25, at 2). Proposed Rule, to 30 seconds before the boilers, if the draft inducer is an integral Today’s final rule does not include post purge calculation method is part of the boiler supplied by the the sealing of furnace cabinet required, most of the existing furnace manufacturer, would require additional ventilation openings during the jacket and boiler models that employ post study. Therefore, this type of boiler is loss test, and the sealing requirement purge will be treated as if there is no not covered by today’s final rule. The specified in section 8.6.1.1 of the post purge. With post purge timing of 30 Department will continue to solicit referenced ANSI/ASHRAE Standard seconds, no retesting or re-rating will be additional data on the on-cycle and off- 103–1993 has not been included in required and no reduction in AFUE will cycle operations of this type of boilers, today’s rule. Upon review, the result for those existing furnaces and and will issue a revision to the test Department considers that sealing of the boiler models. procedure at a future time. ventilation openings will result in a Based on the above reasons, DOE is more accurate measure of the combined 14. Sealing of Ventilation Openings changing the maximum free post purge effects of conduction and radiation heat During Jacket Loss Test time of five seconds in the 1993 loss. This is the heat loss from the Proposed Rule to 30 seconds. That is, The 1993 Proposed Rule would cabinet surface to the test room only units with post purge time longer require conducting the jacket loss test surroundings and the convective than 30 seconds shall be tested by the with the ventilation openings sealed. cooling of the airflow into and out of the prescribed post purge test procedure. There were six comments on this issue. spaces adjacent to the inside surfaces of Further, units with post purge periods GAMA provided data from tests recently the jacket. The Department, however, of less than or equal to 30 seconds shall conducted at the ETL Testing has decided not to incorporate this be tested without the post purge test Laboratories of the Inchcape Testing provision into today’s final rule. This is procedure. The Department agrees with Services (ETL). This data showed that because the Department sees some merit the commenters that if the maximum for four furnace models tested for in the objections offered by commenters free post purge time is limited to the sealing the ventilation openings in with respect to test time, retesting and proposed five seconds, some existing jacket loss test, the percentage point re-rating all the currently rated furnace furnace and boiler models that employ reductions in AFUE were 1.0, 0.5, 0.7 units and the associated costs, reduction post purge time between five and thirty and 0.1 for models currently rated at in currently marginal AFUE ratings, and seconds would have to be retested. The AFUE of 78.7 percent, 80.0 percent, 80.0 the difficulty in objectively determining Department acts today to limit the percent and 78.0 percent, respectively. the most effective openings to seal. DOE burden on the manufacturers of Thus, two models would be below the will continue to examine this subject retesting those models and the 78 percent minimum and two models and may consider implementation of the possibility of lower AFUE ratings. The would be below the 80 percent rebate provision at a later date. Department is prescribing, in today’s criteria if tested pursuant to the final rule, the modified free post purge proposed revision. (GAMA, No. 8, at 4 15. Insulation Requirement for Units period of 30 seconds as the criterion for and A–1). Carrier Corp., Consolidated With Draft Diverter applying the revised test and calculation Industries, and Lennox Industries all The 1993 Proposed Rule would procedures for units that employ post supported GAMA’s position (Carrier, require insulation for units with a draft purge after burner shut off. No. 12, at 1; Consolidated, No. 21, at 1; diverter, when testing furnaces with DOE believes, however, that with this and Lennox, Transcript, at 77). Inter- exposed diverters. There were three exception, where the maximum free City Products made several assertions comments on this issue. GAMA objected post purge time is thirty seconds, on this issue. First, it stated that sealing to its immediate implementation. In additional energy is being lost through ventilation openings could potentially addition, GAMA provided data from the venting system by the combustion reduce AFUE by 0.3–0.5 percent. tests recently conducted at ETL. This blower. The Department will continue Second, it stated that an attempt to data showed that, for two furnace to examine this subject and may determine which louver openings are models with integral draft diverters consider later implementation of the for ventilation air egress and which are tested with insulation added to the draft original five second criterion, which is for intake cooling air would be a time- diverter, the percentage point based on the technical judgement of the consuming and subjective test reductions in AFUE were 0.3 and 0.4 for ASHRAE Standard Project Committee procedure. Third, the company claimed the two models currently rated at AFUE (SPC) that developed ANSI/ASHRAE that a louver acting as ventilation air of 78.0 percent. They would be below Standard 103–1993. intake in one operating mode may be an the 78 percent minimum standard if Secondly, on the issue of oil-fired exhaust louver in another. Fourth, it tested in accordance with the proposed furnaces and boilers that have purge asserted that additional test time in revision. (GAMA, No. 8, at 4 and A–2). periods greater than three minutes, the development, agency certification, and Carrier Corp. and Consolidated Department acts to limit the post purge independent efficiency audits (by ETL) Industries both supported GAMA’s time to 180 seconds during the rating would increase manufacturers’ costs position. (Carrier, No. 12, at 1; test as suggested by commenter Mr. John substantially. Finally, according to Consolidated, No. 21, at 1). Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26147

As described in the 1993 Proposed GAMA provided data from tests recently power burner. The requirement is now Rule on this issue, the ETL stated that conducted at ETL to show that for specifically included in sections 7.2.2.2, it insulates the exposed diverters (in eleven furnace models tested for 7.3.2.2, and 9.1.4, ANSI/ASHRAE horizontal furnaces) when testing insulation of the exposed flue collector Standard 103–1993. furnaces with exposed diverters. (April box, the percentage point reductions in DOE has reviewed the comments by 30, 1991, letter from ETL to NIST). AFUE ranged from 0.5 to 2.8 for models Inter-City Products on ‘‘double Therefore, the rated AFUE values for currently rated at AFUE of 78.0 percent dipping,’’ and by Energy Kinetics on the horizontal furnaces with exposed to 80.2 percent. Seven models will be steady state efficiency being overstated integral draft diverters in GAMA’s below the 78 percent minimum and five due to an un-insulated flue gas collector Efficiency Certification Directory were models will be below the 80 percent box. The jacket loss and the steady state tested with the proposed insulation in rebate criterion, if tested in accordance efficiency are measured without the place. This means that the existing with the proposed revision. (GAMA, No. insulation on the flue gas collector box furnaces have already been tested 8, at 4 and A–2). Carrier Corp., because these conditions exist in according to the proposed provision and Consolidated Industries, and Lennox practice. The reason for insulating the found to meet the minimum efficiency Industries all supported GAMA’s flue gas collector box during the standard. Thus, no retesting or re-rating position (Carrier, No. 12, at 1; transient cool-down and heat-up tests is is required. Consolidated, No. 21, at 1; and Lennox, to obtain a measured flue gas The Department therefore is not Transcript, at 77). temperature as close as possible to its accepting GAMA’s request that this Energy Kinetics, Inc. commented that true value when the flue gas first exits provision be omitted from the final rule, in addition to the cool-down and heat- from the heat exchanger. This allows a and instead has adopted this provision up tests, the flue collector box should be better calculation of the off-cycle flow as specified in ANSI/ASHRAE Standard insulated for the steady-state portion of through the heat exchanger. In the 103–1993, which is referenced in the test also. It believed that without the original development of the flue loss today’s final rule. insulation, the measured steady state methodology, an assumption was made efficiency is higher due to a lower on the flue gas temperature variation 16. Insulation Requirement for Flue measured flue gas temperature than that during the transient condition of cool- Collector Box measured with the insulation. (Energy down and heat-up. This assumption was In the 1993 Proposed Rule, DOE Kinetics, No. 16, at 6). based on the value of a flue gas called for the insulation of the flue The commenters are not correct in temperature exiting the heat exchanger, collector box. Numerous comments classifying the proposed requirement of not on a lowered value measured some were received on this issue. insulating the flue collector box on distance away. This transient gas Specifically, Inter-City Products induced draft or forced draft units as a temperature variation has never been requested that the implementation of revision of the furnace test procedure. used in the calculation for jacket loss this provision be postponed to a later This requirement is already specified in and steady state efficiency. date. Inter-City Products cited the the current test procedure, and has been DOE has adopted this provision as reduced AFUE of existing marginal in the DOE test procedure since 1980. specified in ANSI/ASHRAE Standard units, that would require DOE to reduce Compliance with this requirement is 103–1993, which is referenced in the minimum standard, and the demonstrated by a waiver request that today’s final rule. This action is taken criterion of the 80 percent AFUE by the was denied by DOE. This request was for the reasons described above, and utility rebate program in support of the from the Carrier Corporation in 1980 for because this is not a new requirement request. (Inter-City, No.7, at 1). Inter- an exemption from the requirement of for gas-fired units and no comments City Products suggested that the flue insulating the ‘‘flue collector and were received opposing the requirement collector box on equipment with draft inducer housing’’ on its induced draft for insulation of the flue gas collector inducers is significantly smaller in area gas furnace. 76 FR 22799, April 21, box on oil-fired units. than the sheet metal involved in an 1981. The current test procedure cited at 17. Insulation Requirement for integral draft diverter, so losses are section 3.0—Test procedure, of Downflow Furnaces consequently less. Inter-City Products appendix N to subpart B of part 430, 56 estimated that this provision would FR 12159, March 28, 1984 references DOE proposed an insulation provision have an impact of lowering the section 9 of ANSI/ASHRAE Standard that specifies that during the cool-down efficiency by 0.3–0.4 percent in AFUE. 103–1982 as the pertinent test and heat-up tests, the internal section of Inter-City Products also believed that procedure. In ANSI/ASHRAE Standard the vent pipe is to be insulated to an R the requirement of insulating the 103–1982, the requirement of section value of not less than 7 ft 2–h–°F/Btu. collector box during the cool-down and 9.1.1.6 specifies ‘‘* * * cover the draft GAMA and Inter-City Products both heat-up tests, but not during the jacket diverter and flue gas collector box (on expressed their opposition to the loss test, constitutes ‘‘double dipping.’’ a power vented unit) with insulation insulation requirement. They claim that This is because any loss in heat from the having an R value no less than 7. the insulation requirement will reduce collector box would be accounted for ** *’’ Therefore, the provision is not a the AFUE value of currently rated units, twice—first, as a reduced efficiency new requirement and should require no requiring the possible lowering of the from a higher flue gas temperature retesting or re-rating of any existing gas- minimum standard on marginal units during the cool-down and heat-up tests fired, power vented units. The and affecting the utility rebate program. (cyclic test) due to the insulation specification in the 1993 Proposed Rule GAMA provided data from tests recently requirement, and second, as a larger was to: (1) Combine the requirement conducted at ETL to show that for measured jacket loss because the with the language in section 9.1.4 of twelve furnace models tested with insulation is not applied during the ANSI/ASHRAE Standard 103–1988 that insulation of the internal vent pipe on steady-state jacket loss test. does not specifically include the downflow furnaces, the percentage GAMA put this issue in its second language for a power vented unit in the point reductions in AFUE range from category of proposed changes in the insulation requirement, as was done in 0.2 to 1.1 for models currently rated at 1993 Proposed Rule and objected to its ANSI/ASHRAE Standard 103–1982, and AFUE of from 78 percent to 80.2 immediate implementation. In addition, (2) include any units that employ a percent. Eight of the models will be 26148 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations below the 78 percent minimum, and than 0.10. This action was based on the nameplate wattage if the pump is three will be below the 80 percent following circumstances. The current supplied by the manufacturers and a rebate criterion, if tested pursuant to the test procedure allows the minimum default value of 0.13 kW if no pump is proposed revision. (GAMA, No. 8, at 2,4 value for the draft factor DP and DF to supplied. (HI, No. 15, at 3). Energy and A–1; and Inter-City, No. 7, at 4). equal 0.0 on units where absolutely no Kinetics stated that the value of 0.13 kW Carrier Corp., Consolidated Industries, air flows through the combustion is too high and that the standard pumps and Lennox Industries all supported chamber and heat exchanger when the shipped with residential systems today GAMA’s position. (Carrier, No. 12, at 1; burner is off (section 9.4.4 of ANSI/ consume no more than 60 watts (W). Consolidated, No. 21, at 1; and Lennox, ASHRAE Standard 103–1982 as (Energy Kinetics, No. 16, at 7). Mr. John Transcript, at 77). referenced in section 3.0 of appendix N Woodworth, independent commenter, The purpose of the proposal to require to subpart B of part 430, 56 FR 12159, stated that the requirement would create insulation of the flue pipe is to obtain March 28, 1984). However, it is very a hardship and the results would have as nearly as possible the true flue gas difficult to verify an ‘‘absolutely no air- an insignificant effect on the annual temperature required in the calculation flow’’ condition by current flow efficiency descriptor. He stated that of the flue loss. The assumption made measurement technology. boilers are seldom tested with the in the calculation procedure is that the Only two comments were received. ‘‘standard pump’’ in the laboratory. flue gas temperature is the temperature GAMA objected to the immediate Instead, test rigs in most laboratories at the exit plane from the heat implementation of these changes. include pumps and mixing valves to test exchanger. Since this is sometimes (GAMA, No. 8, at 4). Carrier Corp. and all sizes of boilers. When sold, a model impossible to measure in practice, Consolidated Industries both supported boiler may be equipped with as many as provisions are made in the test GAMA’s position. (Carrier, No. 12, at 1; three different brands of pumps, or procedure to measure the flue gas and Consolidated, No. 21, at 1). Energy shipped without a pump. Mr. temperature in a more convenient and Kinetics, Inc. commented that the Woodworth recommended that DOE accessible location such as in the flue values are too small to have any adopt the requirement of ANSI/ pipe or stack. Insulation of the sections significant effect. (Energy Kinetics, No. ASHRAE Standard 103–1993 instead of of the flue gas passage between the heat 16, at 6). the proposed measurement requirement. exchanger exit plane and the flue gas The Department does not agree with (J. Woodworth, No. 20, at 3). temperature measuring plane in the GAMA’s position and has adopted this The Department, in today’s final rule, stack is not for the purpose of reducing provision as specified in ANSI/ASHRAE adopts the requirement of ANSI/ the heat loss through the jacket but to Standard 103–1993, which is referenced ASHRAE Standard 103–1993 for pump obtain a more accurate flue gas in today’s final rule. This action is power consumption. The requirement temperature. founded upon the following states that if a pump is supplied with Today’s final rule does not include observations. The measurement of very the boiler (as cited by Energy Kinetics), the insulation of the internal flue pipe low flow rates of flue gas is very then BE (electrical power to water during the cool-down and heat-up tests. difficult, and replicating the pump) is the nameplate wattage rating, Also, the insulation requirement measurement would be a problem at the and if no pump is supplied, then the specified in section 7.2.2.5 of the low flow rate encountered. The current default value of BE is 0.13 kW referenced ANSI/ASHRAE Standard Department considers the value of 0.05 in calculation of annual electrical 103–1993 has not been included in to be reasonable. The Department energy consumption. By referencing the today’s final rule. This action is justified believes that only pulse combustion revised ANSI/ASHRAE Standard 103– by the fact that for the downflow furnaces meet the requirement of no air 1993, this is included in today’s final furnace, there is no existing flow during the off-cycle. The effect of rule. The Department does not agree specification in the current DOE test this change will be that more units can with GAMA’s inclusion of this issue in procedure that covers the internal flue use a lower draft factor DF (with a very its second category, since pump power pipe. The Department considers the slight increase in AFUE), but it will not consumption is not involved with the insulation of the internal flue pipe result in a lower AFUE for the set of calculation of AFUE. DOE does agree during the heat-up and cool-down tests units that are minimally compliant with that the 1993 Proposed Rule, by as a desirable procedure in obtaining a this provision, and will negate the requiring an additional measurement of more accurate measure of the flue gas necessity of repeatedly conducting the pump power consumption, would temperatures. Commenters objected to tracer gas test to confirm the accuracy of impose a burden that does not immediate implementation, however, a measured value varying below the 0.1 significantly improve the calculation of because of the test time, retesting and range. annual electrical energy consumption. re-rating of all the currently rated Hence, DOE adopts instead the ANSI/ 19. Water Pump Energy Consumption downflow furnace units with the ASHRAE provision. associated costs, and the reduction in DOE proposed the measurement of 20. Energy Factor and Annual Efficiency AFUE. The Department decided that the the electrical energy consumption of the Descriptors objections offered by commenters water pump for hot water boilers in the warrant a delay in the implementation 1993 Proposed Rule. GAMA put this In the 1993 Proposed Rule, the of this provision. DOE will continue to requirement in its second category Department proposed two energy examine this subject and may consider (GAMA, No. 8, at 4). Carrier Corp. and descriptors, the energy factor and the implementation of the insulation Consolidated both supported GAMA’s annual efficiency, for both fossil-fueled requirement at a later date. position. (Carrier, No. 12, at 1; and furnaces and boilers. The proposed Consolidated, No. 21, at 1). Hydronics energy factor includes the auxiliary 18. Revised Minimum Value for the Institute (HI) stated that not all boilers electrical energy consumption of the Draft Factor DP and DF are supplied with pumps. Instead of appliance, and is identical to the energy DOE proposed that a value of 0.05 for measuring the pump power, HI factor term as defined in appendix B of the draft factor DP be assigned for any suggested adopting the requirement in ANSI/ASHRAE Standard 103–1993, units whose DP value, when measured ANSI/ASHRAE Standard 103–1993. except that DOE proposed a different by the optional tracer gas method, is less This requirement specifies the use of the ‘‘F-factor.’’ Appendix B defined ‘‘energy Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26149 factor’’ as the ratio of the annual output reservations on the source-based DOE to either withdraw or modify the of heat energy provided to the space to multiplication factor (the F-factor to be F-factor proposal. the total annual energy input required to applied to the auxiliary electrical energy One of the principal issues raised by operate the appliance. The annual consumption of fossil-fueled the commenters is the authority of DOE output of heat energy includes the appliances). A summary of the to establish an energy efficiency contribution from a portion of the commenters’ reasons for objection standard for furnaces on the basis of auxiliary electrical energy that is include: (1) The use of source energy in either energy cost or source energy, as recovered as useful heat. The total determining the energy efficiency, opposed to site energy consumption in annual energy input required includes through the proposed F-factor, is not units of energy. Upon further both the fossil fuel and the auxiliary permitted by EPCA and NAECA, which examination, it is the view of the electric energy. The F-factor, however, specify that efficiency must be Department of Energy that EPCA equal to 3.0 in ANSI/ASHRAE Standard determined by energy consumption at requires the energy efficiency of a 103–1993, was 3.37 in the DOE the point of use (site) of the covered furnace to be based on consumption of proposal. The modified F-factor then products; (2) the application of the F- approximated the ratio of the energy energy at the site of the furnace, and factor to the auxiliary electrical energy that the statute does not permit the required to generate and transmit the consumed by fossil-fueled appliances, promulgation of an energy efficiency auxiliary electricity consumed by the but not to all-electric furnaces, is biased standard that is expressed in terms of appliance to the amount of such against fossil-fueled appliances; (3) a annual operating costs of the furnace. electrical energy. The F-factor was national average source to site energy applied to the auxiliary electrical ratio ignores the variation in the value EPCA defines the energy conservation consumption to reflect the efficiency in of the F-factor due to different methods standard of a covered appliance as ‘‘a the use of all energy used to run the of power generation; (4) the value of the performance standard which prescribes appliance. proposed energy descriptor would be a minimum level of energy efficiency or The purpose of the Department’s lower than the AFUE, creating a maximum quantity of energy use.’’ proposal to establish the new efficiency confusion for AFUE based rebate/ EPCA section 321(6), 42 U.S.C. 6291(6). descriptor and the energy factor was to incentive programs by utility EPCA defines ‘‘energy efficiency’’ as the account for the auxiliary electric energy companies; (5) combination furnace/air- ratio of a product’s useful output of in the operation of fossil-fueled furnaces conditioning systems with a single services to its ‘‘energy use.’’ EPCA and boilers. The proposed descriptors heating capacity may require different section 321(5), 42 U.S.C. 6291(5). Thus, would combine the consumption of size blowers depending on cooling load ‘‘energy use’’ is a basis for any standard fossil fuel and auxiliary electricity into requirements; and (6) fuel switching and for furnaces and boilers. ‘‘Energy use’’ a single value that would reflect the marketplace distortion could result. A in turn is defined in section 321(4), 42 overall energy cost of a fossil-fueled detailed summary of comments on the U.S.C. 6291(4), as ‘‘the quantity of appliance. The current energy F-factor and the proposed energy energy directly consumed by a descriptor, AFUE, deals only with the descriptor is found in the Federal consumer product at point of use.’’ primary type of energy consumed by an Register notice. 60 FR 4348 ( January 20, Therefore, furnace energy conservation appliance. Therefore, it does not give 1995). standards must be based on the consumer a complete account of the In 1995 the Department reopened the consumption of energy at the site of the overall energy and cost performance of comment period on the 1993 Proposed appliance. The Department believes that the appliance. On the basis of AFUE this conclusion is further supported by alone, a consumer would not be able to Rule, solely to address this issue, and the Department proposed a revision of terminology used in section 325(f) of compare the overall cost of operation of EPCA, 42 U.S.C. 6295(f), which two or more different models of fossil- its 1993 proposal. In place of the 1993 Proposed Rule’s definition of the F- concerns standards for furnaces. Section fueled furnaces or boilers of comparable 325(f)(1)(B), for example, requires the output capacity with blowers of factor as a source-to-site based energy ratio, the Department proposed a cost- promulgation of an ‘‘energy different motor efficiencies or on/off conservation standard’’ for small controller timings. The proposed energy based electricity-to-fossil fuel price ratio with a value of 3.36 at the point of use. furnaces, and, as just discussed, such a descriptors were intended to give the standard must be based on energy consumer the necessary information for The proposed revision was published in the Federal Register on January 20, consumption at the site of the a more informed decision. Another application. purpose for the proposed energy 1995. 60 FR 4348. descriptors was to provide an evaluation Seventy comments were received Based on the above analysis, the procedure for different design options concerning this proposed revision to the Department is withdrawing the for fossil-fueled furnaces and boilers F-factor. Many comments were similar proposed energy descriptor and energy that involves auxiliary electric energy to those received in response to the factor in today’s final rule. The current consumption. This information would original 1993 proposal, and disregarded procedures of determining AFUE from be considered in the determination of the change to an F-factor based on cost the energy efficiency descriptor, and of energy efficiency standard levels. of energy. Most commenters considered calculating of the annual energy At the public hearing and during the the proposal as violating the intent and consumption of fossil fuel and electrical public comment period following the language of EPCA and NAECA, asserting energy for furnaces/boilers, therefore publication of the 1993 Proposed Rule, that these statutes define energy will remain unchanged. In the twenty-one commenters offered views efficiency with reference to energy meantime, the Department will continue on this issue. The comments ranged consumption at the point of use (site to explore and to solicit input from from support for an energy descriptor energy). Because comments were similar interested parties on various options for that included both the fossil fuel and or identical to those submitted the development of a descriptor that the auxiliary electric energy following the 1993 proposal, a would take into account separately both consumption, to complete disagreement commenter-by-commenter description a new energy factor for fossil fueled with that concept. Nearly all of the comments is not presented here. furnaces and the auxiliary electrical commenters however, expressed Virtually all of the commenters urged energy consumption of an appliance. 26150 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

21. Measurement of Electric Energy should be used as the actual on-time. today’s final rule that the nameplate Consumption for Interrupted Ignition Further, the nameplate power input power rating of the combustion blower Device rating, or 0.4 kW if none is specified on be used as the power consumption in The 1993 Proposed Rule required the nameplate, should be used as the the calculation for the electrical energy measurement of the energy average power draw in the electrical consumption. DOE agrees that the consumption by the interrupted ignition energy calculation. The device on-time energy consumption is small enough to device. Both GAMA and Inter-City will be measured with a stop watch if justify the deletion of the electric power Products argued that the electrical not specified on the nameplate. The measurement requirement for the energy consumption of the interrupted device on-time will be set to equal zero combustion blower. But measurement of ignition device constitutes an extremely if the nameplate or measured value is the full length of the post purge period, small amount of all electrical less than or equal to five seconds. easily determined with a stop watch, is still required as set forth in the consumption of a furnace. To include 22. Measurement of Energy proposed rule. the measurement of the energy Consumption of Combustion Blower consumption of the device is During Post Purge 23. ANSI/ASHRAE Standard 103–1993 burdensome in time and effort. Carrier The test procedure of the proposed The 1993 Proposed Rule referenced Corp. and Consolidated Industries both rule and ASHRAE 103–93 requires the ANSI/ASHRAE Standard 103–1988 and supported GAMA’s position. (Inter-City, measurement of the energy added additional amendments to cover No. 7, at 3; GAMA, No. 8, at 18; Carrier, consumption of combustion blowers the changes, revisions and advances in No. 12, at 1; and Consolidated, No. 21, during a post purge. Commenters technology between the years when the at 1). HI and independent commenter GAMA and Inter-City Products both Standard was published (1988) and the Mr. John Woodworth both stated that argued that the electrical energy Proposed Rule was published (1993). the energy consumption of these consumption of the combustion blower Those additional amendments included ignition devices is small and will not during post purge constitutes an a revised calculation procedure for units affect the energy descriptors. extremely small amount of all electrical with stack dampers; revised test Additionally, according to HI and Mr. consumption of a furnace, and that to procedures for atmospheric burner units Woodworth, a separate test would be include the measurement of the energy with a burner inlet damper or flue required since the ignition devices are consumption of the combustion blower damper; revised test procedures for off during the steady state test, and they is overly burdensome in time and effort. power burner units employing post are difficult to measure because the time Carrier Corp. and Consolidated purge during the off-cycle; insulation duration and power draw are not Industries both supported GAMA’s requirements during heat-up and cool- constant during ignition. Therefore, HI position. (Inter-City, No. 7, at 3; GAMA, down tests for downflow furnaces; a recommended the deletion of the device No. 8, at 18; Carrier, No. 12, at 1; and jacket loss test for units with ventilation in the proposed measurement Consolidated, No. 21, at 1). Energy openings on their cabinets; and other requirement and the calculation Kinetics, while not commenting on the technical corrections. procedures. (HI, No. 15, at 3; and J. power consumption of the draft inducer Subsequent to the publication of the Woodworth, No. 20, at 4). during post purge, pointed out that the 1993 Proposed Rule, ASHRAE To assess the merits of these power burner is off for some oil-fired published in October 1993 ANSI/ comments, and to determine the amount units during post purge and thus, only ASHRAE Standard 103–1993 which of energy consumption of an interrupted the draft inducer is on. As a result, the supersedes ANSI/ASHRAE Standard ignition device, NIST measured the auxiliary electrical energy consumption 103–1988. The revised ANSI/ASHRAE power input, on-time duration and measured during steady state may not Standard 103–1993 incorporated most energy consumption of an electric hot be equal to the electrical energy of the revisions and additions to ANSI/ surface ignition device on a 90,000 consumption during the post purge ASHRAE Standard 103–1988 that were Btu/h input gas-fired furnace. It was period. (Energy Kinetics, No. 16, at 6). included in the 1993 Proposed Rule, found that the power input varied from The 1989 ASHRAE Handbook of with the following exceptions: (1) The 515 W to 470 W during the 40 seconds Fundamentals states that the power requirement of a minimum on-time the device was on. Except for the first consumption of motors with rated delay for the blower at burner ignition few seconds, the power draw was horsepowers of 1⁄20 hp and 1⁄12 hp, and a maximum off-time delay after approximately 470 W. This translated which would be typical for combustion burner shut-off for units with an into an energy consumption of blowers, are approximately 360 Btu/h unvarying blower timing control; (2) the approximately 18 Btu per burner on- and 580 Btu/h, respectively. For a post actual measurement of power input to cycle, or 63 Btu/h for the assumed purge period of 30 seconds, the energy hot water boiler pumps; (3) the average 3.5 burner on-cycles per hour consumptions would be 3–5 Btu per off- measurement of ignition energy input to (3.87 minutes on and 13.3 minutes off) cycle for the two sizes of motors, and for interrupted ignition devices; and (4) the for a single stage furnace. While this a post purge period of 180 seconds, the measurement of combustion blower compares favorably with the average motor energy consumptions would be time delay during post purge after 400 Btu/h energy consumption of a pilot 18–29 Btu per off-cycle. For an average burner shut-off in power vented units. light, DOE does not agree that the 3.5 on-cycles per hour of furnace With the above exceptions, the revised energy consumption of the interrupted operation, the energy consumption ANSI/ASHRAE Standard 103–1993 and ignition device should be completely would be 10 Btu/h to 17 Btu/h for the the 1993 Proposed Rule are nearly ignored. DOE agrees, however, that the 30-second post purge and 60 Btu/h to identical in content. energy consumption is small enough to 100 Btu/h for the 180-second post Commenters including GAMA stated justify the deletion of the measurement purge. For boilers with an average of 1.3 that ANSI/ASHRAE Standard 103–1993 requirement in the proposed test on-cycles per hour, the values would be should be incorporated in the procedure. Therefore, DOE is specifying approximately 1⁄3 the above. Department’s test procedure rather than in today’s final rule that the on-time of DOE does not agree that the energy ANSI/ASHRAE 103–1988 as proposed an interrupted ignition device, as consumption should be completely in the 1993 Proposed Rule. (GAMA, specified in a furnace’s nameplate, ignored. Therefore, DOE is specifying in Transcript, at 8). HI stated that since Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26151

ANSI/ASHRAE 103–1988 is no longer DOE, by referencing ANSI/ASHRAE 28, 1984). Rather, their use is for the current standard and will no longer Standard 103–1993 today, has included comparison purposes and thus be published by ASHRAE, it would be all the other minor revisions and installation variables are only difficult for manufacturers to obtain corrections to ANSI/ASHRAE Standard representatively accounted for. That additional copies for reference; 103–1988 in today’s final rule. With the preamble continues to state the therefore, the 1993 version should be exception of the item commented on by Department’s position on this issue. referenced. (HI, Transcript, at 74). Mr. Mr. Woodworth above, the revised (2) Input/Output Method.—Two John Woodworth, who was Chairman of ANSI/ASHRAE Standard 103–1993 commenters, Energy Kinetics and the the SPC that developed ANSI/ASHRAE incorporated all the other minor CEC, responded to the Department’s 103–1993, Secretary of the SPC for revisions and corrections to ANSI/ request to comment on the ANSI/ASHRAE 103–1988 and Vice- ASHRAE Standard 103–1988 described appropriateness of a test procedure for Chairman of the SPC for ANSI/ASHRAE in the 1993 Proposed Rule. furnaces and boilers based on an input/ 103–1982, suggested that DOE should After the publication of ANSI/ output method. Both suggested the reference the ANSI/ASHRAE 103–1993 ASHRAE Standard 103–1993, a few development or adoption of the input/ rather than ANSI/ASHRAE 103–1988. typographical errors were identified. On output method as a more accurate He asserts that, with few exceptions, the October 24, 1996, ASHRAE issued an method for rating furnaces and boilers requirements in ANSI/ASHRAE 103– Errata Sheet for ASHRAE Standard 103– in place of the present flue loss method. 1993 are the same as the requirements 1993, that listed the typographical errors (Energy Kinetics, No. 16, at 7; and CEC, in the 1993 Proposed Rule. In addition, to be corrected in ANSI/ASHRAE 103– No. 25, at 3). GAMA, in response to ANSI/ASHRAE 103-1988 will no longer 1993. This ASHRAE Errata is questions during the public hearing, be available from ASHRAE. (John incorporated by reference in today’s stated that ETL researchers working on Woodworth, No. 20, at 2). The CEC final rule. an input/output method for GAMA experienced a great deal of difficulty in stated that it supports the use of ANSI/ 25. Other Issues ASHRAE Standard 103–1993 with DOE- repeating the test results and in specified changes. (CEC, No. 25, at 3). It The following is a discussion of correlating the resulting efficiency was suggested by Lennox (Lennox comments DOE received on issues not rating with the current method. GAMA Transcript, at 78) that the test procedure raised by the proposed test procedure felt that more time is needed for work be published in its entirety. for furnaces and boilers. As discussed in the input/output method. (GAMA, The Department agrees with the below, however, in the 1993 Proposed Transcript, at 35). commenters on this issue and is Rule DOE had requested comments on An analysis by Dr. D. R. Tree of referencing the ANSI/ASHRAE certain of these issues. Purdue University with data supplied Standard 103–1993 instead of the 1988 (1) Distribution System Efficiency.— by NIST on the errors associated with version in today’s final rule. DOE First, commenters including Dr. M. A. the input/output method showed that decided not to publish the above Habegger of Boulder, Colorado, for warm air furnaces, the uncertainties standard in its entirety, since it is the remarked that in the field installation, in duct air flow measurement and non- practice of the Department to the air flow rate through the distribution uniform temperature distribution in the incorporate by reference any industry system has a large effect on the overall duct, during steady state and cyclic consensus standards, and the test system efficiency. Further, the value of conditions, would result in an error procedures adopted in today’s final rule AFUE obtained through the current test estimate of ±12 percent for the AFUE are nearly identical to ANSI/ASHRAE procedure is usually much higher than value. This made the input/output Standard 103–1993. the overall system efficiency. (M. A. method unacceptable as a test procedure Habegger, No. 22 at 1). The Department for warm air furnaces.4 The problem of 24. Other Minor Modifications to ANSI/ agrees that a reduced air flow rate will flow and temperature measurements for ASHRAE Standards 103–1988 and 103– reduce the overall efficiency of the hot water boilers would not be as 1993 heating system due to a higher flue gas severe. A detailed method, however, on In the 1993 Proposed Rule, DOE also temperature and duct air leakage. the transient performance of hot water proposed to adopt corrections and Dr. Habegger further comments that boilers, both during the on-cycle (energy clarifications of several typographical the circulation air flow rate is not delivered) and the off-cycle (heat loss) errors and inconsistencies identified by considered in the current test procedure needs to be developed and a consensus ASHRAE SPC 103 following publication and that testing the efficiency of on the procedure agreed upon. The of ASHRAE Standard 103–1988. equipment without considering the problems of testing according to two No commenter expressed objection to overall installed system effect is different test procedures, one for warm those specific revisions with the meaningless. The Department disagrees. air furnaces and one for hydronic exception of Mr. Woodworth on The rate of circulation air flow is heating systems, also require further revision to section 9.7.3 of the Standard. addressed in the test procedure by the discussion. The Department is, Therein, Mr. Woodworth stated that, limits set on both the minimum external therefore, reserving action on the since TF,OFF is not needed in the static pressure and the air temperature possible adoption of an input/output calculation of off-period flue gas mass rise between the supply and return air. method for hydronic heating systems to flow rate if the draft is maintained This assures that the circulation air a future rulemaking. during cool-down, the TF,OFF reading is blower will deliver the appropriate (3) Test Procedure for Combined not necessary. The draft is maintained amount of air flow at the required Space/Water Heating Appliances.— during cool-down for units with design conditions. Only Energy Kinetics raised this issue, barometric draft regulators. Therefore, As the Department specifically and questioned the appropriateness of the phrase ‘‘if draft is not maintained pointed out in the preamble to the 1984 the current ASHRAE Standard 124– during cool-down’’ should not be Final Rule for furnaces, boilers, and deleted. (J. Woodworth, No. 20, at 4). vented and unvented home heaters, the 4 David R. Tree, ‘‘Error Analysis of Testing for DOE agrees with Mr. Woodworth’s test procedures cannot predict the Annual Fuel Utilization Efficiency of Residential Central Furnace Boilers, Report Number 4, comment, and the proposed revision is energy performance of a furnace in Executive Summary,’’ Ray W. Herrick Laboratories, dropped from today’s final rule. every installation. 49 FR 12153 (March Purdue University. 26152 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

1991 that covers the testing and rating procedure. In addition, changing the test FR 20182. The Department amended of combination appliances. (Energy conditions to those suggested by Energy this test procedure on March 28, 1984, Kinetics, No. 16, at 8). Kinetics would result in a reduction of to include a simplified vented heater The Department is preparing to the AFUE for existing hot water boilers test procedure for heaters with propose a test procedure for combined as the flue loss would be slightly higher modulating controls, manually space/water heating appliances in the due to a higher flue gas temperature. controlled vented heaters, vented future. DOE welcomes any comments This would require the retesting and re- heaters equipped with thermal stack and input from industry and interested rating of most existing hot water boilers. dampers, and floor furnaces. 49 FR individuals and organizations. For the reasons discussed above, 12169. (4) Off-Cycle Draft Setting.—Only today’s final rule does not include any In the 1993 Proposed Rule, DOE Energy Kinetics commented that the changes to the test conditions with proposed the following amendments to operation and off-cycle draft conditions respect to the boiler water return the vented home heating equipment test at the flue connection to a unit affect the temperature and temperature rise for hot procedure: (1) To establish an annual ratings of the unit, and suggested that water boilers as specified in the current efficiency descriptor to account for the the draft value should not be left to be test procedure. auxiliary electrical energy consumed by at the manufacturer’s recommendation. (6) Energy Lost at Appliance Location the fan or blowers in addition to the Energy Kinetics suggested a standard (Boilers in Unheated Space).—Energy fossil fuel consumed; (2) to revise the draft level of 0.05′′ water column to be Kinetics disagreed with the requirement calculation procedure for AFUE for maintained at both the on-cycle and off- that boilers be tested as indoor manually controlled heaters; and (3) to cycle periods during the test. (Energy installation. It claimed that most boilers revise the calculation procedure for Kinetics, No. 16, at 5). are installed in un-conditioned space. weighted average steady-state efficiency DOE believes that this specification is (Energy Kinetics, No. 16, at 4). for manually controlled heaters with not necessary as the draft produced Since the minimum standard for various input rates. during the operation of the unit cannot boilers is based on a statutory definition The following discussion addresses be arbitrarily set by the manufacturer if of AFUE which explicitly assumes that the comments received on the proposed proper operation, such as smoke non-weatherized boilers are located rule. number, CO2 concentration, and flame indoors, DOE will not consider any 1. Annual Efficiency Descriptor stability, of the unit is to be maintained. change in the installation location for DOE reasons that if the manufacturers boilers at the present time. The Department proposed in the 1993 do not require or recommend the (7) Setting Throughput Air Proposed Rule to adopt the energy factor maintenance of a specific draft level Temperature Rise for Furnaces.—In the as defined in appendix B of ANSI/ during the off-cycle for the normal current DOE test procedure and ANSI/ ASHRAE Standard 103–1993 as the new operation of their unit, it should not be ASHRAE Standard 103–1988, the energy descriptor for vented home required during the off-period test. adjustment to the air throughput for heating equipment, and renamed it the (5) Supply and Return Water warm air furnaces at steady state annual efficiency descriptor. Temperature Settings for Hot Water operation is specified under the The Department’s current test Boilers.—Energy Kinetics stated that the following conditions: a temperature rise, procedure for vented home heating hot water boiler temperature settings of across the heat exchanger, shall be the equipment prescribes the calculation of 120°F return water temperature and higher of (1) 15°F below the maximum AFUE based on the energy consumption ° 140 F supply water temperature during temperature rise, or (2) 15°F above the of fossil fuel only. Since auxiliary the tests, as prescribed in the current minimum temperature rise, as specified electrical energy can be consumed by test procedure, are too low. They are not by the manufacturer. these appliances such as for the the normal temperatures of 160°F and In the 1993 Proposed Rule and in the operation of a blower, DOE considered 180°F encountered in a home 1993 revision of ANSI/ASHRAE that a more appropriate energy installation. (Energy Kinetics, No. 16, at Standard 103 (as 103–1993), a provision descriptor was needed to account for 4). was added to the test setting of the air both fossil fuel and auxiliary electrical The Department prescribed the test temperature rise. The provision requires energy consumption of the appliances. conditions for hot water boilers (boiler that, for furnaces whose design does not This energy descriptor would also be ° ° return water of at least 120 F and a 20 F permit a temperature rise range of 30°F, used to address the electrical energy temperature rise) during the 1983 the furnace shall be tested at the used by some of the design options proposed rulemaking (48 FR 28014, midpoint of the rise range specified by considered for energy standard level June 17, 1983) before the publication of the manufacturer if the rise is less than evaluation. the final rule for the current furnace test 30°F. Commenters GAMA and Inter-City Seventeen commenters, directly or in procedure (49 FR 12148, March 24, mentioned this provision for support of another commenter, have 1984). In so doing, the Department condensing furnaces whose temperature commented on this issue. The stated its belief that all non-condensing rise range may be less than 30°F, and comments from each individual or hot water boilers, including finned tube listed this provision in GAMA’s first organization were discussed in the boilers and low thermal mass boilers, category of revisions for immediate Federal Register notice of January 20, generally operated at these conditions, implementation. (GAMA, No. 8 at 3; 1995. 60 FR 4348. This was described and the specifications would eliminate Inter-City, No. 7 at 4). previously in the section for the the need for future test procedure DOE has adopted this provision as proposed energy factor and annual waivers for specific types of hot water specified in ANSI/ASHRAE Standard efficiency descriptors for central boilers from a uniform test condition. At 103–1993 referenced in today’s final furnaces and boilers. (See II.A. 20 above, that time the boiler industry had also rule. ‘‘Annual Efficiency Descriptor and indicated its desire to have these test Energy Factor.’’) conditions included. The Department B. Vented Home Heating Equipment As concluded in the discussion above, sees no fundamental change in the The Department originally published DOE has decided to withdraw the application of hot water boilers to the test procedure for vented home proposed energy descriptor from today’s warrant revision to the current test heating equipment on May 2, 1978. 43 final rule. Since the commenters Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26153 combined their comments on this control valve (e.g., by label) by the for the purpose of reflecting the proposed energy descriptor with those manufacturer.’’ efficiency of total energy used to run the for the central furnaces/boilers, readers appliance. 3. Weighted Average Steady-State are referred to that section for a Efficiency The Department’s current test discussion of this issue. Therefore, the procedure for pool heaters prescribes current procedures of determining In the 1993 Proposed Rule, DOE the calculation of the thermal efficiency AFUE as the energy efficiency proposed that for manually controlled under steady state condition only. The descriptor will remain unchanged. vented home heaters with multiple thermal efficiency is defined as the ratio However, the proposed procedure for input rates whose design is such that of the useful output of heated water to the calculation of the annual energy the specified minimum firing rate the sum of the input of fossil fuel energy ± consumption of fossil fuel and electrical cannot be set at 50 5 percent of the and auxiliary electric energy during the energy for the vented home heating unit’s maximum firing rate, the test will steady state test period. DOE considered equipment is included in today’s final be conducted at the unit’s minimum that a more appropriate energy rule. This added procedure does not fuel input rate, provided that the descriptor was needed in order to involve any additional testing beyond minimum input shall be no higher than account for the energy consumption that required by the current test 2⁄3 of the maximum fuel input rate of the during the burner-off periods of a pool procedure. The added calculation heater. heating season. DOE based this view on procedure is intended to allow for the GAMA supported this provision. the fact that a significant quantity of adequate and fair cost ranking of the (GAMA, No. 8, at 20). DOE is adopting energy can be consumed by a different design options that may be the provision in today’s final rule. continuous pilot light and the auxiliary considered in future evaluations of C. Pool Heaters electrical energy consumption during possible revisions of energy standard the burner-off periods of the pool The Department published the pool levels. heating season. The proposed energy heater test procedure on February 7, descriptor could also be used to address 2. Pilot Light Energy Consumption for 1989, referencing ANSI Standard the energy savings by some of the design Manually Controlled Heaters Z21.56–1986 for gas-fired pool heaters. options that might be considered in In the 1993 Proposed Rule, for 54 FR 6076. In the 1993 Proposed Rule, future evaluation of possible revisions manually controlled heaters, under DOE proposed to amend the pool heater of energy standard levels. For example, certain conditions, the measurement of test procedure, first, to include an to consider electronic ignition, the pilot light energy is not needed. Two annual efficiency descriptor that evaluation would have to account for comments on this issue were received. accounts for the fossil fuel and the the savings in gas consumption GAMA supported the provision of not auxiliary electrical energy consumed by resulting from elimination of a requiring the measurement of the pilot any fan or pump and, second, to replace continuous burning pilot. energy consumption for manually the reference to ANSI Standard Z21.56– controlled heaters equipped with a 1986 with references to the then Seventeen commenters, directly or in piezo igniter. (GAMA, No. 8, at 20). The updated version of ANSI Standard support of another commenter, have CEC stated that the language in the Z21.56. commented on this issue. The provision should be more explicit in Standard Z21.56 was updated again in comments from each individual or defining what is meant by the phrase 1994. But no substantive changes were organization concerning the proposed ‘‘when the heater is not in use and made in the portions of that Standard multiplication factor F applied to the instruction to do so is given,’’ in section which DOE had proposed, in the 1993 auxiliary electric energy consumption 3.5.2 of appendix O to subpart B of part Proposed Rule, to incorporate into its are discussed in the Federal Register 430. The CEC further stated that the pool heater test procedure. DOE is notice of January 20, 1995 (60 FR 4348). manufacturer should only be allowed to therefore referencing ANSI Standard This was described previously in ignore the pilot energy use if the pilot Z21.56–1994 in the pool heater test subsection 20 of section II.A of this extinguishes whenever the burner is off. procedure it adopts today. notice, which discusses the proposed (CEC, No. 25, at 3). All of the comments received on the energy factor and annual efficiency The Department agrees with the proposed amendment to this test descriptors for central furnaces and suggestion of the CEC to clarify when procedure concerned the proposed boilers. Readers are referred to that the proposed provision is applicable. annual efficiency descriptor. The section for the discussion of the F-factor This provision applies to a heater that following discussion addresses those issue. provides manually controlled settings comments. GAMA also commented on the for the control knob in the operation of proposed annual efficiency descriptor the appliance, and a clearly marked 1. Annual Efficiency Descriptor concerning pool heaters. GAMA stated knob setting such as the ‘‘OFF’’ knob The Department proposed in the 1993 that the use of a recirculating pump setting shuts off the appliance Proposed Rule a new energy descriptor, should be factored into the AE completely including the pilot light. the Annual Efficiency (AE), for pool descriptor only if the pump is used DOE is today revising the section in heaters. The proposed AE descriptor, during the thermal efficiency test under question to read as follows: was defined as the ratio of the annual section 2.8.1 of ANSI Z21.56–1990 ‘‘3.5.2 For manually controlled output of energy delivered to the heated standard. Further, GAMA claims, the heaters where the pilot light is designed pool water by fossil fuel to the total pump or the pump/filter system used in to be turned off by the user when the annual energy input to the heater any given installation in the field that is heater is not in use, that is, turning the including auxiliary electrical energy. not supplied by the manufacturer control to the OFF position will shut off The latter term, auxiliary electrical should not be considered as part of the the gas supply to the burner(s) and to energy, was multiplied by a factor F heater’s auxiliary components. GAMA the pilot light, the measurement of QP is which represents the ratio of the heat commented that DOE should focus on not needed. This provision applies only energy required to generate and transmit addressing a pool heater’s primary if an instruction to turn off the unit is the electricity to the electrical energy electrical energy consumption rather provided on the heater near the gas delivered at the pool heater. This was than auxiliary losses. 26154 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

The Department believes that the the reasons discussed in subsection 20 Therefore this final rule does not require above concerns expressed by GAMA are of section II.A of this notice. The current an environmental impact statement or unfounded. As shown in section 4 of procedure for determining the energy an environmental assessment pursuant appendix P of the 1993 Proposed Rule, efficiency descriptor for pool heaters, to NEPA. the determination of the auxiliary the steady state thermal efficiency, shall B. Review Under Executive Order 12866, electrical energy consumption of the remain unchanged. A procedure, pool heater is as specified in ANSI however, for the calculation of the pool ‘‘Regulatory Planning and Review’’ Z21.56–1990 standard, and was not heater seasonal efficiency and the Today’s regulatory action has been modified in the 1993 Proposed Rule. As annual energy consumption of fossil determined not to be a ‘‘significant proposed in section 4.4 of appendix P, fuel and auxiliary electricity for the pool regulatory action’’ under Executive the calculation of the annual auxiliary heater is included in today’s final rule. Order 12866, ‘‘Regulatory Planning and electrical energy consumption is based The pool heater seasonal efficiency is Review,’’ 58 FR 51735, October 4, 1993. on heater on-time only. defined as the ratio (in percent) of the Accordingly, today’s action was not GAMA first stated that, since DOE useful output of the heater in terms of subject to review under the Executive defined the average number of burner heated pool water during the pool Order by the Office of Information and operating hours as 104 hours heating season to the sum of the total Regulatory Affairs. independent of pool and heater size, energy input when the burner is on and then ‘‘100,000 Btu/hr and 400,000 Btu/ the energy consumption of the pilot C. Review Under the Regulatory hr pool heaters can have the same AE light when the burner is off during the Flexibility Act value, and would give the impression pool heating season. The total burner-on The Regulatory Flexibility Act, 5 that a 400,000 Btu/hr pool heater is an hours and the length of the pool heating U.S.C. 603, requires the preparation of effective choice for heating a 500 gallon season are assumed to be 104 hours and an initial regulatory flexibility analysis hot tub.’’ GAMA then stated that during 4464 hours per year, respectively. The for every rule which by law must be pool ‘‘off-season’’ hours, the continuous heater is assumed to be in steady state proposed for public comment, unless pilot is usually shut off. operation whenever the burner is on. the agency certifies that the rule, if DOE disagrees with the first The pilot light is assumed to be off promulgated, will not have a significant statement. If the output capacity of the during the non-heating season hours economic impact on a substantial pool heater is properly selected by the (4296 hours) and on during the pool number of small entities. A regulatory contractor or installer based on the size heating season hours (4464 hours). The flexibility analysis examines the impact or load requirement of a particular pool, auxiliary electrical energy consumption of the rule on small entities and then the burner operating time would be is assumed to be negligible when the considers alternate ways of reducing neither excessively long nor unduly burner is off. For heaters which do not negative impacts. short. Moreover, although the selection employ a continuous pilot light during The Department believes the final rule of a particular pool heater among the pool heating season, the seasonal will not have a significant impact on models of similar capacity for a specific efficiency will be the same as the steady either small or large manufacturers of pool size may be based on its energy state thermal efficiency. This procedure furnaces and boilers, vented home efficiency, the selection of a correct will account for the energy consumption heating equipment, and pool heaters capacity heater is based on the pool size of those pool heaters that employ a or load requirement. As to GAMA’s under the provisions of the Regulatory continuous pilot light during the pool Flexibility Act. The final rule amends statement about the pilot light being off heating season. As stated previously, the during the ‘‘off season,’’ the 1993 DOE’s test procedures, primarily to procedure also provides a calculation proposal already assumed that the incorporate (1) test procedures already procedure for the average annual fossil continuous pilot light, if used, will be in use by manufacturers pursuant to fuel and auxiliary electric energy off during non-heating season hours. waivers that DOE previously granted to consumption. These calculations are (See section 4.2 of appendix P to those manufacturers, and (2) revisions simply arithmetic exercises with no subpart B of part 430, on the definition to standard industry testing methods, additional testing required. Since these of the average number of seasonal pool contained in American Society of calculations could be used to address operating hours (POH).) Heating, Air-Conditioning and In its statement, GAMA also suggested the energy savings by some design Refrigerating Engineers (ASHRAE) that, instead of the AE descriptor, DOE options that might be considered in Standard 103–1993, ‘‘Methods of should develop a methodology to future evaluations of energy standard Testing for Annual Fuel Utilization calculate total annual energy levels, DOE believes it is justified to Efficiency of Residential Central consumption, based on thermal include these additional calculations. Furnaces and Boilers,’’ and American efficiency, electrical energy III. Procedural Requirements National Standards Institute Standard consumption, and continuous pilot light Z21.56–1994, ‘‘Gas-Fired Pool Heaters.’’ A. Review Under the National consumption. Thus, consumers could Examples of amendments are: Environmental Policy Act of 1969 • use this information to estimate annual The 90-second delay from burner energy consumption and operating costs The Department has concluded that ignition to activation of the warm air for a specific pool size and season of this final rule falls into a class of actions circulation fan designed with an operation. (categorical exclusion A5) that are unvarying time delay in a central DOE agrees with this suggestion. The categorically excluded from the furnace has been shortened to calculation procedure in today’s final National Environmental Policy Act of accommodate current manufacturers rule includes the calculation of the 1969 (NEPA) review because they designs. average annual fossil fuel and auxiliary would not individually or cumulatively • There is no requirement to calculate electric energy consumption. have a significant impact on the human the energy consumption of a gas pilot The Department has decided to environment, as determined by DOE’s light on manually controlled vented withdraw the proposed energy regulations (10 CFR part 1021, appendix home heaters provided that there is descriptor with the proposed F-factor A to subpart D) implementing the NEPA instruction for the user to turn the pilot multiplier from today’s final rule, for (42 U.S.C. 4321, 4331–35, 4341–47). light off and restart it. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26155

• The test procedure for modulated, E. Review Under Section 32 of the set forth in ANSI Standard Z21.56– vented home heating equipment allows Federal Energy Administration Act of 1994. Standard Z21.56–1994 was not testing at 100 percent and sixty six 1974 specifically identified in the percent rated input power, instead of The test procedures in this final rule aforementioned communications with 100 percent and fifty percent power, to incorporate commercial standards to the FTC and Department of Justice. It is, accommodate new designs. measure the efficiency and capacity of however, a revised and updated version Such requirements presented in the furnaces and/boilers, vented home of Standard Z21.56–1991, which was mentioned in those communications, final rule incorporate improvements in heating equipment, and pool heaters. and the provisions DOE is incorporating the current testing technology for The commercial standards are ANSI/ from Z21.56–1994 are identical in furnaces and boilers, vented home ASHRAE Standard 103–1993, ‘‘Method substance to the corresponding heating equipment, and pool heaters of Testing for Annual Fuel utilization provisions in Z21.56–1991.5 utilized by industry. But they would not Efficiency of Residential Central have a significant economic impact, Furnaces and Boilers,’’ and ANSI F. Review Under Executive Order 12630, since they are methods already in use by Standard Z21.56–1994, ‘‘Gas Fired Pool ‘‘Governmental Actions and manufacturers, and will not cause Heaters.’’ Interference With Constitutionally manufacturers to purchase equipment, Pursuant to section 301 of the Protected Property Rights’’ consume testing time, nor employ Department of Energy Organization Act It has been determined pursuant to technical staff beyond what is required (Pub. L. 95–91), DOE is required to Executive Order 12630 (52 FR 8859, by existing DOE test procedures. comply with section 32 of the Federal March 18, 1988) that this final rule Energy Administration Act of 1974, as In addition, in some respects the test would not result in any takings which amended by section 9 of the Federal procedures in the final rule are less might require compensation under the Energy Administration Authorization burdensome than the current Fifth Amendment to the United States Act of 1977 (FEAA) Pub. L. 95–70, procedures. For example: Constitution. which imposes certain requirements • The Department believes that test The formula to calculate the time where a proposed rule contains procedures implementing a long- delay and energy loss of a stack damper commercial standards or authorizes or established statutory mandate in a traversing from fully open to fully requires the use of such standards. The manner calculated to minimize adverse closed has been adjusted for greater findings required of DOE by section 32 economic impacts does not constitute a accuracy. The revised formula has been serve to alert the public and DOE ‘‘taking’’ of private property. Thus, incorporated into the existing computer regarding the use and background of testing under the appliance standards program for the calculation of the AFUE commercial standards in a proposal and program does not invoke the provisions and will require no additional hand through the rulemaking process. They of E.O. 12630. calculations. allow interested persons to make known their views regarding the G. Review Under the Paperwork Therefore, DOE certifies that the final Reduction Act of 1980 rule, if promulgated, would not have a appropriateness of the use of any ‘‘significant economic impact on a particular commercial standard in a No new information or record keeping substantial number of small entities’’ proposed rulemaking. requirements are imposed by this and that the preparation of a regulatory The Department has evaluated ANSI/ rulemaking. Accordingly, no OMB flexibility analysis is not warranted. ASHRAE Standard 103–1993 and ANSI clearance is required under the Standard Z21.56–1994 with regard to Paperwork Reduction Act (44 U.S.C. D. Review Under Executive Order compliance with section 32(b) of the 3501 et seq.). 12612, ‘‘Federalism’ FEAA. The Department is unable to H. Review Under Executive Order conclude whether these standards fully 12988, ‘‘Civil Justice Reform’’ Executive Order 12612 (52 FR 41685, complied with the requirements of October 30, 1987) requires that section 32(b), i.e., that they are With respect to the review of existing regulations or rules be reviewed for any developed in a manner which fully regulations and the promulgation of substantial direct effects on States, on provided for public participation, new regulations, section 3(a) of the relationship between the Federal comment, and review. Executive Order 12988, ‘‘Civil Justice Government and the States, or on the In addition, section 32(c) of the FEAA Reform,’’ 61 FR 4729 (February 7, 1996), distribution of power and precludes the Department from imposes on Executive agencies the responsibilities among various levels of incorporating any commercial standard general duty to adhere to the following government. If there are sufficient into a rule unless it has consulted with requirements: (1) Eliminate drafting substantial direct effects, then Executive the Attorney General and the Chairman errors and ambiguity; (2) write Order 12612 requires preparation of a of the Federal Trade Commission (FTC) regulations to minimize litigation; and Federalism assessment to be used in all as to the impact of such standard on (3) provide a clear legal standard for decisions involved in promulgating and competition, and neither individual affected conduct rather than a general implementing a regulation or a rule. recommends against its incorporation. standard and promote simplification The final rule published today would Pursuant to section 32(c), the and burden reduction. With regard to not alter the distribution of authority Department advised these individuals of the review required by section 3(a), and responsibility to regulate in this its intention to incorporate Standards section 3(b) of Executive Order 12988 area. The final rule would only revise a 103–1993 and Z21.56–1991 into its final specifically requires that Executive currently applicable DOE test procedure test procedure rules for furnaces/boilers agencies make every reasonable effort to to improve existing testing methods, and pool heaters, respectively. Neither ensure that the regulation: (1) Clearly and to add provisions that DOE might recommended against such use in future standard setting. incorporation. 5 The Department has informally advised the Department of Justice and the Federal Trade Accordingly, DOE has determined that The Department notes that it is Commission of its intention to incorporate the preparation of a federation assessment is incorporating into today’s rule the updated version of Standard Z21.56 into the final unnecessary. method for testing pool heaters that is rule. 26156 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations specifies the preemptive effect , if any; Issued in Washington, DC, on February 28, revised to read ‘‘section 11.1 of (2) clearly specifies any effect on 1997. American National Standards Institute/ existing Federal law or regulation; (3) Christine A. Ervin, American Society of Heating, provides a clear legal standard for Assistant Secretary, Energy Efficiency and Refrigerating, and Air-Conditioning affected conduct while promoting Renewable Energy. Engineers (ANSI/ASHRAE) Standard simplification and burden reduction; (4) For the reasons set forth in the 103–1993.’’ specifies the retroactive effect, if any; (5) preamble, part 430 of chapter II of Title C. In paragraph (n)(3)(i), the words adequately defines key terms; and (6) 10, Code of Federal Regulations, is ‘‘section 4.11 or 4.13’’ are revised to addresses other important issues amended as set forth below. read ‘‘section 10.5.1 or 10.5.3’’ and in affecting clarity and general paragraph (n)(3)(ii), the words ‘‘section draftsmanship under any guidelines PART 430ÐENERGY CONSERVATION 4.12’’ are revised to read ‘‘section PROGRAM FOR CONSUMER issued by the Attorney General. Section 10.5.2.’’ PRODUCTS 3(c) of Executive Order 12988 requires D. In paragraph (n)(4), the words ‘‘section 4.14’’ are revised to read Executive agencies to review regulations 1. The authority citation for part 430 ‘‘section 10.4.’’ in light of applicable standards in continues to read as follows: E. Revise paragraphs (o)(2), and (p)(1) section 3(a) and section 3(b) to Authority: 42 U.S.C. 6291–6309 to read as follows: determine whether they are met or it is 2. Section 430.2 is amended by unreasonable to meet one or more of § 430.23 Test procedures for measures of adding a definition for the term ‘‘Mobile energy consumption. them. DOE has completed the required home furnace’’ in alphabetical order, to review and determined that, to the read as follows: * * * * * extent permitted by law, the final (o) Vented home heating equipment. regulations meet the relevant standards § 430.2 Definitions. *** of Executive Order 12988. * * * * * (2) The estimated annual operating Mobile home furnace means a direct cost for vented home heating equipment I. Review Under Unfunded Mandates vent furnace that is designed for use is the sum of: Reform Act of 1995 only in mobile homes. (i) The product of the average annual If any proposed or final rule includes * * * * * fuel energy consumption, in Btu’s per a Federal mandate that may result in 3. Section 430.22 is amended by year for natural gas, propane, or oil expenditure by state, local, and tribal adding paragraph (a)(3)(iv) and adding fueled vented home heating equipment, governments, in the aggregate, or by the item numbers 13 and 14 to paragraph determined according to section 4.6.2 of private sector, of $100 million or more (a)(4) to read as follows: appendix O of this subpart, and the representative average unit cost in in any one year, the Unfunded § 430.22 Reference sources. dollars per Btu for natural gas, propane, Mandates Reform Act of 1995, signed (a) * * * or oil, as appropriate, as provided into law on March 22, 1995, requires an (3) * * * pursuant to section 323(b)(2) of the Act; agency (prior to promulgation) to (iv) American Society of Heating, plus prepare a budgetary impact statement Refrigerating and Air-Conditioning (ii) The product of the average annual and select the least costly, most cost Engineers, Inc., Publication Sales, 1791 auxiliary electric energy consumption in effective and least burdensome Tullie Circle, NE, Atlanta, GA 30329, kilowatt-hours per year determined alternative that achieve the objectives of (1–800–5–ASHRAE). according to section 4.6.3 of appendix O (4) * * * the rule and is consistent with statutory of this subpart, and the representative requirements. 13. American National Standards Institute/ American Society of Heating, Refrigerating, average unit cost in dollars per kilowatt- DOE has determined that the action and Air-Conditioning Engineers Standard hours as provided pursuant to section promulgated today does not include 103–1993, ‘‘Methods of Testing for Annual 323(b)(2) of the Act, the resulting sum such a Federal mandate. Therefore, the Fuel Utilization Efficiency of Residential then being rounded off to the nearest requirements of the Unfunded Mandates Central Furnaces and Boilers,’’ (with Errata of dollar per year. Act do not apply to this action. October 24, 1996) except for sections 3.0, * * * * * 7.2.2.5, 8.6.1.1, 9.1.2.2, 9.5.1.1, 9.5.1.2.1, 9.5.1.2.2, 9.5.2.1, 9.7.1, 10.0, 11.2.12, 11.3.12, (p) Pool heaters. (1) The estimated J. Review Under Small Business annual operating cost for pool heaters is Regulatory Enforcement Fairness Act of 11.4.12, 11.5.12 and appendices B and C. 14. American National Standards Institute the sum of: (i) The product of the 1996 Standard Z21.56–1994, ‘‘Gas-Fired Pool average annual fuel energy As required by 5 U.S.C. 801, DOE will Heaters,’’ section 2.9. consumption, in Btu’s per year, of natural gas or oil fueled pool heaters, report to Congress promulgation of the * * * * * determined according to section 4.2 of rule prior to its effective date. 5 U.S.C. 4. Section 430.23 is amended as appendix P of this subpart, and the 801. The report will state that it has follows: A. In paragraph (n)(1)(i), the words representative average unit cost in been determined that the rule is not a ‘‘section 4.8 or 4.10’’ are revised to read dollars per Btu for natural gas or oil, as ‘‘major rule’’ as defined by 5 U.S.C. ‘‘section 10.2.2 or 10.3’’ and in appropriate, as provided pursuant to 804(3). paragraph (n)(1)(ii), the words ‘‘section section 323(b)(2) of the Act; plus (ii) the List of Subjects in 10 CFR Part 430 4.9’’ are revised to read ‘‘section 10.2.3’’ product of the average annual auxiliary and, in the parenthetical phase, the electric energy consumption in kilowatt- Administrative practice and words ‘‘section 4’’ are revised to read hours per year determined according to procedure, Energy conservation, ‘‘section 10.’’ section 4.3 of appendix P of this Household appliances, Incorporation by B. In paragraph (n)(2), the words subpart, and the representative average reference. ‘‘section 4.6’’ are revised to read unit cost in dollars per kilowatt-hours as ‘‘section 10.1’’ and the words ‘‘section provided pursuant to section 323(b)(2) 4.1 of appendix N of this subpart’’ are of the Act, the resulting sum then being Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26157 rounded off to the nearest dollar per or seal around the junction connecting the that closes within 10 seconds after the burner year. vent pipe and the 5-ft test stack. Insulate the shuts off to restrict the flow through the heat 5-ft test stack with insulation having an R- exchanger in the off-cycle, bypass or adjust * * * * * value not less than 7 and an outer layer of the control for the electromechanical damper 5. Appendix N to subpart B of part aluminum foil. (See Figure 3–E of ANSI/ so that the damper remains open during the 430 is revised to read as follows: ASHRAE Standard 103–1993.) cool-down test. For furnaces that employ Appendix N to Subpart B of Part 430— 7.0 Testing conditions. The testing post purge, measure the length of the post- conditions shall be as specified in section 8 purge period with a stopwatch. The time Uniform Test Method for Measuring the of ANSI/ASHRAE Standard 103–1993 with from burner OFF to combustion blower OFF Energy Consumption of Furnaces and errata of October 24, 1996, except for section (electrically de-energized) shall be recorded Boilers 8.6.1.1; and as specified in section 7.1 of this as tp. For the case where tp is intended to be 1.0 Scope. The scope of this appendix is appendix. greater than 180 seconds, stop the as specified in section 2.0 of ANSI/ASHRAE 7.1 Measurement of jacket surface combustion blower at 180 seconds and use Standard 103–1993. temperature. The jacket of the furnace or that value for tp. Measure the flue gas 2.0 Definitions. Definitions include the boiler shall be subdivided into 6-inch squares temperature by means of the thermocouple definitions specified in section 3 of ANSI/ when practical, and otherwise into 36- grid described in section 7.6 of ANSI/ ASHRAE Standard 103–1993 and the square-inch regions comprising 4 in. x 9 in. ASHRAE 103–1993 at the end of post-purge following additional and modified or 3 in. x 12 in. sections, and the surface period, tp (TF,OFF(tp)), and at the time (1.5 + definitions: temperature at the center of each square or tp) minutes (TF,OFF(t3)) and (9.0 + tp) minutes 2.1 ANSI/ASHRAE Standard 103–1993 section shall be determined with a surface (TF,OFF(t4)) after the main burner shuts off. means the test standard published in 1993 by thermocouple. The 36-square-inch areas shall For the case where the measured tp is less ASHRAE, approved by the American be recorded in groups where the temperature than or equal to 30 seconds, it shall be tested National Standards Institute (ANSI) on differential of the 36-square-inch area is less as if there is no post purge and tp shall be ° ° October 4, 1993, and entitled ‘‘Method of than 10 F for temperature up to 100 F above set equal to 0. ° Testing for Annual Fuel Utilization room temperature and less than 20 F for 8.3 Gas- and oil-fueled gravity and forced ° Efficiency of Residential Central Furnaces temperature more than 100 F above room air central furnaces without stack dampers and Boilers’’ (with errata of October 24, temperature. For forced air central furnaces, with adjustable fan control—cool-down test. 1996). the circulating air blower compartment is For a furnace with adjustable fan control, this 2.2 ASHRAE means the American Society considered as part of the duct system and no time delay will be 3.0 minutes for non- of Heating, Refrigerating and Air- surface temperature measurement of the condensing furnaces or 1.5 minutes for Conditioning Engineers, Inc. blower compartment needs to be recorded for condensing furnaces or until the supply air 2.3 Thermal stack damper means a type the purpose of this test. For downflow temperature drops to a value of 40°F above of stack damper which is dependent for furnaces, measure all cabinet surface the inlet air temperature, whichever results operation exclusively upon the direct temperatures of the heat exchanger and in the longest fan on-time. For a furnace conversion of thermal energy of the stack combustion section, including the bottom without adjustable fan control or with the gases to open the damper. around the outlet duct, and the burner door, type of adjustable fan control whose range of 2.4 Isolated combustion system. The using the 36 square-inch thermocouple grid. adjustment does not allow for the delay time definition of isolation combustion system in The cabinet surface temperatures around the specified above, the control shall be bypassed section 3 of ANSI/ASHRAE Standard 103– blower section do not need to be measured and the fan manually controlled to give the 1993 is incorporated with the addition of the (See figure 3–E of ANSI/ASHRAE Standard delay times specified above. For a furnace following: ‘‘The unit is installed in an un- 103–1993.) which employs a single motor to drive the conditioned indoor space isolated from the 8.0 Test procedure. Testing and power burner and the indoor air circulating heated space.’’ measurements shall be as specified in section blower, the power burner and indoor air 3.0 Classifications. Classifications are as 9 of ANSI/ASHRAE Standard 103–1993 circulating blower shall be stopped together. specified in section 4 of ANSI/ASHRAE except for sections 9.5.1.1, 9.5.1.2.1, 8.4 Gas-and oil-fueled boilers without Standard 103–1993. 9.5.1.2.2, 9.5.2.1, and section 9.7.1. ; and as stack dampers cool-down test. After steady- 4.0 Requirements. Requirements are as specified in sections 8.1, 8.2, 8.3, 8.4, and state testing has been completed, turn the specified in section 5 of ANSI/ASHRAE 8.5, of this appendix. main burner(s) OFF and measure the flue gas Standard 103–1993. 8.1 Input to interrupted ignition device. temperature at 3.75 (TF,OFF(t3)) and 22.5 5.0 Instruments. Instruments must be as For burners equipped with an interrupted (TF,OFF(t4)) minutes after the burner shut off, specified in section 6 of ANSI/ASHRAE ignition device, record the nameplate electric using the thermocouple grid described in Standard 103–1993. power used by the ignition device, PEIG, or section 7.6 of ANSI/ASHRAE 103–1993. 6.0 Apparatus. The apparatus used in use PEIG=0.4 kW if no nameplate power During this off-period, for units that do not conjunction with the furnace or boiler during input is provided. Record the nameplate have pump delay after shutoff, no water shall the testing must be as specified in section 7 ignition device on-time interval, tIG, or be allowed to circulate through the hot water of ANSI/ASHRAE Standard 103–1993 except measure the on-time period at the beginning boilers. For units that have pump delay on for section 7.2.2.5; and as specified in section of the test at the time the burner is turned shutoff, except those having pump controls 6.1 of this appendix: on with a stop watch, if no nameplate value sensing water temperature, the pump shall be ∂ 6.1 Downflow furnaces. Install the is given. Set tIG=0 and PEIG=0 if the device stopped by the unit control and the time t , internal section of vent pipe the same size as on-time is less than or equal to 5 seconds between burner shutoff and pump shutoff the flue collar for connecting the flue collar after the burner is on. shall be measured within one-second to the top of the unit, if not supplied by the 8.2 Gas- and oil-fueled gravity and forced accuracy. For units having pump delay manufacturer. Do not insulate the internal air central furnaces without stack dampers controls that sense water temperature, the vent pipe during the jacket loss test (if cool-down test. Turn off the main burner after pump shall be operated for 15 minutes and conducted) described in section 8.6 of ANSI/ steady-state testing is completed, and t∂ shall be 15 minutes. While the pump is ASHRAE Standard 103–1993 or the steady- measure the flue gas temperature by means operating, the inlet water temperature and state test described in section 9.1 of ANSI/ of the thermocouple grid described in section flow rate shall be maintained at the same ASHRAE Standard 103–1993. Do not insulate 7.6 of ANSI/ASHRAE 103–1993 at 1.5 values as used during the steady-state test as the internal vent pipe before the cool-down minutes (TF,OFF(t3)) and 9 minutes (TF,OFF(t4)) specified in sections 9.1 and 8.4.2.3 of ANSI/ and heat-up tests described in sections 9.5 after the burner shuts off. An integral draft ASHRAE 103–1993. and 9.6, respectively, of ANSI/ASHRAE diverter shall remain blocked and insulated, For boilers that employ post purge, Standard 103–1993. If the vent pipe is and the stack restriction shall remain in measure the length of the post-purge period surrounded by a metal jacket, do not insulate place. On atmospheric systems with an with a stopwatch. The time from burner OFF the metal jacket. Install a 5-ft test stack of the integral draft diverter or draft hood, equipped to combustion blower OFF (electrically de- same cross sectional area or perimeter as the with either an electromechanical inlet energized) shall be recorded as tP. For the vent pipe above the top of the furnace. Tape damper or an electro-mechanical flue damper case where tP is intended to be greater than 26158 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

180 seconds, stop the combustion blower at 10.2.1 National average number of burner =0 if tP is equal to or less than 30 second. 180 seconds and use that value for tP. operating hours. For furnaces and boilers y=ratio of blower or pump on-time to average Measure the flue gas temperature by means equipped with single stage controls, the burner on-time, as follows: of the thermocouple grid described in section national average number of burner operating 1 for furnaces without fan delay; 7.6 of ANSI/ASHRAE 103–1993 at the end of hours is defined as: 1 for boilers without a pump delay; ∂ ¥ the post purge period tP(TF,OFF(tP)) and at the 1+(t —t )/3.87 for single stage furnaces BOHSS=2,080 (0.77) A DHR–2,080 B time (3.75 + tP) minutes (TF,OFF(t3)) and (22.5 with fan delay; where: ∂ ¥ + tP) minutes (TF,OFF(t4)) after the main 1+(t —t )/10 for two-stage and step burner shuts off. For the case where the 2,080=national average heating load hours modulating furnaces with fan delay; ∂ measured tP is less or equal to 30 seconds, 0.77=adjustment factor to adjust the 1+(t /9.68) for single stage boilers with it shall be tested as if there is no post purge calculated design heating requirement pump delay; or ∂ and tP shall be set to equal 0. and heating load hours to the actual 1+(t /15) for two stage and step 8.5 Direct measurement of off-cycle losses heating load experienced by the heating modulating boilers with pump delay. testing method. [Reserved.] system BE=circulating air fan or water pump 9.0 Nomenclature. Nomenclature shall DHR=typical design heating requirements as electrical energy input rate at full load include the nomenclature specified in listed in Table 8 (in unit of kBtu/h) of steady-state operation, as defined in section 10 of ANSI/ASHRAE Standard 103– ANSI/ASHRAE Standard 103–1993, ANSI/ASHRAE Standard 103–1993 1993 and the following additional variables: using the proper value of QOUT defined QIN=as defined in 11.2.8.1 of ANSI/ASHRAE

Effmotor=Efficiency of power burner motor in 11.2.8.1 of ANSI/ASHRAE Standard Standard 103–1993 PEIG=Electrical power to the interrupted 103–1993 QP=as defined in 11.2.11 of ANSI/ASHRAE ignition device, kW A=100,000 / Standard 103–1993 RT,a=RT,F if flue gas is measured [341,300(yPPE+yIGPEIG+yBE)+(QIN– EffyHS=as defined in 11.2.11 (non-condensing =RT,S if stack gas is measured QP)EffyHS], for forced draft unit, indoors systems) or 11.3.11.3 (condensing RT,F=Ratio of combustion air mass flow rate =100,000 / [341,300(yPPE systems) of ANSI/ASHRAE Standard to stoichiometric air mass flow rate Effmotor+yIGPEIG+y BE)+(QIN–QP)EffyHS], 103–1993, percent, and calculated on the RT,S=Ratio of the sum of combustion air and for forced draft unit, ICS, basis of: relief air mass flow rate to stoichiometric =100,000 / [341,300(yPPE(1– ICS installation, for non-weatherized warm air mass flow rate Effmotor)+yIGPEIG+y BE)+(QIN–QP)EffyHS], air furnaces; tIG=Electrical interrupted ignition device on- for induced draft unit, indoors, and indoor installation, for non-weatherized time, min. =100,000 / [341,300(yIGPEIG+yBE)+(QIN– boilers; or Ta,SS,X=TF,SS,X if flue gas temperature is QP)EffyHS], for induced draft unit, ICS outdoor installation, for furnaces and measured, °F B=2 QP(EffyHS)(A) / 100,000 boilers that are weatherized. =TS,SS,X if stack gas temperature is where: 2=ratio of the average length of the heating measured, °F season in hours to the average heating Effmotor=Power burner motor efficiency load hours yIG=ratio of electrical interrupted ignition provided by manufacturer, device on-time to average burner on-time t∂=as defined in 9.5.1.2 of ANSI/ASHRAE =0.50, an assumed default power burner Standard 103–1993 or 8.4 of this yP=ratio of power burner combustion blower efficiency if not provided by on-time to average burner on-time appendix manufacturer. ¥ 10.0 Calculation of derived results from t =as defined in 9.6.1 of ANSI/ASHRAE 100,000=factor that accounts for percent and Standard 103–1993 test measurements. Calculations shall be as kBtu specified in section 11 of ANSI/ASHRAE PE=burner electrical power input at full-load 10.2.1.1 For furnaces and boilers Standard 103–1993 and the October 24, 1996, steady-state operation, including equipped with two stage or step modulating Errata Sheet for ASHRAE Standard 103– electrical ignition device if energized, as controls the average annual energy used 1993, except for appendices B and C; and as defined in 9.1.2.2 of ANSI/ASHRAE during the heating season, EM, is defined as: specified in sections 10.1 through 10.8 and Standard 103–1993 EM=(QIN¥QP) BOHSS+(8,760¥4,600)QP Figure 1 of this appendix. yP=ratio of induced or forced draft blower on- where: 10.1 Annual fuel utilization efficiency. time to average burner on-time, as QIN=as defined in 11.4.8.1.1 of ANSI/ The annual fuel utilization efficiency (AFUE) follows: ASHRAE Standard 103–1993 is as defined in sections 11.2.12 (non- 1 for units without post purge; QP=as defined in 11.4.12 of ANSI/ASHRAE condensing systems), 11.3.12 (condensing 1+(tP/3.87) for single stage furnaces with Standard 103–1993 systems), 11.4.12 (non-condensing post purge; BOHSS=as defined in section 10.2.1 of this modulating systems) and 11.5.12 (condensing 1+(tP/10) for two-stage and step modulating appendix, in which the weighted EffyHS modulating systems) of ANSI/ASHRAE furnaces with post purge; as defined in 11.4.11.3 or 11.5.11.3 of Standard 103–1993, except for the definition 1+(tP/9.68) for single stage boilers with ANSI/ASHRAE Standard 103–1993 is HS in the defining equation for the term Effy post purge; or used for calculating the values of A and for AFUE. EffyHS is defined as: 1+(tP/15) for two stage and step modulating B, the term DHR is based on the value EffyHS=heating seasonal efficiency as defined boilers with post purge. of QOUT defined in 11.4.8.1.1 or in sections 11.2.11 (non-condensing PEIG=electrical input rate to the interrupted 11.5.8.1.1 of ANSI/ASHRAE Standard systems), 11.3.11 (condensing systems), ignition device on burner (if employed), 103–1993, and the term 11.4.11 (non-condensing modulating as defined in 8.1 of this appendix (yPPE+yIGPEIG+yBE) in the factor A is systems) and 11.5.11 (condensing yIG=ratio of burner interrupted ignition increased by the factor R, which is modulating systems) of ANSI/ASHRAE device on-time to average burner on- defined as: Standard 103–1993 and is based on the time, as follows: R=2.3 for two stage controls assumptions that all weatherized warm 0 for burners not equipped with =2.3 for step modulating controls when the air furnaces or boilers are located out-of- interrupted ignition device; ratio of minimum-to-maximum output is doors, that warm air furnaces which are (tIG/3.87) for single stage furnaces; greater than or equal to 0.5 not weatherized are installed as isolated (tIG/10) for two-stage and step modulating =3.0 for step modulating controls when the combustion systems, and that boilers furnaces; ratio of minimum-to-maximum output is which are not weatherized are installed (tIG/9.68) for single stage boilers; or less than 0.5 indoors. (tIG/15) for two stage and step modulating A=100,000/[341,300(yPPE+yIGPEIG+y BE) 10.2 National average burner operating boilers. R+(QIN¥QP) EffyHS], for forced draft hours, average annual fuel energy tIG=on-time of the burner interrupted ignition unit, indoors consumption and average annual auxiliary device, as defined in 8.1 of this appendix =100,000/[341,300(yPPE Effmotor+yIGPEIG+y electrical energy consumption for gas or oil tP=post purge time as defined in 8.2 (furnace) BE) R+(QIN¥QP)EffyHS], for forced draft furnaces and boilers. or 8.4 (boiler) of this appendix unit, ICS, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26159

=100,000/[341,300(yPPE(1– single stage controls the average annual fuel PEIG=as defined in 10.2.1 of this appendix Effmotor)+yIGPEIG+y BE) R+(QIN¥QP) energy consumption (EF) is expressed in Btu y=as defined in 10.2.1. of this appendix EffyHS], for induced draft unit, indoors, per year and defined as: BER=as defined in 9.1.2.2 of ANSI/ASHRAE

and EF=BOHSS(QIN¥QP)+8,760 QP Standard 103–1993, measured at the =100,000/[341,300(yIG IG PE +y BE) where: reduced fuel input rate R+(QIN¥QP) EffyHS], for induced draft BOHM=as defined in 10.2.1.4 of this unit, ICS BOHSS=as defined in 10.2.1 of this appendix appendix QIN=as defined in 11.2.8.1 of ANSI/ASHRAE where: PEH=as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103–1993 Standard 103–1993, measured at the Effmotor=Power burner motor efficiency QP=as defined in 11.2.11 of ANSI/ASHRAE maximum fuel input rate provided by manufacturer, Standard 103–1993 BEH=as defined in 9.1.2.2 of ANSI/ASHRAE =0.50, an assumed default power burner 8,760=as specified in 10.2.1 of this appendix efficiency if none provided by Standard 103–1993, measured at the 10.2.2.1 For furnaces or boilers equipped manufacturer. maximum fuel inputs rate with either two stage or step modulating EffyHS=as defined in 11.4.11.3 or 11.5.11.3 of 10.3 Average annual electric energy controls EF is defined as: ANSI/ASHRAE Standard 103–1993, and consumption for electric furnaces or boilers. calculated on the basis of: EF=EM + 4,600QP For electric furnaces and boilers the average —ICS installation, for non-weatherized where: annual energy consumption (EE) is expressed warm air furnaces EM=as defined in 10.2.1.1 of this appendix in kilowatt-hours and defined as:

—indoor installation, for non-weatherized 4,600=as specified in 11.4.12 of ANSI/ EE=100(2,080)(0.77)DHR/(3.412 AFUE) boilers ASHRAE Standard 103–1993 where: —outdoor installation, for furnaces and QP=as defined in 11.2.11 of ANSI/ASHRAE boilers that are weatherized Standard 103–1993 100=to express a percent as a decimal 2,080=as specified in 10.2.1 of this appendix 8,760=total number of hours per year 10.2.3 Average annual auxiliary electrical 0.77=as specified in 10.2.1 of this appendix 4,600=as specified in 11.4.12 of ANSI/ energy consumption for gas or oil fueled DHR=as defined in 10.2.1 of this appendix ASHRAE Standard 103–1993 furnaces or boilers. For furnaces or boilers 3.412=conversion to express energy in terms 10.2.1.2 For furnaces and boilers equipped with single stage controls the of watt-hours instead of Btu equipped with two stage or step modulating average annual auxiliary electrical AFUE=as defined in 11.1 of ANSI/ASHRAE controls the national average number of consumption (EAE) is expressed in kilowatt- burner operating hours at the reduced hours and defined as: Standard 103–1993, in percent, and operating mode is defined as: calculated on the basis of: EAE=BOHSS(yPPE +yIGPEIG+yBE) ICS installation, for non-weatherized warm BOHR=XREM/QIN,R where: air furnaces; where: BOHSS=as defined in 10.2.1 of this appendix indoor installation, for non-weatherized XR=as defined in 11.4.8.7 of ANSI/ASHRAE PE=as defined in 10.2.1 of this appendix boilers; or Standard 103–1993 yP=as defined in 10.2.1 of this appendix outdoor installation, for furnaces and EM=as defined in section 10.2.1.1 of this yIG=as defined in 10.2.1 of this appendix boilers that are weatherized. appendix PEIG=as defined in 10.2.1 of this appendix 10.4 Energy factor. QIN,R=as defined in 11.4.8.1.2 of ANSI/ y=as defined in 10.2.1 of this appendix 10.4.1 Energy factor for gas or oil ASHRAE Standard 103–1993 BE=as defined in 10.2.1 of this appendix furnaces and boilers. Calculate the energy 10.2.1.3 For furnaces and boilers 10.2.3.1 For furnaces or boilers equipped factor, EF, for gas or oil furnaces and boilers equipped with two stage controls the with two stage controls EAE is defined as: defined as, in percent: national average number of burner operating EAE=BOHR(yPPER+yIGPEIG+yBER) + hours at the maximum operating mode − BOHH(yPPEH+yIGPEIG+y BEH) ()EF4, 600 Q P Effy HS (BOHH) is defined as: EF = where: + BOHH=XHEM/QIN EEF3, 412 AE BOHR=as defined in 10.2.1.2 of this appendix where: yP=as defined in 10.2.1 of this appendix where: H X =as defined in 11.4.8.6 of ANSI/ASHRAE PER=as defined in 9.1.2.2 and measured at EF=average annual fuel consumption as Standard 103–1993 the reduced fuel input rate, of ANSI/ defined in 10.2.2 of this appendix. EM=as defined in section 10.2.1.1 of this ASHRAE Standard 103–1993 EAE=as defined in 10.2.3 of this appendix. appendix yIG=as defined in 10.2.1 of this appendix EffyHS=Annual Fuel Utilization Efficiency as QIN=as defined in 11.4.8.1.1 of ANSI/ PEIG=as defined in 10.2.1 of this appendix defined in 11.2.11, 11.3.11, 11.4.11 or ASHRAE Standard 103–1993 y=as defined in 10.2.1 of this appendix 11.5.11 of ANSI/ASHRAE Standard 103– 10.2.1.4 For furnaces and boilers BER=as defined in 9.1.2.2 of ANSI/ASHRAE 1993, in percent, and calculated on the equipped with step modulating controls the Standard 103–1993, measured at the basis of: national average number of burner operating reduced fuel input rate ICS installation, for non-weatherized warm hours at the modulating operating mode BOHH=as defined in 10.2.1.3 of this appendix air furnaces; (BOHM) is defined as: PEH=as defined in 9.1.2.2 of ANSI/ASHRAE indoor installation, for non- BOHM=XHEM/QIN,M Standard 103–1993, measured at the maximum fuel input rate weatherized boilers; or where: BEH=as defined in 9.1.2.2 of ANSI/ASHRAE outdoor installation, for furnaces and XH=as defined in 11.4.8.6 of ANSI/ASHRAE Standard 103–1993, measured at the boilers that are weatherized. Standard 103–1993 maximum fuel input rate 3,412=conversion factor from kilowatt to Btu/ EM=as defined in section 10.2.1.1 of this 10.2.3.2 For furnaces or boilers equipped h appendix with step modulating controls EAE is defined 10.4.2 Energy factor for electric furnaces QIN,M=QOUT,M/(EffySS,M/100) as: and boilers. The energy factor, EF, for electric QOUT,M=as defined in 11.4.8.10 or 11.5.8.10 furnaces and boilers is defined as: of ANSI/ASHRAE Standard 103–1993, as EAE=BOHR(yP PER+yIGPEIG+y EF=AFUE appropriate BER)+BOHM(yPPEH+yIGPEIG+y BEH) EffySS,M=as defined in 11.4.8.8 or 11.5.8.8 of where: where:

ANSI/ASHRAE Standard 103–1993, as BOHR=as defined in 10.2.1.2 of this appendix AFUE=Annual Fuel Utilization Efficiency as appropriate, in percent yP=as defined in 10.2.1 of this appendix defined in section 10.3 of this appendix, 100=factor that accounts for percent PER=as defined in 9.1.2.2 of ANSI/ASHRAE in percent 10.2.2 Average annual fuel energy Standard 103–1993, measured at the 10.5 Average annual energy consumption consumption for gas or oil fueled furnaces or reduced fuel input rate for furnaces and boilers located in a different boilers. For furnaces or boilers equipped with yIG=as defined in 10.2.1 of this appendix geographic region of the United States and in 26160 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations buildings with different design heating 10.5.3 Average annual electric energy 10.7 Calculation of sales weighted requirements. consumption for electric furnaces and boilers average annual energy consumption for 10.5.1 Average annual fuel energy located in a different geographic region of the mobile home furnaces. In order to reflect the consumption for gas or oil-fueled furnaces United States and in buildings with different distribution of mobile homes to geographical and boilers located in a different geographic design heating requirements. For electric regions with average HLHMHF value different region of the United States and in buildings furnaces and boilers the average annual from 2,080, adjust the annual fossil fuel and with different design heating requirements. electric energy consumption for a specific auxiliary electrical energy consumption For gas or oil-fueled furnaces and boilers the geographic region and a specific typical values for mobile home furnaces using the average annual fuel energy consumption for design heating requirement (EER) is expressed following adjustment calculations. a specific geographic region and a specific in kilowatt-hours and defined as: 10.7.1 For mobile home furnaces the sales typical design heating requirement (EFR) is EER=100 (0.77) DHR HLH/(3.412 AFUE) weighted average annual fossil fuel energy expressed in Btu per year and defined as: where: consumption is expressed in Btu per year EFR=(EF¥8,760 QP)(HLH/2,080)+8,760 QP and defined as: 100=as specified in 10.3 of this appendix where: ¥ 0.77=as specified in 10.2.1 of this appendix EF,MHF=(EF 8,760 QP)HLHMHF/2,080+8,760 QP EF=as defined in 10.2.2 of this appendix DHR=as defined in 10.2.1 of this appendix 8,760=as specified in 10.2.1 of this appendix HLH=as defined in 10.5.1 of this appendix where: QP=as defined in 11.2.11 of ANSI/ASHRAE 3.412=as specified in 10.3 of this appendix EF=as defined in 10.6.2 of this appendix Standard 103–1993 AFUE=as defined in 10.3 of this appendix, in 8,760=as specified in 10.2.1 of this appendix HLH=heating load hours for a specific percent QP=as defined in 11.2.11 of ANSI/ASHRAE geographic region determined from the Standard 103–1993 heating load hour map in Figure 1 of this 10.6 Annual energy consumption for mobile home furnaces HLHMHF=1880, sales weighted average appendix heating load hours for mobile home 2,080=as defined in 10.2.1 of this appendix 10.6.1 National average number of burner operating hours for mobile home furnaces furnaces 10.5.2 Average annual auxiliary electrical 2,080=as specified in 10.2.1 of this appendix (BOHSS). BOHSS is the same as in 10.2.1 of energy consumption for gas or oil-fueled this appendix, except that the value of EffyHS 10.7.2 For mobile home furnaces the sales furnaces and boilers located in a different weighted average annual auxiliary electrical geographic region of the United States and in in the calculation of the burner operating hours, BOHSS, is calculated on the basis of a energy consumption is expressed in kilowatt- buildings with different design heating hours and defined as: requirements. For gas or oil-fueled furnaces direct vent unit with system number 9 or 10. and boilers the average annual auxiliary 10.6.2 Average annual fuel energy for EAE,MHF=EAEHLHMHF/2,080 electrical energy consumption for a specific mobile home furnaces (EF). EF is same as in where: 10.2.2 of this appendix except that the burner geographic region and a specific typical EAE=as defined in 10.6.3 of this appendix operating hours, BOHSS, is calculated as design heating requirement (EAER) is HLHMHF=as defined in 10.7.1 of this expressed in kilowatt-hours and defined as: specified in 10.6.1 of this appendix. appendix 10.6.3 Average annual auxiliary electrical EAER=EAE (HLH/2,080) 2,080=as specified in 10.2.1 of this appendix energy consumption for mobile home 10.8 Direct determination of off-cycle where: furnaces (EAE). EAE is the same as in 10.2.3 losses for furnaces and boilers equipped with EAE=as defined in 10.2.3 of this appendix of this appendix, except that the burner thermal stack dampers. [Reserved.] HLH=as defined in 10.5.1 of this appendix operating hours, BOHSS, is calculated as 2,080=as specified in 10.2.1 of this appendix specified in 10.6.1 of this appendix. BILLING CODE 6450±01±P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26161

BILLING CODE 6450±01±C 26162 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

6. Appendix O to subpart B of part provision applies only if an instruction to appendix for manually controlled gas vented 430 is amended as follows: turn off the unit is provided on the heater heaters or section 3.1.2 to this appendix for near the gas control valve (e.g. by label) by manually controlled oil vented heaters if the Appendix O to Subpart B of Part 430— the manufacturer. design of the heater is such that the ± 5 Uniform Test Method for Measuring the b. Section 4.2.4 is revised to read as percent of 50 percent of the maximum fuel Energy Consumption of Vented Home input rate cannot be set, provided this Heating Equipment follows: minimum rate is no greater than 2⁄3 of a. Section 3.5 is revised to read as 4.2.4 Weighted-average steady-state maximum input rate of the heater. follows: efficiency. 4.2.4.2 For manually controlled heater 4.2.4.1 For manually controlled heaters with one single firing rate the weighted 3.5 Pilot light measurement. with various input rates the weighted average average steady-state efficiency is the steady- 3.5.1 Measure the energy input rate to the η steady-state efficiency ( SS¥WT), is state efficiency measured at the single firing pilot light (QP) with an error no greater than determined as follows: rate. 3 percent for vented heaters so equipped. (1) at 50 percent of the maximum fuel 3.5.2 For manually controlled heaters input rate as measured in either section 3.1.1 c. Section 4.2.6 is revised to read as where the pilot light is designed to be turned of this appendix for manually controlled gas follows: off by the user when the heater is not in use, vented heaters or section 3.1.2 of this that is, turning the control to the OFF appendix for manually controlled oil vented 4.2.6 Annual Fuel Utilization Efficiency. position will shut off the gas supply to the heaters, or 4.2.6.1 For manually controlled vented burner(s) and to the pilot light, the (2) at the minimum fuel input rate as heaters, calculate the AFUE expressed as a measurement of QP is not needed. This measured in either section 3.1.1 to this percent and defined as:

2, 950 η η Q AFUE = SS u in−max η+ η 2,.(,) 950SSQQ in−max 2 083 4 600 u P where: 2,950=average number of heating degree days ηSS=as defined as ηSS¥WT in 4.2.4 of this appendix ηu=as defined in 4.2.5 of this appendix Qin¥max=as defined as Qin at the maximum fuel input rate, as defined in 3.1 of this appendix 4,600=average number of non-heating season hours per year QP=as defined in 3.5 of this appendix 2.083=(65–15)/24=50/24 65=degree day base temperature, °F 15=national average outdoor design temperature for vented heaters as defined in section 4.1.10 of this appendix 24=number of hours in a day

4.2.6.2 For manually controlled vented where: 4.3.7 Annual Fuel Utilization Efficiency. heaters where the pilot light can be turned ηu=as defined in section 4.2.5 of this Calculate the AFUE expressed as a percent off by the user when the heater is not in use appendix and defined as: as described in section 3.5.2, calculate the AFUE expressed as a percent and defined as: d. Section 4.3.7 is revised to read as AFUE=ηu follows:

2, 950 η η Q AFUE = SS− WT u in −max η+ η 2,.(,) 950SS− WTQQ in −max 2 083 4 600 u P

where: where: B=2.938(QP) ηu A/100,000 2,950=average number of heating degree days 1,416=national average heating load hours for 100,000=factor that accounts for percent and kBtu ηSS-WT=as defined in 4.1.16 of this appendix vented heaters based on 2,950 degree ° PE=as defined in 3.1.3 of this appendix ηu=as defined in 4.3.6 of this appendix days and 15 F outdoor design temperature QP=as defined in 3.5 of this appendix Qin¥max=as defined in 4.2.6 of this appendix ηu=as defined in 4.3.6 of this appendix for 4,600=as specified in 4.2.6 of this appendix AF=0.7067, adjustment factor to adjust the calculated design heating requirement vented heaters using the tracer gas QP=as defined in 3.5 of this appendix and heating load hours to the actual method, percent 2.083=as specified in 4.2.6 of this appendix heating load experienced by the heating =as defined in 4.2.5 of this appendix for manually controlled vented heaters, system e. Add section 4.6 after section 4.5.3 percent DHR=typical design heating requirements and before the table 1 to read as follows: =2,950 AFUEηSS Qin/[2,950 ηSS Qin— based on QOUT, from Table 4 of this AFUE(2.083)(4,600)QP], for vented 4.6 Annual energy consumption. appendix. η heaters equipped without manual 4.6.1 National average number of burner QOUT=[( SS/100)¥Cj (Lj/100)] Qin controls and without thermal stack operating hours. For vented heaters equipped Lj=jacket loss as defined in 4.1.5 of this dampers and not using the optional with single stage controls or manual controls, appendix tracer gas method, where: the national average number of burner Cj=2.8, adjustment factor as defined in 4.3.6 AFUE=as defined in 4.1.17 of this appendix, operating hours (BOH) is defined as: of this appendix percent η SS=steady-state efficiency as defined in 2,950=average number of heating degree days BOHSS=1,416AFA DHR¥1,416 B 4.1.10 of this appendix, percent as defined in 4.2.6 of this appendix Qin=as defined in 3.1 of this appendix at the 4,600=average number of non-heating season maximum fuel input rate hours per year as defined in 4.2.6 of this A=100,000/[341,300PE+(Qin¥QP)ηu] appendix Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26163

2.938=(4,160/1,416)=ratio of the average where: HLH=heating load hours for a specific length of the heating season in hours to geographic region determined from the BOHSS=as defined in 4.6.1 of this appendix the average heating load hours heating load hour map in Figure 3 of this Qin=as defined in 3.1 of this appendix 2.083=as specified in 4.2.6 of this appendix appendix QP=as defined in 3.5 of this appendix 1,416=as specified in 4.6.1 of this appendix 4.6.1.1 For vented heaters equipped with 8,760=as specified in 4.6.1 of this appendix two stage or step modulating controls the 4.6.4.2 Average annual auxiliary 4.6.2.1 For vented heaters equipped with national average number of burner operating electrical energy consumption for gas or oil either two stage or step modulating controls hours at the reduced operating mode is fueled vented home heaters located in a EF is defined as: defined as: different geographic region of the United BOHR=X1EM/Qred-in EF=EM+4,600QP States and in buildings with different design where: where: heating requirements. For gas or oil fueled vented home heaters the average annual X1=as defined in 4.1.14 of this appendix EM=as defined in 4.6.1.2 of this appendix auxiliary electrical energy consumption for a Qred-in=as defined in 4.1.11 of this appendix 4,600=as specified 4.2.6 of this appendix specific geographic region and a specific EM=average annual energy used during the QP=as defined in 3.5 of this appendix typical design heating requirement (EAER) is heating season 4.6.3 Average annual auxiliary electrical =(Qin¥QP)BOHSS+(8,760¥4,600)QP expressed in kilowatt-hours and defined as: energy consumption for vented heaters. For Qin=as defined in 3.1 of this appendix at the vented heaters with single stage controls or EAER=EAE HLH/1,416 maximum fuel input rate manual controls the average annual auxiliary where: QP=as defined in 3.5 of this appendix electrical consumption (EAE) is expressed in EAE=as defined in 4.6.3 of this appendix BOHSS=as defined in 4.6.1 of this appendix, HLH=as defined in 4.6.4.1 of this appendix in which the term PE in the factor A is kilowatt-hours and defined as: 1,416=as specified in 4.6.1 of this appendix increased by the factor R, which is EAE=BOHSSPE defined in 3.1.3 of this appendix as: where: f. Table 4 and Figure 3 are added to R=1.3 for two stage controls BOHSS=as defined in 4.6.1 of this appendix the end of appendix O to subpart B of =1.4 for step modulating controls when the 10 CFR part 430 to read as follows: ratio of minimum-to-maximum fuel PE=as defined in 3.1.3 of this appendix input is greater than or equal to 0.7 4.6.3.1 For vented heaters equipped with TABLE 4.ÐAVERAGE DESIGN HEATING =1.7 for step modulating controls when the two stage or modulating controls EAE is ratio of minimum-to-maximum fuel defined as: REQUIREMENTS FOR VENTED HEAT- input is less than 0.7 and greater than or ERS WITH DIFFERENT OUTPUT CA- EAE=(BOHR+BOHH)PE equal to 0.5 PACITIES =2.2 for step modulating controls when the where: ratio of minimum-to-maximum fuel BOHR=as defined in 4.6.1 of this appendix Average de- input is less than 0.5 BOHH=as defined in 4.6.1 of this appendix sign heating η Vented heaters output capacity A=100,000/[341,300 PE R+(Qin¥QP) u] PE=as defined in 3.1.3 of this appendix require- QoutÐ(Btu/hr) 8,760=total number of hours per year 4.6.4 Average annual energy ments 4,600=as specified in 4.2.6 of this appendix (kBtu/hr) consumption for vented heaters located in a 4.6.1.2 For vented heaters equipped with different geographic region of the United 5,000±7,499 ...... 5.0 two stage or step modulating controls the States and in buildings with different design 7,500±10,499 ...... 7.5 national average number of burner operating heating requirements. hours at the maximum operating mode 10,500±13,499 ...... 10.0 4.6.4.1 Average annual fuel energy 13,500±16,499 ...... 12.5 (BOHH) is defined as: consumption for gas or oil fueled vented 16,500±19,499 ...... 15.0 BOHH=X2EM/Qin home heaters located in a different 19,500±22,499 ...... 17.5 where: geographic region of the United States and in 22,500±26,499 ...... 20.5 X2=as defined in 4.1.15 of this appendix buildings with different design heating 26,500±30,499 ...... 23.5 EM=average annual energy used during the requirements. For gas or oil fueled vented 30,500±34,499 ...... 26.5 heating season heaters the average annual fuel energy 34,500±38,499 ...... 30.0 =(Qin¥QP)BOHSS+(8,760¥4,600)QP consumption for a specific geographic region 38,500±42,499 ...... 33.5 Qin=as defined in 3.1 of this appendix at the and a specific typical design heating 42,500±46,499 ...... 36.5 maximum fuel input rate requirement (EFR) is expressed in Btu per 46,500±51,499 ...... 40.0 4.6.2 Average annual fuel energy for gas year and defined as: 51,500±56,499 ...... 44.0 or oil fueled vented heaters. For vented 56,500±61,499 ...... 48.0 EFR=(EF¥8,760 QP)(HLH/1,416)+8,760QP heaters equipped with single stage controls 61,500±66,499 ...... 52.0 or manual controls, the average annual fuel where: 66,500±71,499 ...... 56.0 energy consumption (EF) is expressed in Btu EF=as defined in 4.6.2 of this appendix 71,500±76,500 ...... 60.0 per year and defined as: 8,760=as specified in 4.6.1 of this appendix EF=BOHSS (Qin¥QP)+8,760 QP QP=as defined in 3.5 of this appendix BILLING CODE 6450±01±P 26164 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

BILLING CODE 6450±01±C Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26165

7. Appendix P to Subpart B of Part QIN=rated fuel energy input as defined where: 430 is revised to read as follows: according to 2.9.1 or 2.9.2 of ANSI BOH=as defined in 4.2 of this appendix Z21.56–1994, as appropriate Et=thermal efficiency as defined in 4.1 of this Appendix P to Subpart B of Part 430— QP=energy consumption of continuously appendix Uniform Test Method for Measuring the operating pilot light if employed, in QIN=as defined in 4.2 of this appendix Energy Consumption of Pool Heaters Btu/h. PE=as defined in 4.3 of this appendix 1. Test method. The test method for testing 4.3 Average annual auxiliary electrical 100=conversion factor, from percent to pool heaters is as specified in American energy consumption for pool heaters. The fraction National Standards Institute Standard for average annual auxiliary electrical energy 4.4.2 Calculate the seasonal input to the Gas-Fired Pool Heaters, Z21.56–1994. consumption for pool heaters, EAE, is pool heater as: 2. Test conditions. Establish the test expressed in Btu and defined as: EIN=BOH (QIN+PE)+(POH¥BOH) QP conditions specified in section 2.9 of ANSI Z21.56–1994. EAE=BOH PE where: 3. Measurements. Measure the quantities where: BOH=as defined in 4.2 of this appendix delineated in section 2.9 of ANSI Z21.56– QIN=as defined in 4.2 of this appendix PE=2Ec if heater tested according to 2.9.1 of PE=as defined in 4.3 of this appendix 1994. The measurement of energy ANSI Z21.56–1994 consumption for oil-fired pool heaters in Btu POH=as defined in 4.2 of this appendix =3.412 PErated if heater tested according to is to be carried out in appropriate units, e.g., QP=as defined in 4.2 of this appendix 2.9.2 of ANSI Z21.56–1994, in Btu/h gallons. 4.4.3 Calculate the pool heater heating Ec=Electrical consumption of the heater 4. Calculations. seasonal efficiency (in percent). (converted to equivalent unit of Btu), 4.1 Thermal efficiency. Calculate the 4.4.3.1 For pool heaters employing a including the electrical energy to the thermal efficiency, Et (expressed as a continuous pilot light: recirculating pump if used, during the percent), as specified in section 2.9 of ANSI 30-minute thermal efficiency test, as EFFYHS=100(EOUT/EIN) Z21.56–1994. The expression of fuel defined in 2.9.1 of ANSI Z21.56–1994, in where: consumption for oil-fired pool heaters shall Btu per 30 min. EOUT=as defined in 4.4.1 of this appendix be in Btu. 2=Conversion factor to convert unit from per EIN=as defined in 4.4.2 of this appendix 4.2 Average annual fossil fuel energy for 30 min. to per h. 100=to convert a fraction to percent pool heaters. The average annual fuel energy PErated=nameplate rating of auxiliary 4.4.3.2 For pool heaters without a for pool heater, EF, is defined as: electrical equipment of heater, in Watts continuous pilot light: EF=BOH QIN+(POH¥BOH)QP BOH=as defined in 4.2 of this appendix EFFYHS=Et where: 4.4 Heating seasonal efficiency. where: BOH=average number of burner operating 4.4.1 Calculate the seasonal useful output Et=as defined in 4.1 of this appendix. hours=104 h of the pool heater as: POH=average number of pool operating [FR Doc. 97–10608 Filed 5–9–97; 8:45 am] hours=4464 h EOUT=BOH [(Et/100)(QIN+PE)] BILLING CODE 6450±01±P federal register May 12,1997 Monday Provisions; FinalRule Grants Program;Administrative Small BusinessInnovationResearch 7 CFRPart3403 and ExtensionService Cooperative StateResearch,Education, Agriculture Department of Part V 26167 26168 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

DEPARTMENT OF AGRICULTURE competition, jobs, the environment, programs for fiscal year ending public health or safety, or State, local, September 30, 1987, and for other Cooperative State Research, or tribal governments or communities. purposes, as made applicable by section Education, and Extension Service This rule will not create any serious 101(a) of Public Law 99–591, 100 Stat. inconsistencies or otherwise interfere 3341. This rule established and codified 7 CFR Part 3403 with any actions taken or planned by the procedures to be followed in the RIN 0524±AA08 another agency. It will not materially solicitation of competitive small alter the budgetary impact of business innovation research proposals, Small Business Innovation Research entitlements, grants, user fees or loan the evaluation of such proposals, and Grants Program; Administrative programs and does not raise novel legal the award of grants under this program. Provisions or policy issues arising out of legal On September 20, 1991, the Department mandates, the President’s priorities, or published a Final Rule in the Federal AGENCY: Cooperative State Research, principles set forth in Executive Order Register (56 FR 47882–47889), which Education, and Extension Service, No. 12866. In addition, the Department USDA. amended the Cooperative State Research certifies that the rule will not have a Service (CSRS) regulations relating to ACTION: Final rule. significant impact on a substantial the Small Business Innovation Research number of small entities as defined in SUMMARY: The Cooperative State Grants Program. On December 30, 1994, the Regulatory Flexibility Act, Pub. L. the Department published a Final Rule Research, Education, and Extension No. 96–534 (5 U.S.C. 601 et seq.). Service (CSREES) is amending its in the Federal Register (59 FR 68072) regulations relating to the Regulatory Analysis which amended 7 CFR Chapter XXXIV administration of the Small Business This rule has been reviewed under to reflect the abolishment of CSRS and Innovation Research (SBIR) Grants Executive Order 12988, Civil Justice the establishment of CSREES. On May Program, which prescribe the Reform. All State and local laws and 15, 1996, the Department published a procedures to be followed annually in regulations that are in conflict with this Final Rule in the Federal Register (61 the solicitation of research grant rule are preempted. No retroactive effect FR 25366) amending 7 CFR Chapter proposals, the evaluation of such is to be given to this rule. This rule does XXXIV by encouraging individuals who proposals, and the award of competitive not require administrative proceedings are principally responsible for the research grants under this program. This before parties may file suit in court. scientific or technical direction of the rule amends those regulations by proposed work to be designated as the identifying information that will be Environmental Impact Statement principal investigator, making it a specified in the annual solicitation as This regulation does not significantly condition that Federal funds remain for opposed to this rule. CSREES is affect the environment. Therefore, an an extension of a Phase I grant and that republishing these regulations in their environmental impact statement is not an extension will not normally exceed entirety with the proposed amendments required under the National 12 months, requiring that when in order to enhance their use by the Environmental Policy Act of 1969, as purchasing equipment or products with public and to ensure expeditious amended. agreement funds that only American- submission and processing of grant Catalog of Federal Domestic Assistance made items are purchased to the extent proposals. possible, and making a few additional DATES: Effective May 12, 1997. This program is listed in the Catalog changes. On March 11, 1997, the of Federal Domestic Assistance under Department published a Notice in the FOR FURTHER INFORMATION CONTACT: No. 10.212, Small Business Innovation Louise Ebaugh; Director; Office of Federal Register (62 FR 11256–11263) Research (SBIR Program). For the proposing the amendment of this rule Extramural Programs; Cooperative State reasons set forth in the Final Rule- Research, Education, and Extension and inviting comments from interested related Notice to 7 CFR Part 3015, individuals and organizations. Written Service; U.S. Department of Agriculture; Subpart V, 48 FR 29115, June 24, 1983, Washington, DC 20250. Telephone: comments were requested by April 10, and pursuant to the Notice found at 52 1997. No comments were received. (202) 720-9181. FR 22831, June 16, 1987, this program SUPPLEMENTARY INFORMATION: is excluded from the scope of Executive List of Subjects in 7 CFR Part 3403 Order 12372 which requires Paperwork Reduction intergovernmental consultation with Grant programs—Agriculture, Grant Under the provisions of the State and local officials. administration. Paperwork Reduction Act of 1980 (44 Background and Purpose For the reasons set out in the U.S.C. Chapter 35), the collection of preamble, Title 7, Subtitle B, Chapter information requirements contained in On June 10, 1988, the Department XXXIV, Part 3403 of the Code of Federal this rule have been approved under the published a Final Rule in the Federal Regulations is revised to read as follows: Office of Management and Budget Register (53 FR 21966–21972), which (OMB) Document Nos. 0524–0022, established Part 3403 of Title 7, Subtitle PART 3403ÐSMALL BUSINESS 0524–0025, and 0524–0026. B, Chapter XXXIV of the Code of INNOVATION RESEARCH GRANTS Federal Regulations, for the purpose of PROGRAM Classification administering the U.S. Department of This rule has been reviewed under Agriculture’s Small Business Innovation Subpart AÐGeneral Information Executive Order 12866, and it has been Research (SBIR) Grants Program Sec. determined that it is not a ‘‘significant conducted under the authority of the 3403.1 Applicability of regulations. regulatory action’’ rule because it will Small Business Innovation Development 3403.2 Definitions. not have an annual effect on the Act of 1982, as amended (15 U.S.C. 638) 3403.3 Eligibility requirements. economy of $100 million or more or and section 630 of the Act making adversely and materially affect a sector appropriations for Agriculture, Rural Subpart BÐProgram Description of the economy, productivity, Development, and Related Agencies’ 3403.4 Three-phase program. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26169

Subpart CÐPreparation and Submission of State Research, Education, and should have a scientific and technical Proposals Extension Service (CSREES). background. 3403.5 Requests for proposals (b) The regulations of this part do not Program solicitation is a formal 3403.6 General content of proposals. apply to research grants awarded by the request for proposals whereby an agency 3403.7 Proposal format for phase I Department of Agriculture under any notifies the small business community applications. other authority. of its research or research and 3403.8 Proposal format for phase II development needs and interests in applications. § 3403.2 Definitions. selected areas and invites proposals 3403.9 Submission of proposals. As used in this part: from small business concerns in Subpart DÐProposal Review and Ad hoc reviewers means experts or response to those needs. Evaluation consultants, qualified by training and Project means the particular activity 3403.10 Proposal review experience in particular scientific or within the scope of one of the research 3403.11 Availability of information. technical fields to render expert advice topic areas identified in the annual on the scientific or technical merit of solicitation of applications, which is Subpart EÐSupplementary Information grant applications in those fields, who supported by a grant award under this 3403.12 Terms and conditions of grant review on an individual basis one or part. awards several of the eligible proposals Project period means the total length 3403.13 Notice of grant awards. submitted to this program in their area of time that is approved by the 3403.14 Use of funds; changes. of expertise and who submit to the Department for conducting the research 3403.15 Other Federal statutes and project as outlined in an approved grant regulations that apply. Department written evaluations of such 3403.16 Other conditions. proposals. application. Research or research and Authority: 15 U.S.C. 638. Awarding official means any officer or employee of the Department who has development (R&D) means any activity Subpart AÐGeneral Information the authority to issue or modify research which is: project grant instruments on behalf of (1) A systematic, intensive study § 3403.1 Applicability of regulations. the Department. directed toward greater knowledge or Budget period means the interval of understanding of the subject studied; (a) The regulations of this part apply (2) A systematic study directed time into which the project period is to small business innovation research specifically toward applying new divided for budgetary and reporting grants awarded under the general knowledge to meet a recognized need; purposes. authority of section 630 of the Act or making appropriations for Agriculture, Commercialization means the process (3) A systematic application of Rural Development, and Related of developing markets and producing knowledge toward the production of Agencies’ programs for fiscal year and delivering products or services for useful materials, devices, and systems ending September 30, 1987, and for sale (whether by the originating party or or methods, including design, other purposes, as made applicable by by others); as used here, development, and improvement of section 101(a) of Public Law 99–591, commercialization includes both prototypes and new processes to meet 100 Stat. 3341, and the provisions of the government and commercial markets. specific requirements. Small Business Innovation Development Department means the Department of Research project grant means the Act of 1982, as amended (15 U.S.C. Agriculture. award by the Department of funds to a 638). The Small Business Innovation Funding agreement is any contract, grantee to assist in meeting the costs of Development Act of 1982, as amended, grant, or cooperative agreement entered conducting for the benefit of the public mandates that each Federal agency with into between any Federal agency and an identified project which is intended an annual extramural budget for any small business concern for the and designed to establish, discover, research or research and development in performance of experimental, elucidate, or confirm information or the excess of $100 million participate in a developmental, or research work funded underlying mechanisms relating to a Small Business Innovation Research in whole or in part by the Federal research topic area identified in the (SBIR) program by reserving a statutory Government. annual solicitation of applications. percentage of its annual extramural Grantee means the small business Small business concern means a budget for award to small business concern designated in the grant award concern which at the time of award of concerns for research or research and document as the responsible legal entity phase I and phase II funding agreements development in order to stimulate to whom a grant is awarded under this meets the following criteria: technological innovation, use small part. (1) Is organized for profit, business to meet Federal research and Peer review group means experts or independently owned or operated, is development needs, increase private consultants, qualified by training and not dominant in the field in which it is sector commercialization of innovations experience in particular scientific or proposing, has its principal place of derived from Federal research and technical fields to give expert advice on business located in the United States, development, and foster and encourage the scientific and technical merit of has a number of employees not the participation of socially and grant applications in those fields, who exceeding 500 (full-time, part-time, economically disadvantaged small assemble as a group to discuss and temporary, or other) in all affiliated business concerns and women-owned evaluate all of the eligible proposals concerns owned or controlled by a small business concerns in submitted to this program in their area single parent concern, and meets the technological innovation. The U.S. of expertise. other regulatory requirements outlined Department of Agriculture (USDA) will Principal investigator means a single in 13 CFR Part 121. Business concerns, participate in this program through the individual designated by the grantee in other than licensed investment issuance of competitive research grants the grant application and approved by companies, or State development which will be administered by the the Department who is responsible for companies qualifying under the Small Office of Competitive Research Grants the scientific or technical direction of Business Investment Act of 1958, 15 and Awards Management, Cooperative the project. Therefore, the individual U.S.C. 661, et seq., are affiliates of one 26170 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations another when directly or indirectly one make policy decisions. ‘‘Operate’’ as in this section. The first two phases are concern controls or has the power to used in this context means being designed to assist USDA in meeting its control the other or third parties (or actively involved in the day-to-day research and development objectives party) control or have the power to management of the concern. and will be supported with SBIR funds. control both. Control can be exercised § 3403.3 Eligibility requirements. The purpose of the third phase is to through common ownership, common pursue the commercial applications or (a) Eligibility of organization. (1) Each management, and contractual objectives of the research carried out in relationships. The term ‘‘affiliates’’ is organization submitting a proposal must qualify as a small business concern for phases I and II through the use of defined in greater detail in 13 CFR private or Federal non-SBIR funds. 121.401(a) through (m). The term research purposes, as defined in ‘‘number of employees’’ is defined in 13 § 3403.2. Joint ventures and limited (a) Phase I is the initial stage in which CFR 121.407. Business concerns partnerships are eligible to apply for the scientific and technical merit and include, but are not limited to, any and to receive research grants under this feasibility of an idea related to one of individual, partnership, corporation, program, provided that the entity the research areas described in the joint venture, association, or created qualifies as a small business program solicitation is evaluated, cooperative. concern in accordance with section 2(3) normally for a period not to exceed 6 (2) Is at least 51 percent owned, or in of the Small Business Act (15 U.S.C. months. In special cases, however, the case of a publicly owned business at 632) and as defined in § 3403.2. For where a proposed research project least 51 percent of its voting stock is both phase I and phase II the research requires more than 6 months to owned, by United States citizens or must be performed in the United States. complete, a longer grant period may be (2) A minimum of two-thirds of the lawfully admitted permanent resident considered. A proposer of a phase I research or analytical work, as aliens. project with an anticipated duration Socially and economically determined by budget expenditures, must be performed by the proposing beyond 6 months should specify the disadvantaged individual is a member length and duration in the proposal at of any of the following groups: Black organization under phase I grants. For phase II awards, a minimum of one-half the time of its submission to USDA in Americans, Hispanic Americans, Native order for it to be considered at the time Americans, Asian-Pacific Americans, of the research or analytical effort must be conducted by the proposing of award. (See § 3403.14(c) for changes Subcontinent Asian Americans, other in project period subsequent to award). groups designated from time to time by organization. The space used by the the Small Business Administration SBIR awardee to conduct the research (b) Phase II is the principal research (SBA) to be socially disadvantaged, or must be space over which it has or research and development effort in any other individual found to be exclusive control for the period of the which the results from Phase I are socially and economically grant. expanded upon and further pursued, disadvantaged by the SBA pursuant to (b) Eligibility of principal investigator. normally for a period not to exceed 24 section 8(a) of the Small Business Act, (1) It is strongly suggested that the months. Only those small businesses 15 U.S.C. 637(a). individual responsible for the scientific previously receiving phase I awards are Socially and economically or technical direction of the project be eligible to submit phase II proposals. designated as the principal investigator. disadvantaged small business concern For each phase I project funded the In addition, the primary employment of is one that is: awardee may apply for a phase II award (1) At least 51 percent owned by the principal investigator must be with the proposing small business concern at only once. Phase I awardees who for (i) An Indian tribe or a native the time of award and during the valid reasons cannot apply for phase II Hawaiian organization, or conduct of the proposed research. support in the next fiscal year funding (ii) One or more socially and Primary employment means that more cycle may apply for support not later economically disadvantaged than one-half of the principal than the second fiscal year funding individuals; and investigator’s time is spent in the cycle. (2) Whose management and daily employ of the small business concern. business operations are controlled by (c) Phase III is to stimulate Primary employment with the small one or more socially and economically technological innovation and the business applicant precludes full-time disadvantaged individuals. national return on investment from employment with another organization. Subcontract is any agreement, other research through the pursuit of (2) If the proposed principal than one involving an employer- commercial objectives resulting from investigator is employed by another employee relationship, entered into by a the work supported by SBIR funding organization (e.g., university or another Federal Government funding agreement carried out in phases I and II. This company) at the time of submission of awardee requesting supplies or services portion of the project is performed by the application, documentation must be required solely for the performance of the small business concern and submitted with the proposal from the the funding agreement. privately funded or Federally funded by principal investigator’s current United States means the fifty States, employer verifying that, in the event of a non-SBIR source through the use of a the territories and possessions of the an SBIR award, he/she will become a follow-on funding commitment. A United States, the Commonwealth of less-than half-time employee of such follow-on funding commitment is an Puerto Rico, the Trust Territory of the organization and will remain so for the agreement between the small business Pacific Islands, and the District of duration of the SBIR project. concern and a provider of follow-on Columbia. capital for a specified amount of funds Women-owned small business Subpart BÐProgram Description to be made available to the small concern means a small business concern business concern for further § 3403.4 Three-phase program. that is at least 51 percent owned by a development of their effort upon woman or women who also control and The Small Business Innovation achieving certain mutually agreed upon operate it. ‘‘Control’’ as used in this Research Grants Program will be carried technical objectives during phase II. context means exercising the power to out in three separate phases described Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26171

Subpart CÐPreparation and topic. However, an organization may proposed. Items of equipment to be Submission of Proposals submit separate proposals on the same purchased must be fully justified under topic. Where similar research is this section. § 3403.5 Requests for proposals. discussed under more than one topic, (6) Consultants. Involvement of (a) Phase I. A program solicitation the proposer should choose that topic university or other consultants in the requesting phase I proposals will be whose description appears most planning and research stages of the prepared each fiscal year in which relevant to the proposer’s research project is permitted and may be funds are made available for this concept. Duplicate proposals will be particularly helpful to small firms purpose. The solicitation will contain returned to the applicant without which have not previously received information sufficient to enable eligible review. Federal research awards. If such applicants to prepare grant proposals (d) The limitation on the length of involvement is intended, it should be and will include descriptions of specific phase I and phase II proposals, text described in detail. research topic areas which the instructions, and the formatting (7) Potential post application. Briefly Department will support during the instructions will be identified in the describe: fiscal year involved, forms to be annual solicitation. (i) Whether and by what means the completed and submitted with proposed research appears to have proposals, and special requirements. A § 3403.7 Proposal format for phase I potential commercial application; notice will be published in the Federal applications. (ii) Whether and by what means the Register informing the public of the (a) The following items relate to phase proposed research appears to have availability of the program solicitation. I applications. Further instructions or potential use by the Federal (b) Phase II. For each fiscal year in descriptions for these items as well as Government; and which funds are made available for this any additional items to be included will (iii) Whether and by what means the purpose, the Department will send a be provided in the annual solicitation, proposed research will satisfy the public letter requesting phase II proposals from as necessary. interest. the phase I grantees eligible to apply for (1) Proposal cover sheet. Photocopy (8) Current and pending support. If a phase II funding in that fiscal year. The and complete Form CSREES–667 in the proposal, substantially the same as the letter will be accompanied by the program solicitation. The original of the one being submitted, has been solicitation which contains information proposal cover sheet must at a previously funded or is currently sufficient to enable eligible applicants to minimum contain the pen-and-ink funded, pending, or about to be prepare grant proposals and includes signatures of the proposed principal submitted to another Federal agency or forms to be submitted with proposals as investigator(s) and the authorized to USDA in a separate action, the well as special requirements. organizational official. proposer must provide the following (2) Project summary. Photocopy and information: § 3403.6 General content of proposals. complete Form CSREES–668 in the (i) Name and address of the agency(s) (a) The proposed research must be program solicitation. The technical to which a proposal was submitted, or responsive to one of the USDA program abstract should include a brief will be submitted, or from which an interests stated in the research topic description of the problem or award is expected or has been received. descriptions of the program solicitation. opportunity, project objectives, and a (ii) Date of actual or anticipated (b) Proposals must cover only description of the effort. Anticipated proposal submission or date of award, scientific/technological research results and potential commercial as appropriate. activities. A small business concern applications of the proposed research (iii) Title of proposal or award, must not propose product development, also should be summarized in the space identifying number assigned by the technical assistance, demonstration provided. Keywords, to be provided in agency involved, and the date of projects, classified research, or patent the last block on the page, should program solicitation under which the applications. Many of the research characterize the most important aspects proposal was submitted or the award projects supported by the SBIR program of the project. The project summary of was received. lead to the development of new successful proposals may be published (iv) Applicable research topic area for products based upon the research by USDA and, therefore, should not each proposal submitted or award results obtained during the project. contain proprietary information. received. However, projects that seek funding (3) Technical content. The main body (v) Title of research project. solely for product development where of the proposal should include: (vi) Name and title of principal no research is involved, i.e. the funds (i) Identification and significance of investigator for each proposal submitted are needed to permit the development of the problem or opportunity. or award received. USDA will not make a project based on previously completed (ii) Background and rationale. awards that duplicate research funded research, will not be accepted. (iii) Relationship with future research (or to be funded) by other Federal Literature surveys should be conducted or research and development. agencies. prior to preparing proposals for (iv) Phase I technical objectives. (9) Cost breakdown on proposal submission and must not be proposed as (v) Phase I work plan. budget. Photocopy and complete the a part of the SBIR phase I or phase II (vi) Related research or research and budget form in the program solicitation effort. Proposals principally for the development. only for the phase under which you are development of proven concepts toward (4) Key personnel and bibliography. currently applying. (An applicant for commercialization or for market Identify key personnel involved in the phase I funding should not submit both research should not be submitted since effort, including information on their phase I and II budgets.) such efforts are considered the directly related education and (10) Research involving special responsibility of the private sector and experience. considerations. If the proposed research therefore are not supported by USDA. (5) Facilities and equipment. Describe will involve recombinant DNA (c) A proposal must be limited to only the types, location, and availability of molecules, human subjects at risk, or one topic. The same proposal may not instrumentation and physical facilities laboratory animal care, the proposal be submitted under more than one necessary to carry out the work must so indicate and include an 26172 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations assurance statement (Form CSREES– technical items which, if disclosed, policies including those relating to civil 662) as the last page of the proposal. could jeopardize the obtaining of foreign rights. The original of the assurance statement or domestic patents. Trade secrets, (b) Reserved. must at a minimum contain the pen- salaries, or other information which could jeopardize commercial § 3403.8(b) Reserved Proposal format for and-ink signature of the authorized phase II applications. organizational official. In order to competitiveness should be similarly complete the assurance statement, the keyed and presented on a separate page. (a) The following items relate to phase proposer may be required to have the Proposals or reports which attempt to II applications. Further instructions or research plan reviewed and approved by restrict dissemination of large amounts descriptions for these items as well as an appropriate ‘‘Institutional Review of information may be found any additional items to be included will Board’’ (IRB) prior to commencing unacceptable by USDA. Any other be identified in the annual solicitation, actual substantive work. If an IRB legend than that listed in paragraph as necessary. review is required, USDA will not (a)(11)(i) of this section may be (1) Proposal cover sheet. Follow release funds for an award until proper unacceptable to USDA and may instructions found in § 3403.7(a)(1). (2) Project summary. Follow documentation of the IRB approval is constitute grounds for return of the instructions found in § 3403.7(a)(2). submitted to and accepted by USDA. It proposal without further consideration. (3) Phase I results. The proposal is suggested that proposers contact local Without assuming any liability for should contain an extensive section that universities, colleges, or nonprofit inadvertent disclosure, USDA will limit lists the phase I objectives and makes research organizations which have dissemination of such information to its detailed presentation of the phase I established such reviewing mechanisms employees and, where necessary for the results. This section should establish to have this service performed. evaluation of the proposal, to outside the degree to which phase I objectives (11) Proprietary information. (i) If a reviewers on a confidential basis. were met and feasibility of the proposed proposal contains proprietary (12) Rights in data developed under research project was established. information that constitutes a trade SBIR funding agreement. The SBIR legislation provides for ‘‘retention of (4) Proposal. Since phase II is the secret, proprietary commercial or principal research and development financial information, confidential rights in data generated in the performance of the contract by the small effort, proposals should be more personal information, or data affecting comprehensive than those submitted the national security, it will be treated business concern.’’ (i) The legislative history clarifies that under phase I. However, the outline in confidence to the extent permitted by contained in § 3403.7(a)(3) should be law, provided the information is clearly the intent of the statute is to provide authority for the participating agency to followed, tailoring the information marked by the proposer with the term requested to the phase II project. ‘‘confidential proprietary information’’ protect technical data generated under the funding agreement, and to refrain (5) Cost breakdown on proposal and provided the following legend budget. For phase II, a detailed budget appears in the designated area at the from disclosing such data to competitors of the small business concern or from is required for each year of requested bottom of the proposal cover sheet support. In addition, a summary budget (Form CSREES–667): using the information to produce future technical procurement specifications is required detailing the requested The following pages (specify) contain that could harm the small business support for the overall project period. proprietary information which (name of concern that discovered and developed (6) Organizational management proposing organization) requests not be the innovation until the small business information. Each phase II awardee will released to persons outside the Government, be asked to submit an updated except for purposes of evaluation. concern has a reasonable chance to seek patent protection, if appropriate. statement of financial condition (such as (ii) USDA by law is required to make (ii) Therefore, except for program the latest audit report, financial the final decision as to whether the evaluation, participating agencies shall statements or balance sheet). information is required to be kept in protect such technical data for a period (7) Follow-on funding commitment. If confidence. Information contained in of not less than 4 years from the the proposer has obtained a contingent unsuccessful proposals will remain the completion of the project from which commitment for phase III follow-on property of the proposer. However, the data were generated unless the funding, it should be forwarded with USDA will retain for one year one file agencies obtain permission to disclose the phase II application. copy of all proposals received; extra such data from the contractor or grantee. (8) Documentation of multiple phase copies will be destroyed. Public release The government shall retain a royalty- II awards. (i) An applicant that submits of information for any proposal free license for government use of any a proposal for a funding agreement for submitted will be subject to existing technical data delivered under an SBIR phase I and has received more than 15 statutory and regulatory requirements. funding agreement whether patented or phase II awards during the preceding 5 Any proposal which is funded will be not. fiscal years, must document the extent considered an integral part of the award (13) Organizational management to which it was able to secure phase III and normally will be made available to information. Before the award of an funding to develop concepts resulting the public upon request except for SBIR funding agreement, USDA requires from previous phase II awards. This designated proprietary information that the submission of certain organizational documentation should include the name is determined by USDA to be management, personnel and financial of the awarding agency, date of award, proprietary information. information to assure the responsibility funding agreement number, topic or (iii) The inclusion of proprietary of the proposer. This information is not subtopic title, amount and date of phase information is discouraged unless it is required unless a project is II funding and commercialization status necessary for the proper evaluation of recommended for funding, and then it is for each phase II award. the proposal. If proprietary information submitted on a one-time basis only. (ii) USDA shall collect and retain the is to be included, it should be limited, However, new information should be information submitted under paragraph set apart from other text on a separate submitted if a small business concern (a)(8)(i) of this section at least until the page, and keyed to the text by numbers. has undergone significant changes in General Accounting Office submits the It should be confined to a few critical organization, personnel, finance, or report required under section 106 of the Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations 26173

Small Business Research and limitation. In addition, the follow-on (6) Total amount of Federal financial Development Enhancement Act of 1992. funding commitment will be a assistance approved for the project (b) Reserved. consideration for phase II proposals. In period. the event that two or more phase II (7) Legal authorities under which the § 3403.9(b) Submission of proposals. proposals are of approximately equal grant is awarded. The program solicitation for phase I technical merit, the follow-on funding (8) Approved budget plan for proposals and the letter requesting commitment for continued development categorizing project funds to accomplish phase II proposals will provide the in phase III will be an important the stated purpose of the grant award. deadline date for submitting proposals, consideration. The value of the (9) Other information or provisions the number of copies to be submitted, commitment will depend upon the deemed necessary by the Department to and the address where proposals should degree of commitment made by non- carry out its granting activities or to be mailed or delivered. Federal investors, with the maximum accomplish the purpose of a particular value resulting from a signed agreement research project grant. Subpart DÐProposal Review and with reasonable terms for an amount at (b) The notice of grant award, in the Evaluation least equal to the funding requested form of a letter, will provide pertinent § 3403.10 Proposal review. from USDA in phase II. instructions and information to the grantee which are not included in the (a) All research grant applications will § 3403.11 Availability of information. grant award document described in be acknowledged. Information regarding the peer review paragraph (a) of this section. (b) Phase I and phase II proposals will process will be made available to the be judged competitively in a two-stage extent permitted under the Freedom of § 3403.14 Use of funds; changes. process, based primarily upon scientific Information Act (5 U.S.C. 552), the (a) Delegation of fiscal responsibility. or technical merit. First, each proposal Privacy Act (5 U.S.C. 552a), the SBIR The grantee may not in whole or in part will be screened by USDA scientists to Policy Directive, and implementing delegate or transfer to another person, ensure that it is responsive to stated Departmental and other Federal institution, or organization the requirements contained in the program regulations. Implementing Departmental responsibility for use or expenditure of solicitation. Proposals found to be regulations are found at 7 CFR part 1. grant funds. responsive will be technically evaluated (b) Change in project plans. (1) The by peer scientists knowledgeable in the Subpart EÐSupplementary permissible changes by the grantee, appropriate scientific field using the Information principal investigator(s), or other key criteria identified in the annual project personnel in the approved solicitation, as appropriate. Proposals § 3403.12 Terms and conditions of grant awards. research project grant shall be limited to found to be nonresponsive will be changes in methodology, techniques, or Within the limit of funds available for returned to the proposing firm without other aspects of the project to expedite such purpose, the awarding official review. achievement of the project’s approved shall make research project grants to (c) Both internal and external peer goals. If the grantee and/or the principal those responsible, eligible applicants reviewers may be used during the investigator(s) are uncertain as to whose proposals are judged most technical evaluation stage of this whether a change complies with this meritorious in the announced program process. Selections will be made from paragraph, the question must be referred areas under the evaluation criteria and among recognized specialists who are to the Authorized Departmental Officer procedures set forth in the annual uniquely qualified by training and (ADO) for a final determination. solicitation. The beginning of the project experience in their respective fields to (2) Changes in approved goals, or period shall be no later than September render expert advice on the merit of objectives, shall be requested by the 30 of the Federal fiscal year in which proposals received. It is anticipated that grantee and approved in writing by the the project is approved for support. All such experts will include those located ADO prior to effecting such changes. In funds granted under this part shall be in universities, Government, and non- no event shall requests for such changes expended solely for the purpose for profit research organizations. If possible, be approved which are outside the which the funds are granted in USDA intends that peer review groups scope of the original approved project. shall be balanced with minority and accordance with the approved (3) Changes in approved project female representation and with an application and budget, the regulations leadership or the replacement or equitable age distribution. of this part, the terms and conditions of reassignment of other key project (d) Technical reviewers will base their the award, the Federal Acquisition personnel shall be requested by the conclusions and recommendations on Regulation (48 CFR part 31), and the grantee and approved in writing by the information contained in the phase I or Department’s Uniform Federal ADO prior to effecting such changes. phase II proposal. It cannot be assumed Assistance Regulations (7 CFR part (4) Transfers of actual performance of that reviewers are acquainted with any 3015). the substantive programmatic work in experiments referred to within a § 3403.13 Notice of grant awards. whole or in part and provisions for proposal, with key individuals, or with (a) The grant award document shall payment of funds, whether or not the firm itself. Therefore, the proposal include, at a minimum, the following: Federal funds are involved, shall be should be self-contained and written (1) Legal name and address of requested by the grantee and approved with the care and thoroughness performing organization. in writing by the ADO prior to effecting accorded papers for publication. (2) Title of project. such transfers. (e) Final decisions will be made by (3) Name(s) and address(es) of the (c) Changes in project period. The USDA based upon the ratings assigned Principal Investigator(s). project period may be extended by the by reviewers and consideration of other (4) Identifying grant number assigned ADO to complete or fulfill the purposes factors, including the potential by the Department. of an approved project provided Federal commercial application, possible (5) Project period, which specifies funds remain. The extension shall be duplication of other research, any how long the Department intends to conditioned upon a prior request by the critical USDA requirements, and budget support the effort. grantee and approval in writing by the 26174 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Rules and Regulations

ADO. In such cases the extension will (4) Involve transfers or expenditures 7 CFR Part 3407—CSREES procedures to not normally exceed 12 months, the of amounts requiring prior approval as implement the National Environmental phase I award will still be limited to the set forth in the Departmental regulations Policy Act; approved award amount, and the or in the grant award. 9 CFR Parts 1, 2, 3, and 4—USDA submission of a Phase II proposal will implementation of the Act of August 24, 1966, Public Law 89–544, as amended be delayed by one year. The extension § 3403.15 Other Federal statutes and regulations that apply. (commonly known as the Laboratory Animal allows the grantee to continue Welfare Act). expending the remaining Federal funds Several other Federal statutes and/or regulations apply to grant proposals 48 CFR Part 31—Contract Cost Principles for the intended purpose over the and Procedures of the Federal Acquisition extension period. In instances where no considered for review or to research Regulation. Federal funds remain, it is unnecessary project grants awarded under this part. 29 U.S.C. 794, section 504—Rehabiliation to approve an extension since the These include but are not limited to: Act of 1973, and 7 CFR Part 15B (USDA purpose of the extension is to continue 7 CFR Part 1—USDA implementation of implementation of statute), prohibiting using Federal funds. The grantee may Freedom of Information Act. discrimination based upon physical or mental handicap in Federally assisted opt to continue the Phase I project after 7 CFR Part 1c—USDA implementation of the Federal Policy for the Protection of programs. the grant’s termination and closeout, Human Subjects; 35 U.S.C. 200 et seq.—Bayh-Dole Act, however, the grantee would have to do 7 CFR Part 3—USDA implementation of controlling allocation of rights to inventions so without additional Federal funds. In OMB Circular A–129, Managing Federal made by employees of small business firms the latter case, no communication with Credit Programs. and domestic nonprofit organizations, USDA is necessary. However, the 7 CFR Part 15, Subpart A—USDA including universities, in Federally assisted maximum delay for submission of a implementation of Title VI of the Civil Rights programs (implementing regulations are Phase II proposal remains as specified Act of 1964, as amended. contained in 37 CFR Part 401). in § 3403.4(b). 7 CFR Part 3015—USDA Uniform Federal Assistance Regulations, implementing OMB § 3403.16 Other conditions. (d) Changes in approved budget. directives where applicable (i.e., Circular Changes in an approved budget shall be Nos. A–102, A–110, A–87, A–21, and A–122) The Department may, with respect to requested by the grantee and approved and incorporating the Federal Grant and any research project grant, impose in writing by the ADO prior to Cooperative Agreement Act of 1977, Pub. L. additional conditions prior to or at the instituting such changes if the revision 95–224), as well as general policy time of any award when, in the will: requirements applicable to recipients of Department’s judgment, such conditions Departmental financial assistance. are necessary to assure or protect (1) Involve transfers of amounts 7 CFR Part 3017, as amended—USDA budgeted for indirect costs to absorb an advancement of the approved project, implementation of Governmentwide the interests of the public, or the increase in direct costs; Debarment and Suspension (2) Involve transfers of amounts (Nonprocurement) and Governmentwide conservation of grant funds. budgeted for direct costs to Requirements for Drug-free Workplace Done at Washington, D.C., this 5th day of accommodate changes in indirect cost (Grants), as amended. May 1997. rates negotiated during a budget period 7 CFR Part 3018—USDA implementation Colien Hefferan, of New Restrictions on Lobbying. Imposes Associate Administrator, Cooperative State and not approved when a grant was new prohibitions and requirements for Research, Education, and Extension Service awarded; disclosure and certification related to (3) Result in a need or claim for the lobbying on recipients of Federal contracts, [FR Doc. 97–12153 Filed 5–9–97; 8:45 am] award of additional funds; or grants, cooperative agreements, and loans. BILLING CODE 3410±22±P federal register May 12,1997 Monday Notice Technology InnovationChallengeGrants; Education Department of Part VI 26175 26176 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

DEPARTMENT OF EDUCATION The Secretary published a notice of (b) Feasibility. The Secretary reviews proposed selection criteria, selection each proposed project for its feasibility Technology Innovation Challenge procedures, and application procedures by determining the extent to which— Grants for the Technology Innovation (1) The project will ensure successful, effective, and efficient uses of AGENCY: Department of Education. Challenge Grant Program in the Federal Register on February 26, 1997 (62 FR technologies for educational reform that ACTION: Notice of final selection criteria, 8687). Written public comments were will be sustainable beyond the period of selection procedures, and application due to the Secretary by March 28, 1997. the grant; procedures. Written comments were received from (2) The members of the consortium or SUMMARY: The Secretary establishes four parties. The Secretary has reviewed other appropriate entities will final selection criteria, procedures for these comments and has determined contribute substantial financial and evaluating and selecting applications, that no modifications in the proposed other resources to achieve the goals of and procedures for submission of selection criteria, selection procedures, the project; and applications under the Technology and application procedures are (3) The applicant is capable of Innovation Challenge Grant Program. warranted, except for editorial and carrying out the project, as evidenced by The Secretary will use these selection technical revisions. An analysis of the the extent to which the project will meet criteria, selection procedures and comments and the Secretary’s responses the problems identified; the quality of application procedures in fiscal year are contained in the Appendix to this the project design, including objectives, 1997 (FY 1997) and in subsequent years. notice. approaches, evaluation plan, and The Secretary takes this action to make dissemination plan; the adequacy of Selection Criteria informed funding decisions on resources, including money, personnel, applications for technology projects The Secretary establishes selection facilities, equipment, and supplies; the having great promise for improving criteria, selection procedures, and qualifications of key personnel who elementary and secondary education. application procedures for the FY 1997 would conduct the project; and the EFFECTIVE DATE: These selection criteria, competition and subsequent applicant’s prior experience relevant to selection procedures, and application competitions. The program statute (20 the objectives of the project. U.S.C. 6846(c)) requires the Secretary to procedures take effect on June 11, 1997. Evalation and Selection of Applications FOR FURTHER INFORMATION CONTACT: give priority in awarding grants to Technology Innovation Challenge Grant consortia that demonstrate certain Evaluation factors in their applications. The Program, Office of Educational Research The Secretary evaluates applications Secretary has addressed this mandate by and Improvement, U.S. Department of using unweighted selection criteria. The incorporating these priority factors into Education, Room 606D, 555 New Jersey Secretary believes that the use of the selection criteria. Avenue, NW, Washington, DC 20208– unweighted criteria is most appropriate 5544. Telephone: (202) 208–3882. The Secretary establishes the following unweighted selection criteria because they will allow the reviewers Individuals who use a maximum flexibility to apply their telecommunications device for the deaf to evaluate applications: (a) Significance. The Secretary professional judgments in identifying (TDD) may call the Federal Information reviews each proposed project for its the particular strengths and weaknesses Relay Service (FIRS) at 1–800–877–8339 significance by determining the extent in individual applications. between 8 a.m. and 8 p.m., Eastern to which the project— The Secretary also believes that due to Time, Monday through Friday. (1) Offers a clear vision for the use of the highly technical nature of the SUPPLEMENTARY INFORMATION: The technology to help all students learn to applications, it will be necessary to Technology Innovation Challenge Grant challenging standards; obtain clarification and additional Program is authorized in Title III, (2) Will achieve far-reaching impact information from applicants during the section 3136, of the Elementary and through results, products, or benefits selection process. For the purposes of Secondary Education Act of 1965, as that are easily exportable to other the Technology Innovation Challenge amended (20 U.S.C. 6846). settings and communities; Grant Program, the Secretary may Under this program the Secretary (3) Will directly benefit students by request highly rated applicants to makes grants to consortia. Each integrating acquired technologies into submit additional information in consortium must include at least one the curriculum to improve teaching and response to specific questions raised local educational agency (LEA) with a student achievement; during the application selection process high percentage or number of children (4) Will ensure continuous for the FY 1997 competition and living below the poverty line and may professional development for teachers, subsequent competitions. In accordance include other LEAs, private schools, administrators, and other individuals to with 34 CFR 75.231, the Secretary also State educational agencies, institutions further the use of technology in the may request an applicant to submit of higher education, businesses, classroom, library, or learning settings additional information after the academic content experts, software in the community; application has been selected for designers, museums, libraries, or other (5) Is designed to serve areas with a funding. appropriate entities. The Technology high number or percentage of Selection Procedures Innovation Challenge Grant Program disadvantaged students or other areas provides support to consortia that are with the greatest need for educational In applying the selection criteria, the developing, adapting, or expanding technology; and Secretary will use a three-tier peer existing and new applications of (6) Is designed to create new learning review process for the FY 1997 technology to improve schools through communities among teachers, students, competition and subsequent activities that include continuous parents, and others, which contribute to competitions. professional development for teachers State or local education goals for school At each tier of the review process, and the development of high quality improvement, and expand markets for panels of experts will read the academic content that helps all children high-quality educational technology or applications under consideration to learn to challenging standards. content. determine which applications are most Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26177 deserving of further consideration in In Tier II of the review process, team read, and through this process the light of the selection criteria. The leaders from all of the regional sites are reviewers identify applications that Department will, to the extent feasible, brought together to serve as reviewers at have been unanimously awarded high use reviewers that represent three areas a single site. These reviewers read the ratings. Those applications that have of expertise: (1) K–12 school-based applications forwarded for further unanimously high ratings are educators who use new technologies for consideration from Tier I. Taking into recommended for funding. The classroom instruction or curriculum account the quality of all of the reviewers also provide individual development; (2) K–12 school-based applications they have read, the recommendations on an appropriate administrators who have management reviewers assign a qualitative rating for budget level for each application responsibility for school-wide, system- Significance, a qualitative rating for recommended for funding. The wide, or state-wide technology Feasibility, and an overall rating of ‘‘A’’, Secretary awards grants only to those applications; and (3) educational ‘‘B’’, or ‘‘C’’ for each application they applications the reviewers have technology experts drawn from higher review. recommended for funding at the end of education, consulting firms, or Tier II of the review process has two Tier III. No other applications are technology-related firms. stages. In Stage 1 of Tier II, the considered for funding. In the final At each tier of the review process, reviewers meet in teams to compare selection of applications for funding, the each reviewer assigns a qualitative their individual ratings of each Secretary may also consider the extent rating for Significance and a qualitative application they have read. Through to which each application demonstrates rating for Feasibility to each application this process the reviewers identify an effective response to the learning he or she reviews. The qualitative applications that have been technology needs of areas with a high ratings used by individual reviewers are unanimously awarded high ratings. At number or percentage of disadvantaged as follows: ‘‘A’’ for high quality; ‘‘B’’ for the end of Stage 1 of Tier II, each team students or the greatest need for satisfactory quality; and ‘‘C’’ for forwards its most highly rated educational technology. In preparation unsatisfactory quality. The reviewers applications for further consideration. for a grant award, the Secretary also may also assign an overall rating of ‘‘A’’, ‘‘B’’, The applications forwarded for further request an applicant to submit or ‘‘C’’ for each application they review. consideration are then read and additional information after the individually rated ‘‘A’’, ‘‘B’’, or ‘‘C’’ by application has been selected for In Tier I of the review process, the persons who served as team leaders funding. reviewers are recruited to serve on in Stage 1 of Tier II. At the end of Stage panels that meet in several regional sites 2 of Tier II, the team leaders meet to Application Deadline around the country. Tier I of the review compare the ratings of all the The Secretary, in order to ensure process has two stages. In Stage 1 of Tier applications they have read or timely receipt and processing of I, the applications received by the considered at both stages of Tier II, applications, establishes the following published application deadline are taking into account all of the readings application deadline for the FY 1997 assigned to teams of readers at the and ratings of all of the reviewers for competition and subsequent regional sites. The applications are read each application. Those applications competitions. and rated by all of the individual that have been unanimously awarded readers on the team, who then meet to Procedures for Submission of high ratings at the end of Stage 2 of Tier Applications compare their individual ratings of each II are then forwarded for further application they have read. Through consideration at Tier III of the review Applications, in order to be this process, the reviewers identify process. At the end of Tier II, the considered for funding under this applications that have been reviewers will also identify program, must be received on or before unanimously awarded high ratings. At inconsistencies, points in need of the deadline date announced in the the end of Stage 1 of Tier I, each team clarification, and other concerns, if any, application notice published in the at a review site forwards its most highly pertaining to each application being Federal Register. (For the FY 1997 rated applications for further forwarded. Each applicant whose competition, applications must be consideration. In Stage 2 of Tier I, the application is forwarded for further received on or before May 30, 1997, as applications forwarded for further consideration at the end of Tier II will announced in the Federal Register on consideration at that site are then read have an opportunity to respond in March 28, 1997 (62 FR 15052)). The and individually rated by reviewers writing to these clarification questions Secretary does not consider an who served as team leaders in Stage 1 and concerns. application for funding if it is not of Tier I. These team leaders use the At Tier III, readers are assembled to received by the deadline date unless the same qualitative ratings of ‘‘A’’, ‘‘B’’, serve as reviewers at a single site. These applicant can show, in accordance with and ‘‘C’’ for Significance, Feasibility and reviewers have served as team leaders 34 CFR 75.102 (d) and (e), proof that the the overall rating for each forwarded during both of the previous tiers of the application was (1) sent by registered or application they read. At the end of review, and each of the original Tier I certified mail not later than five days Stage 2 of Tier I, the team leaders meet review sites is represented by one team before the deadline date; or (2) sent by to compare the ratings of all the leader at Tier III. There is only one stage commercial carrier not later than two applications they have read or of review at Tier III. The reviewers read days before the deadline date. An considered at both stages of Tier I, the applications that are still under applicant must show proof of mailing in taking into account all of the readings consideration and, after reading the accordance with 34 CFR 75.102 (d) and and ratings of all of the reviewers for responses to the clarification questions, (e). Applications delivered by hand each application at that site. Those they assign ratings for Significance and must be received by 4:00 p.m. applications that have been Feasibility, and an overall rating of ‘‘A’’, (Washington, D.C. time) on the deadline unanimously awarded high ratings by ‘‘B’’, or ‘‘C’’ for each application, taking date. For the purposes of this the team leaders at the end of Stage 2 into account the quality of all of the competition the Secretary will not apply of Tier I are forwarded for further applications they have read. The 34 CFR 75.102(b), which requires an consideration at Tier II of the review reviewers compare their individual application to be mailed, rather than process. ratings of each application they have received, by the deadline date. 26178 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Paperwork Reduction Act of 1995 Discussion: The statute authorizing the in these competitions, be given the same Technology Innovation Challenge Grant opportunity to receive grants as those who Under the Paperwork Reduction Act Program does not address the issue of have been successful in previous of 1995, no persons are required to geographic distribution of awards. The competitions. The commenter was concerned respond to a collection of information Secretary understands the importance of that funding appears to go to institutions that unless it displays a valid OMB control participation by all areas of the country in have been previously funded and that seldom number. The valid OMB control number this program and is engaged in intensive are there successful new applicants. assigned to the collection of information dissemination activities to heighten public Discussion: The Secretary agrees that the in this notice of selection criteria, awareness about the funding that is available. widest possible pool of applicants must be selection procedures, and application However, the Secretary believes that the able to compete for support under the three-tier review process that will be used to procedures is 1810–0569. Technology Innovation Challenge Grant make selection decisions based on the Program. Therefore, the program encourages Intergovernmental Review priority factors outlined in the statute will applications from all eligible sources and result in the highest quality awards and that This program is subject to the engages in an intensive dissemination these awards must be based on ‘‘merit,’’ program to ensure broad participation. To requirements of Executive Order 12372 irrespective of geographic considerations. and the regulations in 34 CFR Part 79. date the program has supported two Changes: None. competitions, one in fiscal year 1995 and one The objective of the Executive Order is Serving Disadvantaged Students in fiscal year 1996, that have resulted in 43 to foster an intergovernmental Comment: One commenter suggested that grants. None of these current grantees holds partnership and a strengthened the Secretary consider stronger, quantitative more than one award under this program. federalism by relying on processes measures to ensure that the legislative intent There are some grantees that are also developed by State and local of serving disadvantaged students with the members of consortia in partnership with governments for coordination and greatest need for educational technology be other grantees, but there are no current review of proposed Federal financial fulfilled. The commenter suggested that grantees that have won grants in both assistance. additional points be added to applications competitions that have been held to date. In accordance with the Order, this emanating from LEAs serving primarily Changes: None. document is intended to provide early disadvantaged populations and that a sliding Allowing a State Educational Agency to notification of the Department’s specific scale of extra points be put in place to Assist Consortia strengthen the applications coming from plans and actions for this program. Comment: One commenter suggested that jurisdictions with high percentages of Note: This notice does not solicit disadvantaged students. for the next Technology Innovation applications. A notice inviting applications Discussion: The statute authorizing the Challenge Grant Program competition State under this competition was published in the Technology Innovation Challenge Grant educational agencies be allowed to assist Federal Register on March 28, 1997 (62 FR Program specifies that a consortia, in order to consortia in putting together meaningful 15052). be eligible for support under this program, grant applications to support improving (Catalog of Federal Domestic Assistance must include at least one local educational elementary and secondary education. Number 84.303A, Technology Innovation agency with a high percentage or number of Discussion: The statute authorizing the Challenge Grants) children living below the poverty line. Technology Innovation Challenge Grant Program currently does allow State Program Authority: 20 U.S.C. 6846. Further, the selection criteria for this educational agencies to participate in Dated: May 6, 1997. program incorporate the statutory priority by specifying that each proposed project be consortia seeking funding under the program. Ramon C. Cortines, reviewed for its significance by determining The statute is clear that the application for Acting Assistant Secretary for Educational the extent to which the project ‘‘is designed funding must be submitted by a local Research and Improvement. to serve areas with a high number or educational agency, but a single local educational agency is not eligible to apply Appendix percentage of disadvantaged students or other areas with the greatest need for unless it is part of a consortium that may Analysis of Comments and Changes educational technology * * *.’’ Applicants include other local educational agencies, Summarized below are comments that will have to address this selection criterion State educational agencies, institutions of referred to the proposed selection criteria, by demonstrating that the projects they higher education, businesses, academic selection procedures, and application propose will in fact serve areas with a high content experts, software designers, procedures. number or percentage of disadvantaged museums, libraries or other appropriate organizations. The Secretary agrees that State Geographic Equity students or other areas with the greatest need. The Secretary does not believe that educational agencies can be important Comments: Two commenters noted that further elaboration of the selection criteria, members of these consortia, can fulfill a over the last two years, the distribution of by adding a sliding scale of extra points, is critical role in assisting the consortia to awards under the Technology Innovation needed to ensure that the needs of develop a meaningful grant application, can Challenge Grant Program appeared to have disadvantaged students will be addressed. provide leadership to bring together been skewed in favor of a few geographic Changes: None. appropriate partners to build the consortia, regions of the United States. The two and should use every opportunity to do so. Funding New Applicants commenters advocated that provisions Changes: None. ensuring some measure of equitable Comment: One commenter advocated that geographic distribution of awards be added those institutions that have not applied [FR Doc. 97–12354 Filed 5–9–97; 8:45 am] to the selection criteria. under past competitions or been successful BILLING CODE 4000±01±P federal register May 12,1997 Monday Community Revitalization;Notice Partnerships forNeighborhoodand Universities Program;ExpandingHUD Historically BlackCollegesand Funding AvailabilityforFY1997 Development Housing andUrban Department of Part VII 26179 26180 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

DEPARTMENT OF HOUSING AND maximum amount or less than the should be made immediately to insure URBAN DEVELOPMENT amount requested in a particular sufficient time for application application. The awards will be made in preparation. HUD will distribute [Docket No. FR±4213±N±01] the form of grants. application packages as soon as they Funding Availability for FY 1997 This document contains the following become available. Historically Black Colleges and information: Application Submission. An Universities Program; Expanding HUD a. The purpose of the NOFA; originally signed application and two Partnerships for Neighborhood and b. Information regarding available copies shall be submitted to the Community Revitalization amounts, objectives, eligibility, and following address: Processing and selection criteria; and Control Branch, Office of Community AGENCY: Office of the Assistant c. Application processing guidance, Planning and Development, Department Secretary for Community Planning and including how, where, and when to of Housing and Urban Development, Development, HUD. apply and how selections will be made. 451 7th Street, S.W., Room 7251, ACTION: Notice of Funding Availability DATES: Application kits may be Washington, D.C., 20410–3500; ATTN: (NOFA) for Fiscal Year (FY) 1997. requested immediately. HUD will HBCU Program. In addition, one copy of distribute application kits as soon as SUMMARY: the application must also be sent to the This NOFA announces the they become available. availability of $6.5 million in FY 1997 Community Planning and Development funding for the Historically Black DEADLINE DATE: (CPD) Director in the HUD field office Colleges and Universities (HBCU) serving the State in which the applicant Applications Delivered. Completed is located. The application sent to the Program, as provided by the applications are due before 5 p.m. Departments of Veterans Affairs and field office must be received by the eastern standard time on July 28, 1997. application deadline as well, but Housing and Urban Development, and This application deadline is firm as to Independent Agencies Appropriations determination that an application was date and hour. In the interest of fairness received on time will be made solely on Act, 1997 (Pub. L. 104–204; approved to all competing applicants, HUD will September 26, 1996; 110 Stat. 2874) (the receipt of the application at HUD treat as ineligible for consideration any Headquarters in Washington. The 1997 Appropriations Act), plus any application that is received after the recaptured funds from prior original and all three copies may be deadline. Applicants should take this used in reviewing the application. A appropriations. (The use of recaptured practice into account and make early funds is subject to reprogramming listing of HUD field offices with HBCUs submission of their materials to avoid located in their jurisdiction appears as procedures as required by section 218 of any risk of loss of eligibility brought the 1997 Appropriations Act (110 Stat. Appendix A to this Notice of Funding about by unanticipated delays or other Availability. 2905)). In order to ensure that some delivery-related problems. previously unfunded HBCUs will Applications Mailed. Applications HUD will accept only one application receive awards in this competition, one- will be considered timely filed if per HBCU. If more than one application half of the available funds will be postmarked before midnight on July 28, is received from a single HBCU, the awarded to applicants that have not 1997, and received by HUD application from that HBCU that was previously been funded under the HUD Headquarters within ten (10) days after received earliest will be considered for HBCU program. Thus, of the $6.5 that date. funding, and the application(s) million in FY 1997 funds made Applications Sent by Overnight submitted later will be ineligible. If available under this NOFA, $3.25 Delivery. Overnight delivery items will more than one application is received million will be awarded to HBCUs that be considered timely filed if received simultaneously from an HBCU then all have not received funding in past HUD before or on July 28, 1997, or upon such applications will be considered HBCU competitions under section submission of documentary evidence ineligible for funding. Applicants 107(b)(3) of the Housing and that they were placed in transit with the should take these policies into account Community Development Act of 1974, overnight delivery service no later than and take steps to ensure that multiple as amended, which includes July 28, 1997. applications are not submitted. competitions for Fiscal Years 1991 No facsimile (FAX). Applications may FOR FURTHER INFORMATION CONTACT: Ms. through 1996 1 (‘‘Previously-unfunded not be submitted by (FAX). Delores Pruden or Mr. John Simmons, HBCUs’’). The remaining $3.25 million ADDRESSES: For a copy of the Historically Black Colleges and of FY 1997 funds will be awarded to application package and supplemental Universities Program, Office of HBCUs that have received funding information, including an instructional Community Planning and Development, under such competitions (‘‘Previously- video, please call Community Department of Housing and Urban funded HBCUs’’). (Similarly, if Connections at 1–800–998–9999. Development, 451 7th St., S.W., recaptured funds are made available, Persons with hearing or speech Washington, DC 20410; telephone (202) those funds will also be divided evenly impairments may access this number 708–1590 (this is not a toll-free between the two types of applicant). via TTY by calling the Federal number). Hearing- and speech-impaired The maximum amount awarded to Information Relay Service at 1–800– persons may access this number via any applicant will be $400,000. The 877–8339. (The numbers are both toll- TTY by calling the Federal Information maximum period for performance of a free.) These materials, except the video, Relay Service toll-free at 1–800–877– proposed program under this NOFA is are also available on the Internet at 8339. Information may also be obtained 24 months. The performance period will gopher://amcom.aspensys.com:75/11/ from the HUD field office located in the commence on the effective date of the funding. When requesting an applicant’s geographic area, see grant agreement. HUD reserves the right application kit, please refer to document Appendix A to this NOFA for names, to make awards for less than the FR–4213, and provide your name, addresses and telephone numbers, or for 1 The FY 1991 competition was the first funded address (including zip code), and general information, applicants can call under the current HBCU Program authorization, telephone number (including area code). Community Connections at 1–800–998– section 107(b)(3) of the 1974 Act. Requests for HBCU application packages 9999. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26181

SUPPLEMENTARY INFORMATION: Grants for Fiscal Year 1997 and the HBCUs appear as Appendices B and C I. Purpose, Objectives, and Substantive Section 108 Loan Guarantee Program for to this Notice of Funding Availability. Description Small Communities in New York State. HUD will use these lists to determine in On March 20, 1997 (62 FR 13506), HUD which category the application should Purpose. The Historically Black published the NOFA for Community be considered. Colleges and Universities (HBCU) Outreach Partnership Centers (COPC). 2. Eligible Activities. Each activity Program is designed to assist HBCUs to On April 23, 1997 (62 FR 19860), HUD proposed for funding must meet both a expand their role and effectiveness in published the Youthbuild NOFA. Other Community Development Block Grant addressing community development related NOFAs that HUD expects to (CDBG) program national objective AND needs in their localities. For the publish in the Federal Register within the CDBG eligibility requirements, purposes of this program, the term the next few weeks include the Joint which are described below. In addition, ‘‘locality’’ includes any city, county, Community Partners NOFA and the the application must contain a letter town, township, parish, village, or other TOP/Economic Development NOFA. from the Chief Executive Officer of the general political subdivision of a State To foster comprehensive, coordinated unit of general local government in or the U.S. Virgin Islands within which approaches by communities, HUD which the proposed activities are to be an HBCU is located. An HBCU located intends for the remainder of FY 1997 to carried out, certifying that the activities in a metropolitan statistical area (MSA), continue to alert applicants to upcoming are consistent with the Consolidated as established by the Office of and recent NOFAs as each NOFA is Plan or other officially approved Management and Budget, may consider published. In addition, a complete Comprehensive Plan of the jurisdiction its locality to be one or more of these schedule of NOFAs to be published to be served. entities within the entire MSA. The during the fiscal year and those already a. National Objectives. Each activity nature of the locality for each HBCU published appears under the HUD may, therefore, differ depending on its that may be funded under this NOFA Homepage on the Internet, which can be must meet one of the three national location. accessed at http://www.hud.gov/ Program Objective. The objective of objectives of the Community nofas.html. Additional steps on NOFA Development Block Grant program: (1) this program is to assist HBCUs expand coordination may be considered for FY their role and effectiveness in Benefit to low- or moderate-income 1998. persons; (2) aid in the prevention or addressing community development For help in obtaining a copy of your elimination of slums or blight; or (3) needs in their localities, including community’s Consolidated Plan, please meet other community development neighborhood revitalization, housing, contact the community development needs having a particular urgency and economic development, consistent office of your municipal government. with the purposes of Title I of the because existing conditions pose a Housing and Community Development A. Authority serious and immediate threat to the Act of 1974, as amended. This program is authorized under health and welfare of the community, Promoting Comprehensive section 107(b)(3) of the Housing and and other financial resources are not Approaches to Housing and Community Community Development Act of 1974 available to meet such needs. Criteria Development. HUD is interested in (the 1974 Act) (42 U.S.C. 5307(b)(3)), for determining whether an activity promoting comprehensive, coordinated which was added by section 105 of the addresses one or more of these approaches to housing and community Department of Housing and Urban objectives are provided at 24 CFR development. Economic development, Development Reform Act of 1989 (Pub. 570.208. (It is not necessary for community development, public L. 101–235). The program is governed applicants to comply with the primary housing revitalization, homeownership, by regulations contained in 24 CFR objective requirement of 24 CFR 570.200 assisted housing for special needs 570.400 and 570.404, and in 24 CFR (a)(3), which requires recipients to populations, supportive services, and part 570, subparts A, C, J, K, and O. ensure that not less than 70 percent of welfare-to-work initiatives can work the grant expenditures be for activities B. Eligibility better if linked at the local level. benefiting low and moderate income Toward this end, HUD in recent years 1. Eligible Applicants. Only HBCUs as persons.). has developed the Consolidated determined by the Department of b. Eligible Activities that may be Planning process designed to help Education in 34 CFR 608.2 in funded under this NOFA are those communities undertake such accordance with that Department’s activities eligible for CDBG funding. approaches. responsibilities under Executive Order They are listed in 24 CFR part 570, In this spirit, it may be helpful for 12677, dated April 28, 1989, are eligible subpart C, particularly §§ 570.201 applicants under this NOFA to be aware for funding under the HBCU Program. through 570.206. Ineligible activities are of other related HUD NOFAs that have As indicated above, funds available listed at § 570.207. Additionally, an recently been published or are expected under this NOFA will be split between activity which otherwise is eligible to be published in the near future. By two classes of HBCU applicant. One under §§ 570.201 through 570.206 may reviewing these NOFAs with respect to category, Previously-funded HBCUs, not be funded if State or local law their program purposes and the includes HBCUs that have received requires that it be carried out by a eligibility of applicants and activities, funding in past HUD HBCU governmental entity. Examples of applicants may be able to relate the competitions under section 107(b)(3) of activities that generally can be carried activities proposed for funding under the Housing and Community out with these funds include, but are this NOFA to the recent and upcoming Development Act of 1974, which not limited to: NOFAs and to the community’s includes competitions for Fiscal Years (1) Acquisition of real property; Consolidated Plan. 1991 through 1996. The other category (2) Clearance and demolition; On December 3, 1996 (61 FR 64196), of eligible applicant, Previously- (3) Rehabilitation of residential HUD published in the Federal Register unfunded HBCUs, includes HBCUs that structures to increase housing the NOFA for the HUD-Administered have not received funding under such opportunities for low- and moderate- Small Cities Community Development competitions. Lists of Previously-funded income persons and rehabilitation of Block Grant Program—Development HBCUs and Previously-unfunded commercial or industrial buildings to 26182 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices correct code violations or for certain qualified TA provider to assist in from the local HUD Community other purposes; implementing the proposed activities. Planning and Development Office. (4) Direct homeownership assistance While applicants are responsible for Those applicants planning to use to low- and moderate-income persons, ensuring that potential TA providers are grant funds for the provision of public as provided in section 105(a)(25) of the qualified, HUD would expect that the services are bound by the statutory Housing and Community Development most qualified providers would be requirement that not more than 15 Act of 1974; entities/organizations that have percent of the total grant amount be (5) Acquisition, construction, demonstrated the expertise and capacity used for public service activities. reconstruction, rehabilitation, or to successfully conceptualize, develop Therefore, at least 85 percent of the installation of public facilities and and implement community and grant amount must be proposed to be improvements, such as water and sewer economic development projects and used for activities qualifying under an facilities and streets; initiatives similar to those proposed by eligibility category other than public (6) Special economic development the applicant. Although pre-award services (as described at 24 CFR activities described at 24 CFR 570.203; technical assistance costs may not be 570.201(e)). (7) Eligible public service activities, paid out of grant funds (not including 3. Partnering With a Qualified HBCU including activities that provide a matching funds, if any), applicants Technical Assistance (TA) Provider. In continuum of care for the homeless; expecting to need technical assistance order to expand the capacity of HBCUs adult basic education classes; GED are encouraged, nonetheless, to choose eligible under this NOFA and to foster preparation and testing; job and career a TA provider as early as possible, to further partnerships among HBCUs, counseling and assessment; citizen ensure that the TA provider is involved applicants are encouraged to propose participation academies, and public in the early stages of proposal using a portion of the award funds to access telecommunications centers development. Previously unfunded acquire technical assistance from a including ‘‘Campus of Learners’’ (COL) HBCUs are particularly encouraged to qualified HBCU to assist them in and ‘‘Neighborhood Networks’’ (NN); consider acquiring technical assistance developing and implementing the social and medical services; other from a qualified HBCU TA provider, as proposed activities. The cost for the support activities for youth, senior described in paragraph I.B.3 of this technical assistance must be for post- citizens, and other low- and moderate- section (entitled ‘‘Partnering with a award assistance and must be necessary income residents; and/or fair housing qualified HBCU technical assistance and reasonable for the purposes of the services designed to further the fair (TA) provider’’). grant. Under no circumstances may an housing objectives of the Fair Housing applicant use more than 10 percent of In selecting proposed eligible Act (42 U.S.C. 3601–20) by making all the total HUD grant (not including persons, without regard to race, color, activities, applicants are urged to matching funds, if any) to purchase religion, sex, national origin, family propose undertaking activities designed technical assistance. As indicated status and/or disability aware of the to promote opportunities for training above, although pre-award technical range of housing opportunities available and employment of low-income assistance costs may not be paid out of to them; residents in connection with HUD grant funds (not including matching (8) Assistance to facilitate economic initiatives such as ‘‘Campus of funds, if any), applicants expecting to development by providing technical or Learners’’ (COL) in public housing and need technical assistance are financial assistance for the ‘‘Neighborhood Networks’’ (NN) in encouraged, nonetheless, to choose a TA establishment, stabilization, and other Federally-assisted or insured provider as early as possible, to ensure expansion of microenterprises, housing. Applicants are also that the TA provider is involved in the including minority enterprises; encouraged, whenever feasible, to early stages of proposal development. (9) Establishment of a Community propose implementing activities in a While applicants are responsible for Development Corporation (CDC) to Federally-designated Urban or Rural ensuring that potential TA providers are undertake eligible activities; (HUD or Department of Agriculture) qualified, HUD would expect that the (10) Assistance to a community based Empowerment Zone, Urban most qualified HBCU TA providers development organizations (CBDO) to Supplemental Empowerment Zone, would be Previously-funded HBCUs carry out a CDBG neighborhood Urban or Rural Enterprise Community that have demonstrated the expertise revitalization, community economic (EZ or EC), or a HUD-approved local and capacity to successfully development, or energy conservation CDBG Neighborhood Revitalization conceptualize, develop, and implement project, in accordance with 24 CFR Strategy Area or HUD-approved State community and economic development 570.204. This could include activities in CDBG Community Revitalization projects and initiatives, particularly by support of a HUD approved local CDBG Strategy Area. As indicated in the successfully carrying out activities Neighborhood Revitalization Strategy Selection Criteria of this NOFA, funded under the HUD HBCU Program. (NRS) or HUD approved State CDBG qualified applicants may be awarded 4. Environmental Review. If the Community Revitalization Strategy bonus points for projects meeting these applicant proposes activities (such as (CRS). HBCUs proposing a Community criteria. physical development activities) that are Development Corporation (CDC) Although acquisition of equipment is not excluded from environmental component may qualify for CBDO not generally an eligible activity (subject review under 24 CFR 50.19(b), an activities; and to the exceptions provided in 24 CFR environmental review by HUD is (11) Program administration costs 570.207(b)(1)), applicants are required in accordance with 24 CFR part related to the planning and execution of encouraged to propose the use of grant 50, as indicated by 24 CFR 570.404(i), community development activities funds, at reasonable levels, for the before HUD approves the proposal (i.e., assisted in whole or in part with grant acquisition of computer hardware and releases CDBG funds). Before any grant funds. In order to expand the capacity software compatible with Internet funds are released, environmental of HBCUs eligible under this NOFA, access and HUD’s Community Planning approval must be secured. If the applicants may propose to use up to 10 Software Plus (CPS+), if they do not requirements of part 50 are not met, percent of the award funds to acquire currently have such capability. More HUD reserves the right to terminate all technical assistance (TA) from a information on CPS+ can be obtained or portions of the award. The grantee is Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26183 not authorized to proceed with any Criterion II. HUD will give the higher the maximum number of points activity requiring such approval until rank to the application with the most available for each criterion (out of a total written approval is received from the points for Selection Criterion II. If funds of 100 points), are as follows: appropriate HUD field Environmental remain after approving all fundable Criterion I—Addressing the Program Clearance Officer in its area certifying applications within a category of Objective (Maximum Points: 25) that the project has been approved and applicants, HUD may choose to add released from all environmental those funds to the funds available for Response Must Be Limited To No conditions. the other category of applicants. More Than Four (4) Pages. After HUD has rated and ranked all A Minimum of 15 Points Must Be C. Selection Process, Optional Match applications and has made a Received for Criterion I in Order To Be and Selection Criteria determination of successful applicants, Eligible for Funding Consideration. Selection Process HUD will require all successful HUD will evaluate this criterion on applicants to participate in negotiations the extent to which the applicant HUD will evaluate applications for to determine the specific terms of the demonstrates how its proposal funding under this NOFA competitively Statement of Work and grant budget. In addresses the program objective and will award points based on cases in which HUD cannot successfully described below. responses to the Selection Criteria conclude negotiations, it will not make • To assist HBCUs expand their role identified below. Applications must be awards. In such instances, HUD may and effectiveness in addressing complete and consistent with this elect to offer an award (in an amount community development needs in their NOFA, the application kit, and the not to exceed the amount of funds localities, including neighborhood HBCU program regulations (24 CFR available for the competition that revitalization, housing, and economic 570.404) in order for the application to remain unawarded) to the next highest development, consistent with the be eligible to compete in this ranking applicant of the same category purposes of Title I of the Housing and competition. To be considered for (either Previously-funded HBCU or Community Development Act of 1974. funding, applicants must receive a Previously-unfunded HBCU) and Criterion II—Distress, Need(s) and minimum score of 70 out of the total of proceed with negotiations as described Impact (Maximum Points: 35) 100 points possible for Criteria I through above. If no fundable applications IV. HUD will not fund specific proposed remain in that applicant category, HUD This criterion addresses the special activities that do not meet eligibility may offer the award to the next highest needs of the applicant or locality to be requirements (see, particularly, 24 CFR ranking applicant in the other applicant met in carrying out the proposed part 570, subpart C), or that do not meet category. activities, particularly with respect to a national objective in accordance with benefiting low-and moderate-income 24 CFR 570.208. The CDBG Publication Optional Match persons. This criterion will be evaluated entitled ‘‘Everything You Wanted to Although a match is not required to on: (a) The documentation of the level(s) Know About CDBG’’ discusses the qualify for funding, HUD encourages of distress in the target area(s) to be regulations, and a copy can be ordered HBCUs to participate in public/private served versus the level(s) of distress for from HUD’s Community Connection at partnerships, i.e., with local or national the locality or State; (b) the 1–800–998–9999. nonprofit organizations, the local identification of need(s) of the target HUD will rate complete applications banking and real estate community, area(s); (c) how the identified needs will that are consistent with all requirements local builders/developers, faith be alleviated and/or fulfilled, and what of this NOFA, the application kit, and communities, etc., to secure matches of projected impact the proposed activities the HBCU and CDBG Program cash and/or in-kind goods or services. will have on the documented distress regulations using the selection criteria The maximum number of rating points levels of the target area(s). provided below. To review and rate an applicant can receive for a match is a. Distress (Maximum Points: 5) applications, HUD may establish panels 10 points of the 20 points possible for Response Must Be Limited To No including persons not currently Criterion IV, below. Applicants having a More Than Two (2) Pages. Limitation employed by HUD to obtain certain cash match will receive a higher number does not apply to maps or tables. expertise and outside points of view, of points than those providing in-kind Applicant’s documentation of the including views from other Federal goods or services of the same value. To level of distress in the target area(s) to agencies. be recognized as a match, contributions be served versus the level of distress for After rating the responses to the must be made available for the duration the locality or State. While the poverty Selection Criteria, HUD will separate of the grant period, regardless of the rate is a strong indicator of distress the applications by category of applicant form of investment provided to the levels, the applicant may demonstrate (Previously-funded HBCUs or project. Applicants without evidence of the level of distress with other factors Previously-unfunded HBCUs). Within a match will receive zero (0) points out indicative of distress such as income, each category, HUD will fund of the possible 10 points available for unemployment, drug use, homelessness, applications in rank order, until it has match. including the local veterans population, awarded all available funds for that and other generally accepted indicators Selection Criteria category of applicant, or until there are of socio-economic distress and/or no fundable applications remaining in HUD will use the criteria set forth disinvestment. Use of the locality’s or that category. If there is a tie in the point below to evaluate applications. Each State’s Consolidated Plan data and maps scores of two applications, the rank application must contain sufficient is strongly encouraged. order will be determined by the information to be reviewed for its b. Need(s) (Maximum Points: 5) applicant’s scores on Selection Criterion merits. The score for each criterion will Response Must Be Limited To No I. HUD will give the higher rank to the be based on the qualitative and More Than Three (3) Pages. application with the most points on quantitative aspects of the applicant’s The applicant should identify the Selection Criterion I. If there is still a response to that criterion. Applicants need(s) of the target area(s) and state tie, the rank order will be determined by should adhere to the page limits for what priority each locality’s or State’s the applicant’s scores on Selection responses as indicated. The criteria and Consolidated Plan (CP) has placed on 26184 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices addressing the need(s). Applicants consider, with regard to the Program response and NOT to the evidence, i.e. which identify needs that are consistent Manager and Staff, the kind of recent firm commitment letters and/or other with those in the CP will receive more work experience they possess, the documentation. points. The applicant should document number of years they have been Applicants must provide letters or the need(s) that are identified by involved with similar projects, and the other documentation evidencing the referencing and/or providing, as number of projects they have extent and firmness of commitments of appropriate, the relevant section(s) of successfully completed. a match from other Federal (e.g., the CP or testimonies from organizations a. Staff Capacity (Maximum Points: Americorps Programs), State, local, and/ other than the applicant (i.e., concerned 10) or private sources (including the local officials, the news media, local Do NOT Send Resumes. Limit applicant’s own resources). These letters veterans service organizations, citizens Response To One (1) Page For The or documents must be dated no earlier organizations, etc.), or other evidence Program Manager And One-Half (1/2) than the date of this published NOFA. that this is a high priority need. Any Page Apiece For Other Staff Members. An Applicant which has evidence in relevant data based on testimonies, The extent to which the applicant support of its proposed match planning or social science studies, or demonstrates that the proposed Staff commitment is eligible for more rating media reports should be included or and Program Manager possess the points than those applicants not having footnoted. background, experience and capacity to a firm commitment for a match. c. Impact and Addressing Need(s) conduct the proposed project, as The maximum number of rating (Maximum Points: 25) evidenced by recent work experience in points an applicant can receive for a Response Must Be Limited To No managing projects of the same or similar match is 10 points of the 20 points More Than Ten (10) Pages. size, dollar amount, and types of possible for this Criterion. Applicants To the maximum extent feasible, activities as those proposed in the having a cash match will receive a applicants should provide HUD with application. higher number of points than applicants measurable results to be achieved with b. Past Performance (Maximum receiving in-kind goods or services of the requested funds, i.e., the number of Points: 5) the same value. To be recognized as a persons to be trained, number of Response Must Be Limited To No match, contributions must be made persons to be employed, number of More Than Two (2) Pages. available for the duration of the grant houses to be built or rehabilitated, The extent to which the applicant can period, regardless of the form of number of minority owned businesses demonstrate that its past and current investment provided to the project. to be started, etc., in the target area(s) as projects funded by HUD and/or other Applicants without evidence of a match a result of the implementation of the Federal or private sector sources are will receive zero (0) points out of the proposed activities. Based on the data being or have been completed on possible 10 points available for match. supplied above in the responses to a. schedule and have met or are meeting b. Budget (Maximum Points: 10) Distress and b. Need(s), the applicant goals established. should fully describe: c. Products Deliverable Schedule The budget should include: (1) A (1) The proposed activities to be (Maximum Points: 5) budget summary covering the Federal implemented and how these activities Response Must Be Limited To No and non-Federal share of costs will alleviate and/or fulfill the Need(s) More Than Two (2) Pages. proposed, by cost category, and a budget identified in paragraph (b) of this As a result of the implementation of justification which includes criterion, above, and particularly how the proposed activities, describe assumptions used to determine the costs the activities will benefit low-income products to be delivered in 6 month of budget items in each category; and (2) and elderly residents, welfare intervals, up to 24 months. Indicate a budget-by-task, which will include a recipients, and the working poor in the which of the staff described under Staff listing of tasks with activities for each target area(s) to be served. Remember Capacity will be responsible and task necessary to be performed to each activity proposed for funding must accountable for deliverables. This implement the program, the overall meet both a CDBG program national criterion will be evaluated on the extent costs for each task, and the cost for each objective AND the CDBG eligibility to which the schedule represents an funding source. The budget-by-task requirements described above under B. efficient and feasible plan for should clearly indicate the HUD grant Eligibility; and implementation of the proposed amount and identify the source and (2) The projected Impact the proposed activities. dollar amount of the matching funds, if activities will have on the Distress Responses to Criterion III, Above, Will any. HUD will award points on the levels documented under paragraph a. Be Rated by the HUD Secretary’s extent to which the budget documents of this criterion, above. Representative Whose Jurisdiction clearly demonstrate a cost-effective use of resources based on reasonable Criterion III—Capability (Maximum Includes the Applicant’s Geographic Area. assumptions. A format for the budget Points: 20) summary and the budget-by-task will be This criterion addresses the capability Criterion IV—Feasibility (Maximum included in the application kit. of the applicant to carry out Points: 20) Bonus Points (Maximum Points: 25) satisfactorily the proposed activities in This criterion addresses the feasibility a timely fashion, including satisfactory of the proposed activities for achieving In addition to points awarded under performance in carrying out any the stated objectives, including local the above criteria, Bonus Points may be previous HUD-assisted projects or support for activities proposed to be awarded to applicants that receive at activities. If the applicant proposes to carried out in the locality and any least a minimum score of 70 out of the use a technical assistance provider, then matching funds proposed to be provided total 100 points available under Criteria the applicant’s responses to a. and b. from other sources. I through IV above. below may include information about a. Match (Maximum Points: 10) Bonus Points may be awarded as the TA provider as well as the Response Must Be Limited To No follows: applicant. In assessing responses to a. More Than One (1) Page. Limitation a. Location of Implementation of and b. of this criterion, reviewers will applies to the applicant’s narrative Proposed Activities, 5 points. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26185

Response Must Be Limited To No Five points will be awarded to units which are both accessible and More Than One (1) Page. applicants that partner with other visitable (i.e., making housing accessible Five bonus points will be awarded to HBCUs for technical assistance as to visitors with disabilities); working applicants that propose to implement described in Section I.B.3 of this NOFA. with local lenders to develop alternative activities in a Federally-designated Applicants must name the HBCU TA lending criteria; job and career Urban or Rural (HUD or Department of Provider and describe the technical counseling and assessment; and social Agriculture) Empowerment Zone, Urban assistance to be provided, the cost of the and medical services and support Supplemental Empowerment Zone, technical assistance, and the duration of activities for youth, senior citizens, and Urban or Rural Enterprise Community the technical assistance. low- and moderate-income residents, (EZ or EC), a HUD approved local CDBG d. Affirmatively Furthering Fair regardless of race, color, religion, sex, Neighborhood Revitalization Strategy Housing, 10 points. national origin, family status or (NRS) Area, or HUD approved CDBG Response Must Be No More Than disability. State Community Revitalization Strategy Four (4) Pages. Affirmatively furthering fair housing (CRS) Area. To receive these points, Five bonus points will be awarded to can also be accomplished by the applicants must submit with the applicants who work with their applicant working with its jurisdiction application package a certification from jurisdictions to affirmatively further fair in carrying out Fair Housing Planning the authorized representative of the unit housing. Pursuant to HUD regulations at requirements under the Consolidated of State or local government that 24 CFR 91.225 (a)(1) and 91.325(a)(1), Plan, by assisting to identify any proposed activities are to be carried out HUD entitlement grantees submitting impediments to fair housing choice within the EZ, EC, or Strategy Areas, Consolidated Plans are required to within their locality. NRS or CRS. affirmatively further fair housing by Examples of areas which should be b. HUD Initiatives, 5 points. conducting an Analysis of Impediments reviewed to assist jurisdictions in Response Must Be Limited To No (AI) to Fair Housing Choice within their meeting affirmatively furthering fair housing responsibilities may include, More Than Three (3) Pages. jurisdiction, by taking appropriate but are not limited to: Zoning and site Five points will be awarded to actions to overcome the effects of any selection; Fair Housing Enforcement; applicants that propose activities which impediments identified through the AI, Employment-Housing-Transportation directly include one or more HUD and by maintaining records reflecting linkage; Lending Policies and Practices; existing, approved, or planned: the AI and actions taken to overcome the effects of identified impediments. and PHA and Other Assisted/Insured (1) Neighborhood Networks (NN). The Housing Provider Tenant Selection. mission of NN is to enhance the self- HUD interprets these broad objectives to mean taking the following actions Applicants seeking additional examples sufficiency, employability, and and more information about Fair economic self-reliance of low-income toward the goal of expanding mobility and widening people’s freedom to Housing Planning, particularly those families and the elderly living in HUD- applicants seeking to assist their locality insured and HUD-assisted properties by choose where they will live: • Analyzing and eliminating housing in carrying out Fair Housing Planning providing such residents with on-site discrimination in the locality; requirements under the Consolidated access to computer and training • Promoting fair housing choice for Plan, should refer to HUD’s ‘‘Fair resources; all persons; Housing Planning Guide,’’ which may (2) Campus of Learners (COL) • Providing opportunities for racially be ordered from HUD’s Fair Housing designated sites and/or sites that have and ethnically inclusive patterns of Clearinghouse by calling 1–800–343– significant activities like the COL housing occupancy; 3442. Applicants whose localities are Program. The COL initiative is designed • Promoting housing that is not subject to Consolidated Plan to transform public housing into safe physically accessible to, and usable by, requirements may respond by and livable communities where families all persons, particularly persons with demonstrating how the activities undertake training in new disabilities; and proposed for funding under this NOFA • telecommunications and computer Fostering compliance with the will otherwise assist their locality in technology and partake in educational nondiscrimination provisions of the Fair affirmatively furthering fair housing. opportunities and job training Housing Act. To receive these bonus points, an initiatives; and/or Applicants under this NOFA can applicant must clearly demonstrate that (3) Local Homeownership show a commitment to affirmatively the activities proposed for funding Partnerships (LPs) recognized by the further fair housing by describing how under this NOFA will affirmatively National Partners in Homeownership. activities proposed for funding under further fair housing in its jurisdiction. Local Homeownership Partnerships are this NOFA will assist their jurisdictions Bonus points responses for a., b., and local manifestations of the National to overcome impediments to fair c. will be rated by the HUD Secretary’s Homeownership Strategy and are housing choice within their localities, representative whose jurisdiction designed to increase homeownership identified in the jurisdiction’s AI. includes the applicant’s geographic opportunity through public-private Actions which can be implemented to area. The bonus points responses for d. collaboration. More detailed overcome any impediments found in the will be rated by the appropriate HUD information on COL, NN, and LP will be applicant’s locality may include, but are Office of Fair Housing and Equal provided in the application kit that not limited to: Applicable neighborhood Opportunity within the applicant’s accompanies this NOFA. To receive revitalization efforts, which could geographic area. these bonus points, the applicant must include narrowing or eliminating gaps thoroughly describe how these activities in amenities, transportation, and II. Application Submission have been or will be implemented. security; mobility counseling programs Requirements c. Partnering With A Qualified HBCU and clearinghouses which offer housing Applicants must complete and submit Technical Assistance (TA) Provider, 5 opportunities both within and outside applications for HBCU grants in points. of high-poverty areas; making available accordance with instructions contained Response Must Be Limited To No to disabled persons a full range of in the FY 1997 Historically Black More Than One (1) Page. supportive services, including housing Colleges and Universities Program 26186 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

Application Kit. The application kit will requirements of, 24 CFR part 570, a Standard Form LLL, ‘‘Disclosure of request information in sufficient detail regulation that was previously Lobbying Activities,’’ any funds, other for HUD to determine whether the published in the Federal Register, and than Federally appropriated funds, that proposed activities are feasible and meet this NOFA specifically refers to the will be or have been used to influence all the requirements of applicable environmental review provisions of Federal employees, members of statutes, regulations, and this NOFA. § 570.404(i). Therefore, in accordance Congress, and congressional staff The application kit requires the with 24 CFR 50.19(c)(5), the issuance of regarding specific grants or contracts. following items: this NOFA is categorically excluded (g) Section 102 of the HUD Reform 1. Transmittal Letter. A transmittal from preparation of a Finding of No Act; Documentation and Public Access letter shall accompany the application. Significant Impact under the National Requirements. This cover letter shall be signed by the Environmental Policy Act of 1969 (42 Section 102 of the Department of Chief Executive Officer (usually the U.S.C. 4321). Housing and Urban Development President or Provost) of the applicant (c) Federalism, Executive Order Reform Act of 1989 (42 U.S.C. 3545) institution. If the Chief Executive 12612. (HUD Reform Act) and the regulations Officer has delegated this responsibility The General Counsel, as the codified in 24 CFR part 4, subpart A, to another official, that person may sign, Designated Official under section 6(a) of contain a number of provisions that are but a copy of the delegation must also Executive Order 12612, Federalism, has designed to ensure greater be included. determined that the policies contained accountability and integrity in the 2. Table of Contents. in this NOFA will not have substantial provision of certain types of assistance 3. Application Checklist. direct effects on States or their political administered by HUD. On January 14, 4. Standard Form 424, Application for subdivisions, or on the relationship 1992 (57 FR 1942), HUD published a Federal Assistance. Signed by the Chief between the Federal Government and notice that also provides information on Executive Officer. the States, or on the distribution of the implementation of section 102. The 5. Abstract. power and responsibilities among the documentation, public access, and 6. Selection Criteria Responses. various levels of government. disclosure requirements of section 102 7. Certifications. Certification forms Specifically, the NOFA solicits HBCU apply to assistance awarded under this signed by the Chief Executive Officer of applicants to expand their role in NOFA as follows: the applicant institution. addressing community development Documentation and public access 8. Appendices. None permitted. needs in their localities, and does not requirements. HUD will ensure that General support letters and resumes impinge upon the relationships between documentation and other information shall not be submitted. Letters of the Federal government and State and regarding each application submitted commitment and other documentation local governments. As a result, the pursuant to this NOFA are sufficient to shall be included with responses to the NOFA is not subject to review under the indicate the basis upon which appropriate Selection Criteria. Order. assistance was provided or denied. This Applicants should refer to the HBCU (d) Catalog of Federal Domestic material, including any letters of application kit for further instructions. Assistance. support, will be made available for The CFDA number for the Historically public inspection for a 5-year period III. Corrections to Deficient Black Colleges and Universities Program beginning not less than 30 days after the Applications is 14.237. award of the assistance. Material will be In accordance with the provisions of (e) Fair Housing and Equal made available in accordance with the 24 CFR part 4, subpart B, HUD may Opportunity. Freedom of Information Act (5 U.S.C. contact an applicant to seek clarification Applications must contain a 552) and HUD’s implementing of an item in the application, or to certification that the applicant will regulations in 24 CFR part 15. In request additional or missing comply with the requirements of the addition, HUD will include the information, but the clarification or the Fair Housing Act, Title VI of the Civil recipients of assistance pursuant to this request for additional or missing Rights Act of 1964, section 504 of the NOFA in its Federal Register notice of information shall not relate to items that Rehabilitation Act of 1973, and the Age all recipients of HUD assistance would improve the substantive quality Discrimination Act of 1975, and will awarded on a competitive basis. of the application pertinent to the affirmatively further fair housing. Disclosures. HUD will make available funding decision. (f) Prohibition Against Lobbying to the public for 5 years all applicant Activities. disclosure reports (HUD Form 2880) IV. Other Matters Applicants for funding under this submitted in connection with this (a) Paperwork Reduction Act NOFA are subject to the provisions of NOFA. Update reports (also Form 2880) Statement. section 319 of the Department of Interior will be made available along with the The information collection and Related Agencies Appropriation Act applicant disclosure reports, but in no requirements contained in this NOFA for Fiscal Year 1991, 31 U.S.C. 1352 (the case for a period less than 3 years. All have been approved by the Office of Byrd Amendment), which prohibits reports—both applicant disclosures and Management and Budget (OMB) in recipients of Federal contracts, grants, updates—will be made available in accordance with the Paperwork or loans from using appropriated funds accordance with the Freedom of Reduction Act of 1995 (44 U.S.C. 3501– for lobbying the executive or legislative Information Act (5 U.S.C. 552) and 3520), and assigned control number branches of the Federal Government in HUD’s implementing regulations at 24 2506–0122. An agency may not conduct connection with a specific contract, CFR part 15. or sponsor, and a person is not required grant, or loan. Applicants are required (h) Section 103 HUD Reform Act. to respond to, a collection of to certify, using the certification found HUD’s regulations implementing information unless the collection at Appendix A to 24 CFR part 87, that section 103 of the Department of displays a valid control number. they will not, and have not, used Housing and Urban Development (b) Environmental Impact. appropriated funds for any prohibited Reform Act of 1989 (42 U.S.C. 3537a), This NOFA provides funding under, lobbying activities. In addition, codified in 24 CFR part 4, apply to this and does not alter environmental applicants must disclose, using funding competition. The regulations Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26187 continue to apply until the Charles T. Ferebee, Koger Building, 2306 4200 Connecticut Ave, NW, Washington, announcement of the selection of West Meadowview Rd, Greensboro, NC D.C. 20008, Phone: 202–274–5072, Fax: successful applicants. HUD employees 27407–3707, 910–547–4005 202–274–5321, e-mail: involved in the review of applications John Riordan, 200 North High Street, [email protected] Columbus, OH 43215–2499, 614–469–6743 Georgia and in the making of funding decisions David Long, 500 West Main Street, Suite 400, are limited by the regulations from Oklahoma City, OK 73102, 405–553–7571 10. Dr. Julius Scott, Interim President, providing advance information to any Joyce Gaskins, The Wanamaker Building, 100 Albany State College, 504 College Drive, person (other than an authorized Penn Square East, Philadelphia, PA 19107– Albany, GA 31705, Phone: 912–430–4604, employee of HUD) concerning funding 3380, 215–656–0624 Fax: 912–430–3836, e-mail: decisions, or from otherwise giving any Louis E. Bradley, Strom Thurmond Federal [email protected] applicant an unfair competitive Building, 1835 Assembly Street, Columbia, 11. Dr. Thomas W. Cole, Jr, President, Clark advantage. Persons who apply for SC 29201–2480, 803–765–5564 Atlanta University, James P. Brawley Drive Virginia Peck, John J. Duncan Federal at Fair Street, S.W., Atlanta, GA 30314, assistance in this competition should Building, 710 Locust Street, Third Floor, confine their inquiries to the subject Phone: 404–880–8500, Fax: 404–880–8995 Knoxville, TN 37902–2526, 423–545–4391 e-mail: [email protected] areas permitted under 24 CFR part 4. Katie Worsham, 1600 Throckmorton Street, 12. Dr. Oscar L. Prater President, Fort Valley Applicants or employees who have PO Box 2905, Fort Worth, TX 76113–2905, State College, 1005 State College Drive, ethics related questions should contact 817–885–5483 Fort Valley, GA 31030, Phone: 912–825– John T. Maldonado, Washington Square, 800 the HUD Office of Ethics (202) 708– 6315, Fax: 912–825–6266, e-mail: Dolorosa Street, San Antonio, TX 78207– [email protected] 3815. (This is not a toll-free number.) 4563, 210–472–6820 For HUD employees who have specific 13. Dr. Samuel D. Jolly, Jr., President, Morris Joseph K. Aversano, The 3600 Centre, 3600 Brown College, 643 Martin Luther King program questions, such as whether West Broad Street, Richmond, VA 23230– Drive, Atlanta, GA 30314, Phone: 404–220– particular subject matter can be 4920, 804–278–4539 0100, Fax: 404–659–4315 discussed with persons outside HUD, James H. McDaniel, 820 First Street NE, Suite 14. Dr. Johnnetta B. Cole, President, Spelman the employee should contact the 450, Washington, DC 20002–4205, 202– College, 350 Spelman Lane, S.W., Atlanta, appropriate field office counsel, or 275–0994 GA 30314, Phone: 404–223–1400, Fax: Headquarters counsel for the program to Appendix B—Historically Black Colleges 404–223–7523 which the question pertains. and Universities Kentucky Authority: Title I, Housing and Community Previously Funded By HUD During Fiscal 15. Dr. Mary L. Smith, President, Kentucky Development Act of 1974 (42 U.S.C. 5301– Years 1991–1996 State University, East Main Street Room 5320); sec. 7(d), Department of Housing and Alabama 201 Hume Hall, Frankfort, KY 40601, Urban Development Act (42 U.S.C. 3535(d)); Phone: 502–227–6260, Fax: 502–227–6490, 24 CFR 570.404. 1. Dr. John T. Gibson, President, Alabama e-mail: [email protected] A&M University, P.O. Box 1357, Normal, Dated: May 7, 1997. AL 35762, Phone: 205–851–5230, Fax: Louisiana Jacquie Lawing, 205–851–5244, e-mail: 16. Dr. Raymond Hicks, President, Grambling General Deputy Assistant Secretary for [email protected] State University, P.O. BOX 607, Grambling, Community Planning and Development. 2. Dr. William H. Harris, President, Alabama LA 71245, Phone: 318–274–2211, Fax: State University, P.O. Box 271, 318–274–2398 Appendix A—Community Planning and Montgomery, AL 36101, Phone: 334–229– 17. Dr. Dolores R. Spikes, President, Development (CPD) Directors With 4200, Fax: 334–834–6861, e-mail: Southern University/A&M College system, Historically Black Colleges and Universities [email protected] Baton Rouge, LA 70813, Phone: 504–771– Located Within Their Jurisdiction 3. Dr. Cordell Wynn, President, Stillman 4680, Fax: 504–771–5522, e-mail: William H. Dirl, Beacon Ridge Tower, 600 College, 2706 Stillman Boulevard, P.O. Box [email protected] Beacon Parkway West, Suite 300, 1430 Tuscaloosa, AL 35403, Phone: 205– 18. Dr. Robert V. Gox, Chancellor, Southern Birmingham, AL 35209–3144, 205–290– 366–8808, Fax: 205–758–0821 University at New Orleans, New Orleans, 7630 4. Dr. Joseph B. Johnson, President, Talladega LA 70126, Phone: 504–286–5313, Fax: Bill Parsley,TCBY Tower, 425 West Capitol College, 627 West Battle Street, Talladega, 504–286–5131, e-mail: [email protected] Avenue, Suite 900, Little Rock, AR 72201– AL 35160, Phone: 205–240–9710, Fax: 19. Dr. Norman C. Francis, President, Xavier 3488, 501–324–6375 205–362–2268 University of New Orleans, 7325 Palmetto John Perry, Richard B. Russell Federal 5. Dr. Benjamin Payton, President, Tuskegee Street, New Orleans, LA 70125, Phone: Building, 75 Spring Street S.W., Atlanta, University, Kresge Center, Tuskegee, AL 504–483–7541, Fax: 504–482–2801 e-mail: GA 30303–3388, 404–331–5139 36088, Phone: 334–727–8501, Fax: 334– [email protected] Ben Cook, 601 West Broadway, PO Box 1044, 727–5276, e-mail: [email protected] Maryland Louisville, KY 40201–1044, 502–582–6141 Arkansas 20. Dr. Nathanael Pollard, Jr., President, Gregory Hamilton, Hale Boggs Federal 6. Dr. Myer L. Titus, President, Philander Bowie State University, 14000 Jericho Park Building, 501 Magazine Street, 9th Floor, Smith College, 812 West 13th Street, Little Rd., Bowie, MD 20715, Phone: 301–464– New Orleans, LA 70130–3099, 504–589– Rock, AR 72202, Phone: 501–370–5275, 6500, Fax: 301–464–7814 e-mail: 7212 Fax: 501–370–5278 [email protected] Joseph O’Connor, City Crescent Building, 10 7. Dr. Lawrence A. Davis, Chancellor, 21. Dr. Calvin W. Burnett, President, Coppin South Howard Street, 5th Floor, Baltimore, University of Arkansas at Pine Bluff, 1200 State College, 2500 West North Avenue, MD 21201–2505, 410–962–2520 North University Drive, P.O. Box 4008, Baltimore, MD 21239, Phone: 410–383– Richard A. Paul, Patrick V. McNamara Pine Bluff, AR 71601, Phone: 501–543– 5910, Fax: 410–333–5369, e-mail: Federal Building, 477 Michigan Avenue, 8471, Fax: 501–543–8003 [email protected] Detroit, MI 48226–2592, 313–226–6689 District of Columbia 22. Dr. Earl S. Richardson, President, Morgan Jeanie E. Smith, Doctor A. H. McCoy Federal State University, Cold Spring Lane & Building, 100 West Capitol Street, Room 8. Dr. E. Patrick Swygert, President, Howard Hillen Road, Baltimore, MD 21239, Phone: 910, Jackson, MS 39269–1016, 601–965– University, 2400 6th Street, N.W., 410–319–3200, Fax: 410–319–3107 4765 Washington, D.C., 20059, Phone: 202–806– James A Cunningham, Robert A. Young 2500, Fax: 202–806–5934, Mississippi Federal Building, 1222 Spruce Street, [email protected] 23. Dr. Clinton Bristow, Jr., President, Alcorn Third Floor, St. Louis, MO 631286, 314– 9. Dr. Julius F. Nimmons, Acting President, State University, P.O. Box 359, Lorman, 539–6524 University of the District of Columbia, MS 39096, Phone: 601–877–6111, Fax: 26188 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

601–877–2975, e-mail: Pennsylvania Appendix C—Historically Black Colleges [email protected] 38. Dr. Niara Sudarkasa, President, Lincoln and Universities 24. Dr. James E. Lyons, Sr., President, Jackson University, Lincoln, PA 19352, Phone: Previously Unfunded By HUD During Fiscal State University, P.O. Box 17390, 1400 J.R. 610–932–8300, Fax: 610–932–8316, e-mail: Years 1991–1996 Lynch Street, Jackson, MS 39217, Phone: [email protected] 601–968–2323, Fax: 601–968–2948, e-mail: Alabama [email protected] South Carolina 1. Dr. Yvonne Kennedy, President, Bishop 25. Dr. William W. Sutton, President, 39. Dr. David Swinton, President, Benedict State Community College, 351 North Broad Street, Mobile, AL 35503, Phone: 334–690– Mississippi Valley State University, 14000 College, 600 Harden Street, Columbia, SC 6416, Fax: 334–438–9523, e-mail: Highway 82 West, Itta Bena, MS 38941, 29204, Phone: 803–254–7253, Fax: 803– Phone: 601–254–3425/26, Fax: 601–254– [email protected] 253–5060 6709 2. Dr. Julius Jenkins, President, Concordia 40. Dr. Henry N. Tisdale, President, Claflin 26. Dr. David L. Beckley, President, Rust College, 1804 Green Street, Selma, AL College, 700 College Avenue, N.E., College, 150 East Rust Avenue, Holly 36703, Phone: 334–874–5708, Fax: 334– 874–5755 Springs, MS 38635, Phone: 601–252–2491, Orangeburg, SC 29115, Phone; 803–535– 5412, Fax: 803–535–5402 3. Dr. Thomas Umphrey, President, Fredd Fax: 601–252–6107 State Technical College, 202 Skyline Missouri 41. Dr. Leroy Davis, President, South Carolina State University, 300 College Boulevard, Tuscaloosa, AL 35405, Phone: 27. Dr. Henry Givens, President, Harris- 205–758–3361, Fax: 205–391–2311, e-mail: Street, N.E., Orangeburg, SC 29117, Phone: Stowe State College, 3026 Laclede Avenue, [email protected] St. Louis, MO 63103, Phone: 314–340– 803–536–7013, Fax: 803–536–3622 4. Dr. Perry W. Ward, President, Lawson 3380, Fax: 314–340–3399 42. Dr. Leonard Dawson, President, Voorhees State Community College, 3060 Wilson 28. Dr. Donald Mullett, Interim President, College, Denmark, SC 29042, Phone: 803– Road S.W., Birmingham, AL 35221, Phone: Lincoln University, P.O. Box 29, Jefferson 793–3544, Fax: 803–793–4584, e-mail: 205–925–2515 ext 300, Fax: 205–923–1649 City, MO 63103, Phone: 573–681–5042, [email protected] 5. Dr. Albert J.H. Sloan, II, President, Miles Fax: 573–681–6074, e-mail: College, P.O. Box 3800, Birmingham, AL Tennessee [email protected] 35208, Phone: 205–929–1428/29, Fax: 205– North Carolina 43. Dr. Rutherford H. Adkins, Interim 929–1426 President, Fisk University, 1000 17th 6. Dr. Delbert W. Baker, President, Oakwood 29. Dr. Gloria R. Scott, President, Bennett Avenue North, Nashville, TN 37208, College, Oakwood Road N.W., Huntsville, College, 900 E. Washington Street, Phone: 615–329–8555, Fax: 615–329–8576, AL 35896, Phone: 205–726–7334, Fax: Greensboro, NC 27401, Phone: 910–370– 205–726–7123 compu serve: shirley e-mail: [email protected] 8626, Fax: 910–272–7143, e-mail: ihenacho 75374,1134 [email protected] 44. Dr. George R. Johnson, Jr., President, 7. Dr. Willie L. Muse, President, Selma 30. Dr. Mickey L. Burnim, Chancellor, Lemonye-Owen College, 807 Walker University, 1501 Lapsley Street, Selma, AL Elizabeth City State University, P.O. Box Avenue, Memphis, TN 38126, Phone: 901– 36701, Phone: 334–872–2533, Fax: 334– 790, Elizabeth City, NC 27909, Phone: 919– 942–7301, Fax: 901–942–3572, e-mail: 872–7746 335–3230, Fax: 919–335–3731, e-mail: [email protected] 8. Dr. Johnny L. Harris, President, J.F. Drake Technical College, 3421 Meridian Street [email protected] Texas 31. Dr. Dorothy Cowser Yancy, President, North, Huntsville, AL 35811, Phone: 205– Johnson C. Smith University, 100 Beatties 45. Dr. Charles A. Hines, President, Prairie 539–4905, Fax: 205–539–7383 Ford Road, Charlotte, NC 28216, Phone: View A&M University, P.O. Box 188, 9. Dr. Leroy Bell, Jr., Interim President, 704–378–1008, Fax: 704–372–5746, e-mail: Prairie View, TX 77446, Phone: 409–857– Interim President, Trenholm State [email protected] 2111, Fax: 409–857–3928, e-mail: Technical College, 1225 Air Base Boulevard, Montgomery, AL 36108, 32. Dr. Edward B. Fort, Chancellor, North [email protected] Phone: 334–832–9000, Fax: 334–832–9777 Carolina A&T State University, 1601 E. 46. Dr. Charles A. Taylor, President, Saint e-mail: [email protected]. Markey Street, Greensboro, NC 27411, Philip’s College, 1801 Martin Luther King, [email protected] Phone: 910–334–7940, Fax: 910–334–7082, Jr. Drive, San Antonio, TX 78203, Phone: Arkansas e-mail: [email protected] 210–531–3591, Fax: 210–531–3590, e-mail: 33. Dr. Julius L. Chambers, Chancellor, North [email protected] 10. Dr. William T. Keaton, President, Carolina Central University, 1801 47. Mr. James M. Douglas, President, Texas Arkansas Baptist College, 1600 Bishop Street, Little Rock, AR 72202, Phone: 501– Fayeteville Street, Durham, NC 27707, Southern University, 3100 Cleburne Phone: 919–560–6304, Fax: 919–560–5014, 372–6883, Fax: 501–375–9257 Avenue, Houston, TX 77004, Phone: 713– e-mail: [email protected] 11. Dr. Katherine P. Mitchell, President, 313–7034, Fax: 713–313–1092, e-mail: 34. Dr. Bernard W. Franklin, President, St. Shorter College, 604 Locust Street, North Augustine’s College, 1315 Oakwood [email protected] Little Rock, AR 72114, Phone: 501–374– Avenue, Raleigh, NC 27610, Phone: 919– 48. Dr. Julius S. Scott, President, Wiley 6305 ext 202, Fax: 501–374–9333 516–4200, Fax: 919–828–0817, e-mail: College, 711 Wiley Avenue, Marshall, TX Delaware 75670, Phone: 903–927–3200, Fax: 903– [email protected] 12. Dr. William B. DeLauder President, 35. Dr. Talbert O. Shaw, President, Shaw 938–8100 Delaware State University, 1200 North University, 118 E. South Street, Raleigh, Virginia Dupont Highway, Dover, DE 19901, Phone: NC 27611, Phone: 919–546–8300, Fax: 302–739–4901, Fax: 302–739–6292, e-mail: 49. Dr. William R. Harvey, President, 919–546–8301, e-mail: [email protected] [email protected] Hampton University, Hampton, VA 23668, Ohio Phone: 804–727–5231, Fax: 804–727–5746 Florida 36. Dr. George E. Ayers, Interim President, 50. Dr. Harrison B. Wilson, President, 13. Dr. Oswald P. Bronson, President, Central State University, 1400 Brushrow Norfolk State University, 2401 Corprew Bethune-Cookman College, 610 Dr. Mary Road, Wilberforce, OH 45384, Phone: 513– Avenue, Norfolk, VA 23504, Phone: 804– McLeod Bethune Boulevard, Daytona Beach, FL 32114, Phone: 904–252–8667, 376–6332, Fax: 513–376–6138 683–8670, Fax: 804–683–2342, e-mail: Fax: 904–257–7027 Oklahoma [email protected] 14. Dr. Lennette Pennington, Interim 37. Dr. Ernest L. Holloway, President, 51. Dr. Thomas M. Law, President, Saint President, Edward Waters College, 1658 Langston University, P.O. Box 907, Paul’s College, 115 College Drive, Kings Road, Jacksonville, FL 32209, Phone: Langston, OK 73050, Phone: 405–466– Lawrenceville, VA 23868, Phone: 804– 904–366–2500, Fax: 904–366–2544 3388, Fax: 405–466–3461, e-mail: 848–2636, Fax: 804–848–0403, e-mail: 15. Dr. Frederick S. Humphries, President, [email protected] [email protected] Florida A&M University, 400 Lee Hall, Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26189

Tallahassee, FL 32307, Phone: 904–599– 28. Dr. Russell S. Williams, Acting President, 427–3987, e-mail: [email protected] 3225, Fax: 904–561–2152, e-mail: Mary Holmes College, P.O. Drawer 1257, college.edu [email protected] West Point, MS 39773, Phone: 601–494– 43. Dr. John E. Maupin, Jr., President, 16. Dr. Albert E. Smith, President, Florida 6820, Fax: 601–494–1881 Meharry Medical College, 1005 Dr. D.B. Memorial College, 15800 N.W. 42nd 29. Dr. Joe A. Lee, President, Tougaloo Todd, Jr. Boulevard, Nashville, TN 37208, Avenue, Miami, FL 33054, Phone: 305– College, 500 E. County Line Road, Phone: 615–327–6904, Fax: 615–327–6540, 626–3604, Fax: 305–626–3769 Tougaloo, MS 39174, Phone: 601–977– e-mail: [email protected] Georgia 7730, Fax: 601–977–7739 44. Dr. James A. Hefner, President, Tennessee 17. Dr. James H. Costen, President, North Carolina State University, 3500 John Merritt Interdenominational Theological Center, 30. Dr. Sammie Potts, President, Barber- Boulevard, Nashville, TN 37209, Phone: 671 Beckwith Street, S.W., Atlanta, GA Scotia College, 145 Cabarrus Avenue, 615–963–7401, Fax: 615–963–7407 30314, Phone: 404–527–7702, Fax: 404– Concord, NC 28025, Phone: 704–789–2906, Texas 527–0901 Fax: 704–789–2958 45. Dr. Joseph T. McMillan, Jr., President, 18. Dr. Walter Massey, President, Morehouse 31. Dr. Willis B. McLeod, Chancellor, Huston-Tillotson College, 900 Chicon College, 830 Westview Drive, S.W., Fayetteville State University, 1200 Street, Austin, TX 78702, Phone: 512–505– Atlanta, GA 30314, Phone: 404–215–2645, Murchinson Road, Fayetteville, NC 28301, Fax: 404–659–6536, e-mail: Phone: 910–486–1141, Fax: 910–486–4732 3003, Fax: 512–505–3190 [email protected] 32. Dr. Burnett Joiner, President, Livingstone 46. Dr. Sebetha Jenkins, President, Jarvis 19. Dr. Louis W. Sullivan M.D., President, College, 701 W. Monroe Street, Salisbury, Christian College, U.S. Highway 80, Morehouse School of Medicine, 720 NC 28144, Phone: 704–638–5505, Fax: Hawkins, TX 75765, Phone: 903–769–5882, Westview Drive, S.W., Atlanta, GA 30310, 704–638–5522 Fax: 903–769–4842 Phone: 404–752–1740, Fax: 404–752–1180 33. Dr. Alvin J. Schexnider, Chancellor, 47. Dr. Lee Monroe, President, Paul Quinn 20. Dr. Shirley A.R. Lew, President, Paine Winston-Salem State University, 601 MLK College, 3837 Simpson Stuart Road, Dallas, College, 1235 15th Street, Augusta, GA Jr. Drive, Winston-Salem, NC 27110, TX 75241, Phone: 214–376–1000, Fax: 30910, Phone: 706–821–8230, Fax: 706– Phone: 910–750–2041, Fax: 910–750–2049, 214–302–3559 821–8333, e-mail: [email protected] e-mail: [email protected] 48. Dr. Jack Evans, President, Southwestern 21. Dr. John T. Wolfe, Jr., President, Ohio Christian College, P.O. Box 10, Terrell, TX Savannah State College, P.0. Box 20449, 75160, Phone: 972–524–3341, Fax: 972– Savannah, GA 31404, Phone: 912–356– 34. Dr. John L. Henderson, President, 563–7133 2240, Fax: 912–356–2998, e-mail: Wilberforce University, 1055 North Bickett, 49. Dr. Heyward L. Strickland, President, [email protected] Wilberforce, OH 45384, Phone: 513–376– Texas College, P.O. Box 4500, Tyler, TX 2911 ext 704, Fax: 513–376–4742 Louisiana 75712, Phone: 903–593–8311, Fax: 903– Pennsylvania 593–0588 22. Dr. Samuel Dubois Cook, President, Dillard University, 2601 Gentilly 35. Dr. W. Clinton Pettus, President, Cheyney Virginia State University, Cheyney, PA 19319, Boulevard, New Orleans, LA 70122, Phone: 50. Dr. Eddie N. Moore, Jr., President, Phone: 610–399–2220, Fax: 610–399–2415, 504–286–4640, Fax: 504–288–8663 Virginia State University, P.O. Box 9001, e-mail:[email protected] 23. Dr. Jerome Greene, Chancellor, Southern Petersburg, VA 23806, Phone: 804–524– University at Shreveport/Bossier City, South Carolina 5070, Fax: 804–524–6506, e-mail: Shreveport, LA 71107, Phone: 318–674– 36. Dr. David T. Shannon, President, Allen [email protected] 3312 or 3300, Fax: 318–674–3374 University, 1530 Harden Street, Columbia, 51. Dr. S. Dallas Simmons, President, Maryland SC 29204, Phone: 803–376–5701, Fax: 803– Virginia Union University, 1500 N. 24. Dr. William P. Hytche, President, 376–5709 Lombardy Street, Richmond, VA 23220, University Of Maryland Eastern Shore, 37. Dr. Cynthia Russell, President, Clinton Phone: 804–257–5835, Fax: 804–257–5833 Junior College, 1029 Crawford Road, Rock Princess Anne, MD 21853, Phone: 410– West Virginia 651–6102, Fax: 410–651–6105, e-mail: Hill, SC 29730, Phone: 803–327–7402 ext 52. Dr. Robert E. Moore, President, Bluefield [email protected] 23, Fax: 803–327–3261 38. Dr. Joann R.G. Boyd-Scotland, President, State College, 219 Rock Street, Bluefield, Michigan Denmark Technical College, Denmark, SC WV 24701, Phone: 304–327–4030, Fax: 25. Dr. Marjorie Harris, President, Lewis 29042, Phone: 803–793–5020, Fax: 803– 304–325–7747 College of Business, 17370 Myers Road, 793–5942 53. Dr. Hazo W. Carter, President, West Detroit, MI 48235, Phone: 313–862–6240 39. Dr. Luns C. Richardson, President, Morris Virginia State University, P.O. Box 399, ext 222, Fax: 313–862–1027 College, North Main Street, Sumter, SC Institute, WV 25112, Phone: 304–766– Mississippi 29150, Phone: 803–775–9371 ext 211/221, 3111, Fax: 304–768–9842 Fax: 803–773–3687 [email protected] 26. Dr. Vivian Presley, President, Coahoma Community College, 3240 Friars Point Tennessee U.S. Virgin Islands Road, Clarksdale, MS 38614, Phone: 601– 40. Dr. Roland H. Harris, Interim President, 54. Dr. Orville Kean, President, University of 627–2571 ext 101, Fax: 601–624–9516, e- Knoxville College, 901 College Street, the Virgin Islands, No. 2 John Brewer’s mail: [email protected] Knoxville, TN 37921, Phone: 423–524– Bay, St. Thomas, USVI 00802–9990, Phone: 27. Dr. Clyde Muse, President, Hinds 6514, Fax: 423–524–6603 809–693–1000, Fax: 809–693–1005 Community College, 501 E. Main Street, 41. Dr. Wesley McClure, President, Lane Raymond, MS 39154, Phone: 601–857– College, 545 Lane Avenue, Jackson, TN [FR Doc. 97–12452 Filed 5–9–97; 8:45 am] 3240 38301, Phone: 901 426–7595, Fax: 901 BILLING CODE 4210±29±P federal register May 12,1997 Monday Proposals; Notice Technical AssistanceÐRequestof Research andEvaluation,National Economic DevelopmentAdministration Commerce Department of Part VIII 26191 26192 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices

DEPARTMENT OF COMMERCE June 9, 1997, will not be considered for known. Potential applicants should be funding. aware that the completion dates set Economic Development By June 20, 1997, EDA will advise forth below are for completion of the Administration successful proponents to submit full project and submission of the final applications (containing complete written report. Briefings/workshops will [Docket No. 970508107±7107±01] proposals as part of the application), take place no later than one year after OMB Control Number 0610–0094. completion of the project and RIN 0610±ZA04 Completed applications must be submission of the final report, at seven submitted to EDA by July 21, 1997. EDA locations and on seven dates at EDA’s Research and Evaluation, National will make these awards no later than discretion. Technical AssistanceÐRequest for September 30, 1997. Proposals E. Additional Information and ADDRESSES: Send initial proposals to Requirements AGENCY: Economic Development John J. McNamee, Acting Director, Administration (EDA), Department of Research and National Technical Applicants should be aware that if Commerce (DoC). Assistance Division, Economic they incur any costs prior to an award being made, they do so solely at their ACTION: Notice of availability of funds. Development Administration, Room 7001A, U.S. Department of Commerce, own risk of not being reimbursed by the SUMMARY: A total of $328,500,000 is Washington, DC 20230. Government. Notwithstanding any available to EDA for all of its programs FOR FURTHER INFORMATION CONTACT: John verbal or written assurance that may for FY 1997 (See Notice of Funding J. McNamee, (202) 482–4085. have been received, there is no availability for FY 1997 at 61 FR 67434), obligation on the part of EDA to cover of which approximately $1,780,000 is or SUPPLEMENTARY INFORMATION: pre-award costs. will be available for National Technical I. Introduction The total dollar amount of the indirect Assistance and for Research and costs proposed in an application under A. Authority Evaluation for specific projects which this program must not exceed either the will aid in better understanding the The Public Works and Economic indirect cost rate negotiated and causes of and solutions to economic Development Act of 1965 (PWEDA), approved by a cognizant Federal agency distress/underemployment and (Pub. L. 89–136, 42 U.S.C. 3121 et seq.), prior to the proposed effective date of unemployment throughout the Nation as amended at § 3151 authorizes EDA to the award, or 100 percent of the total in the specific priority areas described provide technical assistance which proposed direct costs dollar amount in herein. Additional funding may or may would be useful in reducing or the application, whichever is less. not be available. EDA issues this Notice preventing excessive unemployment or If an application is selected for describing the conditions under which underemployment, and enhancing the funding, EDA has no obligation to eligible applications for these National potential for economic growth in provide any additional future funding in Technical Assistance under 13 CFR Part distressed areas (42 U.S.C. 3151(a)); and connection with an award. Renewal of 307, Subpart C, and Research and a program of research to assist in the an award to increase funding or extend Evaluation under 13 CFR Part 307, formulation and implementation of the period of performance is at the sole Subpart D, projects will be accepted and national, state, and local programs to discretion of EDA. Unless otherwise noted below, selected for funding. EDA is soliciting raise income levels and other solutions eligibility, program objectives and proposals for the specific projects to the problems of unemployment, descriptions, application procedures, described herein which will be funded underemployment, underdevelopment selection procedures, evaluation if acceptable proposals are received. and chronic depression in distressed criteria, and other requirements for this Remaining funding, if any, may be used areas and regions (42 U.S.C. 3151(c)(B)). program are set forth in PWEDA and to fund additional projects. The Omnibus Consolidated Appropriations Act of 1997, Public Law EDA’s regulations at 13 CFR Chapter III., DATES: Prospective applicants are and EDA’s Notice of Availability for FY advised that EDA will conduct a pre- 104–208, makes funds available for these programs. 1997 at 61 FR 67434. proposal conference on May 23, 1997, at No award of Federal funds will be 10:00 a.m. in the Department of B. Catalog of Federal Domestic made to an applicant who has an Commerce, Herbert C. Hoover Building, Assistance outstanding delinquent Federal debt 14th and Constitution Avenue, NW., 11.303 Economic Development— until either: (1) The delinquent account Washington, DC 20230, Room 1414, at Technical Assistance Program; 11.312 is paid in full; (2) a negotiated which time questions on the National Economic Development—Research and repayment schedule is established and Technical Assistance and Research and Evaluation Program. at least one payment is received; or (3) Evaluation projects can be answered. other arrangements satisfactory to the Prospective applicants are encouraged C. Program Descriptions Department of Commerce are made. to provide written questions (See For descriptions of these programs see Unsatisfactory performance under ADDRESSES section below) by May 20, PWEDA and EDA’s regulations at 13 prior Federal awards may result in an 1997. Prospective applicants unable to CFR Chapter III. application not being considered for attend the pre-proposal conference may funding. participate by teleconference. D. Briefings and Workshops Applicants should be aware that a Teleconference information may be Unless otherwise noted, each of the false statement on the application is obtained by calling (202) 482–4085 proposals requested below includes a grounds for denial of the application or between 8:30–5:00 EST on May 22, requirement that the applicant conduct termination of the grant award and 1997. a total of up to seven briefings and/or grounds for possible punishment by a Initial proposals for funding under training workshops for individuals and fine or imprisonment as provided in 18 this program will be accepted through organizations interested in the results of U.S.C. 1001. June 9, 1997. Initial proposals received the project. These will take place when Applicants are hereby notified that after 5:00 p.m. EST in Room 7001A, on the project is completed and the results any equipment or products authorized Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26193 to be purchased with funding provided techniques to leverage significant each; (2) determine what legislative or under this program must be American- additional capital for defense regulatory changes will be required for made to the maximum extent feasible. adjustment assistance, including implementation, if any; (3) prepare a Notwithstanding any other provisions construction related to military base comprehensive report; and (4) conduct of law, no person is required to respond reuse. briefings and/or training workshops as to, nor shall a person be subject to a set forth in Section I.D. above. Background: The capital required for Cost: If properly justified, the penalty for failure to comply with a most defense adjustment infrastructure collection of information subject to the Assistant Secretary may consider a (re)development exceeds the ability of waiver of the required 25 percent local requirements of the Paperwork many communities to raise. Public Reduction Act (PRA) unless that share of the total project costs. Part of funding available for defense the funding for this project will be collection of information displays a adjustment assistance is modest currently valid Office of Management provided by the Office of Economic compared with the current need for Adjustment of the Department of and Budget (OMB) control number. This infrastructure assistance. This project notice involves a collection of Defense. would develop, evaluate, and Timing: This project should be information requirement subject to the recommend, if appropriate, alternative provisions of the PRA and has been completed and the final report ways for using EDA’s defense submitted by March 31, 1998. approved by OMB under Control appropriations to leverage other Number 0610–0094. financing for defense adjustment • Trade Adjustment Assistance (TAA) II. How to Apply infrastructure projects. This project is Program Impact Evaluation not to review, discuss or report on the EDA invites proposals to develop A. Eligible Applicants wide array of development financing evaluation criteria for and to evaluate • National Technical Assistance—See techniques presently available for the impact of the TAA Program on small 13 CFR 307.12. Eligible applicants are as funding public infrastructure. The area and medium-sized manufacturing firms follows: Public or private nonprofit of interest for this project is intended to injured by increased imports. organizations including nonprofit be highly focused on the potential use Background: The TAA Program is national, state, area, district, or local of relatively small amounts of EDA grant rooted in the presumption that organizations; accredited educational funds in innovative ways to raise or increased international trade is good for institutions or nonprofit entities leverage larger amounts of other funds the nation as a whole, but there are representing them; public sector which, in turn, could be used to pay for firms, communities and industries that organizations; Native American infrastructure costs associated with the will suffer a disproportionate share of organizations, including American redevelopment of military bases and the impact of changing trade patterns. Indian tribes; local governments and other economic development activities. Each new round of trade agreements has state agencies. Technical Assistance In other words, this project will led to the lowering of trade barriers and grant funds may not be awarded to investigate the possibility of using EDA increased foreign competition for U.S. private individuals or for-profit grants funds to raise or leverage money manufacturers. The EDA-administered organizations. for public infrastructure, as opposed to TAA Program was developed to help • Research and Evaluation—See 13 the present practice of investing EDA U.S. manufacturing firms and industries CFR 307.17. Eligible applicants are as grant funds, separately or in conjunction injured by import competition regain follows: private individuals, with other public or private funding the ability to compete in the global partnerships, corporations, associations, partners, directly into infrastructure or marketplace. The TAA Program colleges and universities, and other other economic development activities. assistance is provided to manufacturers suitable organizations with expertise Such leveraging might involve using through a network of twelve Trade relevant to economic development EDA defense appropriations to partially Adjustment Assistance Centers (TAACs) research. secure large bond issues, or to provide located at universities and other for the first several years of payment on nonprofit organizations throughout the B. Proposal Submission Procedures large bond issues until new/future Nation. The initial proposals submitted by tenants, etc., can pick up the costs. It In order to qualify for assistance potential applicants may not exceed ten would also evaluate what role other under the TAA Program, a manufacturer pages in length and should be Federal financing mechanisms might must show a decline in sales or accompanied by a proposed budget, play. The feasibility of such alternatives production and a decline in resumes/qualifications of key staff, and are not known, but they could possibly employment, and that imports proposed time line. EDA will not accept serve to greatly extend the impact of contributed importantly to such proposals submitted by fax. Proposals limited Federal/EDA defense declines. Once a firm is certified, TAAC must be received in Room 7001A at the infrastructure funds. Alternatives staff work with the firm to develop and address and by the submission deadline considered need not be limited to those implement recovery strategies based on indicated above, in order to be possible under EDA’s current legislation the firm’s own priorities and decisions. considered. and regulations, but may also include EDA now seeks an evaluation of the those that require changes to EDA’s or impact of the TAA Program. EDA is III. Areas of Special Emphasis other Federal legislation or regulations. interested in determining the A. National Technical Assistance Scope of Work: The successful measurable and ‘‘value added’’ aspects Program applicant will: (1) Bring together a panel of the TAA Program process and in • of public and private sector financial measuring overall program performance. Leveraging Capital for Defense experts to explore the full range of In undertaking this analysis of the Adjustment Infrastructure Assistance realistic, innovative financing implementation of the recovery process, EDA invites proposals to examine the alternatives for using EDA defense the applicant will need to examine potential for using EDA’s defense adjustment funds to leverage private or selected grants. The target universe of adjustment appropriations in other public financing, including the assisted firms is approximately 550 combination with new or innovative relative advantages and disadvantages of firms that have completed at least one 26194 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices task of their approved adjustment • Update Overall Economic NASDA, APA, Nature Conservancy, proposal between FY 1990 and 1995 Development Program Wilderness Society, etc.); and are not doing any additional tasks EDA seeks proposals for a cooperative —Other Federal agencies (USDA, HUD, with TAAC assistance. The applicant agreement through which the successful EPA, DOT, DOD, etc.); should select a representative sample of applicant will review, evaluate, and (2) Convening an initial meeting of all those firms. The resulting data must be make recommendations on the Overall participants to determine what should appropriately analyzed and the results, Economic Development Program be looked at, what issues or topics with recommendations as appropriate, (OEDP) comprehensive planning should be explored, what path to follow; presented in a final report to be process. The goal of this effort is to available for use by interested Federal (3) Conducting specific studies or, if increase the benefits of the OEDP necessary, issuing contracts under the and state agencies and other interested process and optimize the economic parties. All available project records are co-operative agreement for specific development capacity created at the studies identified in the initial meeting, located in, or are accessible through, the local level with the assistance provided twelve TAAC offices. Access to client such as: research and analysis of issues; by the EDA planning programs. A lead best practices, models, and success records may require prior client applicant may partner with one or more approval. stories; definition of regions and other organizations. planning areas; and identification of EDA will not accept proposals for this Background: The OEDP is a process recommendations. project from TAACs, TAAC sponsoring that requires a community or region to (4) Convening a final meeting to organizations, or trade organizations conduct an inclusive and review and discuss the studies and that have received assistance under the comprehensive review of the factors and recommendations, selecting best TAA Program. resources affecting the economic practices, and formalizing Scope of Work: The successful development of its area. The OEDP recommendations to be incorporated in applicant will: (1) Evaluate the process: the final report; • is intended to maximize the benefit effectiveness of the TAA Program (5) Conducting briefings and/or assistance, including as assessment of of investments by responding to a locally-initiated economic development training workshops as set forth in the appropriateness of the TAA Program Section I.D. above. assistance and the impact of the plan; • should incorporate, when feasible, a The expected outcomes of this effort assistance on the firms’ economic are: recovery; (2) examine the current TAA number of recent or emerging • Incorporate the latest and most Program performance measures and approaches to comprehensive economic effective approaches to comprehensive recommend revisions as necessary; [The development, such as sustainable economic development planning into a current performance measures are development, cluster development, and regionalism; revitalized OEDP process; Project Outcomes at 2 Years and 4 Years • • After Completion: (a) The percentage of should take into account planning Maximize the economic benefit of TAA Program client firms which have processes that other Federal programs Federal, other public, and private completed the adjustment process and (EZ/EC, RDC, ISTEA, EPA, etc.) are investments based on a comprehensive have successfully restructured, and (b) initiating, to reduce the total local economic development process; • Sales and employment after completing administrative burden on planning Standardize the use of a single assistance compared to sales and entities and local communities. comprehensive plan to guide the growth employment two years before entering Scope of Work: A cooperative and development of the community, as the program and at the time they agreement will be awarded to well as to serve to qualify the area to entered the program.] (3) measure and implement the scope of work. The work receive assistance from EDA and other assess the value and impact of the includes identifying and using Federal and state programs. diagnostic and adjustment proposal diversified expertise from the many Cost: If properly justified, the process; (4) make recommendations for sectors dealing in economic Assistant Secretary may consider a maintaining the status quo and/or development, conducting a series of waiver of the required 25 percent improving both the assistance process working meetings, or contracts under matching share of the total project cost. and the TAA Program; (5) identify the the co-operative agreement, if necessary, The recipient organization (or group of features of the TAA Program that make for specific studies, preparing organizations) will receive an award to the program effective in meeting the recommendations and a final report, cover the following activities: needs of its clients, the best practices in and conducting briefings. Actions • Coordinating the overall process; the TAACs and the best practices in included are: • (1) Developing an agenda and Conducting two general meetings, other business assistance programs that selecting a panel of participants. The including the costs of meeting facilities, could be incorporated into the TAA number of participants should not and the travel expense, lodging, and Program; and (6) conduct briefings and/ exceed 30, and should include: professional fees of the participants; or training workshops as set forth in • If necessary, contracts under the co- —Economic development practitioners Section I.D above. operative agreement for specific studies, (representatives of Economic not to exceed an aggregate for all such Cost: If properly justified, the Development Districts, counties, Assistant Secretary may consider a contracts of $100,000; Indian tribes, cities, states, university • waiver of the required 25 percent local centers, and urban and rural areas); Preparing a final report, including share of the total project costs. —EDA staff (Planners, Regional recommendation; Timing: An interim report on sections Directors, Economic Development • Conducting briefings and/or (1) (3) and (5) of the scope of work Representatives, Program Directors); training workshops as set forth in should be provided by February 28, —Academicians (planning schools, Section I.D. above. 1998. The project should be completed experts in the field); Timing: The project should be and the final report submitted by June —National organizations such as for completed and the final report 30, 1998. example, (NADO, NARC, CUED, submitted by September 30, 1998. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26195

• Demand for Economic Development incubators, skill training facilities, and (2) Propose a method to assess public Infrastructure modern technological improvements. works needs of areas of economic EDA requests proposals for EDA’s public works assistance is distress; conducting a study of the nature and focused on areas experiencing B. If an acceptable, cost-effective approximate cost of the infrastructure significant economic distress, defined methodology is developed in the first that is needed for the economic principally as unemployment phase, in the second phase EDA will development of (1) areas with high substantially higher than the national select a grantee to: (1) Assess defense adjustment unemployment or low average income average or per capita income infrastructure needs and estimate the and of (2) areas impacted by defense substantially lower than the national length of time from development of an downsizing. average. Under this request, EDA is Background: The study’s purpose is to interested in assessing the infrastructure adjustment strategy to actual financing determine the demand for public works needs of these economically-distressed of the resulting infrastructure; (2) Assess public works infrastructure assistance in such areas. One of the areas. • Under its Defense Adjustment needs in areas of economic distress. principal ways that economic program, EDA helps areas to meet the (3) Prepare a report; and development assistance fosters the serious structural economic changes (4) Conduct briefings and/or training creation of private sector jobs in areas of caused by or threatened by the closure workshops as set forth in Section I.D. economic distress is through financing of military bases or the impacts of above. critical public infrastructure. In recent reduced defense expenditures by (1) Upon completion of the first phase, years a number of efforts have been Working with DoD’s Office of Economic EDA may opt not to complete the undertaken to assess the infrastructure Adjustment to design adjustment second phase of the grant, or may needs of the United States. For example, strategies, and (2) helping to implement extend the grant with the first phase in the late 1970s, EDA funded a study, those strategies through a variety of grantee on a non-competitive basis to at the direction of Congress, of historical types of projects, including complete the second phase, or may public works investments in the United infrastructure projects. While the make a competitive selection of a new States and the implications for the then- process of fully implementing a base- grantee to complete the second phase. current trends in such investments. In reuse implementation strategy may take Completion of the second phase is 1988, the National Council on Public as long as twenty years and require dependent also on availability of funds Works Improvement issued a report on significant private development in FY 1998. the nation’s infrastructure, entitled financing, the early projects and access Cost: If properly justified, the Fragile Foundations. In 1990, the House to public financing, such as through Assistant Secretary may consider a Committee on Public Works and EDA’s programs are widely viewed as waiver of the required 25 percent local Transportation tasked the U.S. Army very critical to successful long-term share of the total project cost. Corps of Engineers to compile abstracts reuse. Under this request, EDA is Timing: The first phase of this project of significant infrastructure studies, interested in (a) assessing the actual and should be completed by February 27, which resulted in Infrastructure anticipated infrastructure needs growing 1998. Reports: Summaries (1992). Studies out of defense downsizing at BRAC 88, • Performance Measures for EDA’s such as these deal with nationwide 91, 93 and 95 base closure sites, (b) needs. EDA’s current interest in learning Planning and Local Technical assessing the average timeframe from Assistance Programs the extent of infrastructure needs is the date of BRAC announcement that is more limited: EDA is interested in envisioned for full implementation of EDA invites proposals to develop determining the critical infrastructure infrastructure-type projects related to performance measures for EDA’s needs of areas suffering long-term base reuse strategies, and (c) planning and local technical assistance economic distress or that are reasonably determining an average timeline and programs. anticipated to experience defense level of investment related to the most Background: EDA recently established downsizing, and therefore need such critical early phase infrastructure for a set of core performance measures for infrastructure in order to grow their which base-reuse communities look to each of its grant program areas, and has local economies so private sector jobs public funding sources, such as EDA for begun to systematically test how can be created/retained and the assistance. This request seeks to effective the standards measure each economic vitality of the area restored determine initially whether there is a program’s performance, and what and sustained. EDA is cognizant of the relatively simple, and inexpensive, way adjustments to the core measures may fact that well-defined infrastructure to assess infrastructure needs in areas of be necessary. EDA is interested in investment needs grow out of a local actual economic distress or in areas developing/validating measures for the planning process where the community affected by defense downsizing. performance of the 301(b) Economic or region identifies, among other needs, Scope of Work: The scope of work Development District and Indian the type of infrastructure that is needed will take place in two phases. Planning Program, 302(a) State and for the economic development or A. In the first phase, EDA will select Urban Planning Program and 301(a) economic adjustment of the area. a grantee to determine whether there is Local Technical Assistance Program. This request has two aspects: a valid and cost-effective methodology Some types of measures are easy to • Under its Public Works program, to determine the demand for economic define. These would include: input EDA grants help distressed communities development infrastructure. The measures, such as the number of full- attract new industry, encourage private potential grantee would: time employees administering the investment and business expansion, (1) Propose a method to assess (a) program, the total amount of grants diversify local economies, and generate actual and anticipated defense awarded; output measures—the number long-term, private sector jobs. It does so adjustment needs growing out of base of applications processed; and by funding critically-needed closing and realignment and defense efficiency measures—the cost per client infrastructure such as water and sewer downsizing; and (b) the timing when served. It is much more difficult to facilities for industry and commerce, actual infrastructure financing needs measure the success or outcomes of access roads to industrial sites, business will occur; EDA’s planning and local technical 26196 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices assistance programs, whose outcomes populations and improve the quality of Background: EDA’s primary and least often cannot be measured in easily life. ‘‘Smokestack chasing’’ began with controversial eligibility criteria are high quantifiable ways, such as measuring the South to recruit companies to locate unemployment and low income. In the number of jobs created or saved. where operating and labor costs would addition, areas may be eligible for The value of planning per se is be lower, and encouraged the assistance if they have had ‘‘a difficult to measure. Planning activities substantial industrial shift which took substantial loss of population due to include: the bringing together of place after World War II as companies lack of employment opportunity.’’ community stakeholders with diverse searched for ways of reducing business Elsewhere, EDA’s authorizing interests to work in a collaborative costs. During the 1970s, foreign legislation refers more specifically to manner; the gathering of comprehensive competition began to substantially affect ‘‘outmigration,’’ which is a component economic information; the identification American industry, and some of population loss. of strengths, weaknesses, opportunities, communities lost much or all of their Some rural areas of the United States, and threats; the identification and manufacturing base. Incentives packages such as Appalachia, experience agreement on goals, measurable assumed new importance as states, outmigration and population loss in objectives and strategies; ongoing regions and localities competed with addition to high unemployment and/or feedback and evaluation; and one another to develop strategies to low income. However, other areas, communication of the collaborative attract and retain companies and assist primarily in the Plains and Rocky process and the plan. Attempts to them in expanding and creating jobs. Mountains, experience outmigration measure planning performance could Examples of controversial incentives and population loss in the absence of focus on planning activities per se, or on packages are the location of a BMW high unemployment and low income. It the accomplishment of the measurable plant in South Carolina and of a is hypothesized that such population objectives that are developed as part of Mercedes Benz plant in Alabama. In loss, by itself, constitutes economic the planning process, or a combination these and similar cases, critics argue distress, because of the loss of tax base, of both. that immediate and long-term loss to the reduced services, school closures, It is also difficult to measure the taxpayers and tax base are excessive and expensive care for the remaining elderly performance of local technical not justified by the job gains. What is who do not migrate, and so on. assistance projects. They are often now seen by some observers as a new Scope of Work: The successful single-client and/or single-issue ‘‘war between the states,’’ may have applicant will: focused, such as technical or market become too costly in the long-term: (1) Examine all significant forms of feasibility studies, and grantees have communities and states commit dislocation and distress that accompany little or no control over the outcomes of themselves to provide essential public population loss/outmigration and the the projects. services from a reduced tax base due to adverse effects of the loss/outmigration Scope of Work: The successful abatements to individual companies. on the community. The hypothesis of Communities do not have an adequate applicant will: (1) Research the population loss/outmigration as tool(s) to use in evaluating the potential literature and consult with appropriate economic distress should be tested impact of proposed incentives packages. experts and practitioners; (2) examine a against the contrasting view that it is an EDA is interested in developing such a cross-section of EDA planning and local alleviator of economic distress and its tool (or tools) for evaluating incentives technical assistance projects; (3) many symptoms. In this view, packages that would help communities develop proposed performance outmigration is the relief valve that determine whether the outcomes, over measures; (4) test the proposed allows the unemployed, the long-term, are commensurate with performance measures on a sample of underemployed, and those of low the investment. planning and local technical assistance income to seek better circumstances Scope of Work: The successful grants; (5) prepare a report which elsewhere. applicant will: (1) Develop identifies performance measures and (2) Compare and contrast population provides the justification for their methodologies for analyzing incentive packages to determine, among other loss/outmigration with other measures selection; and (6) conduct briefings and/ of economic distress, including high or training workshops as set forth in things, the costs/benefits, fiscal impact, and return on investment; (2) develop unemployment and low income. Any Section I.D. above. significant distress-based distinctions Cost: If properly justified, the guidelines which state and local officials can use to craft, evaluate and between population loss and its Assistant Secretary may consider a outmigration component should be waiver of the required 25 percent local negotiate recruitment policies; (3) develop recommendations on the examined and described. share of the total project cost. (3) If population loss/outmigration is Timing: The project should be appropriate role of the Federal Government with regard to incentives; found to be an indicator of economic completed and the final report distress, evaluate and recommend submitted by April 30, 1998. and (4) conduct briefings and/or training workshops as set forth in specific measurements that can be used B. Research and Evaluation Program Section I.D. above. to quantify this indicator. For example, a high-unemployment-rate threshold • State Incentives Evaluation Cost: No local match is required for this project. can be set at some level above the EDA invites proposals to develop a Timing: This project should be prevailing national or state rate; and a tool to evaluate state incentives. completed and the final report low-income threshold can be set at some Background: Incentives have been submitted by June 30, 1998. percentage of per-capita income. What used in various forms since the threshold can be used to define areas • founding of the nation to launch Outmigration/Population Loss as experiencing excessive population loss/ business enterprises, improve and settle Indicator of Economic Distress outmigration? states and territories, and open up the EDA invites proposals to assess (4) Prepare a comprehensive final West. Following World War I, states outmigration/population loss as an report containing the project used incentives to diversify their indicator of economic distress and background, methodology, findings, and economies, provide work for their recommend an appropriate measure. recommendations. Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices 26197

(5) Conduct briefings and/or training estimates is currently being evaluated. (5) Conduct briefings and/or training workshops as set forth in Section I.D. Even data available at the county level workshops as set forth in Section I.D. above. can be too coarse for purposes of inner- above. Cost: No local match is required for city/poverty-pocket program eligibility Cost: No local match is required for this project. and analysis. (4) Greater accuracy: this project. Timing: The project should be Accuracy can be improved in various Timing: The project should be completed and the final report ways, but it often involves larger completed and the final report submitted by March 31, 1998. samples, and attendant greater cost for submitted by June 30, 1998. • Socioeconomic Data Needed for the surveys in which the size is • Microenterprise as an Economic Economic Development Practitioners increased. Census Bureau plans for Adjustment Tool Census 2000 call for the use of sampling EDA invites proposals to assess the in place of some costly door-to-door EDA invites proposals to evaluate the need for and quality of state, regional, visits and as a quality check. This will role of microenterprise as an economic and local socioeconomic data that are both reduce census costs and improve adjustment tool. Background: Microenterprise essential for effective economic the accuracy of the totals. With the development. programs provide entrepreneurial increased use of sampling, Census 2000 Background: The many kinds of data assistance and small loans, sometimes will be more accurate than past used by the economic development as small as $100, to low and moderate community are collected by a variety of decennial censuses, which missed many income people, especially women and agencies. Just at the Federal level, these millions of U.S. residents. Still other minorities, who would not be eligible include decennial population and categories of data improvement beyond for loans from traditional lending quinquennial economic censuses by the these four—through statistical institutions. The programs active in the Bureau of the Census, macroeconomic modeling, for example—are possible United States basically fall into two figures on output and its components and can be addressed by the categories (1) Entrepreneur training and and other much more industrially and respondents to this request. technical assistance and (2) access to geographically detailed income and Scope of Work: The successful capital, with many programs offering employment data by the Bureau of applicant will: both services. Many of the programs, Economic Analysis, and labor force data (1) Be both bold and realistic in the especially those which deal exclusively by the Bureau of Labor Statistics. All needs assessment and recommendation with low-income groups, also provide three agencies are variously responsible of data augmentation. For example, a personal effectiveness assistance, for the income/poverty data and more frequent Census of Population is mentoring, and peer support groups to unemployment data that are crucial to unlikely and would be extremely promote and sustain in their clients the economic development programs. Local expensive. Many of its objectives would discipline of focus, self-confidence, and and state agencies are also important be met by the American Community commitment, among other factors. The data sources. Survey and modifications of the supportive environment assists the Improvements in data are needed, but monthly Current Population Survey. borrowers in developing the skills budget limitations require that they be Finer geographical detail is both needed to start and grow a business, as prioritized so that the most broadly expensive and statistically well as to manage capital financing needed and useful are implemented problematical; most data for small sub- activities. Some programs also assist in first. The kinds of improvements most populations have wide error ranges, promoting alliances among often discussed fall into four categories: wherein the reported figures are merely microenterprises and in connecting (1) Additional topics: Among the many the midpoints. Additional data topics them with traditionally inaccessible possibilities are improved breakdowns require new questions in the underlying markets. of poverty and unemployment data by surveys and censuses, bringing up For purposes of this evaluation, micro minority status, gender status, industry, questions of citizen privacy and enterprises are defined as businesses etc. (2) Greater frequency: Population inconvenience, as well as added with five (5) or fewer employees, and in Census data are collected only every ten expense. programs offering access to capital, years. Some advanced countries (2) Where data are collected by businesses receiving loans in the conduct their censuses more often. different levels of government or by amount of 25 thousand dollars or less. Since the usefulness of decennial data different entities, such as states, at the While microenterprise programs no declines rapidly, and to address this same level of government, examine the doubt help to promote personal concern, the Census Bureau has begun difficulties of data comparability and development and self-sufficiency among the start-up phase of the American the need for data standards. For low income people who have had little Community Survey, which will start to example, unemployment data collected opportunity to enter and participate in provide data for sub-state areas in 2001 by one state should not have biases more traditional ways in the mainstream and, by late in the next decade, will towards higher or lower values that economy, the question remains as to provide annual social and economic make such data incompatible with that what extent microenterprise programs profiles about the population for areas collected by other states. meet the more conventional economic as small as city neighborhoods. (3) Finer (3) Assess how existing data are used, development objectives. For example, geographical detail: Many data are or not used, by the economic EDA presently makes grants to establish available at the national level only. development community, in order to Revolving Loan Funds (RLFs) under the Other data are available no lower than understand how demands for new data authority of its Economic Adjustment the state or multistate regional levels. might be partly satisfied by greater Program, which is directed at assisting The Census Bureau has recently practitioner awareness of the data communities struggling with structural developed statistical models for the already available. economic change. Such changes can county level to produce income and (4) Prepare a comprehensive final occur when significant sectors of a poverty data (small area income and report containing the project community’s economic base are poverty estimates). This program is in background, methodology, findings, and seriously damaged, such as by a natural its first stages and the first set of recommendations. disaster, or eliminated altogether, such 26198 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Notices as by a military base closing. The Scope of Work: The successful the specified project as described community’s objective is to stabilize, applicant will: (1) Choose a broad herein. The Office of Economic diversify and replace the economic sample of microenterprise programs to Adjustment of the Department of activity that was lost. To what extent analyze, compare, and evaluate in terms Defense will participate in evaluating can microenterprise activity offset such of their impact on job creation and proposals submitted for Leveraging losses and contribute to economic income enhancement for targeted Capital for Defense Adjustment recovery? Can microenterprise programs groups in distressed areas; (2) assess the Infrastructure Assistance and Demand assist in the alleviation of the problems utility of microenterprise programs in for Public Works and Defense of unemployment and different environments, e.g., urban, Adjustment Infrastructure projects underemployment in distressed areas suburban, and rural; (3) determine described above. If a proposal is and make a contribution to job creation, whether, the extent to which, and under selected, EDA will provide the creation of wealth, and tax base what conditions microenterprise is an proponent with an Application form, enhancement? Should microenterprise effective economic adjustment tool; (4) and EDA will carry out its selection development be viewed as an present these matters in a final report, process and evaluation criteria as appropriate part of overall structural which will be available to interested described in 13 CFR Chapter III, part economic recovery, perhaps parties; and (5) conduct briefings and/or 304 and Sections 307.13, 307.14, 307.18, encouraging the development of training workshops as set forth in and 307.19. adequate services within a community Section I.D. above. From the full proposals and to keep pace with other efforts to Cost: No local match is required for applications, EDA will select the rebuild economies? Should EDA this project. applicants it deems most qualified and assistance, other than RLFs, focus on Timing: This project should be cost effective. EDA anticipates that more microenterprise, e.g., microenterprise completed and the final report full proposals and applications will be incubator or technical assistance submitted by September 30, 1998. invited than will eventually be funded. projects? These questions will be considered in an assessment of the IV. Selection Process and Evaluation Dated: May 8, 1997. impact of microenterprise programs, Criteria Phillip A. Singerman, and whether they can be an effective Proposals will receive initial reviews Assistant Secretary for Economic tool for addressing the economic by EDA to assure that they meet all Development. adjustment needs of communities facing requirements of this announcement, [FR Doc. 97–12492 Filed 5–9–97; 1:29 pm] structural economic problems. including eligibility and relevance to BILLING CODE 3510±24±P federal register May 12,1997 Monday Week, 1997 Proclamation 7001ÐJewishHeritage Memorial DayandPoliceWeek,1997 Proclamation 7000ÐPeaceOfficers The President Part IX 26199

26201

Federal Register Presidential Documents Vol. 62, No. 91

Monday, May 12, 1997

Title 3— Proclamation 7000 of May 7, 1997

The President Peace Officers Memorial Day and Police Week, 1997

By the President of the United States of America

A Proclamation Law enforcement officers are true heroes, quietly risking their lives every day to protect our public safety and private property. The routine, everyday nature of their courage makes it all the more extraordinary. Day and night, these brave men and women leave home, put on their badges, and report for duty, putting their lives on the line for the rest of us. Today, an estimated 587,000 men and women are sworn police officers, working to enforce our Nation’s laws and maintain order in our society. As citizens we owe these officers respect and gratitude, and Police Week is a welcome time for us to join together and salute these officers for the selfless work they carry out so faithfully all year long. Sadly, during Police Week we also pause, on Peace Officers Memorial Day, to remember our fallen officers. Last year, 117 Federal, State, and local officers were killed in the line of duty. Although this number dropped to the lowest level in over 30 years—and the number of police officers killed by firearms alone dropped to 55 from 71 the previous year—these statistics, compiled by the National Law Enforcement Officers Memorial Fund, remain a cause for great concern. The loss of any police officer is a tragedy, and as a Nation, we mourn and remember these men and women who made the ultimate sacrifice by giving their lives. While we can never repay the debt we owe to these fallen officers and their families, we can—and must—honor their memory by carrying on their crusade to make America a better and safer place. By a joint resolution approved October 1, 1962 (76 Stat. 676), the Congress has authorized and requested the President to designate May 15 of each year as ‘‘Peace Officers Memorial Day’’ and the week in which it falls as ‘‘Police Week,’’ and, by Public Law 103–322 (36 U.S.C. 175), has directed that the flag be flown at half-staff on Peace Officers Memorial Day. NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, do hereby proclaim May 15, 1997, as Peace Officers Memorial Day and May 11 through May 17, 1997, as Police Week. I call upon the people of the United States to observe these occasions with appropriate ceremonies, programs, and activities. I also request the Governors of the United States and of the Commonwealth of Puerto Rico, as well as the appropriate officials of all units of government, to direct that the flag be flown at half-staff on Peace Officers Memorial Day on all buildings, grounds, and naval vessels throughout the United States and all areas under its jurisdiction and control. I also invite all Americans to display the flag at half-staff from their homes on that day. 26202 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Presidential Documents

IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of May, in the year of our Lord nineteen hundred and ninety-seven, and of the Independence of the United States of America the two hundred and twenty-first.

[FR Doc. 97–12556 œ– Filed 5–9–97; 8:47 am] Billing code 3195–01–P Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Presidential Documents 26203 Presidential Documents

Proclamation 7001 of May 8, 1997

Jewish Heritage Week, 1997

By the President of the United States of America

A Proclamation The American Jewish community, with its rich and diverse culture, has served as a continuous source of ethical and moral values for our great Nation since its founding. The principles of Jewish heritage—family, commu- nity, faith, and service—parallel the ideals that inspired our country’s found- ers and that anchor our modern democracy. Members of the Jewish faith have long added to America’s cultural life a legacy of law and human compassion, a struggle for freedom and fairness, and a love of learning and the arts. Drawing from their proud heritage, Jewish citizens have made vital contributions to every sector of society, as scientists and soldiers, judges and teachers, artists, entrepreneurs, and philanthropists. Jewish traditions lend special meaning to the spring season. The recent celebration of Passover commemorates the exodus of Jewish slaves from ancient Egypt. The observance of this religious and historical milestone also honors the character of the Jewish people, who, despite continual hardship, clung to their enduring faith in God and the promise of a brighter future. The annual spring commemorations of Passover, Holocaust Memorial Day, and Israel’s Independence are occasions for deep reflection by American Jewry and demonstrate to all Americans the importance of remembrance, faith, freedom, and justice. NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim May 11 through May 18, 1997, as Jewish Heritage Week. I urge all Americans to observe this week with appropriate programs and to pay tribute to American Jews for sharing their message of hope and perseverance with all of us. IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of May, in the year of our Lord nineteen hundred and ninety-seven, and of the Independence of the United States of America the two hundred and twenty-first.

[FR Doc. 97–12557 œ– Filed 5–9–97; 8:48 am] Billing code 3195–01–P i

Reader Aids Federal Register Vol. 62, No. 91 Monday, May 12, 1997

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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 9 CFR For additional information 523±5227 Proclamations: 77...... 24801 Presidential Documents 6996...... 24555 92...... 23635 Executive orders and proclamations 523±5227 6997...... 24557 94...... 24802, 25439 The United States Government Manual 523±5227 6998...... 25105 160...... 25444 6999...... 25421 161...... 25444 7000...... 26201 304...... 23639 Other Services 7001...... 26203 308...... 23639 Electronic and on-line services (voice) 523±4534 Administrative Orders: 310...... 23639 Privacy Act Compilation 523±3187 Presidential Determinations: 327...... 23639 TDD for the hearing impaired 523±5229 No. 97±21 of April 24, 381...... 23639 1997 ...... 23939 416...... 23639 Memorandums: 417...... 23639 ELECTRONIC BULLETIN BOARD April 24, 1997 ...... 24797 Proposed Rules: Free Electronic Bulletin Board service for Public Law numbers, 3...... 24611 5 CFR Federal Register finding aids, and list of documents on public 10 CFR inspection. 202±275±0920 530...... 25423 531...... 25423 52...... 25800 FAX-ON-DEMAND 591...... 25423 430...... 26140 You may access our Fax-On-Demand service. You only need a fax 1312...... 25426 703...... 24804 machine and there is no charge for the service except for long 3801...... 23941 1023...... 24804 distance telephone charges the user may incur. The list of Proposed Rules: Proposed Rules: documents on public inspection and the daily Federal Register’s 1603...... 25558 71...... 25146 table of contents are available using this service. The document 1640...... 25559 435...... 24164 numbers are 7050-Public Inspection list and 7051-Table of 7 CFR Contents list. The public inspection list will be updated 11 CFR immediately for documents filed on an emergency basis. 28...... 25799 Proposed Rules: 29...... 24559 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 100...... 24367 226...... 23613 104...... 24367 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 301 ...... 23620, 23943, 24746, public inspection may be viewed and copied in our office located 109...... 24367 24753 110...... 24367 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 340...... 23628, 23945 telephone number is: 301±713±6905 401...... 25107 12 CFR 454...... 23628 614...... 25831 FEDERAL REGISTER PAGES AND DATES, MAY 457...... 23628, 25107 618...... 25831 718...... 25433 617...... 24562 23613±23938...... 1 723...... 24799 620...... 24808 729...... 25433 23939±24324...... 2 630...... 24808 1464...... 24799 24325±24558...... 5 Proposed Rules: 24559±24796...... 6 1493...... 24560 1494...... 24560 Ch. IX...... 25563 24797±25106...... 7 1755...... 23958, 25017 13 CFR 25107±25420...... 8 1930...... 25062 25421±25798...... 9 1944...... 25062, 25071 121...... 24325 25799±26204...... 12 1951...... 25062 Proposed Rules: 1965...... 25062 120...... 25874 3403...... 26168 14 CFR Proposed Rules: 319...... 24849, 25561 39 ...... 23640, 23642, 24009, 321...... 24849 24013, 24014, 24015, 24017, 330...... 24849 24019, 24021, 24022, 24325, 401...... 23675 24567, 24568, 24570, 24809, 405...... 25140 24810, 25832, 25833, 25834, 416...... 23680 25836, 25837, 25839 425...... 23685 71 ...... 23643, 23644, 23646, 437...... 23690 23647, 34648, 23649, 23651, 457 ...... 23675, 23680, 23685, 23652, 23653, 23654, 23655, 23690, 25140 23656, 24024, 25110, 25112, 1137...... 24610 25445, 25448 Ch. XIII ...... 24849, 25140 95...... 25448 97...... 24025, 25110 8 CFR 187...... 24286, 24552 292...... 23634 310...... 25840 ii Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids

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222...... 24345 227...... 24345, 24588 600...... 23667 622...... 23671 648...... 25138 660 ...... 24355, 24845, 25872 670...... 24058 679...... 24058, 25138 Proposed Rules: 17 ...... 24387, 24388, 24632 600...... 23744, 24897 622...... 25158 648...... 24073 iv Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids

REMINDERS Radio stations; table of Construcciones Intent to establish; The items in this list were assignments: Aeronauticas, S.A.; comments due by 5-19- editorially compiled as an aid Oklahoma; published 4-3-97 published 4-7-97 97; published 4-18-97 to Federal Register users. Television broadcasting: Pratt & Whitney; published COMMERCE DEPARTMENT 4-25-97 Inclusion or exclusion from Cable Television Consumer National Oceanic and this list has no legal Protection and Atmospheric Administration significance. Competition Act of 1992Ð COMMENTS DUE NEXT Fishery conservation and Leased commercial WEEK management: RULES GOING INTO access; published 5-12- Magnuson Act provisions; EFFECT MAY 12, 1997 97 AGRICULTURE comments due by 5-23- FEDERAL RESERVE DEPARTMENT 97; published 4-23-97 West Coast States and AGRICULTURE SYSTEM Agricultural Marketing Western Pacific DEPARTMENT Securities credit transactions: Service fisheriesÐ Cooperative State Research, OTC margin stocks and Onions grown inÐ Pacific Coast groundfish; Education, and Extension foreign stocks lists; Texas; comments due by 5- comments due by 5-22- Service published 4-28-97 23-97; published 4-23-97 97; published 5-7-97 Small business innovation GENERAL SERVICES AGRICULTURE Salmon off coasts of research grants program; ADMINISTRATION DEPARTMENT Washington, Oregon, administrative provisions; Acquisition regulations: Federal Crop Insurance published 5-12-97 and California; Board of Contract Appeals; Corporation comments due by 5-19- COMMERCE DEPARTMENT procedure rulesÐ Crop insurance regulations: 97; published 4-3-97 National Oceanic and Transportation rate cases; Macadamia nuts; comments ENERGY DEPARTMENT Atmospheric Administration due by 5-19-97; published procedure rules; Occupational radiation Fishery conservation and 4-18-97 published 5-12-97 protection: management: Macadamia trees; comments Travel and relocation Guides and technical Alaska; fisheries of due by 5-19-97; published expenses cases; standards; availability; Exclusive Economic 4-18-97 procedure rules; comments due by 5-23- ZoneÐ published 5-12-97 Potatoes; comments due by 97; published 4-24-97 Recordkeeping and 5-23-97; published 4-23- Board of Contracts Appeals; ENVIRONMENTAL reporting requirements; procedure rulesÐ 97 revisions; published 4- PROTECTION AGENCY Decisions authorized by AGRICULTURE 11-97 Air programs: 31 U.S.C. 3529; DEPARTMENT Locomotives and locomotive Scallop; published 4-11-97 procedure rules; Forest Service engines; reduction of DEFENSE DEPARTMENT published 5-12-97 National Forest System timber; nitrogen oxides emissions, disposal and sale: Engineers Corps HEALTH AND HUMAN oxides, etc.; standards; Danger zones and restricted SERVICES DEPARTMENT Small business timber sales comments due by 5-19- areas: Centers for Disease Control set-aside program; shares 97; published 3-11-97 recomputation; appeal Persons subject to and Prevention Air quality implementation procedures; comments restrictions; clarification; Medicare, Medicaid, and plans; approval and due by 5-23-97; published published 4-10-97 clinical laboratories promulgation; various 3-24-97 Correction; published 5-2- improvement: States: AGRICULTURE 97 Clinical laboratory California; comments due by DEPARTMENT ENVIRONMENTAL requirements; effective 5-19-97; published 4-17- PROTECTION AGENCY dates extension; published Farm Service Agency 97 Air quality implementation 5-12-97 Farm marketing quotas, District of Columbia et al.; acreage allotments, and plans; approval and HEALTH AND HUMAN comments due by 5-23- production arrangements: promulgation; various SERVICES DEPARTMENT 97; published 4-23-97 States: Tobacco; comments due by Health Care Financing Indiana; comments due by 5-20-97; published 3-21- Delaware; published 3-12-97 Administration 5-19-97; published 4-18- 97 Illinois; published 3-12-97 Medicare, Medicaid, and 97 Pennsylvania; published 3- clinical laboratories AGRICULTURE Minnesota; comments due 11-97 improvement: DEPARTMENT by 5-23-97; published 4- Rural Utilities Service FEDERAL Clinical laboratory 23-97 COMMUNICATIONS requirements; effective Electric loans: North Dakota; comments COMMISSION dates extension; published Pre-loan policies and due by 5-21-97; published Common carrier services: 5-12-97 proceduresÐ 4-21-97 Paging, common and private NUCLEAR REGULATORY Temporary loan Pennsylvania; comments carrier; geographic COMMISSION processing procedures; due by 5-19-97; published comments due by 5-22- 4-18-97 licensing procedures; Classified information; access 97; published 2-21-97 competitive bidding; and protection; published 4- Pesticides; emergency published 3-12-97 11-97 ARCHITECTURAL AND exemptions, etc.: Radio services, special: TRANSPORTATION Benomyl; comments due by TRANSPORTATION BARRIERS COMPLIANCE 5-22-97; published 5-7-97 Amateur servicesÐ DEPARTMENT BOARD Pesticides; tolerances in food, Club station license, Federal Aviation Americans with Disabilities animal feeds, and raw volunteer examiner Administration teams, and session Act; implementation: agricultural commodities: managers; eligibility Airworthiness directives: Outdoor Developed Areas Avermectin B1 and delta- standards Airbus Industrie; published Accessibility Guidelines 8,9-isomer; comments due improvements; 4-7-97 Regulatory Negotiation by 5-23-97; published 3- published 4-10-97 Boeing; published 4-25-97 CommitteeÐ 24-97 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids v

Bromoxynil; comments due JUSTICE DEPARTMENT Recreational boats; hull Child restraint systemsÐ by 5-19-97; published 5-2- Immigration and identification numbers; 97 Naturalization Service comments due by 5-22- Tether anchorages and 97; published 2-21-97 Tebufenozide; comments Immigration: anchorage system; due by 5-19-97; published Regattas and marine parades: comments due by 5-21- Educational requirements for 3-20-97 97; published 2-20-97 naturalizationÐ First Coast Guard District FEDERAL fireworks displays; Exceptions due to COMMUNICATIONS comments due by 5-21- TREASURY DEPARTMENT physical or COMMISSION 97; published 4-21-97 developmental disability Alcohol, Tobacco and Administrative practice and or mental impairment; TRANSPORTATION Firearms Bureau procedure: comments due by 5-19- DEPARTMENT Electronic filing of 97; published 3-19-97 Federal Aviation Alcohol; viticultural area documents in rulemaking Administration LABOR DEPARTMENT designations: proceedings; comments Employment Standards Air traffic operating and flight due by 5-21-97; published Administration rules: Mendocino Ridge, CA; 4-21-97 Federal Coal Mine Health and Airport security areas, comments due by 5-22- Common carrier services: Safety Act of 1969, as unescorted access 97; published 4-7-97 Toll free service access amended: privileges; employment codes; comments due by history, verification, and Black Lung Benefits ActÐ TREASURY DEPARTMENT 5-22-97; published 4-25- criminal history records Individual claims by check; comments due by 97 Internal Revenue Service former coal miners and Radio stations; table of 5-19-97; published 3-19- dependents processing 97 assignments: Estate and gift taxes: and adjudication; Airworthiness directives: Louisiana; comments due by regulations clarification 5-19-97; published 4-3-97 and simplification; de Havilland; comments due Marital deduction; cross Minnesota; comments due comments due by 5-23- by 5-23-97; published 4- reference; comments due by 5-19-97; published 4-3- 97; published 2-24-97 15-97 by 5-19-97; published 2- Airbus Industrie; comments 18-97 97 LABOR DEPARTMENT Mississippi; comments due due by 5-19-97; published Pension and Welfare 4-9-97 by 5-19-97; published 4-3- Benefits Administration 97 AlliedSignal Inc.; comments Employee Retirement Income due by 5-19-97; published Texas; comments due by 5- Security Act: 3-18-97 19-97; published 4-3-97 Civil monetary penalties; Boeing; comments due by Virginia; comments due by inflation adjustment; 5-22-97; published 4-14- 5-19-97; published 4-3-97 comments due by 5-19- 97 Wyoming and Nebraska; 97; published 4-18-97 Bombardier; comments due comments due by 5-19- LEGAL SERVICES by 5-23-97; published 4- 97; published 4-3-97 CORPORATION 15-97 HEALTH AND HUMAN Aliens; legal assistance Dornier; comments due by SERVICES DEPARTMENT restrictions; comments due 5-19-97; published 4-9-97 Food and Drug by 5-21-97; published 4-21- Pratt & Whitney; comments Administration 97 due by 5-19-97; published Electronic identification/ PENSION BENEFIT 3-19-97 signatures in place of GUARANTY CORPORATION Saab; comments due by 5- handwritten signatures; Single-employer plans: 19-97; published 4-9-97 comments due by 5-19-97; published 3-20-97 Allocation of assetsÐ Class E airspace; comments due by 5-22-97; published Mortality tables; comments Food additives: 3-11-97 Adjuvants, production aids, due by 5-19-97; published 3-19-97 Class E airspace; comments and sanitizersÐ due by 5-19-97; published C.I. Pigment Yellow 191; PERSONNEL MANAGEMENT 4-8-97 OFFICE expanded safe use; Commercial launch vehicles; comments due by 5-21- Allowances and differentials: licensing regulations; 97; published 4-21-97 Cost-of-living allowances comments due by 5-19-97; INTERIOR DEPARTMENT (nonforeign areas); published 3-19-97 Indian Affairs Bureau comments due by 5-19- TRANSPORTATION 97; published 3-20-97 Education: DEPARTMENT TRANSPORTATION Higher education grant National Highway Traffic DEPARTMENT program; clarification; Safety Administration comments due by 5-20- Coast Guard Motor vehicle safety 97; published 2-19-97 Boating safety: standards: vi Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids

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

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

San Francisco, CA WHEN: May 21, 1997 at 9:00 am to 12:00 noon WHERE: Phillip Burton Federal Building and Courthouse 450 Golden Gate Avenue San Francisco, CA 94102

Anchorage, AK WHEN: May 23, 1997 at 9:00 am to 12:00 noon WHERE: Federal Building and U.S. Courthouse 222 West 7th Avenue Executive Dining Room (Inside Cafeteria) Anchorage, AK 99513 RESERVATIONS: For Long Beach, San Francisco, and Anchorage workshops please call Federal Information Center 1-800-688-9889 x 0 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids vii

CFR CHECKLIST Title Stock Number Price Revision Date 14 Parts: 1–59 ...... (869–028–00040–1) ...... 34.00 Jan. 1, 1996 This checklist, prepared by the Office of the Federal Register, is 60–139 ...... (869–028–00041–0) ...... 30.00 Jan. 1, 1996 published weekly. It is arranged in the order of CFR titles, stock *140–199 ...... (869–032–00039–5) ...... 16.00 Jan. 1, 1997 numbers, prices, and revision dates. *200–1199 ...... (869–032–00040–9) ...... 30.00 Jan. 1, 1997 ● An asterisk (*) precedes each entry that has been issued since last 1200–End ...... (869–032–00041–7) ...... 21.00 Jan. 1, 1997 week and which is now available for sale at the Government Printing 15 Parts: Office. 0–299 ...... (869–032–00042–5) ...... 21.00 Jan. 1, 1997 A ``●'' precedes each entry that is now available on-line through *300–799 ...... (869–032–00043–3) ...... 32.00 Jan. 1, 1997 the Government Printing Office's GPO Access service at http:// ●800–End ...... (869–032–00044–1) ...... 22.00 Jan. 1, 1997 www.access.gpo.gov/nara/cfr. For information about GPO Access 16 Parts: call 1-888-293-6498 (toll free). 0–149 ...... (869–028–00048–7) ...... 6.50 Jan. 1, 1996 A checklist of current CFR volumes comprising a complete CFR set, 150–999 ...... (869–028–00049–5) ...... 19.00 Jan. 1, 1996 also appears in the latest issue of the LSA (List of CFR Sections *●1000–End ...... (869–032–00046–8) ...... 34.00 Jan. 1, 1997 Affected), which is revised monthly. 17 Parts: The annual rate for subscription to all revised volumes is $951.00 1–199 ...... (869–028–00052–5) ...... 21.00 Apr. 1, 1996 domestic, $237.75 additional for foreign mailing. 200–239 ...... (869–028–00053–3) ...... 25.00 Apr. 1, 1996 Mail orders to the Superintendent of Documents, Attn: New Orders, 240–End ...... (869–028–00054–1) ...... 31.00 Apr. 1, 1996 P.O. Box 371954, Pittsburgh, PA 15250±7954. All orders must be 18 Parts: accompanied by remittance (check, money order, GPO Deposit 1–149 ...... (869–028–00055–0) ...... 17.00 Apr. 1, 1996 Account, VISA, Master Card, or Discover). Charge orders may be 150–279 ...... (869–028–00056–8) ...... 12.00 Apr. 1, 1996 telephoned to the GPO Order Desk, Monday through Friday, at (202) 280–399 ...... (869–028–00057–6) ...... 13.00 Apr. 1, 1996 512±1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your 400–End ...... (869–028–00058–4) ...... 11.00 Apr. 1, 1996 charge orders to (202) 512-2250. 19 Parts: Title Stock Number Price Revision Date 1–140 ...... (869–028–00059–2) ...... 26.00 Apr. 1, 1996 ●1, 2 (2 Reserved) ...... (869–032–00001–8) ...... $5.00 Feb. 1, 1997 141–199 ...... (869–028–00060–6) ...... 23.00 Apr. 1, 1996 ●3 (1996 Compilation 200–End ...... (869–028–00061–4) ...... 12.00 Apr. 1, 1996 and Parts 100 and 20 Parts: 101) ...... (869–032–00002–6) ...... 20.00 1 Jan. 1, 1997 1–399 ...... (869–028–00062–2) ...... 20.00 Apr. 1, 1996 ● ●4 ...... (869–032–00003–4) ...... 7.00 Jan. 1, 1997 400–499 ...... (869–028–00063–1) ...... 35.00 Apr. 1, 1996 500–End ...... (869–028–00064–9) ...... 32.00 Apr. 1, 1996 5 Parts: ●1–699 ...... (869–032–0004–2) ...... 34.00 Jan. 1, 1997 21 Parts: ● ●700–1199 ...... (869–032–00005–1) ...... 26.00 Jan. 1, 1997 1–99 ...... (869–028–00065–7) ...... 16.00 Apr. 1, 1996 ●1200–End, 6 (6 ●100–169 ...... (869–028–00066–5) ...... 22.00 Apr. 1, 1996 Reserved) ...... (869–032–00006–9) ...... 33.00 Jan. 1, 1997 ●170–199 ...... (869–028–00067–3) ...... 29.00 Apr. 1, 1996 ●200–299 ...... (869–028–00068–1) ...... 7.00 Apr. 1, 1996 7 Parts: ●300–499 ...... (869–028–00069–0) ...... 50.00 Apr. 1, 1996 ●0–26 ...... (869–032–00007–7) ...... 26.00 Jan. 1, 1997 ● ● 500–599 ...... (869–028–00070–3) ...... 28.00 Apr. 1, 1996 27–52 ...... (869–032–00008–5) ...... 30.00 Jan. 1, 1997 ●600–799 ...... (869–028–00071–1) ...... 8.50 Apr. 1, 1996 ● ...... 53–209 (869–028–00011–8) 17.00 Jan. 1, 1996 ●800–1299 ...... (869–028–00072–0) ...... 30.00 Apr. 1, 1996 ●210–299 ...... (869–032–00010–7) ...... 44.00 Jan. 1, 1997 ●1300–End ...... (869–028–00073–8) ...... 14.00 Apr. 1, 1996 ●300–399 ...... (869–032–00011–5) ...... 22.00 Jan. 1, 1997 ●400–699 ...... (869–032–00012–3) ...... 28.00 Jan. 1, 1997 22 Parts: ●700–899 ...... (869–032–00013–1) ...... 31.00 Jan. 1, 1997 1–299 ...... (869–028–00074–6) ...... 36.00 Apr. 1, 1996 900–999 ...... (869–032–00014–0) ...... 40.00 Jan. 1, 1997 300–End ...... (869–028–00075–4) ...... 24.00 Apr. 1, 1996 ●1000–1199 ...... (869–032–00015–8) ...... 45.00 Jan. 1, 1997 23 ...... ●1200–1499 ...... (869–032–00016–6) ...... 33.00 Jan. 1, 1997 (869–028–00076–2) 21.00 Apr. 1, 1996 1500–1899 ...... (869–028–00019–3) ...... 41.00 Jan. 1, 1996 24 Parts: ●1900–1939 ...... (869–032–00018–2) ...... 19.00 Jan. 1, 1997 0–199 ...... (869–028–00077–1) ...... 30.00 May 1, 1996 ●1940–1949 ...... (869–032–00019–1) ...... 40.00 Jan. 1, 1997 200–219 ...... (869–028–00078–9) ...... 14.00 May 1, 1996 ●1950–1999 ...... (869–032–00020–4) ...... 42.00 Jan. 1, 1997 220–499 ...... (869–028–00079–7) ...... 13.00 May 1, 1996 ●2000–End ...... (869–032–00021–2) ...... 20.00 Jan. 1, 1997 500–699 ...... (869–028–00080–1) ...... 14.00 May 1, 1996 ●8 ...... (869–032–00022–1) ...... 30.00 Jan. 1, 1997 700–899 ...... (869–028–00081–9) ...... 13.00 May 1, 1996 900–1699 ...... (869–028–00082–7) ...... 21.00 May 1, 1996 9 Parts: 1700–End ...... (869–028–00083–5) ...... 14.00 May 1, 1996 ●1–199 ...... (869–032–00023–9) ...... 39.00 Jan. 1, 1997 ●200–End ...... (869–032–00024–7) ...... 33.00 Jan. 1, 1997 25 ...... (869–028–00084–3) ...... 32.00 May 1, 1996 10 Parts: 26 Parts: ●0–50 ...... (869–028–00027–4) ...... 30.00 Jan. 1, 1996 §§ 1.0-1–1.60 ...... (869–028–00085–1) ...... 21.00 Apr. 1, 1996 ●51–199 ...... (869–032–00026–3) ...... 31.00 Jan. 1, 1997 §§ 1.61–1.169 ...... (869–028–00086–0) ...... 34.00 Apr. 1, 1996 200–399 ...... (869–028–00029–1) ...... 5.00 Jan. 1, 1996 §§ 1.170–1.300 ...... (869–028–00087–8) ...... 24.00 Apr. 1, 1996 400–499 ...... (869–028–00030–4) ...... 21.00 Jan. 1, 1996 §§ 1.301–1.400 ...... (869–028–00088–6) ...... 17.00 Apr. 1, 1996 500–End ...... (869–028–00031–2) ...... 34.00 Jan. 1, 1996 §§ 1.401–1.440 ...... (869–028–00089–4) ...... 31.00 Apr. 1, 1996 ●11 ...... (869–032–00029–8) ...... 20.00 Jan. 1, 1997 §§ 1.441-1.500 ...... (869-028-00090-8) ...... 22.00 Apr. 1, 1996 §§ 1.501–1.640 ...... (869–028–00091–6) ...... 21.00 Apr. 1, 1996 12 Parts: §§ 1.641–1.850 ...... (869–028–00092–4) ...... 25.00 Apr. 1, 1996 ● 1–199 ...... (869–032–00030–1) ...... 16.00 Jan. 1, 1997 §§ 1.851–1.907 ...... (869–028–00093–2) ...... 26.00 Apr. 1, 1996 ● 200–219 ...... (869–032–00031–0) ...... 20.00 Jan. 1, 1997 §§ 1.908–1.1000 ...... (869–028–00094–1) ...... 26.00 Apr. 1, 1996 ●220–299 ...... (869–032–00032–8) ...... 34.00 Jan. 1, 1997 ● §§ 1.1001–1.1400 ...... (869–028–00095–9) ...... 26.00 Apr. 1, 1996 300–499 ...... (869–032–00033–6) ...... 27.00 Jan. 1, 1997 §§ 1.1401–End ...... (869–028–00096–7) ...... 35.00 Apr. 1, 1996 ●500–599 ...... (869–032–00034–4) ...... 24.00 Jan. 1, 1997 ● 2–29 ...... (869–028–00097–5) ...... 28.00 Apr. 1, 1996 * 600–End ...... (869–032–00035–2) ...... 40.00 Jan. 1, 1997 30–39 ...... (869–028–00098–3) ...... 20.00 Apr. 1, 1996 ●13 ...... (869–032–00036–1) ...... 23.00 Jan. 1, 1997 40–49 ...... (869–028–00099–1) ...... 13.00 Apr. 1, 1996 viii Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids

Title Stock Number Price Revision Date Title Stock Number Price Revision Date 50–299 ...... (869–028–00100–9) ...... 14.00 Apr. 1, 1996 ●260–299 ...... (869–028–00153–0) ...... 53.00 July 1, 1996 300–499 ...... (869–028–00101–7) ...... 25.00 Apr. 1, 1996 ●300–399 ...... (869–028–00154–8) ...... 28.00 July 1, 1996 500–599 ...... (869–028–00102–5) ...... 6.00 4 Apr. 1, 1990 ●400–424 ...... (869–028–00155–6) ...... 33.00 July 1, 1996 600–End ...... (869–028–00103–3) ...... 8.00 Apr. 1, 1996 ●425–699 ...... (869–028–00156–4) ...... 38.00 July 1, 1996 ● 27 Parts: 700–789 ...... (869–028–00157–2) ...... 33.00 July 1, 1996 ● ...... 1–199 ...... (869–028–00104–1) ...... 44.00 Apr. 1, 1996 790–End (869–028–00158–7) 19.00 July 1, 1996 200–End ...... (869–028–00105–0) ...... 13.00 Apr. 1, 1996 41 Chapters: 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 28 Parts: ...... 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 ...... 1-42 (869–028–00106–8) 35.00 July 1, 1996 3–6 ...... 14.00 3 July 1, 1984 ...... 43-end (869-028-00107-6) 30.00 July 1, 1996 7 ...... 6.00 3 July 1, 1984 29 Parts: 8 ...... 4.50 3 July 1, 1984 0–99 ...... (869–028–00108–4) ...... 26.00 July 1, 1996 9 ...... 13.00 3 July 1, 1984 100–499 ...... (869–028–00109–2) ...... 12.00 July 1, 1996 10–17 ...... 9.50 3 July 1, 1984 500–899 ...... (869–028–00110–6) ...... 48.00 July 1, 1996 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 900–1899 ...... (869–028–00111–4) ...... 20.00 July 1, 1996 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 1900–1910 (§§ 1900 to 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 1910.999) ...... (869–028–00112–2) ...... 43.00 July 1, 1996 19–100 ...... 13.00 3 July 1, 1984 1910 (§§ 1910.1000 to 1–100 ...... (869–028–00159–9) ...... 12.00 July 1, 1996 end) ...... (869–028–00113–1) ...... 27.00 July 1, 1996 101 ...... (869–028–00160–2) ...... 36.00 July 1, 1996 1911–1925 ...... (869–028–00114–9) ...... 19.00 July 1, 1996 102–200 ...... (869–028–00161–1) ...... 17.00 July 1, 1996 1926 ...... (869–028–00115–7) ...... 30.00 July 1, 1996 201–End ...... (869–028–00162–9) ...... 17.00 July 1, 1996 1927–End ...... (869–028–00116–5) ...... 38.00 July 1, 1996 42 Parts: 30 Parts: ●1–399 ...... (869–028–00163–7) ...... 32.00 Oct. 1, 1996 1–199 ...... (869–028–00117–3) ...... 33.00 July 1, 1996 ●400–429 ...... (869–028–00164–5) ...... 34.00 Oct. 1, 1996 200–699 ...... (869–028–00118–1) ...... 26.00 July 1, 1996 ●430–End ...... (869–028–00165–3) ...... 44.00 Oct. 1, 1996 700–End ...... (869–028–00119–0) ...... 38.00 July 1, 1996 43 Parts: 31 Parts: ●1–999 ...... (869–028–00166–1) ...... 30.00 Oct. 1, 1996 0–199 ...... (869–028–00120–3) ...... 20.00 July 1, 1996 ●1000–end ...... (869–028–00167–0) ...... 45.00 Oct. 1, 1996 200–End ...... (869–028–00121–1) ...... 33.00 July 1, 1996 ●44 ...... (869–028–00168–8) ...... 31.00 Oct. 1, 1996 32 Parts: 45 Parts: 2 1–39, Vol. I ...... 15.00 July 1, 1984 ●1–199 ...... (869–028–00169–6) ...... 28.00 Oct. 1, 1996 2 1–39, Vol. II ...... 19.00 July 1, 1984 ●200–499 ...... (869–028–00170–0) ...... 14.00 6 Oct. 1, 1995 2 1–39, Vol. III ...... 18.00 July 1, 1984 ●500–1199 ...... (869–028–00171–8) ...... 30.00 Oct. 1, 1996 1–190 ...... (869–028–00122–0) ...... 42.00 July 1, 1996 ●1200–End ...... (869–028–00172–6) ...... 36.00 Oct. 1, 1996 191–399 ...... (869–028–00123–8) ...... 50.00 July 1, 1996 400–629 ...... (869–028–00124–6) ...... 34.00 July 1, 1996 46 Parts: 630–699 ...... (869–028–00125–4) ...... 14.00 5 July 1, 1991 ●1–40 ...... (869–028–00173–4) ...... 26.00 Oct. 1, 1996 700–799 ...... (869–028–00126–2) ...... 28.00 July 1, 1996 ●41–69 ...... (869–028–00174–2) ...... 21.00 Oct. 1, 1996 800–End ...... (869–028–00127–1) ...... 28.00 July 1, 1996 ●70–89 ...... (869–028–00175–1) ...... 11.00 Oct. 1, 1996 ●90–139 ...... (869–028–00176–9) ...... 26.00 Oct. 1, 1996 33 Parts: ●140–155 ...... (869–028–00177–7) ...... 15.00 Oct. 1, 1996 1–124 ...... (869–028–00128–9) ...... 26.00 July 1, 1996 ●156–165 ...... (869–028–00178–5) ...... 20.00 Oct. 1, 1996 125–199 ...... (869–028–00129–7) ...... 35.00 July 1, 1996 ●166–199 ...... (869–028–00179–3) ...... 22.00 Oct. 1, 1996 200–End ...... (869–028–00130–1) ...... 32.00 July 1, 1996 ●200–499 ...... (869–028–00180–7) ...... 21.00 Oct. 1, 1996 34 Parts: ●500–End ...... (869–028–00181–5) ...... 17.00 Oct. 1, 1996 1–299 ...... (869–028–00131–9) ...... 27.00 July 1, 1996 47 Parts: 300–399 ...... (869–028–00132–7) ...... 27.00 July 1, 1996 ●0–19 ...... (869–028–00182–3) ...... 35.00 Oct. 1, 1996 400–End ...... (869–028–00133–5) ...... 46.00 July 1, 1996 ●20–39 ...... (869–028–00183–1) ...... 26.00 Oct. 1, 1996 35 ...... (869–028–00134–3) ...... 15.00 July 1, 1996 ●40–69 ...... (869–028–00184–0) ...... 18.00 Oct. 1, 1996 ●70–79 ...... (869–028–00185–8) ...... 33.00 Oct. 1, 1996 36 Parts ●80–End ...... (869–028–00186–6) ...... 39.00 Oct. 1, 1996 1–199 ...... (869–028–00135–1) ...... 20.00 July 1, 1996 200–End ...... (869–028–00136–0) ...... 48.00 July 1, 1996 48 Chapters: ●1 (Parts 1–51) ...... (869–028–00187–4) ...... 45.00 Oct. 1, 1996 37 ...... (869–028–00137–8) 24.00 July 1, 1996 ●1 (Parts 52–99) ...... (869–028–00188–2) ...... 29.00 Oct. 1, 1996 38 Parts: ●2 (Parts 201–251) ...... (869–028–00189–1) ...... 22.00 Oct. 1, 1996 0–17 ...... (869–028–00138–6) ...... 34.00 July 1, 1996 ●2 (Parts 252–299) ...... (869–028–00190–4) ...... 16.00 Oct. 1, 1996 18–End ...... (869–028–00139–4) ...... 38.00 July 1, 1996 ●3–6 ...... (869–028–00191–2) ...... 30.00 Oct. 1, 1996 ●7–14 ...... (869–028–00192–1) ...... 29.00 Oct. 1, 1996 39 ...... (869–028–00140–8) ...... 23.00 July 1, 1996 ●15–28 ...... (869–028–00193–9) ...... 38.00 Oct. 1, 1996 40 Parts: ●29–End ...... (869–028–00194–7) ...... 25.00 Oct. 1, 1996 ●1–51 ...... (869–028–00141–6) ...... 50.00 July 1, 1996 49 Parts: ●52 ...... (869–028–00142–4) ...... 51.00 July 1, 1996 ●1–99 ...... (869–028–00195–5) ...... 32.00 Oct. 1, 1996 ●53–59 ...... (869–028–00143–2) ...... 14.00 July 1, 1996 ●100–185 ...... (869–028–00196–3) ...... 50.00 Oct. 1, 1996 60 ...... (869-028-00144-1) ...... 47.00 July 1, 1996 ●186–199 ...... (869–028–00197–1) ...... 14.00 Oct. 1, 1996 ●61–71 ...... (869–028–00145–9) ...... 47.00 July 1, 1996 ●200–399 ...... (869–028–00198–0) ...... 39.00 Oct. 1, 1996 ●72–80 ...... (869–028–00146–7) ...... 34.00 July 1, 1996 ●400–999 ...... (869–028–00199–8) ...... 49.00 Oct. 1, 1996 ●81–85 ...... (869–028–00147–5) ...... 31.00 July 1, 1996 ●1000–1199 ...... (869–028–00200–5) ...... 23.00 Oct. 1, 1996 86 ...... (869–028–00148–3) ...... 46.00 July 1, 1996 ●1200–End ...... (869–028–00201–3) ...... 15.00 Oct. 1, 1996 ●87-135 ...... (869–028–00149–1) ...... 35.00 July 1, 1996 ●136–149 ...... (869–028–00150–5) ...... 35.00 July 1, 1996 50 Parts: ●150–189 ...... (869–028–00151–3) ...... 33.00 July 1, 1996 ●1–199 ...... (869–028–00202–1) ...... 34.00 Oct. 1, 1996 ●190–259 ...... (869–028–00152–1) ...... 22.00 July 1, 1996 ●200–599 ...... (869–028–00203–0) ...... 22.00 Oct. 1, 1996 Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Reader Aids ix

Title Stock Number Price Revision Date ●600–End ...... (869–028–00204–8) ...... 26.00 Oct. 1, 1996 6 No amendments were promulgated during the period October 1, 1995 to September 30, 1996. The CFR volume issued October 1, 1995 should be retained. CFR Index and Findings Aids ...... (869–028–00051–7) ...... 35.00 Jan. 1, 1996 Complete 1997 CFR set ...... 951.00 1997 Microfiche CFR Edition: Subscription (mailed as issued) ...... 247.00 1997 Individual copies ...... 1.00 1997 Complete set (one-time mailing) ...... 264.00 1996 Complete set (one-time mailing) ...... 264.00 1995 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period Apr. 1, 1990 to Mar. 31, 1996. The CFR volume issued April 1, 1990, should be retained. 5 No amendments to this volume were promulgated during the period July 1, 1991 to June 30, 1996. The CFR volume issued July 1, 1991, should be retained.