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2 III

Contents Federal Register Vol. 62, No. 223

Wednesday, November 19, 1997

Agriculture Department Environmental Protection Agency See Food Safety and Inspection Service RULES See Forest Service Air quality implementation plans; approval and See Rural Housing Service promulgation; various States: NOTICES Louisiana, 61633–61635 Senior Executive Service: Pesticides; tolerances in food, animal feeds, and raw Performance Review Boards; membership, 61723–61724 agricultural commodities: Fomesafen, 61639–61645 Army Department Hydroprene, 61645–61647 NOTICES Methyl salicylate, 61635–61639 Patent licenses; non-exclusive, exclusive, or partially PROPOSED RULES exclusive: Superfund program: Kinetic energy projectile with fin leading edge protection National oil and hazardous substances contingency mechanisms, etc., 61809–61810 plan— National priorities list update, 61715–61719 Coast Guard NOTICES RULES Agency information collection activities: Ports and waterways safety: Submission for OMB review; comment request, 61819– Los Angeles Harbor-San Pedro Bay, CA; safety zone, 61820 61630–61631 Clean Water Act: Regattas and marine parades: New York; marine discharges of vessel sewage; City of Pompano Annual Christmas Boat Parade, 61629– prohibition, 61820 61630 Meetings: Science Advisory Board, 61821 Commerce Department Pesticide registration, cancellation, etc.: See International Trade Administration Termilind Ltd., 61890–61896 See National Oceanic and Atmospheric Administration Toxic and hazardous substances control: NOTICES Chemical testing— Agency information collection activities: Data receipt, 61821–61822 Submission for OMB review; comment request, 61728– 61729 Federal Aviation Administration RULES Defense Department Class E airspace, 61622–61624 See Army Department PROPOSED RULES Airworthiness directives: Drug Enforcement Administration Airbus, 61704–61706 NOTICES Bombardier, 61706–61708 Committees; establishment, renewal, termination, etc.: Short Brothers plc, 61703–61704 Suspicious Orders Task Force, 61829 Class E airspace, 61708–61710 Meetings: NOTICES Suspicious Orders Task Force, 61829–61830 Advisory circulars; availability, etc.: Normal category rotorcraft certification, 61858–61859 Education Department Transport category rotorcraft certification, 61859 NOTICES Agency information collection activities: Federal Communications Commission Submission for OMB review; comment request, 61810 RULES Common carrier services: Employment and Training Administration Terminal equipment, connection to telephone network— NOTICES Customer-provided terminal equipment; terms and Agency information collection activities: conditions; U.S. and Canadian requirements Proposed collection; comment request, 61830–61832 harmonization, 61649–61692 Radio stations; table of assignments: Energy Department Tennessee, 61692 See Federal Energy Regulatory Commission PROPOSED RULES NOTICES Radio stations; table of assignments: Meetings: Alaska, 61719 National Petroleum Council, 61810–61811 Arizona, 61721 Natural gas exportation and importation: Mississippi, 61721 Engage Energy US, L.P., 61811 North Carolina et al., 61721–61722 Plum Street Energy Marketing, Inc., et al., 61811–61812 Oregon, 61720 ProGas U.S.A., Inc., 61812–61813 Texas, 61720 Sierra Pacific Power Co., 61813 Utah, 61719–61720 IV Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Contents

Federal Energy Regulatory Commission Forest Service NOTICES NOTICES Environmental statements; availability, etc.: Environmental statements; notice of intent: NE Hub Partners, L.P., 61815–61816 Kaibab National Forest, AZ, 61726–61727 Saxman, AK, 61816 Hydroelectric applications, 61816–61819 Health and Human Services Department Applications, hearings, determinations, etc.: See Food and Drug Administration ANR Pipeline Co., 61813 See Health Care Financing Administration Colorado Interstate Gas Co., 61813–61814 See National Institutes of Health Natural Gas Pipeline Co. of America, 61814 Texas Gas Transmission Corp., 61814 Health Care Financing Administration Union Electric Co., 61814 NOTICES Union Light, Heat & Power Co., 61814–61815 Agency information collection activities: Submission for OMB review; comment request, 61825 Federal Maritime Commission Immigration and Naturalization Service RULES Maritime carriers in foreign commerce: NOTICES Conditions unfavorable to shipping, actions to adjust or Agency information collection activities: meet— Submission for OMB review; comment request, 61830 United States/Japan trade; port restrictions and Interior Department requirements, 61648–61649 NOTICES See Land Management Bureau Freight forwarder licenses: See National Park Service International Shipping Management USA, Inc., et al., See Reclamation Bureau 61822 See Surface Mining Reclamation and Enforcement Office International Trade Administration Federal Reserve System NOTICES RULES Antidumping: Depository institutions; reserve requirements (Regulation Collated roofing nails from— D): China, 61729–61730 Transaction accounts; low reserve tranche adjustment, Taiwan, 61730–61731 61620–61622 Cut-to-length carbon steel plate from— NOTICES China, 61773–61780 Banks and bank holding companies: Russian Federation, 61780–61794 Change in bank control, 61822 South Africa, 61731–61754 Formations, acquisitions, and mergers, 61822–61823 Ukraine, 61766–61773 Helical spring lock washers from— Food and Drug Administration China, 61794–61801 RULES Polyethylene terephthalate film, sheet, and strip from— Animal drugs, feeds, and related products: Korea, 61801–61802 New drug applications— Welded carbon steel pipes and tubes from— Amprolium plus ethopabate with bacitracin zinc, Thailand, 61802–61803 61627 Countervailing duties: Chlortetracycline, 61627–61628 Fresh Atlantic salmon from— Orbifloxacin tablets, 61626–61627 Chile, 61803–61809 Sponsor name and address changes— Schering-Plough Animal Health Corp., 61624–61626 Justice Department PROPOSED RULES See Drug Enforcement Administration Human drugs: See Immigration and Naturalization Service Antifungal products (OTC), etc.; administrative records See Justice Programs Office reopening, 61710–61712 NOTICES Justice Programs Office Color additive petitions: RULES Archer Daniels Midland Co., 61823 Young American Medals Program; implementation, 61628– Food additive petitions: 61629 Ciba Specialty Chemicals Corp., 61824 Medical devices; premarket approval: Labor Department TVL Lead System, 61824–61825 See Employment and Training Administration

Food Safety and Inspection Service Land Management Bureau RULES NOTICES Meat and poultry inspection: Environmental statements; availability, etc.: Carrageenam, locust bean gum and xanthan gum blend Lechuguilla-Mohawk habitat management plan, AZ, used as binder in cured pork products, 61619–61620 61827 NOTICES Meetings: Agency information collection activities: Resource advisory councils— Proposed collection; comment request, 61724–61726 Mojave-Southern Great Basin, 61827 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Contents V

Survey plat filings: Generic letters: Illinois, 61827 Equipment operability and containment integrity assurance during design-basis accident conditions, Maritime Administration 61835–61836 RULES Meetings; Sunshine Act, 61836 U.S.-flag commercial liner vessels: Operating licenses, amendments; no significant hazards Carriage of less-than-shipload lots of bulk and packaged considerations; biweekly notices, 61836–61855 preference cargoes; fair and reasonable guidelines rates determination; CFR part removed, 61647–61648 Public Health Service See Food and Drug Administration National Aeronautics and Space Administration See National Institutes of Health NOTICES Reclamation Bureau Patent licenses; non-exclusive, exclusive, or partially exclusive: NOTICES Meetings: Fast Track Management Consulting, 61832 Bay-Delta Advisory Council, 61828 National Archives and Records Administration Research and Special Programs Administration NOTICES RULES Agency information collection activities: Pipeline safety: Submission for OMB review; comment request, 61832– Excavation damage prevention programs— 61833 Qualified one-call systems; mandatory participation by pipeline operators, 61695–61700 National Credit Union Administration Outer Continental Shelf pipelines; point at which NOTICES pipeline is subject to RSPA regulations; Agency information collection activities: memorandum of understanding with Interior Proposed collection; comment request, 61833 Department, 61692–61695 NOTICES National Institutes of Health Agency information collection activities: NOTICES Proposed collection; comment request, 61859–61860 Agency information collection activities: Submission for OMB review; comment request, 61825– Rural Housing Service 61826 NOTICES Meetings: Agency information collection activities: National Institute of Child Health and Human Proposed collection; comment request, 61727–61728 Development, 61827 Recombinant DNA molecules research: Securities and Exchange Commission Actions under guidelines PROPOSED RULES Proposed, 61862–61864 Investment advisers: Fees based upon capital gains shares or capital National Oceanic and Atmospheric Administration appreciation of client’s account; exemption, 61882– RULES 61888 Fishery conservation and management: Multi-state investment advisers; exemption, 61866–61882 Caribbean, Gulf, and South Atlantic fisheries— NOTICES Gulf of Mexico reef fish, 61700 Securities: West Coast States and Western Pacific fisheries— Suspension of trading— Pacific Coast groundfish, 61700–61702 HealthTech International, Inc., 61857 Self-regulatory organizations; proposed rule changes: National Park Service Municipal Securities Rulemaking Board, 61857–61858 RULES Applications, hearings, determinations, etc.: National Park System: EQ Advisors Trust et al., 61855–61857 Safety belts; required use by all motor vehicle occupants, Surface Mining Reclamation and Enforcement Office 61631–61633 PROPOSED RULES Permanent program and abandoned mine land reclamation National Science Foundation plan submissions: NOTICES Louisiana, 61712–61715 Meetings: NOTICES Chemistry Special Emphasis Panel, 61834 Agency information collection activities: Design, Manufacture, and Industrial Innovation Special Proposed collection; comment request, 61828–61829 Emphasis Panel, 61834 Geosciences Special Emphasis Panel, 61834 Thrift Supervision Office Mathematical Sciences Special Emphasis Panel, 61834– NOTICES 61835 Applications, hearings, determinations, etc.: First Federal Savings & Loan Association of Cheraw, Nuclear Regulatory Commission 61860 NOTICES Environmental statements; availability, etc.: Transportation Department Entergy Gulf States, Inc., et al., 61835 See Coast Guard VI Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Contents

See Federal Aviation Administration Part III See Maritime Administration Securities and Exchange Commission, 61866–61888 See Research and Special Programs Administration Part IV Treasury Department Environmental Protection Agency, 61890–61896 See Thrift Supervision Office

Veterans Affairs Department Reader Aids NOTICES Additional information, including a list of telephone Committees; establishment, renewal, termination, etc.: numbers, finding aids, reminders, and a list of Public Laws Gulf War Expert Scientific Advisory Committee, 61860 appears in the Reader Aids section at the end of this issue.

Separate Parts In This Issue Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law Part II numbers, Federal Register finding aids, and a list of Department of Health and Human Services, National documents on public inspection is available on 202–275– Institutes of Health, 61862–61864 1538 or 275–0920. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

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

9 CFR 318...... 61619 12 CFR 204...... 61620 14 CFR 71 (2 documents) ...... 61622, 61623 Proposed Rules: 39 (3 documents) ...... 61703 61704, 61706 71 (2 documents) ...... 61708, 61709 17 CFR Proposed Rules: 275 (2 documents) ...... 61866, 61882 279...... 61866 21 CFR 510 (2 documents) ...... 61624, 61626 520 (2 documents) ...... 61624, 61626 522...... 61624 524...... 61624 558 (3 documents) ...... 61624, 61627 Proposed Rules: 333...... 61710 347...... 61710 348...... 61710 28 CFR 50...... 61628 30 CFR Proposed Rules: 918...... 61712 33 CFR 100...... 61629 165...... 61630 36 CFR 4...... 61631 40 CFR 52...... 61633 180 (3 documents) ...... 61635, 61639, 61645 185...... 61645 Proposed Rules: 300...... 61715 46 CFR 383...... 61647 586...... 61648 47 CFR 68...... 61649 73...... 61692 Proposed Rules: 73 (7 documents) ...... 61719, 61720, 61721 49 CFR 191...... 61692 192 (2 documents) ...... 61692, 61695 195 (2 documents) ...... 61692, 61695 50 CFR 622...... 61700 660...... 61700 61619

Rules and Regulations Federal Register Vol. 62, No. 223

Wednesday, November 19, 1997

This section of the FEDERAL REGISTER Service, Room 102, Cotton Annex, 300 184.1343). FDA has provided FSIS with contains regulatory documents having general 12th Street, SW, Washington, DC a letter dated October 13, 1995, applicability and legal effect, most of which 20250–3700. Reference materials cited concurring with FSIS’s determination are keyed to and codified in the Code of in this document will be available for that the petitioned use of a blend of Federal Regulations, which is published under public inspection in the FSIS Docket 50 titles pursuant to 44 U.S.C. 1510. carrageenan, locust bean gum, and Room from 8:30 a.m. to 4:30 p.m., xanthan gum in combination is The Code of Federal Regulations is sold by Monday through Friday. acceptable for use as a binder matrix the Superintendent of Documents. Prices of FOR FURTHER INFORMATION CONTACT: Mr. (blend) to prevent purging of added new books are listed in the first FEDERAL Robert Post, Labeling and Compounds brine solution in certain cured pork REGISTER issue of each week. Review Division, Office of Policy, products. Program Development and Evaluation; The petitioner submitted data to show (202) 418–8900. DEPARTMENT OF AGRICULTURE that at a use level of 0.5 percent, a blend SUPPLEMENTARY INFORMATION: On July consisting of 70 percent carrageenan, 15 Food Safety and Inspection Service 18, 1995, FSIS was petitioned by percent locust bean gum and 15 percent Vedeqsa, S.A., to approve the use of a xanthan gum reduces the purge of brine 9 CFR Part 318 blend of carrageenan, locust bean gum, in water-added hams as well as and xanthan gum as a binder in cured [Docket No. 96±014DF] carrageenan alone. After reviewing this, pork products labeled ‘‘Ham Water and the petitioner’s other technical data RIN 0583±AC16 Added’’ and ‘‘Ham and Water Product— and information, FSIS has determined X% of Weight is Added Ingredients,’’ in that 9 CFR 318.7(c)(4) should be Carrageenan, Locust Bean Gum and an amount not exceeding 0.5 percent of amended to permit the use of any blend Xanthan Gum Blend Used as a Binder product formulation, to prevent purging of carrageenan, locust bean gum, and in Certain Cured Pork Products of the brine solution. During xanthan gum in ‘‘Ham Water Added’’ manufacturing, these ham products are AGENCY: Food Safety and Inspection and ‘‘Ham and Water Product—X% of pumped with a brine solution, the Service, USDA. Weight is Added Ingredients’’ products ultimate level of which is controlled by at a level not to exceed 0.5 percent of ACTION: Direct final rule. a protein-fat-free (PFF) standard the product formulation weight. Such described in 9 CFR 319.104. PFF is the SUMMARY: The Food Safety and use will reduce the amount of purge Inspection Service (FSIS) is amending minimum meat protein which is from the ham products during storage. the Federal meat inspection regulations indigenous to the raw, unprocessed This binder is not permitted to be used to permit the use of a blend of pork, expressed as a percent of the in combination with any other binder carrageenan, locust bean gum, and nonfat portion of the finished product. approved for use in cured pork xanthan gum as a binder in cured pork These products are normally packaged products. This binder shall be products labeled ‘‘Ham Water Added’’ in clear plastic and enclosed by a designated in the ingredients statement, and ‘‘Ham and Water Product—X% of vacuum seal. Subsequent to the curing as provided in 9 CFR 319.104(d). process, the brine purges from the Weight is Added Ingredients.’’ FSIS FSIS expects no adverse public products, settling in the products’ currently permits the use of other reaction resulting from this change in packages, reducing the moisture content specified binders in these cured pork regulatory language. Therefore, unless of the products and negatively affecting products. The maximum use level of 0.5 the Agency receives adverse comments percent will prevent purging of the their appearance and quality. FSIS currently permits the use of within the scope of the rulemaking, or pumped brine solution from the carrageenan as an extender and notice of intent to submit adverse products, thereby retaining product stabilizer in breading mixes and sauces comments within the scope of the moisture and enhancing texture. for use in meat products at a level rulemaking within 30 days, the action DATES: This rule will be effective sufficient for that purpose, and in ‘‘Ham will become final 60 days after January 20, 1998 unless FSIS receives Water Added’’ and ‘‘Ham and Water publication in the Federal Register. If written adverse comments within the Product—X% of Weight is Added adverse comments within the scope of scope of this rulemaking or written Ingredients’’ up to 1.5 percent of the rulemaking are received, the direct notice of intent to submit adverse product formulation to prevent purging final rulemaking notice will be comments within the scope of this of brine solution. FSIS also permits the withdrawn and a proposed rulemaking rulemaking on or before December 19, use of xanthan gum as an emulsifier, notice will establish a comment period. 1997. If written adverse comments or stabilizer, or thickener in meat sauces, Executive Order 12988 notice of intent to submit adverse gravies, canned or frozen meat salads or comments is received, FSIS will publish stews, canned chili, pizza topping This direct final rule has been timely notice of the withdrawal of this mixes, and batter and breading mixes, at reviewed under Executive Order 12988, rule in the Federal Register. a level sufficient for that purpose. Civil Justice Reform. If this direct final ADDRESS: Submit adverse comments or The Food and Drug Administration rule is adopted: (1) All state and local notice of intent to submit adverse (FDA) lists locust (carob) bean gum as laws and regulations that are comments within the scope of this generally recognized as safe as a inconsistent with this rule will be rulemaking to: FSIS Docket Clerk, stabilizer and thickener with a preempted; (2) no retroactive effect will Docket #96–014DF, U.S. Department of maximum usage level of 0.5 percent be given to this rule; and (3) Agriculture, Food Safety and Inspection when used in meat products (21 CFR administrative proceedings will not be 61620 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations required before parties may file suit in blend would incur labeling expenses in For the reasons set out in the court challenging this rule. revising the ingredients statements of preamble, 9 CFR part 318 is amended as their labels to show the presence of the follows: Executive Order 12866 and Regulatory blend. Decisions by individual Flexibility Act manufacturers on whether to use the PART 318ÐENTRY INTO OFFICIAL This direct final rule has been binder blend in these cured pork ESTABLISHMENTS; REINSPECTION determined to be not significant and, products would be based on their AND PREPARATION OF PRODUCTS therefore, has not been reviewed by conclusions that the benefits outweigh 1. The authority citation for part 318 OMB. the implementation costs. continues to read as follows: Effect on Small Entities Paperwork Requirements Authority: 7 U.S.C. 450, 1901–1906; 21 The Administrator, FSIS, has made a Manufacturers opting to use a blend U.S.C. 601–695; 7 CFR 2.18, 2.53. determination that this direct final rule of carrageenan, locust bean gum, and 2. In section 318.7(c)(4), under the will not have a significant economic xanthan gum as a binder in specific Class of substance ‘‘Binders and impact on a substantial number of small pork products must revise their product extenders,’’ a new entry for the entities, as defined by the Regulatory labels. Such labeling changes will be substance ‘‘Carrageenan, Locust Gum Flexibility Act (5 U.S.C. 601). This generically approved in accordance Bean, and Xanthan Gum Blend’’ is direct final rule permits the use of an with 9 CFR 317.5. Any burden added at the end to read as follows: additional binder matrix, a blend of associated with labeling changes are carrageenan, locust bean gum, and approved under OMB number 0583– § 318.7 Approval of substances for use in xanthan gum, in ‘‘Ham Water Added’’ 0092. the preparation of products. and ‘‘Ham and Water Product—X% of * * * * * Weight is Added Ingredients.’’ List of Subjects in 9 CFR Part 318 (c) * * * Manufacturers opting to use the binder Food additives, Meat inspection. (4) * * *

Class of Substance Substance Purpose Products Amount

******* Binders and extenders Carrageenan, Locust To prevent purging of Cured pork products In combination, not to exceed 0.5 percent of bean gum, and brine solution. as provided in 9 product formulation; not permitted in com- Xanthan gum blend. CFR 319.104(d). bination with other binders approved for use in cured pork products; in accordance with 21 CFR 172.620, 172.623, 172.626, 184.1343, and 172.695 *******

Done at Washington, DC, on November 10, million the amount of reservable more will be required to report quarterly 1997. liabilities of each depository institution on form FR 2910q while exempt Thomas J. Billy, that is subject to a reserve requirement institutions with total deposits less than Administrator. of zero percent. This action is required $50.7 million may report annually on [FR Doc. 97–30324 Filed 11–18–97; 8:45 am] by section 19(b)(11)(B) of the Federal form FR 2910a. BILLING CODE 3410±DM±P Reserve Act, and the adjustment is DATES: Effective date: December 16, known as the reservable liabilities 1997. exemption adjustment. The Board is Compliance dates: For depository FEDERAL RESERVE SYSTEM also increasing the deposit cutoff levels institutions that report weekly, the low that are used in conjunction with the reserve tranche adjustment and the 12 CFR Part 204 reservable liabilities exemption to reservable liabilities exemption determine the frequency of deposit adjustment will apply to the reserve [Regulation D; Docket No. R±0945] reporting from $75.0 million to $78.9 computation period that begins Reserve Requirements of Depository million for nonexempt depository Tuesday, December 30, 1997, and the corresponding reserve maintenance Institutions institutions and from $48.2 million to $50.7 million for exempt institutions. period that begins Thursday, January 1, AGENCY: Board of Governors of the (Nonexempt institutions are those with 1998. For institutions that report Federal Reserve System. total reservable liabilities exceeding the quarterly, the low reserve tranche ACTION: Final rule. amount exempted from reserve adjustment and the reservable liabilities requirements ($4.7 million) while exemption adjustment will apply to the SUMMARY: The Board is amending exempt institutions are those with total reserve computation period that begins Regulation D, Reserve Requirements of reservable liabilities not exceeding the Tuesday, December 16, 1997, and the Depository Institutions, to decrease the amount exempted from reserve corresponding reserve maintenance amount of transaction accounts subject requirements.) Thus, beginning in period that begins Thursday, January 15, to a reserve requirement ratio of three September 1998, nonexempt institutions 1998. For all depository institutions, the percent, as required by section with total deposits of $78.9 million or deposit cutoff levels will be used to 19(b)(2)(C) of the Federal Reserve Act, more will be required to report weekly screen institutions in the second quarter from $49.3 million to $47.8 million of while nonexempt institutions with total of 1998 to determine the reporting net transaction accounts. This deposits less than $78.9 million may frequency for the twelve month period adjustment is known as the low reserve report quarterly, in both cases on form that begins in September 1998. tranche adjustment. The Board is FR 2900. Similarly, exempt institutions FOR FURTHER INFORMATION CONTACT: Rick increasing from $4.4 million to $4.7 with total deposits of $50.7 million or Heyke, Attorney (202/452–3688), Legal Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61621

Division, or June O’Brien, Economist would otherwise be subject to a three In order to reduce the reporting (202/452–3790), Division of Monetary percent reserve requirement (i.e., net burden for small institutions, the Board Affairs; for the hearing impaired only, transaction accounts within the low has established deposit reporting cutoff contact Diane Jenkins, reserve requirement tranche) may be so levels to determine deposit reporting Telecommunications Device for the Deaf designated. frequency. Institutions are screened (TDD)(202/452–3544); Board of Section 19(b)(11)(B) of the Federal during the second quarter of each year Governors of the Federal Reserve Reserve Act provides that, before to determine reporting frequency System, 20th and C Streets, N.W., December 31 of each year, the Board beginning the following September. In Washington, DC 20551. shall issue a regulation adjusting for the July of 1988 the Board set a single cutoff SUPPLEMENTARY INFORMATION: Section next calendar year the dollar amount of level for all depository institutions of 19(b)(2) of the Federal Reserve Act (12 reservable liabilities exempt from $40 million plus an amount equal to 80 U.S.C. 461(b)(2)) requires each reserve requirements. Unlike the percent of the annual rate of increase of depository institution to maintain adjustment for the low reserve tranche total deposits.3 In August of 1994, the reserves against its transaction accounts on net transaction accounts, which Board replaced the single deposit cutoff and nonpersonal time deposits, as adjustment can result in a decrease as level that had applied to both prescribed by Board regulations. The well as an increase, the change in the nonexempt and exempt institutions initial reserve requirements imposed exemption amount is to be made only if with separate cutoff levels, increasing under section 19(b)(2) were set at three the total reservable liabilities held at all the cutoff level for nonexempt percent for net transaction accounts of depository institutions increase from institutions, and in September 1997 $25 million or less and at 12 percent on one year to the next. The percentage further increased the cutoff level for net transaction accounts above $25 increase in the exemption is to be 80 nonexempt institutions. The cutoff level million for each depository institution. percent of the increase in total for nonexempt institutions, which Effective April 2, 1992, the Board reservable liabilities of all depository determines whether they report (on FR lowered the required reserve ratio institutions as of the year ending June 2900) quarterly or weekly, was thereby applicable to transaction account 30. Total reservable liabilities of all raised to $75.0 million. The deposit balances exceeding the low reserve depository institutions increased by 7.7 cutoff level for exempt institutions, tranche from 12 percent to 10 percent. percent (from $1,695.1 billion to which determines whether they report Section 19(b)(2) also provides that, $1,824.8 billion) from June 30, 1996, to annually (on FR 2910a) or quarterly (on before December 31 of each year, the June 30, 1997. Consequently, the FR 2910q), remained at the indexed Board shall issue a regulation adjusting reservable liabilities exemption amount level of $48.2 million. the low reserve tranche for the next for 1998 under section 19(b)(11)(B) will From June 30, 1996, to June 30, 1997, calendar year. The adjustment in the be increased by $0.3 million to $4.7 total deposits increased 6.6 percent, tranche is to be 80 percent of the million.2 from $4,168.2 billion to $4,442.2 billion. percentage increase or decrease in net The effect of the application of section Accordingly, the nonexempt deposit transaction accounts at all depository 19(b) of the Federal Reserve Act to the cutoff level will increase by $3.9 million institutions over the one-year period change in the total net transaction to $78.9 million and the exempt deposit that ends on the June 30 prior to the accounts and the change in the total cutoff level will increase by $2.5 million adjustment. reservable liabilities from June 30, 1996, to $50.7 million. Based on the Currently, the low reserve tranche on to June 30, 1997, is to decrease the low indexation of the reservable liabilities net transaction accounts is $49.3 reserve tranche to $47.8 million, to exemption, the cutoff level for total million. Net transaction accounts of all apply a zero percent reserve deposits above which reports of depository institutions decreased by 3.7 requirement on the first $4.7 million of deposits must be filed will rise from percent (from $740.1 billion to $712.8 transaction accounts, and to apply a $4.4 million to $4.7 million. Institutions billion) from June 30, 1996, to June 30, three percent reserve requirement on the with total deposits below $4.7 million 1997. In accordance with section remainder of the low reserve tranche. will be excused from reporting if their 19(b)(2), the Board is amending The tranche adjustment and the deposits can be estimated from other Regulation D (12 CFR Part 204) to reservable liabilities exemption data sources. The $78.9 million cutoff decrease the low reserve tranche for adjustment for weekly reporting level for weekly versus quarterly FR transaction accounts for 1998 by $1.5 institutions will be effective for the 2900 reporting for nonexempt million to $47.8 million. reserve computation period beginning institutions, the $50.7 million cutoff Section 19(b)(11)(A) of the Federal Tuesday, December 30, 1997, and for level for quarterly FR 2910q versus Reserve Act (12 U.S.C. 461 (b)(11)(B)) the corresponding reserve maintenance annual FR 2910a reporting for exempt provides that $2 million of reservable period beginning Thursday, January 1, institutions, and the $4.7 million level liabilities 1 of each depository 1998. For institutions that report threshold for reporting will be used in institution shall be subject to a zero quarterly, the tranche adjustment and the second quarter 1998 deposits report percent reserve requirement. Each the reservable liabilities exemption screening process, and the adjustments depository institution may, in adjustment will be effective for the will be made when the new deposit accordance with the rules and computation period beginning Tuesday, reporting panels are implemented in regulations of the Board, designate the December 16, 1997, and for the reserve September 1998. reservable liabilities to which this maintenance period beginning All U.S. branches and agencies of reserve requirement exemption is to Thursday, January 15, 1998. In addition, foreign banks and all Edge and apply. However, if net transaction all institutions currently submitting agreement corporations, regardless of accounts are designated, only those that form FR 2900 must continue to submit size, are required to file weekly the reports to the Federal Reserve under 3 1 Reservable liabilities include transaction current reporting procedures. ‘‘Total deposits’’ as used in determining the accounts, nonpersonal time deposits, and cutoff level includes not only gross transaction Eurocurrency liabilities as defined in section deposits, savings accounts, and time deposits, but 19(b)(5) of the Federal Reserve Act. The reserve 2 Consistent with Board practice, the tranche and also reservable obligations of affiliates, ineligible ratio on nonpersonal time deposits and exemption amounts have been rounded to the acceptance liabilities, and net Eurocurrency Eurocurrency liabilities is zero percent. nearest $0.1 million. liabilities. 61622 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

Report of Transaction Accounts, Other involve expected, ministerial PART 204ÐRESERVE Deposits and Vault Cash (FR 2900). adjustments prescribed by statute and REQUIREMENTS OF DEPOSITORY After the indexations become effective by an interpretative statement INSTITUTIONS (REGULATION D) in 1998, all other institutions that have reaffirming the Board’s policy 1. The authority citation for part 204 reservable liabilities in excess of the concerning reporting practices. continues to read as follows: exemption level of $4.7 million Moreover, the low reserve tranche prescribed by section 19(b)(11) of the adjustment and the reservable liabilities Authority: 12 U.S.C. 248(a), 248(c), 371a, Federal Reserve Act (known as exemption adjustment are required to be 461, 601, 611, and 3105. ‘‘nonexempt institutions’’) and total effective for the next calendar year even 2. Section 204.9 is revised to read as deposits at least equal to the nonexempt though the data which they are required follows: deposit cutoff level ($78.9 million) will to reflect are only available late in the be required to file weekly the Report of § 204.9 Reserve requirement ratios. prior year. In addition, the reservable Transaction Accounts, Other Deposits (a) Reserve percentages. The following liabilities exemption adjustment and the and Vault Cash (FR 2900) for the twelve reserve ratios are prescribed for all increases for reporting purposes in the month period starting September 1998. depository institutions, Edge and However, nonexempt institutions with deposit cutoff levels reduce regulatory Agreement corporations, and United total deposits less than the nonexempt burdens on depository institutions, and States branches and agencies of foreign deposit cutoff level ($78.9 million), will the low reserve tranche adjustment will banks: be able to file the FR 2900 quarterly. have a de minimis effect on depository Institutions that obtain funds from non- institutions with net transaction Category Reserve require- U.S. sources or that have foreign accounts exceeding $47.8 million. ment 1 branches or international banking Accordingly, the Board finds good cause facilities are required to file the Report for determining, and so determines, that Net transaction ac- counts: of Certain Eurocurrency Transactions notice and public participation is $0 to $47.8 million 3 percent of amount. (FR 2950/2951) at the same frequency as unnecessary, impracticable, or contrary over $47.8 million .. $1,434,000 plus 10 they file the FR 2900. to the public interest. percent of amount Institutions with reservable liabilities The provisions of 5 U.S.C. 553(d) over $47.8 million at or below the exemption level ($4.7 Nonpersonal time 0 percent. million) (known as exempt institutions) relating to notice of the effective date of deposits. will be required to file the Quarterly a rule have not been followed in Eurocurrency liabil- 0 percent. Report of Selected Deposits, Vault Cash, connection with the adoption of these ities. amendments because the low reserve and Reservable Liabilities (FR 2910q) if 1 Before deducting the adjustment to be their total deposits equal or exceed the tranche adjustment and the reservable made by the paragraph (b) of this section. exempt deposit cutoff level ($50.7 liabilities adjustment are expected, million). Exempt institutions with total ministerial amendments prescribed by (b) Exemption from reserve deposits less than the exempt deposit statute. Moreover, they are required to requirements. Each depository institution, Edge or agreement cutoff level ($50.7 million) but at least be effective for the next calendar year corporation, and U.S. branch or agency equal to the exemption amount ($4.7 even though the data which they are of a foreign bank is subject to a zero million) will be able to file the Annual required to reflect are only available late percent reserve requirement on an Report of Total Deposits and Reservable in the prior year. In addition, the Liabilities (FR 2910a). Institutions that amount of its transaction accounts reservable liabilities adjustment and the subject to the low reserve tranche in have total deposits less than the increase in deposit cutoff levels for exemption amount ($4.7 million) are not paragraph (a) of this section not in reporting purposes relieve a restriction excess of $4.7 million determined in required to file deposit reports if their on depository institutions, and the low deposits can be estimated from other accordance with § 204.3(a)(3). reserve tranche will have a de minimis data sources. By order of the Board of Governors of effect on depository institutions with Finally, the Board may require a the Federal Reserve System, November net transaction accounts exceeding depository institution to report on a 13, 1997. weekly basis, regardless of the cutoff $47.8 million. Accordingly, there is good cause to determine, and the Board William W. Wiles, level, if the institution manipulates its Secretary of the Board. total deposits and other reservable so determines, that such notice is [FR Doc. 97–30237 Filed 11–18–97; 8:45 am] liabilities in order to qualify for impracticable or unnecessary. BILLING CODE 6210±01±P quarterly reporting. Similarly, any Regulatory Flexibility Analysis depository institution that reports quarterly may be required to report The Board certifies that these DEPARTMENT OF TRANSPORTATION weekly and to maintain appropriate amendments will not have a substantial reserve balances with its Reserve Bank economic impact on small depository Federal Aviation Administration if, during its computation period, it institutions. See ‘‘Notice and Public understates its usual reservable Participation’’ above. 14 CFR Part 71 liabilities or overstates the deductions allowed in computing required reserve List of Subjects in 12 CFR Part 204 [Airspace Docket No. 97±ASO±14] balances. Banks, banking, Reporting and Revocation of Class E Airspace; Notice and Public Participation recordkeeping requirements. Marietta Dobbins ARB (NAS Atlanta), GA The provisions of 5 U.S.C. 553(b) For the reasons set forth in the relating to notice and public preamble, the Board is amending 12 AGENCY: Federal Aviation participation have not been followed in CFR part 204 as follows: Administration (FAA), DOT. connection with the adoption of these ACTION: Final rule. amendments because the amendments Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61623

SUMMARY: This amendment revokes List of Subjects in 14 CFR Part 71 Municipal Airport. The operating status Class E surface area airspace at Marietta Airspace, Incorporation by reference, of the airport will change from Visual Dobbins Air Reserve Base (ARB) (Naval Navigation (air). Flight Rules (VFR) to include IFR Air Station [NAS] Atlanta). The required operations concurrent with publication weather observations are no longer Adoption of the Amendment of the SIAP. being taken after the control tower In consideration of the foregoing, the EFFECTIVE DATE: 0901 UTC, January 1, closes; therefore, the airport no longer Federal Aviation Administration 1998. meets the criteria for Class E surface amends 14 CFR part 71 as follows: FOR FURTHER INFORMATION CONTACT: area airspace. Nancy B. Shelton, Airspace Branch, Air EFFECTIVE DATE: 0901 UTC, January 1, PART 71ÐDESIGNATION OF CLASS A, Traffic Division, Federal Aviation 1998. CLASS B, CLASS C, CLASS D, AND Administration, P.O. Box 20636, FOR FURTHER INFORMATION CONTACT: CLASS E AIRSPACE AREAS; Atlanta, Georgia 30320; telephone (404) Nancy B. Shelton, Airspace Branch, Air AIRWAYS; ROUTES; AND REPORTING 305–5576. Traffic Division, Federal Aviation POINTS SUPPLEMENTARY INFORMATION: Administration, P.O. Box 20636, 1. The authority citation for 14 CFR History Atlanta, Georgia 30320; Telephone (404) part 71 continues to read as follows: 305–5491. On September 12, 1997, the FAA Authority: 49 U.S.C. 106(g), 40103, 40113, SUPPLEMENTARY INFORMATION: Weather 40120; EO 10854, 24 FR 9565, 3 CFR 1959– proposed to amend 14 CFR part 71 by observations are a requirement for Class 1963 Comp., p. 389. establishing Class E airspace at E surface area airspace. Since weather Guntersville, AL (62 FR 48025). This observations are no longer taken at § 71.1 [Amended] action would provide adequate Class E Marietta Dobbins ARB (NAS Atlanta) 2. The incorporation by reference in airspace for IFR operations at after the control tower closes, the 14 CFR 71.1 of Federal Aviation Guntersville Municipal Airport. requirement for Class E surface area Administration Order 7400.9E, Airspace Designations for Class E airspace airspace is no longer being met; Designations and Reporting Points, extending upward from 700 feet or more therefore, the Class E surface area dated September 10, 1997, and effective above the surface of the earth are airspace is no longer being met; September 16, 1997, is amended as published in Paragraph 6005 of FAA therefore, the Class E surface area follows: Order 7400.9E, dated September 10, airspace must be revoked. This rule will Paragraph 6002 Class E airspace areas 1997, and effective September 16, 1997, become effective on the date specified designated as a surface area for an airport. which is incorporated by reference in 14 in the EFFECTIVE DATE section. Since this CFR part 71.1. The Class E airspace action revokes the Class E surface area * * * * * ASO GA E2 Marietta Dobbins ARB (NAS designation listed in this document will airspace, and as a result, eliminates the Atlanta), GA [Removed] be published subsequently in the Order. impact of Class E airspace on users of Interested parties were invited to the airspace in the vicinity of Marietta * * * * * participate in this rulemaking Issued in College Park, Georgia, on Dobbins ARB (NAS Atlanta), notice and November 3, 1997. proceeding by submitting written public procedure under 5 U.S.C. 553(b) comments on the proposal to the FAA. Nancy B. Shelton, are unnecessary. No comments objecting to the proposal Designations for Class E airspace areas Acting Manager, Air Traffic Division, were received. designated as a surface area for an Southern Region. airport are published in FAA Order [FR Doc. 97–30355 Filed 11–18–97; 8:45 am] The Rule 7400.9E dated September 10, 1997, and BILLING CODE 4910±13±M This amendment to 14 CFR part 71 effective September 16, 1997, which is establishes Class E airspace at incorporated by reference in 14 CFR Guntersville, AL. Additionally, this rule part 71.1. The Class E airspace DEPARTMENT OF TRANSPORTATION makes a technical amendment to the designation listed in this document will Federal Aviation Administration legal description of the airspace area by be published subsequently in the Order. adding words that exclude an adjacent The FAA has determined that this 14 CFR Part 71 Class E airspace area. A GPS–A SIAP regulation only involves an established has been developed for Guntersville body of technical regulations for which [Airspace Docket 97±ASO±13] Municipal Airport. Controlled airspace frequent and routine amendments are extending upward from 700 feet AGL is Establishment of Class E Airspace; necessary to keep them operationally needed to accommodate this SIAP and Guntersville, AL current. It, therefore, (1) is not a for IFR operations at Guntersville ‘‘significant regulatory action’’ under AGENCY: Federal Aviation Municipal Airport. The operating status Executive Order 12866; (2) is not a Administration (FAA), DOT. of the airport will change from VFR to ‘‘significant rule’’ under DOT ACTION: Final rule. include IFR operations concurrent with Regulatory Policies and Procedures (44 publication of this SIAP. FR 11034; February 26, 1979); and (3) SUMMARY: This amendment establishes The FAA has determined that this does not warrant preparation of a Class E airspace area at Guntersville, regulation only involves an established Regulatory Evaluation, as the AL. A Global Positioning System (GPS)- body of technical regulations for which anticipated impact is so minimal. Since A Standard Instrument Approach frequent and routine amendments are this is a routine matter that will only Procedure (SIAP) has been developed necessary to keep them operationally affect air traffic procedures and air for Guntersville Municipal Airport. current. It, therefore, (1) is not a navigation, it is certified that this rule Controlled airspace extending upward ‘‘significant regulatory action’’ under will not have a significant economic from 700 feet Above Ground Level Executive Order 12866; (2) is not a impact on a substantial number of small (AGL) is needed to accommodate the ‘‘significant rule’’ under DOT entities under the criteria of the SIAP and for Instrument Flight Rules Regulatory Policies and Procedures (44 Regulatory Flexibility Act. (IFR) operations at Guntersville FR 11034; February 26, 1979); and (3) 61624 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations does not warrant preparation of a DEPARTMENT OF HEALTH AND § 510.600 [Amended] Regulatory Evaluation as the anticipated HUMAN SERVICES 2. Section 510.600 Names, addresses, impact is so minimal. Since this is a and drug labeler codes of sponsors of Food and Drug Administration routine matter that will only affect air approved applications is amended in traffic procedures and air navigation, it 21 CFR Parts 510, 520, 522, 524, and the table in paragraph (c)(1) by is certified that this rule will not have 558 removing the entry for ‘‘Mallinckrodt a significant economic impact on a Veterinary Inc.’’; and in the table in substantial number of small entities Animal Drugs, Feeds, and Related paragraph (c)(2) by removing the entry under the criteria of the Regulatory Products; Change of Sponsor for ‘‘011716’’. Flexibility Act. AGENCY: Food and Drug Administration, PART 520ÐORAL DOSAGE FORM List of Subjects in 14 CFR Part 71 HHS. NEW ANIMAL DRUGS Airspace, Incorporation by reference, ACTION: Final rule. 3. The authority citation for 21 CFR Navigation (air). part 520 continues to read as follows: SUMMARY: The Food and Drug Adoption of the Amendment Authority: 21 U.S.C. 360b. Administration (FDA) is amending the In consideration of the foregoing, the animal drug regulations to reflect the § 520.82a [Amended] Federal Aviation Administration change of sponsor for 61 approved new amends 14 CFR part 71 as follows: animal drug applications (NADA’s) from 4. Section 520.82a Aminopropazine Mallinckrodt Veterinary, Inc., to fumarate tablets is amended in PART 71ÐDESIGNATION OF CLASS A, Schering-Plough Animal Health Corp. paragraph (b) by removing ‘‘011716’’ CLASS B, CLASS C, CLASS D AND EFFECTIVE DATE: November 19, 1997. and adding in its place ‘‘000061’’. CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING FOR FURTHER INFORMATION CONTACT: § 520.82b [Amended] Thomas J. McKay, Center for Veterinary POINTS 5. Section 520.82b Aminopropazine Medicine (HFV–102), Food and Drug fumarate, neomycin sulfate tablets is Administration, 7500 Standish Pl., 1. The authority citation for 14 CFR amended in paragraph (b) by removing Rockville, MD 20855, 301–827–0213. Part 71 continues to read as follows: ‘‘011716’’ and adding in its place ‘‘000061’’. Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959– SUPPLEMENTARY INFORMATION: § 520.222 [Amended] 1963 Comp., p. 389. Mallinckrodt Veterinary, Inc., Mundelein, IL 60060, has informed FDA 6. Section 520.222 Bunamidine § 71.1 [Amended] that it has transferred the ownership of, hydrochloride is amended in paragraph and all rights and interests in the (c) by removing ‘‘011716’’ and adding in 2. The incorporation by reference in its place ‘‘000061’’. 14 CFR 71.1 of Federal Aviation approved NADA’s to Schering-Plough Administration Order 7400.9E, Airspace Animal Health Corp. The agency is § 520.580 [Amended] Designations and Reporting Points, amending 21 CFR 510, 520, 522, 524, and 558 to reflect the change of sponsor. 7. Section 520.580 Dichlorophene and dated September 10, 1997, and effective toluene capsules is amended in September 16, 1997, is amended as List of Subjects paragraph (b)(2) by removing ‘‘011716’’ follows: 21 CFR Part 510 and adding in its place ‘‘000061’’. Paragraph 6005 Class E airspace areas § 520.622c [Amended] extending upward from 700 feet or more Administrative practice and above the surface of the earth. procedure, Animal drugs, Labeling, 8. Section 520.622c Reporting and recordkeeping * * * * * Diethylcarbamazine citrate chewable requirements. tablets is amended in paragraph (b)(5) ASO FL E5 Guntersville, AL [New] 21 CFR Parts 520, 522, and 524 by removing ‘‘011716’’ and adding in its Guntersville Municipal Airport, AL place ‘‘000061’’. (lat. 34°23′57′′ N, long. 86°16′12′′ W) Animal drugs. § 520.784 [Amended] That airspace extending upward from 700 21 CFR Part 558 feet above the surface within a 6.3-mile 9. Section 520.784 Doxylamine radius of Guntersville Municipal Airport, Animal drugs, Animal feeds. succinate tablets is amended in excluding that airspace within the Therefore, under the Federal Food, paragraph (b) by removing ‘‘011716’’ Albertville, AL, Class E airspace area. Drug, and Cosmetic Act and under and adding in its place ‘‘000061’’. * * * * * authority delegated to the Commissioner § 520.863 [Amended] Issued in College Park, Georgia, on of Food and Drugs and redelegated to 10. Section 520.863 Ethylisobutrazine November 3, 1997. the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, and 558 hydrochloride tablets is amended in Nancy B. Shelton, are amended as follows: paragraph (b) by removing ‘‘011716’’ Acting Manager, Air Traffic Division, and adding in its place ‘‘000061’’. Southern Region. PART 510ÐNEW ANIMAL DRUGS [FR Doc. 97–30357 Filed 11–18–97; 8:45 am] § 520.1120a [Amended] BILLING CODE 4910±13±M 1. The authority citation for 21 CFR 11. Section 520.1120a Haloxon part 510 continues to read as follows: drench is amended in paragraph (c) by Authority: 21 U.S.C. 321, 331, 351, 352, removing ‘‘011716’’ and adding in its 353, 360b, 371, 379e. place ‘‘000061’’. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61625

§ 520.1120b [Amended] § 520.2220b [Amended] paragraph (b) by removing ‘‘011716’’ 12. Section 520.1120b Haloxon 23. Section 520.2220b and adding in its place ‘‘000061’’. boluses is amended in paragraph (c) by Sulfadimethoxine tablets and boluses is § 522.1155 [Amended] removing ‘‘011716’’ and adding in its amended in paragraph (b)(3) by place ‘‘000061’’. removing ‘‘011716’’ and adding in its 34. Section 522.1155 Imidocarb place ‘‘000061’’. dipropionate sterile powder is amended § 520.1242a [Amended] in paragraph (b) by removing ‘‘011716’’ 13. Section 520.1242a Levamisole § 520.2220c [Amended] and adding in its place ‘‘000061’’. hydrochloride drench and drinking 24. Section 520.2220c water is amended in paragraph (c)(2) by Sulfadimethoxine oral suspension is § 522.1244 [Amended] removing ‘‘011716’’ and adding in its amended in paragraph (c) by removing 35. Section 522.1244 Levamisole place ‘‘000061’’. ‘‘000069 and 011716’’ and adding in its phosphate injection is amended in place ‘‘000061 and 000069’’. paragraph (b) by removing ‘‘011716’’ § 520.1242b [Amended] and adding in its place ‘‘000061’’. 14. Section 520.1242b Levamisole § 520.2362 [Amended] hydrochloride tablet or oblet (bolus) is 25. Section 520.2362 Thenium § 522.1503 [Amended] amended in paragraph (c) by removing closylate tablets is amended in 36. Section 522.1503 Neostigmine ‘‘011716’’ and adding in its place paragraph (c) by removing ‘‘011716’’ methylsulfate injection is amended in ‘‘000061’’. and adding in its place ‘‘000061’’. paragraph (b) by removing ‘‘011716’’ and adding in its place ‘‘000061’’. § 520.1242g [Amended] § 520.2610 [Amended] 15. Section 520.1242g Levamisole 26. Section 520.2610 Trimethoprim § 522.1704 [Amended] resinate and famphur paste is amended and sulfadiazine tablets is amended in 37. Section 522.1704 Sodium in paragraph (c) by removing ‘‘011716’’ paragraph (b) by removing ‘‘011716’’ pentobarbital injection is amended in and adding in its place ‘‘000061’’. and adding in its place ‘‘000061’’. paragraph (a)(2) by removing ‘‘011716’’ § 520.1320 [Amended] § 520.2611 [Amended] and adding in its place ‘‘000061’’. 16. Section 520.1320 Mebendazole 27. Section 520.2611 Trimethoprim § 522.1720 [Amended] oral is amended in paragraph (c) by and sulfadiazine oral paste is amended 38. Section 522.1720 Phenylbutazone removing ‘‘011716’’ and adding in its in paragraph (b) by removing ‘‘011716’’ injection is amended in paragraph (b)(1) place ‘‘000061’’. and adding in its place ‘‘000061’’. by removing ‘‘011716’’ and adding in its § 520.1326a [Amended] § 520.2612 [Amended] place ‘‘000061’’. 17. Section 520.1326a Mebendazole 28. Section 520.2612 Trimethoprim § 522.2005 [Amended] and trichlorfon powder is amended in and sulfadiazine oral suspension is 39. Section 522.2005 Propofol paragraph (b) by removing ‘‘011716’’ amended in paragraph (b) by removing injection is amended in paragraph (b) by and adding in its place ‘‘000061’’. ‘‘011716’’ and adding in its place removing ‘‘011716’’ and adding in its § 520.1326b [Amended] ‘‘000061’’. place ‘‘000061’’. 18. Section 520.1326b Mebendazole PART 522ÐIMPLANTATION OR § 522.2610 [Amended] and trichlorfon paste is amended in INJECTABLE DOSAGE FORM NEW paragraph (b) by removing ‘‘011716’’ ANIMAL DRUGS 40. Section 522.2610 Trimethoprim and adding in its place ‘‘000061’’. and sulfadiazine sterile suspension is 29. The authority citation for 21 CFR amended in paragraph (a)(2) by § 520.1720a [Amended] part 522 continues to read as follows: removing ‘‘000856 and 011716’’ and adding in its place ‘‘000061 and 19. Section 520.1720a Authority: 21 U.S.C. 360b. Phenylbutazone tablets and boluses is 000856’’. amended in paragraph (b)(1) by § 522.2680 [Amended] removing ‘‘011716’’ and adding in its § 522.82 [Amended] place ‘‘000061’’. 30. Section 522.82 Aminopropazine 41. Section 522.2680 Zeranol is fumarate sterile solution injection is amended in paragraph (b) by removing § 520.1720b [Amended] amended in paragraph (b) by removing ‘‘011716’’ and adding in its place 20. Section 520.1720b ‘‘011716’’ and adding in its place ‘‘000061’’. Phenylbutazone granules is amended in ‘‘000061’’. paragraph (b) by removing ‘‘011716’’ PART 524ÐOPHTHALMIC AND and adding in its place ‘‘000061’’. § 522.150 [Amended] TOPICAL DOSAGE FORM NEW 31. Section 522.150 Azaperone ANIMAL DRUGS § 520.1720c [Amended] injection is amended in paragraph (b) by 21. Section 520.1720c removing ‘‘011716’’ and adding in its 42. The authority citation for 21 CFR Phenylbutazone paste is amended in place ‘‘000061’’. part 524 continues to read as follows: paragraph (b) by removing ‘‘010797 and Authority: 21 U.S.C. 360b. 011716’’ and adding in its place § 522.784 [Amended] 32. Section 522.784 Doxylamine ‘‘000061 and 010797’’. § 524.154 [Amended] succinate injection is amended in § 520.1805 [Amended] paragraph (b) by removing ‘‘011716’’ 43. Section 524.154 Bacitracin or 22. Section 520.1805 Piperazine and adding in its place ‘‘000061’’. bacitracin zinc-neomycin sulfate- phosphate with thenium closylate polymyxin B sulfate ophthalmic tablets is amended in paragraph (b) by § 522.863 [Amended] ointment is amended in paragraph (a)(2) removing ‘‘011716’’ and adding in its 33. Section 522.863 Ethylisobutrazine by removing ‘‘011716’’ and adding in its place ‘‘000061’’. hydrochloride injection is amended in place ‘‘000061’’. 61626 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

§ 524.155 [Amended] § 558.515 [Amended] Also, the sponsor’s address has been 44. Section 524.155 Bacitracin zinc- 54. Section 558.515 Robenidine changed. At this time, the address in the polymyxin B sulfate-neomycin sulfate- hydrochloride is amended in paragraph list of sponsors of approved applications hydrocortisone or hydrocortisone (d)(1)(vi)(b) by removing ‘‘011716’’ and in 21 CFR 510.600(c)(1) and (c)(2) is acetate ophthalmic ointment is adding in its place ‘‘000061’’. amended to reflect the new address. In accordance with the freedom of amended in paragraph (a)(1) by Dated: November 3, 1997. removing ‘‘011716’’ and adding in its information provisions of 21 CFR part Robert C. Livingston, place ‘‘000061’’. 20 and 514.11(e)(2)(ii), a summary of Director, Office of New Animal Drug safety and effectiveness data and § 524.900 [Amended] Evaluation, Center for Veterinary Medicine. information submitted to support 45. Section 524.900 Famphur is [FR Doc. 97–30337 Filed 11–18–97; 8:45 am] approval of this supplemental amended in paragraph (c) by removing BILLING CODE 4160±01±F application may be seen in the Dockets ‘‘011716’’ and adding in its place Management Branch (HFA–305), Food ‘‘000061’’. and Drug Administration, 12420 DEPARTMENT OF HEALTH AND Parklawn Dr., rm. 1–23, Rockville, MD § 524.1240 [Amended] HUMAN SERVICES 20857, between 9 a.m. and 4 p.m., 46. Section 524.1240 Levamisole is Monday through Friday. amended in paragraph (b) by removing Food and Drug Administration Under section 512(c)(2)(F)(iii) of the ‘‘010042 and 011716’’ and adding in its 21 CFR Parts 510 and 520 Federal Food, Drug, and Cosmetic Act place ‘‘000061 and 010042’’. (21 U.S.C. 360b(c)(2)(F)(iii)), this § 524.1443 [Amended] Oral Dosage Form New Animal Drugs; supplemental approval qualifies for 3 Orbifloxacin Tablets years of marketing exclusivity beginning 47. Section 524.1443 Miconazole September 18, 1997, because the nitrate cream; miconazole nitrate lotion; AGENCY: Food and Drug Administration, supplemental application contains miconazole nitrate spray is amended in HHS. substantial evidence of the effectiveness paragraph (b) by removing ‘‘011716’’ ACTION: Final rule. of the drug involved or studies of target and adding in its place ‘‘000061’’. animal safety required for approval and § 524.1742 [Amended] SUMMARY: The Food and Drug conducted or sponsored by the 48. Section 524.1742 N- Administration (FDA) is amending the applicant. Three years marketing (Mercaptomethyl) phthalimide S-(O,O- animal drug regulations to reflect exclusivity is limited to use of dimethyl phosphorodithioate) approval of a supplemental new animal orbifloxacin tablets for cats. FDA has determined under 21 CFR emulsifiable liquid is amended in drug application (NADA) filed by 25.33(a)(1) that this action is of a type paragraph (b) by removing ‘‘011536 and Schering-Plough Animal Health. The that does not individually or 011716’’ and adding in its place supplemental NADA provides for cumulatively have a significant effect on ‘‘000061 and 011536’’. veterinary prescription use of orbifloxacin tablets for management of the human environment. Therefore, PART 558ÐNEW ANIMAL DRUGS FOR diseases in cats associated with bacteria neither an environmental assessment USE IN ANIMAL FEEDS susceptible to orbifloxacin. nor an environmental impact statement EFFECTIVE DATE: NOVEMBER 19, 1997. is required. 49. The authority citation for 21 CFR FOR FURTHER INFORMATION CONTACT: part 558 continues to read as follows: List of Subjects Joseph J. Bertone, Center for Veterinary Authority: 21 U.S.C. 360b, 371. Medicine (HFV–114), Food and Drug 21 CFR Part 510 Administration, 7500 Standish Pl., Administrative practice and § 558.175 [Amended] Rockville, MD 20855, 301–594–1692. procedure, Animal drugs, Labeling, 50. Section 558.175 Clopidol is SUPPLEMENTARY INFORMATION: Schering- Reporting and recordkeeping amended in paragraph (c)(1)(iii)(b) and Plough Animal Health Corp., 1095 requirements. (c)(1)(iv)(b) by removing ‘‘011716’’ and Morris Ave., Union, NJ 07083, is 21 CFR Part 520 adding in its place ‘‘000061’’. sponsor of NADA 141–081 OrbaxTM Animal drugs. § 558.195 [Amended] (orbifloxacin) tablets that provide for Therefore, under the Federal Food, veterinary prescription use in dogs for 51. Section 558.195 Decoquinate is Drug, and Cosmetic Act and under management of diseases associated with amended in the table in paragraph (d), authority delegated to the Commissioner bacteria susceptible to orbifloxacin. The under the ‘‘Limitations’’ column by of Food and Drugs and redelegated to sponsor filed a supplemental NADA removing ‘‘011716’’ wherever it appears the Center for Veterinary Medicine, 21 providing for veterinary prescription and adding in its place ‘‘000061’’. CFR parts 510 and 520 are amended as use of orbifloxacin tablets for follows: § 558.254 [Amended] management of diseases in cats associated with bacteria susceptible to 52. Section 558.254 Famphur is PART 510ÐNEW ANIMAL DRUGS amended in paragraph (a) by removing orbifloxacin. The supplemental NADA ‘‘011716’’ and adding in its place is approved as of September 18, 1997, 1. The authority citation for 21 CFR ‘‘000061’’. and the regulations are amended in 21 part 510 continues to read as follows: CFR 520.1616 to reflect the approval. § 558.311 [Amended] Authority: 21 U.S.C. 321, 331, 351, 352, The basis of approval is discussed in the 353, 360b, 371, 379e. 53. Section 558.311 Lasalocid is freedom of information summary. amended in the table in paragraph Furthermore, certain limitations, § 510.600 [Amended] (e)(1)(ii), under the ‘‘Limitations’’ although required in the labeling, are 2. Section 510.600 Names, addresses, column, 5th paragraph, by removing not required in the regulation. Those and drug labeler codes of sponsors of ‘‘011716’’ and adding in its place limitations are removed from the approved applications is amended in ‘‘000061’’. regulation at this time. paragraph (c)(1) in the entry for Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61627

‘‘Schering-Plough Animal Health’’ and combining approved amprolium plus § 558.58 [Amended] in paragraph (c)(2) in the entry for ethopabate and bacitracin zinc Type A 2. Section 558.58 Amprolium and ‘‘000061’’ by removing the current medicated articles to make Type C ethopabate is amended in paragraph address and adding in its place the medicated feeds for broilers containing (d)(1)(iii) in the table in the entry for address ‘‘1095 Morris Ave., Union, NJ amprolium 113.5 grams per ton (g/t) ‘‘Bacitracin 4 to 50’’ in the columns 07083’’. plus ethopabate 36.3 g/t and bacitracin ‘‘Limitations’’ and ‘‘Sponsor’’by zinc 4 to 50 g/t. The Type C medicated removing ‘‘000004’’ and adding in its PART 520ÐORAL DOSAGE FORM feed is used: (1) As an aid in the place ‘‘000004 and 046573’’. NEW ANIMAL DRUGS prevention of coccidiosis where severe Dated: October 30, 1997. 1. The authority citation for 21 CFR exposure to coccidiosis from Eimeria Stephen F. Sundlof, acervulina, E. maxima, and E. brunetti part 520 continues to read as follows: Director, Center for Veterinary Medicine. is likely to occur in broiler chickens and Authority: 21 U.S.C. 360b. replacement chickens where immunity [FR Doc. 97–30409 Filed 11–18–97; 8:45 am] BILLING CODE 4160±01±F § 520.1616 [Amended] to coccidiosis is not desired, and for 2. Section 520.1616 Orbifloxacin increased rate of weight gain in broiler tablets is amended in the heading of chickens raised in floor pens; (2) as an DEPARTMENT OF HEALTH AND paragraph (d)(1) and in paragraph aid in the prevention of coccidiosis HUMAN SERVICES (d)(1)(iii) by adding after the word where severe exposure to coccidiosis ‘‘dogs’’ the phrase ‘‘and cats’’, and in from Eimeria acervulina, E. maxima, Food and Drug Administration paragraph (d)(1)(iii) by removing the and E. brunetti is likely to occur; and (3) phrase ‘‘2.5 milligrams per kilogram of for improved feed efficiency in broiler 21 CFR Part 558 chickens. body weight’’ and the second, third, and New Animal Drugs for Use in Animal Alpharma Inc.’s ANADA 200–205 is fourth sentences. Feeds; Chlortetracycline approved as a generic copy of Dated: October 22, 1997. Hoffmann-LaRoche, Inc.’s NADA 114– AGENCY: Food and Drug Administration, Stephen F. Sundlof, 794. The ANADA is approved as of HHS. Director, Center for Veterinary Medicine. September 19, 1997, and the regulations ACTION: Final rule. [FR Doc. 97–30411 Filed 11–18–97; 8:45 am] are amended in the table in 21 CFR BILLING CODE 4160±01±F 558.58(d)(1)(iii) to reflect the approval. SUMMARY: The Food and Drug The basis for approval is discussed in Administration (FDA) is amending the the freedom of information summary. animal drug regulations to reflect DEPARTMENT OF HEALTH AND approval of a supplemental new animal HUMAN SERVICES In accordance with the freedom of information provisions of 21 CFR part drug application (NADA) filed by Hoffmann-La Roche, Inc. The Food and Drug Administration 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and supplemental NADA provides for 21 CFR Part 558 information submitted to support changing the withdrawal time to zero approval of this application may be seen following certain uses of New Animal Drugs for Use in Animal in the Dockets Management Branch chlortetracycline (CTC) in Type C cattle Feeds; Amprolium Plus Ethopabate (HFA–305), Food and Drug feeds (including free-choice feeds). With Bacitracin Zinc Administration, 12420 Parklawn Dr., EFFECTIVE DATE: November 19, 1997. rm. 1–23, Rockville, MD 20857, between FOR FURTHER INFORMATION CONTACT: Jack AGENCY: Food and Drug Administration, 9 a.m. and 4 p.m., Monday through Caldwell, Center for Veterinary HHS. Friday. Medicine (HFV–126), Food and Drug ACTION: Final rule. Administration, 7500 Standish Pl., The agency has determined under 21 Rockville, MD 20855, 301–594–1638. CFR 25.33 that this action is of a type SUMMARY: The Food and Drug SUPPLEMENTARY INFORMATION: Hoffmann- that does not individually or Administration (FDA) is amending the La Roche, Inc., 340 Kingsland St., cumulatively have a significant effect on animal drug regulations to reflect Nutley, NJ 07110–1199, filed the human environment. Therefore, approval of an abbreviated new animal supplemental NADA 48–761 that neither an environmental assessment drug application (ANADA) filed by provides for decreasing the withdrawal nor an environmental impact statement Alpharma Inc. The ANADA provides for times for all National Academy of is required. using approved amprolium plus Sciences/National Research Council ethopabate and bacitracin zinc Type A List of Subjects in 21 CFR Part 558 drug efficacy study implementation medicated articles to make Type C (NAS/NRC DESI) approved uses of CTC medicated feeds used for prevention of Animal drugs, Animal feeds. Type C medicated feeds (including free- coccidiosis in broiler and replacement Therefore, under the Federal Food, choice feeds) for beef and nonlactating chickens and improved feed efficiency Drug, and Cosmetic Act and under dairy cattle and for control of in broiler chickens. authority delegated to the Commissioner anaplasmosis and other claims to a zero EFFECTIVE DATE: November 19, 1997. of Food and Drugs and redelegated to withdrawal time. The supplemental FOR FURTHER INFORMATION CONTACT: the Center for Veterinary Medicine, 21 NADA is approved as of September 23, Jeffrey M. Gilbert, Center for Veterinary CFR part 558 is amended as follows: 1997, and the regulations are amended Medicine (HFV–128), Food and Drug in § 558.128(d)(1) and (d)(2) (21 CFR Administration, 7500 Standish Pl., PART 558ÐNEW ANIMAL DRUGS FOR 558.128(d)(1) and (d)(2)) to reflect the Rockville, MD 20855, 301–594–1602. USE IN ANIMAL FEEDS approval. The basis of approval is SUPPLEMENTARY INFORMATION: Alpharma discussed in the freedom of information Inc., One Executive Dr., P.O. Box 1399, 1. The authority citation for 21 CFR summary. Fort Lee, NJ 07024, is sponsor of part 558 continues to read as follows: Also, in the revision of § 558.128 ANADA 200–205 that provides for Authority: 21 U.S.C. 360b, 371. published in the Federal Register of 61628 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

July 9, 1996 (61 FR 35949), FDA the number ‘‘(2)’’ the phrase ‘‘For two medals, and pursuant to that provided for approval of five sponsor 000004:’’ and removing the authority is issuing this final rule. supplemental NADA’s to reflect phrase ‘‘discontinue use 4 days prior to The interim rule with request for compliance with the results of the NAS/ slaughter’’. comments was published on September NRC DESI review of the products and Dated: November 3, 1997. 19, 1996. No comments were received FDA’s conclusions based on that study. before November 18, 1996, the end of Robert C. Livingston, In that document, FDA failed to reflect the comment period. Accordingly, the that Hoffmann-La Roche is the sponsor Director, Office of New Animal Drug interim rule amending 28 CFR part 50 Evaluation, Center for Veterinary Medicine. of the product codified in which was published at 61 FR 49259 on § 558.128(d)(2) (see 53 FR 31316, [FR Doc. 97–30405 Filed 11–18–97; 8:45 am] September 19, 1996, is adopted as a August 18, 1988). The sponsor was the BILLING CODE 4160±01±F final rule without change. subject of a change of sponsor from Regulatory Flexibility Act American Cyanamid published in the Federal Register of April 24, 1996 (61 DEPARTMENT OF JUSTICE The Assistant Attorney General, FR 18081). At this time, the paragraph Office of Justice Programs, in Office of Justice Programs is amended to reflect the correct accordance with the Regulatory Flexibility Act (5 U.S.C. § 605(b)), has sponsor. 28 CFR Part 50 In accordance with the freedom of reviewed this final rule and, by information provisions of 21 CFR part [OJP±1078] approving it, certifies that the final rule will not have a significant economic 20 and 514.11(e)(2)(ii), a summary of RIN 1121±AA37 human food safety data and information impact on a substantial number of small submitted to support approval of this Young American Medals Program entities. The Assistant Attorney General, supplement may be seen in the Dockets Office of Justice Program determined Management Branch (HFA–305), Food AGENCY: Office of Justice Programs, that the: (1) Final rule provides the and Drug Administration, 12420 Justice. outline of a program governing the Parklawn Dr., rm. 1–23, Rockville, MD ACTION: Final rule. award of medals to individuals for 20857, between 9 a.m. and 4 p.m., bravery or service; and (2) the award of Monday through Friday. SUMMARY: The United States Department such medals imposes no requirements FDA has determined under 21 CFR of Justice, Office of Justice Programs on small businesses or on small entities. 25.33(a)(1) that this action is of a type (OJP), is publishing this final rule to Paperwork Reduction Act that does not individually or implement the regulations for the Young cumulatively have a significant effect on American Medals Program as authorized No information requirements are the human environment. Therefore, by the Youth Medals Act. The final rule contained in this final rule. provides an outline of the program and neither an environmental assessment Executive Order 12866 nor an environmental impact statement criteria for the awarding of the Young is required. American Medals for Bravery and This final rule has been reviewed in Service. accordance with Executive Order 12866, List of Subjects in 21 CFR Part 558 DATES: This regulation is effective as of § 1(b), Principles of Regulation. The Animal drugs, Animal feeds. November 19, 1997. Office of Justice Programs has Therefore, under the Federal Food, determined that this Final Rule is not a FOR FURTHER INFORMATION CONTACT: Drug, and Cosmetic Act and under ‘‘significant regulatory action’’ under Ellen Wesley at (202) 616–3558. authority delegated to the Commissioner Executive Order 12866 § 3(f), Regulatory of Food and Drugs and redelegated to SUPPLEMENTARY INFORMATION: Congress Planning and Review, and accordingly the Center for Veterinary Medicine, 21 authorized the Department of Justice to this Final Rule has not been reviewed CFR part 558 is amended as follows: promulgate rules and regulations by OMB. establishing medals under the Youth PART 558ÐNEW ANIMAL DRUGS FOR Medals Act, codified at 42 U.S.C, Executive Order 12612 USE IN ANIMAL FEEDS § 1921, et seq. The Act establishes two This regulation will not have medals to be awarded under different substantial direct effects on the States, 1. The authority citation for 21 CFR criteria to persons eighteen years of age on the relationship between the national part 558 continues to read as follows: or younger at the time of the occurrence. government and the States, or on Authority: 21 U.S.C. 360b, 371. The first, the Young American Medal for distribution of power and Bravery, 42 U.S.C. § 1921, is awarded to responsibilities among the various § 558.128 [Amended] a person who has exhibited exceptional levels of government. Therefore, in 2. Section 558.128 Chlortetracycline is courage, extraordinary decisiveness, accordance with Executive Order 12612, amended in the table in paragraph (d)(1) presence of mind, and unusual it is determined that this rule does not in entry (xi) in the column swiftness of action, regardless of his or have sufficient federalism implications ‘‘Limitations’’ by adding after the her own personal safety. The second to warrant the preparation of a existing text the sentence ‘‘For sponsor medal, the Young American Medal for Federalism Assessment. 000004 zero withdrawal time.’’, in entry Service, 42 U.S.C. § 1922, is awarded to (xii) for indication 1., in the column a person who has displayed outstanding Unfunded Mandates Reform Act of ‘‘Limitations’’ by adding after the phrase character and service. 1995 ‘‘for sponsor 048573;’’ the phrase ‘‘zero The final rule sets forth eligibility This rule will not result in the withdrawal for sponsor 000004;’’, in criteria and application and expenditure by State, local and tribal entry (xvii) for indication 1., in the presentation procedures for the medals. governments, in the aggregate, or by the column ‘‘Limitations’’ by adding after The Young American Medals private section, of $100,000,000 or more the existing text the sentence ‘‘For Committee, part of the Office of the in any one year, and it will not sponsor 000004 zero withdrawal time.’’, Attorney General, is authorized to issue significantly or uniquely affect small and in paragraph (d)(2) by adding after regulations for the establishment of the governments. Therefore, no actions were Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61629 deemed necessary under the provisions DATES: These regulations become and procedures of DOT is unnecessary. of the Unfunded Mandates Reform Act effective on December 14, 1997, from 5 Entry into the regulated area is of 1995. p.m. to 10 p.m. EST. prohibited for only five hours on the day of the event. Small Business Regulatory Enforcement FOR FURTHER INFORMATION CONTACT: Fairness Act of 1996 LTJG J. Delgado, Coast Guard Group Small Entities Miami, FL at (305) 535–4409. This rule is not a major rule as SUPPLEMENTARY INFORMATION: Under the Regulatory Flexibility Act defined by § 804 of the Small Business (5 U.S.C. 601 et seq.), the Coast Guard Regulatory Enforcement Fairness Act of Background and Purpose must consider whether this rule will 1996. This rule will not result in an The City of Pompano Annual have a significant economic impact on annual effect on the economy of Christmas Boat Parade is a nighttime a substantial number of small entities. $100,000,000 or more; a major increase parade of approximately 150 pleasure ‘‘Small entities’’ include small in cost or prices; or significant adverse and fishing boats ranging in length from businesses, not-for-profit organizations effects on competition, employment, 23 feet to 125 feet decorated with that are independently owned and investment, productivity, innovation, or holiday lights. There will be operated and are not dominant in their on the ability of United States-based approximately 75 spectator craft. The fields, and governmental jurisdictions companies to compete with foreign- parade will form in the staging area at with populations of less than 50,000. based companies in domestic and Lake Santa Barbara then proceed north export markets. Therefore, the Coast Guard certifies up the Intracoastal Waterway (ICW) to under 5 U.S.C 605(b) that this rule List of Subjects in 28 CFR Part 50 the Hillsboro Boulevard Bridge where would not have a significant economic Medals. the parade will disband. impact on a substantial number of small The regulated area will include the entities as the regulations would only be PART 50ÐSTATEMENTS OF POLICY Intracoastal Waterway from Pompano in effect for approximately five hours in Beach daybeacon 74 LLNR 47230 to a limited area of the intracoastal Accordingly, the Interim Rule State Road 810 Bridge (ICW mile marker waterway. amending 28 CFR part 50 which was 1050). While the parade is transiting, published at 61 FR 49259 on September these regulations will prohibit Collection of Information 19, 1996, is adopted as a final rule nonparticipating vessels from These proposed regulations contain without change. approaching within 500 feet ahead of no collection of information the lead vessel in the parade to 500 feet Dated: November 14, 1997. requirements under the Paperwork astern of the last participating vessel in Laurie Robinson, Reduction Act (44 U.S.C. 3501 et seq.). Assistant Attorney General, Office of Justice the parade to within 50 feet on either Programs. side of the parade unless authorized by Federalism [FR Doc. 97–30402 Filed 11–18–97; 8:45 am] the patrol commander. After the passage of the parade participants, all vessels This action has been analyzed in BILLING CODE 4410±18±P will be allowed to resume normal accordance with the principles and operations. criteria contained in Executive Order In accordance with 5 U.S.C. 553, a 12612, and it has been determined that DEPARTMENT OF TRANSPORTATION notice of proposed rulemaking was not the rulemaking does not have sufficient published for this regulation and good Federalism implications to warrant the Coast Guard cause exists for making it effective in preparation of a Federalism Assessment. less than 30 days after Federal Register Environmental Assessment 33 CFR Part 100 publication. Publishing an NPRM and delaying its effective date would be The Coast Guard has considered the [CGD07±97±054] contrary to national safety interests environmental impact of this proposal since immediate action is needed to RIN 2115±AE46 consistent with Section 2.B.2 of minimize potential danger to the public, Commandant Instruction M16475.1B. In Special Local Regulations: City of as the Coast Guard was only given accordance with that section, this Pompano Annual Christmas Boat notice of the date of the parade less than proposed action has been Parade, Pompano Beach, Florida five weeks before the event. environmentally assessed (EA Regulatory Evaluation completed), and the Coast Guard has AGENCY: Coast Guard, DOT. concluded that it will not significantly ACTION: Temporary final rule. This proposal is not a significant affect the quality of the human regulatory action under Section 3(f) of environment. An Environmental SUMMARY: The Coast Guard is the Executive Order 12866 and does not Assessment and a Finding of No establishing temporary special local require an assessment of the potential Significant Impact have been prepared regulations for the City of Pompano costs and benefits under Section 6(a)(3) and are available in the docket for Annual Christmas Boat Parade. This of that Order. It has been exempted from inspection or copying. event will be held Sunday, December review by the Office of Management and 14, 1997, between 5 p.m. and 10 p.m. Budget under that Order. It is not List of Subjects in 33 CFR Part 100 Eastern Standard Time (EST). There will significant under the regulatory policies Marine safety, Navigation (water), be approximately 150 participants and and procedures of the Department of Reporting and recordkeeping 75 spectator craft. The resulting Transportation (DOT) (44 FR 11040; requirements, Waterways. congestion of navigable channels creates February 26, 1979). The Coast Guard an extra or unusual hazard in the expects the economic impact of this Temporary Regulations: In navigable waters. These regulations are proposed rule to be so minimal that a consideration of the foregoing, the Coast necessary to provide for the safety of life full Regulatory Evaluation under Guard amends part 100 of Title 33, Code of navigable waters during the event. paragraph 10e of the regulatory policies of Federal Regulations, as follows: 61630 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

PART 100Ð[AMENDED] DEPARTMENT OF TRANSPORTATION to comment may do so by submitting written comments to the office listed 1. The authority citation for Part 100 Coast Guard under ADDRESSES in this preamble. continues to read as follows: Those providing comments should 33 CFR Part 165 Authority: 33 U.S.C. 1233 through 1236; 49 identify the docket number (COTP Los CFR 1.46 and 33 CFR 100.35. [COTP Los Angeles-Long Beach, CA; 97± Angeles-Long Beach, CA; 97–007) for 007] the regulation and also include their 2. A new temporary section 100.35T– name, address, and reason(s) for each RIN 2115±AA97 07–054 is added to read as follows: comment presented. persons wanting acknowledgment of receipt of comments § 100.35T±07±054 City of Pompano Annual Safety Zone: Los Angeles Harbor-San Christmas Boat Parade, Pompano Beach Pedro Bay, CA should enclose a stamped, self- Florida addressed postcard or envelope. Based AGENCY: Coast Guard, DOT. upon the comments received, the scope (a) Regulated Area. The regulated area ACTION: Interim rule with request for of the regulation may be changed. is established surrounding the parade comments. The Coast Guard plans no public participants as they transit the parade meetings. Persons may request a public route. Nonparticipant vessels will be SUMMARY: The Coast Guard is revising meeting by writing to Marine Safety prohibited from entering an area the two safety zones associated with the Office Los Angeles-Long Beach at the encompassing 50 feet on either side of dredging and landfill activities for stage address listed under ADDRESSES in this the north-south axis of the parade. The II of the Pier 400 project. The Coast preamble. axis extends from 500 feet ahead of the Guard is also adding a new moving lead vessel in the parade to 500 feet safety zone surrounding the Dredge Background and Purpose astern of the last participating vessel in FLORIDA when it is in the waters of Los Construction associated with the Pier the parade as the parade transit north in Angeles Harbor and San Pedro Bay, CA, 400 project referenced in 33 CFR part the Intracoastal Waterway (ICW) from and engaged in dredging operations 165.1110 has progressed to stage II. Lake Santa Barbara, the staging area of associated with the Pier 400 project. Consequently, the dredging and landfill the parade, to the Hillsboro Boulevard DATES: This regulation will be in effect activities necessary to complete the Bridge, where the parade will disband. from 6 a.m. PDT on July 22, 1997 until project have been expanded, and the The regulated area will include the 11:59 p.m. PST on December 31, 1999. existing safety zones no longer provide Intracoastal Waterway from Pompano Comments must be received on or an appropriate level of safety. This rule Beach daybeacon 74 LLNR 47230 to before January 20, 1998. expands those safety zones, and adds a State Road 810 bridge (ICW mile marker ADDRESSES: Comments should be new, moving safety zone surrounding 1050). mailed to Commanding Officer, Coast the Dredge FLORIDA whenever it is (b) Special Local Regulations. Guard Marine Safety Office, 165 N. Pico engaged in dredging activities Avenue, Long Beach, CA 90802. associated with the Pier 400 project. (1) While the parade is transiting, The Dredge FLORIDA was not nonparticipating vessels are prohibited Comments received will be available for inspection and copying within the Port utilized during stage I of the Pier 400 from approaching within 500 feet ahead project. Consequently, the moving safety of the lead vessel in the parade to 500 Safety Division at Marine Safety Office Los Angeles-Long Beach. Normal office zone surrounding the Dredge FLORIDA feet astern of the last participating was not necessary during stage I of the vessel in the parade to within 50 feet on hours are 8 a.m. to 4 p.m., PDT, Monday through Friday, except federal holidays. Pier 400 project, but it is now essential either side of the parade unless given the expanded scope of stage II of FOR FURTHER INFORMATION CONTACT: authorized by the Patrol Commander. the Pier 400 project. Lieutenant Keith Whiteman, Chief, Port Anchoring in the viewing area is This regulation is needed to restrict Safety and Security Division, Marine prohibited unless authorized by the vessel traffic in the regulated areas to Safety Office Los Angeles-Long Beach. Patrol Commander. Entry or anchoring prevent collisions, groundings, or other in the staging area is prohibited, unless SUPPLEMENTARY INFORMATION: navigational mishaps. Entry into, transit authorized by the Patrol Commander. Regulatory Information through, or anchoring within any of the After the passage of the parade safety zones is prohibited unless participants, all vessels may resume In accordance with 5 U.S.C. 553, a authorized by the Captain of the Port normal operations. notice of proposed rulemaking was not Los Angeles-Long Beach, CA. (2) A succession of not fewer than five published for this regulation and it is short whistle or horn blasts from a being made effective in less than 30 Discussion of Regulation patrol vessel will be the signal for any days after Federal Register publication. This rulemaking accomplishes three nonparticipating vessel to stop Following normal rulemaking things with respect to the Pier 400 immediately. The display of an orange procedures could not be done in a project. It expands the two existing distress smoke signal from a patrol timely fashion in that the sequence of safety zones referenced in 33 CFR part vessel will be the signal for any and all construction activities, location of work, 165.1110, and it adds a third, moving vessels to stop immediately. selection of a contractor, and the safety zone surrounding the Dredge (c) Dates. These regulations become issuance of a notice to proceed for Stage FLORIDA. This rulemaking is necessary effective on December 14, 1997, from 5 II of the Pier 400 project were not because the construction activities p.m. to 10 p.m. EST. finalized until a date fewer than 30 days associated with the Pier 400 project prior to the anticipated start of work. have progressed from stage I to stage II. Dated: November 6, 1997. Although this regulation is published Consequently, the geographic scope of Norman T. Saunders, as an interim rule without prior notice, the construction area is now larger, and Rear Admiral, U.S. Coast Guard, Commander, an opportunity for public comment is the services of the Dredge FLORIDA Seventh Coast Guard District. nevertheless desirable to ensure the must now be employed. [FR Doc. 97–30291 Filed 11–18–97; 8:45 am] regulation is both reasonable and These safety zones are necessary to BILLING CODE 4910±14±M workable. Accordingly, persons wishing safeguard recreational and commercial Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61631 vessels from the dangers of the dredging requirements, Security measures, (b) Effective Date. This section is and landfill activities in the project area Waterways. effective from 6 A.M. PDT on July 22, and to prevent interference with vessels 1997 until 11:59 P.M. PST on December Regulation engaged in these operations. All persons 31, 1999, unless canceled earlier by the and vessels are prohibited from entering In consideration of the foregoing, Captain of the Port. into, transiting through, or anchoring Subpart F of Part 165 of Title 33, Code (c) Regulations. In accordance with within the safety zone unless authorized of Federal Regulations, is amended as the general regulations in § 165.23 of the by the Captain of the Port Los Angeles- follows: part, entry into, transit through, or Long Beach, CA. 1. The authority citation for Part 165 anchoring within any of these safety continues to read as follows: zones is prohibited unless authorized by Regulatory Assessment Authority: 33 U.S.C. 1231; 50 U.S.C. 191; the Captain of the Port Los Angeles- This interim rule is not a significant 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Long Beach, CA. 49 CFR 1.46. regulatory action under section 3(f) of Dated: July 21, 1997. Executive Order 12866 and does not 2. Section 165.1110 is revised to read G.F. Wright, require an assessment of potential costs as follows: Captain, U.S. Coast Guard, Captain of the and benefits under section 6(a)(3) of that Port, Los Angeles-Long Beach, California. order. It has been exempted from review § 165.1110 Safety Zone: Los Angeles HarborÐSan Pedro Bay, CA. [FR Doc. 97–30292 Filed 11–18–97; 8:45 am] by the Office of Management and BILLING CODE 4910±14±M Budget under that order. It is not (a) Location. All waters within the significant under the regulatory policies following boundaries are established as and procedures of the Department of safety zones: DEPARTMENT OF THE INTERIOR Transportation (DOT) (44 FR 11040; (1) Pier 400: Those waters of Los Angeles Harbor and San Pedro Bay in February 26, 1979). The Coast Guard National Park Service expects the economic impact of this the vicinity of Pier 400 as defined by the lines connecting the following regulation to be so minimal that a full 36 CFR Part 4 Regulatory Evaluation under paragraph coordinates: 10(e) of the regulatory policies and Latitude Longitude RIN 1024±AC63 33°–44′–29.06′′ N 118°–14′–17.25′′ W; procedures of the Department of Safety Belt Use Within the NPS System Transportation is unnecessary. Only thence to 33°–43′–48.06′′ N 118°–13′–59.25′′ W; minor delays to mariners are foreseen as AGENCY: National Park Service, Interior. thence to vessel traffic can be directed around the 33°–43′–48.50′′ N 118°–14′–11.72′′ W; ACTION: Final rule. area of the safety zones. thence to ° ′ ′′ ° ′ ′′ SUMMARY: The National Park Service Collection of Information 33 –42 –46.17 N 118 –15 –04.78 W; thence to (NPS) is amending its regulations This regulation contains no collection 33°–43′–00.00′′ N 118°–15′–29.90′′ W; concerning seatbelt use within units of thence to the NPS. Currently, the NPS has of information requirements under the ° ′ ′′ ° ′ ′′ Paperwork Reduction Act (44 U.S.C. 33 –43 –21.94 N 118 –15 –41.51 W; regulations requiring seatbelt use by the thence to 3501 et seq.). operator and each front seat passenger. 33°–43′–45.04′′ N 118°–15′–30.81′′ W; On April 16, 1997, President Clinton Federalism thence to signed Executive Order 13043 directing 33°–43′–58.55′′ N 118°–14′–44.38′′ W; The Coast Guard has analyzed this thence to NPS and other Federal agencies to regulation under the principles and 33°–44′–03.70′′ N 118°–14′–26.65′′ W. promulgate regulations that require all criteria contained in Executive Order occupants of motor vehicles to use and thence to the point of origin. All safety belts or child restraint devices at 12612 and has determined that this rule coordinates referred use Datum: NAD 83. does not have sufficient federalism all times within units of the NPS when implications to warrant the preparation (2) Shallow Water Habitat: Those the vehicle is in motion. of a Federalism Assessment. waters of Los Angeles Harbor and San EFFECTIVE DATE: This rule becomes Pedro Bay as defined by the lines effective on December 19, 1997. Environmental Assessment connecting the following coordinates. FOR FURTHER INFORMATION CONTACT: Latitude Longitude Dennis Burnett, Ranger Activities The Coast Guard considered the ° ′ ′′ ° ′ ′′ environmental impact of this regulation 33 –42 –32.10 N 118 –15 –00.00 W; Division, National Park Service, at (202) thence to 208–4874. and concluded that under paragraph 33°–42′–49.84′′ N 118°–15′–41.51′′ W; 2.B.2 of Commandant Instruction thence to SUPPLEMENTARY INFORMATION: M16475.1B, this rule is categorically 33°–42′–47.06′′ N 118°–15′–58.26′′ W; excluded from further environmental thence to Background documentation. This regulation is 33°–42′–24.99′′ N 118°–15′–23.59′′ W. NPS administers 375 areas throughout expected to have no significant effect on and thence to the point of origin. All the country under the statutory mandate the environment. A Categorical coordinate referred use Datum: NAD 83. to conserve the scenery, the natural and Exclusion Determination and cultural objects and the wildlife therein; Environmental Analysis Checklist is (3) Moving Safety Zone: Dredge and to provide for their enjoyment in available for inspection and copying in FLORIDA. All waters within 50 yards such manner as will leave them the docket to be maintained at the on all sides of the Dredge FLORIDA unimpaired for the enjoyment of future address under ADDRESSES in this when it is in the waters of Los Angeles generations. Although the nearly 300 preamble. Harbor and San Pedro Bay, CA, and million annual visitors to the National engaged in dredging operations Park System use a variety of access List of Subjects in 33 CFR Part 165 associated with the Pier 400 project. methods, the vast majority rely on motor Harbors, Marine safety, Navigation vehicles and roadways to reach park (water), Reporting and recordkeeping areas and to circulate within them. 61632 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

Consequently, NPS is involved in road or child restraint system properly Second, the commenter was construction and maintenance, traffic fastened at all times when the vehicle is concerned that the seatbelt rule would safety and traffic law enforcement. in motion. Primary enforcement means create confusion and a new layer of NPS currently administers over 8,000 that a motor vehicle may be stopped and regulation in those States where there is miles of roads within the National Park seatbelt regulations enforced when the already a seatbelt rule in effect. The System that are open to the public. operator or any occupant is not wearing commenter requested that the NPS post These 8,000 miles compare in their seatbelt. The rule would not this new regulation at the entrance to all magnitude to the State of Arizona’s state require another traffic violation to occur park areas. NPS agrees with the road system, except that they are before the vehicle may be stopped. The comment that prior notice is best course scattered throughout the United States seatbelt regulation in this rulemaking is of action to ensure compliance with this and its territories. There is great variety intended to apply in all NPS areas. regulation. NPS will therefore encourage in the nature and extent of park roads, The President, the Department of the all park areas to post, or otherwise make ranging from very short lengths of Interior and NPS strongly support the this information readily available to this unpaved secondary roadways, to well- use of appropriate restraint systems by visiting public. The commenter’s developed road systems complete with all motor vehicle occupants and view concerns about the additional layer of spur roads, parking areas and overlooks, the potential reduction in personal regulations is understandable, but E.O. to parkways running for hundreds of injuries and fatalities that may result 13043 is clear that the rule apply to all miles through several States, to from the promulgation of this regulation occupants of motor vehicles in motion parkways used primarily as commuter as highly desirable. The benefits of in all NPS units. routes in the Washington, DC area. In wearing seatbelts have been Drafting information: The primary addition, many park areas contain State documented extensively. author of this rule is Dennis Burnett, and/or county highways and roads over Summary of Comments Ranger Activities Division, National which the NPS may exercise varying Park Service, Washington, D.C. 20240. degrees of jurisdiction. During the public review period for On December 13, 1989, the NPS the proposed regulation (62 FR 40317, Paperwork Reduction Act July 28, 1997), two written comments promulgated a final rule (36 CFR 4.15) This rulemaking does not contain were received. Both commenters concerning the use of safety belts (54 FR collections of information requiring supported the regulation from a safety 51199). That rule requires the operator approval by the Office of Management perspective, but had other concerns of a motor vehicle and each front seat and Budget under the Paperwork about the proposed rule. passenger to wear a safety belt at all Reduction Act of 1995. times when the vehicle is in motion, One commenter, who operates a tour unless (1) the vehicle was not originally bus equipped with seatbelts, was Compliance With Other Laws concerned about the difficulty in getting equipped by the manufacturer with a This rule was not subject to Office of safety belt or (2) the operator or front passengers to buckle-up and whether the driver would be responsible, and Management and Budget review under seat passenger has a medical condition Executive Order 12866. The Department that prevents the use of a safety belt. therefore liable, if passengers do not buckle-up. of the Interior determined that this The regulation is applicable in park document will not have a significant areas located within States that do not NPS believes that the responsibility of economic effect on a substantial number have a mandatory seatbelt law in effect the bus driver is to announce to all of small entities under the Regulatory and can be enforced only when another passengers that the use of seatbelts is Flexibility Act (5 U.S.C. 601 et. seq.). traffic violation had occurred. The required whenever the bus is in motion. The economic effects of this rulemaking regulation is implemented primarily After that, it is the responsibility of each are negligible. through signing, text in brochures and passenger, and not the driver, to ensure incidental public contact. that they keep their seatbelts fastened. NPS has determined and certifies Executive Order 13043, signed by NPS does not intend this rule to be pursuant to the Unfunded Mandates President Clinton on April 16, 1997 (62 overly cumbersome, but rather to Reform Act, 2 U.S.C. 1502 et seq., that FR 19217, April 18, 1997), directed NPS encourage the use of seatbelts. this rule will not impose a cost of $100 to propose rules and take other The other commenter had several million or more in any given year on appropriate measures to further the use points to address. First, the commenter local, State or tribal governments or of safety belts in the national parks. This was concerned about the penalty for not private entities. initiative includes, but is not limited to, using a seatbelt. Under Title 36 of the The Department has determined that conducting education, awareness and Code of Federal Regulations (36 CFR), this rule meets the applicable standards other appropriate programs about the § 1.3, penalties for ‘‘all’’ violations of 36 provided in Section 3(a) and 3(b)(2) of importance of wearing safety belts and CFR shall be punished as provided by Executive Order 12988. the consequences of not wearing them. law, which means a fine up to $5,000, This rule is not a major rule under the In addition, NPS was directed to or by imprisonment not exceeding 6 Congressional review provisions of the consider implementing regulations to months, or both. This maximum penalty Small Business Regulatory Enforcement enhance safety belt use requirements is in accordance with the Criminal Fine Fairness Act (5 U.S.C. 8–4(2)). and begin primary enforcement of such Improvements Act of 1987 (18 U.S.C. The NPS has determined that this requirements in park areas. The order 3571). However, every unit of the NPS rulemaking will not have a significant also required NPS to consider is located within a U.S. Judicial District effect on the quality of the human publicizing and actively enforcing such that has established fines for seatbelt environment, health and safety because regulations. Under the final rule as and child restraint regulations for that it is not expected to: adopted after consideration of public specific District. These fines range from (a) Increase public use to the extent of comment, each operator and passenger $10 to $100 Servicewide, depending on compromising the nature and character occupying any seating position of a the Judicial District in which the park of the area or causing physical damage motor vehicle in a park area, whose seat is located. The most common fine is to it; is equipped with a seatbelt or child $50. These fines will not change with (b) Introduce incompatible uses restraint system, shall have the seatbelt the new regulation. which compromise the nature and Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61633 characteristics of the area or cause ACTION: Final disapproval. but neither was enacted. The I/M physical damage to it; program start date, as stated in the SIP, (c) Conflict with adjacent ownership SUMMARY: This EPA rulemaking is January 1, 1999. Program or land uses; or addresses comments received in reauthorization was needed to develop (d) Cause a nuisance to adjacent response to the proposed disapproval of the program in time to meet the January owners or occupants. the SIP revision submitted by Louisiana 1999 start date. Continuous program Based on this determination, this for establishing and operating a motor authorization is needed to satisfy I/M rulemaking is categorically excluded vehicle Inspection and Maintenance (I/ Rule 40 CFR 51.372 that requires states from the procedural requirements of the M) Program, and finalizes disapproval to provide legal authority for the I/M National Environmental Policy Act of the plan. An enhanced I/M program program until such time as it is no (NEPA) by Departmental guidelines in is required in the Baton Rouge serious longer necessary. Legal authority in the 516 DM 6 (49 FR 21438). As such, ozone nonattainment area under the revised Louisiana SIP is limited to neither an Environmental Assessment Clean Air Act (the Act) as amended in reauthorization by the State Legislature nor an Environmental Impact Statement 1990. The State lacks the legal authority in odd-numbered years starting in 1997. has been prepared. to establish and operate an I/M program The EPA considered this a major in the ozone nonattainment area. This List of Subjects in 36 CFR Part 4 deficiency in the SIP. action is being taken under section 110 Other specific requirements of the National parks, Traffic regulations. of the Act. Louisiana I/M SIP and the rationale for In consideration of the foregoing, 36 DATES: This final rule is effective EPA’s proposed action are explained in CFR chapter I is amended as follows: December 19, 1997. the NPRs and will not be restated here. PART 4ÐVEHICLES AND TRAFFIC ADDRESSES: Copies of the documents II. Public Comments/Response to SAFETY relevant to this action are available for Comments public inspection during normal 1. The authority citation for Part 4 business hours at the following This section discusses the content of continues to read as follows: locations. Persons interested in the comments submitted to the docket during the Federal comment period for Authority: 16 U.S.C. 1, 3, 9a, 462(k). examining these documents should make an appointment with the the notice of proposed rulemaking 2. Section 4.15 is revised to read as appropriate office at least 24 hours published in the July 31, 1997, Federal follows: before the visiting day. Environmental Register (FR), and provides EPA’s § 4.15 Safety belts. Protection Agency, Region 6, Air response to those comments. The comment period closed September 2, (a) Each operator and passenger Planning Section (6PD–L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202– 1997. One comment was received by the occupying any seating position of a Region. The comment was from the motor vehicle in a park area will have 2733. Louisiana Department of Environmental Quality, Air Quality Louisiana Department of Environmental the safety belt or child restraint system Quality (LDEQ). properly fastened at all times when the Compliance Division, 7290 Bluebonnet, vehicle is in motion. The safety belt and 2nd Floor, Baton Rouge, Louisiana. Comment—Transportation Conformity child restraint system will conform to Louisiana Department of Environmental Rule Quality Capital Regional Office, 11720 applicable United States Department of The LDEQ commented that the Airline Highway, Baton Rouge, Transportation standards. inclusion of transportation conformity Louisiana. (b) This section does not apply to an sanctions in the proposed rulemaking is occupant in a seat that was not FOR FURTHER INFORMATION CONTACT: Ms. an error. The stated sanctions were in originally equipped by the manufacturer Sandra G. Rennie, Air Planning Section the form of a Transportation with a safety belt nor does it apply to (6PD–L), EPA Region 6, 1445 Ross Improvement Plan lapse or freeze a person who can demonstrate that a Avenue, Dallas, Texas 75202–2733, following final disapproval. The medical condition prevents restraint by telephone (214) 665–7367. transportation conformity rule (58 FR a safety belt or other occupant SUPPLEMENTARY INFORMATION: 62216, November 24, 1993), clearly restraining device. defines control strategy implementation I. Background Dated: November 6, 1997. plan. The Louisiana I/M SIP is not a Donald J. Barry, On July 31, 1997 (62 FR 41002), EPA control strategy implementation plan. Acting Assistant Secretary for Fish and published a Notice of Proposed Therefore, the State’s I/M SIP should Wildlife and Parks. Rulemaking (NPR) for the State of not include transportation conformity [FR Doc. 97–30135 Filed 11–18–97; 8:45 am] Louisiana. The NPR withdrew the sanctions. BILLING CODE 4310±70±P previous conditional approval proposed June 9, 1997 (62 FR 31388), and Response to Comment proposed disapproval of the State’s I/M The EPA agrees with LDEQ’s ENVIRONMENTAL PROTECTION program SIP submitted to satisfy comment adding the following AGENCY requirements of section 182(c)(3) of the explanation: When the previous NPR Act concerning serious ozone was being developed, and at the time of 40 CFR Part 52 nonattainment areas. its publication, the transportation The proposed conditional approval conformity rule was undergoing [LA±33±1±7357; FRL±5924±6] was withdrawn and disapproval revision. The Region chose to include Approval and Promulgation of State proposed because the State Legislature transportation conformity sanctions at Implementation Plans (SIP) for did not reauthorize and provide that time as a precautionary measure, Louisiana: Motor Vehicle Inspection continuous authorization for an I/M pending the publication of the revised and Maintenance Program program during the 1997 Regular transportation conformity rule. Legislative Session. Bills to reauthorize Subsequently, the revised transportation AGENCY: Environmental Protection the I/M program for two more years, and conformity rule was published (August Agency (EPA). to fund the program, were introduced, 15, 1997, 62 FR 43779). Since the I/M 61634 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations program is not part of Louisiana’s 15% IV. Administrative Requirements burdensome alternative that achieves Rate-of-Progress Plan or its Post-1996 the objectives of the rule and is A. Executive Order 12866 Rate of Progress/ Attainment consistent with statutory requirements. Demonstration Plan, it is not considered The Office of Management and Budget Section 203 requires EPA to establish a a control strategy under the definition in has exempted this regulatory action plan for informing and advising any the transportation conformity rule. The from Executive Order 12866 review. small governments that may be EPA agrees that the transportation B. Regulatory Flexibility Act significantly or uniquely impacted by conformity sanctions stated in the the rule. proposed disapproval notice do not Under the Regulatory Flexibility Act, The EPA has determined that the final apply to Louisiana in this case. 5 U.S.C. 600 et seq., EPA must prepare disapproval action does not include a a regulatory flexibility analysis Federal mandate that may result in III. Final Rulemaking assessing the impact of any proposed or estimated costs of $100 million or more The EPA is finalizing disapproval of final rule on small entities. See 5 U.S.C. to either State, local, or tribal the Louisiana I/M SIP under sections 603 and 604. Alternatively, EPA may governments in the aggregate, or to the 110(k)(3) and 182 of the Act. During the certify that the rule will not have a private sector. This Federal action does last regular session ending June 23, significant impact on a substantial not impose new requirements. 1997, the State Legislature did not number of small entities. Small entities Accordingly, no additional costs to provide either program reauthorization include small businesses, small not-for- State, local, or tribal governments, or or continuous program authority for the profit enterprises, and government private sector, result from this action. entities with jurisdiction over I/M program as required in the Federal E. Petitions for Judicial Review I/M Rule. The Legislature is not populations of less than 50,000. scheduled to meet in regular session The EPA’s final disapproval of the Under Section 307(b)(1) of the Act, until the Spring of 1999, which is after State request under sections 110 and petitions for judicial review of this the January 1, 1999, start date 301, and subchapter I, part D of the Act action must be filed in the United States designated in the SIP. does not affect any existing Court of Appeals for the appropriate requirements applicable to small Under section 179(a)(2), if the EPA circuit by January 20, 1998. Filing a entities. Any preexisting Federal Administrator takes final disapproval petition for reconsideration by the requirements remain in place after this action on a submission under section Administrator of this final rule does not final disapproval. Federal disapproval 110(k) for an area designated affect the finality of this rule for the of the State submittal does not affect its nonattainment based on the purposes of judicial review nor does it State-enforceability. Moreover, the submission’s failure to meet one or more extend the time within which a petition EPA’s disapproval of the submittal does of the elements required by the Act, and for judicial review may be filed, and not impose any new Federal the deficiency is not corrected within 18 shall not postpone the effectiveness of requirements. Therefore, the EPA months of the effective date of the final such rule or action. This action may not certifies that this final disapproval disapproval action, the Administrator be challenged later in proceedings to action does not have a significant must apply one of the sanctions set forth enforce its requirements. See section impact on a substantial number of small in section 179(b) of the Act. Section 307(b)(2). entities because it does not remove 179(b) provides two sanctions: existing requirements, nor does it List of Subjects in 40 CFR Part 52 Imposition of 2:1 emission offset impose any new Federal requirements. requirements and revocation of highway Environmental protection, Air funding. If the Administrator imposes C. Small Business Regulatory pollution control, Carbon monoxide, the first requirement of 2:1 offsets and Enforcement Fairness Act Hydrocarbons, Nitrogen dioxide, Ozone. the deficiency is not corrected within Under section 801(a)(1)(A) of the Dated: November 6, 1997. six months, then the second sanction Administrative Procedures Act (APA) as Lynda F. Carroll, pertaining to highway funding shall amended by the Small Business Acting Regional Administrator. apply. The sanctions shall apply until Regulatory Enforcement Fairness Act of Chapter I, title 40, of the Code of the Administrator determines that the 1996, EPA submitted a report containing Federal Regulations is amended as State has corrected the legislative this rule and other required information follows: deficiency, and EPA has issued final to the U.S. House of Representatives and approval. This sanctions process is set the Comptroller General of the General PART 52Ð[AMENDED] forth in 40 CFR 52.31. Today’s action Accounting Office prior to publication constitutes final agency action and will 1. The authority citation for part 52 of the rule in today’s Federal Register. continues to read as follows: be effective 30 days after publication. This rule is not a ‘‘major rule’’ as The 18-month sanction clock time frame defined by section 804(2) of the APA as Authority: 42 U.S.C. 7401–7671q. for the State to correct the deficiency amended. begins upon the effective date of this Subpart TÐLouisiana D. Unfunded Mandates Act final disapproval action. This 2. Section 52.994 is added to read as disapproval initiates the sanctions Under section 202 of the Unfunded follows: process of 179(a) of the Act. Mandate Reform Act of 1995, signed Nothing in today’s action should be into law on March 22, 1995, EPA must § 52.994 Disapprovals. construed as permitting or allowing or prepare a budgetary impact statement to The State of Louisiana motor vehicle establishing a precedent for any future accompany any proposed or final rule Inspection and Maintenance (I/M) request for revision to any SIP. Each that includes a Federal mandate that program SIP submittal of August 18, request for revision to the SIP shall be may result in estimated costs to State, 1995, with later editions, is disapproved considered separately in light of specific local, or tribal governments in aggregate; based on the failure of the State technical, economic, and environmental or to the private sector of $100 million Legislature to grant legal authority to factors and in relation to relevant or more. Under section 205, EPA must reauthorize and continuously operate statutory and regulatory requirements. select the most cost-effective and least the program until the program is no Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61635 longer necessary. The Baton Rouge file avoiding the use of special other exposures for which there is serious ozone nonattainment area is characters and any form of encryption. reliable information.’’ This includes required to have an enhanced I/M Copies of electronic objections and exposure through drinking water an in program under section 182 of the Clean hearing requests will also be accepted residential settings, but does not include Air Act (the Act) as amended in 1990. on disks in WordPerfect 5.1 file format occupational exposure. Section This disapproval initiates the sanction or ASCII file format. All copies of 408(c)(2)(B) requires EPA to give special process of section 179(a) of the Act. electronic objections and hearing consideration to exposure of infants and children to the pesticide chemical [FR Doc. 97–30376 Filed 11–18–97; 8:45 am] requests must be identified by the docket control number [OPP–300557]. residue in establishing a tolerance and BILLING CODE 6560±50±P No Confidential Business Information to ‘‘ensure that there is a reasonable (CBI) should be submitted through e- certainty that no harm will result to ENVIRONMENTAL PROTECTION mail. Copies of electronic objections and infants and children from aggregate AGENCY hearing requests on this rule may be exposure to the pesticide chemical filed online at many Federal Depository residue... .’’ EPA performs a number of 40 CFR Part 180 Libraries. analyses to determine the risks from aggregate exposure to pesticide residues. [OPP±300557; FRL±5746±1] FOR FURTHER INFORMATION CONTACT: By mail: Sheryl K. Reilly, Biopesticides and First, EPA determines the toxicity of pesticides. Second, EPA examines Methyl Salicylate; Establishment of an Pollution Prevention Division (7501W), exposure to the pesticide through food, Exemption from Requirement of a Office of Pesticide Programs, U.S. drinking water, and through other Tolerance Environmental Protection Agency, 401 M St., SW., Washington, DC 20460, exposures that occur as a result of AGENCY: Environmental Protection Office location and telephone number: pesticide use in residential settings. Agency (EPA). Room CS15-W31, 2800 Jefferson Davis II. Toxicological Profile ACTION: Final rule. Hwy., Arlington, VA, (703/308-8265); e- Consistent with section 408(b)(2)(D) mail: [email protected]. of FFDCA, EPA has reviewed the SUMMARY: This rule establishes an SUPPLEMENTARY INFORMATION: Tenneco available scientific data and other exemption from the requirement of a Packaging, 1603 Orrington Ave., relevant information in support of this tolerance for residues of the insecticide Evanston, IL, 60201, requested in action and considered its validity, methyl salicylate in or on food, when pesticide petition PP 7F4818 the completeness and reliability and the used as an insect repellent in food establishment of an exemption from the relationship of this information to packaging and animal feed packaging at requirement of a tolerance for residues human risk. EPA has also considered an application rate that does not exceed of the insecticide methyl salicylate on available information concerning the 0.2 mg of methyl salicylate per square food, when used as a insect repellent in variability of the sensitivities of major inch of packaging materials. food packaging and animal feed identifiable subgroups of consumers, EFFECTIVE DATE: NOVEMBER 19, 1997. packaging materials alone or in including infants and children. ADDRESSES: Written objections and conjunction with inert components Additionally, section 408(b)(2)(D)(v) hearing requests, identified by the which conform to the requirements of requires that, when considering whether docket control number [OPP–300557/PP regulations issued by the Food and Drug to establish, modify, or revoke a 7F4818], may be submitted to: Hearing Administration under section 409 of the tolerance, the Agency consider Clerk (1900), Environmental Protection Federal Food, Drug, and Cosmetic Act ‘‘available information’’ concerning the Agency, Rm. M3708, 401 M St., SW., (FFDCA). A notice of filing (FRL–5721– cumulative effects of a particular Washington, DC 20460. Fees 6) was published in the Federal Register pesticide’s residues and ‘‘other accompanying objections and hearing (62 FR 32331) on June 13, 1997, and the substances that have a common requests shall be labeled ‘‘Tolerance notice announced that the comment mechanism of toxicity.’’ Methyl Petition Fees’’ and forwarded to: EPA period would end on July 13, 1997; no salicylate (CAS Registry Number 119– Headquarters Accounting Operations comments were received. 36–8) is the primary chemical Branch, OPP (Tolerance Fees), P.O. Box The data submitted in the petition component of a naturally occurring 360277M, Pittsburgh, PA 15251. A copy and all other relevant material have fragrant oil, oil of wintergreen. If present of any objections and hearing requests been evaluated. Following is a summary at all, residues of methyl salicylate that filed with the Hearing Clerk should be of EPA’s findings regarding this petition may be found in foods in contact with identified by the docket control number as required by section 408(d) of the treated packaging materials is expected [OPP–300557] and submitted to: Public FFDCA, as recently amended by the to be minimal and considerably below Information and Records Integrity Food Quality Protection Act. the levels expected in existing GRAS Branch, Information Resources and uses of the active ingredient as a direct I. Risk Assessment and Statutory Services Division (7506C), Office of food flavoring ingredient. Findings Pesticide Programs, Environmental The toxicity of methyl salicylate has protection Agency, 401 M St., SW., New section 408(c)(2)(A)(i) of the been extensively studied in animal Washington, DC 20460. In person, bring FFDCA allows EPA to establish an bioassays of acute, subchronic, and copy of objections and hearing requests exemption from the requirement of a chronic duration. Studies include to: Rm. 1132, CM #2, 1921 Jefferson tolerance (the legal limit for a pesticide assessments of the mutagenicity, Davis Hwy., Arlington, VA. chemical residue in or on a food) only developmental toxicity, and A copy of objections and hearing if EPA determines that the tolerance is reproductive effects of methyl salicylate. requests filed with the Hearing Clerk ‘‘safe’’. Section 408(c)(2)(A)(ii) defines The petitioner submitted data from the may be submitted electronically by ‘‘safe’’ to mean that ‘‘there is a scientific literature to support all sending electronic mail (e-mail) to: opp- reasonable certainty that no harm will toxicology studies typically required for [email protected]. Copies of result from aggregate exposure to the registration of biochemical pesticides. electronic objections and hearing pesticide chemical residue, including 1. Acute toxicity . The acute oral LD50 requests must be submitted as an ASCII all anticipated dietary exposures and all for methyl salicylate in the rat ranges 61636 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations from 887-1,250 mg/kg. Acute dermal intended to evaluate multi-generational TABLE 1- FEMA GRAS LEVELS IN toxicity (LD50) has been reported to be reproductive and developmental effects. FOOD (PPM) > 5 g/kg in the rabbit. In mice, the NOAEL for reproductive 2. Skin and eye irritation. Methyl parameters and the other toxic Food Methyl Sa- Oil of Win- salicylate has been reported to be a endpoints examined has been reported licylate tergreen severe eye irritant. Methyl salicylate has as 250 mg/kg/day. When rats were been reported to produce mild dermal Beverages ...... 59 56 exposed to methyl salicylate in the diet Ice cream ...... 27 44 irritation in rabbits at a concentration of for two years, no adverse effects were 1%. Moderate to severe irritation is Candy ...... 840 260 noted at levels of 0.1% (approx. 50 mg/ Baked goods ..... 54 1,500 produced in rabbits and guinea pigs at kg/day); pituitary lesions were increased Chewing gum .... 8,400 3,900 concentrations above 1%. Applied full Syrups ...... 200 --- strength to intact or abraded rabbit skin in animals exposed to 0.5% (approx. for 24 hours under occlusion, methyl 250 mg/kg/day). In dogs orally exposed to methyl salicylate for two years, no GRAS food levels in Table 1 are above salicylate was moderately irritating. both the maximum food residue However, tested at 8% in petrolatum, it adverse effects were observed at 50 mg/ kg/day; the LOAEL (liver effects) was concentration (approx. 16 ppm) and the produced no irritation after a 48 hour maximum dietary exposure reported as 150 mg/kg/day. closed-patch test on human subjects. concentration (approx. 4.7 ppm) 3. Mutagenicity. No evidence for 7. Carcinogenicity. No studies have estimated by the Petitioner for the genotoxicity was observed in two been performed with the primary proposed use pattern for methyl studies with prokaryotic test systems; purpose of determining the oncogenicity salicylate. These estimates used highly no data on genotoxicity in mammalian of methyl salicylate; however, chronic conservative assumptions for migration test systems are available. exposure studies with two-year of methyl salicylate from packaging and 4. Subchronic toxicity. Studies of subchronic duration with exposure durations that included food consumption. Petitioner has shown administration by the oral route have extensive pathology did not indicate that even under worst-case exposure been conducted in both rats and dogs. any increases in incidences of benign or conditions (i.e., assuming 30% of all In rats, no adverse effects were seen at malignant tumors. food consumed is in contact with a dose of 50 mg/kg/day in the diet. In 8. Toxicology data waivers. Waivers packaging containing methyl salicylate, and 100% of the methyl salicylate dogs, doses ≤250 mg/kg/day did not for acute inhalation toxicity, dermal migrates to food) exposure to methyl result in any adverse effects, however, sensitization, and immune response the liver appeared to be the target organ salicylate from use in packaging studies were accepted by the Agency, materials would be less than that of toxicity at doses above this level. No based on the long history of use of toxicity was observed when rats were received by chewing one stick of methyl salicylate by humans without chewing gum at the GRAS-approved exposed to methyl salicylate via any indication of deleterious effects. inhalation of saturated air (approx. 700 level. Residue data requirements were Besides its use as a flavoring agent in thus waived by the Agency. mg/m3) after twenty 7-hour exposures. foods (see GRAS Assessment, below), 5. Developmental toxicity. Methyl III. Aggregate Exposures salicylate has been tested for methyl salicylate has been used in developmental effects in hamsters, rats mouthwash, suntan lotions, and in U.S. In examining aggregate exposure, and mice by the oral and dermal routes. Pharmocopeia (U.S.P.) preparations as a FFDCA section 408 directs EPA to In hamsters, oral or dermal doses of counterirritant and analgesic for painful consider available information methyl salicylate at doses of 1,750 mg/ muscles or joints, in liniments, concerning exposures from the pesticide kg/day induced maternal toxicity and ointments, and other preparations. In residue in food and all other non- increased the incidence of neural tube addition, the manufacturing use product occupational exposures, including defects. In rats given methyl salicylate at is a liquid, which is not expected to drinking water from groundwater or up to 6,000 mg/kg/day in petroleum result in the release of appreciable surface water and exposure through based grease by the dermal route, no quantities of inhalable methyl salicylate pesticide use in gardens, lawns, or developmental effects were observed. during the manufacturing process, and buildings (residential and other indoor However, undiluted methyl salicylate worker exposure via the dermal route uses). applied to the skin of pregnant rats will be minimized through the use of There is no established Maximum caused total litter resorptions at 1,000 rubber gloves and splash proof goggles Contaminant Level (MCL) for residues mg/kg/day (a dose that was reduced and/or face shields. In the end-use of methyl salicylate in drinking water from 2,000 mg/kg/day because of formulation, methyl salicylate will be under the Safe Drinking Water Act. excessive maternal toxicity). The results incorporated into a solid matrix in the There are five currently registered pesticide products that contain methyl of a continuous breeding study in mice packaging materials, and the release of salicylate as an active ingredient. These were consistent with findings in the vapors at a very low rate over extended developmental studies because of the products include impregnated materials periods of time will not result in and pellets to be used as vertebrate decreased numbers of litters per pair, significant worker or consumer dermal reduced average number of pups per repellents, and disinfectants/germicides and inhalation exposure. litter, decreased proportion of pups born registered for use in household, alive in each litter, and reduced mean 9. GRAS assessment. The Flavoring institutional, hospital, and eating pup weights in mice given 500 mg/kg/ Extract Manufacturer’s Association establishment premises. In addition, day. The no-observed-adverse-effect (FEMA) has determined GRAS levels of methyl salicylate has many non- level (NOAEL) for these effects was 250 methyl salicylate and oil of wintergreen pesticidal uses, such as liniments, mg/kg/day. in foods and beverages as indicated in lotions, and other products listed above. 6. Chronic toxicity. Toxicity resulting the table below. With regard to dietary exposure, as from chronic exposure has been noted above in Table 1, methyl evaluated in studies of two-years’ salicylate is used as a flavoring in many duration as well as studies initially food products. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61637

Aggregate exposure to methyl little to existing exposures. Therefore, exposures to pesticidal uses of methyl salicylate from all these sources is EPA concludes that there is a reasonable salicylate over a lifetime, and that no difficult to determine, largely because of certainty of no harm from aggregate significant human health risks will its use in a wide variety of food dietary exposure under this exemption. result from such exposures. products. While it is difficult to develop B. Infants and Children a precise estimate of total human B. Non-dietary, Non-occupational exposure to methyl salicylate, EPA Exposure FFDCA section 408 provides that EPA believes that its history of safe use as a There are five currently registered shall apply an additional tenfold margin flavoring additive and its low toxicity at pesticide products that contain methyl of safety for infants and children in the relatively high doses indicate that salicylate as an active ingredient. These case of threshold effects to account for current exposures are likely to be products include impregnated materials pre- and postnatal toxicity and the significantly below levels that may and pellets to be used as vertebrate completeness of the data base unless result in adverse health effects. The repellents, and disinfectants/germicides EPA concludes that a different margin of likely dietary exposures from the registered for use in household, safety will be safe for infants and pesticidal use in food packaging would institutional, hospital, and eating children. Margins of safety are be indirect (i.e., resulting from food establishment premises. In addition, incorporated into EPA risk assessments contact with a treated surface) and methyl salicylate is already widely used either directly through the use of a therefore unlikely to add significantly to in liniments, lotions, and other products margin of exposure analysis or through existing exposures. However, because listed above. The Agency considers the using uncertainty (safety) factors in studies evaluated by the Agency toxicology data base available to support calculating a dose level that poses no indicate that methyl salicylate is toxic to non-pesticidal uses and exposures appreciable risk to humans. humans at certain high levels, EPA adequate to support a conclusion of Due to the low expected toxicity of believes it is appropriate to place some insignificant increase in non-dietary, this compound, EPA has not used a limitation on the amount of methyl non-occupational exposure and toxicity safety factor analysis in assessing the salicylate that may be applied to from the pesticidal use in food and feed risk of these compounds. For the same packaging material for the purposes of packaging materials. reasons the additional safety factor is repelling insects to ensure that large unnecessary. quantities of the substance are not used IV. Cumulative Exposure in food packaging. The limitation of 0.2 The Agency has considered the VI. Determination of Safety for U.S. mg per square inch of packaging potential for cumulative toxicity effects Population, Infants and Children materials established by this regulation of pesticidal uses of methyl salicylate Based on its long history of use by is based on the lowest GRAS level (27 and other substances that may have a humans without any indication of ppm for ice cream) and a worst-case common mechanism of toxicity. The deleterious effects, there is reasonable scenario, which assumes 100% transfer Agency concluded that consideration of certainty that no harm will result from of the active ingredient from the a common mechanism of toxicity is not aggregate exposure to the United States packaging material to food contained appropriate because there is no population, including infants and within, without consideration of the information in the publicly available children, to residues of methyl physical and chemical barriers between literature that indicates there are other salicylate. This includes all anticipated the chemical and the food. Using the substances that share a common dietary exposures and all other lowest GRAS level is a conservative step mechanism of toxicity with methyl exposures for which there is reliable that ties the potential exposure to what salicylate. Thus, only the potential risks information. As a result, EPA is already likely to be in the food of methyl salicylate were considered in establishes an exemption from the supply. The limit, therefore, ensures this exemption from the requirement of requirement of a tolerance pursuant to that any increased human exposure a tolerance. FFDCA section 408(j)(3) for methyl resulting from the pesticidal use of salicylate, on the condition that Methyl V. Safety Factors methyl salicylate in packaging material salicylate be used in accordance with would add very little to the existing A. U.S. Population the following provisions: exposures -- exposures which EPA Methyl salicylate is the major Tenneco Packaging must immediately believes to be safe. Therefore, EPA notify the EPA of any findings that have concludes that there is a reasonable component of a naturally occurring fragrant oil. FEMA has listed methyl a bearing on safety. The company must certainty of no harm from aggregate also keep records of production, dietary exposure under this exemption. salicylate on its GRAS list for use as a flavoring ingredient in foods and distribution, and performance and on A. Dietary Exposure beverages. An FDA Advisory Review request make the records available to any authorized officer or employee of Dietary exposure of methyl salicylate Panel has concluded that methyl the EPA or the Food and Drug via food or water is difficult to estimate salicylate is safe for use up to a Administration. due to the use of methyl salicylate as a concentration of 0.4% in the form of a This exemption from the requirement flavoring in many food products. rinse or mouthwash. The compound is of a tolerance may be revoked if any However, based upon its long history of extensively used in foods, beverages, safe use as an additive in food and pharmaceuticals, lotions and perfumes experience with or scientific data on beverages and its low toxicity at and has wide distribution in commerce this pesticide indicate that the tolerance relatively high doses, the Agency with no reports of adverse outcomes is not safe. believes that current dietary exposure is associated with intended uses. The VII. Other Considerations likely to be significantly below levels toxicity of methyl salicylate has been that may cause adverse health effects. adequately and reliably characterized; it A. Endocrine Disrupters The likely dietary exposures from the is summarized in this submission. Methyl salicylate has been studied in registered products would be indirect Based on this information, EPA several tests of reproductive and (i.e., resulting from food contact with a concludes that there is reasonable developmental effects, including treated surface) and therefore add very certainty of no harm from aggregate multigenerational studies. In addition, 61638 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations the pathology of endocrine-sensitive objections (40 CFR 178.25) Each XI. Regulatory Assessment tissues and organs has been evaluated objection must be accompanied by the Requirements following repeated (i.e., subchronic) and fee prescribed by 40 CFR 180.33(i). If a The Office of Management and Budget long-term (i.e., chronic) exposures. No hearing is requested, the objections has exempted this notice from the such effects were reported in any of must include a statement of the factual requirement of section 3 of Executive these studies. The Agency has no issue(s) on which a hearing is requested, Order 12866. information to suggest that methyl the requestor’s contentions on such This action does not impose any salicylate will have an effect on the issues, and a summary of any evidence enforceable duty or contain any immune and endocrine systems. The relied upon by the objector (40 CFR ‘‘unfunded mandates’’ as described in Agency is not requiring information on 178.27). A request for a hearing will be Title II of the Unfunded Mandates the endocrine effects of this biochemical granted if the Administrator determines Reform Act of 1995 (Pub. L. 104–4), or pesticide at this time; Congress has that the material submitted shows the require prior consultation as specified allowed 3 years after August 3, 1996, for following: There is genuine and by Executive Order 12875 (58 FR 58093, the Agency to implement a screening substantial issue of fact; there is October 28, 1993), entitled Enhancing program with respect to endocrine reasonable possibility that available the Intergovernmental Partnership, or effects. evidence identified by the requestor special consideration as required by would, if established, resolve one or B. Analytical Method Executive Order 12898 (59 FR 7629, more of such issues in favor of the February 16, 1994). The Agency proposes to establish an requestor, taking into account Because tolerances established on the exemption from the requirement of a uncontested claims or facts to the basis of a petition under section 408(d) tolerance with a numerical limitation. contrary; and resolution of the factual Therefore, for enforcement purposes, issue(s) in the manner sought by the of FFDCA do not require issuance of a quantitative analysis of the active requestor would be adequate to justify proposed rule, the regulatory flexibility ingredient methyl salicylate may be the action requested (40 CFR 178.32). analysis requirements of the Regulatory performed by a gas chromatographic Information submitted in connection Flexibility Act (RFA), 5 U.S.C. 604(a), method using flame ionization detection with an objection or hearing request do not apply. Prior to the recent as described by the Association of may be claimed confidential by marking amendment of the FFDCA, EPA had Official Analytical Chemists (Method any part or all of that information as treated such rulemakings as subject to 969.13, AOAC Official Methods of CBI. Information so marked will not be the RFA; however, the amendments to Analysis, 1990, pages 754–755). disclosed except in accordance with the FFDCA clarify that no proposal is procedures set forth in 40 CFR part 2. required for such rulemakings and VIII. Codex Maximum Residue Level A copy of the information that does not hence that the RFA is inapplicable. No known maximum residue limits contain CBI must be submitted for Nonetheless, the Agency has previously (MRLs) have been established for inclusion in the public record. assessed whether establishing tolerances methyl salicylate by the Codex Information not marked confidential or exemptions from tolerance, raising Alimentarius Commission. may be disclosed publicly by EPA tolerance levels, or expanding without prior notice. exemptions adversely impact small IX. Objections and Hearing Requests entities and concluded, as a generic The new FFDCA section 408(g) X. Public Docket matter, that there is no adverse impact. provides essentially the same process A record has been established for this (46 FR 24950) (May 4, 1981). for persons to ‘‘object’’ to a tolerance rulemaking under the docket number exemption regulation issued by EPA XII. Submission to Congress and the [OPP–300557]. A public version of this General Accounting Office under new section 408(e) as was record, which does not include any provided in the old section 408. information claimed as CBI, is available Under 5 U.S.C. 801(a)(1)(A), EPA However, the period for filing objections for inspection from 8:30 a.m. to 4 p.m., submitted a report containing this rule is 60 days, rather than 30 days. EPA Monday through Friday, excluding legal and other required information to the currently has procedural regulations holidays. The public record is located in U.S. Senate, the U.S. House of which govern the submission of Room 1132 of the Public Response and Representatives and the Comptroller objections and hearing requests. These Program Resources Branch, Field General of the General Accounting regulations will require some Operations Division (7506C), Office of Office prior to publication in today’s modification to reflect the new law. Pesticide Programs, Environmental Federal Register. This rule is not a However, until those modifications can Protection Agency, CM #2, 1921 major rule as defined by 5 U.S.C. 804(a). be made, EPA will continue to use those Jefferson Davis Hwy., Arlington, VA List of Subjects in 40 CFR Part 180 procedural regulations with appropriate 22202. adjustments to reflect the new law. The official record for this Environmental protection, Any person adversely affected by this rulemaking, as well as the public Administrative practice and procedure, regulation may, January 20, 1998, file version, as described above will be kept Agricultural commodities, pesticides written objections to the regulation and in paper form. Accordingly, EPA will and pests, Reporting and record keeping may also request a hearing on those transfer any copies of objections and requirements. objections. Objections and hearing hearing requests received electronically Dated: November 5, 1997. requests must be filed with the Hearing into printed, paper form as they are Stephen L. Johnson, Clerk, at the address given above (40 received and will place the paper copies Acting Director, Office of Pesticide Programs. CFR 178.20). A copy of the objections in the official rulemaking record which and/or hearing requests filed with the will also include all comments Therefore, 40 CFR part 180 is Hearing Clerk should be submitted to submitted directly in writing. The amended as follows: the OPP docket for this rulemaking. The official rulemaking record is the paper PART 180Ð[AMENDED] objections submitted must specify the record maintained at the address in provisions of the regulation deemed ‘‘ADDRESSES’’ at the beginning of this 1. The authority citation for part 180 objectionable and the grounds for the document. continues to read as follows: Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61639

Authority: 21 U.S.C. 346a and 371. of any objections and hearing requests immediately. Among other things, filed with the Hearing Clerk identified FQPA amends FFDCA to bring all EPA 2. Section 180.1189 is added to read by the docket control number, [OPP– pesticide tolerance-setting activities as follows: 300571], must also be submitted to: under a new section 408 with a new § 180.1189 Methyl salicylate; exemption Public Information and Records safety standard and new procedures. from the requirement of a tolerance. Integrity Branch, Information Resources These activities are described below and The biochemical pesticide methyl and Services Division (7502C), Office of discussed in greater detail in the final salicylate is exempt from the Pesticide Programs, Environmental rule establishing the time-limited requirement of a tolerance for residues Protection Agency, 401 M St., SW., tolerance associated with the emergency in or on food or feed when used as an Washington, DC 20460. In person, bring exemption for use of propiconazole on insect repellent in food packaging and a copy of objections and hearing sorghum (61 FR 58135, November 13, animal feed packaging at an application requests to Rm. 1132, CM #2, 1921 1996) (FRL–5572–9). rate that does not exceed 0.2 mg of Jefferson Davis Hwy., Arlington, VA. New section 408(b)(2)(A)(i) of the methyl salicylate per square inch of A copy of objections and hearing FFDCA allows EPA to establish a packaging materials. requests filed with the Hearing Clerk tolerance (the legal limit for a pesticide may also be submitted electronically by chemical residue in or on a food) only [FR Doc. 97–30251 Filed 11–18–97; 8:45am] sending electronic mail (e-mail) to: opp- BILLING CODE 6560±50±F if EPA determines that the tolerance is [email protected]. Copies of ‘‘safe.’’ Section 408(b)(2)(A)(ii) defines objections and hearing requests must be ‘‘safe’’ to mean that ‘‘there is a submitted as an ASCII file avoiding the ENVIRONMENTAL PROTECTION reasonable certainty that no harm will use of special characters and any form AGENCY result from aggregate exposure to the of encryption. Copies of objections and pesticide chemical residue, including 40 CFR Part 180 hearing requests will also be accepted all anticipated dietary exposures and all on disks in WordPerfect 5.1 file format other exposures for which there is [OPP±300571; FRL±5752±8] or ASCII file format. All copies of reliable information.’’ This includes RIN 2070±AB78 objections and hearing requests in exposure through drinking water and in electronic form must be identified by residential settings, but does not include Fomesafen; Pesticide Tolerances for the docket control number [OPP– occupational exposure. Section Emergency Exemptions 300571]. No Confidential Business 408(b)(2)(C) requires EPA to give special Information (CBI) should be submitted consideration to exposure of infants and AGENCY: Environmental Protection through e-mail. Electronic copies of children to the pesticide chemical Agency (EPA). objections and hearing requests on this residue in establishing a tolerance and ACTION: Final rule. rule may be filed online at many Federal to ‘‘ensure that there is a reasonable Depository Libraries. certainty that no harm will result to SUMMARY: This regulation establishes a FOR FURTHER INFORMATION CONTACT: By infants and children from aggregate time-limited tolerance for residues of mail: Andrea Beard, Registration exposure to the pesticide chemical fomesafen in or on dry beans. This Division (7505C), Office of Pesticide residue. . . .’’ action is in response to EPA’s granting Programs, Environmental Protection Section 18 of FIFRA authorizes EPA of emergency exemptions under section Agency, 401 M St., SW., Washington, to exempt any Federal or State agency 18 of the Federal Insecticide, Fungicide, DC 20460. Office location, telephone from any provision of FIFRA, if EPA and Rodenticide Act authorizing use of number, and e-mail address: Crystal determines that ‘‘emergency conditions the pesticide on dry beans. This Mall #2, 1921 Jefferson Davis Hwy., exist which require such exemption.’’ regulation establishes a maximum Arlington, VA, (703) 308–9356, e-mail: This provision was not amended by permissible level for residues of [email protected]. fomesafen in this food commodity FQPA. EPA has established regulations SUPPLEMENTARY INFORMATION: EPA, on pursuant to section 408(l)(6) of the governing such emergency exemptions its own initiative, pursuant to section Federal Food, Drug, and Cosmetic Act, in 40 CFR part 166. 408(e) and (l)(6) of the Federal Food, as amended by the Food Quality Drug, and Cosmetic Act (FFDCA), 21 Section 408(l)(6) of the FFDCA Protection Act of 1996. The tolerance U.S.C. 346a(e) and (l)(6), is establishing requires EPA to establish a time-limited will expire and is revoked on October a tolerance for residues of the herbicide tolerance or exemption from the 31, 1998. fomesafen, in or on dry beans at 0.05 requirement for a tolerance for pesticide DATES: This regulation is effective part per million (ppm). This tolerance chemical residues in food that will November 19, 1997. Objections and will expire and is revoked on October result from the use of a pesticide under requests for hearings must be received 31, 1998. EPA will publish a document an emergency exemption granted by by EPA on or before January 20, 1998. in the Federal Register to remove the EPA under section 18 of FIFRA. Such ADDRESSES: Written objections and revoked tolerance from the Code of tolerances can be established without hearing requests, identified by the Federal Regulations. providing notice or period for public docket control number, [OPP–300571], comment. must be submitted to: Hearing Clerk I. Background and Statutory Authority Because decisions on section 18- (1900), Environmental Protection The Food Quality Protection Act of related tolerances must proceed before Agency, Rm. M3708, 401 M St., SW., 1996 (FQPA) (Pub. L. 104–170) was EPA reaches closure on several policy Washington, DC 20460. Fees signed into law August 3, 1996. FQPA issues relating to interpretation and accompanying objections and hearing amends both the Federal Food, Drug, implementation of the FQPA, EPA does requests shall be labeled ‘‘Tolerance and Cosmetic Act (FFDCA), 21 U.S.C. not intend for its actions on such Petition Fees’’ and forwarded to: EPA 301 et seq., and the Federal Insecticide, tolerance to set binding precedents for Headquarters Accounting Operations Fungicide, and Rodenticide Act the application of section 408 and the Branch, OPP (Tolerance Fees), P.O. Box (FIFRA), 7 U.S.C. 136 et seq. The FQPA new safety standard to other tolerances 360277M, Pittsburgh, PA 15251. A copy amendments went into effect and exemptions. 61640 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

II. Emergency Exemption for Fomesafen other than Maine, Michigan, and New exposure. For shorter term risks, EPA on Dry Beans and FFDCA Tolerances York to use this pesticide on this crop calculates a margin of exposure (MOE) Requests were received from a under section 18 of FIFRA without by dividing the estimated human number of states for use of fomesafen on following all provisions of section 18 as exposure into the NOEL from the dry beans for control of broadleaf identified in 40 CFR part 166. For appropriate animal study. Commonly, weeds. The Applicants state that since additional information regarding the EPA finds MOEs lower than 100 to be the loss of the herbicides dinoseb and emergency exemption for fomesafen, unacceptable. This 100-fold MOE is chloramben, weed contamination in contact the Agency’s Registration based on the same rationale as the 100- U.S. bean fields has increased and Division at the address provided above. fold uncertainty factor. Lifetime feeding studies in two significant crop losses have occurred. III. Risk Assessment and Statutory species of laboratory animals are The Applicants state that available Findings conducted to screen pesticides for alternative pesticides and control EPA performs a number of analyses to cancer effects. When evidence of techniques have produced unreliable determine the risks from aggregate increased cancer is noted in these results, and that without this use of exposure to pesticide residues. First, studies, the Agency conducts a weight fomesafen, significant economic losses EPA determines the toxicity of of the evidence review of all relevant will occur. EPA has authorized under pesticides based primarily on toxicological data including short-term FIFRA section 18 the use of fomesafen toxicological studies using laboratory and mutagenicity studies and structure on dry beans for control of broadleaf animals. These studies address many activity relationship. Once a pesticide weeds in Maine, Michigan, and New adverse health effects, including (but has been classified as a potential human York. After having reviewed the not limited to) reproductive effects, carcinogen, different types of risk submission, EPA concurs that developmental toxicity, toxicity to the assessments (e.g., linear low dose emergency conditions exist for these nervous system, and carcinogenicity. extrapolations or MOE calculation based states. Second, EPA examines exposure to the on the appropriate NOEL) will be As part of its assessment of this pesticide through the diet (e.g., food and carried out based on the nature of the emergency exemption, EPA assessed the drinking water) and through exposures carcinogenic response and the Agency’s potential risks presented by residues of that occur as a result of pesticide use in knowledge of its mode of action. fomesafen in or on dry beans. In doing residential settings. 2. Differences in toxic effect due to so, EPA considered the new safety exposure duration. The toxicological A. Toxicity standard in FFDCA section 408(b)(2), effects of a pesticide can vary with and EPA decided that the necessary 1. Threshold and non-threshold different exposure durations. EPA tolerance under FFDCA section 408(l)(6) effects. For many animal studies, a dose considers the entire toxicity data base, would be consistent with the new safety response relationship can be and based on the effects seen for standard and with FIFRA section 18. determined, which provides a dose that different durations and routes of Consistent with the need to move causes adverse effects (threshold effects) exposure, determines which risk quickly on the emergency exemption in and doses causing no observed effects assessments should be done to assure order to address an urgent non-routine (the ‘‘no-observed effectlevel’’ or that the public is adequately protected situation and to ensure that the resulting ‘‘NOEL’’). from any pesticide exposure scenario. food is safe and lawful, EPA is issuing Once a study has been evaluated and Both short and long durations of this tolerance without notice and the observed effects have been exposure are always considered. opportunity for public comment under determined to be threshold effects, EPA Typically, risk assessments include section 408(e), as provided in section generally divides the NOEL from the ‘‘acute,’’ ‘‘short-term,’’ ‘‘intermediate 408(l)(6). Although this tolerance will lowest NOEL by an uncertainty factor term,’’ and ‘‘chronic’’ risks. These expire and is revoked on October 31, (usually 100 or more) to determine the assessments are defined by the Agency 1998, under FFDCA section 408(l)(5), Reference Dose (RfD). The RfD is a level as follows. residues of the pesticide not in excess at or below which daily aggregate Acute risk, by the Agency’s definition, of the amounts specified in the exposure over a lifetime will not pose results from 1-day consumption of food tolerance remaining in or on dry beans appreciable risks to human health. An and water, and reflects toxicity which after that date will not be unlawful, uncertainty factor (sometimes called a could be expressed following a single provided the pesticide is applied in a ‘‘safety factor’’) of 100 is commonly oral exposure to the pesticide residues. manner that was lawful under FIFRA. used since it is assumed that people High end exposure to food and water EPA will take action to revoke this may be up to 10 times more sensitive to residues are typically assumed. tolerance earlier if any experience with, pesticides than the test animals, and Short-term risk results from exposure scientific data on, or other relevant that one person or subgroup of the to the pesticide for a period of 1-7 days, information on this pesticide indicate population (such as infants and and therefore overlaps with the acute that the residues are not safe. children) could be up to 10 times more risk assessment. Historically, this risk Because this tolerance is being sensitive to a pesticide than another. In assessment was intended to address approved under emergency conditions addition, EPA assesses the potential primarily dermal and inhalation EPA has not made any decisions about risks to infants and children based on exposure which could result, for whether fomesafen meets EPA’s the weight of the evidence of the example, from residential pesticide registration requirements for use on dry toxicology studies and determines applications. However, since enaction of beans or whether a permanent tolerance whether an additional uncertainty factor FQPA, this assessment has been for this use would be appropriate. is warranted. Thus, an aggregate daily expanded to include both dietary and Under these circumstances, EPA does exposure to a pesticide residue at or non-dietary sources of exposure, and not believe that this tolerance serves as below the RfD (expressed as 100 percent will typically consider exposure from a basis for registration of fomesafen by or less of the RfD) is generally food, water, and residential uses when a State for special local needs under considered acceptable by EPA. EPA reliable data are available. In this FIFRA section 24(c). Nor does this generally uses the RfD to evaluate the assessment, risks from average food and tolerance serve as the basis for any State chronic risks posed by pesticide water exposure, and high-end Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61641 residential exposure, are aggregated. children. The TMRC is a ‘‘worst case’’ 1. Acute toxicity. EPA has selected the High-end exposures from all 3 sources estimate since it is based on the developmental NOEL of 7.5 mg/kg/day are not typically added because of the assumptions that food contains from the oral rat developmental toxicity very low probability of this occurring in pesticide residues at the tolerance level study for the acute dietary endpoint; at most cases, and because the other and that 100% of the crop is treated by the developmental LOEL of 50 mg/kg/ conservative assumptions built into the pesticides that have established day, fetuses had delayed or partial assessment assure adequate protection tolerances. If the TMRC exceeds the RfD ossification and extra ribs. Since the of public health. However, for cases in or poses a lifetime cancer risk that is effect of concern is developmental, the which high-end exposure can greater than approximately one in a risk assessment will evaluate acute reasonably be expected from multiple million, EPA attempts to derive a more dietary risk to the population subgroup sources (e.g. frequent and widespread accurate exposure estimate for the of concern, Females 13+ Years Old. homeowner use in a specific pesticide by evaluating additional types 2. Short - and intermediate - term geographical area), multiple high-end of information (anticipated residue data toxicity. EPA has selected the NOEL of risks will be aggregated and presented and/or percent of crop treated data) 10 mg/kg/day from the oral rabbit as part of the comprehensive risk which show, generally, that pesticide developmental toxicity study for assessment/characterization. Since the residues in most foods when they are calculation of short- and intermediate- toxicological endpoint considered in eaten are well below established term margins of exposure (MOEs). At this assessment reflects exposure over a tolerances. the LOEL of 40 mg/kg/day, maternal period of at least 7 days, an additional Percent of crop treated estimates are toxicity included stomach mucosal degree of conservatism is built into the derived from federal and private market erosion and death. 3. Chronic toxicity. EPA has not assessment; i.e., the risk assessment survey data. Typically, a range of established the RfD for fomesafen. For nominally covers 1-7 days exposure, estimates are supplied and the upper the purposes of this tolerance, based and the toxicological endpoint/NOEL is end of this range is assumed for the upon available chronic toxicity data, the selected to be adequate for at least 7 exposure assessment. By using this RfD of 0.0025 mg/kg/day was used. This days of exposure. (Toxicity results at upper end estimate of percent of crop RfD is based on the NOEL of 0.25 mg/ lower levels when the dosing duration treated, the Agency is reasonably certain kg/day from the rat carcinogenicity is increased.) that exposure is not understated for any Intermediate-term risk results from study. A 100-fold uncertainty factor was significant subpopulation group. exposure for 7 days to several months. used to calculate this RfD. At the LOEL Further, regional consumption This assessment is handled in a manner of 5.0 mg/kg/day there was liver toxicity information is taken into account similar to the short-term risk and decreased body weight. through EPA’s computer-based model assessment. 4. Carcinogenicity. Fomesafen is Chronic risk assessment describes risk for evaluating the exposure of classified as a Group C carcinogen with which could result from several months significant subpopulations including a Q* of 1.9 × 10-1 (mg/kg/day)-1. This to a lifetime of exposure. For this several regional groups, to pesticide classification was based on: (i) Increases assessment, risks are aggregated residues. For this pesticide, the most in both adenomas and carcinomas at highly exposed population subgroup considering average exposure from all < several dose levels in both sexes of sources for representative population (Non-Nursing Infants 1 Year Old) was mice; (ii) some evidence of reduced subgroups including infants and not regionally based. latency for the time of tumor children. IV. Aggregate Risk Assessment and appearance; (iii) limited evidence of mutagenic effects; and, (iv) the B. Aggregate Exposure Determination of Safety structural similarity of fomesafen to In examining aggregate exposure, Consistent with section 408(b)(2)(D), other biphenyl ether herbicides which FFDCA section 408 requires that EPA EPA has reviewed the available have been shown to be carcinogenic. take into account available and reliable scientific data and other relevant information concerning exposure from information in support of this action, B. Exposures and Risks the pesticide residue in the food in EPA has sufficient data to assess the 1. From food and feed uses. A question, residues in other foods for hazards of fomesafen and to make a permanent tolerance has been which there are tolerances, residues in determination on aggregate exposure, established (40 CFR 180.433) for the groundwater or surface water that is consistent with section 408(b)(2), for a residues of fomesafen, in or on soybeans consumed as drinking water, and other time-limited tolerance for residues of at 0.05 ppm. A time-limited tolerance non-occupational exposures through fomesafen on dry beans at 0.05 ppm. was also established on snap beans at pesticide use in gardens, lawns, or EPA’s assessment of the dietary 0.05 ppm recently, in connection with buildings (residential and other indoor exposures and risks associated with use under several emergency uses). Dietary exposure to residues of a establishing the tolerance follows. exemptions. Risk assessments were pesticide in a food commodity are A. Toxicological Profile conducted by EPA to assess dietary estimated by multiplying the average exposures and risks from fomesafen as daily consumption of the food forms of EPA has evaluated the available follows: that commodity by the tolerance level or toxicity data and considered its validity, i. Acute exposure and risk. Acute the anticipated pesticide residue level. completeness, and reliability as well as dietary risk assessments are performed The Theoretical Maximum Residue the relationship of the results of the for a food-use pesticide if a toxicological Contribution (TMRC) is an estimate of studies to human risk. EPA has also study has indicated the possibility of an the level of residues consumed daily if considered available information effect of concern occurring as a result of each food item contained pesticide concerning the variability of the a one day or single exposure. The acute residues equal to the tolerance. In sensitivities of major identifiable dietary risk assessment used tolerance evaluating food exposures, EPA takes subgroups of consumers, including level residue values and assumed 100 into account varying consumption infants and children. The nature of the percent of crop treated. The resulting patterns of major identifiable subgroups toxic effects caused by fomesafen are high-end exposure estimate of 0.0002 of consumers, including infants and discussed below. mg/kg/day translates to a dietary MOE 61642 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations of 37,500 for the population subgroup of Based on available data, EPA use on sites that would be expected to concern, Females 13+ Years Old. This concludes that fomesafen could leach to result in non-dietary (residential) MOE is a conservative risk assessment; ground water and may reach levels of exposure. A non-dietary risk assessment refinement using anticipated residue 1.0 microgram (µg)/Liter (L). The level is thus not appropriate for existing uses values and percent crop treated data in of 1.0 µg/L was based on a small scale of fomesafen. conjunction with Monte Carlo analysis prospective groundwater monitoring 4. Cumulative exposure to substances would result in a lower acute dietary study conducted on soybeans at a with common mechanism of toxicity. exposure estimate. vulnerable site in North Carolina. Section 408(b)(2)(D)(v) requires that, ii. Chronic exposure and risk. For Fomesafen residues were detected in when considering whether to establish, assessing chronic exposure and risks, ground water (in 4 of 9 wells) sampled modify, or revoke a tolerance, the anticipated residue values for all between 17 and 33 months after Agency consider ‘‘available commodities were used; and percent of application. Fomesafen concentrations information’’ concerning the cumulative crop treated information for soybeans measured 1.0 µg/L (equal to the limit of effects of a particular pesticide’s only; it was assumed that 100 percent of determination of the analytical method). residues and ‘‘other substances that the snap bean crop in the eastern United Exposures and risks from residues of have a common mechanism of toxicity.’’ States (the region where exemptions fomesafen in drinking water were The Agency believes that ‘‘available were issued, equivalent to 75 percent of calculated, as follows: information’’ in this context might the domestic snap bean crop), and 100 Adult Exposure = (chemical include not only toxicity, chemistry, µ × -3 µ × percent of the dry bean crops were concentration in g/L) (10 mg/ g) and exposure data, but also scientific treated. Based upon this, the existing (2 L/day consumed) divided by (70 kg policies and methodologies for uses on soybeans, snap beans, and dry body weight). understanding common mechanisms of Child Exposure = (chemical beans result in an ARC that is toxicity and conducting cumulative risk concentration in µg/L) × (10-3 mg/µg) × equivalent to the following percentages assessments. For most pesticides, (1 L/day consumed) divided by (10 kg of the RfD: U.S. population, 0.3%; although the Agency has some body weight). Nursing Infants, 0.3%; Non-nursing Adult exposure is thus calculated to information in its files that may turn out Infants (<1 year old), 0.8%; Children (1- be 2.9 × 10-5 mg/kg/day and exposure of to be helpful in eventually determining 6 years old), 0.7%; and Children (7-12 children is calculated to be 1.0 × 10-4 whether a pesticide shares a common years old), 0.5%. Additional refinement mg/kg/day. mechanism of toxicity with any other using percent of crop treated i. Acute exposure and risk. For the substances, EPA does not at this time information for all commodities would population subgroup of concern for have the methodologies to resolve the result in lower dietary exposure acute exposure (Females 13+ Years complex scientific issues concerning estimates. Old), the MOE is calculated at 260,000. common mechanism of toxicity in a iii. Cancer risk. A dietary (food only) ii. Chronic exposure and risk. meaningful way. EPA has begun a pilot cancer risk assessment using anticipated Exposure to residues of fomesafen in process to study this issue further residues and percent crop treated water utilizes 1.2% of the RfD for adults through the examination of particular information, as described above, was and 4.0% of the RfD for children. classes of pesticides. The Agency hopes performed for the U.S. population. The iii. Cancer risk. Based on exposure that the results of this pilot process will calculated food cancer risk from the levels for drinking water, as given increase the Agency’s scientific established tolerances (excludes this above, the estimate of cancer risk is 2.7 understanding of this question such that action) is 8.5 × 10-7. This is an × 10-6. This figure is an overestimate, as EPA will be able to develop and apply overestimate, as not all of the snap bean it was arrived at based on several very scientific principles for better crop in the eastern United States will be conservative assumptions. Estimates determining which chemicals have a treated with fomesafen. The incremental used were calculated based on data from common mechanism of toxicity and contribution to the dietary cancer risk only one small scale study conducted in evaluating the cumulative effects of posed by this use on dry beans, NC, for use of fomesafen on soybeans at such chemicals. The Agency anticipates, amortized over 5 years (the average a vulnerable site. This represents a however, that even as its understanding duration of a section 18 exemption, worst case scenario, so is not of the science of common mechanisms including repeat uses), is 0.5 × 10-7. representative of the ‘‘average’’ increases, decisions on specific classes Therefore, the total of the fomesafen conditions of use. Additionally, there is of chemicals will be heavily dependent dietary cancer risk for the U.S. language on the product label warning on chemical specific data, much of population from all commodity of the potential of fomesafen to leach to which may not be presently available. contributions, including this new ground water in vulnerable areas. Although at present the Agency does tolerance on dry beans, is 9.0 × 10-7. It Vulnerable areas in this case refers to not know how to apply the information should be noted that this is an areas where soils are permeable (sand in its files concerning common overestimation of risk, because not all of and silt loams) and the water table is mechanism issues to most risk the snap bean crops in the eastern shallow. The majority of areas of assessments, there are pesticides as to United States, nor all of the dry bean soybean production, and potential use which the common mechanism issues crops in the United States, will be of fomesafen, will not likely be can be resolved. These pesticides treated with fomesafen. vulnerable sites, thus the data used from include pesticides that are 2. From drinking water. Fomesafen the one small scale study greatly toxicologically dissimilar to existing was not included in EPA’s National overestimates levels which could chemical substances (in which case the Survey of Pesticides in Drinking Water actually occur. Further, it is assumed Agency can conclude that it is unlikely Wells. There are no entries for that this exaggerated level will occur in that a pesticide shares a common fomesafen in the Pesticides in Ground all drinking water throughout the US, mechanism of activity with other Water Database. The Agency has not and that each individual consumes 2 substances) and pesticides that produce established Maximum Contaminant liters of drinking water per day. a common toxic metabolite (in which Levels or Health Advisory Levels for 3. From non-dietary exposure. case common mechanism of activity residues of fomesafen in drinking water. Fomesafen is not currently registered for will be assumed). Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61643

When considering structural no harm will result from aggregate ii. Developmental toxicity studies. In similarities with other chemicals, exposure to fomesafen residues. the rat developmental toxicity study, the fomesafen falls into the class of maternal (systemic) NOEL was D. Aggregate Cancer Risk for U.S. ‘‘biphenyl ether’’ chemical compounds; established at 100 mg/kg/day, based on Population this means that this group of chemicals stained fur at the LOEL of 200 mg/kg/ have structural similarities, including a Using the conservative exposure day. The fetal (developmental) NOEL biphenyl ether group, in common. This assumptions described above, the total was 7.5 mg/kg/day, based on extra ribs is used as a piece of supporting dietary (food only) cancer risk is and delayed ossification at the LOEL of evidence for the classification of estimated at 9 × 10-7. This is an 50 mg/kg/day. fomesafen as a Group C carcinogen, overestimate, as not all of the snap and In the rabbit developmental toxicity since other chemicals of this group dry bean crop in the eastern United study, the maternal (systemic) NOEL (with similar structure) have been found States will be treated with fomesafen. was established at 10 mg/kg/day, based to be carcinogens. However, other For drinking water, the estimate of on mortality and stomach lesions at the indications of the carcinogenicity of cancer risk is 2.7 × 10-6. As stated above, LOEL of 40 mg/kg/day. The fetal fomesafen (i.e., increases of adenomas this figure was based on extremely (developmental) NOEL was established and carcinomas in a mouse study, conservative assumptions, and thus is at 40 mg/kg/day (highest dose tested, no limited evidence of mutagenic effects) an overestimate; taking this into effects seen). iii. Reproductive toxicity study. In the were also used in deciding this cancer consideration, EPA scientists believe 2-generation reproductive toxicity study classification. At this time, the Agency that the actual aggregate cancer risk will in rats, the parental (systemic) NOEL does not have sufficient understanding not exceed levels of concern. of the structural relationship to the was 12.5 mg/kg/day, based on decreased mechanism of toxicity of these body weight and liver necrosis at the chemicals to conclude that they may be LOEL of 50 mg/kg/day. The E. Aggregate Risks and Determination of reproductive and developmental (pup) combined for the purposes of Safety for Infants and Children conducting a risk assessment. Although NOELs were 2.5 mg/kg/day, based on fomesafen contains some chemical 1. Safety factor for infants and decreased pup body weight and reduced structures in common with other children. i. In general. In assessing the litter size at the LOEL of 12.5 mg/kg/ chemicals that have been found to be potential for additional sensitivity of day. carcinogens, EPA does not yet fully infants and children to residues of iv. Pre- and post-natal sensitivity. understand the implications of such a fomesafen, EPA considered data from There were no developmental effects in relationship, nor how, or if, these developmental toxicity studies in the rat rabbits at the highest dose tested, even structures relate to the toxicological and rabbit and a 2-generation in the presence of maternal toxicity. activity of the chemical. For the reproduction study in the rat. The However, based on the developmental purposes of this tolerance action, developmental toxicity studies are toxicity study in rats, developmental toxicity (alterations and delays in therefore, EPA has not assumed that designed to evaluate adverse effects on skeletal ossification) occurred at a dose fomesafen has a common mechanism of the developing organism resulting from level which was not maternally toxic, toxicity with other substances. maternal pesticide exposure during suggesting a special sensitivity to the gestation. Reproduction studies provide C. Aggregate Risks and Determination of fetus following in-utero exposure. Based information relating to effects from Safety for U.S. Population on the results of the rat developmental exposure to the pesticide on the 1. Acute risk. For the population of toxicity study, an acute dietary risk reproductive capability of mating concern (Females 13+ Years Old), the assessment was conducted for Females animals and data on systemic toxicity. calculated aggregate MOE value is 13+ Years Old. The MOE of 23,000 23,000. The aggregate MOE is the FFDCA section 408 provides that EPA obtained for this risk assessment reciprocal of the sum of the reciprocal shall apply an additional tenfold margin demonstrates that acute developmental of the MOEs for food (25,000) and water of safety for infants and children in the (pre-natal) risks are low. (260,000). This aggregate MOE does not case of threshold effects to account for v. Conclusion. Based on the rat exceed EPA’s level of concern for acute pre-and post-natal toxicity and the reproductive toxicity study discussed dietary exposure. completeness of the database unless above, the pup LOEL (decreased body 2. Chronic risk. Using the ARC EPA determines that a different margin weight and reduced litter size) occurred exposure assumptions described above, of safety will be safe for infants and at levels below the maternal NOEL and EPA has concluded that aggregate children. Margins of safety are demonstrates post-natal pup toxicity exposure to fomesafen from food will incorporated into EPA risk assessments unrelated to maternal effects. These utilize 1.5% (0.3% for food and 1.2% either directly through use of a MOE results are suggestive of a special for water) of the RfD for the U.S. analysis or through using uncertainty sensitivity for infants and children population. The major identifiable (safety) factors in calculating a dose following post-natal exposure. subgroup with the highest aggregate level that poses no appreciable risk to Therefore, EPA recommends applying exposure is Non-Nursing Infants, humans. EPA believes that reliable data an extra 10-fold uncertainty (safety) discussed below. EPA generally has no support using the standard 100-fold factor in the chronic risk analysis. The concern for exposures below 100% of safety factor (usually 100 for combined low percentage of the RfD occupied by the RfD because the RfD represents the inter- and intra-species variability) and the most highly exposed child subgroup level at or below which daily aggregate not the additional tenfold safety factor (4.8% of the RfD; 48% using the extra dietary exposure over a lifetime will not when EPA has a complete data base 10-fold factor) demonstrates that post- pose appreciable risks to human health. under existing guidelines and when the natal risks to infants and children are Despite the potential for exposure to severity of the effect in infants or low. fomesafen in drinking water, EPA does children or the potency or unusual toxic 2. Acute risk. The acute, aggregate not expect the aggregate exposure to properties of a compound do not raise dietary MOE of 33,000 which was exceed 100% of the RfD. EPA concludes concerns regarding the adequacy of the calculated for females 13+ years old, that there is a reasonable certainty that standard safety factor. accounts for both maternal and fetal 61644 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations exposure. The large aggregate MOE residues of fomesafen in or on dry material submitted shows the following: calculated for females 13+ years old beans. A Mexican tolerance of 0.01 ppm There is genuine and substantial issue provides assurance that there is a is established for fomesafen residues in of fact; there is a reasonable possibility reasonable certainty of no harm to or on ‘‘beans.’’ that available evidence identified by the infants and children. requestor would, if established, resolve E. Rotational Crop Restrictions 3. Chronic risk. Using the one or more of such issues in favor of conservative exposure assumptions The federally registered label for the the requestor, taking into account described above, EPA has concluded fomesafen product requested under uncontested claims or facts to the that aggregate exposure to fomesafen these exemptions carries the following contrary; and resolution of the factual from food and water utilizes from 4.3% rotational crop restrictions: 4 months for issues in the manner sought by the of the RfD for nursing infants up to small grains; 10 months for corn, cotton, requestor would be adequate to justify 4.8% of the RfD for non-nursing infants. peanuts, and rice; and 18 months for all the action requested (40 CFR 178.32). As stated previously, the results from other crops, particularly sunflowers, Information submitted in connection the developmental rat study suggest a sugar beets, and sorghum. Part of the with an objection or hearing request special sensitivity to the fetus following use restrictions for these exemptions may be claimed confidential by marking in-utero exposure; and results from the includes that all applicable restrictions any part or all of that information as reproductive rat study suggest a special on the federal label must be followed; Confidential Business Information (CBI). sensitivity for infants and children this includes these rotational crop Information so marked will not be following post-natal exposure. restrictions. disclosed except in accordance with Therefore, EPA recommends applying VI. Conclusion procedures set forth in 40 CFR part 2. an extra 10-fold uncertainty (safety) A copy of the information that does not Therefore, the tolerance is established factor, which would bring the exposures contain CBI must be submitted for for residues of fomesafen in dry beans given above to 43% and 48% of the RfD, inclusion in the public record. at 0.05 ppm. for nursing and non-nursing infants, Information not marked confidential respectively. EPA generally has no VII. Objections and Hearing Requests may be disclosed publicly by EPA concern for exposures below 100% of without prior notice. the RfD because the RfD represents the The new FFDCA section 408(g) level at or below which daily aggregate provides essentially the same process VIII. Public Docket and Electronic dietary exposure over a lifetime will not for persons to ‘‘object’’ to a tolerance Submissions regulation issued by EPA under new pose appreciable risks to human health. EPA has established a record for this The low percentage of the RfD occupied section 408(e) and (l)(6) as was provided in the old section 408 and in section rulemaking under docket control by estimates for the most highly number [OPP–300571] (including any exposed child population subgroup 409. However, the period for filing objections is 60 days, rather than 30 comments and data submitted demonstrates that risks to infants and electronically). A public version of this children are below EPA’s level of days. EPA currently has procedural regulations which govern the record, including printed, paper concern, Use the following paragraph or versions of electronic comments, which delete and insert applicable text. and submission of objections and hearing requests. These regulations will require does not include any information EPA concludes that there is a reasonable claimed as CBI, is available for certainty that no harm will result to some modification to reflect the new law. However, until those modifications inspection from 8:30 a.m. to 4 p.m., infants and children from aggregate Monday through Friday, excluding legal exposure to fomesafen residues. can be made, EPA will continue to use those procedural regulations with holidays. The public record is located in V. Other Considerations appropriate adjustments to reflect the Room 1132 of the Public Information and Records Integrity Branch, A. Metabolism In Plants and Animals new law. Any person may, by January 20, 1998, Information Resources and Services The nature of the residues in plants file written objections to any aspect of Division (7502C), Office of Pesticide and animals is adequately understood. this regulation and may also request a Programs, Environmental Protection The residue of concern is fomesafen per hearing on those objections. Objections Agency, Crystal Mall #2, 1921 Jefferson se. Secondary residues in meat, milk, and hearing requests must be filed with Davis Highway, Arlington, VA. poultry, and eggs are not expected, since the Hearing Clerk, at the address given Electronic comments may be sent dry beans are not considered a livestock above (40 CFR 178.20). A copy of the directly to EPA at: opp- feed commodity. objections and/or hearing requests filed [email protected]. B. Analytical Enforcement Methodology with the Hearing Clerk should be Electronic comments must be An adequate enforcement method submitted to the OPP docket for this submitted as an ASCII file avoiding the (Method GAM-RM-001/86) is available rulemaking. The objections submitted use of special characters and any form to enforce fomesafen tolerances. must specify the provisions of the of encryption. regulation deemed objectionable and the The official record for this C. Magnitude of Residues grounds for the objections (40 CFR rulemaking, as well as the public Residues of fomesafen are not likely 178.25). Each objection must be version, as described above will be kept to exceed 0.05 ppm in or on dry beans accompanied by the fee prescribed by in paper form. Accordingly, EPA will as a result of this use. No animal feed 40 CFR 180.33(i). If a hearing is transfer any copies of objections and items are associated with this use, and requested, the objections must include a hearing requests received electronically therefore, no secondary residues in statement of the factual issues on which into printed, paper form as they are livestock commodities are expected to a hearing is requested, the requestor’s received and will place the paper copies result. contentions on such issues, and a in the official rulemaking record which summary of any evidence relied upon will also include all comments D. International Residue Limits by the requestor (40 CFR 178.27). A submitted directly in writing. The There are no CODEX or Canadian request for a hearing will be granted if official rulemaking record is the paper maximum residue levels established for the Administrator determines that the record maintained at the Virginia Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61645 address in ‘‘ADDRESSES’’ at the Environmental Health Risks and Safety Accounting Office prior to publication beginning of this document. Risks (62 FR 19885, April 23, 1997). of this rule in today’s Federal Register. In addition, since these tolerances and This is not a ‘‘major rule’’ as defined by IX. Regulatory Assessment exemptions that are established under 5 U.S.C. 804(2). Requirements FFDCA section 408 (l)(6), such as the This final rule establishes a time- tolerance in this final rule, do not List of Subjects in 40 CFR Part 180 limited tolerance under FFDCA section require the issuance of a proposed rule, Environmental protection, 408(l)(6). The Office of Management and the requirements of the Regulatory Administrative practice and procedure, Budget (OMB) has exempted these types Flexibility Act (RFA) (5 U.S.C. 601 et Agricultural commodities, Pesticides of actions from review under Executive seq.) do not apply. Nevertheless, the and pests, Reporting and recordkeeping Order 12866, entitled Regulatory Agency has previously assessed whether requirements. Planning and Review (58 FR 51735, establishing tolerances, exemptions October 4, 1993). This final rule does from tolerances, raising tolerance levels Dated: October 22, 1997. not contain any information collections or expanding exemptions might subject to OMB approval under the adversely impact small entities and Peter Caulkins, Paperwork Reduction Act (PRA), 44 concluded, as a generic matter, that U.S.C. 3501 et seq., or impose any there is no adverse economic impact. Acting Director, Registration Division, Office enforceable duty or contain any The factual basis for the Agency’s of Pesticide Programs. unfunded mandate as described under generic certification for tolerance Therefore, 40 CFR chapter I is Title II of the Unfunded Mandates actions published on May 4, 1981 (46 amended as follows: Reform Act of 1995 (UMRA) (Pub. L. FR 24950), and was provided to the 104-4). Nor does it require any prior Chief Counsel for Advocacy of the Small PART 180Ð[AMENDED] consultation as specified by Executive Business Administration. Order 12875, entitled Enhancing the 1. The authority citation for part 180 Intergovernmental Partnership (58 FR X. Submission to Congress and the continues to read as follows: 58093, October 28, 1993), or special General Accounting Office Authority: 21 U.S.C. 346a and 371. considerations as required by Executive Under 5 U.S.C. 801(a)(1)(A), as added 2. In § 180.433, by alphabetically Order 12898, entitled Federal Actions to by the Small Business Regulatory inserting the following item into the Address Environmental Justice in Enforcement Fairness Act of 1996, the table in paragraph (b) to read as follows: Minority Populations and Low-Income Agency has submitted a report Populations (59 FR 7629, February 16, containing this rule and other required § 180.433 Sodium salt of fomesafen; 1994), or require OMB review in information to the U.S. Senate, the U.S. tolerance for residues. accordance with Executive Order 13045, House of Representatives, and the * * * * * entitled Protection of Children from Comptroller General of the General (b) * * *

Commodity Parts per million Expiration/Revocation Date

******* Beans, dry ...... 0.05 10/31/98

* * * * * perimeters and pantries, and Agency, Rm. M3708, 401 M St., SW., [FR Doc. 97–30383 Filed 11–18–97; 8:45 am] warehouses to the list of permissible Washington, DC 20460. Fees food storage sites and ultra low volume accompanying objections and hearing BILLING CODE 6560±50±F (ULV) fogging as a permissible treatment requests shall be labeled ‘‘Tolerance method under certain precautions and Petition Fees’’ and forwarded to: EPA ENVIRONMENTAL PROTECTION conditions. This rule also permits the Headquarters Accounting Operations AGENCY use of point source device treatments Branch, OPP (Tolerance Fees), P.O. Box providing those devices do not come 360277M, Pittsburgh, PA 15251. A copy 40 CFR Parts 180 and 185 into direct contact with food of any objections and hearing requests preparation surfaces and are kept a filed with the Hearing Clerk identified [OPP±300475A; FRL±5746±5] minimum distance of 3 feet from by the docket control number, [OPP– RIN 2070±AC78 exposed foods. This rule also restricts 300475A], must also be submitted to: the tolerance expression to residues of Public Information and Records Hydroprene Biochemical Pest Control [(S)-(Ethyl(2E,4E,7S)-3,7,11-trimethyl Integrity Branch, Information Resources Agent; Pesticide Tolerance 2,4-dodecadienoate)], the S-racemer of and Services Division (7502C), Office of hydroprene since the R-racemer is no Pesticide Programs, Environmental AGENCY: Environmental Protection longer being supported in reregistration. Protection Agency, 401 M St., SW., Agency (EPA). DATES: This regulation is effective Washington, DC 20460. In person, bring ACTION: Final Rule. November 19, 1997. Objections and a copy of objections and hearing requests for hearings must be received requests to Rm. 1132, CM #2, 1921 SUMMARY: This rule expands the by EPA on or before January 20, 1998. Jefferson Davis Hwy., Arlington, VA. tolerance for residues of hydroprene, ADDRESSES: Written objections and A copy of objections and hearing [(S)-(Ethyl (2E,4E,7S)-3,7,11-trimethyl- hearing requests, identified by the requests filed with the Hearing Clerk 2,4-odecadienoate)], an insect growth docket control number [OPP–300475A], may be submitted electronically by regulator, on all food items in food- must be submitted to: Hearing Clerk sending electronic mail (e-mail) to: opp- handling establishments to include (1900), Environmental Protection [email protected]. Copies of 61646 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations electronic objections and hearing I. Objections and Hearing Requests may be disclosed publicly by EPA requests must be submitted as an ASCII The new FFDCA section 408(g) without prior notice. file avoiding the use of special provides essentially the same process II. Public Record and Electronic characters and any form of encryption. for persons to ‘‘object’’ to a regulation Submissions Copies of electronic objections and for an exemption from the requirement EPA has established a record for this hearing requests will also be accepted of a tolerance issued by EPA under new rulemaking under docket number [OPP– on disks in WordPerfect 5.1/6.1 file section 408(d) as was provided in the 300475A] (including any comments and format or ASCII file format. All copies old section 408 and in section 409. data submitted electronically). A public of electronic objections and hearing However, the period for filing objections version of this record, including requests must be identified by the is 60 days, rather than 30 days. EPA printed, paper versions of electronic docket number [OPP–300475A]. No currently has procedural regulations comments, which does not include any Confidential Business Information (CBI) which governs the submission of information claimed as CBI, is available should be submitted through e-mail. objections and hearing requests. These for inspection from 8:30 a.m. to 4 p.m., Copies of electronic objections and regulations will require some Monday through Friday, excluding legal hearing requests on this rule may be modification to reflect the new law. holidays. The public record is located in filed online at many Federal Depository However, until those modifications can Room 1132 of the Public Response and Libraries. be made, EPA will continue to use those Program Resources Branch, Field procedural regulations with appropriate FOR FURTHER INFORMATION CONTACT: By Operations Division (7502C), Office of adjustments to reflect the new law. Pesticide Programs, Environmental mail: Diana Horne, c/o Product Manager Any person may, by January 20, 1998, (PM) 90, Biopesticides and Pollution Protection Agency, Crystal Mall #2, file written objections to any aspect of 1921 Jefferson Davis Highway, Prevention Division (7511W) Office of this regulation and may also request a Arlington, VA. Pesticide Programs, Environmental hearing on those objections. Objections Electronic comments may be sent Protection Agency, 401 M St. SW., and hearing requests must be filed with directly to EPA at: Washington, DC 20460. Office location, the hearing clerk, at the address given [email protected]. telephone number and e-mail address: under the ‘‘ADDRESSES’’ section (40 Electronic comments must be Room 5-W42, 5th Floor, CS#l, 2800 CFR 178.20). A copy of the objections submitted as an ASCII file avoiding the Crystal Drive, Arlington, VA (703) 308– and/or hearing requests filed with the use of special characters and any form 8367; [email protected]. hearing clerk should be submitted to the of encryption. OPP docket for this rulemaking. The The official record for this SUPPLEMENTARY INFORMATION: In the objections submitted must specify the Federal Register of June 4, 1997 (62 FR rulemaking, as well as the public provisions of the regulation deemed version, as described above will be kept 30549)(FRL–5600–6) EPA issued a objectionable and the grounds for the in paper form. Accordingly, EPA will proposal to amend 40 CFR parts 180 and objections (40 CFR 178.25). Each transfer any copies of objections and 185 by removing § 185.3625 and adding objection must be accompanied by the hearing requests received electronically § 180.501, and by adding perimeters, fee prescribed by 40 CFR 180.33(i). If a into printed, paper form as they are pantries and warehouses to the list of hearing is requested, the objections received and will place the paper copies permissible food storage sites and ultra must include a statement of the factual in the official rulemaking record which low volume (ULV) fogging as a issue(s) on which a hearing is requested, will also include all comments permissible treatment method under the requestor’s contentions on such submitted directly in writing. The certain precautions and conditions. The issues, and a summary of any evidence official rulemaking record is the paper Agency is also permitting the use of relied upon by the objector (40 CFR record maintained at the address in point source device treatments 178.27). A request for a hearing will be ‘‘ADDRESSES’’ at the beginning of this providing those devices do not come granted if the Administrator determines document. into direct contact with food that the material submitted shows the preparation surfaces and must be kept a following: There is a genuine and III. Regulatory Assessment minimum distance of 3 feet from substantial issue of fact; there is a Requirements exposed foods. The Agency also reasonable possibility that available This action finalizes an exemption proposed restricting the tolerance evidence identified by the requestor from the tolerance requirement under expression to residues of [(S)-(Ethyl would, if established resolve one or FFDCA section 408(e). The Office of (2E,4E,7S)-3,7,11-trimethyl-2,4- more of such issues in favor of the Management and Budget (OMB) has dodecadienoate)], the S-racemer of requestor, taking into account exempted these types of actions from hydroprene. The R-racemer is being uncontested claims or facts to the review under Executive Order 12866, removed from the tolerance expression contrary; and resolution of the factual entitled Regulatory Planning and since Sandoz Agro Inc., the issue(s) in the manner sought by the Review (58 FR 51735, October 4, 1993). manufacturer, is supporting only the requestor would be adequate to justify In addition, this final rule does not reregistration of (S)-hydroprene and no the action requested (40 CFR 178.32). contain any information collections longer manufacturers the R/S Information submitted in connection subject to OMB approval under the hydroprene racemic mixture. with an objection or hearing request Paperwork Reduction Act (PRA), 44 may be claimed confidential by marking U.S.C. 3501 et seq., or impose any There were no comments in response any part or all of that information as enforceable duty or contain any to this proposed rule. The data CBI. Information so marked will not be unfunded mandate as described under submitted in the petition and other disclosed except in accordance with Title II of the Unfunded Mandates material have been evaluated. procedures set forth in 40 CFR part 2. Reform Act of 1995 (UMRA) (Pub. L. Based on the reasoning and findings A copy of the information that does not 104–4). Nor does it require any prior set forth in the preamble to the contain CBI must be submitted for consultation as specified by Executive proposed rule, 40 CFR part 180 is inclusion in the public record. Order 12875, entitled Enhancing the amended as set forth below. Information not marked confidential Intergovernmental Partnership (58 FR Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61647

58093, October 28, 1993), or special § 180.501 Hydroprene; tolerances for DEPARTMENT OF TRANSPORTATION considerations as required by Executive residues. Maritime Administration Order 12898, entitled Federal Actions to (a) General. A tolerance of 0.2 part per Address Environmental Justice in million is established for residues of 46 CFR Part 383 Minority Populations and Low-Income hydroprene [(S)-(Ethyl (2E,4E,7S)- Populations (59 FR 7629, February 16, 3,7,11-trimethyl-2,4-dodecadienoate)], [Docket No R±156] 1994), or require special OMB review in (CAS Reg. No. 65733–18–8) on all food accordance with Executive Order 13045, RIN 2133±AB16 entitled Protection of Children from items in food-handing establishments in Environmental Health Risks and Safety accordance with the following Determination of Fair and Reasonable Risks (62 FR 19885, April 23, 1997). prescribed conditions: Guideline Rates for the Carriage of In addition, under the Regulatory (1) Application shall be limited to Less-Than-Shipload Lots of Bulk and Flexibility Act (RFA) (5 U.S.C. 601 et spot, crack and crevice, perimeter and Packaged Preference Cargoes on U.S.- seq.), the Agency previously assessed ultra low volume (ULV) fogging Flag Commercial Liner Vessels; whether establishing tolerances, treatment in food storage or food- Removal of Part exemptions from tolerances, raising handling establishments, including AGENCY: Maritime Administration, DOT. tolerance levels or expanding warehouses, food service, exemptions might adversely impact manufacturing, and processing ACTION: Final Rule. small entities and concluded, as a establishments such as restaurants, SUMMARY: In connection with the generic matter, that there is no adverse cafeterias, supermarkets, bakeries, economic impact. The factual basis for President’s Regulatory Reinvention breweries, dairies, meat slaughtering Initiative, the Maritime Administration the Agency’s generic certification for and packing plants, and canneries tolerance actions published on May 4, (MARAD), after having initiated a where food and food products are held, rulemaking with a notice of proposed 1981 (46 FR 24950), and was provided processed, and served: Provided that the to the Chief Counsel for Advocacy of the rule-making (NPRM), has reviewed the food is removed or covered prior to such Small Business Administration. subject regulations at 46 CFR part 383 use, and food-processing surfaces are and has determined to withdraw that XII. Submission to Congress and the covered during treatment or thoroughly rulemaking and remove the entire part. General Accounting Office cleaned before using, or in the case of Part 383 has become unnecessary in Under 5 U.S.C. 801(a)(1)(A), as added point-source device treatments, devices view of the decline in the volume of by the Small Business Regulatory must not come into direct contact with U.S.-flag vessel liner service. Enforcement Fairness Act of 1996, the food preparation surfaces and must be DATES: This rule is effective November Agency has submitted a report in a minimum distance of 3 feet from 21, 1997. containing this rule and other required exposed foods. FOR FURTHER INFORMATION CONTACT: information to the U.S. Senate, the U.S. (2) To assure safe use of the insect Michael P. Ferris, Director, Office of House of Representatives, and the growth regulator, the label and labeling Costs and Rates, Telephone: (202) 366– Comptroller General of the General shall conform to that registered by the 2324. Accounting Office prior to publication U.S. Environmental Protection Agency, SUPPLEMENTARY INFORMATION: In of this rule in today’s Federal Register. and it shall be used in accordance with administering the cargo preference This is not a ‘‘major rule’’ as defined by such label and labeling. program pursuant to the Cargo 5 U.S.C. 804(2). (b) Section 18 emergency exemptions. Preference Act of 1954, incorporated in section 901(b), Merchant Marine Act, List of Subjects [Reserved] 1936, as amended (46 App. U.S.C. 40 CFR Part 180 (c) Tolerances with regional 1241(b)), MARAD provides guideline Environmental protection, registrations. [Reserved] rates for the carriage of agricultural Administrative practice and procedure, (d) Indirect or inadvertent residues. preference cargoes to the U.S. Agricultural commodities, Food [Reserved] Department of Agriculture (USDA) and additive, Pesticides and pests, Reporting the Agency for International and record keeping requirements. PART 185Ð[AMENDED] Development (AID) (‘‘sponsoring agencies’’) for bagged and packaged 40 CFR Part 185 2. In part 185: agricultural commodities carried on Environmental protection, Food a. The authority citation for part 185 bulk vessels. The methodology for additives, Pesticides and pests continues to read as follows: calculating guideline rates is stated in Dated: October 31, 1997. Authority: 21 U.S.C. 346a and 348. regulations at 46 CFR part 382. Those sponsoring agencies requested that Stephen L. Johnson, § 185.3625 [Removed] MARAD extend the scope of its Acting Director, Office of Pesticide Programs. regulations at 46 CFR part 383 to provide them with guideline rates for Therefore, 40 CFR chapter I is b. Section 185.3625 is removed. bagged and packaged agricultural amended as follows: [FR Doc. 97–30382 Filed 11–18–97; 8:45 am] commodities carried on liner vessels in PART 180Ð[AMENDED] BILLING CODE 6560±50±F less-than-shipload lots. Accordingly, MARAD published a NPRM (60 FR 1. In part 180: 20069; April 24, 1995) proposing to a. The authority citation for part 180 amend its regulations in part 383 to continues to read as follows: provide guideline rates for bagged or Authority: 21 U.S.C. 346a and 348. packaged agricultural commodities in b. Section 180.501 is added to read as parcels of 5,000 tons and greater on follows: vessels in liner services. 61648 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

After careful review of the is not considered to be a significant rule By Order of the Acting Maritime methodology that was proposed in the under the Department’s Regulatory Administrator. NPRM and the comments received in Policies and Procedures. Dated: November 14, 1997. response to that methodology, MARAD MARAD has determined that this Joel C. Richard, has concluded that the current rule, as rulemaking presents no substantive Secretary, Maritime Administration. well as the amendments that it proposed issue which it could reasonably expect [FR Doc. 97–30370 Filed 11–18–97; 8:45 am] to that rule, cannot adequately apply to would produce meaningful public BILLING CODE 4910±81±P liner vessels the methodology used in comment since it is merely removing a determining guideline rates for bulk rule that is obsolete, the retention of vessels due to the fundamental which could serve no useful purpose. FEDERAL MARITIME COMMISSION difference between bulk and liner Accordingly, pursuant to 5 U.S.C. 553 vessels. MARAD’s basic assumption that (c) and (d), the Administrative 46 CFR Part 586 large liner cargo parcels take on Procedure Act, MARAD finds that good [Docket No. 96±20] significant aspects of bulk shipment was cause exists to publish this as a final not supported by the comments. Several rule, without opportunity for public Port Restrictions and Requirements in commenters pointed out that even when comment, and to make it effective in the United States/Japan Trade large parcels are carried to the same less than thirty days after the date of country or area, the cargo discharging is publication. AGENCY: Federal Maritime Commission. typically done at numerous ports in the This rule has not been reviewed by ACTION: Final rule; suspension of region, subjecting the liner operators to the Office Management and Budget effectiveness. much greater risk of delays than bulk under Executive Order 12866. operators, which typically unload in SUMMARY: The Federal Maritime one or two ports. In addition, voyages in Federalism Commission is suspending the effectiveness of its final rule assessing the liner preference trades typically The Maritime Administration has fees on liner vessels operated by involve multiple shippers and receivers, analyzed this rulemaking in accordance Japanese carriers, in light of agreements each with their own shipment terms. with the principles and criteria reached between the United States MARAD believes that expansion of the contained in Executive Order 12612, Government and the Government of scope of part 383, which addresses less- and has determined that it does not Japan, and among affected commercial than-shipload lots of bulk preference have sufficient federalism implications parties and the Government of Japan, cargo on liner vessels, is not appropriate to warrant the preparation of a addressing restrictive and unfavorable at this time and that it would be more Federalism Assessment. fitting to remove the entire part. This conditions affecting U.S. shipping in conclusion is supported by the fact that Regulatory Flexibility Act Japanese ports. the rule has not been utilized since The Maritime Administration certifies DATES: Effective November 13, 1997, 46 1995, and that, with the sharp decline that this rulemaking will not have a CFR 586.2 as published at 62 FR 9696, in the number of U.S.-flag general cargo significant economic impact on a March 4, 1997, and amended at 62 FR vessels operating in liner services, it is substantial number of small entities 18532, April 16, 1997, is suspended. very unlikely that any future preference since MARAD has historically ADDRESSES: Filings and requests for cargoes will fall within the purview of calculated guidline rates for only three publicly available information should the regulations contained therein. In the operators in the liner trade. be addressed to: Joseph C. Polking, absence of a regulation, MARAD can Secretary, Federal Maritime make an ad hoc determination, if such Environmental Assessement Commission, 800 North Capitol Street, a shipment is made in the future, under The Maritime Administration has N.W., Washington, D.C. 20573, (202) its general authority to administer the considered the environmental impact of 523–5725. cargo preference laws of the United this rulemaking and has concluded that FOR FURTHER INFORMATION CONTACT: States. an environmental impact statement is Thomas Panebianco, General Counsel, Rulemaking Analyses and Notices not required under the National Federal Maritime Commission, 800 Environmental Policy Act of 1969. North Capitol Street, N.W., Washington, Executive Order 12866 (Regulatory D.C. 20573, (202) 523–5740. Paperwork Reduction Act Planning and Review); Department of SUPPLEMENTARY INFORMATION: On Transportation (DOT) Regulatory This rulemaking contains no reporting February 26, 1997 (62 FR 9696, March Policies Procedures; Pub. L. 104–121. requirement that is subject to OMB 4, 1997), the Commission issued a final This rulemaking has been reviewed approval under 5 CFR part 1320, rule pursuant to section 19(1)(b) of the under Executive Order 12866 and pursuant to the Paperwork Reduction Merchant Marine Act, 1920, 46 U.S.C. Department of Transportation Act of 1995 (44 U.S.C. 3501 et seq.). app. 876(1)(b), to assess per-voyage fees Regulatory Policies and Procedures (44 This rule does not impose any on Japanese liner carriers, in response to FR 11034; February 26, 1979). It is not unfunded mandates or requirements unfavorable conditions facing U.S. considered to be an economically that will have an impact on the quality shipping in Japanese ports. On April 13, significant regulatory action under of the human environment. 1997 (62 FR 18533, April 16, 1997), the section 3(f) of E.O. 12866, since it has List of Subjects in 46 CFR part 383 Commission postponed the effective been determined that it is not likely to date of the final rule (originally set for result in a rule that may have an annual Agricultural commodities, Cargo April 14, 1997) until September 4, 1997, effect on the economy of $100 million vessels, Government procurement, to allow the Government of Japan and or more or adversely affect in a material Grant programs—foreign relations, Loan affected parties further opportunity to way the economy, productivity, programs—foreign relations, Water craft appropriate plans for addressing competition, jobs, the environment, transportation. the unfavorable conditions identified in public health or safety, or State, local, Accordingly, 46 CFR part 383 is the final rule. On September 4, 1997, the or tribal governments or communities. It hereby removed and reserved. Commission, having been presented Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61649 with no evidence of meaningful reforms rule, covering both the issues of ACTION: Final rule. to Japanese port conditions, took no licensing of port transportation business action to prevent the rule from operations and the system of prior SUMMARY: On August 22, 1997, the becoming effective. consultation. With regard to the latter, Commission released a report and order Over the last several months, and relevant parties have agreed on reform adopting final rules to amend the particularly in recent weeks, U.S. and of the existing system and the creation Commissions rules, which govern the Japanese Government negotiators have of an alternative process of prior terms and conditions under which worked assiduously to craft agreements consultations. We expect that these customer-provided terminal equipment and reform plans to remedy the changes, when fully implemented, will may be connected to the telephone unfavorable conditions that prompted remedy those unfavorable conditions network without causing harm to the the Commission’s final rule. On October identified in the final rule. public switched network. As a result of 27, 1997, it came to the Commission’s Accordingly, the Commission is now the amendments, manufacturers will be attention that these negotiators had suspending the effectiveness of the final able to test terminal equipment for come to terms on certain documents rule. This action has the effect of compliance with a single, consistent set which, upon ratification, would ceasing both the assessment of fees on of technical standards accepted in both constitute a comprehensive agreement Japanese carriers and the requirement the United States and Canada. The to reform Japanese port practices. Based that they report vessel calls. harmonization of terminal attachment on this positive development, the The Commission expects that it will rules in the United States and Canada Commission entered into a consent collect information periodically in the will be a model for our harmonization order with the Japanese shipping lines, normal course to remain apprised of efforts with other countries. accepting a compromise payment of changes in port conditions resulting EFFECTIVE DATE: April 20, 1998. $1.5 million in full satisfaction of the $4 from implementation of the Agreements. FOR FURTHER INFORMATION CONTACT: million owed (and overdue) for the However, we would note that the month of September, and agreed to take arrangements reached by U.S. and Technical Information: William no further action in this matter while Japanese negotiators include provisions VonAlven, (202) 418–2342 or email at the ratification of the agreements were for consultation. It is our hope that, [email protected]. pending. should any disputes or problems arise Legal Information: Marian Gordon, On November 10, 1997, Chairman in the implementation of these (202) 418–2320 or email at Creel received a letter from Under agreements, they can appropriately be [email protected]. The address for both Secretary of State for Economic, addressed through diplomatic and is: Network Services Division, Common Business, and Agricultural Affairs Stuart consultative mechanisms. To encourage Carrier Bureau, Federal E. Eizenstat and Acting Maritime such a process, if a complaint relating Communications Commission, 2000 M Administrator John Graykowski, to matters contained in this docket is Street, NW, Suite 235, Washington, DC conveying final signed copies of lodged with the Commission at any time 20054. The fax number is: (202) 418– correspondence between Secretary of by interested persons, the Commission 2345. The TTY number is: (202) 418– State Madeleine K. Albright and immediately will notify the Secretary of 0484. Ambassador Kunihiko Saito reflecting State of such complaint, and will SUPPLEMENTARY INFORMATION: the arrangements reached by the U.S. request the Secretary of State to seek and Japan delegations during the talks. resolution of the outstanding matters I. Introduction Mr. Eizenstat and Mr. Graykowski stated through diplomatic channels. At the 1. In this Report and Order (‘‘Order’’), that ‘‘this package represents a same time, however, the Commission we adopt final rules to amend part 68 reasonable basis to recommend that the retains its authority to take further of the Commission’s rules, which Commission compromise all the action, should it become necessary to do governs the terms and conditions under remaining assessments under Docket so. which customer-provided terminal No. 96–20 for October and November Therefore, it is ordered, That 46 CFR equipment may be connected to the and suspend further assessments and 586.2 as published March 4, 1997 (62 telephone network without causing the requirement for Japanese carriers to FR 9696), and amended by the harm to the network.1 The amendments report further vessel calls.’’ Attached to Commission April 16, 1997 (62 FR we adopt herein are designed to Ambassador Saito’s letter were copies of 18532) is hereby suspended. harmonize United States and Canadian two agreements among the Government requirements governing connection of of Japan and commercial interests By the Commission. terminal equipment to the public regarding the system of prior Joseph C. Polking, switched network (‘‘PSN’’) and to consultation. Secretary. The Commission is persuaded that the promote barrier-free trade between [FR Doc. 97–30277 Filed 11–18–97; 8:45 am] Canada and the United States, in arrangements reflected in these BILLING CODE 6730±01±M documents represent a significant step keeping with the spirit of the North in the process of remedying unfavorable American Free Trade Agreement Japanese port conditions. While the FEDERAL COMMUNICATIONS 1 See 47 CFR part 68. For a history of part 68, see Commission’s ultimate concern is the COMMISSION Proposals for New or Revised Classes of Interstate improvement of actual shoreside and Foreign Message Toll Telephone Service practices and policies, in this case— 47 CFR Part 68 (‘‘MTS’’) and Wide Area Telephone Service where the issues are complex and the (‘‘WATS’’); Revision of part 68 of the Commission’s [CC Docket No. 96±28; FCC 97±270] rules to Specify Standard Plugs and Jacks for the affected interests are several—the Connection of Telephone Equipment to the crafting and achievement of consensus Connection of Customer-Provided Nationwide Telephone Network; and Amendment on workable reform plans is a vital and Terminal Equipment to the Telephone of Part 68 of the Commission’s rules (Telephone commendable part of the process. The Equipment Registration) to Specify Standards for Network and Means of Connection of Telephone Equipment agreed-upon plans address in substance to Lamp and/or Annunciator Functions of Systems, all of the unfavorable conditions AGENCY: Federal Communications Memorandum Opinion and Order, 70 FCC 2d 1800 identified in the Commission’s final Commission. (1979), 45 FR 20841, Mar. 31, 1980. 61650 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

(‘‘NAFTA’’).2 As a result of these created a joint working group co-chaired technical matters. We sought comment amendments to part 68, manufacturers by representatives from the United on these tentative conclusions.9 in one country will be able to design States and Canada to develop a III. Discussion and test terminal equipment to comply harmonized set of rules to comply with with a single, consistent set of technical both countries’ requirements for A. Technical Amendments 4 standards accepted in both the United terminal attachment. 4. Positions of the Parties. There is States and Canada. 3. In February 1996, in response to unanimity of opinion among TIA’s Petition and comments received II. Background commenters that harmonization of part on the petition, the Commission issued 68 and CS–03 will benefit terminal 1. On March 9, 1995, the a Notice of Proposed Rulemaking equipment manufacturers as well as the Telecommunications Industry (NPRM) proposing to amend Part 68 to telecommunications industry. There Association (‘‘TIA’’) filed a Petition for harmonize United States and Canadian were no oppositions to any of the Rulemaking (‘‘Petition’’) to amend requirements for connection to the proposed rules. Northern Telecom §§ 68.300–68.318 and portions of § 68.2 5 PSN. In the NPRM, the Commission (‘‘Nortel’’), for example, supports the of the Commission’s rules to harmonize tentatively concluded that the amended Commission’s proposal and suggests United States network protection rules would promote barrier-free trade that harmonization of technical standards and corresponding Canadian between the United States and Canada requirements for attachment of terminal CS–03 certification regulations. Subpart by eliminating unnecessary differences equipment to the PSN will facilitate D of part 68, which includes §§ 68.300 6 in terminal attachment requirements. trade between the United States and through 68.318, addresses ‘‘Conditions We tentatively concluded that the Canada because manufacturers will for Registration,’’ including amended rules would be consistent with need to design and test to only one set requirements for environmental the spirit of NAFTA, and might become of common standards.10 Lucent agrees simulation (simulation ‘‘mimics’’ a guide for harmonization efforts with 7 that the amendment of part 68 will stresses that terminal equipment other countries. Furthermore, we result in commercial advantages.11 undergoes in shipment and handling tentatively concluded that the amended NYNEX argues that, under the proposed that could potentially damage it), rules would create a more competitive rules, a de facto barrier to trade that was leakage current limitations, hazardous equipment marketplace, resulting in inconsistent with NAFTA will be lower costs for equipment, thereby voltage limitation, signal power eliminated.12 Ameritech says that the benefitting United States and Canadian limitations, longitudinal balance proposed rules are an example of how consumers. We also stated that the limitations, on hook impedance ‘‘the government and industry can proposed rules were consistent with our limitations, billing protection, and achieve agreement without the need for commitment to ensure that customers hearing aid compatibility. Section 68.2 additional regulation.’’ 13 addresses the scope of the Commission’s and manufacturers can connect terminal 5. TIA and Sprint propose editorial rules for terminal attachment. equipment to the telephone network 8 corrections to the part 68 rules in 2. TIA is a national trade association without causing harm to the network. attachments to each of their Finally, we tentatively concluded that with more than 570 member companies comments.14 Additionally, Sprint the Commission must retain ultimate engaged in the manufacture, sale and argues that the Commission should add responsibility for part 68 functions, but distribution of telecommunications any tariffed data rates, i.e., all speeds of should rely on standards bodies equipment including terminal data communications that telephone whenever possible to resolve complex equipment. TIA’s Petition is the companies agree to provide to the culmination of four years of technical public for a requested service, to the National Standards Institute (‘‘ANSI’’), as well as effort by United States and Canadian amendments to part 68.15 More industry. In September, 1990, TIA’s international standards bodies outside the United States, to harmonize telecommunications specifically, Sprint states that 38.4 kbps Engineering Subcommittee TR–41, equipment standards to avoid duplicating is an existing T1 subrate service and as sponsored by its User Premises standardization work already successfully completed. TIA’s stated trade policy goals include such ‘‘qualifies for protection in Equipment Division, proposed a project accordance with the purpose of the part to ‘‘address differences’’ between ‘‘removal of barriers to market access, full participation of United States government and 68 rules.’’ 16 Canadian and United States terminal industry in the standards-setting process 6. Discussion. Based on the record, we 3 attachment rules. The Subcommittee worldwide, and achievement of a minimum level of amend part 68 to harmonize it with standards required to ensure interoperability and Canada’s CS–03 and summarize our 2 In Canada, certification means the right to attach proper function of the international network.’’ See terminal equipment to the PSN. Certification TIA Petition at 2. amendments as follows. Section 68.302 4 requires submission of an application that includes According to TIA, a wide range of interest is designed to protect the network from a technical description of the equipment and a groups in the United States and Canada were harm by ensuring that, despite being represented including carriers, manufacturers, measurement report showing compliance with CS– subject to environmental stresses, 03, the Canadian terminal attachment standard. laboratories, consultants and government Canadian requirements for terminal attachment are personnel. terminal equipment will continue to issued by Industry Canada (‘‘IC’’). Under the 5 See Public Notice, ‘‘Pleading Cycle Established comply with part 68 and not harm the direction of IC, the Terminal Attachment Program for Comments on TIA’s Petition for Rulemaking to Amend part 68, Subpart D’’, 10 FCC Rcd 4548 Advisory Committee (‘‘TAPAC’’), a government and 9 Id. (March 27, 1995); Amendment of Part 68 of the industry advisory committee, reviews and 10 Commission’s Rules, Notice of Proposed Nortel Comments at 1; see also VeriFone recommends changes to equipment certification Comments at 1. programs. Canada amended its terminal attachment Rulemaking, 11 FCC Rcd 13282 (1996), 61 FR 11 Lucent Comments at 2. rules (CS–03 standards) to harmonize Canadian 15441, Apr. 8, 1996, Erratum, (Mar. 29, 1996) 12 standards for terminal equipment with those set (‘‘NPRM’’). Seven parties filed comments in NYNEX Comments at 2. forth in part 68 on August 14, 1996. Canada response to the NPRM. On April 16, 1996, one party 13 Ameritech Comments at 1; see also Verifone Gazette, part I, June 15, 1996, Notice No. SMSE– filed reply comments. Comments at 1. 003–96. 6 NPRM 11 FCC Rcd at 13295. 14 Sprint Comments at 1; TIA Comments at 2. 3 TIA’s technical work is conducted through its 7 Id. The rules are consistent with the aims of the 15 Sprint Comments at 3. Engineering Committees, which develop, maintain, World Trade Organization, which like NAFTA, seek 16 Sprint requests that the valid tariffed data rate and publish voluntary standards and technical to reduce trade barriers in order to promote of 38.4 kbps be included in § 68.308(h)(1)(i), Table reports. TIA encourages these committees to work competition. 68.308(c), and Table 68.310(b). NPRM, 11 FCC Rcd cooperatively with members of the American 8 Id. at 13241–42, 13431, 61 FR 15441, Apr. 8, 1996. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61651 network. Amended § 68.302 deletes excessive signal power. We update this continue to be used under the vibration, temperature, and humidity section by revising the ‘‘Through Gain’’ provisions of § 68.2. stresses from part 68, and applies Table to reflect services such as 12. The record supports our tentative mechanical shock stresses only to Integrated Services Digital Network conclusion that amendment of part 68 equipment that might be affected by (‘‘ISDN’’) and to delete references to the as described above should lower the such stress. We delete these stresses 4-wire Conventional Termination Set price consumers pay for terminal because experience has shown, and the 18 interface. We also expand subrate equipment by facilitating greater record supports, that they are digital channel rates to include all rates efficiencies in the manufacturing and unnecessary given the technological presently used by industry, and adopt testing of terminal equipment. Under evolution in telecom equipment from an the ANSI T1 standard to replace the the amended rules, the technical arrangement of discrete electronic standard in the previous rules.19 Section components to solid state circuitry. requirements of part 68 and CS–03 68.308 also protects the network from would be harmonized so that a Over the past ten years, failures during harm by addressing crosstalk part 68 registration testing involving manufacturer in one country can design interference. We reword this section for and test terminal equipment to a single, these stresses is negligible. The benefits clarity and rename this section of streamlining our regulations in this consistent set of technical standards ‘‘Transverse Balance Limitations’’ to accepted in both the United States or regard far outweigh any possible harm harmonize it with internationally Canada. We conclude that these to the network created by these stresses. recognized Institute of Electrical and efficiencies will lead to an even more In addition, as the result of industry Electronic Engineers’ (‘‘IEEE’’) competitive market for terminal coordination, we are including a new terminology. Type B surge test to better assure equipment than currently exists, operability of customer premises 10. Section 68.312 addresses the resulting in lower costs for equipment, equipment during lightning storms. impedance (i.e., the resistance a circuit thus benefitting United States and 7. Section 68.304 leakage current offers to alternating current) that must Canadian consumers. be maintained on a telephone line. The limitations ensure that telephone 13. Moreover, as commenters amended rules reorganize and reword connections are adequately insulated recognize, the amendments to part 68 this section for clarity. Specifically, the against hazards to telephone company reconcile differences in standards and amended rules reduce the categories of personnel caused by voltages within the testing consistent with NAFTA. equipment itself or as a result of ringer types. We also delete those sections addressing message registration Currently, terminal equipment accidental contact with commercial manufactured for use in the United power sources. Previously, § 68.304 because this technology is no longer in use. States must meet the technical required testing using a 60 Hertz test requirements of part 68. Similarly, voltage. Amended § 68.304 changes the 11. Section 68.314 ensures that terminal equipment manufactured for 60 Hertz standard to either 50 or 60 transmission of signals in the network use in Canada must comply with the Hertz to harmonize with international does not interfere with proper operation technical requirements contained in frequencies used for this purpose and of network billing equipment. The CS–03. Each country’s respective with Underwriters Laboratories and amendments to this section include technical requirements have differed Canadian Standards Association rewording the section for clarity and sufficiently that terminal equipment insulation standards. deleting operating requirements for complying with one set of regulations 8. Section 68.306 imposes ‘‘fail safe’’ AIOD because the technology has been requirements on hazardous voltage. would not necessarily comply with the replaced. We also add a new section to technical requirements of the other These limits are generally used clarify reverse battery billing (a type of country. These differences, as NYNEX throughout the telephone industry as loop signaling) requirements. Section correctly states, have created voltage limitations below which special 68.316 Hearing Aid Compatibility unreasonable burdens on manufacturers protection of telephone craft personnel requirements are not amended by this and are a de facto barrier to trade is not required. Equipment must be Order. Furthermore, we delete reference inconsistent with the goals of NAFTA. designed to avoid creating voltages to 1.544 Mbps digital ‘‘keep-alive’’ By reconciling differences in standards exceeding these limits under normal requirements from § 68.318 because and testing, harmonization promotes the operation. We amend this section to they are no longer in effect.20 Finally, goals of NAFTA.21 Furthermore, the delete hazardous voltage requirements we amend definitions in § 68.3. For record supports our tentative conclusion for Message Registration (‘‘MR’’) and example, we delete references to MR that, as amended, the rules remain Automatic Identification of Outward and AIOD equipment, but clarify that Dialing (‘‘AIOD’’) because these types of any MR and AIOD equipment that consistent with the Commission’s technology are no longer in use.17 In remains connected to the network may longstanding commitment to ensure that addition, this Order changes the current no public harm results from attachment of private equipment to the PSN. The voltage limitation from 80 to 60 volts to 18 The Through Gain Table shows the maximum harmonize it with international safety net amplification permitted in multiport systems record is unanimous that the amended standards. between ports. The 4-wire Conventional 9. The signal power limitations of Terminating Set interface was an older technology 21 At a February 1997 meeting of the § 68.308 are designed to protect the used for connection of customer provided Telecommunications Standards Subcommittee equipment to analog voiceband private line (‘‘TSSC’’), Mexico agreed to a ‘‘Minimal’’ set of network from interference caused by services. network protection standards pursuant to NAFTA 19 Subrate digital channel rates previously used Article 1304–1 (with minor exceptions to 17 Message Registration (‘‘MR’’) was a specific by the industry ranged from 2.4 to 64 kilobits/ accommodate national deviations in networks) traffic recording system provided by certain older second (kbps). consistent with our initiative here to harmonize types of telephone systems. Automatic 20 Keep-alive refers to constantly present direct United States and Canadian network protection Identification of Outward Dialing (‘‘AIOD’’) was a current voltage formally provided from the central standards. The TSSC was established under NAFTA private branch exchange (PBX) service feature that office. Section 68.318 previously stated that ‘‘(u)ntil (Article 913) to creat a work plan for ‘‘making identified the calling line on calls directed to a December 18, 1989, terminal equipment connecting compatible the standards-related measures for public switched telephone network for automatic to 1.544 Mbps services shall contain circuitry that authorized equipment.’’ It is comprised of officials message accounting recording purposes. assures continuity of output signal.’’ from NAFTA member countries. 61652 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations rules in no way diminish network the same pace as technology.24 of industry experts to resolve complex protection. Consequently, we tentatively concluded technical matters. As we stated in the 14. Finally, we have reviewed the that the Commission should rely, NPRM, the Consultative Committee on editorial corrections proposed by TIA whenever possible, on standards bodies Telecommunications (‘‘CCT’’) has and Sprint and find that they clarify our to resolve complex technical issues. We substantially assisted various rules. For this reason, our final rules stated our reluctance, however, to harmonization activities.30 incorporate these suggested changes. In substitute industry consensus for our Additionally, we recently sought addition, we have added the tariffed part 68 rulemaking function as such comment on whether standards for data rate that Sprint suggests to our consensus may not always promote the enhanced wire quality and for rules. While we decline to require that public interest.25 We noted that determining gold equivalence should be all tariffed rates be included, we agree standards bodies often lack the permanent standards and, if so, what that the specific tariffed rate Sprint Commission’s authority to ensure industry body or bodies shall determine suggests should be included to cover its compliance with fair rules supporting an appropriate voluntary standard.31 We currently available service. safe and direct electrical connection of decline, however, to substitute industry subscriber’s terminal equipment to the B. Grandfathering Provision consensus completely for our part 68 PSN.26 rulemaking function. While they often 15. Positions of the Parties. Lucent 18. Positions of the Parties. TIA and may most expeditiously resolve argues that the Commission should NYNEX urge the Commission to adopt complex technical matters, standards amend § 68.2(j) to ‘‘provide a rule requiring manufacturers to bodies lack the Commission’s authority grandfathering for existing equipment, comply with the technical to ensure compliance with fair rules recommendations of industry standards in order to avoid any requirement to re- supporting safe and direct electrical bodies with appropriate Commission register all the equipment that has connection of subscribers’ telephone oversight. NYNEX states that ‘‘(i)nstead already been registered under current terminal equipment to the PSN. We rules.’’ 22 Lucent argues that a of specifying technical interfaces and note, for example, that new section grandfathering provision is necessary to requirements for terminal equipment in 273(d)(4) of the Communications Act of avoid re-registration of products that are the rules, the Commission should 1934, as amended, seeks to ensure that already registered under current rules, simply adopt a rule that requires voluntary standards do not become de are in use, and do not cause harm to the manufacturers of such equipment to facto standards that operate to exclude network. Several of the commenters add comply with the technical requirements legitimate parties. Similarly, while it in that re-registration of these products and technical recommendations this proceeding has strived to would impose substantial expense developed by appropriate industry incorporate the advice and assistance of without yielding any benefits. We note standards bodies under the standards bodies to resolve complex that no party has objected to a Commission’s auspices * * * .’’ 27 technical matters, the Commission must grandfathering provision. NYNEX contends that through its 16. Discussion. We are persuaded by oversight of industry standards bodies, continue to ensure through its commenters that there would be no the Commission should be satisfied as rulemaking function that fair rules are benefit to requiring the re-registration of to the ‘‘reasonableness’’ of any resulting developed. equipment already in use and shown technical recommendations. TIA argues IV. Conclusion not to cause harm to the network. We that the current regulatory rulemaking therefore adopt a grandfathering process lags behind changes in 20. We conclude that the rules we provision.23 The new rule 68.2(j) reads technology and supports NYNEX’s adopt herein will eliminate unnecessary as follows: proposal.28 Moreover, TIA states that differences in terminal attachment Terminal equipment and systems NYNEX’s suggested approach would be requirements, and thereby promote registered prior to April 20, 1998, do not consistent with recent congressional barrier-free trade, between the United have to be re-registered unless subsequently directives.29 VeriFone contends that States and Canada. We find this to be modified. All new equipment and systems industry standards bodies should consistent with the spirit and letter of manufactured after May 19, 1999, must remain responsible for technical issues, NAFTA, which mandates elimination of conform to the requirements. but concurs with the Commission’s trade barriers through reconciliation of C. Regulatory Process decision to retain ultimate differences in standards and testing responsibility in matters pertaining to 17. Background. In the NPRM, we procedures. These rules may become a part 68 rulemaking authority. model for our harmonization efforts stated that although harmonization of 19. Discussion. We acknowledge that technical requirements for attachment of with countries around the world and efforts to harmonize our terminal should benefit consumers by creating a terminal equipment satisfies NAFTA attachment rules with those of other requirements in a manner consistent more competitive equipment countries will be impeded if the marketplace, thereby lowering the with the interests of United States regulatory rulemaking process fails to industry in facilitating greater prices they pay for equipment. We keep pace with technological changes. conclude that these rules are consistent efficiencies in manufacturing terminal Therefore, we conclude that the equipment, we recognized that the with the Commission’s long-standing Commission should rely, whenever commitment to ensure that no public usefulness of a harmonized standard is possible, on standards bodies composed jeopardized if our regulatory process harm results from attachment of private does not allow the standard to evolve at 24 NPRM, 11 FCC Rcd at 13294. 30 NPRM, 11 FCC Rcd at 13294. 25 Id. at 13295. 31 Review of §§ 68.104 and 68.213 of the 22 Lucent Comments at 2; see also TIA Comments 26 Id. at 2–3. Commission’s Rules Concerning Connection of 27 NYNEX Comments at 3. Simple Inside Wiring to the Telephone Network, 23 We note, however, that based on past 28 TIA Comments at 3; TIA Reply Comments at Order on Reconsideration, Second Report and experience, the vast majority of equipment covered 3–5. Order and Second Further Notice of Proposed by the grandfathering rule will be phased out of 29 See, e.g., National Technology Transfer and Rulemaking, CC Docket No. 88–57, FCC 97–209 production and replaced by models that will be Advancement Act of 1995, Pub. L. 104–113, sec. 12, (June 17, 1997), at paras. 54–55, 62 FR 36463, Jul. subject to the new rules. 110 Stat. 775, 782–83 (1996). 8, 1997. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61653 equipment to the public switched proposed rules. The RFA defines the decision and rules adopted in this network. term ‘‘small entity’’ as having the same Order. meaning as the terms ‘‘small business,’’ V. Regulatory Flexibility Analysis Description of Projected Reporting, ‘‘small organization,’’ and ‘‘small 21. Final Regulatory Analysis: As Recordkeeping and Other Compliance business concern’’ under section 3 of Requirements required by the Regulatory Flexibility the Small Business Act.33 A small 32 Act (‘‘RFA’’), an Initial Regulatory business concern is one which: (1) Is 27. There are no reporting or Flexibility Analysis (‘‘IRFA’’) was independently owned and operated; (2) recordkeeping requirements. incorporated in the Notice of Proposed is not dominant in its field of operation; Manufacturers will be required to test Rulemaking in this proceeding, 11 FCC and (3) satisfies any additional criteria terminal equipment to a single, Rcd 13282 (1996); Erratum, (released established by the SBA.34 SBA has consistent set of technical standards March 29, 1996) (‘‘NPRM’’). The defined a small business for Standard accepted in both the United States and Commission sought written public Industrial Classification (‘‘SIC’’) Canada. comments on the proposals in the category 4813 (Telephone NPRM, including comment on the IRFA. Steps Taken to Minimize Significant Communications), Except This present Final Regulatory Flexibility Economic Impact on Small Entities, and Radiotelephone) to be a small entity Analysis (‘‘FRFA’’) in this Report and Significant Alternatives Considered when it has no more than 1,500 Order (‘‘Order’’) conforms to the RFA. 28. We are adopting § 68.2(j), which employees.35 states that equipment already registered Need for, and Objectives of, This Order 25. Consistent with our prior practice, and the Rules Adopted Herein under the current rules does not need to we here exclude small incumbent local be re-registered under the new rules. We 22. Consistent with the intent of the exchange carriers (LECs) from the believe that such a provision will save North American Free Trade Agreement definition of small entity and small manufacturers, some of which may be (‘‘NAFTA’’), this Order amends part 68 business concern. While such a small businesses, the expenses incurred of the Commission’s rules to promote company may have 1500 or fewer in re-registering equipment that is barrier-free trade between the United employees and thus fall within the already in use and has been shown not States and Canada. Part 68 governs the SBA’s definition of a small to cause harm to the network.38 No terms and conditions under which telecommunications entity, such alternative to this beneficial action was customer provided terminal equipment companies are either dominant in their suggested. may be connected to the telephone field of operations or are not Report to Congress network. As a result of the amendments independently owned and operated. Out to part 68, manufacturers will be able to of an abundance of caution, however, 29. The Commission will send a copy test terminal equipment for compliance for regulatory flexibility analysis of the Order, including this FRFA, in a with a single, consistent set of technical purposes, we will consider small report to be sent to Congress pursuant standards accepted in both the United incumbent LECs within this present to the Small Business Regulatory States and Canada. The harmonization analysis and use the term ‘‘small Enforcement Fairness Act of 1996, see 5 of terminal attachment rules in the incumbent LECs’’ to refer to any U.S.C. 801(a)(1)(A). A copy of the Order United States and Canada will be a incumbent LEC that arguably might be and this FRFA (or summary thereof) model for our harmonization efforts defined by SBA as a small business will also be published in the Federal with other countries. We adopt a concern. Register, see 5 U.S.C. 604(b), and will be grandfathering provision to cover sent to the Chief Counsel for Advocacy 26. Manufacturers of equipment already registered under of the Small Business Administration. current rules. Telecommunications Equipment: The Commission has not developed a VI. Ordering Clauses Summary of Significant Issues Raised by definition of small manufacturers of 30. Accordingly, it is ordered that, Public Comments in Response to the terminal equipment. The closest IRFA pursuant to sections 1, 4, 201–205, 218, applicable definition under SBA rules is 220, 226, 227, 255, and 710 of the 23. No comments were submitted for manufacturers of telephone and Communications Act of 1934, as specifically in response to the IRFA. We telegraph apparatus (SIC 3661), which amended, 47 U.S.C. 151, 154, 201–205, have reviewed the general comments to defines a small manufacturer as one 218, 220, 226, 227, 255, and 610, and 5 identify issues that may have a having 1000 or fewer employees.36 U.S.C. 552 and 553, this Report and significant economic impact on small According to 1992 Census Bureau data, Order is adopted, and part 68 of the businesses. All commenters addressing there were 479 such manufacturers, and the proposed amendments to part 68 of of those, 436 had 999 or fewer 38 The rule changes ameliorate potential technical our Rules supported the amendments. employees, and 7 had between 1000 and barriers to entry in both the U.S. and Canada 1499 employees.37 Consequently, we markets, thereby allowing manufacturers and Description and Estimate of the Number estimate that there are fewer than 443 suppliers, including small manufacturers and of Small Entities To Which Rules Will suppliers, a reasonable opportunity to conduct Apply small manufacturers of terminal business in both markets. This result in consistent equipment that may be affected by the with the general purposes of section 257 of the 1996 24. The RFA directs the Commission Telecommunications Act, 47 U.S.C. 257. That section requires, among other things, that the to provide a description of and, where 33 See 5 U.S.C. 601(3) (incorporating by reference Commission eliminate market entry barriers for feasible, an estimate of the number of the definition of ‘‘small business concern’’ in 5 small businesses who may provide parts or services U.S.C. 632). small entities that will be affected by the to providers of telecommunications services and 34 15 U.S.C. 632. information services. Id. at section 257(a). The 32 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 35 See 13 CFR 121.201. Commission recently issued a report in GN Docket et seq., has been amended by the Contract With 36 13 CFR 121.201, SIC 3661. No. 96–113 regarding its implementation of Section America Advancement Act of 1996, Pub. L. 104– 37 1992 Economic Census, Industry and 257. See Section 257 Proceeding to Identify and 121, 110 Stat. 847 (1996) (CWAAA). Title II of the Employment Size of Firm, Table 1D (data prepared Eliminate Market Entry Barriers for Small CWAA is the Small Business Regulatory by U.S. Census Bureau under contract to the U.S. Businesses, Report No. 97–8, 1997 WL 232120 Enforcement Fairness Act of 1996 (SBREFA). Small Business Administration). (1997). 61654 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

Commission’s rules are amended as set outward dialing, and message Figure 68.3(i) is revised to read Figure forth below. registration): 68.3(g) and Figure 68.3(j) is revised to 31. It is further ordered, that the rule * * * * * read Figure 68.3(h). amendments set forth below shall be (4) PBX (or similar) systems § 68.3 Definitions. effective April 20, 1997. connected with automatic identified 32. It is further ordered, that the outward dialing or message registration * * * * * Commission shall send a copy of this private line services of a type that Capture Level: Equipment with AGC Order, including the Final Regulatory complies with paragraphs (d)(l) and (Automatic Gain Control) signal power Flexibility Analysis, to the Chief (d)(2) of this section may remain limiting has virtually no output signal Counsel for Advocacy of the Small connected for life without registration for input levels below a certain value. Business Administration. unless subsequently modified. At some input signal power, the output level will become significant (usually List of Subjects in 47 CFR Part 68 * * * * * (j) Terminal equipment including corresponding to the expected output Administrative practice and premises wiring and protective level) for the service application. The procedure, Communications common apparatus (if any) directly connected to input level at which this occurs is carriers, Communications equipment, the network on April 20, 1997, may defined as the ‘‘capture level.’’ Telephone. remain connected and be reconnected * * * * * Federal Communications Commission. for life without registration, unless Dual Tone Multi Frequency (DTMF) subsequently modified. New network control signalling is a method William F. Caton, installations of terminal equipment, of signalling using the voice Acting Secretary. including premises wiring and transmission path. The method employs 47 CFR part 68 is amended as follows: protective apparatus (if any) may be sixteen (16) distinct signals each installed (including additions to composed of two (2) voiceband PART 68ÐCONNECTION OF existing systems) up to May 19, 1999, frequencies, one from each of two (2) TERMINAL EQUIPMENT TO THE without registration of any terminal geometrically spaced groups designated TELEPHONE NETWORK equipment involved, provided that the ‘‘low group’’ and ‘‘high group.’’ The terminal equipment is of a type directly selected spacing assures that no two 1. The authority citation for part 68 connected to the network as of April 20, frequencies of any group combination continues to read as follows: 1998. This terminal equipment may are harmonically related. Authority: Sec. 1, 4, 5, 201–5, 208, 215, remain connected and be reconnected to * * * * * 218, 226, 227, 303, 313, 314, 403, 404, 410, the network for life without registration, Overload Point: (1) For signal power 522 of the Communications Act of 1934, as unless subsequently modified. amended, 47 U.S.C. 151, 154, 155, 201–5, limiting circuits incorporating 208, 215, 218, 226, 227, 303, 313, 314, 403, * * * * * automatic gain control method, the 404, 410, 522. 3. Section 68.3 is amended by adding ‘‘overload point’’ is the value of the the following definitions for Capture input signal that is 15 dB greater than 2. Section 68.2 is amended by revising Level, Dual Tone Multi Frequency the capture level. paragraphs (a)(3); (d), introductory text, (DTMF), Overload Point, and Voiceband (2) For signal power limiting circuits and paragraph (j) and adding new in alphabetical order; by revising the incorporating peak limiting method, the paragraph (d)(4) to read as follows: definition for ‘‘Zero Level Decoder’’; ‘‘overload point’’ is defined as the input § 68.2 Scope. removing the definitions for AOID Data level at which the equipment’s through Channel Simulator, AIOD Leads, (a) * * * gain decreases by 0.4 dB from its Message Register Leads, Message nominal constant gain. (3) Of all PBX (or similar) systems to Register Signaling Channel Simulator; * * * * * private line services for tie trunk type in the definition for Tie Trunk Voiceband: The voiceband for analog interfaces and off premises station lines. Transmission Interfaces, by removing interfaces is the frequency band from Services may only be added to this paragraph (c) 4-wire Conventional 200 Hz to 3995 Hz. section as a result of rulemaking Terminating Set (CTS); removing figures proceedings and equipment connected 68.3(a), 68.3(f), 68.3(g), 68.3(h), 68.3(i), * * * * * to such added services is afforded a 68.3(j), 68.3(k), 68.3(l) and 68.3(m) and Zero Level Decoder: The zero level reasonable transition period. adding in their place Figures 68.3(a), decoder shall comply with the u=255 * * * * * 68.3(f), 68.3(g), 68.3(h), 68.3(i), 68.3(j) PCM encoding law as specified in ITU– (d) Grandfathered private branch and 68.3(k). Figure references are TSS (CCITT) Rec. G.711 for voiceband exchange (or similar) systems for corrected in the following definitions: In encoding and decoding. See also Fig. connection to private line type services Local Area Data Channel Simulator, 68.3(j). (tie trunk type services, off-premises Figure 68.3(k) is revised to read Figure * * * * * station lines automatic identified 68.3(i), and in Loop Simulator Circuit, BILLING CODE 6712±01±P Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61655 61656 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61657 61658 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61659 61660 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61661 61662 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61663

BILLING CODE 6712±01±C 61664 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

§ 68.222 [Removed] telephone line surges, Type A and Type equipment, connected together. Surges 4. Section 68.222 is removed. B, shall be applied as specified in are applied as follows: 5. Section 68.300 is revised to read as paragraphs (b) and (c) of this section. (i) With the equipment in all states follows: Different failure criteria apply for each that can affect compliance with the surge type. requirements of this part 68. If an § 68.300 Labeling requirements. (a) Mechanical shock. (1) Hand-Held equipment state cannot be achieved by (a) Registered terminal equipment and Items Normally Used at Head Height: 18 normal means of power, it may be registered protective circuitry shall have random drops from a height of 1.5 achieved artificially; prominently displayed on an outside meters onto concrete covered with 3 (ii) With equipment leads not being surface the following information in the millimeters asphalt tile or similar surged (including telephone following format: surface. connections, auxiliary leads, and Complies With Part 68, FCC Rules (2) Table (Desk) Top Equipment 0–5 terminals for connection to non- registered equipment) terminated in a lllll kilograms: Six random drops from a FCC Registration Number: height of 750 millimeters onto concrete manner that occurs in normal use; llllllll Ringer Equivalence: covered with 3 millimeters asphalt tile (iii) Under reasonably foreseeable (b) Registered terminal equipment and or similar surface. disconnection of primary power registered protective circuitry shall also (3) The drop tests specified in the sources, as for example, with primary have the following identifying mechanical shock conditioning stresses power cords plugged and unplugged. information permanently affixed to it. shall be performed as follows: The unit Note to paragraph (b)(2): The surge shall (1) Grantee’s name. should be positioned prior to release to have an open circuit voltage waveform in (2) Model number, as specified in the ensure as nearly as possible that for accordance with Figure 68.302(b) with a front µ µ registration application. every six drops there is one impact on time (tf ) of 10 ms ( seconds) maximum and (3) Serial number or date of each of the major surfaces and that the a decay time (td) of 160 ms minimum, and manufacture. surface to be struck is approximately shall have a short circuit current waveshape in accordance with Figure 68.302(c) having a (4) Country of origin of the parallel to the impact surface. lllll front time (tf) of 10 ms maximum and a decay equipment: ‘‘Made in .’’ (b) Telephone Line Surge—Type A.— Required if the equipment is not time (td) of 160 ms minimum. The peak (1) Metallic. Apply two metallic voltage voltage shall be at least 1500 volts and the manufactured in the United States. surges (one of each polarity) between peak short circuit current shall be at least 200 (Country of origin shall be determined any pair of connections on which amperes. in accordance with 19 U.S.C. 1304 and lightning surges may occur; this regulations promulgated thereunder.) (3) Failure Modes resulting from includes: application of Type A telephone line (5) As used herein, permanently (i) Tip to ring; affixed means that the required surges. Regardless of operating state, (ii) Tip 1 to ring 1; and equipment and circuitry are allowed to nameplate data is etched, engraved, (iii) For a 4-wire connection that uses stamped, indelibly printed or otherwise be in violation of the longitudinal simplexed pairs for signalling, tip to balance requirements of § 68.310(b) and permanently marked. Alternatively, the ring 1 and ring to tip 1. required information may be (c) and, for terminal equipment permanently marked on a nameplate of Note to paragraph (b)(1). The surge shall connected to Local Area Data Channels, have an open circuit voltage waveform in metal, plastic, or other material fastened the longitudinal signal power accordance with Figure 68.302(b) having a requirements of § 68.308(f)(3), if: to the enclosure by welding, riveting, or µ front time (tf)) of 10 s maximum and a decay (i) Such failure results from an with a permanent adhesive. Such a µ time (td) of 560 s minimum, and shall have intentional, designed failure mode that nameplate must be able to last for the a short circuit current waveshape in has the effect of connecting telephone or expected lifetime of the equipment and accordance with Figure 68.302(c) having a auxiliary connections with earth must not be readily detachable. front time (tf) of 10 ms maximum and a decay µ ground; and, (6) When the device is so small or for time (td) of 560 s minimum. The peak (ii) If such a failure mode state is such use that it is not practical to place voltage shall be at least 800 volts and the reached, the equipment is designed so the statements specified in this section peak short circuit current shall be at least 100 amperes. Surges are applied: that it would become substantially and on it, the information required by noticeably unusable by the user, or an paragraphs (a) and (b) of this section (A) With the equipment in all states that can affect compliance with the requirements indication is given (e.g., an alarm), in shall be placed in a prominent location of this part 68. If an equipment state cannot order that such equipment can be in the instruction manual or pamphlet be achieved by normal means of power, it immediately disconnected or repaired. supplied to the user. The FCC may be achieved artificially; Registration Number and the Model (B) With equipment leads not being surged Note to paragraph (b)(3)(ii): The objective Number shall be displayed on the (including telephone connections, auxiliary of paragraph (b)(3)(ii) is to allow for safety device. leads, and terminals for connection to non- circuitry to either open-circuit, which would registered equipment) terminated in a cause a permanent on-hook condition, or to 6. Section 68.302 is revised to read as short-circuit to ground, as a result of an follows: manner that occurs in normal use; (C) Under reasonably foreseeable energetic lightning surge. Off-hook tests § 68.302 Environmental simulation. disconnection of primary power sources, would be unwarranted if the off-hook state cannot be achieved. A short to ground has with primary power cords plugged and Unpackaged Registered Terminal the potential for causing interference unplugged, if so configured. Equipment and Registered Protective resulting from longitudinal imbalance, and Circuitry shall comply with all the rules (2) Longitudinal. Apply two therefore designs must be adopted which will specified in this subpart, both prior to longitudinal voltage surges (one of each cause the equipment either to be and after the application of the polarity) from any pair of connections disconnected or repaired rapidly after such a mechanical and electrical stresses on which lightning surges may occur. state is reached, should it occur in service. specified in this section, This includes the tip-ring pair and the (c) Telephone Line Surge—Type B.— notwithstanding that certain of these tip 1—ring 1 pair, to earth grounding (1) Metallic. Apply two metallic voltage stresses may result in partial or total connections, and to all leads intended surges (one of each polarity) to destruction of the equipment. Both for connection to non-registered equipment between any pair of Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61665 connections on which lightning surges (C) Under reasonably foreseeable plugged and unplugged, if so may occur; this includes: disconnection of primary power sources, as configured. (i) Tip to ring; for example, with primary power cords plugged and unplugged. Note to paragraph (c)(2): For each output (ii) Tip 1 to ring 1; and lead of the surge generator, with the other (iii) For a 4-wire connection that uses (2) Longitudinal. Apply two lead open, the surge shall have an open simplexed pairs for signalling, tip to longitudinal voltage surges (one of each circuit voltage waveform in accordance with ring 1 and ring to tip 1. polarity) from any pair of connections Figure 68.302(b) having a front time (tf) of 9 µ ± µ ± Note to paragraph (c)(1): The surge shall on which lightning surges may occur. s ( 30%) and a decay time (td) of 720 s ( have an open circuit voltage waveform in This includes the tip-ring pair and the 20%) and shall have a short circuit current accordance with Figure 68.302(b) having a tip 1—ring 1 pair to earth grounding waveshape in accordance with Figure ± 68.302(c) having a front time (tf) of 5 µs front time (tf) of 9 ms ( 30%) and a decay connections and to all leads intended µ ± (±30%) and a decay time (td) of 320 µs time (td) of 720 s ( 20%) and shall have a for connection to non-registered (±20%). The peak voltage shall be at least short circuit current waveshape in equipment, connected together. Surges 1500 volts and the peak short circuit current accordance with Figure 68.302(c) having a are applied as follows: front time (tf) of 5 ms (±30%) and a decay shall be at least 37.5 amperes. The wave (i) With the equipment in all states time (td) of 320 µs (±20%). The peak voltage shapes are based on the use of ideal shall be at least 1000 volts and the peak short that can affect compliance with the components in Figure 68.302)(a) with S2 in circuit current shall be at least 25 amperes. requirements of this part 68. If an Position L. The wave shapes are based on the use of equipment state cannot be achieved by ideal components in Figure 68.302(a) with S2 normal means of power, it may be (3) Failure Modes resulting from in Position M. Surges are applied: achieved artificially. application of Type B telephone line (A) With the equipment in all states that (ii) With equipment leads not being surges. Registered terminal equipment can affect compliance with the requirements surged (including telephone and registered protective circuitry shall of this part 68. If an equipment state cannot connections, auxiliary leads, and be capable of withstanding the energy of be achieved by normal means of power, it terminals for connection to non- Surge Type B without causing may be achieved artificially. registered equipment) terminated in a permanent opening or shorting of the (B) With equipment leads not being surged manner that occurs in normal use. interface circuit and without sustaining (including telephone connections, auxiliary damage that will affect compliance with leads, and terminals for connection to non- (iii) Under reasonably foreseeable registered equipment) terminated in a disconnection of primary power these rules. manner that occurs in normal use. sources, with primary power cords BILLING CODE 6712±01±P 61666 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

BILLING CODE 6712±01±C Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61667

(d) Power Line Surge. (1) Apply six but excluding terminals for connection suppressor), may have the component power line surges (three of each to other terminal equipment; providing the conducting path removed from polarity) between the phase and neutral (d) All terminals for connection to the equipment for the leakage current test in terminals of the ac power line while the registered protective circuitry or non- that operational state. Components removed registered equipment; for this reason shall comply with the equipment is being powered. The surge requirements of § 68.306(e)(2). shall have an open circuit voltage (e) All auxiliary lead terminals; (f) All E&M lead terminals, and (5) Filter paths, such as capacitors used in waveform in accordance with Figure EMI filters, are left in place during leakage (g) All PR, PC, CY1 and CY2 leads. 68.302(b) having a front time (tf) of 2 µs current testing, since these components can maximum and a decay time (td) of 10 µs be a path for excessive leakage. minimum and shall have a short circuit TABLE 68.304(a).ÐVOLTAGE APPLIED (6) For multi-unit equipment current waveshape in accordance with FOR VARIOUS COMBINATIONS OF interconnected by cables, that is evaluated and registered as an interconnected Figure 68.302(c) with a front time (tf) of ELECTRICAL CONNECTIONS combination or assembly, the specified 10 2 µs maximum and a decay time (td) of mA peak maximum leakage current 10 µs minimum. The peak voltage shall Voltage source connected between: ac value1 limitation other than between power be at least 2500 volts and the peak short connection points and other points, may be circuit current shall be at least 1000 (a) and (b) (see NOTES 1, 2, 3) ...... 1500 increased as described here to accommodate amperes. Surges are applied: (a) and (c) (see NOTES 1, 2) ...... 1000 cable capacitance. The leakage current (i) With the equipment in all states (a) and (d) (see NOTES 1, 2) ...... 1000 limitation may be increased to (10N+0.13L) that can affect compliance with the (a) and (e) (see NOTES 1, 2) ...... 1000 mA peak where L is the length of requirements of this part 68. If an (a) and (f) (see NOTES 1, 2) ...... 1000 interconnecting cable in the leakage path in equipment state cannot be achieved by (a) and (g) (see NOTES 1, 2) ...... 1000 meters and N is the number of equipment normal means of power, it may be (b) and (c) (see NOTE 3) ...... 1500 units that the combination or assembly will (b) and (d) (see NOTE 3) ...... 1500 achieved artificially; place in parallel across a telephone (b) and (e) (see NOTE 3) ...... 1500 connection. (ii) With equipment leads not being (b) and (f) (see NOTE 3) ...... 1500 (7) RF filters and surge protectors on the surged (including telephone (b) and (g) (see NOTE 3) ...... 1500 line side of power supplies may be connections, auxiliary leads, and (c) and (e) (see NOTES 1, 2) ...... 1000 disconnected before making § 68.304 leakage terminals for connection to non- (c) and (f) (see NOTES 1, 2) ...... 1000 measurements. As an alternative to registered/non-certified equipment) (d) and (e) (see NOTE 2) ...... 1000 disconnecting these filters and surge terminated in a manner which occurs in (d) and (f) (see NOTE 2) ...... 1000 protectors, this measurement may be made normal use. (e) and (f) (see NOTE 2) ...... 1000 using a dc voltage equal to the peak ac test voltage. (2) Failure Modes resulting from 1 Value to which test voltage is gradually in- application of power line surge. creased. 9. Section 68.306 is revised to read as Registered terminal equipment and Notes to Table 68.304(a): follows: registered protective circuitry shall (1) Gradually increase the voltage from comply with all the criteria contained in zero to the values listed in Table 68.304(a) § 68.306 Hazardous voltage limitations. the rules and regulations in this subpart, over a 30-second time period, then maintain (a) General. Under no condition of both prior to and after the application of the voltage for one minute. The current in the failure of registered terminal equipment the power line surge specified in mesh formed by the voltage source and these or registered protective circuitry that points shall not exceed 10 mA peak at any paragraph (d )of this section, not can be conceived to occur in the withstanding that this surge may result time during this 90-second interval. (2) Equipment states necessary for handling, operation or repair of such in partial or total destruction of the compliance with the requirements of this equipment or circuitry, shall the open equipment under test. section that cannot be achieved by normal circuit voltage on telephone connections 8. Section 68.304 is revised to read as means of power shall be achieved artificially exceed 70 volts peak after one second, follows: by appropriate means. except for voltages for network control (3) A telephone connection, auxiliary lead, signalling, alerting and supervision. § 68.304 Leakage current limitations. or E&M lead that has an intentional dc Registered terminal equipment and conducting path to earth ground at (1) Type I E&M Leads. Registered registered protective circuitry shall have operational voltages (such as a ground start terminal equipment shall comply with a voltage applied to the combination of lead), may be excluded from the leakage the following requirements for terminal points listed in the table below. The test current test in that operational state. Leads or equipment on the ‘‘A’’ or ‘‘B’’ side of the voltage shall be ac of 50 or 60 Hz rms. connections excluded for this reason shall interface as shown in Figures 68.3(e)(i): comply with the requirements of (a) All telephone connections; (i) The dc current on the E lead shall § 68.306(e)(1). not exceed 100 mA. (b) All power connections; (4) A telephone connection, auxiliary lead, (c) All possible combinations of or E&M lead that has an intentional dc (ii) The maximum dc potentials to exposed conductive surfaces on the conducting path to earth ground for ground shall not exceed the following exterior of such equipment or circuitry protection purposes at the leakage current when measured across a resistor of 20 including grounding connection points, test voltage (such as through a surge kohms ±10%:

TABLE 68.306(a).ÐTYPE I E&M, DC POTENTIALS

E lead M lead

TE on ``B'' side originates signals to network ±5 V ...... ±5 V. on E lead. TE on ``A'' side originates signals to network ¥56.5 V; no positive potential with respect to ¥56.5 V; no positive potential with respect to on M lead. ground. ground.

(iii) The maximum ac potential between E&M leads and ground reference shall not exceed 5V peak. (iv) M lead protection shall be provided so that voltages to ground do not exceed 60 volts. For relay contact implementation, a power dissipation capability of 0.5 watt shall be provided in the shunt path. 61668 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

(v) If the registered terminal equipment contains an inductive component in the E lead, it must assure that the transient voltage across the contact as a result of a relay contact opening does not exceed the following voltage and duration limitations: (A) 300 volts peak, (B) A rate of change of one volt per microsecond, and (C) A 60-volt level after 20 milliseconds. (2) Type II E&M Leads. Registered terminal equipment shall comply with the following requirements: (i) For terminal equipment on the ‘‘A’’ side of the interface, the dc current in the E lead shall not exceed 100 mA. The maximum ac potential between the E lead and ground shall not exceed 5 V peak. (ii) For terminal equipment on the ‘‘B’’ side of the interface, the dc current in the SB lead shall not exceed 100 mA. The maximum ac potential between the SB lead and ground shall not exceed 5 V peak. (iii) The maximum dc potentials to ground shall not exceed the following when measured across a resistor of 20 kohms ±10%:

TABLE 68.306(b).ÐTYPE II E&M, DC POTENTIALS

E lead M lead SB lead SG lead

TE on ``B'' side of the interface origi- ±5 V ...... ±5 V ¥56.5 V; no positive potential with ±5 V. nates signals to network on E lead. respect to ground. TE on ``A'' side of the interface origi- ¥56.5 V; no positive potential with ±5 V ±5 V ...... ±5 V. nates signals to network on M lead. respect to ground.

(iv) The maximum ac potential to supervisory purposes must be negative (iv) Combined ac and dc voltages ground shall not exceed 5V peak on the with respect to ground, shall not be between any conductor and ground are following leads, from sources in the more than ¥56.5 volts dc with respect less than 42.4 volt peak when the terminal equipment: to ground, and shall not have a absolute value of the dc component is (A) M, SG and SB leads for terminal significant ac component.2 less than 21.2 volts, and less than (32.8 equipment on the ‘‘A’’ side of the (5) Local Area Data Channel + 0.454 × Vdc) when the absolute value interface. Interfaces. For Local Area Data Channel of the dc component is between 21.2 (B) E, SG and M leads for terminal interfaces, during normal operating and 60 volts. equipment on the ‘‘B’’ side of the modes including terminal equipment (6) Ringdown Voiceband Private Line interface. initiated maintenance signals, registered and Voiceband Metallic Channel (v) If the registered terminal terminal equipment shall ensure, except Interface. During normal operation, equipment contains an inductive during the application of ringing registered terminal equipment for component in the (E) or (M) lead, it (limitations specified in paragraph (d) of connection to ringdown voiceband must assure that the transient voltage this section), with respect to telephone private line interfaces or voiceband across the contact as a result of a relay connections (tip, ring, tip 1, ring 1) that: metallic channel interfaces shall ensure contact opening does not exceed the (i) Under normal operating that: following voltage and duration conditions, the rms current per (i) Ringing voltage does not exceed limitations: conductor between short-circuit the voltage and current limits specified (A) 300 volts peak, conductors, including dc and ac in paragraph (d) of this section, and is: (B) A rate of change of one volt per components, does not exceed 350 (A) Applied to the ring conductor microsecond, and milliamperes. For other than normal with the tip conductor grounded for 2- (C) A 60-volt level after 20 operating conditions, the rms current wire interfaces, or milliseconds. between any conductor and ground or (B) Simplexed on the tip and ring (3) Off premises station voltages. (i) between short-circuited conductors, conductors with ground simplexed on Talking battery or voltages applied by including dc and ac components, may the tip 1 and ring 1 conductors for 4- the PBX (or similar systems) to all exceed 350 milliamperes for no more wire interfaces. classes of OPS interface leads for than 1.5 minutes; (ii) Except during the signaling mode supervisory purposes must be negative (ii) The dc voltage between any or for monitoring voltage, there is no with respect to ground, shall not be conductor and ground does not exceed significant positive dc voltage (not over more than ¥56.5 volts dc with respect 60 volts. Under normal operating +5 volts) with respect to ground: to ground, and shall not have a conditions it shall not be positive with (A) For 2-wire ports between the tip significant ac component.1 respect to ground (though positive lead and ground and the ring lead and (ii) Ringing signals applied by the voltages up to 60 volts may be allowed ground and PBX (or similar systems) to all classes of during brief maintenance states); (B) For 4-wire ports between the tip OPS interface leads shall comply with (iii) AC voltages are less than 42.4 lead and ground, the ring lead and requirements in paragraph (d) of this volts peak between any conductor and ground, the tip 1 lead and ground, and section. Ringing voltages shall be ground, (terminal equipment shall the ring 1 lead and ground. applied between the ring conductor and comply while other interface leads are (iii) The dc current per lead, under ground. both): short circuit conditions shall not exceed (4) Direct Inward Dialing (DID). (A) Unterminated, and 140 milliamperes. Voltages applied by the PBX (or similar (B) Individually terminated to (b) Connection of non-registered systems) to DID interface leads for ground); and, equipment to registered terminal equipment or registered protective 1 The ac component should not exceed 5 volts 2 The ac component shall not exceed 5 volts peak, circuitry.—General. Leads to, or any peak, when not otherwise controlled by § 68.308. where not otherwise controlled by § 68.308. elements having a conducting path to Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61669 telephone connections, auxiliary leads 21.2 volts and less than (32.8 + 0.454 × shall include a current-sensitive ring or E&M leads shall: V dc) when the absolute value of the dc trip device in series with the ring lead (1) Be reasonably physically separated component is between 21.2 and 60 that will trip ringing as specified in and restrained from and be neither volts. Figure 68.306(a) in accordance with the routed in the same cable as nor use the (d) Ringing Sources. Except for class following conditions: same connector as leads or metallic A OPS interfaces, ringing sources shall (A) If the ring trip device operates as paths connecting power connections; meet all of the following restrictions: specified in Figure 68.306(a) with (2) Be reasonably physically separated (1) Ringing Signal Frequency. The R=500 ohm (and greater) no monitoring and restrained from and be neither ringing signal shall use only frequencies voltage is required; routed in the same cable as nor use whose fundamental component is equal (B) If, however, the ring trip device adjacent pins on the same connector as to or below 70 Hz. only operates as specified in Figure metallic paths to lead to nonregistered (2) Ringing Signal Voltage. The 68.306(a) with R=1500 ohm (and equipment, when specification details ringing voltage shall be less than 300 V greater) then the ringing voltage source provided to the Commission, pursuant peak-to-peak and less than 200 V peak- shall also provide a monitoring voltage to, § 68.200(g), do not show that to-ground across a resistive termination between 19 V dc and 56.5 V dc, negative interface voltages are less than non- of at least 1 megohm. with respect to ground, on the tip or hazardous voltage source limits in (3) Ringing Signal Interruption Rate. ring conductor. paragraph (c) of this section. The ringing voltage shall be interrupted (iii) If the ringing current through a (c) Non-Hazardous Voltage Source. A to create quiet intervals of at least one 500-ohm (and greater) resistor exceeds voltage source is considered a non- second (continuous) duration each 100 mA (peak-to-peak) but does not hazardous voltage source if it conforms separated by no more than 5 seconds. exceed 100 mA peak-to-peak with 1500- with the requirements of § 68.302, During the quiet intervals, the voltage to ohm (and greater) termination, the § 68.304 and paragraph (b) of this ground shall not exceed the voltage ringing voltage source shall include section, with all connections to the limits given in paragraph (a)(3)(i) of this either a ring trip device that meets the source other than primary power section. operating characteristics specified in connections treated as ‘‘telephone (4) Ringing Signal Sources. Ringing Figure 68.306(a) with 500-ohm (and connections,’’ and if such source voltage sources shall comply with the greater) resistor, or a monitoring voltage supplies voltages no greater than the following requirements: as specified in paragraph (d)(4)(ii)(B) of following under all modes of operation (i) If the ringing current through a 500 this section. and of failure: ohm(s) (and greater) resistor does not Note to paragraph (d)(4)(iii): If the (1) AC voltages less than 42.4 volts exceed 100 mA peak-to-peak, neither a operating characteristics specified in Figure peak; ring trip device nor a monitoring voltage 68.306(a) are not met with both the 500-ohm (2) DC voltages less than 60 volts; and are required. and 1500-ohm terminations, then the (3) Combined ac and dc voltages less (ii) If the ringing current through a terminal equipment under test fails (See than 42.4 volts peak when the absolute 1500 ohm (and greater) resistor exceeds Table 68.306(c)). value of the dc component is less than 100 mA peak-to-peak, the ringing source BILLING CODE 6712±01±P 61670 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

BILLING CODE 6712±01±C Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61671

TABLE 68.306(C).ÐSUMMARY OF RING TRIP REQUIREMENTS

Ringing current (mA p.p) Function required Section 68.306 (d)(4). R=500 R=1500 Ring trip device operates per figure ohms and ohms and Ring trip Monitor voltage 68.306(a) greater greater

(i) ...... <100 <100 Optional ...... Optional ...... Optional. (ii)(A) ...... N/A >100 Yes ...... Optional ...... Yes for both resistances. (ii)(B) ...... N/A >100 Yes ...... Yes ...... Yes for R=1500 ohms and greater. No for R=500 ohms and greater. (iii) ...... >100 <100 Either Ring-Trip device or Monitor Yes for R=500 ohms and greater, if Voltage required Ring Trip Device is used.

(e) Intentional paths to ground (as 10. Section 68.308 is revised to read voice signals delivered to a 600 ohm required by § 68.304). (1) Connections as follows: termination shall not exceed ¥13 dBm with operational paths to ground. when averaged over any 3-second Registered terminal equipment and § 68.308 Signal power limitations. interval. registered protective circuitry having an (a) General. Limits on signal power (vi) For voiceband private lines using intentional dc conducting path to earth shall be met at the interface for all 2- inband signaling in the band 2600 ± 150 ground at operational voltages that was wire network ports and, where Hz, the maximum power delivered to a excluded during the leakage current test applicable to offered services, both 600 ohm termination shall not exceed of § 68.304 shall have a dc current transmit and receive pairs of all 4-wire ¥8 dBm during the signaling mode. The source applied between the following network ports. Signal power maximum power delivered to a 600 ohm points: measurements shall be made using termination in the on-hook steady state (i) Telephone connections, including terminations as specified in each of the supervisory condition shall not exceed tip, ring, tip 1, ring 1, E&M leads and following limitations. The transmit and ¥20 dBm. The maximum power of auxiliary leads, and receive pairs for 4-wire network ports other than live voice signals delivered to (ii) Earth grounding connections. shall be measured with the pair not a 600 ohm termination during the non- under test connected to a termination signaling mode and for other inband Note to paragraphs (e)(1)(i) and (e)(1)(ii): equivalent to that specified for the pair systems shall not exceed ¥13 dBm For each test point, gradually increase the under test. Through gain limitations current from zero to 1 ampere, then maintain when averaged over any 3-second the current for one minute. The voltage apply only in the direction of interval. between (e)(2)(i) and (e)(2)(ii) of this section transmission toward the network. (2) Limitations on internal signal shall not exceed 0.1 volt at any time. (b) Voiceband metallic signal power. sources primarily intended for network Note to paragraphs (e)(2)(i) and (e)(2)(ii): (1) Limitations at the interface on control signaling, contained in voice (1) In the event there is a component or internal signal sources not intended for and data equipment. circuit in the path to ground, the requirement network control signaling: (i) For all operating conditions of shall be met between the grounded side of (i) The power of all signal energy, in registered terminal equipment and the component or circuit and the earth the 200–3995 Hz voiceband, delivered registered protective circuitry, the grounding connection. by registered terminal equipment or maximum power in the frequency band (2) Connections with protection paths to registered protective circuitry to the ground. Registered terminal equipment and below 3995 Hz delivered to a loop protective circuitry having an intentional dc appropriate loop simulator—other than simulator circuit shall not exceed the conducting path to earth ground for non-permissive data equipment or data following when averaged over any 3- protection purposes at the leakage current protective circuitry shall not exceed ¥9 second interval: test voltage that was removed 1 during the dBm when averaged over any 3 second (A) 0 dBm when used for network leakage current test of § 68.304 shall, upon its interval. control (DTMF); replacement, have a 50 or 60 Hz voltage (ii) For 2-wire and 4-wire lossless tie (B) 0 dBm when DTMF is used for source applied between the following points: trunk type interfaces, the maximum manual entry end-to-end signaling. (i) Simplexed telephone connections, power of other than live voice signals When the device is used for this including tip and ring, tip 1 and ring 1, E&M delivered to a 600-ohm termination leads and auxiliary leads, and purpose it shall not generate more than (ii) Earth grounding connections. shall not exceed ¥15 dBm when 40 DTMF digits per manual key stroke. (3) Gradually increase the voltage from averaged over any three second interval. (C) ¥9 dBm in all other cases. zero to 120 volts rms for registered terminal (iii) For OPS lines, the maximum (ii) For tie trunk applications, the equipment, or 300 volts rms for protective power of other than live voice delivered maximum power delivered to a 600 ohm circuitry, then maintain the voltage for one to an OPS line simulator circuit shall termination for registered terminal minute. The current between not exceed ¥9 dB with respect to one equipment and registered protective §§ 68.306(d)(4)(i) and 68.306(d)(4)(ii) shall milliwatt, when averaged over any 3- circuitry under all operating conditions not exceed 10 mA peak at any time. As an second interval. shall not exceed ¥4 dBm over any 3 alternative to carrying out this test on the (iv) For registered test equipment or second interval. complete equipment or device, the test may registered test circuitry the maximum (3) Registered one port and multiport be carried out separately on components, subassemblies, and simulated circuits, signal power delivered to a loop terminal equipment and protective outside the unit, provided that the test results simulator circuit shall not exceed 0 dBm circuitry with provision for through would be representative of the results of when averaged over any 3-second transmission from other terminal testing the complete unit. interval. equipment, excluding data equipment (v) For voiceband private lines using and data protective circuitry that are 1 The path to ground is reestablished when the ringdown or inband signaling the registered in accordance with leads are replaced. maximum power of other than live § 68.308(b)(4). 61672 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

(i) Where through-transmission (i) Data circuit terminal equipment TABLE 68.308(a)ÐContinued equipment provides a dc electrical intended to operate with a programming signal to equipment connected resistor for signal level control shall not Pro- therewith (e.g., for powering of electro- exceed the programmed levels given in grammed data acoustic transducers), dc conditions Table 68.308(a). Programming resistor (Rp)* equip- shall be provided which fall within the (ii) Data circuit terminal equipment (ohms) ment sig- range of conditions provided by a loop intended to operate in the fixed loss nal power simulator circuit unless the combination loop (FLL) state shall not transmit signal output power that exceeds ¥4 dBm, in the of the through-transmission equipment 1240 ...... ¥5 dBm. and equipment connected therewith is 200—3995 Hz voiceband, when 1780 ...... ¥6 dBm. registered as a combination which averaged over any and all 3 second 2520 ...... ¥7 dBm. conforms to paragraphs (b)(1) and (b)(2) intervals. 3610 ...... ¥8 dBm. of this section. (iii) Data circuit terminal equipment 5490 ...... ¥9 dBm. shall not transmit signals from 200 to (ii) Through-transmission equipment 3995 Hz that exceed ¥9 dBm, when *Tolerance ) 1%. to which remotely connected data averaged over any and all 3 second (5) Registered one-port and multiport terminal equipment may be connected intervals. terminal equipment and protective shall not be equipped with or connected circuitry with provision for through- to either a Universal or Programmed TABLE 68.308(a) transmission from ports to other Data Jack used in data configurations. equipment which is separately (See paragraph (b)(4) of this section and Pro- registered for the public switched § 68.502(e)). grammed network, or ports to other network data (4) Registered data circuit terminal Programming resistor (Rp)* equip- interfaces. equipment shall be capable of operation (ohms) ment sig- (i) Registered terminal equipment and in at least one of the states discussed in nal power registered protective circuitry shall have paragraphs (b)(1)(i), (b)(1)(ii) or output no adjustments that will allow net (b)(1)(iii) of this section. The output Short ...... 0 dBm. amplification to occur in either power level of the data circuit terminal 150 ...... ¥1 dBm. direction of transmission in the through- equipment shall not be alterable, by the 336 ...... ¥2 dBm. transmission path within the 200–3995 customer, to levels which exceed the 569 ...... ¥3 dBm. Hz voiceband that will exceed the signal power limits specified herein. 866 ...... ¥4 dBm. following:

TABLE 68.308(b).ÐALLOWABLE NET AMPLIFICATION BETWEEN PORTS (A)(C)(D)(E)

To Tie trunk type ports Public Integrated OPS ports switched HCC digi- Subrate Subrate services (2-wire) network tal PBX± 2 1.544 1.544 From (E) ¤4-wire Mbps sat- Mbps tan- trunk (B) ports CO 4-wire ellite 4W dem 4W (2-wire)

2¤4-Wire Tie ...... 0 dB 3 dB 3 dB 3 dB 6 dB Subrate 1.544 Mbps Satellite 4W Tie ...... 0 dB 3 dB 3 dB 6 dB Subrate 1.544 Mbps Tandem 4W Tie ...... ¥3 dB 0 dB 0 dB 0 dB 3 dB Integrated Services Trunk ...... ¥3 dB 0 dB 0 dB 0 dB 3 dB RTE Digital ...... 0 dB 0 dB 0 dB 0 dB 3 dB 3 dB 0 dB. RTE (B) PSTN/OPS ...... ¥3 dB ¥3 dB ¥3 dB ¥3 dB 0 dB 0 dB ¥3 dB OPS (B) (2-Wire) ...... ¥2 dB 1 dB 1 dB 1 dB 4 dB 4 dB 1 dB. Public Switched Network (2-Wire) ...... 3 dB 3 dB HCC Digital PBX±CO (4-Wire) ...... 3 dB

(A) The source impedance for all (D) Registered terminal equipment ensure that the absolute signal power measurements shall be 600 ohms. All and registered protective circuitry may levels specified in this section, for each ports shall be terminated in appropriate have net amplification exceeding the telephone network interface type to be loop or private line channel simulator limitations of this subsection provided connected, are not exceeded. circuits or 600 ohm terminations. that, for each network interface type to (G) Registered terminal equipment or (B) These ports are for 2-wire on- be connected, the absolute signal power protective circuitry with the capability premises station ports to separately levels specified in this section are not for through transmission from registered terminal equipment. exceeded. voiceband private line channels or (C) These through gain limitations are (E) The indicated gain is in the voiceband metallic private line channels applicable to multiport systems where direction that results when moving from to other telephone network interfaces channels are not derived by time or the horizontal entry toward the vertical shall assure, for each telephone network frequency compression methods. entry. interface type to be connected, that Terminal equipment employing such (F) Registered terminal equipment or signals with energy in the 2450 to 2750 compression techniques shall assure protective circuitry with the capability Hz band are not through transmitted that equivalent compensation for for through transmission from unless there is at least an equal amount through gain parameters is voiceband private line channels or of energy in the 800 to 2450 Hz band demonstrated in the registration voiceband metallic channels to other within 20 milliseconds of application of application. telephone network interfaces shall signal. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61673

(ii) The insertion loss in through dB (maximum loss in the 800 to 2450 conditions of registered terminal connection paths for any frequency in Hz band minus minimum loss in the equipment and registered protective the 800 to 2450 Hz band shall not 2450 to 2750 Hz band plus 1 dB). circuitry, the following limitations shall exceed the loss at any frequency in the (6) For tie trunk interfaces— be met: Limitation on idle circuit stability 2450 to 2750 Hz band by more than 1 (i) For the two-wire interface: parameters. For idle state operating

 log(f /200 )  log(2 . 5 )  9− 3 dB; for 200 Hz ≤ f ≤ 500 Hz RL ≥   6dB; for 500 Hz≤ f ≤ 3200 Hz  (ii) For the four-wire lossless interface:

 log(f /200 )  log(2 . 5 ) 10− 4 dB; for 200 Hz ≤ f ≤ 500 Hz ≥ t1f   6dB; for 500 Hz≤ f ≤ 3200 Hz  > t1r 40 dB ≥ RLi, RL o 3 dB

Note: The following definitions apply to Ii (1) Power resulting from internal return loss requirements: t1∆ 20 log r 10 I signal sources contained in registered RL the return loss of 2-wire terminal r protective circuitry and registered equipment at the interface with respect Where Ii is the current sent into the transmit terminal equipment (voice and data), µ to 600 ohms+2.16 F (i.e., Zref=600 port and Ir is the current received at the not intended for network control ohms+2.16 µF). receive port terminated at 600 ohms. signaling. For all operating conditions of Note, the source impedance of Ii is 600 registered terminal equipment and ohms. + registered protective circuitry that ZZPBX ref (7) Registered terminal equipment and RL ∆ 20 log incorporate signal sources other than 10 ZZ− registered protective circuitry shall sources intended for network control PBX ref provide the following range of dc signaling, the maximum power Rli the terminal equipment input (receive) conditions to off-premises station (OPS) delivered by such sources in the 3995– port return loss with respect to 600 ohms lines. 4005 Hz band to an appropriate (i.e., Zref=600 ohms). (i) DC voltages applied to the OPS simulator circuit, shall be 18 dB below interface for supervisory purposes and maximum permitted power specified in paragraph (b) of this section for the ZZ+ during network control signaling shall RL ∆ 20 log PBX() input ref meet the limits specified in voiceband. i 10 − (2) Terminal equipment with ZZPBX() input ref § 68.306(a)(3)(i). (ii) DC voltages applied to the OPS provision of through-transmission from RLo the terminal equipment output interface during the talking state shall other equipment. The loss in any (transmit) port return loss with respect to through-transmission path of registered 600 ohms (i.e., Zref=600 ohms). meet the following requirements: (A) The maximum open circuit terminal equipment and registered voltage across the tip (T(OPS)) and ring protective circuitry at any frequency in + the 600 to 4000 Hz band shall not ZZPBX() output ref (R(OPS)) leads for all classes shall not RL ∆ 20 log exceed 56.5 volts, and exceed, by more than 3 dB, the loss at o 10 − any frequency in the 3995 to 4005 Hz ZZPBX() output ref (B) Except for class A OPS interfaces, band, when measured into an the maximum dc current into a short tl the transducer loss between the receive appropriate simulator circuit from a and transmit ports of the 4-wire PBX. tlf circuit across tip (T(OPS)) and ring source that appears as 600 ohms across is the transducer loss in the forward (R(OPS)) leads shall not exceed 140 mA. tip and ring. direction from the receive port to the (8) For connections to 1.544 Mbps transmit port of the PBX. (d) Longitudinal voltage at digital services, the permissible code frequencies below 4 kHz. The weighted words for unequipped Mu-255 encoded rms voltage 3 averaged over 100 subrate channels are limited to those milliseconds that is resultant of all of ∆ Ii corresponding to signals of either t1f 20 log10 the component longitudinal voltages in I r polarity, of magnitude equal to or less the 100 Hz to 4 kHz band after than X48, where code word, XN is Where Ii is the current sent into the receive weighting according to the transfer derived by: port and Ir is the current received at the transmit port terminated at 600 ohms. XN = (255 – N) base 2 3 Average magnitudes may be used for signals that have peak-to-rms ratios of 20 dB and less. The rms tlr is the transducer loss in the reverse ¥XN = (127 – N) base 2 limitations must be used instead of average values direction, from the transmit port to the (c) Signal power in the 3995–4005 Hz receive port of the PBX. if the peak-to-rms ratio of the interfering signal frequency band. exceeds this value. 61674 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations function of f/4000 where f is the (e) Voltage in the 4 kHz to 6 MHZ this section shall not exceed the frequency in Hertz, shall not exceed the frequency range-general case—2-wire maximum indicated below. For maximum indicated under the and 4-wire lossless interface (except paragraphs(e)(1) and (e)(2)(i) of this conditions stated in paragraph (g) of this LADC). Except as noted, rms voltage as section, ‘‘f’’ is the center frequency in section. averaged over 100 milliseconds at the kHz of each of the possible 8-kHz bands telephone connections of registered beginning at 8 kHz. Maximum terminal equipment and registered (1) Metallic Voltage. 4 kHz to 270 Frequency range weighted Impedance rms volt- protective circuitry in all of the possible kHz: age 8 kHz bands within the indicated frequency range and under the 100 Hz to 4 kHz ...... ¥30 dBV 500 ohms. conditions specified in paragraph (g) of

Metallic Center frequency (f) of 8 kHz band Max voltage in all 8 kHz bands terminating impedance

8 kHz to 12 khz ...... ¥(6.4 + 12.6 log f) dBV ...... 300 ohms. 12 kHz to 90 kHz ...... 135 ohms. 90 kHz to 266 kHz ...... (23±40 log f) dBV ¥55 ...... 135 ohms.

(2) Longitudinal voltage. (i) 4 kHz to 270 kHz. (ii) 270 kHz to 6 MHZ. The rms value of the longitudinal voltage components in the frequency range of 270 kHz to 6 MHZ, shall not exceed ¥30 dBV. This limitation applies with a longitudinal termination having an impedance of 90 ohms.

Longitu- dinal termi- Center frequency (f) of 8 kHz band Max voltage in all 8 kHz bands nating im- pedance

8 kHz to 12 kHz ...... ¥(18.4 + 20 log f) dBV ...... 500 ohms 12 kHz to 42 kHz ...... 90 ohms 42 kHz to 266 kHz (2¥40 log f) dBV ¥62 dBV ...... 90 ohms

(f) LADC interface. The metallic all the component metallic voltages in center frequencies and under the voltage shall comply with the general the band after weighting according to conditions specified in paragraph (g) of requirements in paragraph (f)(1) of this the transfer function of f/4000 where f this section shall not exceed the section as well as the additional is the frequency in Hertz, shall not maximum indicated below: requirements specified in paragraphs exceed the maximum indicated below (f)(2) and (f)(3) of this section. The under the conditions stated in Max volt- requirements apply under the paragraph (g) of this section. Center freq (f) of all 100-Hz bands age in all conditions specified in paragraph (g) of 100-Hz bands this section. Terminal equipment for Maximum Frequency range voltage which the magnitude of the source and/ 4.05 kHz to 4.6 kHz ...... 0.5 dBV. or terminating impedance exceeds 300 10 Hz to 4 kHz ...... +3 dBV. 4.60 kHz to 5.45 kHz ...... (59.2Ð90 ohms, at any frequency in the range of log f) 100 kHz to 6 MHz, at which the signal (ii) RMS Voltage in 100 Hz bands in dBV. (transmitted and/or received) has the frequency range 0.7 kHz to 4 kHz. 5.45 kHz to 59.12 kHz ...... (7.6Ð20 significant power, shall be deemed not The rms metallic voltage averaged over log f) to comply with these requirements. A dBV. 100 milliseconds in the 100-Hz bands 59.12 kHz to 266.00 kHz ...... (43.1Ð40 signal is considered to have ‘‘significant having center frequencies between 750 power’’ at a given frequency if that log f) Hz and 3950 Hz shall not exceed the dBV. frequency is contained in a designated maximum indicated below. set of frequency bands that collectively have the property that the rms voltage Where f = center frequency in kHz of each Max volt- of the possible 100 Hz bands. of the signal components in those bands Center freq (f) of 100-Hz bands age in all is at least 90% of the rms voltage of the 100-Hz bands (ii) 8-kHz bands over frequency range total signal. The designated set of of 4 kHz to 270 kHz. The rms voltage frequency bands must be used in testing 750 to 3950 Hz ...... ¥6 dBV. as averaged over 100 milliseconds in all all frequencies. of the possible 8-kHz bands between 4 (1) Metallic voltages—frequencies (2) Metallic Voltages—frequencies kHz and 270 kHz for the indicated range below 4 kHz. above 4 kHz—LADC interface. of center frequencies and under the (i) Weighted rms voltage in the 10 Hz (i) 100-Hz bands over frequency range conditions specified in paragraph (g) of to 4 kHz frequency band. The weighted of 4 kHz to 270 kHz. The rms voltage this section shall not exceed the rms metallic voltage in the frequency as averaged over 100 milliseconds in all maximum indicated below: band from 10 Hz to 4 kHz, averaged over possible 100-Hz bands between 4 kHz 100 milliseconds that is the resultant of and 270 kHz for the indicated range of Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61675

Center freq (f) of 8- Max voltage in all 8- (iv) Peak Voltage. The total peak (i) Frequencies below 4 kHz. The kHz bands kHz bands voltage for all frequency components in weighted rms voltage in the frequency the 4 kHz to 6 MHZ band shall not band from 10 Hz to 4 kHz,averaged over 8 kHz to 120 kHz ...... (17.6Ð20 log f) dBV. exceed 4.0 volts. 100 milliseconds is the resultant of all 120 kHz to 266 kHz .. (59.2Ð40 log f) dBV. (3) Longitudinal voltage. Frequencies the component longitudinal voltages in the band after weighing according to the below 4kHz: The weighted rms voltage Where f = center frequency in kHz of each transfer function of f/4000, where f is in the frequency band from 10 Hz to 4 of the possible 8-kHz bands. the frequency in Hz, shall not exceed kHz,averaged over 100 milliseconds is the maximum indicated below under (iii) RMS Voltage at frequencies above the resultant of all the component 270 kHz. The rms value of the metallic the conditions stated in paragraph (g) of longitudinal voltages in the band after this section. voltage components in the frequency weighing according to the transfer range of 270 kHz to 6 MHZ, averaged function of f/4000, where f is the Frequency range Maximum over 2 microseconds, shall not exceed frequency in Hz, shall not exceed the RMS voltage -15 dBV. This limitation applies with a maximum indicated below under the metallic termination having an conditions stated in paragraph (g) of this 10 Hz±4 kHz ...... ¥37 dBV. impedance of 135 ohms. section. (ii) 4 kHz to 270 kHz.

Longitu- dinal termi- Ctr freq (f) of 8 kHz bands Max voltage in all 8 kHz bands nating im- pedance

8 to 12 kHz ...... ¥(18.4+20 log f) dBV ...... 500 ohms. 12 to 42 kHz ...... (3±40 log f) dBV ...... 90 ohms 42 to 266 kHz ...... ¥62 dBV ...... 90 ohms. Where f = center frequency in kHz of each of the possible 8-kHz bands. (iii) 270 kHz to 6 MHZ. The rms value of the longitudinal voltage components in the frequency range of 270 kHz to 6 MHZ shall, averaged over 2 microseconds, not exceed ¥30 dBV. This limitation applies with a longitudinal termination having an impedance of 90 ohms. (d) Longitudinal voltage at frequencies below 4 kHz. The weighted rms voltage 4 averaged over 100 milliseconds that is resultant of all of the component longitudinal voltages in the 100 Hz to 4 kHz band after weighting according to the transfer function of f/4000 where f is the frequency in Hertz, shall not exceed the maximum indicated under the conditions stated in § 68.308(g).

Frequency range Maximum weighted rms voltage Impedance

100 Hz to 4 kHz ...... ¥30 dBV ...... 500 ohms.

(e) Voltage in the 4 kHz to 6 MHZ frequency range—general case—2-wire and 4-wire lossless interface (except LADC). Except as noted, rms voltage as averaged over 100 milliseconds at the telephone connections of registered terminal equipment and registered protective circuitry in all of the possible 8 kHz bands within the indicated frequency range and under the conditions specified in paragraph (g) of this section shall not exceed the maximum indicated below. For paragraph (e)(1) and paragraph (e)(2)(i) of this section, ‘‘f’’ is the center frequency in kHz of each of the possible 8-kHz bands beginning at 8 kHz. (1) Metallic Voltage. 4 kHz to 270 kHz:

Metallic Center frequency (f) of 8 kHz band Max voltage in all 8 kHz bands terminating impedance

8 kHz to 12 kHz ...... ¥(6.4 + 12.6 log f) dBV ...... 300 ohms. 12 kHz to 90 kHz ...... (23±40 log f) dBV ...... 135 ohms. 90 kHz to 266 kHz ...... ¥55 dBV ...... 135 ohms.

(2) Longitudinal voltage (i) 4 kHz to 270 kHz. (ii) 270 kHz to 6 MHZ. The rms value of the longitudinal voltage components in the frequency range of 270 kHz to 6 MHZ, shall not exceed ¥30 dBV. This limitation applies with a longitudinal termination having an impedance of 90 ohms.

Longitu- dinal termi- Center frequency (f) of 8kHz band Max voltage in all 8 kHz bands nating im- pedance

8 kHz to 12 kHz ...... ¥(18.4 + 20 log f) dBV ...... 500 ohms. 12 kHz to 42 kHz ...... (2±40 log f) dBV ...... 90 ohms.

4 Average magnitudes may be used for signals that have peak-to-rms ratios of 20 dB and less. The rms limitations must be used instead of average values if the peak-to-rms ratio of the interfering signal exceeds this value. 61676 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

Longitu- dinal termi- Center frequency (f) of 8kHz band Max voltage in all 8 kHz bands nating im- pedance

42 kHz to 266 kHz ...... ¥62 dBV ...... 90 ohms.

(f) LADC interface. The metallic frequency bands must be used in testing The rms metallic voltage averaged over voltage shall comply with the general all frequencies. 100 milliseconds in the 100-Hz bands requirements in paragraph (f)(1) of this (1) Metallic voltages—frequencies having center frequencies between 750 section as well as the additional below 4 kHz. Hz and 3950 Hz shall not exceed the requirements specified in paragraphs (i) Weighted rms voltage in the 10 Hz maximum indicated below. (f)(2) and (3) of this section as stated. to 4 kHz frequency band. The weighted The requirements apply under the rms metallic voltage in the frequency Max volt- conditions specified in § 68.308(g). age in all band from 10 Hz to 4 kHz, averaged over Center freq (f) of 100-Hz bands 100-Hz Terminal equipment for which the 100 milliseconds that is the resultant of bands magnitude of the source and/or all the component metallic voltages in terminating impedance exceeds 300 the band after weighting according to 750 to 3950 Hz ...... ¥6 dBV. Ohms, at any frequency in the range of the transfer function of f/4000 where f 100 kHz to 6 MHz, at which the signal is the frequency in Hertz, shall not (transmitted and/or received) has (2) Metallic Voltages—frequencies exceed the maximum indicated below above 4 kHz—LADC interface. significant power, shall be deemed not under the conditions stated in (i) 100-Hz bands over frequency range to comply with these requirements. A paragraph (g). signal is considered to have ‘‘significant of 4 kHz to 270 kHz. The rms voltage power’’ at a given frequency if that Maximum as averaged over 100 milliseconds in all frequency is contained in a designated Frequency range voltage possible 100-Hz bands between 4 kHz set of frequency bands that collectively and 270 kHz for the indicated range of have the property that the rms voltage 10 Hz to 4 kHz ...... +3 dBV. center frequencies and under the of the signal components in those bands conditions specified in § 68.308(g) shall is at least 90% of the rms voltage of the (ii) RMS Voltage in 100 Hz bands in not exceed the maximum indicated total signal. The designated set of the frequency range 0.7 kHz to 4 kHz. below:

Max voltage in all 100- Center freq (f) of all 100-Hz bands Hz bands

4,05 kHz to 4.6 kHz ...... 0.5 dBV. 4.60 kHz to 5.45 kHz ...... (59.2±90 log f) dBV. 5.45 kHz to 59.12 kHz ...... (7.6±20 log f) dBV. 59.12 kHz to 266.00 kHz ...... (43.1±40 log f) dBV. Where f = center frequency in kHz of each of the possible 100 Hz bands. (ii) 8-kHz bands over frequency range of 4 kHz to 270 kHz. The rms voltage as averaged over 100 milliseconds in all of the possible 8-kHz bands between 4 kHz and 270 kHz for the indicated range of center frequencies and under the conditions specified in § 68.308(g) shall not exceed the maximum indicated below:

Max voltage in all 8- Center freq (f) of 8-kHz bands kHz bands

8 kHz to 120 kHz ...... (17.6±20 log f) dBV. 120 kHz to 266 kHz ...... (59.2±40 log f) dBV. Where f = center frequency in kHz of each of the possible 8-kHz bands. (iii) RMS Voltage at frequencies above 270 kHz. The rms value of the metallic voltage components in the frequency range of 270 kHz to 6 MHZ, averaged over 2 microseconds, shall not exceed ¥15 dBV. This limitation applies with a metallic termination having an impedance of 135 ohms. (iv) Peak Voltage. The total peak voltage for all frequency components in the 4 kHz to 6 MHZ band shall not exceed 4.0 volts. (3) Longitudinal voltage. (i) Frequencies below 4kHz. The weighted rms voltage in the frequency band from 10 Hz to 4kHz, averaged over 100 milliseconds is the resultant of all the component longitudinal voltages in the band after weighing according to the transfer function of f/4000, where f is the frequency in Hz, shall not exceed the maximum indicated below under the conditions stated in § 68.308(g).

Maximum Frequency range RMS volt- age

10 Hz±4 kHz ...... ¥37 dBV.

(ii) 4 kHz to 270 kHz Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61677

Longitu- dinal termi- Center freq (f) of 8-kHz bands Max voltage in all 8-kHz bands nating Voltage

8 kHz to 12 kHz ...... ¥(18.4 + 20 log f) dBV ...... 500 ohms. 12 kHz to 42 kHz ...... (3±20 log f) dBV ...... 90 ohms. 42 kHz to 266 kHz ...... ¥62 dBV ...... 90 ohms Where f = center frequency in kHz of each of the possible 8-kHz bands. (iii) 270 kHz to 6 MHZ. The rms value of the longitudinal voltage components in the frequency range of 270 kHz to 6 MHZ shall, averaged over 2 microseconds, not exceed -30 dBV. This limitation applies with a longitudinal termination having an impedance of 90 ohms.

BILLING CODE 6712±01±P 61678 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

BILLING CODE 6712±01±C Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61679

(g) Requirements in paragraphs (d), to comply with the requirements in (ii) Template for maximum output (e) and (f) of this section apply under paragraph (f)(1)(ii) of this section pulse. When applied to a 135 Ohm the following conditions: (1) All provided that, for automatically resistor, the instantaneous amplitude of registered terminal equipment, except originated DTMF signals, the duty cycle the largest isolated output pulse equipment to be used on LADC, and all is less than 50 percent. obtainable from the registered terminal registered protective circuitry must (6) LADC registered terminal equipment shall not exceed by more comply with the limitations when equipment shall comply with all than 10% the instantaneous voltage connected to a termination equivalent to applicable requirements, except those defined by a template obtained as the circuit depicted in Figure 68.308(a) specified in paragraphs (f)(1) (i) and (ii) follows: The limiting pulse template and when placed in all operating states of this section, during the transmission shall be determined by passing an ideal of the equipment except during network of each possible data signal sequence of 50% duty cycle rectangular pulse with control signaling. LADC registered any length. For compliance with the amplitude/pulse rate characteristics terminal equipment must comply with paragraph (f)(3)(i) of this section, the defined in Table 68.308(c) through a the metallic voltage limitations when limitation applies to the rms voltage single real pole low pass filter having a connected to circuits of § 68.3(i) and averaged as follows: cutoff frequency in Hertz equal to 1.3 must comply with the longitudinal (i) For digital signals, baseband or times the bit rate. For bit rates of 2.4, limitations when connected to circuits modulated on a carrier, for which there 3.2, 4.8, 6.4, 9.6 and 12.8 kbps, the of Figure 68.308(a), as indicated. are defined signal element intervals, the filtered pulses shall also be passed (2) All registered terminal equipment rms voltage is averaged over each such through a filter providing the additional and registered protective circuitry must interval. Where multiple carriers are attenuation in Table 68.308(d). comply with the limitations in the off- involved, the voltage is the power sum hook state over the range of loop of the rms voltages for the signal TABLE 68.308(c).ÐDRIVING PULSE currents that would flow with the element intervals for each carrier. AMPLITUDE equipment connected to an appropriate (ii) For baseband analog signals, the simulator circuit. rms voltage is averaged over each period Line rate User data rate Amplitude (3) Registered terminal equipment and (cycle) of the highest frequency of the (kbps) (R) (kbps) (A) (volts) registered protective circuitry with signal (3 dB point on the spectrum). For analog signals that are modulated on a 2.4 ...... 2.4 ...... 1.66 provision for through-transmission from 1 carrier (whether or not the carrier is 3.2 ...... 2.4 with SC .... 1.66 other equipments shall comply with the 4.8 ...... 4.8 ...... 1.66 limitations with a 1000 Hz tone applied suppressed), it is averaged over each 6.4 ...... 4.8 with SC 1 .... 1.66 from a 600-ohm source (or, if period (cycle) of the carrier. Where 9.6 ...... 9.6 ...... 0.83 appropriate a source which reflects a multiple carriers are involved, the 12.8 ...... 9.6 with SC 1 .... 0.83 600-ohm impedance across tip and ring) voltage is the power sum of the rms 19.2 ...... 19.2 ...... 1.66 at the maximum level that would be voltage for each carrier. 25.6 ...... 19.2 with SC 1 .. 1.66 applied during normal operation. (iii) For signals other than the types 38.4 ...... 38.4 ...... 1.66 Registered protective circuitry for data defined in paragraphs (g)(6)(i) and (ii) of 51.2 ...... 38.4 with SC 1 .. 1.66 shall also comply with the tone level 10 this section, the peak amplitude of the 56 ...... 56 ...... 1.66 72 ...... 56 with SC 1 ..... 1.66 dB higher than the overload point. signal must not exceed +1 dBV. 72 ...... 64 ...... 1.66 (4) For registered terminal equipment (7) Equipment shall comply with the or registered protective circuitry with requirements in paragraphs (f)(1)(i) and 1 SC: Secondary Channel. non-registered signal source input, such (ii) of this section, during any data as music on hold, the out of band signal sequence that may be transmitted TABLE 68.308(d).ÐMINIMUM power requirements shall be met using during normal use with a probability ADDITIONAL ATTENUATION an input signal with a frequency range greater than 0.001. If the sequences of 200 Hz to 20 kHz and the level set transmitted by the equipment are Attenu- Attenu- at the overload point. application dependent, the user ation in ation in frequency frequency (5) Except during the transmission of instruction material shall include a Line rate (R) (kbps) band 24± band 72± ringing (§ 68.306(d)) and Dual Tone statement of any limitations assumed in 32 kHz 80 kHz Multi-frequency (DTMF) signals, LADC demonstrating compliance of the (dB) (dB) registered terminal equipment shall equipment. comply with all requirements in all (8) In addition to the conditions 2.4 ...... 5 1 operating states and with loop current 3.2 ...... 5 1 specified in paragraph (g)(5) of this 4.8 ...... 13 9 that may be drawn for such purposes as section, LADC registered terminal 6.4 ...... 13 9 loop back signaling. The requirements equipment which operates in one or 9.6 ...... 17 8 in paragraph (f)(1) of this section except more modes as a receiver, shall comply 12.8 ...... 17 8 in paragraphs (f)(1)(i) and (f)(1)(ii) of with requirements in paragraph (f)(3) of Note: The attenuation indicated may be re- this section also apply during the this section with a tone at all duced at any frequency within the band by the application of ringing. The requirement frequencies in the range of potential weighting curve of Table 68.308(e). Minimum in paragraph (d) and the requirements in received signals and at the maximum rejection is never less than 0 dB; i.e., the paragraphs (f)(1)(i) and (f)(1)(ii) of this power which may be received. weight does not justify gain over the system section apply during ringing for (h) Interference limitations for without added attenuation. frequencies above 300 Hz and with the transmission of bipolar signals over maximum voltage limits raised by 10 digital services.—(1) Limitations on TABLE 68.308(e).ÐATTENUATION dB. DTMF signals which are used for Terminal Equipment Connection to CURVE the transmission of alphanumeric Subrate Digital Services—(i) Pulse Attenu- information and which comply with the repetition rate. The pulse repetition rate 24±32 kHz band 72±80 ation fac- requirements in paragraph (f)(1)(i) and shall be synchronous with 2.4, 3.2, 4.8, kHz band tor dB in paragraphs (f)(2) or (f)(3) of this 6.4, 9.6, 12.8, 19.2, 25.6, 38.4, 56.0, or section as applicable, shall be deemed 72 kbps per second. 24 ...... 72 ¥18 61680 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

TABLE 68.308(e).ÐATTENUATION dBm when averaged over any 3-second instantaneous amplitude of the output CURVEÐContinued time interval. The maximum equivalent from the registered terminal equipment power of encoded analog signals as obtained when Option B is 72±80 Attenu- derived by a zero level decoder test implemented shall fall within the pulse 24±32 kHz band kHz band ation fac- configuration for signals intended for template obtained by passing the tor dB network control signaling shall not bounding pulses permitted by Figure 25 ...... 73 ¥3 exceed ¥3 dBm when averaged over 68.308(b) through the following transfer 26 ...... 74 ¥1 any 3-second interval. function. 27 ...... 75 0 (2) Limitations on Terminal 2 + + 29 ...... 76 0 Equipment Connecting to 1.544 Mbps Vout = n2 S n1 S n 0 29 ...... 77 0 Digital Services.—(i) Pulse repetition V d S3 + d S2 + d S + d 30 ...... 78 ¥1 rate: The free running line rate of the in 3 2 1 0 31 ...... 79 ¥3 transmit signal shall be 1.544 Mbps with where: 32 ...... 80 ¥18 ± ± 6 a tolerance of 32 ppm., i.e., 50 bps. n0=1.6049×10 × ¥1 (iii) Average power. The average (ii) Output pulse templates. The n1=7.9861 10 registered terminal equipment shall be ¥8 output power when a random signal n2=9.2404×10 capable of optionally delivering three 6 sequence, (0) or (1) equiprobable in each d0=2.1612×10 pulse interval, is being produced as sizes of output pulses. The output pulse d1=1.7223 measured across a 135 ohm resistance option shall be selectable at the time of × ¥7 shall not exceed 0 dBm for 9.6 and 12.8 installation. d2=4.575 10 ¥14 kbps or +6 dBm for all other rates (A) Option A output pulse. When d3=3.8307×10 shown in Table 68.308(b). applied to a 100 ohm resistor, the S=j 2 Π f (iv) Encoded analog content. If instantaneous amplitude of the largest f=frequency (Hertz) registered terminal equipment output pulse obtainable from the connecting to subrate services contains registered terminal equipment shall fall (C) Option C output pulse. When an analog-to-digital converter, or within the pulse template illustrated in applied to a 100-ohm resistor, the generates signals directly in digital form Figure 68.308b). The mask may be instantaneous amplitude of the output that are intended for eventual positioned horizontally as needed to from the registered terminal equipment conversion into voiceband analog encompass the pulse, and the amplitude obtained when Option C is signals, the encoded analog content of of the normalized mask may be implemented shall fall within the pulse the digital signal must be limited. The uniformity scaled to encompass the template obtained by passing the pulses maximum equivalent power of encoded pulse. The baseline of the mask shall obtained in Option B through the analog signals for other than live voice coincide with the pulse baseline. transfer function in Option B a second as derived by a zero level decoder test (B) Option B output pulse. When time. configuration shall not exceed ¥12 applied to a 100-ohm resistor, the BILLING CODE 6712±01±P Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61681

BILLING CODE 6712±01±C

MAXIMUM CURVE

Nano-seconds ¥500 ¥250 ¥175 ¥175 ¥75 0 175 220 500 750

Normalized Amplitude ...... 05 .05 .8 1.2 1.2 1.05 1.05 ¥.05 .05 .05

MINIMUM CURVE

Nano-seconds ¥500 ¥150 ¥150 ¥100 0 100 150 150 300 396 600 750

Normalized Amplitude ...... ¥.05 ¥.05 .5 .9 .95 .9 .5 ¥.45 ¥.45 ¥.26 ¥.05 ¥.05

Figure 68.308(b) (Ref. EIA/TIA 547–1989)—Isolated Pulse Template and Corner Points for 1.544 Mbps Equipment Note to Figure 68.308(b): The pulse amplitude is 2.4 to 3.6 V. (Use constant scaling factor to fit normalized template.)

(iii) Adjustment of signal voltage. The Terminal equipment below that in a 3 kHz band about 772 signal voltage at the network interface Cable loss at 772 kHz kHz. must be limited so that the range of (dBV) Output Loss at (v) Encoded Analog Content. If pulse 772 kHz pulse amplitudes received at the first registered terminal equipment telephone company repeater is 15 to 22 ...... Option A .. 0 connected to 1.544 Mbps digital service controlled to ±4 dB. This limitation is 7.5 to 15 ...... Option B .. 7.5 contains an analog-to-digital converter, achieved by implementing the 0 to 7.5 ...... Option C .. 15 or generates signals directly in digital appropriate output pulse option as a form that are intended for eventual function of telephone company cable (iv) Output power. The output power conversion into voiceband analog loss as specified at time of installation. in a 3 kHz band about 772 kHz when an signals, the encoded analog content of all ones signal sequence is being the subrate channels within the 1.544 produced as measured across a 100 ohm Mbps signal must be limited. The terminating resistance shall not exceed maximum equivalent power of encoded +19 dBm. The power in a 3 kHz band analog signals for other than live voice about 1.544 MHz shall be at least 25 dB that are not intended for network 61682 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

control signaling as derived by a zero (1) Where eL is the longitudinal values of dc loop current that the port level decoder test configuration shall voltage produced across a longitudinal under test is capable of drawing when not exceed ¥12 dBm when averaged termination Z1 and eM is the metallic attached to the appropriate loop over any 3-second time interval. The voltage across the tip-ring or tip 1 and simulator circuit (See § 68.3). An maximum equivalent power of encoded ring 1 interface of the input port when illustrative test circuit that satisfies the analog signals as derived by a zero level a voltage (at any frequency between f1 above conditions is shown in Figure decoder test configuration for signals and

TABLE 68.310(a)

Analog 1.544 Mbps voiceband Subrate digital digital

Longitudinal TerminationÐZl ...... 500 ohms ...... See Table 310(b) ...... 90 ohms. Metallic Source ImpedanceÐZ0 ...... 600 ohms ...... 135 ohms ...... 100 ohms. Lower FrequencyÐf1 ...... 200 Hz ...... 200 Hz ...... 10 kHz. 1 Upper FrequencyÐf2 ...... 4 kHz ...... ( ) 1.544 MHz. Metallic Voltage for TestÐE ...... 0.775 V ...... 0.367 V ...... 0.316 V. 1 The upper frequency equals the digital line rate for the subrate service under test (See Table 68.310(b)).

(b) Analog voiceband equipment. All shall be met with either terminal of the terminated in their appropriate registered analog voiceband equipment interface to other equipment connected networks, as will be identified below, shall be tested in the off-hook state. The to earth ground. The interface to other and when interface connections other minimum transverse balance equipment shall be terminated in an than the ports are terminated in circuits requirement in the off-hook state shall impedance that will be reflected to the appropriate to that interface. The be 40 dB, throughout the range of telephone connection as 600 Ohms in minimum transverse balance frequencies specified in Table 68.310(a). the off-hook state of the registered coefficients shall also be satisfied for all For some categories of equipment, protective circuit, and the interface values of dc loop current that the additional requirements also apply to should not be terminated in the on-hook registered equipment is capable of the on-hook state. When both off-hook state. Figure 68.310(b) shows the drawing through each of its ports when and on-hook requirements apply, they interface of the protective circuitry these ports are attached to the loop are: being tested and the required simulator circuit specified in these arrangement at the interface to other rules. The termination for all ports other State Frequency (f) Balance equipment. than the particular one whose transverse (4) For analog registered protective balance coefficient is being measured Off-hook .... 200 Hz : f : 4000 Hz 40 dB. On-hook .... 200 Hz : f : 1000 Hz 60 dB. circuitry with ground-start and reverse- shall have a metallic impedance of 600 On-hook .... 1000 Hz : f : 4000 40 dB. battery signaling only off-hook ohms. Hz. requirements apply. Criteria shall be (6) For analog multi-port equipment met with either terminal of the interface with ground-start and reverse-battery (1) For analog one-port 2-wire to other equipment connected to earth signaling, only off-hook requirements terminal equipment with loop-start, ground. The interface to other apply. Criteria shall be satisfied for all ringdown, or inband signaling or for equipment shall be terminated in an ports when all ports not under test are voiceband metallic channel impedance that will be reflected to the terminated in their appropriate applications, both off-hook and on-hook telephone connection as 600 ohms in networks as will be identified below, requirements apply. the off-hook state of the registered and when interface connections other (2) For analog one port equipment protective circuit. Figure 68.310(b) than the ports are terminated in circuits with ground-start and reverse-battery shows the interface of the protective appropriate to that interface. The signaling only off-hook requirements circuitry under test and the required minimum transverse balance apply. arrangement at the interface to the other coefficients shall be satisfied for all (3) For analog registered protective equipment. values of dc loop current that the circuitry for 2-wire applications with (5) For analog multi-port equipment registered equipment is capable of loop-start, ringdown, or inband with loop-start signaling both off-hook drawing through each of its ports when signaling; or for voiceband metallic and on-hook requirements apply. these ports are attached to the loop channel applications, both off-hook and Criteria shall be satisfied for all ports simulator circuit specified in these on-hook requirements apply. Criteria when all the ports not under test are rules. The terminations for all ports Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61683 other than the particular one whose battery, ringdown, or inband signaling; the off-premises line simulator circuit transverse balance coefficient is being or for voiceband metallic channel specified in these rules. measured shall have a metallic applications. Criteria shall be satisfied (9) For Type Z equipment with loop- impedance of 600 ohms and a for all network ports when all the ports start signaling, both off-hook and on- longitudinal impedance of 500 ohms. not under test are terminated as defined hook requirements apply. Equipment Figure 68.310(c) shows this termination. below, and when interface connections that has on-hook impedance (7) For analog registered terminal other than the network ports are characteristics which that do not equipment and protective circuitry for terminated in circuits appropriate to the conform to the requirements of § 68.312 4-wire network ports, both the off-hook interface. The criteria shall also be (e.g., Type Z), shall comply with and on-hook requirements apply. The satisfied for all values of dc loop current minimum transverse balance pair not under test shall be terminated that when the port is connected to the requirements of 40 dB in the voiceband. in a metallic impedance of 600 ohms. appropriate 4-wire loop simulator See § 68.312(h) for conditions upon Other conditions are as follows: circuit. The terminations for both pairs registration of ‘‘Type Z’’ equipment. (i) For analog registered protective of all network ports not under test shall (c) Digital equipment. The minimum circuitry with loop-start, ground-start, have a metallic impedance of 600 ohms transverse balance requirements for reverse battery, ringdown, or inband and a longitudinal impedance of 500 registered terminal equipment signaling; or for voiceband metallic ohms. Figure 68.310(c) shows this connected to digital services shall be channel applications. Criteria shall be termination. met with either terminal of the interface equalled or exceeded for the range of to other equipment connected to earth (8) For analog PBX equipment (or frequencies applicable for the ground. The interface to other similar systems) with class B or class C equipment under test and under all equipment shall be terminated in an off-premises interfaces, only off-hook reasonable conditions of the application impedance that will result in 600 ohms requirements apply. Criteria shall be of earth ground to the equipment. All at each of the transmit and receive pairs satisfied for all off-premises station such terminal equipment shall have a of the 4-wire telephone connection in interface ports when these ports are transverse balance in the acceptable the off-hook state of the registered terminated in their appropriate region of Figure 68.310(e) for the range protective circuit, and the interface networks for their off-hook state, and of frequencies shown in Table 68.310(b) should not be terminated in the on-hook when all other interface connections are for the specified digital service in state. Figure 68.310(d) shows the terminated in circuits appropriate to question. The metallic impedance used interface of the protective circuitry that interface. The minimum transverse for the transverse balance measurements being tested and the required balance coefficients shall also be for all subrate services shall be 135 arrangement at the interface to other satisfied for all values of dc loop current ohms and for 1.544 Mbps shall be 100 equipment. that the registered PBX is capable of ohms. The longitudinal termination for (ii) For analog multiport equipment providing through off-premises station 1.544 Mbps and subrate services shall with loop start, ground start, and reverse ports when these ports are attached to be as defined in Table 68.310(b).

FREQUENCY RANGES OF TRANSVERSE BALANCE REQUIREMENTS FOR DIGITAL SERVICES

Longitudinal Metallic ter- Digital service Frequency range termination mination (ohms) (ohms)

2.4 ...... 200 to 2.4 kHz ...... 500 135 3.2 ...... 200 to 3.2 kHz ...... 500 135 4.8 ...... 200 to 4.8 kHz ...... 500 135 6.4 ...... 200 to 6.4 kHz ...... 500 135 9.6 ...... 200 to 9.6 kHz ...... 500 135 12.81 ...... 200 to 12.8 kHz ...... 500/90 135 19.21 ...... 200 to 19.2 kHz ...... 500/90 135 25.61 ...... 200 to 25.6 kHz ...... 500/90 135 38.41 ...... 200 to 38.4 kHz ...... 500/90 135 561 ...... 200 to 56 kHz ...... 500/90 135 721 ...... 200 to 72 kHz ...... 500/90 135 1.544 ...... 10 kHz to 1.544 MHz ...... 90 100 1 For 200 to 12 kHz the longitudinal termination shall be 500 ohms and above 12 kHz the longitudinal termination shall be 90 ohms.

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BILLING CODE 6712±01±C Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61689

12. Section 68.312 is revised to read start or ground-start interfaces, in the Note to § 68.312: Throughout this section, as follows: following configuration: references will be made to simulated ringing. (1) The tip and ring conductors are Ringing voltages to be used and impedance § 68.312 On-hook impedance limitations. connected together and treated as one of limitations associated with simulated ringing (a) General. Requirements in this the conductors of a tip and ring pair. are shown in Table 68.312(a). section apply to the tip and ring (2) The tip 1 and ring 1 conductors are conductors of 2-wire interfaces. These connected together and treated as the requirements also apply to 4-wire loop- other conductor of a tip and ring pair.

TABLE 68.312(a)

Range of com- Impedance Ringing type patible ringing Simulated ringing voltage superimposed on 56.5 volts limitations frequencies (Hz) dc (ohms)

A ...... 20±3 ...... 40 to 130 volts rms ...... 1400 30±3 ...... 40 to 130 volts rms ...... 1000 B ...... 15.3 to 34 ...... 40 to 130 volts rms ...... 1600 >34 to 49 ...... 62 to 130 volts rms ...... 1600 >49 to 68 ...... 62 to 150 volts rms ...... 1600

(b) Limitations on individual greater than 100 kohms. The equipment associated with each Ringing Type letter equipment intended for operation on must comply with each ringing type designation for which it is valid. loop-start telephone facilities. listed in the ringer equivalence. (1) For individual equipment Registered terminal equipment and (c) Limitations on individual intended for operation on loop-start registered protective circuitry shall equipment intended for operation on telephone facilities, the ringer conform to the following limitations: ground start telephone facilities. equivalence is five times the impedance (1) On-hook resistance, metallic and Registered terminal equipment and limitation listed in Table 68.312(a), longitudinal (up to 100 Vdc). The on- registered protective circuitry shall divided by the minimum measured ac hook dc resistance between the tip and conform to the following limitations: impedance, as defined in paragraph ring conductors of a loop start interface, (1) DC current during ringing. During (b)(1)(iv) of this section, during the and between each of the tip and ring the application of simulated ringing, as application of simulated ringing as conductors and earth ground, shall be listed in Table 68.312(a), to a ground listed in Table 68.312(a). (2) For individual equipment greater than 5 megohms for all dc start interface, the total dc current intended for operation on ground-start voltages up to and including 100 volts. flowing between tip and ring conductors (2) On-hook resistance, metallic and telephone facilities, the ringer shall not exceed 3.0 milliamperes. The longitudinal (100 V to 200 Vdc). The on- equivalence is five times the impedance equipment must comply for each hook dc resistance between tip and ring limitation listed in Table 68.312(a), ringing type listed as part of the ringer conductors of a loop start interface, and divided by the minimum measured ac equivalence. between each of the tip and ring impedance, defined in paragraph (c)(2) conductors and earth ground shall be (2) Ringing frequency impedance of this section, during the application of greater than 30 kOhms for all dc (metallic). During the application of simulated ringing as listed in Table voltages between 100 and 200 volts. simulated ringing, as listed in Table 68.312(a). (3) DC current during ringing. During 68.312(a), to a ground start interface, the (e) Ringer equivalence number the application of simulated ringing, as total impedance of the parallel labeling. Registered terminal equipment listed in Table 68.312(a), to a loop start combination of the ac impedance across and registered protective circuitry shall interface, the total dc current shall not tip and ring conductors and the ac have at least one Ringer Equivalence exceed 3.0 milliamperes. The impedance from the ring conductor to Number shown on the registration label. equipment must comply for each ground (with ground on the tip Where options that will vary the Ringer ringing type which is listed as part of conductor) shall be greater than the Equivalence are involved, either each the ringer equivalence. value specified in Table 68.312(a). The option that results in a Ringer (4) Ringing frequency impedance equipment must comply for each Equivalence Number greater than 0.1 (metallic). During the application of ringing type listed as part of the ringer and its corresponding Ringer simulated ringing, as listed in Table equivalence. Equivalence shall be listed on the 68.312(a), to a loop start interface, the (d) Ringer Equivalence Definition. The registration label, or the largest Ringer impedance between the tip and ring ringer equivalence number is defined to Equivalence Number that can result conductors (defined as the quotient of be the value determined in paragraphs from such options shall be stated on the applied ac voltage divided by resulting (d)(1) or (d)(2) of this section, as label. A trained, authorized agent of the true rms current) shall be greater than or appropriate, followed by the ringer type Grantee may disconnect ringers, bridge equal to the value specified in Table letter indicator representing the ringers to another line, or execute 68.312(a). The equipment must comply frequency range for which the number options affecting Ringer Equivalence for each ringing type which is listed as is valid. If Ringer Equivalence is to be after the telephone company has been part of the ringer equivalence. stated for more than one Ringing Type, notified in accordance with § 68.106. (5) Ringing Frequency Impedance testing shall be performed at each (f) Maximum ringer equivalence. All (longitudinal). During the application of frequency range to which Ringer registered terminal equipment and simulated ringing, as listed in Table Equivalence is to be determined in registered protective circuitry that can 68.312(a), to a loop start interface, the accordance with the above, and the affect the ringing frequency impedance impedance between each of the tip and largest resulting Ringer Equivalence shall be assigned a Ringer Equivalence. ring conductors and ground shall be Number so determined will be The sum of all such Ringer Equivalences 61690 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations on a given telephone line or loop shall § 68.314 Billing protection. signals are for one or more of the not exceed 5. In some cases, a system (a) Call duration requirements on data following purposes: that has a total Ringer Equivalence of 5 equipment connected to the public (i) Disabling echo control devices, or less may not be usable on a given switched network, or to tie trunks, or to (ii) Adjusting automatic equalizers telephone line or loop. private lines that access the public and gain controls, (g) OPS interfaces for PBX with DID switched network. Registered data (iii) Establishing synchronization, or (Ring trip requirement). PBX ringing terminal equipment and registered (iv) Signaling the presence and if supplies whose output appears on the protective circuitry shall comply with required, the mode of operation, of the off-premises interface leads shall not the following requirements when data terminal at the remote end of a trip when connected to the following answering an incoming call, except in connection. tip-to-ring impedance that terminates off-hook states in which the signals are (b) Voice and data equipment on- the off-premises station loop: A transmitted and/or received by hook signal requirements for equipment terminating impedance composed of the electroacoustic transducers only. connected to the public switched parallel combination of a 15 kohms Note to paragraph (a) of this section: This network, or to tie trunks, or to private resistor and an RC series circuit (resistor paragraph is applicable to terminal lines that access the public switched and capacitor) whose ac impedance is as equipment and registered protective circuitry network. Registered protective circuitry specified in Table 68.312(b) below. employed with digital services where such and registered terminal equipment shall digital services are interconnected with the comply with the following: TABLE 68.312(b) analog telephone network. (1) The power delivered into a 2-wire (1) Registered protective circuitry. loop simulator circuit or into the ac impedance ohms Registered protective circuitry transmit and receive pairs of a 4-wire loop simulator or into a 600 ohm Ringing freq Hz Class connected to associated data equipment B or C Class A shall assure that the following signal termination (where appropriate) in the power limitations are met for at least the on-hook state, by loop-start or ground- 20 ± 3 ...... 7000/N 1400 first 2 seconds after the off-hook start equipment shall not exceed ¥55 30 ± 3 ...... 5000/N 1000 condition is presented to the telephone dBm within the voiceband. Registered NÐNumber of ringer equivalences, as spec- network in response to an incoming protective circuitry shall also assure that ified by the manufacturer, which can be con- call: for any input level up to 10 dB above nected to the off-premises station loop. (i) Signals that appear at the the overload point, the power to a 2- protective circuitry/telephone network wire loop simulator circuit or the (h) Type Z Ringers. Equipment that interface for delivery to the telephone transmit and receive pairs of a 4-wire has on-hook impedance characteristics network shall be limited to -55 dBm, (at loop simulator circuit or into a 600 ohm which do not conform to the any frequency in the range of 200 to termination (where appropriate) does requirements of this section may be 3200 Hertz), as such signals are not exceed the above limits. conditionally registered, delivered into a loop simulator circuit (2) The power delivered into a 2-wire notwithstanding the requirements of or a 600 ohm termination, as loop simulator circuit or into the this section, provided that it is labeled appropriate; and transmit and receive pairs of a 4-wire with a Ringing Type designation ‘‘Z’’. It (ii) Signals that appear at the loop simulator circuit, in the on-hook should be noted that registration of protective circuitry-associated data state, by reverse battery equipment shall equipment bearing the designation ‘‘Z’’ equipment interface for delivery to not exceed ¥55 dBm, unless the does not necessarily confer any right of associated data equipment shall be equipment is arranged to inhibit connection to the telephone network limited as follows: for any received incoming signals. under these rules. Any equipment signal power (appearing at the (c) Voice and data equipment loop registered with the type Z designation protective circuitry-telephone network current requirements for equipment may only be used with the consent of interface) up to 0 dB with respect to one connected to the public switched the local telephone company, provided milliwatt (at any frequency in the range network. The loop current through that the local telephone company does of 200 to 3200 Hertz), the power of registered terminal equipment or not discriminate in its treatment of signals delivered to associated data registered protective circuitry, when equipment bearing the type Z equipment shall be no greater than the connected to a 2-wire or 4-wire loop designation. signal power that would be delivered as simulator circuit with the 600 ohm (i) Transitioning to the Off-Hook a result of received signal power of -55 resistor and 500 microfarad capacitor of State. Registered terminal equipment dBm. the 2-wire loop simulator circuit or both and registered protective circuitry shall (2) Registered terminal equipment. pairs of the 4-wire loop simulator circuit not by design leave the on-hook state by Registered terminal equipment for data disconnected shall, for at least 5 operations performed on tip and ring applications shall assure that, when an seconds after the equipment goes to the leads for any other purpose than to incoming telephone call is answered, off-hook state that would occur when request service or answer an incoming the answering terminal equipment answering an incoming call: call, except that terminal equipment prevents both transmission and (1) Be at least as great as the current that the user places in the off-hook state reception of data for at least the first two obtained in the same loop simulator for the purpose of manually placing seconds after the answering terminal circuit with minimum battery voltage telephone numbers in internal memory equipment transfers to the off-hook and a maximum loop resistance when a for subsequent automatic or repertory condition. For the purpose of this 200 ohm resistance is connected across dialing shall be registerable. Make-busy requirement, a fixed sequence of signals the tip and ring of the 2-wire loop indications shall be transmitted by the that is transmitted (and originated simulator circuit or connected across use of make-busy leads only as defined within) and/or received by the the tip/ring and tip 1/ring 1 conductors in § 68.3 and § 68.200(j). registered terminal equipment each time (tip and ring connected together and tip 13. Section 68.314 is revised to read it answers an incoming call shall not be 1 and ring 1 connected together) of the as follows: considered data, provided that such 4-wire loop simulator circuit in place of Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61691 the registered terminal equipment or shall be applied within 0.5 seconds of which employ means for detecting both registered protective circuitry; or the time that: busy and reorder signals shall be (2) Not decreased by more than 25 (i) The terminal equipment permits permitted an additional 13 attempts if a percent from its maximum value the acceptance of further digits that may busy or reorder signal is encountered on attained during this 5-second interval; be used to route the incoming call to each attempt. The dialer shall be unable unless the equipment is returned to the another destination. to re-attempt a call to the same number on-hook state during the above 5 second (ii) The terminal equipment transmits for at least 60 minutes following either interval. signals towards the calling party, except the second or fifteenth successive (3) The above requirements also apply for the call progress tones, i.e., busy, attempt, whichever applies, unless the in the hold state and any off-hook state. reorder and audible ring, and the call is: dialer is reactivated by either manual or (d) Signaling interference (A) Answered by the called, or external means. This rule does not requirements. (1) The signal power another station; apply to manually activated dialers that delivered to the network interface by the (B) Answered by the attendant; dial a number once following each registered terminal equipment and from (C) Routed to a customer controlled or activation. signal sources internal to registered defined recorded announcement, except Note to paragraph (b)(1): Emergency alarm protective circuitry in the 2450 Hz to for ‘‘number invalid,’’ ‘‘not in service’’ dialers and dialers under external computer 2750 Hz band shall be less than or equal or ‘‘not assigned;’’ control are exempt from these requirements. to the power present simultaneously in (D) Routed to a dial prompt; or (2) If means are employed for detecting the 800 Hz to 2450 Hz band for the first (E) Routed back to the public both busy and reorder signals, the automatic 2 seconds after going to the off-hook switched telephone network or other dialing equipment shall return to its on-hook state. destination and the call is answered. If state within 15 seconds after detection of a (2) Registered terminal equipment for the status of the answered call cannot be busy or reorder signal. connection to subrate or 1.544 Mbps (3) If the called party does not answer, the reliably determined by the terminal automatic dialer shall return to the on-hook digital services shall not deliver digital equipment through means such as, signals to the telephone network with state within 60 seconds of completion of detection of answer supervision or voice dialing. encoded analog content energy in the energy, removal of audible ring, etc., the (4) If the called party answers, and the 2450 to 2750 Hertz band unless at least off-hook state shall be applied after an calling equipment does not detect a an equal amount of encoded analog interval of not more than 20 seconds compatible terminal equipment at the called energy is present in the 800 to 2450 from the time of such routing. The off- end, then the automatic dialing equipment Hertz band for the first two seconds hook state shall be maintained for the shall be limited to one additional call which after going to the off-hook state. duration of the call. is answered. The automatic dialing equipment shall comply with paragraphs (e) On-hook requirements for (2) For registered protective circuitry: registered terminal equipment for (b)(1), (b)(2), and (b)(3) of this section for (i) Registered protective circuitry shall additional call attempts that are not connection to subrate and 1.544 Mbps block transmission incoming from the digital services. Registered terminal answered. network until an off-hook signal is (5) Sequential dialers shall dial only once equipment and registered protective received from the terminal equipment. to any individual number before proceeding circuitry shall comply with the (ii) Registered protective circuitry to dial another number. following: shall provide an off-hook signal within (6) Network addressing signals shall be (1) The power delivered to the 0.5s following the receipt of an off-hook transmitted no earlier than: telephone network in the on-hook state signal from the terminal equipment and (i) 70 ms after receipt of dial tone at the as derived by a zero level decoder shall network demarcation point; or shall maintain this off-hook signal for not exceed ¥55 dBm equivalent power (ii) 600 ms after automatically going off- the duration of the call. for digital signals within the voiceband. hook (for single line equipment that does not (2) Registered protective circuitry 14. Section 68.316 is amended by use dial tone detectors); or shall also assure that the power to a zero revising the section heading to read as (iii) 70 ms after receipt of CO ground start at the network demarcation point. level decoder does not exceed the above follows: limits for any input level up to 10 dB § 68.316 Hearing aid compatibility: (c) Line seizure by automatic above the overload point. Technical requirements. telephone dialing systems. Automatic (3) Reverse battery interface. The * * * * * telephone dialing systems which deliver power derived by a zero level decoder, 15. Section 68.317 is amended by a recorded message to the called party in the on-hook state, by reverse battery revising the section heading to read as must release the called party’s equipment, shall not exceed ¥55 dBm, follows: telephone line within 5 seconds of the unless the equipment is arranged to time notification is transmitted to the inhibit incoming signals. § 68.317 Hearing aid compatibility volume system that the called party has hung (f) Off hook requirements. Off-hook control: technical standards. up, to allow the called party’s line to be signal requirements for registered * * * * * used to make or receive other calls. terminal equipment connecting to 1.544 16. Section 68.318 is revised to read (d) Telephone facsimile machines; Mbps digital services. Upon entering the as follows: Identification of the sender of the normal off-hook state, in response to message. It shall be unlawful for any alerting, for subrate channels, registered § 68.318 Additional limitations. person within the United States to use terminal equipment shall continue to (a) General. Registered terminal a computer or other electronic device to transmit the signaling bit sequence equipment for connection to those send any message via a telephone representing the off-hook state for 5 services discussed below must facsimile machine unless such message seconds, unless the equipment is incorporate the specified features. clearly contains, in a margin at the top returned to the on-hook state during the (b) Registered terminal equipment or bottom of each transmitted page or on above 5-second interval. with automatic dialing capability. (1) the first page of the transmission, the (g) Operating requirements for direct Automatic dialing to any individual date and time it is sent and an inward dialing. (1) For registered number is limited to two successive identification of the business, other terminal equipment, the off-hook state attempts. Automatic dialing equipment entity, or individual sending the 61692 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations message and the telephone number of List of Subjects in 47 CFR Part 73 the Dockets Facility, U.S. Department of the sending machine or of such Radio broadcasting. Transportation, 400 Seventh Street, SW, business, other entity, or individual. Plaza 401, Washington, DC 20590–0001. Telephone facsimile machines Federal Communications Commission. Comments should identify the docket manufactured on and after December 20, Douglas W. Webbink, number of this DFR, RSPA–97–2096. 1992, must clearly mark such Chief, Policy and Rules Division, Mass Media Persons should submit the original and identifying information on each Bureau. one copy. Persons wishing to receive transmitted message. [FR Doc. 97–30281 Filed 11–18–97; 8:45 am] confirmation of receipt of their (e) Requirement that registered BILLING CODE 6712±01±P comments must include a stamped, self- equipment allow access to common addressed postcard. Alternatively, carriers. Any equipment or software comments may be submitted via e-mail manufactured or imported on or after DEPARTMENT OF TRANSPORTATION to [email protected]. The Dockets April 17, 1992, and installed by any facility is open from 10:00 a.m. to 5:00 aggregator shall be technologically Research and Special Programs p.m., Monday through Friday, except on capable of providing consumers with Administration Federal holidays. access to interstate providers of operator 49 CFR Parts 191, 192 and 195 FOR FURTHER INFORMATION CONTACT: L.E. services through the use of equal access Herrick, (202) 366–5523 or e-mail codes. The terms used in this paragraph [Docket No. RSPA 97±2096; Amdt Nos. 191± [email protected] regarding the shall have meanings defined in § 64.708 12; 192±81; 195±59] subject matter of this DFR, or the of this chapter (47 CFR 64.708). RIN 2137±AC99 Dockets Facility, (202) 366–5046, [FR Doc. 97–29925 Filed 11–18–97; 8:45 am] regarding copies of this DFR or other Pipeline Safety: Regulations information in the docket. BILLING CODE 6712±01±P Implementing Memorandum of Understanding With the Department of SUPPLEMENTARY INFORMATION: FEDERAL COMMUNICATIONS the Interior Background COMMISSION AGENCY: Research and Special Programs Under an MOU dated May 6, 1976, Administration (RSPA), DOT. RSPA regulated hazardous liquid, 47 CFR Part 73 ACTION: Direct final rule. carbon dioxide, and natural gas pipelines located downstream of the [MM Docket No. 97±97, RM±9047] SUMMARY: This direct final rule (DFR) outlet flange of each facility where would implement a provision of a hydrocarbons are first produced or Radio Broadcasting Services; Mt. December 10, 1996, Memorandum of where produced hydrocarbons are first Juliet and Belle Meade, TN Understanding (MOU) between the separated, dehydrated, or otherwise Department of the Interior (DOI) and the AGENCY: Federal Communications processed, whichever facility is farther Department of Transportation (DOT) Commission. downstream. DOI regulated those regarding Outer Continental Shelf (OCS) pipelines located upstream of this point. ACTION: Final rule. pipelines by redesignating the point at The Departments agreed to change this which an OCS pipeline is subject to SUMMARY: This document denies a regulatory boundary with the signing of RSPA regulations. Under this rule, Petition for Reconsideration filed by the the December 10, 1996, MOU. The 1996 RSPA would establish and enforce Cromwell Group, Inc. directed to the MOU was the result of negotiations that design, construction, operation, and Report and Order in this proceeding began in the summer of 1993, which maintenance regulations and investigate which reallotted Channel 294A from Mt. included a high degree of participation certain accidents for all pipelines Juliet to Belle Meade, Tennessee, and from the regulated industry. RSPA and located downstream of the point at modified the Station WNPL DOI’s Minerals Management Service which operating responsibility for the construction permit to specify Belle (MMS) solicited public comments on a pipelines transfers from a producing Meade as the community of license. See draft MOU through a joint Federal operator to a transporting operator. 62 FR 40949, July 31, 1997. With this Register notice (60 FR 27546; May 24, DATES: action, the proceeding is terminated. This direct final rule takes effect 1995). The notice also announced a March 19, 1998. If RSPA does not public meeting at the MMS Gulf of EFFECTIVE DATE: November 19, 1997. receive any adverse comment or notice Mexico regional office in New Orleans, FOR FURTHER INFORMATION CONTACT: of intent to file an adverse comment by Louisiana, on August 1, 1995, to discuss Robert Hayne, Mass Media Bureau (202) January 20, 1998 the rule will become the proposal. Over 70 people attended 418–2177. effective on the date specified. RSPA the meeting, which generated over 100 SUPPLEMENTARY INFORMATION: This is a will issue a subsequent notice in the pages of comments from natural gas and synopsis of the Commission’s Federal Register by February 17, 1998, petroleum trade organizations; natural Memorandum Opinion and Order after the close of the comment period, gas and oil exploration and production adopted October 22, 1997, and released to confirm that fact and reiterate the companies; transmission companies; October 31, 1997. The full text of this effective date. If an adverse comment or offshore construction companies; and decision is available for inspection and notice of intent to file an adverse industry consultants. Twenty-three copying during normal business hours comment is received, RSPA will issue a individuals and organizations submitted in the FCC Reference Center (Room timely notice in the Federal Register to written comments on the Federal 239), 1919 M Street, NW, Washington, confirm that fact and to withdraw the Register notice. A transcript of this D.C. The complete text of this decision DFR in whole or in part. RSPA may then meeting and copies of the comments are may also be purchased from the incorporate the adverse comment into a available in Docket No. RSPA–97–2096. Commission’s copy contractor, subsequent DFR or may publish a notice In May 1996, RSPA and MMS met International Transcription Service, of proposed rulemaking. with an industry workgroup Inc., (202) 857–3805, 1231 M Street, ADDRESSES: Written comments on the representing OCS oil and natural gas NW, Washington, DC 20036. subject of this DFR may be submitted to producers and transmission pipeline Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61693 operators. The workgroup proposed that make a joint determination of the Business Administration further the agencies allow individual operators boundary. classifies ‘‘small businesses’’ in the of production and transportation The OPS and MMS may, through their various offshore sectors as follows: (1) facilities to define the boundaries of enforcement agencies and in Oil and gas producers that have fewer their respective facilities. They consultation with the affected parties, than 500 employees, (2) liquid pipeline suggested that producers and agree to exceptions to the general companies than have fewer than 1,500 transporters can best make such boundary description (operations employees; (3) natural gas pipeline decisions based on the unique operating transfer point) on a facility-by-facility or companies that have gross annual characteristics of each facility. Under area-by-area basis. Operators may also receipts of $25 million or less; and (4) this rule, RSPA would establish and petition OPS and MMS for exceptions to offshore oil and gas field exploration enforce design, construction, operation, the general boundary description. service or production service companies and maintenance regulations and Conversion to service: A pipeline that have gross annual receipts of $5 investigate certain accidents for all OCS previously used in service and not million or less. There are many transportation pipelines beginning subject to DOT regulations which comes companies on the OCS that are ‘‘small downstream of the point at which under these regulations as a result of businesses’’ by these definitions. operating responsibility transfers from a this rulemaking qualifies for use under However, the technology necessary for producing operator to a transporting the DOT regulations if the operator conducting offshore oil and gas operator. Producing operators are prepares and follows a written exploration and development activities companies which are engaged in the procedure to carry out the requirements is very complex and costly, and most extraction and processing of of 49 CFR 192.14 or 195.5 (Conversion entities that engage in offshore activities hydrocarbons on the OCS. Transporting to service subject to this part). Pipeline have considerable financial resources operators are companies which are segments designed and constructed well beyond what would normally be engaged in the transportation of those under DOT regulations before March 19, considered ‘‘small business.’’ These hydrocarbons. 1998 may continue to operate under entities customarily conduct their DOT design and construction operations by contracting with offshore Intent of the Rule requirements until significant drilling or service companies and The intent of this rule is to require modifications or repairs are made to therefore tend to have relatively few OCS production and transportation those segments. After March 19, 1998 employees compared to the pipeline operators to designate the DOI operational and maintenance considerable financial resources of their specific points on their pipelines where requirements will apply to those operations. operating responsibility transfers from a segments. This rule would affect a substantial producing operator to an adjoining number of ‘‘small entities;’’ however, transporting operator. The rule would Rulemaking Analysis the economic effects of the rule would amend 49 CFR parts 191, 192 and 195. The December 1996 MOU redefined not be significant. The economic effects Generally, operators will have 60 days the DOT/DOI regulatory boundary on the oil and gas production and after the date the rule becomes final to definition from the OCS facility where transportation companies directly durably mark the specific points at hydrocarbons are ‘‘first produced, affected by the rule would be which operating responsibility transfers. separated, dehydrated, or otherwise insignificant because of the minimal In most cases, the specific transfer processed’’ to the point at which costs that operators incur during the points will be easily identifiable ‘‘operating responsibility for the first year that the rule is implemented. because of specific valves or flanges pipelines transfers from a producing (In that year, offshore producers would where the adjoining operations connect, operator to a transporting operator’’. The have to identify all points on their or because of differences in paint used MOU places, to the greatest extent pipelines at which operating by adjoining operators to protect and practicable, producer-operated pipelines responsibility transfers from a producer maintain pipeline coatings or surfaces. under DOI regulation and transporter- to a transporter. In succeeding years For those instances in which the operated pipelines under DOT there would be virtually no economic transfer points are not identifiable by a regulation. The changes in this rule impact resulting from the rule.) The durable marking, each operator will would substantially reduce the offshore service companies would be have 180 days after the final rule regulatory burdens currently caused by indirectly affected by the rule through becomes effective to identify the transfer the overlapping Federal regulatory their contractual relationships with the points on a schematic. The 180-day responsibilities and the inconsistencies primary producing and transporting period will give operators time to between the requirements. The changes companies—they would not be directly identify the transfer points during will substantially increase the efficiency regulated in any way. This rule would routine maintenance. If it is not of governmental resources on the OCS not impose any new restrictions on practicable to durably mark a transfer without compromising safety. small pipeline service companies or point, and the transfer point is located manufacturers, nor will it cause their above water, then the operator must Executive Order (E.O.) 12866 business practices to change. To the depict the transfer point on a schematic RSPA reviewed this rule under E.O. extent that this rule might eventually maintained near the transfer point. 12866 and determined that this is not an cause some of the relatively larger OCS Some transfer points may be located economically significant rule. The operators to make modifications to their underwater. In such cases, the operator Office of Management and Budget pipelines, it may have a minor must identify the transfer point on a (OMB) has not asked to review this rule beneficial effect of increasing demand schematic which must be maintained at under E.O. 12866. for the services and equipment of the nearest upstream facility and smaller service companies and Regulatory Flexibility Act provided to RSPA upon request. manufacturers. For those instances in which Oil and gas and production and adjoining operators do not or can not transportation companies are classified Paperwork Reduction Act agree on a transfer point, RSPA’s Office under Standard Industrial Codes (SIC’s) This rule contains a collection of of Pipeline Safety (OPS) and MMS will by the Census Bureau. The Small information which RSPA is submitting 61694 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations to the Office of Management and Budget which operating responsibility transfers. annualized burden over a 3-year period (OMB) for review and approval under For those relatively few instances where would be 1,000 hours. Based on $35 per section 3507(d) of the Paperwork the transfer points are not identifiable hour, the total burden hour cost to Reduction Act of 1995. As part of by durable marking, operators will have respondents is estimated to be $35,000 RSPA’s continuing effort to reduce 180 days after the date the rule becomes annually. paperwork and respondent burdens, final to identify, on a schematic, the Takings Implication Assessment RSPA invites the public and other transfer points. The requirement to Federal agencies to comment on any identify the boundary is mandatory. The The DOT certifies that the rule does aspect of the reporting burden in 49 CFR RSPA will use the information to not represent a governmental action 192 and 195 as amended by this DFR. determine the demarcation where DOT capable of interference with Submit your comments to the Office of will establish and enforce design, constitutionally protected property Information and Regulatory Affairs; construction, operation, and rights. Thus, a Takings Implication OMB; Attention: Desk Officer for the maintenance regulations and investigate Assessment need not be prepared Department of Transportation (Docket certain accidents, as distinguished from pursuant to E.O. 12630, Government No. RSPA 97–2096); Washington, D.C. MMS responsibilities. Action and Interference with 20503. Send a copy of your comments In calculating the burden, RSPA Constitutionally Protected Property to L.E. Herrick, Room 2335, 400 Seventh assumed that respondents perform most Rights. Street, Washington, DC 20590-0001. of the requirements and maintain Unfunded Mandates Reform Act of You may obtain a copy of the records in the normal course of their 1995 supporting statement for the collection activities, such as painting their of information by contacting the Dockets pipelines and maintaining valves and This rule does not contain any Facility. flanges. RSPA considers these to be unfunded mandates to State, local, or OMB may make a decision to approve usual and customary practices and did tribal governments, nor would it impose or disapprove this collection of not include them in the burden significant regulatory costs on the information after 30 days from receipt of estimates. Commenters are invited to private sector. Anticipated costs to the our request. Therefore, your comments provide information if they disagree private sector will be far below the $100 are best assured of being considered by with this assumption and they should million annual threshold that was OMB if OMB receives them within that tell RSPA what are the burden hours established by the Unfunded Mandates time period. However, RSPA will and costs imposed by this collection of Reform Act. consider all comments received during information (i.e., marking of transfer E.O. 12988 the comment period for this direct final points). rule. The regulated community consists of The DOT has certified to OMB that The Paperwork Reduction Act of 1995 approximately 160 Federal OCS oil and this regulation meets the applicable provides that an agency may not gas producers and 70 transportation civil justice reform standards provided conduct or sponsor, and a person is not pipeline operators. There are in Sections 3(a) and 3(b)(2) of E.O. required to respond to, a collection of approximately 3,000 points where 12988. information unless it displays a operating responsibility for pipelines National Environmental Policy Act currently valid OMB control number. transfers from a producer to a The DOT has determined that this The title of this collection of transporter. The RSPA assumes from action does not constitute a major information is ‘‘49 CFR 191, 192 and discussions with MMS and the Federal action significantly affecting the 195 Pipeline Safety: Regulations operators that about 2,400 (representing quality of the human environment. Implementing Memorandum of 80 percent) of these transfer points are Therefore, preparation of an Understanding with the Department of already marked. Therefore, this Environmental Impact Statement is not the Interior.’’ rulemaking would require a one-time required. The collection of information in the identification and marking of about 600 DFR and for each transporter operating points where operating responsibility List of Subjects a pipeline consists of: (1) Reviewing for pipelines transfers from a producer 49 CFR Part 191 existing pipeline maps, (2) conferring to a transporter. For the 2,400 transfer and agreeing with operators of adjoining points that are clearly marked, there Gas, Pipeline safety, Reporting and production pipeline segments would be no information burden. The recordkeeping requirements. concerning the locations of specific 600 unmarked transfer points, on the 49 CFR Part 192 transfer points, and (3) either marking other hand, would require widely- directly on each pipeline or depicting varying times for identification Pipeline safety, Reporting and on a schematic the specific point on depending on whether a painted line or recordkeeping requirements. each pipeline where operating a schematic was used to identify the 49 CFR Part 195 responsibility transfers from the transfer point. Anhydrous ammonia, Carbon dioxide, producing operator to a transporting The public reporting burden for this Petroleum, Pipeline safety, Reporting operator. As stated above under the information collection requirement is and recordkeeping requirements. ‘‘Intent of the Rule’’ section, specific estimated to average 5 hours per transfer points will be easily identifiable response for each transfer point. This For the reasons set out in the in most cases, either because of specific includes the time for reviewing preamble, RSPA amends 49 CFR parts valves or flanges where the adjoining instructions, searching existing data 191, 192 and 195 as follows: operations connect, or because of sources, gathering and maintaining the PART 191Ð[AMENDED] differences in paint that adjoining data needed, and completing the operators use to protect and maintain required marking. Based on 600 1. The authority citation for part 191 pipeline coatings or surfaces. unmarked transfer points, RSPA continues to read as follows: Generally operators will have until 60 estimates that the total one-time burden Authority: 49 U.S.C. 5121, 60102, 60103, days after the date the rule becomes of this collection of information to be 60104, 60108, 60117, 60118, and 60124; and final to durably mark the points at 3,000 hours total. The average 49 CFR 1.53. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61695

2. Section 191.1 is amended by defined in the Outer Continental Shelf § 195.9 Outer continental shelf pipelines. adding paragraph (b)(3) to read as Lands Act; 43 U.S.C. 1331) must Operators of transportation pipelines follows: identify on all their respective pipelines on the Outer Continental Shelf must the specific points at which operating identify on all their respective pipelines § 191.1 Scope. responsibility transfers to a producing the specific points at which operating * * * * * operator. For those instances in which responsibility transfers to a producing (b) * * * the transfer points are not identifiable operator. For those instances in which (3) On the Outer Continental Shelf by a durable marking, each operator will the transfer points are not identifiable upstream of the point at which have until September 15, 1998 to by a durable marking, each operator will operating responsibility transfers from a identify the transfer points. If it is not have until September 15, 1998 to producing operator to a transporting practicable to durably mark a transfer identify the transfer points. If it is not operator. point and the transfer point is located practicable to durably mark a transfer 3. Section 191.3 is amended by above water, the operator must depict point and the transfer point is located adding a definition in alphabetical order the transfer point on a schematic located above water, the operator must depict to read as follows: near the transfer point. If a transfer the transfer point on a schematic § 191.3 Definitions. point is located subsea, then the maintained near the transfer point. If a * * * * * operator must identify the transfer point transfer point is located subsea, the Outer Continental Shelf means all on a schematic which must be operator must identify the transfer point submerged lands lying seaward and maintained at the nearest upstream on a schematic which must be outside the area of lands beneath facility and provided to RSPA upon maintained at the nearest upstream navigable waters as defined in Section request. For those cases in which facility and provided to RSPA upon 2 of the Submerged Lands Act (43 adjoining operators have not agreed on request. For those cases in which U.S.C. 1301) and of which the subsoil a transfer point by September 15, 1998 adjoining operators have not agreed on and seabed appertain to the United the Regional Director and the MMS a transfer point by September 15, 1998 States and are subject to its jurisdiction Regional Supervisor will make a joint the Regional Director and the MMS and control. determination of the transfer point. Regional Supervisor will make a joint determination of the transfer point. * * * * * PART 195Ð[AMENDED] Issued in Washington D.C. on November PART 192Ð[AMENDED] 1. The authority citation for part 195 12, 1997. 1. The authority citation for part 192 continues to read as follows: Richard B. Felder, continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60104, Associate Administrator for Pipeline Safety. [FR Doc. 97–30216 Filed 11–18–97; 8:45 am] Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60118; and 49 CFR 1.53. 60108, 60109, 60110, 60113, and 60118; 49 2. Section 195.1 is amended by BILLING CODE 4910±60±P CFR 1.53. adding a new paragraph (b)(6) and 2. Section 192.1 is amended by redesignating paragraphs (b)(6) through DEPARTMENT OF TRANSPORTATION adding paragraph (b)(5) to read as (b)(8) as paragraphs (b)(7) through (b)(9) follows: to read as follows: Research and Special Programs Administration § 192.1 Scope of part. § 195.1 Applicability. * * * * * * * * * * 49 CFR Parts 192 and 195 (b) * * * (b) * * * (5) On the Outer Continental Shelf (6) Transportation of hazardous liquid [Docket No. PS±101A, Amdt. 192±82 , 195± 60] upstream of the point at which or carbon dioxide in Outer Continental operating responsibility transfers from a Shelf pipelines which are located RIN 2137±AC 57 producing operator to a transporting upstream of the point at which operator. operating responsibility transfers from a Mandatory Participation in Qualified 3. Section 192.3 is amended by producing operator to a transporting One-Call Systems by Pipeline adding a definition in alphabetical order operator. Operators to read as follows: * * * * * AGENCY: Research and Special Programs § 192.3 Definitions. 3. Section 195.2 is amended by Administration (RSPA), DOT. * * * * * adding a definition in alphabetical order ACTION: Final rule. Outer Continental Shelf means all to read as follows: SUMMARY: This final rule requires that submerged lands lying seaward and § 195.2 Definitions. outside the area of lands beneath operators of onshore gas, hazardous navigable waters as defined in Section * * * * * liquid, and carbon dioxide pipelines 2 of the Submerged Lands Act (43 Outer Continental Shelf means all participate in qualified one-call systems U.S.C. 1301) and of which the subsoil submerged lands lying seaward and as part of the required excavation and seabed appertain to the United outside the area of lands beneath damage prevention programs. The rule States and are subject to its jurisdiction navigable waters as defined in Section also limits the current exclusion of and control. 2 of the Submerged Lands Act (43 certain small gas systems from U.S.C. 1301) and of which the subsoil compliance with the damage prevention * * * * * and seabed appertain to the United 4. Section 192.10 is added to read as program requirements. This final rule is States and are subject to its jurisdiction follows: intended to reduce excavation damage, and control. the largest single cause of pipeline § 192.10 Outer continental shelf pipelines. * * * * * failures. Operators of transportation pipelines 4. Section 195.9 is added to read as EFFECTIVE DATE: This final rule takes on the Outer Continental Shelf (as follows: effect May 18, 1998. 61696 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT: mandatory excavator participation, exempted from identifying excavators in Christina Sames by telephone at (202) State-wide coverage, and civil penalty the vicinity of the pipeline. RSPA also 366–4561 or through the Internet at enforcement. The national campaign proposed that small operators be [email protected], about this also works with selected states currently exempted from notifying excavators of document, or the Dockets Unit at (202) without one-call legislation or those the damage prevention program’s 366–5046, for copies of this document which need to strengthen existing existence and purpose and on how to or other material in the docket. legislation. learn the location of underground SUPPLEMENTARY INFORMATION: RSPA has also formed a Damage pipelines before excavation activities Prevention Quality Action Team to begin. In addition, RSPA proposed that One-Call Systems address third party damage to these small operators be exempted from A one-call system is a communication underground facilities including the requirement for a written damage system established individually or pipelines. The Team includes prevention program. These operators jointly by utilities, government agencies, representatives from RSPA, the natural would still be required to provide a or other operators of underground gas and hazardous liquid pipeline means of receiving and recording facilities to provide a single telephone industry, the telecommunications notification of planned excavation number (other methods of industry, States, one-call centers, and activities, to provide for notification of communication are also used) for the insurance and contracting persons who give notice of an intent to excavators and the public to call to industries. The Team is evaluating excavate of the type of temporary notify participating members of their existing damage prevention education marking to be used and how to identify intent to excavate. The one-call systems campaigns and will design and the markings, to provide for temporary receive the excavation notices and implement a national public education marking of buried pipelines in the area transmit them to operators of campaign to reduce third party damage. of excavation activity before, as far as underground pipeline facilities and Rulemaking Proposal (Docket No. PS– practical, the activity begins, and to other underground facilities that 101A) provide for the inspection of pipelines participate in the system. that the operator has reason to believe On March 20, 1995, RSPA issued a Upon receipt of the excavation could be damaged by excavation notice of proposed rulemaking (NPRM) notices, participating operators that activities. have underground facilities in the titled ‘‘Mandatory Participation in Under the proposed regulation, vicinity of the excavation arrange for the Qualified One-Call Systems by Pipeline pipeline operators would continue to timely identification and temporary Operators’’ (60 FR 14714). The NPRM receive and record the notification of marking of underground facilities. In proposed to remove the option in planned excavation activities using their addition, underground operators may §§ 192.614(a) and 195.442(a) that own personnel in areas where one-call inspect the site during the excavation permits a pipeline operator to receive systems are not yet established, or activities to ensure the safety of their and record notification of planned where a qualified one-call system is not underground facilities. excavation activities rather than to participate in a qualified one-call yet in place. However, operators would National One-Call Campaign and the system covering the area where the be required to join a qualified one-call Damage Prevention Quality Action operator’s pipeline is located. system once it was established. Team The NPRM proposed to require that Comments to the NPRM There are now 75 one-call systems pipeline operators only participate in operating in 49 states and the District of qualified one-call systems. A one-call RSPA received sixteen comments in Columbia. Not all of the operating one- system would be considered qualified if response to the NPRM. These call systems meet the qualifications for the state had adopted a one-call damage commenters represented natural gas and a ‘‘one-call notification system,’’ as prevention program in compliance with hazardous liquid pipeline operators, defined in 49 CFR 198.39. Hawaii and § 198.37. A one-call system would also industry trade associations, and Puerto Rico are currently without a one- be considered qualified if it operates in government agencies. call system. accordance with § 198.39, provides a All sixteen commenters voiced Forty-seven states and the District of pipeline operator the same opportunity general support for the NPRM. Among Columbia have damage prevention laws to participate in one-call system those in support, a state pipeline safety that, to varying degrees, govern the management that is offered to other agency commented that many states activities performed by excavators and owners of underground facilities, and have already instituted mandatory one- persons locating and temporarily assesses a participating pipeline call membership for regulated intrastate marking underground facilities. operator a fee that is proportionate to underground facility operators. However, most of the existing state the service provided by the one-call The majority of the commenters also damage prevention programs do not system. voiced a general opinion that all meet all of the requirements of § 198.37, The NPRM also proposed to extend underground facility operators and all ‘‘State one-call damage prevention the excavation damage prevention excavators should be required to program.’’ program requirements to petroleum gas participate in a qualified one-call To address the problem of incomplete systems subject to § 192.11 and to small system. Commenters recognized that national one-call coverage and the gas systems whose primary activity RSPA can only require regulated deficiencies in some existing one-call includes the transportation of gas. pipeline operators to participate in systems, RSPA has launched a national The NPRM proposed to limit the qualified one-call systems and campaign to encourage states to adopt current exemption for operators of gas supported RSPA’s current initiative to improved one-call notification systems. systems, including operators of master encourage all underground facility The national campaign targets states for meter systems, whose primary activity operators and all excavators to concentrated outreach to assist their does not include the transportation of participate in a qualified one-call efforts to upgrade current one-call gas. RSPA is sensitive to the minimum system. One commenter also supported systems. The campaign focuses on resources of these small operators and RSPA’s reduction of state grants to mandatory operator participation, proposed that small operators be states that do not establish mandatory Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61697 participation for all underground funding for redundant systems. In pipeline.’’ Two commenters utilities and excavators. addition, the commenters thought that recommended modifying the proposed One commenter recommended captive participation and funding might section to read ‘‘Assesses a participating clarification of the proposed language in create an incentive for the establishment pipeline operator a fee that is § 192.614(e) to ensure that municipal of multiple qualified one-call systems in proportionate to the operator’s gas systems are included in the damage a given area, thus reducing the one-call utilization of the one-call service.’’ prevention regulations. The commenter system effectiveness. RSPA has modified the proposed stated that the proposed wording could RSPA does not agree that multiple regulation in response to these be interpreted to exclude municipal gas one-calls will be created for the same recommendations. systems from certain damage prevention coverage area, or that the current regulations. Municipal gas systems are problem of overlapping coverage will be Additional Concerns on State currently required to have a damage prolonged, if an operator is required to Jurisdiction prevention program, and RSPA has join all qualified one-call centers that A state pipeline safety agency raised clarified the language in this final rule cover the operator’s pipeline system. concern about a state’s ability to impose to prevent misinterpretation. RSPA bases this on the fact that the one-call requirements on interstate Another commenter suggested that number of states mandating one-call pipeline operators. This rule should RSPA clarify that operators are not membership has been increasing while allay any concern about an interstate precluded from receiving calls directly the problem of overlapping coverage has operator’s required compliance with from individuals on activities near a been decreasing. If the problem of one-call damage prevention notification pipeline. Certain pipelines are required overlapping one-call coverage were to and marking requirements. Although a to be marked with line markers that increase with mandatory participation, state cannot impose pipeline safety show the location of that pipeline. as the commenters suggested, it should standards on an interstate operator, These line markers list the operator and have already occurred in the states RSPA urges interstate operators to a telephone number for individuals to mandating one-call participation. This comply with any other requirements a call to receive or transmit information has not happened. one-call system imposes as a condition on the pipeline. RSPA agrees that a RSPA does not see the need for an of membership. pipeline operator should be allowed to operator to join more than one qualified Presentation to Advisory Committees receive information directly from one-call system in overlapping coverage individuals on activities near the areas, if there is a central telephone On November 8 and 9, 1995, RSPA operator’s pipeline. This final rule does number for excavators to call for presented the NPRM and the comments not preclude that from occurring. excavation activities, or if the one-call received on the NPRM to its two Other recommended changes to the systems in those areas communicate pipeline advisory committees, the NPRM focused on the problem of with one another. A central telephone Technical Pipeline Safety Standards overlapping one-call service areas, and number can forward an intent to Committee (TPSSC) and the Technical the terms ‘‘disproportionate cost’’ and excavate to multiple one-call systems. Hazardous Liquid Pipeline Safety ‘‘coverage.’’ These recommended This allows an operator to join a single Standards Committee (THLPSSC). changes are discussed below. one-call system and still receive all On November 8, 1995, the THLPSSC notices of intent to excavate that may discussed and unanimously supported Comments on Overlapping One-Call affect the operator’s pipeline. One-call mandating pipeline operator Service Areas systems that communicate notices of participation in qualified one-call There are limited areas of the United intent to excavate to other one-call systems with one minor modification to States, primarily in the northwest and in systems also allow an operator to join a the wording used in the NPRM. The the state of Texas, where more than one single one-call system and still receive THLPSSC recommended that RSPA one-call system covers the same service all notices of intent to excavate that may modify § 195.442(b)(2)(iii) to remove the area. In areas of overlapping one-call affect the pipeline. Both situations end double negative. The suggested wording coverage, excavators may need to call the need for an operator to join several reads ‘‘Assesses a participating pipeline several one-call systems to ensure that one-call systems in areas of overlapping operator a fee that is proportionate to all underground utilities are informed of coverage. the costs of the one-call system’s excavation activities. In addition, States that have overlapping one-call coverage of the operator’s pipeline.’’ underground utility operators may need coverage are actively working to The THLPSSC also discussed the to join several one-call systems to alleviate the problem. As an example, problem of overlapping one-call ensure that they are informed of all Texas has recently passed legislation coverage and the possible actions that excavation activities near the pipeline. that will create a central number for could be taken in these areas. The These problems are alleviated if the excavators to call. In addition, several of THLPSSC discussed requiring a state has a central telephone number for the states in the northwest that have pipeline operator to only join one excavators to call for excavation small areas of overlapping coverage are qualified one-call system in areas of activities, or if the one-call systems in currently referring excavators to a overlapping one-call coverage, on the the areas of overlapping coverage central number. Both alleviate the need condition that the operator’s entire communicate with one another. for an operator to join more than a system in the overlapping area be Three commenters and an industry single one-call system covering its covered by the single one-call system. trade association stated that operators pipeline. RSPA has studied the possible should not be required to join more than consequences of this action and believes a single qualified one-call system for a Disproportionate Cost and Coverage there is a safety issue. If an operator given area. One commenter stated that The NPRM proposed that pipeline joins a single one-call system in an if an excavator is required to make more operators join a one-call system that overlapping coverage area, an excavator than one call, there is no true one-call ‘‘assesses a participating pipeline could call the one-call system the system. Two commenters thought the operator a fee that is not operator has not joined. The excavator NPRM might prolong the problem by disproportionate to the costs of the one- may not understand that another call providing captive participation and call system’s coverage of the operator’s has to be made to obtain the location of 61698 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations additional underground facilities overlapping one-call coverage. RSPA International, the cost for a pipeline covered by the other one-call system. has not adopted this recommendation operator to participate in a qualified The excavator may believe it is safe to due to the possible safety issues. one-call system should be dig in the area when, in fact, there is a However, RSPA does not see the need approximately the same or slightly less pipeline or other underground utility in for a pipeline operator to join more than than if the operator performed the the area. This could lead to a hazardous a single one-call system if there is a excavation damage prevention duties liquid release, explosion, or possible central telephone number for excavators independently. Therefore, operators that death. Therefore, RSPA will not pursue to call, or if the one-call systems in the are required to meet the current damage this action. overlapping coverage area communicate prevention program requirements, but On November 9, 1995, the TPSSC with each other. RSPA is taking into who have not joined a qualified one-call voted six to five in favor of the proposed consideration the TPSSC’s system, should incur little or no regulation and several modifications. recommendation to modify § 198.37 to additional cost. Those opposed were concerned with the require one-call systems to Operators in areas with no qualified recommendation to modify § 198.39, communicate with one another in areas one-call systems would continue to made by other committee members, and of overlapping one-call coverage before receive and record notifications of not with the overall intent of the NPRM. they are considered a qualified one-call planned excavation activities with their This recommendation is discussed system. A new NPRM will be issued if own personnel and would incur no below in further detail. RSPA pursues the recommendation. additional cost. However, operators The TPSSC recommended that would be required to join a qualified pipeline operators only participate in Rulemaking Analyses one-call system once one was one qualified one-call system in areas of Executive Order 12866 and DOT established. overlapping one-call coverage. In Regulatory Policies and Procedures 49 U.S.C. 60102(b)(3) requires RSPA’s conjunction with that recommendation, technical advisory committees to serve This final rule is not considered a the TPSSC proposed that RSPA modify, as peer review panels for the cost/ significant regulatory action under through a new NPRM, § 198.39, benefit analysis that accompanies each section 3(f) of Executive Order 12866 ‘‘Qualifications for operation of one-call rulemaking. The THLPSSC and the and, therefore, was not subject to review notification system.’’ The proposed TPSSC have reviewed the cost/benefit by the Office of Management and modification would require a one-call information contained in this final rule Budget. The final rule is also not system to communicate with all other and three-fourths of the members have considered significant under the one-call systems in areas of overlapping voted to forego a formal analysis and Regulatory Policies and Procedures of coverage before that one-call system report on the merits of the data, the the Department of Transportation (44 FR could be considered qualified. methods used in the cost/benefit 11034). The TPSSC recommended that the analysis, and any recommended options The final rule requires that operators modification to § 198.39 be done in relating to the cost/benefit analysis. conjunction with the requirement that of interstate and intrastate pipelines Based on the above, this rule is not pipeline operators need only join one participate in qualified one-call systems. considered to be significant under qualified one-call system in areas of It requires less stringent standards for Executive Order 12866. A complete text overlapping jurisdiction. The TPSSC participation of small entities, including of the regulatory evaluation is available recognized that RSPA could not modify master meter operators, whose primary for review in this docket. part 198 in this final rule and some activity does not include the members were concerned that transportation of gas. Executive Order 12612 implementing the actions at different Presently, approximately 75 one-call The final rule has been analyzed in times would cause undue problems. systems operate in 49 states and the accordance with the principles and Their six to five vote reflects these District of Columbia. These one-call criteria in Executive Order 12612 concerns. systems perform many of the duties (‘‘Federalism’’), and does not have The TPSSC also followed the required under parts 192 and 195 for an sufficient federalism impacts to warrant THLPSSC’s recommended modification excavation damage prevention program. the preparation of a federalism of § 195.442(b)(2)(iii) by unanimously Many pipeline operators already assessment. concurring that § 192.614(b)(2)(iii) be participate in these one-call systems on modified to remove the double negative. a voluntary or state-mandated basis. Unfunded Mandates Reform Act of The recommended wording would read Forty-seven states and the District of 1995 ‘‘Assesses a participating pipeline Columbia have damage prevention laws This rule does not impose unfunded operator a fee that is proportionate to that, to varying degrees, govern the mandates under the Unfunded the costs of the one-call system’s activities performed by excavators and Mandates Reform Act of 1995. It does coverage of the operator’s pipeline.’’ persons locating and temporarily not result in costs or $100 million or marking underground facilities. Twenty- more to either State, local, or tribal Amendments eight states and the District of Columbia governments, in the aggregate, or to the RSPA has adopted the TPSSC’s and mandate one-call participation by most private sector, and is the least THLPSSC’s recommended wording of commercial underground facility burdensome alternative that achieves §§ 192.614(b)(2)(iii) and owners and operators. Therefore, many the objective to the rule. 195.442(b)(2)(iii) and has removed the of the operators that this final rule double negative. RSPA has also clarified covers already have some form of an Regulatory Flexibility Act § 192.614(e) to ensure that municipal excavation damage prevention program This final rule extends the excavation gas systems are included in the damage and should incur little or no additional damage prevention program prevention regulations. cost as a result of this final rule. requirements to petroleum gas systems RSPA has not adopted the Based on available data and subject to § 192.11 and to small gas recommendation to require pipeline discussions with the American Gas systems whose primary activity operators to participate in only one Association, the American Public Works includes the transportation of gas. It also qualified one-call system in areas of Association, and One-Call Systems limits the current exemption for Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61699 operators of gas systems whose primary receive and record notifications of pipeline system must be covered by a activity does not include the planned excavation activities with their qualified one-call system where there is transportation of gas. However, the final own personnel and would incur no one in place. For the purpose of this rule is sensitive to the minimum additional paperwork burden as a result section, a one-call system is considered resources of these small operators. of this final rule. a ‘‘qualified one-call system’’ if it meets Operators whose primary activity the requirements of section (b)(1) or List of Subjects does not include the transportation of (b)(2) of this section. gas, such as master meter operators, are 49 CFR Part 192 (1) The state has adopted a one-call exempted from the requirement that the damage prevention program under Pipeline safety, Reporting and damage prevention program be written. § 198.37 of this chapter; or recordkeeping requirements. This is one of the most costly parts of (2) The one-call system: this regulation. These operators are 49 CFR Part 195 (i) Is operated in accordance with exempted from the requirements to § 198.39 of this chapter; Anhydrous ammonia, Carbon dioxide, identify persons who normally engage (ii) Provides a pipeline operator an Petroleum, Pipeline safety, Reporting in excavation activities in the area in opportunity similar to a voluntary and recordkeeping requirements. which the pipeline is located, and to participant to have a part in provide actual notification to those In consideration of the foregoing, management responsibilities; and identified persons on the damage RSPA amends 49 CFR parts 192 and 195 (iii) Assesses a participating pipeline prevention program’s existence and as follows: operator a fee that is proportionate to purpose and on how to learn the the costs of the one-call system’s PART 192Ð[AMENDED] location of underground pipelines coverage of the operator’s pipeline. before excavation activities begin. 1. The authority citation for part 192 (c) * * * Because little excavation activity occurs continues to read as follows: (2) Provides for notification of the in areas where master meter operators public in the vicinity of the pipeline Authority: 49 U.S.C. 5102, 60102, 60104, operate, the cost of joining a one-call and actual notification of the persons 60108, 60109, 60110, 60113, 60118; 49 CFR identified in paragraph (c)(1) of this system for these small operators should 1.53. be minimal. section of the following as often as Based on these facts, I certify that this 2. Section 192.614 is amended by needed to make them aware of the final rule will not, if promulgated, have revising paragraph (a), by removing damage prevention program: a significant economic impact on a paragraph (c)(4), by redesignating * * * * * substantial number of small entities. paragraphs (b) and (c) as (c) and (d), by (e) Pipelines operated by persons This certification is subject to revising the introductory text of newly other than municipalities (including modification as a result of a review of redesignated (c)(2), and by adding operators of master meters) whose comments received in response to this paragraphs (b) and (e) as follows: primary activity does not include the final rule. § 192.614 Damage prevention program. transportation of gas need not comply Paperwork Reduction Act with the following: (a) Except as provided in paragraphs (1) The requirement of paragraph (a) This final rule will require no (d) and (e) of this section, each operator of this section that the damage additional increase in the current of a buried pipeline must carry out, in prevention program be written; and information collection burden accordance with this section, a written (2) The requirements of paragraphs requirements for gas pipeline operators program to prevent damage to that (c)(1) and (c)(2) of this section. and hazardous liquid and carbon pipeline from excavation activities. For dioxide operators. Twenty-eight states the purpose of this section, the term PART 195Ð[AMENDED] and the District of Columbia mandate ‘‘excavation activities’’ includes one-call participation by most excavation, blasting, boring, tunneling, 3. The authority citation for part 195 commercial underground facility backfilling, the removal of aboveground continues to read as follows: owners and operators. In addition, many structures by either explosive or Authority: 49 U.S.C. 60102, 60104, 60108, operators already voluntarily participate mechanical means, and other 60109; 49 CFR 1.53. in qualified one-call systems. Therefore, earthmoving operations. 4. Section 195.442 is amended by many of the operators that this final rule (b) An operator may comply with any revising paragraph (a), by redesignating covers already participate in qualified of the requirements of paragraph (c) of paragraphs (b) and (c) as (c) and (d), by one-call systems and should incur no this section through participation in a revising the introductory text of newly additional paperwork burden as a result public service program, such as a one- redesignated (c)(2), and adding of this final rule. call system, but such participation does paragraph (b) to read as follows: Based on available data and not relieve the operator of responsibility discussions with One-Call Systems for compliance with this section. § 195.442 Damage prevention program. International, the paperwork burden for However, an operator must perform the (a) Except as provided in paragraph a pipeline operator to participate in a duties of paragraph (c)(3) of this section (d) of this section, each operator of a qualified one-call system should be less through participation in a one-call buried pipeline must carry out, in than if the operator performed the system, if that one-call system is a accordance with this section, a written excavation damage prevention duties qualified one-call system. In areas that program to prevent damage to that independently. Therefore, operators that are covered by more than one qualified pipeline from excavation activities. For are required to meet the current damage one-call system, an operator need only the purpose of this section, the term prevention program requirements, but join one of the qualified one-call ‘‘excavation activities’’ includes who have not joined a qualified one-call systems if there is a central telephone excavation, blasting, boring, tunneling, system, should incur little or no number for excavators to call for backfilling, the removal of aboveground additional paperwork burden. excavation activities, or if the one-call structures by either explosive or Operators in areas with no qualified systems in those areas communicate mechanical means, and other one-call systems would continue to with one another. An operator’s earthmoving operations. 61700 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

(b) An operator may comply with any DEPARTMENT OF COMMERCE zero. In addition, in the Gulf of Mexico of the requirements of paragraph (c) of on board a vessel for which a this section through participation in a National Oceanic and Atmospheric commercial vessel permit for Gulf reef public service program, such as a one- Administration fish has been issued, the bag and possession limits for red snapper are call system, but such participation does 50 CFR Part 622 not relieve the operator of responsibility zero, without regard to where the red for compliance with this section. [Docket No. 970730185±7206±02; I.D. snapper were harvested. 111297D] However, an operator must perform the Classification duties of paragraph (c)(3) of this section Fisheries of the Caribbean, Gulf of This action is taken under 50 CFR through participation in a one-call Mexico, and South Atlantic; Reef Fish 622.43(a) and is exempt from review system, if that one-call system is a Fishery of the Gulf of Mexico; Closure under E.O. 12866. qualified one-call system. In areas that of the Recreational Red Snapper Authority: 16 U.S.C. 1801 et seq. are covered by more than one qualified Component one-call system, an operator need only Dated: November 13, 1997. join one of the qualified one-call AGENCY: National Marine Fisheries Richard W. Surdi, systems if there is a central telephone Service (NMFS), National Oceanic and Acting Director, Office of Sustainable number for excavators to call for Atmospheric Administration (NOAA), Fisheries, National Marine Fisheries Service. excavation activities, or if the one-call Commerce. [FR Doc. 97–30294 Filed 11–14–97; 10:41 systems in those areas communicate ACTION: Closure. am] BILLING CODE 3510±22±F with one another. An operator’s SUMMARY: NMFS closes the recreational pipeline system must be covered by a fishery for red snapper in the exclusive qualified one-call system where there is economic zone (EEZ) of the Gulf of DEPARTMENT OF COMMERCE one in place. For the purposes of this Mexico. NMFS has determined that the section, a one-call system is considered annual recreational quota for red National Oceanic and Atmospheric a ‘‘qualified one-call system’’ if it meets snapper will have been reached by Administration the requirements of section (b)(1) or November 26, 1997. This closure is (b)(2) or this section. necessary to protect the red snapper 50 CFR Part 660 (1) The state has adopted a one-call resource. [Docket No. 961227373±6373±01; I.D. damage prevention program under DATES: Closure is effective 12:01 a.m., 111297A] § 198.37 of this chapter; or local time, November 27, 1997, through December 31, 1997. Fisheries off West Coast States and in (2) The one-call system: FOR FURTHER INFORMATION CONTACT: the Western Pacific; Pacific Coast (i) Is operated in accordance with Robert Sadler, 813–570–5305. Groundfish Fishery; Trip Limit Changes § 198.39 of this chapter; SUPPLEMENTARY INFORMATION: The reef (ii) Provides a pipeline operator an fish fishery of the Gulf of Mexico is AGENCY: National Marine Fisheries opportunity similar to a voluntary managed under the Fishery Service (NMFS), National Oceanic and participant to have a part in Management Plan for the Reef Fish Atmospheric Administration (NOAA), management responsibilities; and Resources of the Gulf of Mexico (FMP). Commerce. The FMP was prepared by the Gulf of ACTION: (iii) Assesses a participating pipeline Fishing restrictions; request for Mexico Fishery Management Council comments. operator a fee that is proportionate to and is implemented under the authority the costs of the one-call system’s of the Magnuson-Stevens Fishery SUMMARY: NMFS announces further coverage of the operator’s pipeline. Conservation and Management Act by routine management measures adjusting (c) * * * regulations at 50 CFR part 622. Those the Pacific Coast groundfish limited entry fisheries for the Sebastes complex (2) Provides for notification of the regulations set the recreational quota for red snapper in the Gulf of Mexico at and its components, canary and public in the vicinity of the pipeline yellowtail rockfish, and the Dover sole, and actual notification of persons 4.47 million lb (2.03 million kg) for the current fishing year, January 1 through thornyhead, trawl-caught sablefish identified in paragraph (c)(1) of this (DTS) complex and all its components. section of the following as often as December 31, 1997. Under 50 CFR 622.43(a), NMFS is These actions are authorized by needed to make them aware of the required to close the recreational fishery regulations implementing the Pacific damage prevention program: for red snapper when its quota is Coast Groundfish Fishery Management * * * * * reached, or is projected to be reached, Plan (FMP), which governs the Issued in Washington, D.C. on November by publishing a notification to that groundfish fishery off Washington, 13, 1997. effect in the Federal Register. Based on Oregon, and California. These changes Kelley S. Coyner, current statistics, NMFS has determined are intended to keep landings close to Acting Administrator. that the recreational quota for red the 1997 harvest guidelines and allocations for these species. [FR Doc. 97–30290 Filed 11–18–97; 8:45 am] snapper will have been reached by November 26, 1997. Accordingly, the DATES: Effective from 0001 hours (local BILLING CODE 4910±60±P recreational fishery in the EEZ in the time) November 16, 1997, including Gulf of Mexico for red snapper is closed trawl vessels operating in the B platoon. effective 12:01 a.m., local time, These changes remain in effect, unless November 27, 1997, through December modified, superseded or rescinded, 31, 1997. until the effective date of the 1998 During the closure, the bag and annual specifications and management possession limits for red snapper in or measures for the Pacific Coast from the EEZ in the Gulf of Mexico are groundfish fishery, which will be Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations 61701 published in the Federal Register. than expected, most likely due to poor sablefish coastwide, 6,000 lb (2,722 kg); Comments will be accepted through weather and reduced fishing effort in for Dover sole north of Cape Mendocino, December 4, 1997. October. If rates do not change, landings 15,000 lb (6,804 kg); and for ADDRESSES: Submit comments to of yellowtail rockfish would be 22 thornyheads coastwide, 7,500 lb (3,402 William Stelle, Jr., Administrator, percent below its harvest guideline, and kg), of which no more than 1,500 lb (680 Northwest Region (Regional canary rockfish would be 14 percent kg) could be shortspine thornyheads. Administrator), National Marine below its harvest guideline at the end of The 1-month cumulative trip limit for Fisheries Service, 7600 Sand Point Way the year. Therefore, the Council sablefish was reduced on October 1, NE., Seattle, WA 98115–0070; or recommended increasing the 1-month 1997 (62 FR 51814, October 3, 1997), William Hogarth, Acting Administrator, cumulative trip limits for yellowtail and and a 1-month cumulative trip limit was Southwest Region, National Marine canary rockfish at the earliest date so set for Dover sole south of Cape Fisheries Service, 501 West Ocean that the industry would have an Mendocino; previously Dover sole could Blvd., Suite 4200, Long Beach, CA opportunity to achieve the harvest comprise the amount of DTS limit that 90802–4213. guidelines for these species. The trip was left over after taking sablefish and limit for bocaccio is not changed. thornyheads. As a result, the limited FOR FURTHER INFORMATION CONTACT: The new 1-month cumulative trip entry fishery for the DTS complex and William L. Robinson at 206–526–6140 limits for the Sebastes complex are: its components is currently managed or Rodney McInnis at 562–980–4040. 40,000 lb (18,144 kg) north of Cape under a 1-month cumulative trip limit SUPPLEMENTARY INFORMATION: The Mendocino and 80,000 lb (36,287 kg) of 11,000 lb (4,990 kg) north of Cape following changes to current south of Cape Mendocino. Within these Mendocino. Within these 1-month management measures are based on the 1-month cumulative limits, no more cumulative limits, no more than 1,500 best available information, and were than 20,000 lb (9,072 kg) may be lb (680 kg) may be Dover sole north of recommended by the Pacific Fishery yellowtail rockfish north of Cape Cape Mendocino, no more than 2,000 lb Management Council (Council), in Mendocino, no more than 5,000 lb (907 kg) may be sablefish coastwide, consultation with the States of (2,268 kg) may be bocaccio south of and no more than 7,500 lb (3,402 kg) Washington, Oregon, and California at Cape Mendocino, and no more than may be thornyheads coastwide. No more its November 4–7, 1997, meeting in 15,000 lb (6,804 kg) may be canary than 1,500 lb (680 kg) of the Portland, OR. rockfish coastwide. thornyheads may be shortspine The Sebastes Complex. The Sebastes Dover Sole, Thornyheads, and Trawl- thornyheads. The same limits for complex consists of all rockfish Caught Sablefish (the DTS Complex). In sablefish and thornyheads apply south managed by the FMP except Pacific January 1997 (62 FR 700, January 6, of Cape Mendocino, but the limit for ocean perch (POP), widow rockfish, 1997), the 2-month cumulative trip limit Dover sole is 30,000 lb (13,608 kg), shortbelly rockfish, and thornyheads. for the DTS complex was 70,000 lb which changes the DTS limit in that On January 1, 1997 (62 FR 700, January (31,752 kg) north of Cape Mendocino area to 39,500 lb (17,917 kg). As of 6, 1997), the limited entry fishery for the and 100,000 lb (45,359 kg) south of Cape October 1, 1997, the cumulative limit Sebastes complex was managed under a Mendocino. Within this 2-month for the DTS complex is the sum of the 2-month cumulative trip limit of 30,000 cumulative limit, no more than 38,000 cumulative limits of its components. lb (13,608 kg) north of Cape Mendocino lb (17,236 kg) could be Dover sole north Reduced effort in October, likely due ° (40 30’ N. lat.) and 150,000 lb (68,039 of Cape Mendocino, and coastwide no to bad weather and extremely low kg) south of Cape Mendocino. Within more than 12,000 lb (5,443 kg) could be cumulative trip limits, resulted in much these 2-month cumulative limits for the trawl-caught sablefish and no more than lower landings than expected. The best Sebastes complex, no more than 6,000 20,000 lb (9,072 kg) could be available information at the November lb (2,722 kg) could be yellowtail thornyheads. No more than 4,000 lb 1997 Council meeting indicated that the rockfish north of Cape Mendocino, no (1,814 kg) of the thornyheads could be harvest guidelines for all three species more than 12,000 lb (5,443 kg) could be shortspine thornyheads. would not be reached in 1998 if current bocaccio south of Cape Mendocino, and On May 1, 1997 (62 FR 24845, May landing rates continued. Dover sole is no more than 14,000 lb (6,350 kg) could 7, 1997), the 2-month cumulative trip expected to be 12 percent below its be canary rockfish coastwide. On May 1, limits were reduced for Dover sole north coastwide harvest guideline, and trawl- 1997 (62 FR 24845, May 7, 1997), the 2- of Cape Mendocino to 30,000 lb (13,608 caught sablefish is projected to be 7 month cumulative trip limit for kg)), and for thornyheads coastwide to percent below its trawl allocation. bocaccio was reduced to 10,000 lb 15,000 lb (6,804 kg), of which only Landings of longspine and shortspine (4,536 kg), so that its harvest guideline 3,000 lb (1,361 kg) could be shortspine thornyheads are projected to be 35 and would not be exceeded. However, thornyheads. The 2-month cumulative 19 percent below their harvest landings were lower than expected, and limit for the DTS complex north of Cape guidelines, respectively, by the end of on October 1, 1997 (62 FR 51814, Mendocino increased by the same the year. Consequently, the Council October 3, 1997), the 2-month amount to 57,000 lb (25,855 kg), while recommended increasing the 1-month cumulative trip limits were converted to remaining at 100,000 lb (45,359 kg) cumulative trip limits for these species 1-month limits and increased to 5,000 lb south of Cape Mendocino. The to the end of the year to keep landings (2,268 kg) per month for yellowtail coastwide 2-month cumulative trip limit of the DTS complex and its components rockfish and 10,000 lb (4,534 kg) per for sablefish remained at 12,000 lb within the 1997 harvest guidelines and month for canary rockfish. This (5,443 kg). allocations without increasing discards. increased the Sebastes complex limits to On September 1 (62 FR 36228, July 7, Current trip limits are so low that it is 20,000 lb (9,072 kg) per month north of 1997) the 2-month cumulative trip felt that these increases will enable Cape Mendocino and 75,000 lb (34,020 limits for the DTS complex and its fishermen to land fish that otherwise kg) per month south of Cape components were converted to 1-month may have been caught and discarded. Mendocino. cumulative limits: For the DTS The new monthly limits for the DTS The best available information at the complex, 28,500 lb (12,927 kg) north of complex are 16,000 lb (7,257 kg) north November 1997 Council meeting Cape Mendocino and 50,000 lb (22,680 of Cape Mendocino, and 43,000 lb indicated that landings still were lower kg) south of Cape Mendocino; for (19,504 kg) south of Cape Mendocino. 61702 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Rules and Regulations

Within these limits, no more than 3,000 1. For yellowtail rockfish, canary Dover sole, and no more than 10,000 lb lb (1,361 kg) may be Dover sole north of rockfish, and the Sebastes complex, (4,536 kg) may be thornyheads. No more Cape Mendocino and 30,000 lb (13,608 paragraphs C.(2)(a)(i) and (ii) of section than 3,000 lb (1,361 kg) of the kg) south of Cape Mendocino (no IV. (regarding cumulative trip limits in thornyheads may be shortspine change to southern Dover sole); no more the limited entry fishery) are amended, thornyheads. than 3,000 lb (1,361 kg) coastwide may to read as follows: (ii) South of Cape Mendocino. The be trawl-caught sablefish; and no more C. Sebastes Complex (including cumulative trip limit for the DTS than 10,000 lb (4,536 kg) coastwide may Bocaccio, Yellowtail, and Canary complex taken and retained south of be thornyheads. No more than 3,000 lb Rockfish) Cape Mendocino is 43,000 lb (19,504 kg) (1,361 kg) of the thornyheads may be * * * * * per vessel per 1-month period. Within shortspine thornyheads. (2) * * * this cumulative trip limit, no more than Implementation. These changes are (a) * * * 3,000 lb (1,361 kg) may be sablefish, no implemented in the middle of a 1- (i) North of Cape Mendocino. The more than 30,000 lb (13,608 kg) may be month cumulative trip limit period for cumulative trip limit for the Sebastes Dover sole, and no more than 10,000 lb the ‘‘A’’ platoon (whose cumulative trip complex taken and retained north of limits begin at the beginning of a (4,536 kg) may be thornyheads. No more Cape Mendocino is 40,000 lb (18,144 kg) than 3,000 lb (1,361 kg) of the month). The new limits are the total per vessel per 1-month period. Within amount that may be landed in thornyheads may be shortspine this cumulative trip limit for the thornyheads. November. Therefore, the ‘‘A’’ platoon Sebastes complex, no more than 20,000 will have the opportunity to harvest the lb (9,072 kg) may be yellowtail rockfish * * * * * new limits in both November and taken and retained north of Cape Classification December. Two-month cumulative trip Mendocino, and no more than 15,000 lb limits and the 60 percent monthly limits (6,804 kg) may be canary rockfish. These actions are authorized by the remain in effect only for POP, widow (ii) South of Cape Mendocino. The regulations implementing the FMP. The rockfish, and lingcod. cumulative trip limit for the Sebastes determination to take these actions is For vessels in the ‘‘B’’ platoon (whose complex taken and retained south of based on the most recent data available. cumulative trip limits begin on Cape Mendocino is 80,000 lb (36,287 kg) The aggregate data upon which the November 16, 1997) the final 2-month per vessel per 1-month period. Within determinations are based are available cumulative trip limits for POP, widow this cumulative trip limit for the for public inspection at the office of the rockfish, and lingcod apply to the 6- Sebastes complex, no more than 5,000 Administrator, Northwest Region, week period from November 16, 1997, lb (2,268 kg) may be bocaccio taken and NMFS (see ADDRESSES) during business through December 31, 1997, and there is retained south of Cape Mendocino, and hours. Because this action relieves a no 60 percent monthly limit for this no more than 15,000 lb (6,804 kg) may burden and must be implemented period. In addition, the equivalent of be canary rockfish. swiftly to relieve the burden, and two 1-month cumulative trip limits for * * * * * because the public had an opportunity the Sebastes complex and its to comment on the action at the components and for the DTS complex 2. For the DTS complex, paragraph E.(2)(b) of section IV. (regarding limited November 1997 Council meeting, NMFS and its components may be landed has determined that good cause exists during the 6-week period from entry trip and size limits) is revised, to read as follows: for this document to be published November 16, 1997 through December without affording additional prior 31, 1997. (In the previous Federal E. Sablefish and the DTS Complex opportunity for public comment or a 30- Register notice (62 FR 51814, October 3, (Dover Sole, Thornyheads, and Trawl- day delayed effectiveness period. These 1997), reference to lingcod describing Caught Sablefish) actions are taken under the authority of the final cumulative period for the ‘‘B’’ * * * * * 50 CFR 660.323(b)(1), and are exempt platoon was inadvertently deleted.) (2) * * * (b) * * * from review under E.O. 12866. NMFS Action (i) North of Cape Mendocino. The Authority: 16 U.S.C. 1801 et seq. cumulative trip limit for the DTS For the reasons stated above, NMFS Dated: November 14, 1997. concurs with the Council’s complex taken and retained north of recommendations and makes the Cape Mendocino is 16,000 lb (7,257 kg) Richard W. Surdi, following changes to the 1997 annual per vessel per 1-month period. Within Acting Director, Office of Sustainable management measures (62 FR 700, this cumulative trip limit, no more than Fisheries, National Marine Fisheries Service January 6, 1997, as modified at 62 FR 3,000 lb (1,361 kg) may be sablefish, no [FR Doc. 97–30386 Filed 11–14–97; 4:37 pm] 51815, October 3, 1997). more than 3,000 lb (1,361 kg) may be BILLING CODE 3510±22±F 61703

Proposed Rules Federal Register Vol. 62, No. 223

Wednesday, November 19, 1997

This section of the FEDERAL REGISTER be examined at the FAA, Transport SHERPA and SD3 SHERPA series contains notices to the public of the proposed Airplane Directorate, 1601 Lind airplanes. The CAA advises that issuance of rules and regulations. The Avenue, SW., Renton, Washington. incorrect material had been specified on purpose of these notices is to give interested FOR FURTHER INFORMATION CONTACT: a detail drawing of the oxygen system. persons an opportunity to participate in the This problem was discovered during rule making prior to the adoption of the final International Branch, ANM–116, FAA, rules. Transport Airplane Directorate, 1601 manufacturing. The drawing incorrectly Lind Avenue, SW., Renton, Washington specified that the tubing to be installed 98055–4056; telephone (425) 227–2110; should be made from aluminum rather DEPARTMENT OF TRANSPORTATION fax (425) 227–1149. than stainless steel. This condition, if not corrected, could result in bursting of Federal Aviation Administration SUPPLEMENTARY INFORMATION: the aluminum alloy tubing and releasing Comments Invited of a high-pressure oxygen flow into the 14 CFR Part 39 Interested persons are invited to passenger cabin, which could result in [Docket No. 97±NM±118±AD] participate in the making of the a fire hazard during flight. RIN 2120±AA64 proposed rule by submitting such Explanation of Relevant Service written data, views, or arguments as Information Airworthiness Directives; Short they may desire. Communications shall Brothers Model SD3±60 SHERPA and identify the Rules Docket number and Short Brothers has issued Service SD3 SHERPA Series Airplanes be submitted in triplicate to the address Bulletins SD3–60 SHERPA–35–1 and specified above. All communications SD3 SHERPA–35–2, both dated April 8, AGENCY: Federal Aviation received on or before the closing date 1997, which describe a procedure for Administration, DOT. for comments, specified above, will be removing the existing aluminum alloy ACTION: Notice of proposed rulemaking considered before taking action on the oxygen pipe assembly and replacing it (NPRM). proposed rule. The proposals contained with a stainless steel assembly. in this notice may be changed in light Accomplishment of the actions SUMMARY: This document proposes the specified in the service bulletins is adoption of a new airworthiness of the comments received. Comments are specifically invited on intended to adequately address the directive (AD) that is applicable to all the overall regulatory, economic, identified unsafe condition. The CAA Short Brothers Model SD3–60 SHERPA environmental, and energy aspects of classified these service bulletins as and SD3 SHERPA series airplanes. This the proposed rule. All comments mandatory to assure the continued proposal would require removing the submitted will be available, both before airworthiness of these airplanes in the aluminum alloy oxygen pipe assembly and after the closing date for comments, United Kingdom. and replacing it with a stainless steel in the Rules Docket for examination by assembly. This proposal is prompted by FAA’s Conclusions interested persons. A report the issuance of mandatory continuing summarizing each FAA-public contact These airplane models are airworthiness information by a foreign concerned with the substance of this manufactured in the United Kingdom civil airworthiness authority. The proposal will be filed in the Rules and are type certificated for operation in actions specified by the proposed AD Docket. the United States under the provisions are intended to prevent aluminum Commenters wishing the FAA to of section 21.29 of the Federal Aviation oxygen tubing from bursting and acknowledge receipt of their comments Regulations (14 CFR 21.29) and the releasing a high-pressure oxygen flow submitted in response to this notice applicable bilateral airworthiness into the passenger cabin, which could must submit a self-addressed, stamped agreement. Pursuant to this bilateral result in a fire hazard during flight. postcard on which the following airworthiness agreement, the CAA has DATES: Comments must be received by statement is made: ‘‘Comments to kept the FAA informed of the situation December 19, 1997. Docket Number 97–NM–118–AD.’’ The described above. The FAA has ADDRESSES: Submit comments in postcard will be date stamped and examined the findings of the CAA, triplicate to the Federal Aviation returned to the commenter. reviewed all available information, and Administration (FAA), Transport determined that AD action is necessary Airplane Directorate, ANM–103, Availability of NPRMs for products of this type design that are Attention: Rules Docket No. 97–NM– Any person may obtain a copy of this certificated for operation in the United 118–AD, 1601 Lind Avenue, SW., NPRM by submitting a request to the States. Renton, Washington 98055–4056. FAA, Transport Airplane Directorate, Explanation of Requirements of Comments may be inspected at this ANM–103, Attention: Rules Docket No. Proposed Rule location between 9:00 a.m. and 3:00 97–NM–118–AD, 1601 Lind Avenue, p.m., Monday through Friday, except SW., Renton, Washington 98055–4056. Since an unsafe condition has been Federal holidays. identified that is likely to exist or The service information referenced in Discussion develop on other airplanes of the same the proposed rule may be obtained from The Civil Aviation Authority (CAA), type design registered in the United Short Brothers, Airworthiness & which is the airworthiness authority for States, the proposed AD would require Engineering Quality, P.O. Box 241, the United Kingdom, notified the FAA accomplishment of the actions specified Airport Road, Belfast BT3 9DZ, that an unsafe condition may exist on in the service bulletins described Northern Ireland. This information may all Short Brothers Model SD3–60 previously. 61704 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

Cost Impact PART 39ÐAIRWORTHINESS a location where the requirements of this AD DIRECTIVES can be accomplished. The FAA estimates that 9 Short Issued in Renton, Washington, on Brothers Model SD3–60 SHERPA and 1. The authority citation for part 39 November 13, 1997. SD3 SHERPA series airplanes of U.S. continues to read as follows: James V. Devany, registry would be affected by this Authority: 49 U.S.C. 106(g), 40113, 44701. Acting Manager, Transport Airplane proposed AD, that it would take Directorate, Aircraft Certification Service. approximately 4 work hours per § 39.13 [Amended] [FR Doc. 97–30329 Filed 11–18–97; 8:45 am] airplane to accomplish the proposed 2. Section 39.13 is amended by BILLING CODE 4910±13±P actions, and that the average labor rate adding the following new airworthiness is $60 per work hour. Required parts directive: would cost $60 per airplane. Based on DEPARTMENT OF TRANSPORTATION these figures, the cost impact of the Short Brothers, PLC: Docket 97–NM–118– AD. proposed AD on U.S. operators is Federal Aviation Administration estimated to be $2,700, or $300 per Applicability: All Model SD3–60 SHERPA and SD3 SHERPA series airplanes, 14 CFR Part 39 airplane. certificated in any category. The cost impact figure discussed Note 1: This AD applies to each airplane [Docket No. 96±NM±184±AD] above is based on assumptions that no identified in the preceding applicability RIN 2120±AA64 operator has yet accomplished any of provision, regardless of whether it has been the proposed requirements of this AD otherwise modified, altered, or repaired in Airworthiness Directives; Airbus Model action, and that no operator would the area subject to the requirements of this A320±111, ±211, and ±231 Series AD. For airplanes that have been modified, accomplish those actions in the future if Airplanes this AD were not adopted. altered, or repaired so that the performance of the requirements of this AD is affected, the AGENCY: Federal Aviation Regulatory Impact owner/operator must request approval for an Administration, DOT. alternative method of compliance in The regulations proposed herein accordance with paragraph (c) of this AD. ACTION: Notice of proposed rulemaking would not have substantial direct effects The request should include an assessment of (NPRM). on the States, on the relationship the effect of the modification, alteration, or SUMMARY: This document proposes the between the national government and repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not adoption of a new airworthiness the States, or on the distribution of been eliminated, the request should include directive (AD) that is applicable to power and responsibilities among the specific proposed actions to address it. certain Airbus Model A320–111, –211, various levels of government. Therefore, Compliance: Required as indicated, unless and –231 series airplanes. This proposal in accordance with Executive Order accomplished previously. would require repetitive inspections for 12612, it is determined that this To prevent aluminum oxygen tubing from cracking in the transition and pick-up proposal would not have sufficient bursting and releasing a high-pressure angles in the lower part of the center federalism implications to warrant the oxygen flow into the passenger cabin, which fuselage area, and corrective action, if preparation of a Federalism Assessment. could result in a fire hazard during flight; accomplish the following: necessary. This proposal would also For the reasons discussed above, I (a) Within 90 days after the effective date provide for an optional terminating certify that this proposed regulation (1) of this AD, remove the aluminum oxygen modification for the repetitive is not a ‘‘significant regulatory action’’ tubing pipe assembly and replace it with a inspection requirements. This proposal under Executive Order 12866; (2) is not stainless steel tubing pipe assembly in is prompted by the issuance of a ‘‘significant rule’’ under the DOT accordance with the Accomplishment mandatory continuing airworthiness Regulatory Policies and Procedures (44 Instructions of Short Brothers Service information by a foreign civil FR 11034, February 26, 1979); and (3) if Bulletin SD3–60 SHERPA–35–1 or SD3 airworthiness authority. The actions SHERPA–35–2, both dated April 8, 1997, as promulgated, will not have a significant specified by the proposed AD are economic impact, positive or negative, applicable. (b) As of the effective date of this AD, no intended to detect and correct fatigue on a substantial number of small entities person shall install an aluminum alloy cracking in the transition and pick-up under the criteria of the Regulatory oxygen tubing pipe assembly, part number angles of the lower part of the center Flexibility Act. A copy of the draft SD3–71–20052–401, on any airplane. fuselage, which could result in reduced regulatory evaluation prepared for this (c) An alternative method of compliance or structural integrity of the wing-fuselage action is contained in the Rules Docket. adjustment of the compliance time that support and fuselage pressure vessel. provides an acceptable level of safety may be A copy of it may be obtained by DATES: used if approved by the Manager, Comments must be received by contacting the Rules Docket at the December 19, 1997. location provided under the caption International Branch, ANM–116, FAA, Transport Airplane Directorate. Operators ADDRESSES: Submit comments in ADDRESSES. shall submit their requests through an triplicate to the Federal Aviation List of Subjects in 14 CFR Part 39 appropriate FAA Principal Maintenance Administration (FAA), Transport Inspector, who may add comments and then Airplane Directorate, ANM–103, Air transportation, Aircraft, Aviation send it to the Manager, International Branch, Attention: Rules Docket No. 96–NM– ANM–116. safety, Safety. 184–AD, 1601 Lind Avenue, SW., Note 2: Information concerning the Renton, Washington 98055–4056. The Proposed Amendment existence of approved alternative methods of compliance with this AD, if any, may be Comments may be inspected at this Accordingly, pursuant to the obtained from the International Branch, location between 9:00 a.m. and 3:00 authority delegated to me by the ANM–116. p.m., Monday through Friday, except Administrator, the Federal Aviation (d) Special flight permits may be issued in Federal holidays. Administration proposes to amend part accordance with sections 21.197 and 21.199 The service information referenced in 39 of the Federal Aviation Regulations of the Federal Aviation Regulations (14 CFR the proposed rule may be obtained from (14 CFR part 39) as follows: 21.197 and 21.199) to operate the airplane to Airbus Industrie, 1 Rond Point Maurice Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61705

Bellonte, 31707 Blagnac Cedex, France. found on the transition and pick-up Explanation of Requirements of This information may be examined at angles between frames 35 and 36. Such Proposed Rule the FAA, Transport Airplane cracking is attributed to fatigue-related Since an unsafe condition has been Directorate, 1601 Lind Avenue, SW., stress as a result of fastener movement identified that is likely to exist or Renton, Washington. during vibration and loading. Fatigue- develop on other airplanes of the same FOR FURTHER INFORMATION CONTACT: related cracking in the pick-up and type design registered in the United International Branch, ANM–116, FAA, transition angles in the lower part of the States, the proposed AD would require Transport Airplane Directorate, 1601 center fuselage, if not detected and accomplishment of the actions specified Lind Avenue SW, Renton, Washington corrected in a timely manner, could in the service bulletins described 98055–4056; telephone (425) 227–2110; result in reduced structural integrity of previously; except where cracking is fax (425) 227–1149. the wing-fuselage support and fuselage detected and it is 1.9 mm or greater in pressure vessel. length, in which case the repair would SUPPLEMENTARY INFORMATION: Explanation of Relevant Service be required to be accomplished in Comments Invited Information accordance with a method approved by the FAA. Interested persons are invited to Airbus has issued Service Bulletin participate in the making of the A320–53–1028, dated March 1, 1994, Differences Between the Proposal and proposed rule by submitting such which describes procedures for the Related French AD written data, views, or arguments as performing repetitive visual inspections The proposed AD would differ from they may desire. Communications shall of the transition angle between frames the parallel French airworthiness identify the Rules Docket number and 35 and 36, just below left- and right- directive in that the proposed AD would be submitted in triplicate to the address hand stringer 30; and repetitive rotating not permit further flight with cracking specified above. All communications probe inspections of the fastener holes detected in the transition or pick-up received on or before the closing date of the left- and right-hand pick-up angles of the wing-fuselage support. The for comments, specified above, will be angles. FAA has determined that, due to safety considered before taking action on the For structure that is free of cracking, implications and consequences proposed rule. The proposals contained Airbus has also issued Service Bulletin associated with such cracking, the in this notice may be changed in light A320–53–1027, dated March 1, 1994; subject transition and pick-up angles of the comments received. Revision 1, dated September 5, 1994; that are found to be cracked must be Comments are specifically invited on and Revision 2, dated June 8, 1995. The repaired prior to further flight. the overall regulatory, economic, service bulletin describes procedures for environmental, and energy aspects of modification of the center fuselage. The Cost Impact the proposed rule. All comments modification involves the installation of The FAA estimates that 24 airplanes submitted will be available, both before additional washers between the of U.S. registry would be affected by this and after the closing date for comments, transition angle and fasteners, and the proposed AD. in the Rules Docket for examination by cold-expansion of the most fatigue- It would take approximately 9 work interested persons. A report sensitive fastener holes. hours per airplane to accomplish the summarizing each FAA-public contact Accomplishment of this modification proposed inspections at an average labor concerned with the substance of this would eliminate the need for the rate of $60 per work hour. Based on proposal will be filed in the Rules repetitive inspections for structure that these figures, the cost impact of the Docket. was free of cracking. inspections proposed by this AD on U.S. Commenters wishing the FAA to The DGAC classified Airbus Service operators is estimated to be $12,960, or acknowledge receipt of their comments Bulletin A300–53–1028 as mandatory $540 per airplane, per inspection cycle. submitted in response to this notice and issued French airworthiness It would take approximately 10 work must submit a self-addressed, stamped directive 95–097–065(B), dated May 24, hours per airplane to accomplish the postcard on which the following 1995, in order to assure the continued proposed modification, at an average statement is made: ‘‘Comments to airworthiness of these airplanes in labor rate of $60 per work hour. Docket Number 96–NM–184–AD.’’ The France. The DGAC also approved Required parts would cost postcard will be date stamped and Airbus Service Bulletin A320–53–1027, approximately $2,895 per airplane. returned to the commenter. Revision 2, dated June 8, 1995. Based on these figures, the cost impact Availability of NPRMs FAA’s Conclusions of the modification proposed by this AD on U.S. operators is estimated to be Any person may obtain a copy of this These airplane models are $83,880, or $3,495 per airplane. NPRM by submitting a request to the manufactured in France and are type The cost impact figures discussed FAA, Transport Airplane Directorate, certificated for operation in the United above are based on assumptions that no ANM–103, Attention: Rules Docket No. States under the provisions of section operator has yet accomplished any of 96–NM–184–AD, 1601 Lind Avenue, 21.29 of the Federal Aviation the proposed requirements of this AD SW., Renton, Washington 98055–4056. Regulations (14 CFR 21.29) and the action, and that no operator would applicable bilateral airworthiness Discussion accomplish those actions in the future if agreement. Pursuant to this bilateral this AD were not adopted. The Direction Ge´ne´rale de l’Aviation airworthiness agreement, the DGAC has Civile (DGAC), which is the kept the FAA informed of the situation Regulatory Impact airworthiness authority for France, described above. The FAA has The regulations proposed herein notified the FAA that an unsafe examined the findings of the DGAC, would not have substantial direct effects condition may exist on certain Airbus reviewed all available information, and on the States, on the relationship Model A320–111, –211, and –231 series determined that AD action is necessary between the national government and airplanes. The DGAC advises that, for products of this type design that are the States, or on the distribution of during a full-scale fatigue test on a certificated for operation in the United power and responsibilities among the Model A320 test article, cracking was States. various levels of government. Therefore, 61706 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules in accordance with Executive Order Compliance: Required as indicated, unless (b) An alternative method of compliance or 12612, it is determined that this accomplished previously. adjustment of the compliance time that proposal would not have sufficient To detect and correct reduced structural provides an acceptable level of safety may be federalism implications to warrant the integrity of the wing-fuselage support and used if approved by the Manager, fuselage pressure vessel resulting from International Branch, ANM–116, FAA, preparation of a Federalism Assessment. structural fatigue cracking in the transition Transport Airplane Directorate. Operators For the reasons discussed above, I and pick-up angles, accomplish the shall submit their requests through an certify that this proposed regulation (1) following: appropriate FAA Principal Maintenance is not a ‘‘significant regulatory action’’ (a) Prior to the accumulation of 16,000 total Inspector, who may add comments and then under Executive Order 12866; (2) is not landings, or within 6 months after the send it to the Manager, International Branch, a ‘‘significant rule’’ under the DOT effective date of this AD, whichever occurs ANM–116. Regulatory Policies and Procedures (44 later, accomplish paragraphs (a)(1) and (a)(2) Note 2: Information concerning the FR 11034, February 26, 1979); and (3) if of this AD, in accordance with Airbus existence of approved alternative methods of promulgated, will not have a significant Service Bulletin A320–53–1028, dated March compliance with this AD, if any, may be 1, 1994. obtained from the Manager, International economic impact, positive or negative, (1) Perform a visual inspection to detect on a substantial number of small entities Branch, ANM–116, FAA, Transport Airplane cracks of the transition angle, in accordance Directorate. under the criteria of the Regulatory with the service bulletin. Flexibility Act. A copy of the draft (i) If no crack is detected during the visual (c) Special flight permits may be issued in regulatory evaluation prepared for this inspection required by paragraph (a)(1) of accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR action is contained in the Rules Docket. this AD, accomplish either paragraph (a)(1)(i)(A) or paragraph (a)(1)(i)(B) of this 21.197 and 21.199) to operate the airplane to A copy of it may be obtained by a location where the requirements of this AD contacting the Rules Docket at the AD. (A) Repeat the visual inspection thereafter can be accomplished. location provided under the caption at intervals not to exceed 12,000 landings. Or Note 3: The subject of this AD is addressed ADDRESSES. (B) Prior to further flight, modify the center in French airworthiness directive 95–097– List of Subjects in 14 CFR Part 39 fuselage in accordance with Airbus Service 065(B), dated May 24, 1995. Bulletin A320–53–1027, dated March 1, Issued in Renton, Washington, on Air transportation, Aircraft, Aviation 1994; Revision 1, dated September 5, 1994; November 13, 1997. safety, Safety. or Revision 2, dated June 8, 1995. Darrell M. Pederson, Accomplishment of the modification The Proposed Amendment constitutes terminating action for the Acting Manager, Transport Airplane Accordingly, pursuant to the repetitive inspection requirements of Directorate, Aircraft Certification Service. authority delegated to me by the paragraph (a)(1)(i)(A) of this AD. [FR Doc. 97–30330 Filed 11–18–97; 8:45 am] Administrator, the Federal Aviation (ii) If any crack is detected during the BILLING CODE 4910±13±P Administration proposes to amend part visual inspection required by paragraph (a)(1) 39 of the Federal Aviation Regulations of this AD, prior to further flight, replace the transition angle with a new transition angle, DEPARTMENT OF TRANSPORTATION (14 CFR part 39) as follows: in accordance with Airbus Service Bulletin A320–53–1027, dated March 1, 1994; Federal Aviation Administration PART 39ÐAIRWORTHINESS Revision 1, dated September 5, 1994; or DIRECTIVES Revision 2, dated June 8, 1995. 14 CFR Part 39 (2) Perform a rotating probe inspection to 1. The authority citation for part 39 [Docket No. 97±NM±256±AD] continues to read as follows: detect cracks of the pick-up angle, in accordance with the service bulletin. Authority: 49 U.S.C. 106(g), 40113, 44701. (i) If no crack is detected during the RIN 2120±AA64 rotating probe inspection required by § 39.13 [Amended] paragraph (a)(2) of this AD, accomplish either Airworthiness Directives; Bombardier 2. Section 39.13 is amended by paragraph (a)(2)(i)(A) or (a)(2)(i)(B) of this Model CL±600±1A11 and CL±600±2A12 adding the following new airworthiness AD. Series Airplanes directive: (A) Repeat the visual and rotating probe inspections thereafter at intervals not to AGENCY: Federal Aviation Airbus Industrie: Docket 96–NM–184–AD. exceed 12,000 landings. Or Administration, DOT. Applicability: Model A320–111, –211, and (B) Prior to further flight, modify the center ACTION: Notice of proposed rulemaking –231 series airplanes, manufacturer’s serial fuselage in accordance with Airbus Service (NPRM). numbers 002 through 008 inclusive, 010 Bulletin A320–53–1027, dated March 1, through 014 inclusive, 016 through 078 1994; Revision 1, dated September 5, 1994; SUMMARY: This document proposes the inclusive, and 080 through 107 inclusive; or Revision 2, dated June 8, 1995. adoption of a new airworthiness certificated in any category. Accomplishment of the modification directive Note 1: This AD applies to each airplane constitutes terminating action for the (AD) that is applicable to certain identified in the preceding applicability repetitive inspection requirements of provision, regardless of whether it has been paragraph (a)(2)(i)(A) of this AD. Bombardier Model CL–600–1A11 and otherwise modified, altered, or repaired in (ii) If any crack is detected and it is less CL–600–2A12 series airplanes. This the area subject to the requirements of this than 1.9 mm in length, prior to further flight, proposal would require replacement of AD. For airplanes that have been modified, accomplish the applicable corrective actions the anti-noise filter on the standby and altered, or repaired so that the performance specified in the service bulletin. For holes auxiliary power unit (APU) fuel pump of the requirements of this AD is affected, the that have not been modified in accordance assemblies with a new filter. This owner/operator must request approval for an with the service bulletin, repeat the rotating proposal is prompted by issuance of alternative method of compliance in probe inspection thereafter at intervals not to mandatory continuing airworthiness accordance with paragraph (b) of this AD. exceed 12,000 landings. information by a foreign civil The request should include an assessment of (iii) If any crack is detected and it is 1.9 the effect of the modification, alteration, or mm or greater in length, prior to further airworthiness authority. The actions repair on the unsafe condition addressed by flight, repair it in accordance with the specified by the proposed AD are this AD; and, if the unsafe condition has not method approved by the Manager, intended to prevent electrical arcing been eliminated, the request should include International Branch, ANM–116, FAA, between the internal wiring and casing specific proposed actions to address it. Transport Airplane Directorate. of the anti-noise filter on the standby Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61707 and APU fuel pump assemblies, and Commenters wishing the FAA to 21.29 of the Federal Aviation consequent increased risk of fuel tank acknowledge receipt of their comments Regulations (14 CFR 21.29) and the explosion or fire. submitted in response to this notice applicable bilateral airworthiness DATES: Comments must be received by must submit a self-addressed, stamped agreement. Pursuant to this bilateral December 19, 1997. postcard on which the following airworthiness agreement, TCA has kept statement is made: ‘‘Comments to the FAA informed of the situation ADDRESSES: Submit comments in Docket Number 97–NM–256–AD.’’ The described above. The FAA has triplicate to the Federal Aviation postcard will be date stamped and examined the findings of TCA, reviewed Administration (FAA), Transport returned to the commenter. all available information, and Airplane Directorate, ANM–103, determined that AD action is necessary Attention: Rules Docket No. 97–NM– Availability of NPRMs for products of this type design that are 256–AD, 1601 Lind Avenue, SW., Any person may obtain a copy of this certificated for operation in the United Renton, Washington 98055–4056. NPRM by submitting a request to the States. Comments may be inspected at this FAA, Transport Airplane Directorate, location between 9:00 a.m. and 3:00 ANM–103, Attention: Rules Docket No. Explanation of Requirements of p.m., Monday through Friday, except 97–NM–256–AD, 1601 Lind Avenue, Proposed Rule Federal holidays. SW., Renton, Washington 98055–4056. Since an unsafe condition has been The service information referenced in identified that is likely to exist or the proposed rule may be obtained from Discussion develop on other airplanes of the same Bombardier, Inc., Canadair, Aerospace Transport Canada Aviation (TCA), type design registered in the United Group, P.O. Box 6087, Station A, which is the airworthiness authority for States, the proposed AD would require Montreal, Quebec H3C 3G9, Canada. Canada, notified the FAA that an unsafe accomplishment of the actions specified This information may be examined at condition may exist on certain in the alert service bulletins described the FAA, Transport Airplane Bombardier Model CL–600–1A11 and previously. Directorate, 1601 Lind Avenue, SW., CL–600–2A12 series airplanes. TCA Renton, Washington; or at the FAA advises it has received a report of an Cost Impact Engine and Propeller Directorate, New auxiliary power unit (APU) stopping The FAA estimates that 84 York Aircraft Certification Office, 10 while the airplane was on the ground. Bombardier Model CL–600–1A11 and Fifth Street, Third Floor, Valley Stream, Investigation revealed that the problem CL–600–2A12 series airplanes of U.S. New York. was caused by a failure of the anti-noise registry would be affected by this FOR FURTHER INFORMATION CONTACT: (electromagnetic interference) filter on proposed AD, that it would take Wing Chan, Aerospace Engineer, the APU fuel pump assembly. The filter approximately 20 work hours per Systems and Equipment Branch, ANE– had a hole through the metal casing airplane to accomplish the proposed 172, FAA, Engine and Propeller caused by electrical arcing between the actions, and that the average labor rate Directorate, New York Aircraft internal wiring and the casing of the is $60 per work hour. Required parts Certification Office, 10 Fifth Street, filter. This condition, if not corrected, would cost approximately $5,689 per Third Floor, Valley Stream, New York could result in fuel tank explosion or airplane. Based on these figures, the cost 11581; telephone (516) 256–7511; fax fire. impact of the proposed AD on U.S. (516) 568–2716. operators is estimated to be $578,676, or Explanation of Relevant Service $6,889 per airplane. SUPPLEMENTARY INFORMATION: Information The cost impact figure discussed Comments Invited The manufacturer has issued above is based on assumptions that no Bombardier Canadair Challenger Alert operator has yet accomplished any of Interested persons are invited to Service Bulletin A600–0644, Revision the proposed requirements of this AD participate in the making of the 01, dated March 31, 1995 (for Model action, and that no operator would proposed rule by submitting such CL–600–1A11 series airplanes), and accomplish those actions in the future if written data, views, or arguments as Alert Service Bulletin A601–0441, this AD were not adopted. they may desire. Communications shall Revision 01, dated March 31, 1995 (for Regulatory Impact identify the Rules Docket number and Model CL–600–2A12 series airplanes). be submitted in triplicate to the address These service bulletins describe The regulations proposed herein specified above. All communications procedures for replacement of the anti- would not have substantial direct effects received on or before the closing date noise filter on the standby and APU fuel on the States, on the relationship for comments, specified above, will be pump assemblies with a new filter. between the national government and considered before taking action on the Accomplishment of the actions the States, or on the distribution of proposed rule. The proposals contained specified in the alert service bulletins is power and responsibilities among the in this notice may be changed in light intended to adequately address the various levels of government. Therefore, of the comments received. identified unsafe condition. in accordance with Executive Order Comments are specifically invited on TCA classified these alert service 12612, it is determined that this the overall regulatory, economic, bulletins as mandatory and issued proposal would not have sufficient environmental, and energy aspects of Canadian airworthiness directive CF– federalism implications to warrant the the proposed rule. All comments 97–02, dated February 25, 1997, in order preparation of a Federalism Assessment. submitted will be available, both before to assure the continued airworthiness of For the reasons discussed above, I and after the closing date for comments, these airplanes in Canada. certify that this proposed regulation (1) in the Rules Docket for examination by is not a ‘‘significant regulatory action’’ interested persons. A report FAA’s Conclusions under Executive Order 12866; (2) is not summarizing each FAA-public contact These airplane models are a ‘‘significant rule’’ under the DOT concerned with the substance of this manufactured in Canada and are type Regulatory Policies and Procedures (44 proposal will be filed in the Rules certificated for operation in the United FR 11034, February 26, 1979); and (3) if Docket. States under the provisions of section promulgated, will not have a significant 61708 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules economic impact, positive or negative, noise filter on the standby and auxiliary proposition necessary. Controlled on a substantial number of small entities power unit (APU) fuel pump assemblies with airspace extending upward from 700 under the criteria of the Regulatory a new filter, in accordance with Part B of feet above ground level (AGL) is needed Flexibility Act. A copy of the draft Bombardier Canadair Challenger Alert to accommodate these SIAP’s and for Service Bulletin A600–0644, Revision 01, Instrument Flight Rules (IFR) operations regulatory evaluation prepared for this dated March 31, 1995 (for Model CL–600– action is contained in the Rules Docket. 1A11 series airplanes), or Bombardier to the airport. The area would be A copy of it may be obtained by Canadair Challenger Alert Service Bulletin depicted on aeronautical charts for pilot contacting the Rules Docket at the A601–0441, Revision 01, dated March 31, reference. location provided under the caption 1995 (for Model CL–600–2A12 series DATES: Comments must be received on ADDRESSES. airplanes); as applicable. or before January 5, 1998. (b) As of the effective date of this AD, no List of Subjects in 14 CFR Part 39 ADDRESSES: Send comments on the person shall install on any airplane a fuel proposal in triplicate to: Manager, pump having part number (P/N) 600–62966– Air transportation, Aircraft, Aviation Airspace Branch, ANM–520, Federal safety, Safety. 25 or 600–62966–27 with an anti-noise filter having P/N 160–151501 (prior to revision H Aviation Administration, Docket No. The Proposed Amendment stamped on the part) installed, on any 97–ANM–13, 1601 Lind Avenue SW, Renton, Washington 98055–4056. Accordingly, pursuant to the airplane. (c) An alternative method of compliance or The official docket may be examined authority delegated to me by the adjustment of the compliance time that in the office of the Assistant Chief Administrator, the Federal Aviation provides an acceptable level of safety may be Counsel for the Northwest Mountain Administration proposes to amend part used if approved by the Manager, New York Region at the same address. 39 of the Federal Aviation Regulations Aircraft Certification Office (ACO), FAA, An informal docket may also be (14 CFR part 39) as follows: Engine and Propeller Directorate. Operators examined during normal hours in the shall submit their requests through an office of the Manager, Air Traffic PART 39ÐAIRWORTHINESS appropriate FAA Principal Maintenance Division, Airspace Branch, at the DIRECTIVES Inspector, who may add comments and then send it to the Manager, New York ACO. address listed above. 1. The authority citation for part 39 Note 2: Information concerning the FOR FURTHER INFORMATION CONTACT: continues to read as follows: existence of approved alternative methods of Dennis Ripley, ANM–520.6, Federal Authority: 49 U.S.C. 106(g), 40113, 44701. compliance with this AD, if any, may be Aviation Administration, Docket No. obtained from the New York ACO. 97–ANM–13, 1601 Lind Avenue SW, § 39.13 [Amended] (d) Special flight permits may be issued in Renton, Washington 98055–4056; 2. Section 39.13 is amended by accordance with sections 21.197 and 21.199 telephone number: (425) 227–2527. adding the following new airworthiness of the Federal Aviation Regulations (14 CFR SUPPLEMENTARY INFORMATION: directive: 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD Comments Invited Bombardier Inc. (Formerly Canadair): can be accomplished. Docket 97–NM–256–AD. Interested parties are invited to Note 3: The subject of this AD is addressed Applicability: Model CL–600–1A11 series in Canadian airworthiness directive CF–97– participate in this proposed rulemaking airplanes, as listed in Bombardier Canadair 02, dated February 25, 1997. by submitting such written data, views, Challenger Alert Service Bulletin A600–0644, or arguments as they may desire. Revision 01, dated March 31, 1995; and Issued in Renton, Washington, on Comments that provide the factual basis November 13, 1997. Model CL–600–2A12 series airplanes, as supporting the views and suggestions listed in Bombardier Canadair Challenger James V. Devany, presented are particularly helpful in Alert Service Bulletin A601–0441, Revision Acting Manager, Transport Airplane 01, dated March 31, 1995; certificated in any developing reasoned regulatory Directorate, Aircraft Certification Service. decisions on the proposal. Comments category. [FR Doc. 97–30328 Filed 11–18–97; 8:45 am] Note 1: This AD applies to each airplane are specifically invited on the overall BILLING CODE 4910±13±P identified in the preceding applicability regulatory, aeronautical, economic, provision, regardless of whether it has been environmental, and energy related otherwise modified, altered, or repaired in aspects of the proposal. the area subject to the requirements of this DEPARTMENT OF TRANSPORTATION Communications should identify the AD. For airplanes that have been modified, Federal Aviation Administration airspace docket number and be altered, or repaired so that the performance submitted in triplicate to the address of the requirements of this AD is affected, the 14 CFR Part 71 listed above. Commenters wishing the owner/operator must request approval for an FAA to acknowledge receipt of their alternative method of compliance in [Airspace Docket No. 97±ANM±13] accordance with paragraph (c) of this AD. comments on this notice must submit The request should include an assessment of Proposed Establishment of Class C with those comments a self-addressed, the effect of the modification, alteration, or Airspace; Hayden, CO stamped postcard on which the repair on the unsafe condition addressed by following statement is made: this AD; and, if the unsafe condition has not AGENCY: Federal Aviation ‘‘Comments to Airspace Docket No. 97– been eliminated, the request should include Administration (FAA), DOT. ANM–13.’’ The postcard will be date/ specific proposed actions to address it. ACTION: Notice of proposed rulemaking time stamped and returned to the Compliance: Required as indicated, unless (NPRM). commenter. All communications accomplished previously. received on or before the specified To prevent electrical arcing between the SUMMARY: This proposal would establish closing date for comments will be internal wiring and casing of the anti-noise Class E Airspace at Hayden, CO. The considered before taking action on the filter on the standby and auxiliary power unit (APU) fuel pump assemblies, and consequent development of two new Standard proposed rule. The proposal contained increased risk of fuel tank explosion or fire, Instrument Approach Procedures in this notice may be changed in the accomplish the following: (SIAP’s) at the Yampa Valley Airport, light of comments received. All (a) Within 100 flight hours after the Hayden, CO, utilizing the Global comments submitted will be available effective date of this AD, replace the anti- Positioning System (GPS) has made this for examination at the address listed Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61709 above both before and after the closing regulatory action’’ under Executive Issued in Seattle, Washington, on October date for comments. A report Order 12866; (2) is not a ‘‘significant 31, 1997. summarizing each substantive public rule’’ under DOT Regulatory Policies Glenn A. Adams III, contact with FAA personnel concerned and Procedures (44 FR 11034; February Assistant Manager, Air Traffic Division, with this rulemaking will be filed in the 6, 1979); and (3) does not warrant Northwest Mountain Region. docket. preparation of a Regulatory Evaluation [FR Doc. 97–30354 Filed 11–18–97; 8:45 am] Availability of NPRM’s as the anticipated impact is so minimal. BILLING CODE 4910±13±M Since this is a routine matter that will Any person may obtain a copy of this only affect air traffic procedures and air NPRM by submitting a request to the navigation, it is certified that this rule, DEPARTMENT OF TRANSPORTATION Federal Aviation Administration, if promulgated, would not have a Airspace Branch, ANM–520, 1601 Lind significant economic impact on a Federal Aviation Administration Avenue SW, Renton, Washington substantial number of small entities 14 CFR Part 71 98055–4056. Communications must under the criteria of the Regulatory identify the notice number of this Flexibility Act. [Airspace Docket No. 97±ASO±25] NPRM. Persons interested in being placed on a mailing list for future List of Subjects in 14 CFR Part 71 Proposed Amendment to Class E NPRM’s should also request a copy of Airspace; Owensboro, KY Advisory Circular No. 11–2A, which Airspace, Incorporation by reference, describes the application procedure. Navigation (air). AGENCY: Federal Aviation Administration (FAA), DOT. The Proposal The Proposed Amendment ACTION: Notice of proposed rulemaking. The FAA is considering an In consideration of the foregoing, the amendment to 14 CFR part 71 to Federal Aviation Administration SUMMARY: This notice proposes to establish Class E airspace at Hayden, proposes to amend 14 CFR part 71 as amend the Class E airspace areas at CO. This amendment would provide follows: Owensboro, KY. A VOR Runway (RWY) airspace necessary to fully encompass 5 Standard Instrument Approach the GPS–A and the GPS–B SIAP’s to the PART 71ÐDESIGNATION OF CLASS A, Procedure (SIAP) has been developed Yampa Valley Airport, Hayden, CO. CLASS B, CLASS C, CLASS D, AND for Owensboro-Daviess County Airport. This proposal would make a 700-foot CLASS E AIRSPACE AREAS; Additional controlled airspace is Class E area with a 6.9 mile radius AIRWAYS; ROUTES; AND REPORTING needed to accommodate the SIAP and around the Yampa Valley Airport with POINTS for IFR operations at the airport. This an extension to the northwest and an proposal would provide a southwest extension to the southeast to meet 1. The authority citation for 14 CFR extension to the existing Class D surface necessary airspace criteria for aircraft part 71 continues to read as follows: area and increase the radius of the Class transitioning between the terminal and Authority: 49 U.S.C. 106(g), 40103, 40113, E airspace that extends upward from en route environments. The FAA 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 700 feet above the surface of the earth. establishes Class E airspace extending 1963 Comp., p. 389. DATES: Comments must be received on upward from 700 feet AGL where or before December 19, 1997. § 71.1 [Amended] necessary to contain aircraft ADDRESSES: Send comments on the transitioning between the terminal and 2. The incorporation by reference in proposal in triplicate to: Federal en route environments. The intended 14 CFR 71.1 of the Federal Aviation Aviation Administration, Docket No. effect of this proposal is to provide safe Administration Order 7400.9E, Airspace 97–ASO–25, Manager, Airspace Branch, and efficient use of the navigable Designations and Reporting Points, ASO–520, P.O. Box 20636, Atlanta, airspace and to promote safe flight dated September 10, 1997, and effective Georgia 30320. operations under IFR at the Yampa September 16, 1997, is amended as The official docket may be examined Valley Airport and between the terminal follows: in the Office of the Assistant Chief and en route transition stages. Paragraph 6005 Class E airspace areas Counsel for Southern Region, Room 550, The area would be depicted on 1701 Columbia Avenue, College Park, aeronautical charts for pilot reference. extending upward from 700 feet or more above the surface of the earth. Georgia 30337, telephone (404) 305– The coordinates for this airspace docket 5586. are based on North American Datum 83. * * * * * FOR FURTHER INFORMATION CONTACT: Class E airspace areas extending upward ANM CO E5 Hayden, CO [New] from 700 feet or more above the surface Nancy B. Shelton, Airspace Branch, Air Yampa Valley Airport, CO Traffic Division, Federal Aviation of the earth, are published in Paragraph (Lat. 40°28′52′′ N, long. 107°13′04′′ W) 6005 of FAA Order 7400.9E dated Administration, P.O. Box 20636, Hayden VOR/DME Atlanta, Georgia 30320; telephone (404) September 10, 1997, and effective ° ′ ′′ ° ′ ′′ Lat. 40 31 12 N, long. 107 18 18 W) 305–5581. September 16, 1997, which is That airspace extending upward from 700 incorporated by reference in 14 CFR feet above the surface within a 6.9-mile SUPPLEMENTARY INFORMATION: 71.1. The Class E airspace designation radius of the Yampa Valley Airport, and Comments Invited listed in this document would be within 4 miles each side of the Hayden VOR/ published subsequently in the Order. DME 301° radial extending from the 6.9-mile Interested parties are invited to The FAA has determined that this radius to 10.1 miles northwest of the VOR/ participate in this proposed rulemaking proposed regulation only involves an DME, and within 4 miles each side of the by submitting such written data, views established body of technical Hayden VOR/DME 118° radial extending or arguments as they may desire. regulations for which frequent and from the 6.9-mile radius to 16.1 miles Comments that provide the factual basis routine amendments are necessary to southeast of the VOR/DME; excluding the supporting the views and suggestions keep them operationally current. It, Craig, CO Class E airspace area. presented are particularly helpful in therefore, (1) is not a ‘‘significant * * * * * developing reasoned regulatory 61710 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules decisions on the proposal. Comments 6004 and 6005, respectively, of FAA (Lat. 37°44′37′′ N, long. 87°09′57′′ W) are specifically invited on the overall Order 7400.9E dated September 10, That airspace extending upward from the regulatory, aeronautical, economic, 1997, and effective September 16, 1997, surface within 3 miles each side of environmental, and energy-related which is incorporated by reference in 14 Owensboro VOR/DME 351°, 177°, and 223° aspects of the proposal. CFR 71.1. The Class E airspace radials, extending from the 4.1-mile radius of Communications should identify the designations listed in this document Owensboro-Daviess County Airport to 7 airspace docket and be submitted in would be published subsequently in the miles north, south and southwest of the Owensboro VOR/DME. This Class E airspace triplicate to the address listed above. Order. area is effective during the specific days and Commenters wishing the FAA to The FAA has determined that this times established in advance by a Notice to acknowledge receipt of their comments proposed regulation only involves an Airmen. The effective days and times will on this notice must submit with those established body of technical thereafter be continuously published in the comments a self-addressed, stamped regulations for which frequent and Airport/Facility Directory. postcard on which the following routine amendments are necessary to * * * * * statement is made: ‘‘Comments to keep them operationally current. It, Airspace Docket No. 97–ASO–25.’’ The therefore, (1) is not a ‘‘significant Paragraph 6005 Class E airspace areas postcard will be date/time stamped and extending upward from 700 feet or more regulatory action’’ under Executive above the surface of the earth. returned to the commenter. All Order 12866; (2) is not a ‘‘significant communications received before the rule’’ under DOT Regulatory Policies * * * * * specified closing date for comments will and Procedures (44 FR 11034; February ASO KY E5 Owensboro, KY [Revised] be considered before taking action on 26, 1979); and (3) does not warrant Owensboro-Daviess County Airport, KY the proposed rule. The proposal preparation of a Regulatory Evaluation (Lat. 37°44′25′′ N, long. 87°10′23′′ W) contained in this notice may be changed as the anticipated impact is so minimal. That airspace extending upward from 700 in light of the comments received. All Since this is a routine matter that will feet or more above the surface within a 7.2- comments submitted will be available only affect air traffic procedures and air mile radius of Owensboro-Daviess County for examination in the Office of the navigation, it is certified that this rule, Airport. Assistant Chief Counsel for Southern when promulgated, will not have a * * * * * Region, Room 550, 1701 Columbia significant economic impact on a Issued in College Park, Georgia, on Avenue, College Park, Georgia 30337, substantial number of small entities November 7, 1997. both before and after the closing date for under the criteria of the Regulatory Nancy B. Shelton, comments. A report summarizing each Flexibility Act. Acting Manager, Air Traffic Division, substantive public contact with FAA List of Subjects in 14 CFR Part 71 Southern Region. personnel concerned with this [FR Doc. 97–30356 Filed 11–18–97; 8:45 am] rulemaking will be filed in the docket. Airspace, Incorporation by reference, BILLING CODE 4910±13±M Navigation (Air). Availability of NPRMs Any person may obtain a copy of this The Proposed Amendment Notice of Proposed Rulemaking (NPRM) In consideration of the foregoing, the DEPARTMENT OF HEALTH AND by submitting a request to the Federal Federal Aviation Administration HUMAN SERVICES Aviation Administration, Manager, proposes to amend 14 CFR part 71 as Food and Drug Administration Airspace Branch, ASO–520, Air Traffic follows: Division, P.O. Box 20636, Atlanta, 21 CFR Parts 333, 347, and 348 Georgia 30320. Communications must PART 71ÐDESIGNATION OF CLASS A, identify the notice number of this CLASS B, CLASS C, CLASS D, AND [Docket Nos. 80N±0476, 78N±0301, 78N± NPRM. Persons interested in being CLASS E AIRSPACE AREAS; 0021, and 75N±0183] placed on a mailing list for future AIRWAYS; ROUTES; AND REPORTING RIN 0910±AA01 NPRMs should also request a copy of POINTS Advisory Circular No. 11–2A which 1. The authority citation for 14 CFR Antifungal Drug Products for Over-the- describes the application procedure. part 71 continues to read as follows: Counter Human Use; External Analgesic Drug Products for Over-the- The Proposal Authority: 49 U.S.C. 106(g), 40103, 40113, Counter Human Use; Skin Protectant The FAA is considering an 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. Drug Products for Over-the-Counter amendment to 14 CFR part 71 to amend Human Use; and Topical Antimicrobial the Class E airspace areas at Owensboro, § 71.1 [Amended] Drug Products for Over-the-Counter KY. A VOR RWY 5 SIAP has been 2. The incorporation by reference in Human Use; Reopening of developed for Owensboro-Daviess 14 CFR 71.1 of Federal Aviation Administrative Records County Airport. Additional controlled Administration Order 7400.9E, Airspace airspace is needed to accommodate the Designations and Reporting Points, AGENCY: Food and Drug Administration, SIAP and for IFR operations at the dated September 10, 1997, and effective HHS. airport. This proposal would provide a September 16, 1997, is amended as ACTION: Proposed rule; reopening of southwest extension to the existing follows: administrative records. Class D surface area and increase the radius of the Class E airspace that Paragraph 6004 Class E airspace areas SUMMARY: The Food and Drug extends upward from 700 feet above the designated as an extension to a Class D or Administration (FDA) is announcing the Class E surface area. surface of the earth. Class E airspace reopening of the administrative records areas designated as an extension to a * * * * * for four rulemakings to include safety Class D or Class E surface area, and ASO KY E4 Owensboro, KY [Revised] and effectiveness data on over-the- Class E airspace areas extending upward Owensboro-Daviess County Airport, KY counter (OTC) vaginal douche drug from 700 feet or more above the surface (Lat. 37°44′25′′ N, long. 87°10′23′′ W) product ingredients that were of the earth are published in Paragraphs Owensboro VOR/DME previously considered in the advance Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61711 notice of proposed rulemaking for OTC of proposed rulemaking of October 13, also concerned about the risks and vaginal drug products. The agency is 1983. This action was taken in part benefits/efficacy of vaginal douche reopening the following rulemakings for because the agency determined that products. The Committee members consideration of data on vaginal douche some of the Panel’s recommended stressed that labeling for these products drug products: (1) Antifungal drug labeling indications related to cosmetic should be easy to read and understand, products, (2) OTC external analgesic claims and not drug claims. The agency and should provide consistent drug products (3) OTC skin protectant also stated that the intended use of a information across the broad product drug products and (4) OTC topical product will be considered in class. The Committees encouraged the antimicrobial drug products. This action determining whether it is a cosmetic, a use of educational programs for both is part of the ongoing review of OTC drug, or both (59 FR 5226 at 5231). In consumers and health care providers as drug products conducted by FDA. addition, recommended labeling a way to expand the public’s knowledge DATES: Submit written comments by indications and ingredients used for about use of these products (Ref. 2). minor irritation, itching, or soreness are February 17, 1998. III. References ADDRESSES: Submit written comments not unique to the vaginal area and are to the Dockets Management Branch already being considered in other OTC The following references have been (HFA–305), Food and Drug drug rulemakings (e.g., antifungal, placed on display in the Dockets Administration, 12420 Parklawn Dr., antimicrobial, and external analgesic). Management Branch (address above) rm. 1–23, Rockville, MD 20857. Therefore, the agency stated that those and may be seen by interested persons ingredients and claims would be between 9 a.m. and 4 p.m., Monday FOR FURTHER INFORMATION CONTACT: considered in those other rulemakings, through Friday. Helen Cothran, Center for Drug as appropriate. 1. Letter from D. Bowen, FDA, to R.W. Evaluation and Research (HFD–560), Soller, Nonprescription Drug Manufacturers Food and Drug Administration, 5600 II. Recent Developments Association, coded LET 105, Docket No. Fishers Lane, Rockville, MD 20857, In the Federal Register of March 27, 75N–0183, Dockets Management Branch. 301–827–2222. 1997 (62 FR 14683), the agency 2. Comment No. TR1, Docket No. 80N– SUPPLEMENTARY INFORMATION: announced that its Nonprescription 0476, Dockets Management Branch. I. Background Drugs Advisory Committee (NDAC) IV. Reopening of the Administrative would hold a public meeting on April Records In the Federal Register of October 13, 15, 1997, to discuss a possible 1983 (48 FR 46694), FDA published association between vaginal douching Because the issues concerning the under 21 CFR 330.10(a)(6), an advance and adverse consequences. The notice safety of vaginal douching also have an notice of proposed rulemaking to stated that FDA is aware of a number of impact on the agency’s review of the establish a monograph for OTC vaginal case-control epidemiologic studies in safety and effectiveness of all OTC drug products, together with the the literature that suggest a possible vaginal douche drug products, the recommendations of the Advisory association between vaginal douching agency is reopening the administrative Review Panel on OTC Contraceptives and several conditions, such as pelvic records for the rulemakings for OTC and Other Vaginal Drug Products (the inflammatory disease, ectopic antifungal drug products (Docket No. Panel), which was the advisory review pregnancy , and cervical cancer (Ref. 1). 80N–0476), (2) OTC external analgesic panel responsible for evaluating data on At the April 15, 1997, meeting, NDAC drug products (Docket No. 78N–0301), the active ingredients in OTC vaginal members were joined by representatives (3) OTC skin protectant drug products drug products. In its report, the Panel from two other FDA advisory (Docket No. 78N–0021), and (4) OTC recommended Category I (i.e., safe and committees, Reproductive Health Drugs topical antimicrobial drug products effective) status for 1 to 3 percent and Anti-infective Drugs, as well as (Docket No. 75N–0183). This action is to potassium sorbate and 0.15 to 0.3 representatives from the Center for Food specifically allow for submission of data percent povidone-iodine as a douche for Safety and Applied Nutrition and the on the issues raised at the April 15, the relief of minor vaginal itching, Center for Devices and Radiological 1997, meeting. The agency also requests irritation, and soreness (48 FR 46694 at Health. The Committees discussed safety and effectiveness data on the 46704 to 46706). The Panel also issues relating to behavioral, vaginal douche drug product recommended the following ingredients epidemiological, and microbiological ingredients that were discussed at that as Category I in a douche formulation to aspects of vaginal douching. Committee meeting. remove vaginal discharge and vaginal members felt that there was a suggestive Interested persons may submit secretions, for a mild detergent action, association between vaginal douching comments on OTC vaginal douche drug and to thin out vaginal mucus and ectopic pregnancy and pelvic products to the applicable docket discharge: 0.002 percent dioctyl sodium inflammatory disease, but that more number(s) based on the ingredient’s sulfosuccinate (docusate sodium), data and further research were needed labeling claim(s), intended use, or 0.0176 percent nonoxynol 9, 0.088 to support such an association. Some mechanism/mode of action. For percent octoxynol 9, and 0.01 to 0.02 members stated that a possible example, data on povidone-iodine for percent sodium lauryl sulfate (48 FR association between douching and tubal the relief of minor vaginal itching and 46706 to 46707). In the preamble to the infertility also needed more irritation may be submitted to the Panel’s report (48 FR 46694 to 46695), investigation. The Committees did not external analgesic rulemaking, but if the agency did not allow the marketing find any evidence of a relationship relief of itching is due to an antifungal of potassium sorbate for relief of minor between vaginal douching and cervical effect, i.e., killing the fungus, data vaginal irritation because it was carcinoma. Some members expressed should be submitted to the antifungal considered a new drug (had not been concern that certain individuals who rulemaking . Likewise, if data support marketed for a material time and douche, e.g., those with sexually the use of nonoxynol 9 for the relief of extent). transmitted diseases or multiple sexual minor vaginal itching and irritation In the Federal Register of February 3, partners, may be at increased risk for because of an antimicrobial action, data 1994 (59 FR 5226), the agency issued a ectopic pregnancy, tubal disease, or should be submitted to the notice to withdraw the advance notice tubal infertility. The Committees were antimicrobial rulemaking. Interested 61712 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules persons should determine the inspection, the comment period during SMCRA. Louisiana submitted the appropriate rulemaking to which data which interested persons may submit proposed amendment in response to a should be submitted. Comments on written comments on the proposed June 17, 1997, letter (Administrative other vaginal drug products or issues amendment, and the procedures that Record No. LA–361) that OSM sent to should not be submitted at this time. will be followed regarding the public Louisiana in accordance with 30 CFR Submit written comments on or hearing, if one is requested. 732.17(c). Louisiana proposes to amend before February 17, 1998 to the Dockets DATES: Written comments must be the Louisiana Surface Mining Management Branch (address above). received by 4:00 p.m., c.s.t., December Regulations. The full text of the Three copies of any comments are to be 19, 1997. If requested, a public hearing proposed program amendment submitted, except that individuals may on the proposed amendment will be submitted by Louisiana is available for submit one copy. If comments could be held on December 15, 1997. Requests to public inspection at the locations listed submitted to several dockets, they may speak at the hearing must be received by above under ADDRESSES. A brief be submitted to one docket and cross- 4:00 p.m., c.s.t. on December 4, 1997. discussion of the proposed amendment referenced in the other docket(s). All ADDRESSES: Written comments and is presented below. comments are to be identified with the requests to speak at the hearing should A. Section 105. Definitions appropriate docket number(s) found in be mailed or hand delivered to Michael brackets in the heading of this C. Wolfrom, Director, Tulsa Field Office, 1. Louisiana proposes to revise its document and may be accompanied by at the address listed below. definition for ‘‘other treatment a supporting memorandum or brief. Copies of the Louisiana program, the facilities.’’ Received comments may be seen in the proposed amendment, a listing of any 2. Louisiana proposes to add a office above between 9 a.m. and 4 p.m., scheduled public hearings, and all definition for ‘‘previously mined area.’’ Monday through Friday. written comments received in response 3. Louisiana proposes to add a Dated: November 12, 1997. to this document will be available for definition for ‘‘qualified laboratory.’’ William K. Hubbard, public review at the addresses listed B. Section 2537. Cross-Sections, Maps Associate Commissioner for Policy below during normal business hours, and Plans Coordination. Monday through Friday, excluding Louisiana proposes to delete [FR Doc. 97–30410 Filed 11–18–97; 8:45 am] holidays. Each requester may receive one free copy of the proposed paragraph 2537.11. that requires cross- BILLING CODE 4160±01±F amendment by contacting OSM’s Tulsa sections, maps and plans in the permit Field Office. applications to show sufficient slope Michael C. Wolfrom, Director, Tulsa measurements to adequately represent DEPARTMENT OF THE INTERIOR Field Office, Office of Surface Mining the existing land surface configuration of the proposed permit area. Office of Surface Mining Reclamation Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, Tulsa, and Enforcement C. Section 2725. Reclamation Plan: Oklahoma 74135–6547, Telephone (918) Ponds, Impoundments, Banks, Dams 30 CFR Part 918 581–6430. Department of Natural Resources, and Embankments [SPATS No. LA±017±FOR] Office of Conservation, Injection and 1. Louisiana proposes to revise Mining Division, 625 N. 4th Street, P.O. paragraph 2725.A. by adding ‘‘siltation Louisiana Regulatory Program Box 94275, Baton Rouge, LA 70804, structure’’ to the types of ponds, AGENCY: Office of Surface Mining Telephone: (504) 342–5540. impoundments, banks, dams and Reclamation and Enforcement (OSM), FOR FURTHER INFORMATION CONTACT: embankments requiring a general Interior. Michael C. Wolfrom, Director, Tulsa reclamation plan, and by adding a provision that requires each application ACTION: Proposed rule; public comment Field Office, Telephone (918) 581–6430. to include a detailed reclamation plan period and opportunity for public SUPPLEMENTARY INFORMATION: for each proposed containment hearing. I. Background on the Louisiana structure. SUMMARY: OSM is announcing receipt of Program 2. At paragraph 2725.A.2., Louisiana a proposed amendment to the Louisiana On October 10, 1980, the Secretary of proposes to delete the existing language regulatory program (hererinfafter the the Interior conditionally approved the and to replace it with language that adds ‘‘Louisiana program’’) under the Surface Louisiana program. General background specific references to the U.S. Mining Control and Reclamation Act of information on the Louisiana program, Department of Agriculture, Soil 1977 (SMCRA). The proposed including the Secretary’s findings, the Conservation Service Technical Release amendment consists of revisions to and/ disposition of comments, and the No. 60 criteria for dam classification or additions of regulations pertaining to conditions of approval of the Louisiana and requires compliance with this definitions, request for hearing, program can be found in the October 10, technical release if structures meet or permitting requirements, small operator 1980, Federal Register (45 FR 67340). exceed the size or other criteria of the assistance program, bond release Subsequent actions concerning the Mine Safety and Health Administration. requirements, performance standards, Louisiana program and program 3. Louisiana proposes to revise and enforcement procedures/civil amendments can be found at 30 CFR paragraph 2725.A.3. to refer to penalties. The amendment is intended 918.15 and 918.16. structures that are not included in to revise the Louisiana program to be paragraph 2725.A.2. consistent with the corresponding II. Description of the Proposed 4. At paragraph 2725.A.3.a., Louisiana Federal regulations. Amendment proposes to require qualified, registered, This document sets forth the times By letter dated October 24, 1997 professional engineers to certify all coal and locations that the Louisiana (Administrative Record No. LA–362), processing waste dams and program and proposed amendment to Louisiana submitted a proposed embankments covered by sections 5375 that program are available for public amendment to its program pursuant to through 5395. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61713

5. At section 2725, Louisiana production operations have more than a locations with the ‘‘operator’s’’ actual proposes to add new paragraph C.1. that five percent ownership interest in the and attributed annual production of coal specifies that for impoundments not applicant for small operator assistance. for all locations. Also, Louisiana included in paragraph 2725.A.2., Louisiana proposes to change the proposes to change the actual and engineering design standards shall percentage of ownership interest from attributed annual production of coal for ensure stability comparable to a 1.3 more than five percent to more than ten all locations from 100,000 to 300,000 minimum static safety factor in lieu of percent. tons during the 12 months immediately engineering tests to establish following the date on which the permit compliance with the minimum static F. Section 3711. Program Services and was originally issued. safety factor of 1.3 specified in section Data Requirements 3. Louisiana proposes to revise 5333. 1. Louisiana proposes to revise paragraph 3717.A.3. concerning permits 6. Louisiana proposes to revise paragraph 3711.A. by adding the phrase, that are sold, transferred, or assigned by paragraph 2725.F. by deleting the ‘‘and provide other services,’’ to closely changing the transferee’s total actual phrase, ‘‘If the structure is 20 feet or follow the Federal regulation at 30 CFR and attributed annual production of coal higher or impounds more than 20 acre- 795.9(a). from 100,000 to 300,000 tons during the feet,’’ and replacing it with the phrase, 2. Louisiana proposes to revise 12 months immediately following the ‘‘If the structure meets the Class B or C paragraph 3711.B.1. by adding the date on which the permit was originally criteria for dams in TR–60 or meets the phrase, ‘‘including the engineering issued. size or other criteria of 30 CFR analyses and designs necessary for the H. Section 4501. Procedures for Seeking 77.216(a).’’ determination,’’ to closely follow the Release of Performance Bond Federal regulation at 30 CFR 795.9(b)(1). D. Section 2907. Prime Farmland 3. Louisiana proposes to revise 1. Louisiana proposes to add new At section 2907, Louisiana proposes paragraph 3711.B.2. by adding the paragraph 4501.A.3. to read as follows: to add new paragraph C.5. to read as phrase, ‘‘the drilling and,’’ to closely The permittee shall include in the follows: follow the Federal regulation at 30 CFR application for bond release a notarized The aggregate total prime farmland acreage 795.9(b)(2). statement which certifies that all applicable shall not be decreased from that which 4. Louisiana proposes to add new reclamation activities have been existed prior to mining. Water bodies, if any, paragraph 3711.B.3., ‘‘the development accomplished in accordance with the to be constructed during mining and of cross-section maps and plans requirements of the Act, the regulatory reclamation operations must be located program, and the approved reclamation plan. required by § 2537,’’ to closely follow Such certification shall be submitted for each within the post-reclamation non-prime the Federal regulation at 30 CFR farmland portions of the permit area. The application or phase of bond release. creation of any such water bodies must be 795.9(b)(3). 5. Louisiana proposes to add new 2. With the addition of this new approved by the regulatory authority and the paragraph, Louisiana proposes to re- consent of all affected property owners paragraph 3711.B.4, ‘‘the collection of within the permit area must be obtained. archaeological and historic information number existing paragraph A.3. as A.4. and related plans required by E. Section 3705. Eligibility for I. Section 5333. Hydrologic Balance: §§ 2505.A.2. and 2731 and any other Assistance Impoundments archaeological and historic information 1. Louisiana proposes to add new 1. At paragraph 3705.A.2., Louisiana required by the office,’’ to closely follow paragraph 5333.A.1 that requires proposes to change from 100,000 to the Federal regulation at 30 CFR impoundments meeting the Class B or C 300,000 tons the probable total actual 795.9(b)(4). and attributed production of coal that an 6. Louisiana proposes to add new criteria for dams in the U.S. Department applicant for small operator assistance paragraph 3711.B.5., ‘‘pre-blast surveys of Agriculture, Soil Conservation cannot exceed during any consecutive required by § 2707; and’’ to closely Service Technical Release No. 60 (210– 12-month period either during the term follow the Federal regulation at 30 CFR VI–TR60, October 1985), ‘‘Earth Dams of his or her permit or during the first 795.9(b)(5). and Reservoirs,’’ 1985 to comply with five years after issuance of his or her 7. Louisiana proposes to add new the ‘‘Minimum Emergency Spillway permit, whichever period is shorter. paragraph 3711.B.6, ‘‘the collection of Hydrologic Criteria’’ table in TR–60. 2. Currently at paragraph 3705.A.2.a., site-specific resources information, the Louisiana also proposes to incorporate applicants for small operator assistance, production of protection and by reference the above technical release. 2. Louisiana proposes to redesignate with an ownership interest in other coal enhancement plans for fish and wildlife existing paragraphs 5333.A.1. through production operations, have a pro rata habitats required by § 2713, and 5333.A.12. as paragraphs 5333.A.2 share of coal produced by those information and plans for any other through 5333.A.13. operations attributed to their total coal environmental values required by the 3. Louisiana proposes to revise production in any consecutive 12- office under the act.’’ to closely follow redesignated paragraph 5333.A.4. month period if they have more than a the Federal regulation at 30 CFR (previously paragraph 5333.A.3.) by five percent ownership interest in those 795.9(b)(6). other coal production operations. deleting all of its language except for the Louisiana proposes to change the G. Section 3717. Applicant Liability word ‘‘Stability.’’ The State also percentage of ownership interest from 1. At paragraph 3717.A., Louisiana proposes to add new paragraphs a. and more than five percent to more than ten proposes to revise this paragraph by b. containing the following language: percent. adding the phrase, ‘‘A coal operator,’’ a. An impoundment meeting the Class B or 3. Currently at paragraph 3705.A.2.b., and by deleting the words ‘‘laboratory’’ C criteria for dams in TR–60, or the size or applicants for small operator assistance and ‘‘performed’’ to closely follow the other criteria of 30 CFR 77.216(a) shall have have a pro rata share of coal produced a minimum static safety factor of 1.5 for a Federal regulation at 30 CFR 795.12(a). normal pool with steady state seepage by other coal production operations 2. Louisiana proposes to revise saturation conditions, and a seismic safety attributed to their total coal production paragraph 3717.A.2. by replacing the factor of at least 1.2. in any consecutive 12-month period if ‘‘applicant’s’’ actual and attributed b. Impoundments not included in the coal operators of the other coal annual production of coal for all § 5333.A.4.a. except for a coal mine waste 61714 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules impounding structure, shall have a minimum existing language and replacing it with O. Section 6913. Procedures for static safety factor of 1.3 for a normal pool new language, and by adding new Assessment of Civil Penalties with steady state seepage saturation paragraphs A.1. and A.2. The proposed conditions or meet the requirements of Louisiana proposes to revise § 2725.C.1. new language for these paragraphs contains the definition for and paragraph 6913.B by adding language to 4. At redesignated paragraph explanations pertaining to ‘‘thin its regulation regarding how copies of 5333.A.6. (previously paragraph overburden.’’ the proposed assessment and the 5333.A.5.), worksheet showing the computation of Louisiana proposes to revise this K. Section 5413. Backfilling and the proposed assessment are to be paragraph by adding the following Grading: Thick Overburden served. The added language allows the language: State to serve the person to whom the Louisiana proposes to revise For an impoundment meeting the Class B notice or order was issued by any paragraph 5413.A. by deleting the alternative means consistent with the or C criteria for dams in TR–60, or the size existing language and replacing it with or other criteria of 30 CFR 77.216(a), rules governing service of a summons foundation investigation, as well as any new language, and by adding new and complaint under the Louisiana necessary laboratory testing of foundation paragraphs A.1. and A.2. The proposed Rules of Civil Procedure. material, shall be performed to determine the new language for these paragraphs design requirements for foundation stability. contains the definition for and P. Section 6915. Procedures for 5. At redesignated paragraph explanations pertaining to ‘‘thick Assessment Conference overburden.’’ 5333.A.9. (previously paragraph Louisiana proposes to revise 5333.A.8.), Louisiana proposes to revise L. Section 5503. Prime Farmland: Soil paragraph 6915.B.1 by changing the this paragraph by deleting the existing Removal time when the assessment conference is language and replacing it, and by adding to be held from ‘‘within 60 days from new paragraphs A.9.a., a.i., and a.ii., Louisiana proposes to revise the date of the issuance of the proposed and A.9.b., b.i., b.ii., and b.iii. The new paragraph 5503.A.2. by adding language assessment or the end of the abatement language pertains to the types of to require coal operators: period, whichever is later’’ to ‘‘within spillways that shall be designed and to separately remove the B horizon of the 60 days from the date the conference constructed for impoundments: (a.) soil, a combination of B horizon and request is received or the end of the meeting the Class B or C criteria for underlying C horizon, or other suitable soil abatement period, whichever is later.’’ dams in TR–60, the emergency spillway material to provide the thickness of suitable Louisiana also proposes to add that hydrograph criteria in the ‘‘Minimum soil required by paragraph 5507.A.1. that will failure by the State to hold the Emergency Spillway Hydrologic create a reconstructed soil of equal or greater conference within 60 days shall not be Criteria’’ table in TR–60, or greater event productivity capacity than that which existed grounds for dismissal of all or part of an as specified by the State; (b.) meeting or before mining, except as approved by the assessment unless the person against regulatory authority where the B or C soil exceeding the size or other criteria of 30 whom the proposed penalty has been CFR 77.216(a), a 100-year 6-hour event, horizons would not otherwise be removed and where soil capabilities can be retained; assessed proves actual prejudice as a or greater event as specified by the result of the delay. State; and (c.) not included in M. Section 5507. Prime Farmland: Soil § 5333.A.9.b.i. and ii., 25-year 6-hour or Replacement Q. Section 6917. Request for Hearing greater event as specified by the State. Louisiana proposes to change from 15 Louisiana proposes to revise 6. At redesignated paragraph days to 30 days the amount of time a paragraph 5507.A.4. by deleting the 5333.A.12 (previously paragraph person has to submit a petition for existing language and replacing it with 5333.A.11.), Louisiana proposes to requesting a hearing after the date of the following language: revise this paragraph by deleting the service of the conference office’s action. existing language and replacing it with The operator shall replace the B horizon, language pertaining to impoundments C horizon, or other suitable material R. Section 7105. Procedure for ‘‘meeting’’ and ‘‘not meeting’’ the SCS specified in § 5503.A.2. to the thickness Assessment of Individual Civil Penalty Class B or C criteria for dams in TR–60, needed to meet the requirements of or the size or other criteria in 30 CFR § 5507.A.1. In those areas where the B or C Louisiana proposes to revise 77.216. The State also proposes how horizons were not removed but may have paragraph 7105.C. by adding language to often and by whom these been compacted or otherwise damaged its regulation regarding when service of impoundments must be examined and during the mining operation, the operator a notice of proposed assessment and what must be looked for during the shall engage in deep tilling or other included information shall be deemed examinations. appropriate means to restore premining complete. The added language states 7. Louisiana proposes to revise capabilities. that service is complete upon tender of paragraph 5333.C.2. by deleting the N. Section 6507. Service of Notices of the notice of proposed assessment and existing language and replacing it with Violation and Cessation Orders included information or of the certified new language and by adding new mail and shall not be deemed paragraphs C.2.a. and C.2.b. The new Louisiana proposes to revise incomplete because of refusal to accept. language pertains to the State’s option to paragraph 6507.A.2. by adding language III. Public Comment Procedures approve temporary impoundments that to its regulation regarding how notices are constructed to control runoff, from of violations and cessation orders are to In accordance with the provisions of the design precipitation event, primarily be served. The added language allows 30 CFR 732.17(h), OSM is seeking through storage of the runoff. the State to serve the person to whom comments on whether the proposed the notice or order was issued by any amendment satisfies the applicable J. Section 5411. Backfilling and Grading: means consistent with the rules program approval criteria of 30 CFR Thin Overburden governing service of a summons and 732.15. If the amendment is deemed Louisiana proposes to revise complaint under the Louisiana Rules of adequate, it will become part of the paragraph 5411.A. by deleting the Civil Procedure. Louisiana program. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61715

Written Comments (OMB) under Executive Order 12866 impact, the Department relied upon the Written comments should be specific, (Regulatory Planning and Review). data an assumptions for the counterpart Federal regulations. pertain only to the issues proposed in Executive Order 12988 this rulemaking, and include The Department of the Interior has Unfunded Mandates explanations in support of the conducted the reviews required by commenter’s recommendations. OSM has determined and certifies section 3 of Executive Order 12988 Comments received after the time pursuant to the Unfunded Mandates (Civil Justice Reform) and has Reform Act (2 U.S.C. 1502 et seq.) that indicated under DATES or at locations determined that, to the extent allowed other than the Tusla Field Office will this rule will not impose a cost of $100 by law, this rule meets the applicable not necessarily be considered in the million or more in any given year on standards of subsections (a) and (b) of final rulemaking or included in the local, state, or tribal governments or that section. However, these standards Administrative Record. private entities. are not applicable to the actual language Public Hearing of State regulatory programs and List of Subjects in 30 CFR Part 918 Persons wishing to speak at the public program amendments since each such Intergovernmental relations, Surface hearing should contact the person listed program is drafted and promulgated by mining, Underground mining. under FOR FURTHER INFORMATION a specific State, not by OSM. Under Dated: November 7, 1997. CONTACT by 4:00 p.m., c.s.t. on sections 503 and 505 of SMCRA (30 Brent Wahlquist, U.S.C. 1253 and 1255) and 30 CFR December 4, 1997. The location and Regional Director, Mid-Continent Regional time of the hearing will be arranged 730.11, 732.15, and 732.17(h)(10), Coordinating Center. decisions on proposed State regulatory with those persons requesting the [FR Doc. 97–30304 Filed 11–18–97; 8:45 am] programs and program amendments hearing. Any disabled individual who BILLING CODE 4310±05±M has need for a special accommodation to submitted by the States must be based attend a public hearing should contact solely on a determination of whether the the individual listed under FOR FURTHER submittal is consistent with SMCRA and its implementing Federal regulations ENVIRONMENTAL PROTECTION INFORMATION CONTACT. If no one requests AGENCY an opportunity to speak at the public and whether the other requirements of hearing, the hearing will not be held. 30 CFR Parts 730, 731, and 732 have 40 CFR Part 300 Filing of a written statement at the been met. [FRL±5925±2] time of the hearing is requested as it National Environment Policy Act will greatly assist the transcriber. No environment impact statement is National Oil and Hazardous Submission of written statements in required for this rule since section Substances; Pollution Contingency advance of the hearing will allow OSM 702(d) of SMCRA (30 U.S.C. 1292(d)) Plan; National Priorities List officials to prepare adequate responses provides that agency decisions on and appropriate questions. AGENCY: Environmental Protection proposed State regulatory program The public hearing will continue on Agency (EPA). the specified date until all persons provisions do not constitute major Federal actions within the meaning of ACTION: Notice of intent to delete scheduled to speak have been heard. Coalinga Asbestos Mine Site from the Persons in the audience who have not section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. National Priorities List: request for been scheduled to speak, and who wish comments. to do so, will be heard following those 4332(2)(C)). who have been scheduled. The hearing Paperwork Reduction Act SUMMARY: The Environmental Protection will end after all persons scheduled to This rule does not contain Agency (EPA) Region 9 announces its speak and persons present in the information collection requirements that intent to delete the Coalinga Asbestos audience who wish to speak have been require approval by OMB under the Mine Site from the National Priorities heard. Paperwork Reduction Act (44 U.S.C. list (NPL) and requests public comment on this proposed action. The NPL Public Meeting 3507 et seq.). constitutes Appendix B of 40 CFR part If only one person requests an Regulatory Flexibility Act 300 which is the National Oil and opportunity to speak at a hearing, a The Department of the Interior has Hazardous Substances Pollution public meeting, rather than a public determined that this rule will not have Contingency Plan (NCP), which EPA hearing, may be held. Persons wishing a significant economic impact on a promulgated pursuant to section 105 of to meet with OSM representatives to substantial number of small entities the Comprehensive Environmental discuss the proposed amendment may under the Regulatory Flexibility Act (5 Response, Compensation, and Liability request a meeting by contacting the U.S.C. 601 et seq.). The State submittal Act (CERCLA) of 1980, as amended. person listed under FOR FURTHER which is the subject of this rule is based EPA and the State of California INFORMATION CONTACT. All such meetings upon counterpart Federal regulations for Department of Toxic Substances Control will be open to the public and, if which an economic analysis was have determined that all appropriate possible, notices of meetings will be prepared and certification made that CERCLA response actions have been posted at the locations listed under such regulations would not have a implemented and that no further ADDRESSES. A written summary of each significant economic effect upon a cleanup by responsible parties is meeting will be made a part of the substantial number of small entities. appropriate. Moreover, EPA and the Administrative Record. Accordingly, this rule will ensure that State have determined that remedial IV. Procedural Determinations existing requirements previously activities conducted at the site to date promulgated by OSM will be have been protective of public health, Executive Order 12866 implemented by the State. In making the welfare, and the environment. This rule is exempted from review by determination as to whether this rule DATES: Comments concerning the the Office of Management and Budget would have a significant economic proposed deletion of this Site from the 61716 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

NPL may be submitted by December 19, or recategorized on, the NPL when no Agency management. As mentioned in 1997. further response is appropriate. In section II of this document, section ADDRESSES: Comments may be mailed making a determination to delete a site 300.425(e)(3) of the NCP states that the to: Keith Takata, Director, Superfund from the NPL, EPA shall consider, in deletion of a site from the NPL does not Programs, U.S. Environmental consultation with the State, whether any preclude eligibility for future response Protection Agency, 75 Hawthorne of the following criteria have been met: actions. Street, San Francisco, CA 94105. (i) Responsible parties or other parties For deletion of this Site, EPA’s Comprehensive information on this have implemented all appropriate Regional Office will accept and evaluate site is available through the EPA Region response actions required; or public comments on EPA’s Notice of 9 public docket which is located at EPA (ii) All appropriate response under Intent to Delete before making a final Region 9’s Superfund Records Center, at CERCLA has been implemented and no decision to delete. If necessary, the further action by responsible parties is the address above, and is available for Agency will prepare a Responsiveness appropriate; or viewing between 8 a.m. and 5 p.m., Summary to address any significant (iii) The remedial investigation has Monday through Friday, excluding public comments received. shown that the release poses no A deletion occurs when the Regional holidays. Additional information on the significant threat to public health or the Administrator places a final notice in Coalinga Asbestos Mine Site is also environment, and, therefore, taking of the Federal Register. Generally, the NPL available for viewing at the site remedial measures is not appropriate. will reflect deletions in the final update repository located at: City of Coalinga Even if a site is deleted from the NPL, following the Notice. Public notices and Public Library, 305 North Fourth Street, where hazardous substances, pollutants, copies of the Responsiveness Summary, Coalinga, CA 93210, (209) 935–1676. or contaminants remain at the site above if one is prepared, will be made FOR FURTHER INFORMATION CONTACT: levels that allow for unlimited use and available to interested parties by the Richard Procunier, U.S. Environmental unrestricted exposure, EPA’s policy is Regional Office. Protection Agency Region 9, 75 that a subsequent review of the site will Hawthorne Street, San Francisco, CA be conducted at least every five years IV. Basis for Intended Site Deletion 94105, (415) 744–2219. after the initiation of the remedial action A. Unit Background SUPPLEMENTARY INFORMATION: at the site to ensure that the site remains protective of public health and the City Unit TABLE OF CONTENTS environment. The Coalinga Asbestos The City of Coalinga Unit is privately I. Introduction Mine Site has two operable units: the owned and consists of approximately II. NPL Deletion Criteria City of Coalinga Operable Unit (City 107 acres of land situated between 4th III. Deletion Procedures Unit) and the Coalinga Mine Site/ Johns- Street and the intersection of Lucille IV. Basis of Intended Site Deletion Manville Mill Operable Unit (JM Unit). Avenue and Highway 198 at the southwestern end of the City of I. Introduction The first five-year review for the City Unit was completed in April 1996. The Coalinga, Fresno County, California. The Environmental Protection Agency first five-year review for the JM Unit is The nearest population center is (EPA) Region 9 announces its intent to expected to be completed in late 1997. Coalinga (approximate population of delete the Coalinga Asbestos Mine Site If new information becomes available 9850), located immediately to the (EPA ID# CAD980817217), Coalinga, which indicates a need for further northeast. The surrounding area is California, from the National Priorities action, EPA may initiate remedial mixed use, consisting of industrial, List (NPL), Appendix B of the National actions. Wherever there is a significant agricultural, commercial and residential Oil and Hazardous Substances Pollution release from a site deleted from the NPL, properties. Contingency Plan (NCP), 40 CFR Part the site may be restored to the NPL JM Unit 300, and requests comments on this without the application of the Hazard deletion. EPA identifies sites that Ranking System. The JM Unit is a privately owned, appear to present a significant risk to 120-acre tract of land located in upper public health, welfare, or the III. Deletion Procedures Pine Canyon on the southern flank of environment and maintains the NPL as The following procedures were used the Joaquin Ridge in the Diablo Range, the list of these sites. As described in 40 for the proposed deletion of this Site: (1) western Fresno County, California. It is CFR 300.425(e)(3) of the NCP, sites EPA Region 9 has recommended located approximately 1⁄2 mile down deleted from the NPL remain eligible for deletion and has prepared the relevant slope from the New Idria Formation, a remedial actions in the unlikely event documents; (2) the State of California 48-square mile outcrop margin of that conditions at the site warrant such has concurred with the proposed naturally occurring chrysotile asbestos. action. deletion decision; (3) a notice has been The nearest population center is EPA will accept comments on the published in the local newspaper and Coalinga located about 16 miles to the proposal to delete this site for thirty has been distributed to appropriate southeast. Areas adjacent to the JM Unit days after publication of this notice in federal, state, and local officials and are rural; land uses include mining, the Federal Register. other interested parties announcing the ranching, farming and recreation Section II of this notice explains the commencement of a 30-day public (camping, hunting, hiking, mineral criteria for deleting sites from the NPL. comment period on EPA’s Notice of collecting, and riding off-highway Section III discusses procedures that Intent to Delete; and (4) all relevant vehicles). EPA is using for this action. Section IV documents have been made available for B. Site History discusses the Coalinga Asbestos Mine public review in the local Site Site and explains how the site meets the information repository. City Unit deletion criteria. Deletion of the Site from the NPL does The Southern Pacific Railroad not itself create, alter, or revoke any property within the original 107-acre II. NPL Deletion Criteria individual’s rights or obligations. The City Unit consisted partly of a portion Section 300.425(e) of the NCP NPL is designed primarily for of the original operating right-of-way provides that sites may be deleted from, informational purposes and to assist acquired by Southern Pacific Railroad Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61717

Company (a predecessor of Southern investigation revealed that asbestos had characterize the extent of asbestos Pacific Transportation Company) been transported from the mines and present in soils in the area. In addition pursuant to the July 27, 1866 Act of mills to storage areas within the City of to soil sampling, air samples and Congress, and partly of ancillary lands Coalinga for handling and shipment. groundwater samples were collected. acquired pursuant to the same Act Soil sampling confirmed the presence of Upon completion of the site patented July 10, 1894. During Southern uncontrolled hot spots of asbestos and characterization, the FS was performed Pacific’s ownership, several properties nickel contamination over a 107-acre to evaluate remedial alternatives for the were leased to various entities which area in the City of Coalinga. site. The FS evaluated a number of were active in the milling, manufacture, The Site became the City of Coalinga remedial alternatives for handling storage and/or transportation of asbestos Operable Unit of the Atlas Mine Site contaminated soils including no action, materials from the mid-1950’s until and the Johns-Manville Coalinga fencing, capping, soil stabilization, on- approximately 1980. Asbestos Mill Site. It was divided into site disposal, chemical fixation, and off- JM Unit four areas: the Marmac Warehouse, the site disposal. Onsite disposal of soils Storage Yard, the Atlas Shipping Yard, containing asbestos in an engineered The Southern Pacific Railroad and the U.S. Asbestos Company. The waste management unit was the selected acquired the property on which the JM northern end of the 107-acre site was alternative. Unit is located as part of a land grant connected to the Atlas Mine Site, while JM Unit under the 1871 Railway Act. In the mid- the southern end was connected to the 1950’s researchers discovered that Johns-Manville Mill Site. Although the At the JM Unit, RI/FS activities were chrysotile asbestos from the New Idria cleanup could have proceeded as two initiated in 1985 and completed in Formation could be milled to yield a separate Operable Units, EPA decided to 1990. The RI described site marketable short-fiber asbestos product. combine it into one site cleanup, characterization activities and technical The Southern Pacific Land Company designated an operable unit for each of analyses, which included soil and (SPLC) leased the JM Unit for a period the two NPL Sites. surface water sampling, hydrologic and of 25 years to the Coalinga Asbestos Risks posed by the JM Unit were sediment transport modeling, geologic Company beginning about 1956. This evaluated using the Hazard Ranking mapping, an ecological assessment and joint venture, which was comprised of System on June 14, 1983 and the JM a cultural resources investigation. The the Johns-Manville Corporation, Kern Unit (designated the Coalinga Asbestos location and configuration of asbestos- County Land Company, and private Mine Site) was proposed for placement containing materials at the JM Unit were investors, operated an asbestos ore on the National Priorities List on assessed using aerial photographs, field processing mill at the JM Unit from September 8, 1983. It was finalized on observations, and the collection and approximately 1962 through mid-1974. the NPL on September 21, 1984. analysis of samples obtained from During this period, ore was processed surface materials, exploratory borings, from several nearby open pit mines, D. Remedial Investigation/Feasibility pits, and trenches. Geotechnical including the Jensen Mine and the Study investigation activities included slope Christy Pit. In November 1975, the City Unit stability analyses, seismic engineering Coalinga Asbestos Company assigned In August 1987, EPA issued an evaluations, and testing of site materials the lease to the Marmac Resource for permeability, moisture content, Company/Mareco, which used the administrative order pursuant to CERCLA section 106 (Order 87–04) to density, shear strength, and Atterberg property to conduct a chromite milling Limits. A detailed off-site source operation. Although all milling Southern Pacific Transportation Company (SPTC) requiring it to conduct characterization study was also operations were believed to have ceased performed. in October 1977, Marmac retained the a Remedial Investigation at the City of lease until July 31, 1981. The current Coalinga site. Soil sampling confirmed E. ROD Findings and Remedial owner of the JM Unit is Pine Canyon the presence of uncontrolled hot spots Activities of asbestos and nickel contamination Land Company, successor-in-interest to City Unit SPLC. over a 107-acre area in the City of Coalinga. EPA ordered SPTC to prepare After consideration of public C. Site Discovery an Operable Unit Feasibility Study comments, EPA issued a Record of In 1980, the Metropolitan Water (OUFS) to develop and evaluate Decision (ROD) for the City Unit on July District (MWD) of Southern California remedial alternatives for the site, which 19, 1989. The ROD required the detected asbestos in water samples from became the City of Coalinga Operable collection and on-site disposal of all the California Aqueduct. An extensive Unit of both the Coalinga Asbestos Mine asbestos ore waste and other mining sampling program conducted along the Site and the Atlas Mine Site. waste material; decontamination of all Aqueduct in August and September of At the City of Coalinga Unit, Remedial buildings, structures and other 1980 suggested that the area in which Investigation/Feasibility Study (RI/FS) equipment; regrading of excavated areas the JM Unit was located was, in part, a activities commenced in 1987 with the with clean material (containing less possible source of asbestos into the implementation of the Hazardous than or equal to one percent asbestos by California Aqueduct. In addition, EPA Substance Containment Plan and were Phased Light Microscopy (PLM)); a deed sampled mill tailings at the JM Unit; completed in December 1988 with the restriction on the area where the waste analytical results obtained from using completion of the FS. Implementation of management unit would be constructed polarized light microscopy showed the the Hazardous Substance Containment and maintained; and a long term tailings contained 20% to 40% asbestos. Plan provided measures to initially operation and maintenance program to During investigation of the Coalinga stabilize the areas where asbestos had maintain the integrity of the waste Asbestos Mine site and the nearby Atlas been documented by EPA. These management unit. Southern Pacific Mine site, EPA conducted an airborne measures included fencing and posting, agreed to implement the selected asbestos sampling program in which dust suppression, and stabilization of remedy as defined in the ROD by high asbestos readings were measured building structures. Subsequently, a site entering into a Consent Decree with the in the City of Coalinga. Further sampling program was undertaken to EPA on July 27, 1989. The design report 61718 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules presenting the technical specifications construction, operation and including the Atlas and Coalinga for the construction of the on-site maintenance, and monitoring of the Asbestos Mines and the City of Coalinga asbestos waste management unit was remedial action. The RDWP was Superfund sites. In June 1993, a approved by EPA on October 5, 1989. approved by EPA on April 1, 1993. newspaper advertisement was placed in Remedial action consisted of Other submittals approved by EPA the Coalinga Record to notify nearby excavation of soils in areas where the included the 30% Design Package, the residents of the initiation of remedial site characterization study indicated the 90% Design Package, and the Final activities at the JM Unit and to collect presence of asbestos greater than 1% by Design Package. names and addresses of parties PLM. The soils were consolidated in an Remedial action at the JM Unit interested in being placed on a mailing on-site waste management unit with a consisted of mill dismantling; regrading list for future information. Postage-paid, final capacity of 26,200 cubic yards. In the tailings pile; cross-canyon stream pre-addressed response cards were also addition, asbestos-containing materials diversion; improvements to an existing sent to residents near the JM Unit to within building structures such as sediment trapping dam; access determine if the residents wished to be transite panels, mining ore, and other restrictions; deed restrictions; placed on the mailing list. In March debris were removed to the waste revegetation pilot study; revegetation 1997, EPA issued another Fact Sheet to management unit. The building and paving the access road. The remedy the general mailing list. structures were then pressure washed. has been certified to be operational by Excavated areas and buildings were the Supervising Engineer and is in G. Summary of Operation and sampled to verify that the action levels compliance with the Consent Decree, Maintenance had been met. The excavated areas were the ROD, the approved final Remedial Long-term operation and maintenance regraded for proper drainage. The Design, the NCP, and ARARs. At the JM at each Unit is being performed under remedy was certified to be operational Unit, remedial action was started on the direction of the relevant responsible and functional as specified in the ROD May 17, 1993 and was completed prior party and oversight by the California and Consent Decree by the resident to the pre-final inspection on April 28, Department of Toxic Substances engineer supervising the work. The 1994. Control. O&M activities for the City Unit areas previously defined as currently include annual inspections for F. Community Relations Activities contaminated were certified to be below cap integrity, surface water ponding, the EPA cleanup level. Remedial Commencing in June 1987, EPA fence integrity and repairs as necessary. construction activities commenced in personnel met periodically with There is also a provision for specific June of 1990 and were completed in members of the Coalinga City Council. monitoring in the event of a natural January 1992. EPA issued its certificate Several different persons designated by disaster (100 year flood, catastrophic of completion in April 1992. Homes and the City to be the Council’s contact with earthquake). The Operations and a large retail store have been built on EPA were kept informed about the Maintenance Plan for the JM Unit is formerly contaminated land. investigation status. The Operable Unit Appendix G of the Remedial Action Feasibility Study (OUFS) report was Completion Report, dated January 10, JM Unit released for public comment on 1995. O&M activities for the JM Unit After consideration of public February 9, 1989. This document along include inspection of engineering comments, EPA issued a Record of with other site reports and the systems, sediment removal, gate control, Decision (ROD) for the JM Unit on administrative record were made repairs, and reporting. There is also a September 21, 1990. The remedial available to the public at an information provision for specific monitoring in the action selected in the ROD addressed repository established at the City of event of heavy rainfall or seismic the problem of the asbestos ore and Coalinga Public Library. activity of magnitude 5 or greater within asbestos mill tailings at the JM Unit in The public comment period 50 miles of the Site and a site caretaker. the context of a remote and largely rural commenced on February 9, 1989 and O&M activities for both Units are being area that is close to large amounts of closed on March 24, 1989. A public conducted in accordance with the O&M naturally occurring asbestos. The ROD meeting was held on February 22, 1989 Plans. required grading of asbestos tailings; at the City Council Chambers. Prior to construction of a stream diversion to the beginning of the public comment H. Protectiveness channel surface water away from the period, EPA published a notice in the The implemented remedies achieved tailings pile; improvements to an Fresno Bee and the Coalinga Weekly the degree of cleanup and protection as existing sediment trapping dam; Courier. The notice briefly described the described in the RODs for all pathways restricted access to disturbed areas proposed plan and announced the of exposure and no further Superfund within the mill area; a revegetation pilot public comment period and the public response is needed to protect human study and revegetation if technically meeting. The notice also announced the health and the environment. Both units feasible; dismantling of an abandoned availability of the proposed plan and the at the Site meet all the site completion mill; improvements to the road through OUFS for review at the information requirements as specified in OSWER the Mill Area to suppress dust; a deed repository. A fact sheet describing the Directive 9320.2–09, Close-Out restriction to ensure preservation of the proposed plan was delivered to the Procedures for National Priorities List remedy; and visual inspections of the information repository. Copies of the Sites (Interim Final), August 1995. Long remedy. The responsible parties for the fact sheet were mailed to the EPA term operation and maintenance will be JM Unit agreed to implement the general mailing list for the Atlas Mine required to insure the integrity of selected remedy as defined in the ROD and Johns-Manville Coalinga Mill Sites, controls constructed during the by entering into a Consent Decree with which included approximately 300 remedial actions. The remediation the EPA on August 11, 1992. members of the general public, elected implemented at each Unit does not A Remedial Design Work Plan officials and media representatives. require any operational activities (RDWP) for the JM Unit was submitted In July 1992 EPA issued Fact Sheets because of its permanent nature. to EPA on February 25, 1993, which which were mailed to the general Inspection activities, however, will be provided the overall management mailing list giving an update on clean- conducted. For the City Unit, strategy for performing the design, up activities in the Coalinga Area, maintenance activities may be required Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61719 for the cap and fence; for the JM Unit, SUMMARY: This document requests FEDERAL COMMUNICATIONS maintenance activities may be required comments on a petition for rule making COMMISSION for stream diversions and sediment filed on behalf of KMBQ Corporation, retention structures. For the City Unit, requesting the allotment of Channel 47 CFR Part 73 a deed restriction was recorded with the 273C2 to Wasilla, Alaska, as that [MM Docket No. 97±224, RM±9177] Recorder’s Office, Fresno County, community’s second local FM California, on June 22, 1990 which transmission service. Coordinates used Radio Broadcasting Services; Monroe, prohibited anyone in possession of the for this proposal are 61–37–32 and 149– UT property from taking any actions that 24–05. would interfere with the maintenance AGENCY: Federal Communications DATES: Comments must be filed on or Commission. and operation of the waste management before December 22, 1997, and reply ACTION: unit to be constructed pursuant to the comments on or before January 6, 1998. Proposed rule. Consent Decree. This deed restriction SUMMARY: was amended upon completion of the ADDRESSES: Secretary, Federal The Commission requests remedial action to illustrate the exact Communications Commission, comments on a petition filed by Charles placement and dimensions of the Washington, DC 20554. In addition to D. Hall requesting the allotment of constructed waste management unit. For filing comments with the FCC, Channel 257C2 to Monroe, Utah, as the the JM Unit, a deed restriction recorded interested parties should serve the community’s first local aural with the Recorder’s Office, Fresno petitioner’s counsel as follows: John transmission service. Channel 257C2 County, California, on July 2, 1993, Wells King and Amelia Brown, Esqs., can be allotted to Monroe in compliance prohibits anyone in possession of the Haley, Bader & Potts, 4350 North Fairfax with the Commission’s minimum property from taking actions that would Drive, Suite 900, Arlington, VA 22203– distance separation requirements with a interfere with the implementation of the 1633. site restriction of 1.3 kilometers (0.8 remedy. Pursuant to CERCLA 121 and FOR FURTHER INFORMATION CONTACT: miles) south in order to avoid a short- as provided in OSWER Directive Nancy Joyner, Mass Media Bureau, (202) spacing conflict with vacant Channel 9355.7–02, Structure and Components 418–2180. 256A at Levan, Utah. The coordinates of Five-Year Reviews, May 23, 1991, for Channel 257C2 at Monroe are 38– SUPPLEMENTARY INFORMATION: This is a 37–21 NL and 112–07–29 WL. OSWER Directive 9355.702A, synopsis of the Commission’s Notice of DATES: Comments must be filed on or Supplemental Five-Year Review Proposed Rule Making, MM Docket No. before December 22, 1997, and reply Guidance, July 26, 1994, and Second 97–227, adopted October 22, 1997, and comments on or before January 6, 1998. Supplemental Five-Year Review released October 31, 1997. The full text Guidance, December 21, 1996, EPA of this Commission decision is available ADDRESSES: Federal Communications must conduct a statutory five-year for inspection and copying during Commission, Washington, DC 20554. In review. normal business hours in the FCC’s addition to filing comments with the One of the three criteria for deletion Reference Center (Room 239), 1919 M FCC, interested parties should serve the specified that EPA may delete a site Street, NW., Washington, DC. The petitioner, or its counsel or consultant, from the NPL if ‘‘responsible parties or complete text of this decision may also as follows: James K. Edmundson, other parties have implemented all be purchased from the Commission’s Gardner, Carton & Douglas, 1301 K appropriate response actions required.’’ copy contractors, International Street, NW., Suite 900, East Tower, EPA, with the concurrence of the Transcription Service, Inc., 1231 20th Washington, DC 20005 (Counsel for California Department of Toxic Street, NW., Washington, DC 20036, petitioner). Substances Control, believes that this (202) 857–3800. FOR FURTHER INFORMATION CONTACT: Pam criterion for deletion has been met. Provisions of the Regulatory Blumenthal, Mass Media Bureau, (202) Consequently, EPA is proposing Flexibility Act of l980 do not apply to 418–2180. deletion of this Site from the NPL. this proceeding. SUPPLEMENTARY INFORMATION: This is a Documents supporting this action are Members of the public should note synopsis of the Commission’s Notice of available at the EPA Region 9 NPL that from the time a Notice of Proposed Proposed Rule Making, MM Docket No. docket. Rule Making is issued until the matter 97–224, adopted October 22, 1997, and Dated: November 11, 1997. is no longer subject to Commission released October 31, 1997. The full text Felicia Marcus, consideration or court review, all ex of this Commission decision is available Regional Administrator, Region 9. parte contacts are prohibited in for inspection and copying during [FR Doc. 97–30380 Filed 11–18–97; 8:45 am] Commission proceedings, such as this normal business hours in the FCC’s Reference Center (Room 239), 1919 M BILLING CODE 6560±50±P one, which involve channel allotments. See 47 CFR 1.1204(b) for rules Street, NW., Washington, DC. The governing permissible ex parte contacts. complete text of this decision may also be purchased from the Commission’s FEDERAL COMMUNICATIONS For information regarding proper copy contractor, ITS, Inc., (202) 857– COMMISSION filing procedures for comments, See 47 CFR 1.415 and 1.420. 3800, 1231 20th Street, NW, 47 CFR Part 73 Washington, DC 20036. List of Subjects in 47 CFR Part 73 Provisions of the Regulatory [MM Docket No. 97±227, RM±9159] Radio broadcasting. Flexibility Act of 1980 do not apply to this proceeding. Radio Broadcasting Services; Wasilla, Federal Communications Commission. Members of the public should note AK John A. Karousos, that from the time a Notice of Proposed AGENCY: Federal Communications Chief, Allocations Branch, Policy and Rules Rule Making is issued until the matter Commission. Division, Mass Media Bureau. is no longer subject to Commission [FR Doc. 97–30286 Filed 11–18–97; 8:45 am] consideration or court review, all ex ACTION: Proposed rule. BILLING CODE 6712±01±P parte contacts are prohibited in 61720 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

Commission proceedings, such as this FCC, interested parties should serve the Prineville, OR, as the community’s one, which involve channel allotments. petitioner, or its counsel or consultant, second local FM and third local aural See 47 CFR 1.1204(b) for rules as follows: John M Pelkey, Esq., Haley, service. Channel 254C3 can be allotted governing permissible ex parte contacts. Bade & Potts P.L.C., 4350 North Fairfax to Prineville in compliance with the For information regarding proper Drive, Arlington, Virginia 22203–1633 Commission’s minimum distance filing procedures for comments, see 47 (Counsel for petitioner). separation requirements with a site CFR 1.415 and 1.420. FOR FURTHER INFORMATION CONTACT: Pam restriction of 10.6 kilometers (6.6 miles) southeast, at coordinates 44–13–30 NL; List of Subjects in 47 CFR part 73 Blumenthal, Mass Media Bureau, (202) 418–2180. 120–46–30 WL, to avoid a short-spacing Radio broadcasting. SUPPLEMENTARY INFORMATION: This is a to Station KUPL-FM, Channel 254C1, Federal Communications Commission. synopsis of the Commission’s Notice of Portland, OR. John A. Karousos, Proposed Rule Making, MM Docket No. DATES: Comments must be filed on or Chief, Allocations Branch, Policy and Rules 97–225, adopted October 22, 1997, and before December 22, 1997, and reply Division, Mass Media Bureau. released October 31, 1997. The full text comments on or before January 6, 1998. [FR Doc. 97–30285 Filed 11–18–97; 8:45 am] of this Commission decision is available ADDRESSES: Federal Communications BILLING CODE 6712±01±P for inspection and copying during Commission, Washington, DC 20554. In normal business hours in the FCC’s addition to filing comments with the Reference Center (Room 239), 1919 M FCC, interested parties should serve the FEDERAL COMMUNICATIONS Street, NW, Washington, DC. The petitioner, or its counsel or consultant, COMMISSION complete text of this decision may also as follows: Michael L. Mattson, 15740 be purchased from the Commission’s 47 CFR Part 73 May Road, Dallas, OR 97338 copy contractor, ITS, Inc., (202) 857– (Petitioner). [MM Docket No. 97±225, RM±9173] 3800, 1231 20th Street, NW, FOR FURTHER INFORMATION CONTACT: Washington, DC 20036. Radio Broadcasting Services; Olney Provisions of the Regulatory Leslie K. Shapiro, Mass Media Bureau, and Archer City, TX Flexibility Act of 1980 do not apply to (202) 418–2180. this proceeding. SUPPLEMENTARY INFORMATION: This is a AGENCY: Federal Communications Members of the public should note synopsis of the Commission’s Notice of Commission. that from the time a Notice of Proposed Proposed Rule Making, MM Docket No. ACTION: Proposed rule. Rule Making is issued until the matter 97–226, adopted October 22, 1997, and is no longer subject to Commission released October 31, 1997. The full text SUMMARY: The Commission requests consideration or court review, all ex of this Commission decision is available comments on a petition filed by Texas parte contacts are prohibited in for inspection and copying during Grace Communications proposing the Commission proceedings, such as this normal business hours in the FCC reallotment of Channel 248C2 from one, which involve channel allotments. Reference Center (Room 239), 1919 M Olney to Archer City, Texas; the See 47 CFR 1.1204(b) for rules Street, NW., Washington, DC. The modification of Station KRZB(FM)’s governing permissible ex parte contacts. complete text of this decision may also authorization to specify Archer City as For information regarding proper be purchased from the Commission’s its community of license; and, the filing procedures for comments, see 47 copy contractor, International allotment of Channel 270C2 at Olney, CFR 1.415 and 1.420. Transcription Services, Inc., (202) 857– Texas, as a replacement channel. Both 3800, 1231 20th Street, NW, channels can be allotted to Archer City List of Subjects in 47 CFR Part 73 Washington, DC 20036. and Olney, respectively, in compliance Radio broadcasting. Provisions of the Regulatory with the Commission’s minimum Flexibility Act of 1980 do not apply to distance separation requirements. Federal Communications Commission. this proceeding. Channel 248C2 can be allotted to Archer John A. Karousos, City with a site restriction of 0.2 Chief, Allocations Branch, Policy and Rules Members of the public should note kilometer (0.1 mile) southeast of the Division, Mass Media Bureau. that from the time a Notice of Proposed community. The coordinates for [FR Doc. 97–30284 Filed 11–18–97; 8:45 am] Rule Making is issued until the matter Channel 248C2 at Archer City are 33– BILLING CODE 6712±01±P is no longer subject to Commission 35–36 NL and 98–37–31 WL. Channel consideration or court review, all ex 270C2 can be allotted to Olney with a parte contacts are prohibited in site restriction of 5.2 kilometers (3.2 FEDERAL COMMUNICATIONS Commission proceedings, such as this miles) west of the city. The coordinates COMMISSION one, which involve channel allotments. for Channel 270C2 at Olney are 33–21– See 47 CFR 1.1204(b) for rules 39 NL and 98–48–42 WL. In accordance 47 CFR Part 73 governing permissible ex parte contacts. with Section 1.420(i), we will not accept [MM Docket No. 97±226, RM±9184] For information regarding proper competing expressions of interest in the filing procedures for comments, see 47 use of Channel 248C2 at Archer City or Radio Broadcasting Services; CFR 1.415 and 1.420. require the petitioner to demonstrate the Prineville, OR List of Subjects in 47 CFR Part 73 availability of an additional equivalent AGENCY: Federal Communications channel for use by such parties. Radio broadcasting. Commission. DATES: Comments must be filed on or Federal Communications Commission. ACTION: Proposed rule. before December 22, 1997, and reply John A. Karousos, comments on or before January 6, 1998. SUMMARY: The Commission requests Chief, Allocations Branch, Policy and Rules ADDRESSES: Federal Communications comments on a petition filed by Michael Division, Mass Media Bureau. Commission, Washington, DC 20554. In Mattson and Kenneth Lewetag seeking [FR Doc. 97–30283 Filed 11–18–97; 8:45 am] addition to filing comments with the the allotment of Channel 254C3 to BILLING CODE 6712±01±P Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61721

FEDERAL COMMUNICATIONS parte contacts are prohibited in released November 7, 1997. The full text COMMISSION Commission proceedings, such as this of this Commission decision is available one, which involve channel allotments. for inspection and copying during 47 CFR Part 73 See 47 CFR 1.1204(b) for rules normal business hours in the FCC’s [MM Docket No. 97±228; RM±9163] governing permissible ex parte contacts. Reference Center (Room 239), 1919 M For information regarding proper Street, NW, Washington, DC. The Radio Broadcasting Services; Pima, filing procedures for comments, See 47 complete text of this decision may also AZ CFR 1.415 and 1.420. be purchased from the Commission’s copy contractor, ITS, Inc., (202) 857– AGENCY: Federal Communications List of Subjects in 47 CFR Part 73 3800, 1231 20th Street, NW, Commission. Radio broadcasting. Washington, DC 20036. ACTION: Proposed rule. Federal Communications Commission. Provisions of the Regulatory Flexibility Act of 1980 do not apply to SUMMARY: John A. Karousos, This document requests this proceeding. comments on a petition for rule making Chief, Allocations Branch, Policy and Rules Division, Mass Media Bureau. Members of the public should note filed on behalf of R.A. Montierth that from the time a Notice of Proposed Enterprises, L.L.C., seeking the [FR Doc. 97–30288 Filed 11–18–97; 8:45 am] BILLING CODE 6712±01±P Rule Making is issued until the matter allotment of Channel 296A to Pima, is no longer subject to Commission Arizona, as that community’s first local consideration or court review, all ex aural transmission service. Coordinates parte contacts are prohibited in used for this proposal are 32–53–36 and FEDERAL COMMUNICATIONS COMMISSION Commission proceedings, such as this 109–49–42. Pima, Arizona, is located one, which involve channel allotments. within 320 kilometers (199 miles) of the 47 CFR Part 73 See 47 CFR 1.1204(b) for rules Mexico border, and therefore, the [MM Docket No. 97±230, RM±9185] governing permissible ex parte contacts. Commission must obtain the For information regarding proper concurrence of the Mexican government filing procedures for comments, see 47 in this proposal. Radio Broadcasting Services; New Albany, MS CFR 1.415 and 1.420. DATES: Comments must be filed on or before December 29, 1997, and reply AGENCY: Federal Communications List of Subjects in 47 CFR Part 73 comments on or before January 13, Commission. Radio broadcasting. 1998. ACTION: Proposed rule. Federal Communications Commission. ADDRESSES: Secretary, Federal John A. Karousos, Communications Commission, SUMMARY: The Commission requests comments on a petition filed by George Chief, Allocations Branch, Policy and Rules Washington, DC 20554. In addition to Division, Mass Media Bureau. filing comments with the FCC, G. Callicut requesting the allotment of [FR Doc. 97–30289 Filed 11–18–97; 8:45 am] interested parties should serve the Channel 268A to New Albany, petitioner’s counsel, as follows: Gregory Mississippi, as the community’s third BILLING CODE 6712±01±P L. Masters, Esq., Fisher, Wayland, FM service. Channel 268A can be Cooper, Leader & Zaragoza, L.L.P., 2001 allotted to New Albany in compliance with the Commission’s minimum FEDERAL COMMUNICATIONS Pennsylvania Avenue, NW., Suite 400, COMMISSION Washington, DC 20006. distance separation requirements with a site restriction 5.5 kilometers (3.4 miles) FOR FURTHER INFORMATION CONTACT: 47 CFR Part 73 northwest in order to avoid a short- Nancy Joyner, Mass Media Bureau, (202) spacing conflict with the licensed 418–2180. [MM Docket No. 97±229, RM±9100] operation of Station WFTA–FM, SUPPLEMENTARY INFORMATION: This is a Channel 270C2, Fulton, Mississippi. Radio Broadcasting Services; synopsis of the Commission’s Notice of The coordinates for Channel 268A at Warrenton, NC, La Crosse, VA Proposed Rule Making, MM Docket No. New Albany are 34–31–14 NL and 89– 97–228, adopted October 29, 1997, and 03–03 WL. AGENCY: Federal Communications released November 7, 1997. The full text Commission. DATES: Comments must be filed on or of this Commission decision is available before December 29, 1997, and reply ACTION: Proposed rule. for inspection and copying during comments on or before January 13, normal business hours in the FCC’s SUMMARY: The Commission requests 1998. Reference Center (Room 239), 1919 M comments on a petition filed by Street, NW., Washington, DC. The ADDRESSES: Federal Communications MainQuad, Inc., seeking the reallotment complete text of this decision may also Commission, Washington, DC 20554. In of Channel 297C2 from Warrenton, NC, be purchased from the Commission’s addition to filing comments with the to La Crosse, VA, as the community’s copy contractors, International FCC, interested parties should serve the first local aural service, and the Transcription Service, Inc., 1231 20th petitioner, or its counsel or consultant, modification of Station WXNC’s Street, NW., Washington, DC 20036, as follows: George G. Callicut, 505 West construction permit to specify La Crosse (202) 857–3800. End Drive, New Albany, Mississippi as its community of license. Channel Provisions of the Regulatory 38652 (Petitioner). 297C2 can be allotted to La Crosse in Flexibility Act of 1980 do not apply to FOR FURTHER INFORMATION CONTACT: Pam compliance with the Commission’s this proceeding. Blumenthal, Mass Media Bureau, (202) minimum distance separation Members of the public should note 418–2180. requirements with a site restriction of that from the time a Notice of Proposed SUPPLEMENTARY INFORMATION: This is a 15.9 kilometers (9.9 miles) east, at Rule Making is issued until the matter synopsis of the Commission’s Notice of coordinates 36–45–07 NL; 77–55–36 is no longer subject to Commission Proposed Rule Making, MM Docket No. WL, to accommodate petitioner’s consideration or court review, all ex 97–230, adopted October 29, 1997, and desired transmitter site. 61722 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

DATES: Comments must be filed on or 97–229, adopted October 29, 1997, and is no longer subject to Commission before December 29, 1997, and reply released November 7, 1997. The full text consideration or court review, all ex comments on or before January 13, of this Commission decision is available parte contacts are prohibited in 1998. for inspection and copying during Commission proceedings, such as this ADDRESSES: Federal Communications normal business hours in the FCC one, which involve channel allotments. Commission, Washington, DC 20554. In Reference Center (Room 239), 1919 M See 47 CFR 1.1204(b) for rules addition to filing comments with the Street, NW., Washington, DC. The governing permissible ex parte contacts. FCC, interested parties should serve the complete text of this decision may also For information regarding proper petitioner, or its counsel or consultant, be purchased from the Commission’s filing procedures for comments, see 47 as follows: John M. Pelkey, Haley Bader copy contractor, International CFR 1.415 and 1.420. Transcription Services, Inc., (202) 857– & Potts P.L.C., Suite 900, 4350 North List of Subjects in 47 CFR Part 73 Fairfax Drive, Arlington, VA 22203– 3800, 1231 20th Street, NW, 1633 (Counsel to petitioner). Washington, DC 20036. Radio broadcasting. FOR FURTHER INFORMATION CONTACT: Provisions of the Regulatory Federal Communications Commission. Leslie K. Shapiro, Mass Media Bureau, Flexibility Act of 1980 do not apply to John A. Karousos, (202) 418–2180. this proceeding. Chief, Allocations Branch, Policy and Rules SUPPLEMENTARY INFORMATION: This is a Members of the public should note Division, Mass Media Bureau. synopsis of the Commission’s Notice of that from the time a Notice of Proposed [FR Doc. 97–30287 Filed 11–18–97; 8:45 am] Proposed Rule Making, MM Docket No. Rule Making is issued until the matter BILLING CODE 6712±01±P 61723

Notices Federal Register Vol. 62, No. 223

Wednesday, November 19, 1997

This section of the FEDERAL REGISTER Baker, James Robert Galvin, Timothy J. contains documents other than rules or Bange, Gerald A. Gardner Jr., William Earl proposed rules that are applicable to the Barrett Jr., Fred S. Geasler, Mitchell Ray public. Notices of hearings and investigations, Bartuska, Ann M. Gelburd, Diane E. committee meetings, agency decisions and Bateman, Victoria L. Gillam, Bertha C. rulings, delegations of authority, filing of Bay, Donald M. Gippert, Michael J. petitions and applications and agency Beauchamp, Craig L. Gipson, Chester A. statements of organization and functions are Beck, Richard H. Glavin, Margaret Agnes examples of documents appearing in this Bensey Jr., Roger L. Golden, John section. Berg, Joel S. Golodner, Adam M. Betschart, Antoinette A. Graybeal, Nancy Billy, Thomas J. Greene, Frank C. DEPARTMENT OF AGRICULTURE Blackburn, Wilbert H. Greenshields, Bruce L. Bosecker, Raymond Ronald Grundeman, Arnold James Office of the Secretary Bosworth, Dale N. Gugulis, Katherine C. Bottum, John S. Guldin, Richard W. Members of Performance Review Braley, George A. Hadlock, Earl C. Boards Breeze, Roger Hagy III, William F. Bryant, Arthur Ray Hall, David C. AGENCY: Office of the Secretary, USDA. Buisch, William W. Hall, John W. Buntain, Bonnie J. Hamilton, Thomas E. ACTION: Notice. Burke, Brian E. Hardy Jr., Leonard SUMMARY: This notice announces the Burns, Denver P. Harrington Jr., Rube appointment of members of the Burse Sr., Luther Harris, Sharron L. Burt, John P. Hatamiya, Lon S. Performance Review Boards (PRBs) for Campbell, Arthur C. Hatcher, Charles F. the U.S. Department of Agriculture Carey, Ann E. Havlik, William J. (USDA). The USDA PRBs provide fair Carey, Priscilla B. Hayes, Paula F. and impartial review of Senior Carpenter, Barry L. Herbert, Thomas R. Executive Service (SES) performance Cartwright Jr., Charles W. Hefferan, Colien J. appraisals and make recommendations Chambliss, Mary T. Hellickson Key, Sandra to the Secretary of Agriculture, Cherry, John P. Henneberry, Thomas J. regarding final performance ratings, Cielo, Angel B. Harnandez, Humberto performance awards, pay adjustments, Clark, Lawrence E. Hessel, David L. Clayton, Kenneth C. Hewings, Adrianna D. recertification and Presidential Rank Cohen, Kenneth E. Hicks, Vicki J. Awards for SES members. Collins, Keith J. Hill, Ronald W. EFFECTIVE DATE: November 19, 1997. Comanor, Joan M. Hobbie, Mary Kyle FOR FURTHER INFORMATION CONTACT: Conrad, Virgil L. Hobbs, Alma C. Barbara Holland, Office of Human Conway, Roger K. Hobbs, Ira L. Resources Management, Executive Conway, Thomas V. Holbrook, David M. Resources and Services Division, U.S. Cooksie, Carolyn B. Hollingsworth, Jill M. Department of Agriculture, 1400 Cooper, George E. Holman, Pred Dwight Coulter, Kyle Jane Horn, Floyd P. Independence Avenue, SW., David, Irwin T. Horner, Withers G. Washington, DC 20250, (202) 720–6047. Dewhurts, Stephen B. House, Carol C. SUPPLEMENTARY INFORMATION: The Dittrich, Suzette M. Hudnall Jr., William J. publication of PRB membership is Dombeck, Michael P. Jackson, Ruthie F. required by Section 4314(c)(4) of Title 5, Dooms, Elnora C. Jackson, Yvette S. U.S.C. The following membership list Douglas Jr., Frederick C. Jacobs, Robert T. represents a standing register, from Drazek, Paul A. Jakub, Lawrence M. Duncan, Charles N. Janik, Philip J. which specific PRBs will be constituted. Duncan III, John P. Johnsen, Peter B. Ackerman, Kenneth D. Dunkle, Richard L. Johnson, Allan S. Acord, Bobby R. Ebbitt, James R. Johnson, Judith K. Ahl, Alwynelle S. Elder, Alfred S. Johnson, Paul Wesley Aldaya, George W. Elias, Thomas S. Johnson, Phyllis E. Allen, Richard Dean Ellis, Joanne H. Jordan, John P. Amontree, Thomas S. Estill, Elizabeth Joslin, Robert C. Anand, Rajen S. Evans, Gary R. Jung, Christine M. Anderson, Margot H. Evans, Reba P. Kaiser Jr, Harold F. Andre, Pamela Q. Fishman, Michael E. Kaplan, Dennis L. Andreuccetti, Eugene E. Fleischman, Joyce N. Keeffe, Mary Ann Army, Thomas J. Fowler, Jerry L. Keener, Mary Lou Arnold, Richard W. Franco, Robert Keeney, Robert C. Arnoldi, Joan M. Franks Jr., William Jesse Keith, Roderick Arthur, John B. Frazier, Gregory Kelly, James Michael Ashworth, Warren R. Frost, Alberta C. Kelly, Keith Atienza, Mary E. Gadt, Larry O. Kelly, Michael W. 61724 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Kennedy, Eileen T. Reynolds, James R. Whiteman, Glenn D. King, Janet C. Rhoades, James D. Whiting, Robert W. King, R. Alan Riemenschneider, Robert A. Whitmore, Charles King Jr., Edgar G. Risbrudt, Christopher D. Williams, John W. Knipling, Edward B. Robinson, Bobby H. Williams, Robert W. Koopman, Robert B. Rockey, Sarah J. Williamson, Robert L. Kronenberger Jr., Donald R. Roussopoulos, Peter J. Wilson, Edward M. Kuhn, Betsey A. Salwasser, Harold James Witt, Timonthy Blaine Laster, Danny B. Satterfield, Steven E. Wright, Lloyd E. Laverty Jr., Robert L. Scarbrough, Frank E. Wu, Jeremy S. Lavin, Mary Jo Schipper Jr., Arthur L. York, Phyllis B. Lee, Warren M. Schroeder, James W. Young Jr., Robert W. Leo, Joseph J. Schwalbe, Charles P. Zellers, Phillip Leonhardt, Barbara A. Sesco, Jerry A. Zorn, Frances E. Lewis, David N. Sexton, Thomas J. Dated: November 12, 1997. Lewis Jr., Robert Seymour, Carol M. Lilja, Janice Grassmuck Shackelford, Parks D. Richard E. Rominger Linden, Ralph A. Shadburn, Jan E. Deputy Secretary. Little, James R. Shands, Henry L. [FR Doc. 97–30318 Filed 11–18–97; 8:45 am] Long, Richard D. Sheikh, Patricia R. BILLING CODE 3410±96±M Lugo, Ariel E. Shipman, David R. Luken, Bonnie L. Simmons, Robert M. Macias, Cheryl L. Skeen, David DEPARTMENT OF AGRICULTURE Maloney, Kathryn P. Smith, Dallas R. Manning, Gloria Smith, Horace Food Safety and Inspection Service Margheim, Gary A. Smith, Katherine R. Martin, Christopher J. Smith, Peter Francis [Docket No. 97±066N] Martinez, Wilda H. Smulkstys, Inga P. Matz, Deborah Smythe, Richard V. Notice of Request for Extension and Maupin, Gary T. Sommers, William T. Revision of a Currently Approved Mazie, Sara M. Soper Jr., Richard S. Information Collection McCutcheon, John W. Spence, Joseph McDougle, Janice H. Spory, Gene P. AGENCY: Food Safety and Inspection Mckee, Richard M. Sprague, G. Lynn Service, USDA. Medley, Terry L. St. John, Judith B. ACTION: Notice and request for Mengeling, William L. Steele, W. Scott comments. Mezainis, Valdis E. Stencel III, John Miller, Charles R. Stewart, Ronald E. SUMMARY: In accordance with the Mills, Thomas J. Stockton Jr., Blaine D. Paperwork Reduction Act of 1995 and Mina, Mark T. Stolfa, Patricia F. Murrell, Kenneth D. Stommes, Eileen S. the Office of Management and Budget Nervig, Robert M. Stuber, Charles W. (OMB) regulations, this notice Newman, Richard Odell Tanner, Steven N. announces the Food Safety and Nordstrom, Gary R. Tharrington, Ronnie O. Inspection Service’s (FSIS) intention to Novak, Jon E. Thomas, Irving W. request an extension for and revision to O Brien, Patrick Michael Thompson, Clyde a currently approved information Oberlander, Herbert Thompson, Paul E. collection package regarding Offutt, Susan E. Thornton, Samuel E. exportation, transportation, and Ohler, Barry A. Torgerson, Randall E. importation of meat and poultry Olsen, Eric N. Torres, Alfonso Oneil, Barbara T. Towns, Eleanor R. products. Onstad, Charles A. Tuchmann, E. Thomas DATES: Comments on this notice must be Ortego, John R. Twining, Hollace L. received on or before January 20, 1998. Osgood, Barbara T. Vail, Kenneth H. ADDITIONAL INFORMATION OR COMMENTS: Otto, Ralph A. Valsing, D. Charles Contact Lee Puricelli, Paperwork Parry Jr., Richard M. Van Klaveren, Richard W. Specialist, (202) 720–0346. Pearson, James E. Van Schilfgaarde, Jan Peer, Wilbur T. Vasquez Jr., Victor SUPPLEMENTARY INFORMATION: Perry, James P. Verble, Sedelta D. Peters, Robert Vogel, Frederic A. Title: Exportation, Transportation, Potts, Janet S. Vogel, Richard J. and Importation of Meat and Poultry Powers, Judy M. Vonk, Jeffrey Ronald Products. Prchal, Robert J. Wachs, Lawrence OMB Number: 0583–0094. Prucha, John C. Wachsmuth, Ina K. Expiration Date of Approval: Purcell, Robert L. Wagner, Lynnett M. December 31, 1997. Pytel, Christine Walker, Larry A. Type of Request: Extension and Radloff, David L. Walsh, Thomas M. revision of a currently approved Rains, Michael T. Walton, Thomas E. information collection. Rawls, Charles R. Watkins, Dayton J. Abstract: FSIS has been delegated the Read, Hershel R. Weber, Barbara C. authority to exercise the functions of the Reed, Anne F T. Weber, Bruce R. Reed, Craig A. Weber, Thomas A. Secretary as provided in the Federal Reed, Pearlie S. West, William L. Meat Inspection Act (FMIA) (21 U.S.C. Reginato, Robert J. Whillock, Carl S. 601 et seq.) and the Poultry Products Reilly, Susan B. White, Barbara A. Inspection Act (PPIA) (21 U.S.C. 451 et Rexroad Jr., Caird E. White Jr., T. Kelley seq.). These statutes mandate that FSIS Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61725 protect the public by ensuring that meat stamp such product with the inspection (OMB) regulations, this notice and poultry products are safe, legend prior to FSIS inspection, if they announces the Food Safety and wholesome, unadulterated, and receive FSIS prior approval. Inspection Service’s (FSIS) intention to properly labeled and packaged. Estimate of Burden: The public request an extension for and revision to FSIS is requesting an extension and reporting burden for this collection of a currently approved information revision to the information collection information is estimated to average collection package regarding official package addressing meat and poultry .0773501 hours per response. marking devices, labeling, and paperwork and recordkeeping Respondents: Meat and poultry packaging material. requirements regarding exportation, establishments. DATES: Comments on this notice must be transportation, and importation of meat Estimated Number of Respondents: received on or before January 20, 1998. and poultry products. FSIS requires that 7,374. ADDITIONAL INFORMATION OR COMMENTS: meat and poultry establishments Estimated Number of Responses per Contact Lee Puricelli, Paperwork exporting product to foreign countries Respondent: 295.88866. Specialist, (202) 720–0346. complete an export certificate. Estimated Total Annual Burden on Establishments must supply the type, Respondents: 168,769 hours. SUPPLEMENTARY INFORMATION: amount, and destination of product Copies of this information collection Title: Official Marking Devices, being exported. The information assessment and comments can be Labeling, and Packaging Material. required by on this form does not obtained from Lee Puricelli, Paperwork OMB Number: 0583–0092. duplicate any information required by Specialist, Food Safety and Inspection Expiration Date of Approval: other Federal agencies. The form is Service, USDA, 300 12th Street SW, December 31, 1997. necessary to certify to the importing Room 109, Washington, DC 20250– Type of Request: Extension and countries that FSIS inspectors have 3700, (202) 720–0346. revision of a currently approved inspected the product and have found it Comments are invited on: (a) whether information collection. sound and wholesome. Additionally, the proposed collection of information Abstract: FSIS has been delegated the FSIS uses the information from the form is necessary for the proper performance authority to exercise the functions of the in its annual Report to Congress as of FSIS’s functions, including whether Secretary as provided in the Federal required by sections 301(c)(4) and 20(e) the information will have practical Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.) and the Poultry Products of the FMIA and sections 27 and 5(c)(4) utility; (b) the accuracy of FSIS’ estimate Inspection Act (PPIA) (21 U.S.C. 451 et of the PPIA. of the burden of the proposed collection seq.). These statutes mandate that FSIS Meat and poultry products not of information, including the validity of protect the public by ensuring that meat marked with the mark of inspection and the methodology and assumptions used; and poultry products are safe, shipped from one official establishment (c) ways to enhance the quality, utility, to another for further processing must wholesome, unadulterated, and and clarity of the information to be be transported under FSIS seal to properly labeled and packaged. collected; and (d) ways to minimize the prevent such unmarked product from FSIS is requesting an extension and burden of the collection of information entering into commerce. To track revision to the information collection on those who are to respond, including product shipped under seal, FSIS package addressing meat and poultry through use of appropriate automated, requires shipping establishments to paperwork and recordkeeping electronic, mechanical, or other complete a form that identifies the type, requirements regarding official marking technological collection techniques, or amount, and weight of the product. devices, labeling, and packaging A foreign country exporting meat or other forms of information technology. material. To control the manufacture of poultry products to the U.S. must All responses to this notice will be marking devices bearing official marks, establish eligibility for importation of summarized and included in the request FSIS requires that official meat and product into the U.S. and annually for OMB approval. All comments will poultry establishments and certify that its inspection systems are also become a matter of public record. manufacturers of such marking devices ‘‘at least equal to’’ the U.S. inspection Dated: November 10, 1997. complete a form. The establishment system. To maintain eligibility, a Thomas J. Billy, completes the first part of the form written report must be prepared Administrator. requesting that certain brands or other monthly by a representative of the [FR Doc. 97–30319 Filed 11–18–97; 8:45 am] devices be manufactured. The manufacturer of the brands then foreign inspection system for each BILLING CODE 3410±DM±P establishment listed in the certification. provides its business name and address, Additionally, meat and poultry products and serial numbers of brands or devices. intended for import into the U.S. must DEPARTMENT OF AGRICULTURE Such certification is necessary to help be accompanied by a health certificate, prevent the manufacture and use of signed by an official of the foreign Food Safety and Inspection Service counterfeit marks of inspection. To government, stating that the products ensure that meat and poultry products have been produced by certified foreign [Docket No. 97±065N] are accurately labeled, FSIS approves establishments. Establishments or Notice of Request for Extension and meat and poultry product labelings. To brokers wishing to import product into Revision of a Currently Approved ensure that packaging material does not the United States must complete a form Information Collection render meat and poultry products that specifies the type, amount, adulterated, FSIS requires a statement of originating country and destination of AGENCY: Food Safety and Inspection assurance from packaging the meat and poultry product. The Service, USDA. manufacturers when such packaging is amount of meat and poultry product ACTION: Notice and request for intended for use in meat and poultry imported into the United States is comments. establishments. The statement is a included in FSIS’s annual Report to guaranty that the packaging material Congress. Additionally, FSIS has SUMMARY: In accordance with the conforms with Federal Food, Drug and established procedures allowing Paperwork Reduction Act of 1995 and Cosmetic Act (FFDCA) regulations for establishments importing product to the Office of Management and Budget food contact materials. 61726 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Estimate of Burden: The public pursuant to Sec. 102(2)(c) of the use through enhanced snow cover on reporting burden for this collection of National Environmental Quality runs. information is estimated to average requestions for implementing NEPA. The proposed expansion of the Bill .2596531 hours per response. This Environmental Impact Statement Williams Ski Area will satisfy the Respondents: Meat and poultry will evaluate potential impacts from following needs: establishments. expanding the Bill Williams Mountain —improve the quality of recreation Estimated Number of Respondents: Ski area, Coconino County, Arizona. experience in the Williams area, 7,374. The USDA, FS invites the general —diversify the local economic base for Estimated Number of Responses per public, local governments, Indian tribes, the City of Williams Respondent: 62.153919. other Federal agencies, and states to —increase skier capacity to Estimated Total Annual Burden on submit written comments or suggestions accommodate unmet skier demand in Respondents: 119,005 hours. concerning the scope of the issues to be the region, Copies of this information collection addressed, alternatives to be analyzed, —provide better and more consistent assessment and comments can be and the environmental impacts and skiing conditions by increasing obtained from Lee Puricelli, Paperwork cultural impacts to be addressed in the reliability of skiable snow cover, Specialist, Food Safety and Inspection Draft Environmental Impact Statement particularly at the beginning of the Service, USDA, 300 12th Street SW, (DEIS). The public is invited to season when skiing is frequently Room 109, Washington, DC 20250– participate in scoping activities delayed, 3700, (202) 720–0346. including an open house in which —encourage efficient use of facilities by Comments are invited on: (a) whether comments and suggestions will be expanding use into the summer the proposed collection of information received. Oral and written comments months, is necessary for the proper performance will be considered equally in —satisfy Forest Service management of FSIS’s functions, including whether preparation of the DEIS. objective (see below). the information will have practical The expansion of the Bill Williams utility; (b) the accuracy of FSIS’ estimate DATES: All comments must be received or postmarked by December 22, 1997, to Ski Area will meet the following Forest of the burden of the proposed collection Service management objectives: of information, including the validity of be considered in the preparation of the —It is Forest Service policy to provide, the methodology and assumptions used; DEIS. To the extent practicable, the under special-use authorization, (c) ways to enhance the quality, utility, USDA, FS will consider comments suitable facilities and services that and clarity of the information to be received or postmarked after the supplement or complement those collected; and (d) ways to minimize the deadline. An open house will be provided by the private sector on burden of the collection of information conducted at the Williams Holiday Inn private lands on National Forest on those who are to respond, including (950 N. Grand Canyon Blvd., Williams, System land to meet public needs. In through use of appropriate automated, AZ) on December 4, 1997, between 4:30 addition, it is Forest Service policy to electronic, mechanical, or other and 8:00 P.M. The date, time, and facilitate the use, enjoyment, and technological collection techniques, or specific location of the scoping meeting appreciation of the National Forests in other forms of information technology. will be announced at least 15 days a natural resource setting (FSM All responses to this notice will be before the meeting in the local media. 2340.2). summarized and included in the request FOR FURTHER INFORMATION CONTACT: —Update and modify the previous for OMB approval. All comments will Please direct written comments/ approved Environmental Impact also become a matter of public record. suggestions on the scope of the DEIS or Statement which authorized a new ski Dated: November 10, 1997. questions concerning the project to: Teri area on the north slopes of Bill Thomas J. Billy, Cleeland at USDA, FS Williams/ Williams Mountain (USDA-Kaibab Administrator. Chalendar Ranger District, 501 W. Route National Forest 1986). 66, Williams, AZ 86046, 520/635–2676 [FR Doc. 97–30320 Filed 11–18–97; 8:45 am] —To provide a diversity of recreation or Dave Brewer at Kaibab National BILLING CODE 3410±DM±P activities that emphasize the forest Forest, 800 S. 6th St., Williams, AZ setting and rustic, natural resource 86046, 520/635–8331. based recreation opportunities (FSM DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: 2343.02). Purpose and Need: The proposed ski Decision to be Made: Based on public Forest Service expansion area is located in the Kaibab response to the DEIS, a decision will be National Forest approximately four made regarding expansion of the Bill Notice of Intent To Prepare an miles south of Williams, Arizona on Bill Williams Ski Area. Possible decisions Environmental Impact Statement for Williams Mountain. A comparison of include the following: 1.) implement the the Expansion of the Bill Williams Ski the existing and desired conditions for proposed action as defined; 2.) take no Area this management area outlined in the action at all; or 3.) take action to some AGENCY: Forest Service, United States Kaibab National Forest Land and other degree, based on issues generated Department of Agriculture. Resource Management Plan indicates a through public scoping. ACTION: Notice of intent to prepare an need to improve not only the existing Proposed Action: The USDA—Kaibab Environmental Impact Statement for the ski facilities but also expand on the 16 National Forest, proposes to authorize Expansion of the Bill Williams acres of the skiable terrain to promote a Alpine Recreation Company LLC., to Mountain Ski Area. quality alpine skiing experience. The incorporate the existing Bill Williams current vertical drop, ski run length, ski area and construct, operate, and SUMMARY: The United States Department and ski run configuration do not maintain an expansion of current of Agriculture Forest Service (USDA, provide for a good cross-section for the facilities. Under the proposed action, FS), Region 3, Kaibab National Forest, various experience levels of skiers. the skiable terrain would increase from announces its intent to prepare an Provision of higher elevation runs and 16.4 acres to 62.6 acres. The total Environmental Impact Statement (EIS) snowmaking will increase the season of number of skiers that could be Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61727 accommodated at one time would DEPARTMENT OF AGRICULTURE development of rural areas leading to increase from 250 to 1,130. economically stable communities that Specific expansions proposed by Rural Housing Service consider the impact of the environment Alpine Recreation include the and protection of the borrower and following: additional ski runs (43 acres); Notice of Request for Extension of a Government security interests. a triple chair lift (approximately 5,600 Currently Approved Information Other information collection is feet in length); three new handle tows Collection required to conform to numerous Public (ranging from 400 to 600 feet in length); AGENCIES: Rural Housing Service, Laws applying to all federal agencies, a maintenance building (2,400 square USDA. such as: Civil Rights Acts of 1964 and 1968, Historic Preservation Act, feet); construction of a new Top Vista ACTION: Proposed collection: comments Environmental Policy Act; and to Lodge with composting restrooms (800 request. square feet); new parking facilities conform to Executive Orders governing (75,000 square feet); construction of a SUMMARY: In accordance with the use of federal funds. This information is new bases lodge (4,600 square feet) with Paperwork Reduction Act of 1995, this cleared through the appropriate additional outside deck seating (2,500 notice announces the Rural Housing enforcing Agency or other executive square feet); three new water Service (RHS) intention to request an Department. impoundments (capacity of 24 acre- extension for a currently approved The Agency provides forms and/or feet); infrastructure for snowmaking information collection in support of guidelines to assist in the collection and (2,000 subsurface distribution system compliance with applicable acts for submission of information. The for snowmaking on 7 acres); a new planning and performing site and other information is usually submitted via septic system; a summer trail which development work. hand delivery or U.S. Postal Service to the appropriate Agency office. would generally follow runs 18, 18A, 12 DATES: Comments on this notice must be The information is used by the and 7; a picnic area along the edge of received by January 20, 1998 to be Agency to determine whether a loan can run 12; implementation of a sky ride assured consideration. be approved, to ensure that the Agency program during the summer recreation FOR FURTHER INFORMATION CONTACT: period; and expansion of the permit area has adequate security for the loans Samuel J. Hodges III, Architect, Program financed, to provide for sound from the current 37 acres to Support Staff, RHS, U.S. Department of approximately 200 acres. construction and site development work Agriculture, Stop 0761, 1400 and to determine that the requirements Preliminary Identification of Independence Ave., S.W., Washington, Environmental and Cultural Issues: The of the applicable Acts have been met. DC 20250–0761, Telephone (202) 720- The information is also used to monitor USDA, FS has identified the following 9653. preliminary issues for analysis for compliance with the terms and alternative actions in the DEIS. SUPPLEMENTARY INFORMATION: conditions of the Agency loans and to monitor the prudent use of federal Additional issues may be identified as Title: 7 CFR 1924 Subpart C, a result of the scoping process. Issues funds. ‘‘Planning and Performing Site If the information were not collected include impacts of the action Development Work.’’ alternatives on: and submitted, the Agency would not OMB Number: 0575–0164. have control over the type and quality —Water quality and quantity, Expiration Date of Approval: January of construction and site development —Water rights, 31, 1998. work planned and performed with Type of Request: Extension of a —Soil erosion and disturbance, federal funds. The Agency would not be currently approved information —Threatened, endangered, and assured that the security provided for collection. sensitive species and their habitat, loans is adequate, nor would the Agency Abstract: The information collection —Visual quality, be certain that decent, safe and sanitary under OMB Number 0575–0042 enables dwelling or other adequate structures —Fire occurrence, RHS to effectively administer the were being provided to rural residents —Cultural resources, policies, methods and responsibilities in —Traditional uses of the area by as required by the different Acts. planning and performing site Estimate of Burden: Public reporting American Indians, development work for the related —Rights of American Indians for which burden for this collection of information construction programs. is estimated to average 0.138 hours per the area has religious and cultural Section 501 of Title V of the Housing significance, response. Act of 1949, as amended, authorizes the Respondents: Individuals or —Socioeconomic resources of local Secretary of Agriculture to extend households, business or other for-profit, communities, financial assistance to construct, non-profit institutions, and small —Demand for additional skiing facilities improve, repair, replace or rehabilitate businesses or organizations. in Northern Arizona. dwellings, farm buildings and/or related Estimated Number of Respondents: Cooperating Agencies and Groups facilities to provide decent, safe and 30,000. Involved in the Preparation of the DEIS: sanitary living conditions and adequate Estimated Number of Responses per United States Department of Agriculture farm buildings and other structures in Respondent: 1.5. Forest Service, Region 3, Kaibab rural areas. Estimated Total Annual Burden on National Forest; Alpine Research The Agency makes direct and Respondents: 6210 hours. Company, LLC., and SWCA, Inc., guaranteed loans to applicants of up to Copies of this information collection Environmental Consultants. 100 percent of the appraised value of can be obtained from Renita Bolden, the property, therefore, the site and its Regulations and Paperwork Dated: November 12, 1997. development are an integral part of the Management Branch, at (202) 690–1766. Bruce J. Higgins, building construction and related Acting Forest Supervisor. facilities being financed. The Comments [FR Doc. 97–30326 Filed 11–18–97; 8:45 am] information collection required by this Comments are invited on: (a) Whether BILLING CODE 3410±11±M regulation is necessary to assure orderly the proposed collection of information 61728 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices is necessary for the proper performance site review, is used to evaluate the balance of payments accounts. The of the function of RHS, including competency of the laboratory. If the balance of payments accounts, which whether the information will have criteria are met, then NVLAP are published quarterly in the Bureau’s practical utility; (b) the accuracy of accreditation is granted. monthly publication, the Survey of RHS’s estimate of the burden of the Affected Public: Businesses or other Current Business, are one of the major proposed collection of information, for-profit organizations, not-for profit statistical products of BEA. The including the validity of methodology institutions, federal government, state, accounts provide a statistical summary and assumptions used; (c) ways to tribal, local governments. of U.S. international transactions. They enhance the quality, utility, and clarity Frequency: Annually, on occasion, are used by government and private of the information to be collected; and recordkeeping. organizations for national and (d) ways to minimize the burden of the Respondent’s Obligation: Required to international policy formulation, and collection of information on those who obtain or retain benefits analytical studies. Without the are to respond, including through the OMB Desk Officer: Virginia Huth, information collected in these surveys, use of appropriate automated, (202) 395–6929. an integral component of the electronic, mechanical, or other Copies of the above information transportation account would be technological collection techniques or collection proposal can be obtained by omitted. No other Government agency other forms of information technology. calling or writing Linda Engelmeier, collects comprehensive quarterly data Comments may be sent to Renita Departmental Clearance Officer, (202) on U.S. ocean carriers’ freight revenues Bolden, Regulations and Paperwork 482–3272, Department of Commerce, and expenses or U.S. airline operators’ Management Branch, U.S. Department Room 5327, 14th and Constitution foreign revenues and expenses. of Agriculture, Rural Development, Stop Avenue, N.W., Washington, D.C. 20230. Affected Public: U.S. ocean and air 0743, 1400 Independence Ave., S.W., Written comments and carriers. Washington, DC 20250–0753. All recommendations for the proposed Frequency: One-time. responses to this notice will be information collection should be sent to Respondent’s Obligation: Mandatory. summarized and included in the request Virginia Huth, OMB Desk Officer, Room Legal Authority: Title 13 U.S.C., for OMB approval. All comments will 10236, New Executive Office Building, Section 182. become a matter of public record. 725 17th Street, N.W., Washington, D.C. OMB Desk Officer: Paul Bugg, (202) 20503. 395–3093. Dated: November 6, 1997. Dated: November 12, 1997. Copies of the above information Jan E. Shadburn, collection proposal can be obtained by Linda Engelmeier, Administrator, Rural Housing Service. calling or writing Linda Engelmeier, [FR Doc. 97–30372 Filed 11–18–97; 8:45 am] Departmental Forms Clearance Officer, Office DOC Forms Clearance Officer, (202) of Management and Organization. BILLING CODE 3410±07±U 482–3272, Department of Commerce, [FR Doc. 97–30342 Filed 11–18–97; 8:45 am] room 5327, 14th and Constitution BILLING CODE 3510±13±P Avenue, NW., Washington, DC 20230. DEPARTMENT OF COMMERCE Written comments and recommendations for the proposed DEPARTMENT OF COMMERCE Submission for OMB Review; information collection should be sent Comment Request Submission for OMB Review; within 30 days of publication of this Comment Request notice to Paul Bugg, OMB Desk Officer, The Department of Commerce (DOC) Room 10201, New Executive Office has submitted to the Office of DOC has submitted to the Office of Building, Washington, DC 20503. Management and Budget (OMB) for Management and Budget (OMB) for Dated: November 13, 1997. clearance the following proposal for clearance the following proposal for Linda Engelmeier, collection of information under collection of information under the provisions of the Paperwork Reduction provisions of the Paperwork Reduction Departmental Forms Clearance Officer, Office of Management and Organization. Act (44 U.S.C. Chapter 35). Act (44 U.S.C. chapter 35). Agency: National Institute of Agency: Bureau of Economic [FR Doc. 97–30343 Filed 11–18–97; 8:45 am] Standards and Technology. Analysis. BILLING CODE 3510±EA±P Title: National Voluntary Laboratory Title: Survey of Ocean Freight Accreditation Program (NVLAP), Revenues and Expenses of United DEPARTMENT OF COMMERCE NVLAP Information Collection System. States, Carriers—BE–30, Survey of U.S. Agency Form Number: None. Airline Operators’ Foreign Revenues OMB Approval Number: 0693–0003. Submission for OMB Review; and Expenses—BE–37. Comment Request Type of Request: Extension of a Form Number(s): BE–30/BE–37. currently approved collection. OMB Approval Number: 0608–0011 DOC has submitted to the Office of Burden: 2,750 hours. Type of Request: Extension—regular Management and Budget (OMB) for Number of Respondents: 1,000. submission. clearance the following proposal for Avg. Hours Per Response: 3 hours Burden: 800/320. collection of information under the annually (reporting and recordkeeping). Number of Respondents: 40/20. provisions of the Paperwork Reduction Needs and Uses: NVLAP provides Avg Hours Per Response: 5 hours/4 Act (44 U.S.C. chapter 35). accreditation to testing and calibration hours. Agency: Bureau of the Census. laboratories world wide. Accreditation Needs and Uses: The Bureau of Title: Survey of Income and Program means that a laboratory has been judged Economic Analysis is responsible for Participation 1996 Panel Wave 7. to be technically competent to perform the computation and publication of the Form Number(s): SIPP/CAPI calibration and other testing services. To U.S. balance of payments accounts. The Automated Instrument; SIPP 16705(L) be considered for NVLAP accreditation, information collected in these surveys Director’s Letter. a laboratory must make application. The are an integral part of the Agency Approval Number: 0607– information provided, as well as the on ‘‘transportation’’ portion of the U.S. 0813. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61729

Type of Request: Revision of a information collection should be sent Antidumping Duty Order currently approved collection. within 30 days of publication of this In accordance with section 735(a) of Burden: 117,800 hours. notice to Jerry Coffey, OMB Desk the Tariff Act of 1930, on September 24, Number of Respondents: 77,700. Officer, room 10201, New Executive 1997, the Department made its final Avg Hours Per Response: 30 minutes. Office Building, Washington, DC 20503. Needs and Uses: The Bureau of the determination that CRN from the PRC Dated: November 14, 1997. Census conducts the Survey of Income are being sold at less than fair value (62 and Program Participation (SIPP) to Linda Engelmeier, FR 51410–419, October 1, 1997). On collect information from a sample of Departmental Forms Clearance Officer, Office November 12, 1997, the International households concerning the distribution of Management and Organization. Trade Commission (‘‘ITC’’) notified the of income received directly as money or [FR Doc. 97–30344 Filed 11–18–97; 8:45 am] Department of its final determination, indirectly as in-kind benefits. SIPP data BILLING CODE 3510±07±P pursuant to section 735(b)(1)(A)(ii) of are used by economic policymakers, the the Act, that an industry in the United Congress, state and local governments, States is threatened with material injury DEPARTMENT OF COMMERCE and Federal agencies that administer by reason of imports of the subject merchandise from the PRC and Taiwan. social welfare and transfer payment International Trade Administration programs such as the Department of The ITC did not determine, pursuant to Health and Human Services, the [A±570±850] section 735(b)(4)(B) of the Act, that, but Department of Housing and Urban for the suspension of liquidation of Notice of Antidumping Duty Order: Development, and the Department of entries of the subject merchandise, the Collated Roofing Nails From the Agriculture. domestic industry would have been People's Republic of China The SIPP is a longitudinal survey, in materially injured. When the ITC finds threat of material that households in the panel are AGENCY: Import Administration, injury, and makes a negative ‘‘but for’’ interviewed 12 times at 4 month International Trade Administration, finding under section 735 (b)(4)(B) of intervals or waves over the life of the Department of Commerce. the Act, the ‘‘Special Rule’’ provision of panel, making the duration of the panel EFFECTIVE DATE: November 19, 1997. about 4 years. The next panel of section 736(b)(2) applies. Therefore, FOR FURTHER INFORMATION CONTACT: only unliquidated entries of CRN from households will be introduced in the Everett D. Kelly or Brian Smith, Import year 2000. the PRC, entered or withdrawn from Administration, International Trade warehouse, for consumption on or after The survey is molded around a Administration, U.S. Department of central core of labor force and income the date on which the ITC published its Commerce, 14th Street and Constitution notice of final determination of threat of questions, health insurance questions, Avenue, N.W., Washington, D.C. 20230; and questions concerning government material injury in the Federal Register telephone: (202) 482–4194 or (202) 482– are liable for the assessment of program participation that remain fixed 1766, respectively. throughout the life of a panel. The core antidumping duties. Accordingly, the questions are asked at Wave 1 and are Applicable Statute and Regulations Department will direct the Customs Service to terminate the suspension of updated during subsequent interviews. Unless otherwise indicated, all liquidation for entries of CRN from the The core is supplemented with citations to the statute are references to PRC entered, or withdrawn from additional questions or topical modules the provisions effective January 1, 1995, designed to answer specific needs. the effective date of the amendments warehouse, for consumption before the This request is for clearance of the made to the Tariff Act of 1930 (‘‘the date on which the ITC published its topical modules to be asked during Act’’) by the Uruguay Round notice of final determination of threat of Wave 7 of the 1996 Panel. The core Agreements Act (‘‘URAA’’). In addition, material injury in the Federal Register, questions have already been cleared. unless otherwise indicated, all citations and to release any bond or other Topical modules for waves 8 through 12 to the Department of Commerce’s (‘‘the security, and refund any cash deposit, will be cleared later. The topical Department’’) regulations are to 19 CFR posted to secure the payment of modules for Wave 7 are: (1) Annual 353, as codified on April 1, 1997. estimated antidumping duties with Income & Retirement Accounts, (2) respect to these entries. Scope of Order Taxes, (3) Retirement and Pension Plan In accordance with section 736 of the Coverage; and (4) Home Health Care. The product covered by this Act, the Department will direct United Wave 7 interviews will be conducted investigation is collated roofing nails States Customs officers to assess, upon from April through July 1998. (‘‘CRN’’) made of steel, having a length further advice by the administering Affected Public: Individuals or of 13⁄16 inch to 113⁄16 inches (or 20.64 to authority pursuant to section 736(a)(1) households. 46.04 millimeters), a head diameter of of the Act, antidumping duties equal to Frequency: Every 4 months. 0.330 inch to 0.415 inch (or 8.38 to the amount by which the normal value Respondent’s Obligation: Voluntary. 10.54 millimeters), and a shank of the merchandise exceeds the export Legal Authority: Title 13 U.S.C., diameter of 0.100 inch to 0.125 inch (or price or constructed export price of Section 182. 2.54 to 3.18 millimeters), whether or not merchandise for all relevant entries of OMB Desk Officer: Jerry Coffey, (202) galvanized, that are collated with two CRN from the PRC except for imports 395–7314. wires. manufactured and exported by Copies of the above information CRN within the scope of this Shenzhen Top United Steel Co., Ltd. collection proposal can be obtained by investigation are classifiable under the (‘‘Top United’’) or Qingdao Zongxun calling or writing Linda Engelmeier, Harmonized Tariff Schedule of the Nail Products Co., Ltd. (‘‘Zongxun’’). All DOC Forms Clearance Officer, (202) United States (‘‘HTSUS’’) subheadings bonds may be released and entries of 482–3272, Department of Commerce, 7317.00.55.06. Although the HTSUS Top United and Zongxun may be room 5327, 14th and Constitution subheadings are provided for liquidated without regard to Avenue, NW., Washington, DC 20230. convenience and customs purposes, our antidumping duties. For all other Written comments and written description of the scope of this manufacturers/exporters, antidumping recommendations for the proposed investigation is dispositive. duties will be assessed on all 61730 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices unliquidated entries of CRN from the Administration, U.S. Department of Manufac- Revised PRC entered, or withdrawn from Commerce, 14th Street and Constitution turer/pro- Original margin per- margin warehouse, for consumption on or after Avenue, N.W., Washington, D.C. 20230; ducer/ex- centage percent- porter age the date on which the ITC published its telephone: (202) 482–4194 or (202) 482– final affirmative determination notice in 1766, respectively. Unicatch In- 0.00 ...... 0.00 the Federal Register. On or after the dustrial date of publication of this notice in the Applicable Statute and Regulations Co. Ltd.. Federal Register, U.S. Customs officers Lei Chu En- 0.07 (De Minimis) ... 0.00 Unless otherwise indicated, all must require, at the same time as terprises citations to the statute are references to importers would normally deposit Co., Ltd, the provisions effective January 1, 1995, estimated duties, the following cash S&J Wire deposits for the subject merchandise: the effective date of the amendments Products made to the Tariff Act of 1930 (‘‘the Company, The ad valorem weighted-average Ltd./. dumping margin is as follows: Act’’) by the Uruguay Round Agreements Act (‘‘URAA’’). In addition, New Lan 5.36 ...... 2.98 Lung. Weighted- unless otherwise indicated, all citations Romp Coil 40.28 ...... 40.28 average to the Department regulations are to 19 Nail In- Manufacturer/producer/exporter margin per- centage CFR part 353, as codified on April 1, dustries. 1997. K. Ticho ..... 40.28 ...... 40.28 PRC-wide Rate ...... 118.41 All Others .. 5.36 ...... 2.98 Amended Final Determination Allegations of ministerial errors were In accordance with section 735(a) of Scope of Order made with respect to the Department’s the Tariff Act of 1930, on September 24, The product covered by this final determination for CRN from the 1997, the Department made its final investigation is CRN made of steel, PRC. Upon review, the Department determination that collated roofing nails having a length of 13/16 inch to 1–13/ determined that these allegations were (‘‘CRN’’) from Taiwan are being, or are 16 inches (or 20.64 to 46.04 without merit. Therefore, no likely to be, sold in the United States at millimeters), a head diameter of 0.330 amendments to the final determination less than fair value (62 FR 51427–51437 inch to 0.415 inch (or 8.38 to 10.54 were necessary. millimeters), and a shank diameter of This notice constitutes the (October 1, 1997)). Subsequent to the final determination, on October 10 and 0.100 inch to 0.125 inch (or 2.54 to 3.18 antidumping duty order with respect to millimeters), whether or not galvanized, CRN from the PRC. The Department is 14, 1997, we received submissions, timely filed pursuant to 19 CFR that are collated with two wires. excluding from the application of the CRN within the scope of this order products from the PRC that are 353.28(b), from Unicatch Industrial Co. Ltd. (‘‘Unicatch’’), Lei Chu Enterprises investigation are classifiable under the manufactured and sold to the United Harmonized Tariff Schedule of the Co., Ltd (‘‘Lei Chu’’), and S&J Wire States by Top United or Zongxun. United States (‘‘HTSUS’’) subheadings Products Company, Ltd. (‘‘S&J’’), Interested parties may contact the 7317.00.55.06. Although the HTSUS alleging ministerial errors in the Central Records Unit, Room B–099 of subheadings are provided for the Main Commerce Building, for copies Department’s final determination for convenience and customs purposes, our of an updated list of antidumping duty these respondents. We also received written description of the scope of this orders currently in effect. submissions from Paslode Division Of investigation is dispositive. This order is published in accordance Illinois Tool Works Inc. (‘‘the with section 736(a) of the Act. petitioner’’) alleging ministerial errors Antidumping Duty Order Dated: November 14, 1997. in the Department’s final determination In accordance with section 735(a) of Richard W. Moreland, for S&J and Lei Chu. the Act, the Department made its final Acting Assistant Secretary for Import We determine that ministerial errors determination that CRN from Taiwan Administration. were made in our final margin are being sold at less than fair value. On [FR Doc. 97–30399 Filed 11–18–97; 8:45 am] calculations for Lei Chu with respect to November 12, 1997, the International BILLING CODE 3510±DS±P calculation of SG&A and profit, for Trade Commission (‘‘ITC’’) notified the Unicatch with respect to calculation of Department of its final determination, constructed export price, and for S&J pursuant to section 735(b)(1)(A)(ii) of the Act, that an industry in the United DEPARTMENT OF COMMERCE with respect to exclusion of certain States is threatened with material injury sales, calculation of normal value and International Trade Administration by reason of imports of the subject exclusion of non-subject merchandise. [A±583±826] merchandise from Taiwan. The ITC did For a detailed discussion of the above- not determine, pursuant to section Notice of Antidumping Duty Order and cited ministerial errors and the 735(b)(4)(B) of the Act, that, but for the Amended Final Determination of Sales Department’s analysis, see suspension of liquidation of entries of at Less Than Fair Value: Collated Memorandum from Case Analysts to the subject merchandise, the domestic Roofing Nails From Taiwan Louis Apple, dated October 22, 1997. In industry would have been materially accordance with 19 CFR 353.28(c), we injured. AGENCY: Import Administration, are amending the final determination of When the ITC finds threat of material International Trade Administration, the antidumping duty investigation of injury, and makes a negative ‘‘but for’’ Department of Commerce. CRN from Taiwan to correct these finding under section 735 (b)(4)(B) of EFFECTIVE DATE: November 19, 1997. ministerial errors. The revised final the Act, the ‘‘Special Rule’’ provision of FOR FURTHER INFORMATION CONTACT: weighted-average dumping margins are section 736(b)(2) applies. Therefore, Everett D. Kelly or Brian Smith, Import as follows: only unliquidated entries of collated Administration, International Trade roofing nails from Taiwan entered, or Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61731 withdrawn from warehouse, for 736 (a) of the Act. Interested parties may Determination of Sales at Less Than Fair consumption on or after the date on contact the Central Records Unit, Room Value and Postponement of Final which the ITC published its notice of B–099 of the Main Commerce Building, Determination: Certain Cut-to-Length final determination of threat of material for copies of an updated list of Carbon Steel Plate From South Africa, injury in the Federal Register are liable antidumping duty orders currently in 62 FR 31963 (June 11, 1997)), the for the assessment of antidumping effect. following events have occurred: duties. Accordingly, the Department This order is published pursuant to In July and August 1997, we verified will direct the Customs Service to section 736 (a) of the Act (19 USC 1673e the respondents’ questionnaire terminate the suspension of liquidation (a)) and 19 CFR 353.21. responses. On August 22, 1997 and for entries of collated roofing nails Dated: November 17, 1997. September 3, 1997, the Department imported from Taiwan entered, or issued its reports on verification Richard W. Moreland, withdrawn from warehouse, for findings for Iscor Ltd. (Iscor). On August consumption before the date on which Acting Assistant Secretary for Import 25, 1997 and September 15, 1997, the Administration. the ITC published its notice of final Department issued its reports on determination of threat of material [FR Doc. 97–30400 Filed 11–18–97; 8:45 am] verification findings for Highveld Steel injury in the Federal Register, and to BILLING CODE 3510±DS±P and Vanadium Corporation Ltd. release any bond or other security, and (Highveld). On September 22, 1997, refund any cash deposit, posted to respondents submitted new computer DEPARTMENT OF COMMERCE secure the payment of estimated sales listings which included data antidumping duties with respect to International Trade Administration A± corrections identified through these entries. 791±804 verification. Petitioners and respondents In accordance with section 736 of the submitted case briefs on September 15, Act, the Department will direct United Notice of Final Determination of Sales 1997, and rebuttal briefs on September States Customs officers to assess, upon at Less Than Fair Value: Certain Cut- 22, 1997. A public hearing was not held. further advice by the administering to-Length Carbon Steel Plate From Scope of Investigation authority pursuant to section 736(a)(1) South Africa of the Act, antidumping duties equal to The products covered by this the amount by which the normal value AGENCY: Import Administration, investigation are hot-rolled iron and of the merchandise exceeds the export International Trade Administration, non-alloy steel universal mill plates price or constructed export price of Department of Commerce. (i.e., flat-rolled products rolled on four merchandise for all relevant entries of ACTION: Notice of Final Determination of faces or in a closed box pass, of a width CRN from Taiwan except for imports Sales at Less Than Fair Value. exceeding 150 mm but not exceeding manufactured and exported by Unicatch 1250 mm and of a thickness of not less or Lei Chu. All bonds may be released EFFECTIVE DATE: November 19, 1997. than 4 mm, not in coils and without and entries of Unicatch and Lei Chu FOR FURTHER INFORMATION CONTACT: patterns in relief), of rectangular shape, may be liquidated without regard to Charles Rast, Nancy Decker, or Linda neither clad, plated nor coated with antidumping duties. For all other Ludwig, Import Administration, metal, whether or not painted, manufacturers/exporters antidumping International Trade Administration, varnished, or coated with plastics or duties will be assessed on all U.S. Department of Commerce, 14th other nonmetallic substances; and unliquidated entries of CRN from Street and Constitution Avenue, N.W., certain iron and non-alloy steel flat- Taiwan entered, or withdrawn from Washington, D.C. 20230; telephone: rolled products not in coils, of warehouse, for consumption on or after (202) 482–5811, (202) 482–0196, and rectangular shape, hot-rolled, neither the date on which the ITC published its (202) 482–3833, respectively. clad, plated, nor coated with metal, final affirmative determination notice in whether or not painted, varnished, or the Federal Register. On or after the The Applicable Statute and Regulations coated with plastics or other date of publication of this notice in the Unless otherwise indicated, all nonmetallic substances, 4.75 mm or Federal Register, U.S. Customs officers citations to the statute are references to more in thickness and of a width which must require, at the same time as the provisions effective January 1, 1995, exceeds 150 mm and measures at least importers would normally deposit the effective date of the amendments twice the thickness. Included as subject estimated duties, the following cash made to the Tariff Act of 1930 (the Act) merchandise in this petition are flat- deposits for the subject merchandise: by the Uruguay Rounds Agreements Act rolled products of nonrectangular cross- The ad valorem weighted-average (URAA). In addition, unless otherwise section where such cross-section is dumping margins are as follows: indicated, all citations to the achieved subsequent to the rolling Department’s regulations are in process (i.e., products which have been Revised reference to the regulations, codified at ‘‘worked after rolling’’)—for example, weight- products which have been bevelled or ed-aver- 19 CFR Part 353, as they existed on Manufacturer/producer/exporter age April 1, 1996. rounded at the edges. This merchandise margin is currently classified in the percent- Final Determination Harmonized Tariff Schedule of the age We determine that certain cut-to- United States (HTS) under item numbers 7208.40.3030, 7208.40.3060, S&J Wire Products Company, Ltd./ length carbon steel plate (CTL plate) New Lan Lung ...... 2.98 from South Africa is being, or is likely 7208.51.0030, 7208.51.0045, Romp Coil Nail Industries ...... 40.28 to be, sold in the United States at less 7208.51.0060, 7208.52.0000, K. Ticho ...... 40.28 than fair value (LTFV), as provided in 7208.53.0000, 7208.90.0000, All Others ...... 2.98 section 735 of the Act. 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, This notice constitutes the Case History 7211.14.0045, 7211.90.0000, antidumping duty order with respect to Since the preliminary determination 7212.40.1000, 7212.40.5000, CRN from Taiwan, pursuant to section in this investigation (Preliminary 7212.50.0000. Excluded from the subject 61732 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices merchandise within the scope of the FR 53705 (November 12, 1992).) For United States, the respondent’s sales are petition is grade X–70 plate. Although Iscor, we found that it did not properly generally to an importer, whether the HTS subheadings are provided for report a weight conversion factor. In independent or affiliated. We review convenience and Customs purposes, our order that all price comparisons be and compare the distribution systems in written description of the scope of this made on the same weight basis, we the home market and U.S. export investigation is dispositive. converted Iscor’s reported home market markets, including selling functions, and U.S. prices, quantities and costs, as class of customer, and the extent and Period of Investigation appropriate, based on information on level of selling expenses for each The period of investigation (POI) is the record (see Comment 10 of the claimed level of trade. Customer October 1, 1995, through September 30, ‘‘Interested Party Comments’’ section of categories such as distributor, original 1996. this notice). equipment manufacturer (OEM), or wholesaler are useful as they are Fair Value Comparisons (ii) Level of Trade commonly used by respondents to To determine whether sales of the To the extent practicable, we describe levels of trade, but, without subject merchandise by respondents to determine normal value for sales at the substantiation, they are insufficient to the United States were made at less than same level of trade as the U.S. sales establish that a claimed level of trade is fair value, we compared the Export (either EP or CEP). When there are no valid. An analysis of the chain of Price (EP) or Constructed Export Price sales at the same level of trade we distribution and of selling functions (CEP), where appropriate, to the Normal compare U.S. sales to home market (or, substantiates or invalidates claimed Value (NV), as described in the ‘‘Export if appropriate third country) sales at a customer classifications based on levels Price’’ and ‘‘Normal Value’’ sections of different level of trade. For both EP and of trade. If the claimed levels are this notice. In accordance with section CEP, the relevant transaction for level of different, the selling functions 777A(d)(1)(A)(i) of the Act, we trade is the sale from the exporter to the performed in selling to those levels compared the weighted average EPs or importer. While the starting price for should also be different. Conversely, if CEPs to weighted-average NVs during CEP is that of a subsequent resale to an levels of trade are nominally the same, the POI. In determining averaging unaffiliated buyer, the construction of the selling functions performed should groups for comparison purposes, we the EP results in a price that would have also be the same. Different levels of considered the appropriateness of such been charged if the importer had not trade necessarily involve differences in factors as physical characteristics and been affiliated. We calculate the CEP by selling functions, but differences in level of trade. removing from the first resale to an selling functions, even substantial ones, (i) Physical Characteristics independent U.S. customer expenses are not alone sufficient to establish a and the profit associated with those difference in the level of trade. Different In accordance with section 771(16) of expenses under section 772(d) of the levels of trade are characterized by the Act, we considered all products Act. These expenses represent activities purchasers at different places in the covered by the description in the undertaken by, or on behalf of, the chain of distribution and sellers ‘‘Scope of Investigation’’ section of this affiliated importer. Because the performing qualitatively or notice, produced in South Africa by the expenses deducted under section 772(d) quantitatively different functions in respondents and sold in the home represent selling activities in the United selling to them. market during the POI, to be foreign like States, the deduction of these expenses When we compare U.S. sales to home products for purposes of determining normally yields a different level of trade market sales at a different level of trade, appropriate product comparisons to for the CEP than for the later resale we make a level-of-trade adjustment if U.S. sales. Where there were no sales of which is used for the starting price. the difference in level of trade affects identical merchandise in the home Movement charges, and duties and taxes price comparability. We determine any market to compare to U.S. sales, we deducted under section 772(c) of the effect on price comparability by compared U.S. sales to the most similar Act do not represent activities of the examining sales at different levels of foreign like product on the basis of the affiliated importer and we do not trade in a single market, the home characteristics listed in the remove them to obtain the CEP level of market. Any price effect must be Department’s antidumping trade. The NV level of trade is that of manifested in a pattern of consistent questionnaire. In making the product the starting price of sales in the home price differences between home market comparisons, we relied on the following market. When NV is based on sales used for comparison and sales at criteria (listed in order of preference): constructed value, the level of trade is the equivalent level of trade of the paint, quality, specification and/or that of the sales from which we derive export transaction. To quantify the price grade, heat treatments, standard SG&A and profit. differences, we calculate the difference thickness, standard width, whether or To determine whether home market in the average of the net prices of the not checkered, and descaling. It is our sales are at a different level of trade than same models sold at different levels of practice where sales were made in the U.S. sales, we examine whether the trade. We use net prices because any home market on a different weight basis home market sales are at different stages difference will be due to differences in from the U.S. market (theoretical versus in the marketing process than the U.S. level of trade rather than other factors. actual weight) to convert all quantities sales. The marketing process in both We use the average difference in net to the same weight basis, using the markets begins with goods being sold by prices to adjust the NV when it is based conversion factors supplied by the the producer and extends to the sale to on a level of trade different from that of respondents, before making our fair- the final user. The final user could be the export sale. If there is a pattern of value comparisons. (See Final an individual consumer or an industrial no price differences, then the difference Determination of Sales at Less Than Fair user, but the marketing process for all in level of trade does not have a price Value: Cut-to-Length Carbon Steel Plate goods starts with a producer and ends effect, and no adjustment is necessary. from Finland, 58 FR 37122 (July 9, with a user. The chain of distribution In terms of granting a CEP offset, the 1993) and Final Determination of Sales between the two may have many or few statute also provides for an adjustment at Less Than Fair Value: Certain Welded links, and the respondent’s sales occur to NV if NV is established at a level of Stainless Steel Pipes from Taiwan, 57 somewhere along this chain. In the trade that is different from that of the Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61733

CEP, provided the NV level is more marketing process. Petitioners also We calculated CEP based on packed remote from the factory and we are argue that many of the selling functions prices to unaffiliated customers in the unable to determine whether the described by Highveld are intangible, United States. Where appropriate, and difference in levels of trade affects the and because there is neither a pursuant to sections 772(b) and (c) of price comparability between the CEP quantitative or qualitative difference in the Act, we made deductions for the and NV. This latter situation can occur selling functions performed in the two starting price for the foreign inland where there is no home market level of markets, Highveld should not be granted freight, foreign brokerage and handling, trade equivalent to the U.S. sales level a CEP offset. international freight, marine insurance, or where there is an equivalent home In determining whether separate U.S. Customs duties, survey expenses, market level, but the data are levels of trade actually existed between stevedoring and wharfage, commissions, insufficient to support a conclusion on the U.S. and home markets, we inventory carrying expenses, credit price effect. The CEP offset is the lower examined Highveld’s marketing stages. expenses, and indirect selling expenses. of: (1) the indirect selling expenses on In reviewing the chains of distribution We also made an adjustment for the the home market sale; or (2) the indirect and customer categories reported in the amount of profit allocated to these selling expenses deducted from the home market and in the United States, expenses, in accordance with section starting price in calculating CEP. The we are unable to make clear distinctions 772(d)(3) of the Act. CEP offset is not automatic each time between different stages of the We corrected the respondents’ data export price is constructed. It is only marketing process claimed by Highveld. for certain errors and omissions found at applicable when the level of trade of the Based on our review of the selling verification and submitted to the home market sales used for NV are more functions in the U.S. and home markets, Department. Specifically, for Iscor we advanced than the level of trade of the the distinctions are not sufficient to corrected for certain errors and CEP and there is not an appropriate constitute a difference in level of trade omissions found at verification as basis for determining whether there is between sales in the two markets. As a submitted by the company on an affect on price comparability. result, we have not granted Highveld a September 22, 1997, and we made Iscor did not claim a difference in CEP offset. See Comment 23 for a more adjustments to U.S. and home market level of trade. Consistent with our complete discussion of this issue. credit expenses, certain rebates, ocean findings in the preliminary freight, and Iscor’s weight conversion determination, for this final Export Price factors based on findings from verification. See ‘‘Interested Party determination we have treated all of We calculated the price of U.S. sales Iscor’s home market and U.S. sales as Comments’’ section of this notice. For based on EP, in accordance with section being at a single level of trade and we Highveld, we corrected for certain errors 772(a) of the Act, when the subject have made no level of trade adjustment and omissions found at verification as merchandise was sold to unaffiliated when matching its U.S. sales to home submitted by the company on purchasers in the United States prior to market sales. September 22, 1997, and we made the date of importation. In certain Highveld claimed for the preliminary adjustments to U.S. and home market instances, however, we determined that determination of this investigation, that credit expenses, marine insurance, CEP as defined in section 772(b) of the its sales in the home market were made brokerage and handling charges, certain Act was a more appropriate basis for the at two different levels of trade, and that rebates, survey expenses, stevedoring all of its U.S. sales (both EP and CEP) price of the U.S. sales. These instances and wharfage, inland freight, packing, were made at one level of trade. Based involved sales made by Highveld to its U.S. warranty expenses, and certain on our analysis of selling functions U.S. affiliate, Newco Steel Trading (NST direct selling expenses and unreported performed by Highveld, we found that or Newco), which negotiates prices and U.S. sales. See ‘‘Interested Party a single level of trade existed in each quantities with its U.S. customers, and Comments’’ section of this notice. market. sells the subject merchandise to the U.S. For this final determination Highveld customers. Newco operates as Normal Value argued that its sales in the home market Highveld’s exclusive distributor for Based on a comparison of the were at a different, more remote, level sales of the subject merchandise in the aggregate quantity of home-market and of trade that its sales to the United United States, and as such, undertakes U.S. sales, we determined that the States. Highveld has asserted that its selling activities exceeding those of quantity of the foreign like product sold sales in the home market were at a processing sales-related documentation. in the exporting country was sufficient different stage in the marketing process Specifically, Newco negotiates prices for to permit a proper comparison with the than its CEP sales in the United States particular products with its customers sales of the subject merchandise to the because they were to a different class of on a case-by-case basis, pays Highveld United States, pursuant to section 773(a) customer, and that the selling functions for the product order based on a price of the Act. Therefore, in accordance performed by Highveld were both agreement, and takes title to the with section 773(a)(1)(B)(i) of the Act, qualitatively and quantitatively different merchandise which is physically we based NV on the price which the between its home market and U.S. sales. transferred to U.S. customers by foreign like product was first sold for Accordingly, because its home market common carriers. consumption in the home market, in the sales are at a different, more remote, For both respondents, we calculated usual commercial quantities and in the LOT than its sales to the United States, EP sales based on packed prices to ordinary course of trade. Where and because the Department cannot unaffiliated customers in the United appropriate, we deducted rebates, quantify whether the different LOTs States. Where appropriate, and pursuant discounts, credit, inland freight, pre-sale affect price comparability, Highveld to sections 772 (a) and (c) of the Act, we warehousing, and packing. We also claims it should be granted a CEP offset. made deductions from the starting price made adjustments, where appropriate, Petitioners dispute Highveld’s for foreign inland freight, international for home-market indirect selling arguments that sales in the home market freight, foreign brokerage and handling, expenses to offset U.S. commissions in are more remote than its U.S. sales and marine insurance, early payment CEP comparisons. In comparisons to EP that steel service centers and discounts, pre-sale warehousing and CEP sales, we increased NV by U.S. distributors are at different stages in the expenses, and U.S. Customs duties. packing costs in accordance with 61734 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices section 773(a)(6)(A) of the Act. We also that the below-cost sales were not made interests of the party as the facts made adjustments to NV for physical in ‘‘substantial quantities.’’ Where 20 otherwise available. The statute also differences in merchandise (‘‘difmer’’). percent or more of a respondent’s sales provides that such an adverse inference of a given product were at prices less may be based on secondary information, Cost of Production Analysis than the COP, we disregarded the including information drawn from the As discussed in the preliminary below-cost sales where such sales were petition. determination, the Department found to be made at prices which would In this case, the Department has conducted an investigation to determine not permit the recovery of all costs applied partial facts available for whether Iscor and Highveld made home within a reasonable period of time (in various expenses and adjustments. (See market sales during the POI at prices accordance with section 773(b)(2)(D) of ‘‘Interested Party Comments’’ section of below their cost of production (COP) the Act). Where all sales of a specific this notice, comments 9, 10, 22, 31, 33, within the meaning of section 773(b) of product were at prices below the COP, and 37.) We have also applied facts the Act. in accordance with section 773(b)(1) of available to account for unreported sales. (See ‘‘Interested Party Comments’’ A. Calculation of COP the Act, we disregarded all sales of that product, and calculated NV based on section of this notice, comment 28.) We compared sales of the foreign like constructed value (CV) in accordance Currency Conversion product in the home market with the with section 773(e) of the Act. model-specific cost of production For purposes of the preliminary figures for the POI. In accordance with D. Calculation of Constructed Value determination, we made currency section 773(b)(3) of the Act, we (CV) conversions using the official daily calculated the COP based on the sum of In accordance with section 773(e) of exchange rate in effect on the date of the the costs of materials and fabrication the Act, we calculated CV based on the U.S. sale. These exchange rates were employed in producing the foreign like sum of the respondent’s cost of derived from actual daily exchange rates product plus selling, general and materials, fabrication, SG&A, interest certified by the Federal Reserve Bank of administrative (SG&A) expenses and all expenses, and profit. In accordance with New York. (See Change in Policy costs and expenses incidental to placing sections 773(e)(2)(A), we based SG&A Regarding Currency Conversions, 61 FR the foreign like product in condition and profit on the amounts incurred and 9434 (March 8, 1996).) Section 773A(a) ready for shipment. Based on our realized by the respondent in of the Act directs the Department to use verification of the cost responses for connection with the production and sale a daily exchange rate in order to convert Highveld, we adjusted the company’s of the foreign like product in the foreign currencies into U.S. dollars, COP to reflect dimensional cost ordinary course of trade, for unless the daily rate involves a differences, correct for overstated consumption in the home market. For ‘‘fluctuation.’’ In accordance with the fabrication costs, include the effect of selling expenses, we used the weighted- Department’s practice, we have yield loss on fixed overhead, calculate average home market selling expenses. determined that a fluctuation exists interest expense using the company’s Based on our verification of the cost when the daily exchange rate differs consolidated financial results and responses submitted by Iscor, we from a benchmark by 2.25 percent. (See correct for errors in the SG&A rate adjusted the reported CV for the same Change in Policy Regarding Currency calculation. For Iscor we adjusted the items noted in the COP section above. Conversions, 61 FR 9434, 9435 (March COP to reflect the reclassification Based on our verification of the cost 8, 1996).) The benchmark is defined as variance on a more product-specific responses submitted by Highveld, we the rolling average of rates for the past basis, include certain year-end adjusted the reported CV for the same 40 business days. When we determine adjustments and minor corrections, items noted in the COP section above. that a fluctuation exists, we substitute the benchmark for the daily rate, in account for the difference between Facts Available reported costs and those recorded in its accordance with established practice. normal accounting records, include Section 776(a)(2) of the Act provides Further, section 773A(b) of the Act headquarters cost in SG&A, and allocate that ‘‘if an interested party or any other directs the Department to allow a 60-day G&A over cost of sales. person—(A) withholds information that adjustment period when a currency has has been requested by the administering undergone a sustained movement. A B. Test of Home Market Prices authority; (B) fails to provide such sustained movement has occurred when In order to test Iscor’s and Highveld’s information by the deadlines for the the weekly average of actual daily rates home market prices, we compared their submission of the information or in the exceeds the weekly average of weighted-average COP figures to home form and manner requested, subject to benchmark rates by more than five market sales of the foreign like product subsections (c)(1) and (e) of section 782; percent for eight consecutive weeks. as required under section 773(b) of the (C) significantly impedes a proceeding Such an adjustment period is required Act, in order to determine whether these under this title; or (D) provides such only when a foreign currency is sales had been made at prices below the information but the information cannot appreciating against the U.S. dollar and COP. On a product-specific basis, we be verified as provided in section 782(i), was not applicable in this case. compared the COP to the home market the administering authority * * * shall, In this investigation, there were prices, less any applicable movement subject to section 782(d), use the facts certain days of the POI for which we charges, rebates, and direct selling otherwise available in reaching the substituted the benchmark for the daily expenses. applicable determination under this rate because the daily rate involved a title.’’ fluctuation. Consistent with our C. Results of the COP Test In addition, section 776(b) of the Act findings in the preliminary Pursuant to section 773(b)(2)(C)(i) of provides that, if the Department finds determination, for the final the Act, where less than 20 percent of that an interested party ‘‘has failed to determination we saw no reason in this a respondent’s sales of a given product cooperate by not acting to the best of its case to deviate from established were at prices less than the COP, we did ability to comply with a request for practice, since South Africa is not a not disregard any below-cost sales of information,’’ the Department may use high-inflation economy, and the decline that product because we determined information that is adverse to the in the rand was not so precipitous and Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61735 large as to reasonably preclude the hours on a budgeted basis and that Thus, Iscor used its sales dispatches to occurrence of a fluctuation. (See production costs are based on identify the quantity sold of each model. Comment 14 of the ‘‘Interested Party approximate production quantities. Iscor then used this information to Comments’’ section of this notice.) According to petitioners, Iscor’s product determine the POI sales mix which was groupings are being aggregated in used as a surrogate for its production Verification contravention of the statue. In addition, mix. Iscor adjusted this surrogate As provided in section 782(i) of the petitioners argue that Iscor grouped production mix tonnage to equal its Act, we verified the information costs for various products with different actual total production tonnage. To submitted by Iscor and Highveld for use physical characteristics into a single show that this methodology was in our final determination. We used control number. reasonable, Iscor provided a POI standard verification procedures, Iscor states that it acted to the best of inventory movement report for the including examination of relevant its ability in responding to the merchandise under investigation. (See accounting and sales/production Department’s questionnaires and has verification exhibit 21.) According to records and original source documents reasonably determined the production this movement report, Iscor’s provided by respondents. cost for each control number based on production tonnages and sales tonnages Interest Party Comments the company’s existing data. Contrary to were essentially the same amounts the petitioners’ assertion, Iscor claims during the POI. Comment 1 that it based its submitted costs on As Iscor has pointed out, the product Petitioners state that the Department actual production quantities. As for the codes it grouped together for the one should correct for the errors Iscor petitioners’ specific concerns on commercial plate specification control reported on the first day of verification. product groupings, Iscor contends that number sampled by the Department Iscor reported that the submission this issue only arose in one control during verification consisted of prime contained an error in the calculation of number sampled by the Department products and reclassified prime the tonnage allocation factor that it used during verification. Therefore, Iscor products (i.e., reserve stock, flange to calculate the variable and fixed cost argues that this does not make its home material, and scrap) that had similar adjustments and the company’s total market sales data unusable nor does it physical characteristics. To calculate a variance. According to the petitioners, warrant a determination of facts weighted-average cost for this control these corrections are necessary because available as suggested by the petitioners. number, Iscor assigned manufacturing Iscor’s errors effect the differences in Iscor then elaborates that the reason it costs to the reclassified products based merchandise adjustments and the 20% grouped internal product codes with on the product code under which it sold test for product matching. In addition, variations in costs was that this control the product rather than the actual costs petitioners state that Iscor omitted year- number consists of physically similar based on what it intended to produce. end cost adjustments from its reported reclassified product codes (i.e., reserve (See cost verification exhibit 13.) While costs. According to the petitioners, these stock, flange material, and scrap) and we do not disapprove of Iscor grouping year-end adjustments are costs that prime product codes. Iscor further prime products of similar physical relate to the whole period. Thus, the points out that a variation in costs exists characteristics within the same control Department should also correct for this between these internal product codes number, we do consider the omission for the final determination. because it values reclassified product methodology used by Iscor to account Iscor concurs with the petitioners in codes in a different manner than prime for the cost of reclassified products that the Department should adjust the product codes. inappropriate. Rather, in this instance, we consider it appropriate to use the company’s submitted COP and CV DOC Position figures for this error and omission. actual cost incurred to manufacture the Moreover, Iscor states that it gave the We disagree with the petitioners’ product rather than the cost assigned to Department the appropriate information claim that we cannot rely on Iscor’s the product by Iscor based on the to adjust its submitted costs for the final submitted costs. Although the reported product’s classification for sale. We note determination. COP and CV amounts were calculated that despite the fact that Iscor captured based on estimated labor costs and the difference between the cost of DOC Position hours, Iscor adjusted all estimated or producing the intended merchandise We agree with both Iscor and standard amounts to actual costs by and that which it ultimately sold petitioners. The Department’s normal calculating and applying production through its reclassification variance, practice is to capture production costs variances. (See cost verification exhibit Iscor’s reclassification variance for the specific product sold during the 14). In addition, we disagree with approach spreads product-specific costs period of investigation. Therefore, we petitioners’ claim that we cannot rely on from models with commercial plate have adjusted Iscor’s reported costs to Iscor’s submitted costs because they are specifications to other product account for the omission of the based on approximate production mix groupings. company’s year-end adjustments from tonnages. Although the reported For the final determination, we have costs and to correct the reported values production mix tonnages for each adjusted the submitted cost of for the minor errors pointed out by Iscor CONNUM were based on estimates, we manufacturing for control numbers with on the first day of verification. believe that Iscor’s method of estimating commercial plate specifications by these tonnages resulted in a reasonable disallowing the assigning of lower costs Comment 2 measure of the actual production to reclassified products. This Petitioners assert that Iscor’s reported tonnages by CONNUM. In the ordinary adjustment is limited to models with costs are based on a distortive course of business Iscor does not retain commercial plate specifications because methodology and that we should reject production information on a model testing of Iscor’s other product its reported COP and CV data. specific basis as defined by a CONNUM. groupings at verification did not Petitioners claim that the submitted Iscor does, however, maintain indicate the same problem. To avoid costs are based on estimates and not information on its sales mix which, double counting costs, we have reduced actual costs. Specifically, petitioners because the company produces largely the reclassification and reserve stock claim that Iscor assigns labor costs and to order, resembles its production mix. variances by the aggregate amount in 61736 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices which we increased reported costs for Moreover, the petitioners state that Iscor methodology in the normal course of models with commercial plate provided its costs on this basis business and that the methodology specifications. specifically because it assumed that it appropriately applies the G&A As for our position concerning Iscor’s produces products in the same ratio as percentage to each product code’s methodology of grouping product codes sold over a representative period. If the reported fixed cost amount. Moreover, with different physical characteristics, difference in the reported costs and Iscor claims that the effect of expressing see comment 7 for further details. financial system costs disproves this the percentage in terms of fixed cost Comment 3 assumption, then the Department instead of total cost has little effect on should reject Iscor’s costs. Otherwise, the reported costs because it is basically Iscor maintains that the Department the Department should increase Iscor’s the same amount. should not adjust its reported costs for reported costs by the verification DOC Position the slight deviation reported on the finding. reconciliation worksheet that it We agree with the petitioners that submitted as part of its cost verification DOC Position Iscor should allocate its G&A expense exhibit 8. Iscor claims that this We agree with petitioners that we based on cost of sales rather than fixed deviation only shows that its reported should increase Iscor’s reported costs. As set forth in Large Newspaper costs based on simulated production production costs to account for the Printing Presses and Components mixes are reasonable. Iscor suggests that difference between the reported costs Thereof, Whether Assembled or the Department should expect some and those recorded in its accounting Unassembled, From Japan, Final difference because its reported system. As part of verification, Iscor Determination of Sales at Less Than Fair production mixes are based on what it prepared a reconciliation worksheet that Value, 61 FR 38139, 38150 (July 23, sold during the POI and not what it shows its reported costs are less than 1996), our normal methodology for produced. According to Iscor, using the costs recorded in its accounting allocating G&A expenses to sales quantities was necessary because records. Although Iscor speculated as to merchandise is based on cost of sales. the company does not maintain model- the cause of the reconciling difference, Our methodology recognizes the fact specific production information. As for the company could neither document that the G&A expense category consists the cause of the deviation, Iscor nor quantify the specific reasons why its of a wide range of different types of provides the following explanations. reported costs differed from those costs which are so unrelated or Iscor first points out that the specific recorded normally in its records. With indirectly related to the immediate product mixes it manufactured during respect to Iscor’s explanations for the production process that any allocation the POI was not necessarily the same as difference, the fact that the company based on a single factor (e.g., head that sold during the POI. According to had to use relative sales quantities to counts, fixed costs) is purely Iscor, this difference will statistically determine product specific production speculative. The Department’s normal equal out over time because it only quantities, or that it had to include sales method for allocating G&A costs based produces against orders. Iscor’s second of different models within a product on cost of sales takes into account all explanation is that its internal product code in different CONNUMs does not production factors (i.e., materials, labor, codes consist of various similar justify it not capturing all costs as and overhead) rather than a single products that have a similar cost make- recorded in its financial accounting arbitrarily chosen factor. Absent up. However, these product codes have system in accordance with its home evidence that our normal G&A different physical characteristics and country GAAP. In addition, Iscor having allocation method unreasonably states dimensions which made it necessary for to adjust its standard costs to actual for G&A costs, we allocated such costs for the company to use them more than the submission should cause the the final determination based on cost of once when compiling the reported reported costs to agree with the actual sales. CONNUMs. The final reason stated by costs recorded in its accounting system, In addition to allocating Iscor’s G&A Iscor is that it can attribute the not cause a reconciling item. Absent expenses based on the company’s cost difference to the fact that it has support for each of the reconciling of sales, we increased Iscor’s reported historically used a standard cost system assumptions noted by Iscor, we consider G&A expenses to account for and not an actual costing system. Thus, it appropriate to adjust the company’s headquarters costs incurred during the Iscor had to adjust its standard costs to reported costs to include all costs as first half of the POI. Iscor indicated that calculate the reported costs. captured by its normal accounting this expense is a cost of production and Petitioners contend that the system. that it should have included it in COP Department must adjust Iscor’s reported and CV. (See Iscor’s cost verification costs to account for the discrepancy Comment 4 report, at page 2.) Furthermore, Iscor between reported costs and costs Petitioners argue that the Department included similar costs incurred during recorded in the financial accounting must adjust Iscor’s reported G&A the second half of the POI in the system. According to petitioners, Iscor’s expense for methodological errors. The submitted COP and CV. explanation for the discrepancy does petitioners cite the Department’s cost not mitigate the difference. If there is verification report which states that Comment 5 indeed a different product mix between Iscor omitted headquarters’ costs from Petitioners argue that ABS Grade A the financial and cost accounting data G&A and allocated G&A against fixed shipbuilding plate should not be that results in a difference in costs that costs rather than cost of sales. Thus, the matched to ASTM A36 plate because have been calculated, then it is evidence petitioners contend that the Department the majority of the shipbuilding plate that Iscor’s reported costs are unreliable. should correct these figures for the final was dual-certified to the A36 Petitioners point out that one would not determination. specification and is sold as structural expect a difference between Iscor’s Iscor claims that it is appropriate for plate. According to petitioners, the reported and recorded costs because it it to allocate general expenses as a Department’s plate specification actually derived the reported section D percentage of the fixed costs incurred to hierarchy dictates that the more costs from the cost of sales recorded in manufacture each specific product code. appropriate match is to the most the financial accounting system. Iscor argues that it uses this stringent standard to which the product Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61737 is produced: the ABS grade. This grade, selecting a home market product. As specification covers a broad range of they allege, exhibits the closest physical Iscor acknowledges, the reason the steels. Again, all of the products we characteristics. product sold in the United States is dual examined for this specification were Iscor argues that ABS Grade A certified is that its customers requested within the stated specifications of this shipbuilding plate is sold as structural the dual certification to enable them to product. While the specifications of the steel and is intended to be used sell this material as shipbuilding plate. product that Iscor intended to make, as primarily as ASTM A36 material. Iscor Regardless of how this product is opposed to the specifications that the claims that the Department verified ultimately used by the customer, this product actually met and were sold to, Iscor’s plate specification model match remains the most stringent specification are relevant in terms of analyzing costs hierarchy. to which this product is made. For this of production, they are not relevant for Petitioners counter that the fact that final determination we are continuing to this portion of our analysis. shipbuilding plate may be used as consider the best match specification for While we agree with petitioners that structural plate or sold to structural dual certified ABS/A36 plate sold in the at verification we found some minor plate customers is irrelevant to the United States to be Lloyds Grade A plate inconsistencies between the product Department’s plate specification model sold in the home market. characteristics noted on Iscor’s plate match hierarchy, which focuses on specification model match hierarchy physical characteristics. In petitioners’ Comment 6 tables and the actual specifications view, the fact that this steel is dual- Petitioners allege that Iscor seemed to themselves, we did not find any certified to both the ABS and ASTM have difficulty reporting the correct inconsistencies which were significant A36 specification does not mean that chemical requirements of the certain enough to change the model match A36 is the best match. Petitioners state plate specifications examined at hierarchy. Therefore, we have not that because this material meets the verification, which may distort the modified Iscor’s plate specification more stringent ABS shipbuilding appropriate product matching of grades. model match hierarchy from the one standard, it should be matched to a They state that the Department should used in the preliminary determination. product with similar characteristics. ensure that the correct chemical Iscor responds that the dual certified requirements are reviewed when Comment 7 ABS and A36 plate was sold in the matching grades and creating product Petitioners allege that Iscor United States as a structural steel and control numbers. Petitioners note that a improperly constructed its product not as shipbuilding plate. Iscor large and divergent number of products control numbers. They claim that acknowledges that its customers were included in one product control material such as flange material, which requested the dual certification to number. Petitioners state that Iscor was is described by Iscor as the ‘‘lowest of enable them to sell this material as unable to determine the actual the low’’ in the market, has generally shipbuilding plate, but argues that the characteristics of much of the plate in been downgraded from other vast majority of this material was sold this product control number, and that specification products, and Iscor admits as A36 material. Iscor claims that therefore the Department should reject that it cannot determine what the matching this steel to Lloyds Iscor’s product control numbers and original specification might be. shipbuilding plate Grade A would base the final determination on facts Petitioners assert that flange products ignore the first intent for the material available. cannot be said to be like other prime sold in the United States, which is Iscor maintains that it correctly commercial products. See 19 U.S.C. structural steel. Iscor likens matching constructed each product control 1677(16)(B)(ii). Petitioners also argue the two shipbuilding steels under these number using information that that like other non-prime products, circumstances to matching a pressure pertained to the order on which the flange material is not equal in vessel steel to a structural steel. Iscor invoice was issued. Iscor notes that commercial value to prime commercial notes that it gives dual certified ABS petitioners’ claims relate to information products. See 19 U.S.C. 1677(16)(B)(iii). and A36 material the same internal submitted in response to Part D of the In petitioners view, flange material quality code as it gives to single Department’s antidumping duty should not be compared to prime certified A36 material, while single questionnaire, the cost portion of this commercial grade or structural material certified ABS plate has a different review. Iscor references its response to sold in the United States. quality code. Iscor cites this as evidence Comment 2 above and alleges that Petitioners argue that certain that the company treats the dual because the effect and cost deviations downgraded products may also be sold certified material as equivalent to A36 were declared and explained in the outside the ordinary course of trade. and that this is the best home market costing system, the deductions made Petitioners cite the factors in Laclede v. match for dual certified material sold in from the variances in cost are accounted United States: the price of the the United States. for. merchandise compared to other home market sales, the profitability of the DOC Position DOC Position merchandise compared to other home We agree with petitioners. As We agree with both respondent and market sales, the number of customers petitioners correctly note, the fact that petitioners, in part. During our review of purchasing the product, quality shipbuilding plate may be used as the product characteristics for numerous assurances provided for the product, structural plate or sold to structural sample sales, we did not identify any differences in how the product is sold, plate customers is irrelevant to the discrepancies in reported product the end use of the product, the average Department’s plate specification model characteristics between mill certificates size of the sale compared to other sales, match hierarchy, which focuses on and product specifications. That is, each and whether the product is physical characteristics of the most product we examined met its stated distinguished by the seller from other stringent specification to which a product specification. This was also true merchandise of the same type. See product is made. In this case the ABS of the commercial quality plate that we Laclede Steel Co. v. United States, Slip Grade A specification is the more examined. We note that with respect to Op. 95–144 (CIT August 11, 1995). stringent specification and this is the the one product control number Petitioners claim that many of these specification that is controlling in referenced by petitioners, the relevant factors apply to this case. Petitioners 61738 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices argue that the Department verified that family of commercial products is sold to more properly designated as seconds certain products (such as flange certain customers in the local market than prime (and therefore should be in material) are sold at a discount and are absent test certificates, this material is a separate control number and not less profitable than prime products. accompanied by analysis certificates matched to prime U.S. sales (see Certain Petitioners also state that these products which attest to its meeting certain Cold-Rolled Carbon Steel Flat Products are downgraded to more limited uses chemical specifications. From the Netherlands, 62 FR 18476, than originally intended when During our review of Iscor’s 18482 (April 15, 1997)), we believe that produced, and that they are sold as is commercial quality products, we found these sales are most likely to be the ones without mill certificates. Unlike most that some of these products are that failed the cost test and are, products, according to petitioners, these comprised of steel which has been therefore, already not being used in our products are inventoried and given a downgraded and reclassified during matching analysis. Therefore, no further different designation, and these production from its originally intended adjustment is required. See Analysis products are sold to a more limited specification. This material, like the Memo, dated October 24, 1997. group of customers. commercial quality material intended as Petitioners state that Iscor has prime commercial quality material, Comment 8 configured its database in such a way meets the limited characteristics and According to petitioners, Iscor has that it has distorted product matching, specifications of Iscor’s family of improperly calculated its home market calculation of difference-in-merchandise commercial quality products. We note rebate adjustments. Petitioners note that adjustments, and calculation of normal that for purposes of a price-to-price two of the rebates, REBATE2H and value. For these reasons, they claim that comparison, the fact that some REBATE6H, were allocated by the final determination should be based commercial quality material may calculating the total rebates paid on all on the facts available. originally not have been intended as direct and indirect sales and dividing Respondent maintains that its home commercial quality material is that amount by the direct sales tonnage. market database is usable and has been irrelevant. What is important is that the This amount was allocated only to verified. Iscor notes that it has material sold and valued as commercial direct sales, which petitioners allege distinguished between prime and non- quality material meets the specifications unfairly skews the price-to-price prime products. Iscor notes that it was for which it is valued and sold; and our comparisons. Petitioners argue that the instructed by the Department in its analysis of sample sales at verification Department should not grant Iscor’s March 19, 1997, Supplemental involving these products demonstrated reported REBATE2H or REBATE6H as Questionnaire to reclassify non-prime that they conformed to the limited adjustments to normal value; but for products to prime products if these specifications and guidelines of purposes of the cost/price test, the full products meet any specification (even if commercial quality plate products. We rebates should be granted. Petitioners not the one originally intended). Iscor acknowledge that the Department state that the amounts of two other claims that it followed the Department’s instructed Iscor to reclassify certain rebates, REBATE3H and REBATE5H instructions and that it would be unjust non-prime products classified as were skewed. Petitioners urge the to penalize Iscor for following these ‘‘seconds’’ as prime products if they met Department to use facts available for directions. any specification (even if not the one this final determination, as the gross Iscor argues that its reclassified originally intended). unit price net of rebates cannot be products are not sold outside the Regarding petitioners’ claim that accurately determined for any sale ordinary course of trade. Iscor states that Iscor’s reclassified and downgraded receiving any of these rebates. in determining whether products are products may be sold outside the Iscor claims that it used a reasonable outside the ordinary course of trade the ordinary course of trade, petitioners methodology in reporting rebates and Department does not evaluate just one appear to be primarily concerned with that the Department verified these factor in isolation but all the flange material, the ‘‘lowest of the low.’’ rebates. Iscor notes that customers were circumstances particular to the sales in We agree that several of the factors cited entitled to a rebate on both direct and question. See Murata Mfg. Co. v. United as criteria used in making such a indirect tonnage, that is irrespective of States, 820 F. Supp. 603, 607 (CIT 1993) determination with respect to sales whether the material was bought and Portland Cement and Clinker from outside the ordinary course of trade directly from Iscor or through a Mexico, 62 FR 47626 (September 10, appear to apply in this case. For merchant. Iscor argues that it correctly 1997). Iscor claims that its reclassified example, certain flange material is sold allocated the full rebate to direct sales products are not sold for unusual on a tender basis, and not per specific because it was requested to state the reasons or under unusual orders. As a result, these products may rebates on a sales-specific basis and it circumstances, and urges the be sold at prices lower than other prime only stated direct sales tonnage in Part Department not to find these sales commercial grade steel products. The B of its questionnaire response. outside the ordinary course of trade. profitability of downgraded commercial material is also less than the DOC Position DOC Position profitability of as intended commercial We agree, in part, with both We agree with respondent. At grade material. There is limited petitioners and respondents. With verification we found that Iscor information on the record with respect respect to REBATE2H and REBATE6H, produces and sells certain products as to the other criteria. However, we note we agree with petitioners that the commercial quality products for general that a very significant portion of the methodology employed by Iscor which engineering applications where commercial grade home market sales calculates these rebates on the basis of moderate bending, forming and drawing that match to U.S. sales fail the cost test. both direct and indirect tons purchased are involved. These products are not Because the steel in question is the (rather than on direct tons purchased) produced to specific mechanical ‘‘lowest of the low,’’ these prices are skews the treatment of these rebates. property requirements and, as a result, presumably lower than those of as This methodology was not explained to they do not meet the same stringent intended commercial quality steel. To the Department prior to verification. specifications that may be characteristic the extent that certain sales in the Indeed, Iscor’s most detailed submission of other Iscor products. Although Iscor’s relevant product control number are on this issue indicated that the rebates Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61739 were calculated using total customer discrepancies relating to ocean freight specified by contract on individual tonnage (see response of June 27, 1997). rates, early payment discounts, and U.S. sales, as the discount was not in fact Iscor’s allocation methodology greatly credit at verification, we disagree that paid on all sales. For the final overstates the rebate amounts for these errors render Iscor’s overall U.S. determination we are continuing to use REBATE6H and REBATE2H for certain sales database unreliable. The Iscor’s reported U.S. early payment sales, and understates these amounts for Department considers these mistakes to discount amounts. other sales. Because these rebates are have been relatively minor and not to Comment 10 allocated across all direct sales to a call into question the integrity of the particular customer, and customers may entire database. As a result, we are using Petitioners note that many U.S. sales buy more than one type of steel, these Iscor’s submitted data, with the were made on a theoretical weight basis distortions can significantly affect our revisions noted in these comments, and and that because Iscor rolls larger than analysis. We note, however, that Iscor’s not using total facts available in this the nominal dimensions, customers who reported amounts for REBATE6H do not final determination. purchase on a theoretical weight basis apply to home market sales that are With respect to ocean freight expenses actually receive more tons than ordered. matched to U.S. sales. Consequently, reported by Iscor for certain sales, we Therefore, if the gross price is divided this portion of the comment is moot. found at verification that the reported by the actual weight, it will result in a Regarding REBATE2H, we are amounts misstated the actual amounts lower unit price than the theoretical disallowing this rebate for the final for certain shipments. For the final weight based unit price. Petitioners determination with the exception noted determination, we have corrected ocean argue that all price comparisons should below. For certain sales, we found at freight charges for these specific sales. be made on the same weight basis, and verification that essentially all sales For all other ocean freight expenses, that all prices and expenses should be were direct rather than a combination of where such charges are applicable, we converted to actual weights. Respondent direct and indirect. For these sales, we are applying as facts available the did not comment on this issue. highest reported amount for any U.S. are continuing to use the reported rebate DOC Position amount as an adjustment to normal sale. By not providing verifiable value. (We note that certain sales for information for ocean freight expenses We agree with petitioners that all which this rebate was reported do not when such information was available to price comparisons should be made on match to U.S. sales and although we are Iscor, we have determined that Iscor the same weight basis. In its original disallowing this rebate, for these sales failed to cooperate by not acting to the and supplemental questionnaire this issue is moot.) With respect to best of its ability to comply with a responses, and as we found at REBATE3H and REBATE5H, the request for information. See Certain verification, Iscor failed to report Department found at verification that Pasta From Turkey, 61 FR 30309, 30312 properly an actual to theoretical weight Iscor’s allocation methodology under- (June 14, 1996) (Pasta). Consequently, conversion factor for both its U.S. and stated the actual amounts for the rebates the use of adverse facts available under home market sales, thereby prohibiting had they been calculated on a section 776(b) of the Act is warranted. price comparisons to be made on the transaction-specific basis. For the final Additionally, we did not convert ocean same weight basis. As facts available, determination, therefore, we are using freight from rand to dollars as we did in we are applying the average of the the reported rebate amounts as the preliminary determination, as this verified U.S. ratio of theoretical to adjustments to NV. See Analysis Memo, amount was in fact reported in dollars. actual weights to all U.S. quantities and dated October 24, 1997. With respect to U.S. credit expenses, prices reported on an actual weight we were unable to verify date of basis. We are applying the same Comment 9 payment, since Iscor did not provide conversion factor to CV. With respect to Petitioners state that various errors in documentation of proof of payment for the home market, as facts available we Iscor’s U.S. sales database render it its U.S. sales during verification. As are applying the verified ratio of unreliable as a basis for the final facts available for U.S. credit expenses, theoretical to actual weights to all home determination. For example, petitioners we are applying the highest reported market quantities and prices reported on identify certain discrepancies relating to U.S. credit expense to all U.S. sales. By an actual weight basis. We are applying ocean freight rates and early payment not providing verifiable information for this same conversion factor to the discounts. Petitioners argue that U.S. U.S. date of payment when such reported COP. See Analysis Memo, credit expenses were not verified as no information was available to Iscor, we dated October 24, 1997. We are applying documentation of payment dates was have determined that Iscor failed to facts available to these adjustments provided. cooperate by not acting to the best of its under section 776(a)(2) because Iscor Iscor claims that the U.S. sales ability to comply with a request for did not provide information requested database has been verified. With respect information. See Pasta. Consequently, by the Department in its submitted to ocean freight, Iscor notes that the the use of adverse facts available under database. discrepancy arose because the reported section 776(b) of the Act is warranted. amount was an estimate calculated prior We are allowing Iscor’s reported early Comment 11 to the actual shipment. Iscor states that payment discounts. Our review of According to petitioners, Iscor did not the Department has the actual expense Iscor’s allocation methodology, which document its home market payment and that an estimated freight rate will calculated a discount amount based on dates at verification. Therefore, they always differ from the actual freight rate all early payment discounts and tons claim that the Department should not as estimated rates are negotiated prior to shipped to the customer was grant Iscor a downward adjustment to fixing sales price. With respect to early determined to be reasonable. The normal value for home market credit payment discounts, Iscor alleges that it allocated amount reported is an average expenses due to the fact that the employed a reasonable methodology. for all sales—including sales which payment time could not be verified. received the discount and sales which Iscor argues that the Department DOC Position did not receive the discount. incorrectly rejected Iscor’s proof of We agree with petitioners in part. Consequently, this amount will always payment. Iscor notes that verification is While the Department identified certain differ from the discount amount a long process and it is often necessary 61740 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices to work long hours to complete factors such as time availability, a of an investigation unless precisely the verification. Iscor explains that because respondent’s general level of same merchandise was include in the the verification continued past normal compliance, and the relative dollar ITC’s injury determination. See Hot- business hours on the last day of value of the reported amounts. Rolled Lead and Bismiuth Carbon Steel verification it lost access to the office ‘‘[V]erfication is like an audit, the Products from the United Kingdom and that had proof of payment records. Iscor purpose of which is to test information Germany, 62 FR 34213, 34215 (June 25, states that it forwarded this information provided by a party for accuracy and 1997) (initiation of anticircumvention to the Department representatives after completeness. Normally, an audit inquiry). Petitioners add that none of verification, but the Department rejected entails selective examination rather than the anticircumvention provisions these records. Iscor urges the testing of an entire universe.’’ Bomont require a new injury determination. Department to consider proof of Indus. v. United States, 733 F. Supp. According to petitioners, they have payment to be verified because it made 1507, 1508 (CIT 1990). In this case, time demonstrated in their July 3, 1997, a good faith effort to provide the did not permit us to verify Iscor’s submission that, using the five factors information to the verification team. reported pre-sale warehousing expenses. traditionally employed by the In responding to petitioners, Iscor Because we have no evidence that Department to decide whether noted that its data system does not would lead us to disregard respondent’s particular products are within the same provide transaction specific payment reported pre-sale warehousing expenses, class or kind covered by the order, low- dates because local sales are paid by we are granting this adjustment for the alloy plate and light-rolled 3⁄16′′ plate statement, not by individual invoice. final determination. share the same general physical Iscor claims that it devised a reasonable Comment 13 characteristics as other subject plate; methodology as the most accurate way that ultimate purchasers have the same Petitioners argue that the scope of the to determine payment dates based on expectations of low-alloy plate and investigation should be clarified to the information that it did have. light-rolled 3⁄16′′ plate as of other subject include: (a) purported ‘‘alloy’’ plate, plate; and that low-alloy plate and light- DOC Position sold as ASTM A36 or another carbon rolled 3⁄16′′ plate are sold in the same We agree with petitioners that we plate specification, to which trace channels of trade, for the same ultimate were unable to verify Iscor’s home amounts of inexpensive alloying agents uses, and at the same cost, as other market payment dates. While Iscor may have been added (‘‘low-alloy plate’’) and subject plate. have devised a reasonable date of (b) subject merchandise sold as having Petitioners assert that all 3⁄16′′ nominal payment methodology, we were not able a 3⁄16′′ nominal thickness but ‘‘rolled thickness plate is within the scope of to verify this methodology on site. The light’’ to an actual thickness of just the investigation regardless of whether Department appropriately rejected under 4.75mm (the boundary of the its actual thickness is less than 4.75mm. Iscor’s post-verification date of payment tariff classifications set forth in the They state that because 3⁄16′′ plate is an submission as untimely. Date of scope description of the preliminary important part of the market for thin payment information and source determination) (‘‘light-rolled 3⁄16′′ gauge plates, the scope should be documentation was clearly requested in plate’’). Petitioners state that the clarified to state that it covers plate the Department’s verification outline, Department routinely makes minor 4.75mm in thickness or more in which was provided to Iscor in advance changes to its scope descriptions, both nominal or actual thickness. According of verification. This information should during investigations and after an order to petitioners, any customer ordering a have been prepared in advance of the is issued, particularly where this is 3⁄16′′ A36 plate, for example, would be start of verification and should have thought necessary to prevent willing to accept any thickness within been part of the sales trace packages at circumvention. See Small Diameter the tolerance for that size plate. Thus, the time they were presented to the Circular Seamless Carbon and Alloy any plate within the tolerance for Department. After verification had Steel Standard, line and Pressure pipe 4.75mm nominal thickness plate will ended, the verification team was not in from Italy, 60 FR 31981, 31983–85 (June compete directly with any other plate a position to tie date of sale information 19, 1995) and Freshwater Crawfish Tail within the tolerance. to original company records or Meat from the People’s Republic of otherwise verify any information China, 62 FR 41347, 41357–58 (August Petitioners argue that all cut-to-length regarding payment date. Therefore, we 1, 1997). plate that meets common non-alloy are denying home market credit Petitioners claim that any argument plate specifications is within the scope expenses as an adjustment to normal that the International Trade Commission of the investigation, regardless of the value. (ITC) preliminary determination presence of alloys in excess of those precludes this scope clarification is specified in the Harmonized Tariff Comment 12 based on a fundamental Schedule of the United States According to petitioners, no offset to misunderstanding of the (‘‘HTSUS’’) categories for non-alloy normal value for pre-sale warehousing interrelationship between the scope of steel. They state that the addition of should be granted as the Department investigation, the industry examined by such alloys does not change the was unable to verify pre-sale the ITC (defined as producers of the like specification, grade, physical warehousing expenses. Respondent did product), and the requirement for characteristics or applications of the not comment on this issue. industry support. Petitioners note that plate. Petitioners believe the published although the Department frequently description of the scope of the DOC Position modifies the scope of an investigation investigation should be amended to We disagree with petitioners. The during its course, the Department is make clear that it covers all cut-to- Department is not required to verify expressly prohibited by statute from length plate made to common non-alloy every item in a respondent’s reconsidering the issue of industry plate specifications. This includes, but questionnaire response. Rather, in support. Petitioners claim that the is not limited to, ASTM A36, A572, conducting verification, the Department Department has explicitly rejected the A709, A588, A283, PVQ A516, A573, must prioritize its examination of a theory that the Department cannot A455, and ABS grades, as well as respondent’s reported data according to include merchandise within the scope chemical or proprietary equivalents to Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61741 those specifications, regardless of the claims that the Department is reviewing preliminary determination in this case alloy content or tariff classification. the application of the benchmark in is entirely consistent with the Policy Petitioners allege that certain situations where the foreign currency Bulletin on Currency Conversions. (See producers in the countries subject to depreciates substantially against the Department of Commerce Policy these investigations on cut-to-length U.S. dollar over the period of Bulletin 96–1: Import Administration carbon steel plate have begun to vary investigation or review, situations in Exchange Rate Methodology, 61 FR the alloy content slightly so that these which it may be appropriate to use daily 9434, 9435 n.2 (March 8, 1996).) products no longer meet the tariff rates. See Department of Commerce Petitioners explain that the reason the definition of non-alloy steel. In Policy Bulletin 96–1: Import methodology used in the preliminary particular, petitioners believe that Administration Exchange Rate determination differs from that in certain producers may be adding boron Methodology, 61 FR 9434, 9435 n.2 Certain Welded Carbon Steel Pipe and to their chemistries, because boron is (March 8, 1996). Highveld claims that Tube from Turkey is that the Turkish relatively inexpensive. Petitioners the South African currency steadily and case involved a hyperinflationary believe such products are being used in substantially depreciated against the economy in which the currency was identical applications as other subject U.S. dollar during the period of undergoing a dramatic depreciation. merchandise. In petitioners’ view, in investigation. It cites the sales Petitioners state that this case does not any instance where the added alloy does verification report where verifiers noted involve dramatic currency depreciation not change the performance a ‘‘sharp devaluation during the POI.’’ driven by hyperinflation, and cite the characteristics of the plate or affect the Highveld also states that there need Department’s finding in the preliminary product’s classification within the not be a determination of significant determination that the decline in the industry specification the product inflation or hyperinflation. Highveld rand was not so precipitous and large as should remain within the scope of the cites Certain Welded Carbon Steel Pipe to reasonably preclude the occurrence of investigation. and Tube from Turkey and states that fluctuations. Petitioners argue that Iscor urges the Department to reject Department practice does not require a Highveld’s statements that the rand petitioners’ scope clarification because claim of significant inflation in order to underwent a sharp devaluation quoted this is not a routine minor change nor use daily exchange rates and that daily in the verification report is not evidence have petitioners submitted any exchange rates may be used on two of a precipitous and large depreciation information on the record that Iscor or separate occasions: (a) if the foreign in the rand and the fact that the any other South African producer is currency has undergone a substantial benchmark was used only for certain circumventing or trying to circumvent depreciation against the dollar or (b) if days also argues against the existence of the preliminary determination in this domestic price inflation is significant. a precipitous and large depreciation in investigation. Highveld claims that the first scenario the rand. occurred for this case and urges the DOC Position DOC Position Department to use daily exchange rates. We disagree with petitioners. See Iscor argues that the Department We agree with petitioners. This case memorandum on Scope of incorrectly used a benchmark rate to is distinguished from Certain Welded Investigations on Carbon Steel Plate, convert South African rand into U.S. Carbon Steel Pipe and Tube from Joseph Spetrini to Robert S. LaRussa dollars instead of the daily rate on Turkey as that case involved a (October 24, 1997). certain days of the POI because of hyperinflationary economy in which the currency fluctuations. Iscor maintains currency was undergoing a dramatic Comment 14 that the use of the benchmark rate is depreciation. There is no evidence in Iscor and Highveld urge the contrary to section 773A(a) of the law the present case of either a precipitous Department to correct its exchange rate and Commerce practice (Certain Welded and large depreciation in the rand methodology. Carbon Steel Pipe and Tube from relative to the dollar or of hyperinflation Highveld argues that the Department Turkey). Iscor takes issue with the in the South African market. As should use without exception the actual Department’s statement in the petitioners correctly note, section 773A daily exchange rate certified by the preliminary determination regarding the of the Act and the SAA both state that Federal Reserve Bank of New York to decline in the South African rand. Iscor in converting foreign currencies into convert the South African currency into argues that it is not a requirement in the U.S. dollars fluctuations in exchange U.S. dollars instead of a benchmark rate. law, regulations or Policy Bulletin (see rates shall be ignored. The Department’s According to Highveld, both the law above) that South Africa be a high- use of benchmark exchange rates in and Department practice direct the inflation economy in order not to use a place of daily exchange rates in Department to use actual unadjusted benchmark. Like Highveld, Iscor urges instances when a foreign currency is daily exchange rates. See Section the Department to correct its exchange considered fluctuating is consistent 773A(a) of the Act and the Statement of rate methodology in the final with these statutory requirements. We Administrative Action, H.R. Doc. No. determination and use the actual are continuing to use benchmark rates 103–316, at 841–842 (1994). See also unadjusted daily exchange rates instead in place of daily exchange rates in Notice of Final Results of Antidumping of the benchmark rates for all dates. instances when a foreign currency is Duty Administrative Review: Certain Petitioners argue that the currency considered fluctuating for the final Welded Carbon Steel Pipe and Tube conversion methodology used in the determination. For further discussion of from Turkey, 61 FR 69067, 69071 preliminary determination was correct. this issue, see the ‘‘Currency (December 31, 1996). Highveld notes In petitioners’ view, the Department’s Conversion’’ section of this notice. that Certain Welded Carbon Steel Pipe methodology was both lawful and and Tube from Turkey states that the consistent with past practice. Petitioners Comment 15 actual daily exchange rates were used cite section 773A of the Act and the Petitioners argue that Highveld’s per- rather than the benchmark rate because SAA as stating that in converting foreign unit COP data do not properly account the foreign currency depreciated currencies into U.S. dollars fluctuations for differences in physical substantially against the U.S. dollar of in exchange rates shall be ignored. characteristics. Petitioners further the period of review. Highveld also Petitioners argue that the Department’s contend that Highveld’s methodology 61742 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices ignores cost differences due to Comment 16 financial statement purposes. Because differences in each product’s processing Highveld claims that, in its cost Highveld’s total COM per its accounting time per ton. Petitioners support these verification report, the Department records included G&A expenses while arguments by citing that (1) Highveld miscalculates the difference between the the submitted COM did not, we need to allocated the same per-ton conversion COM in Highveld’s accounting system adjust the submitted COM for the total costs to slabs, billets, and blooms and the COM submitted by the amount of G&A expenses reported to the although they have different production company. Highveld agrees with two of Department for subject merchandise. In processes, and (2) Highveld allocated the adjustments to the reconciliation addition, since Highveld’s response is conversion costs for the flat-products identified by the Department in its cost based on its actual cost of plant based on the tonnage of slab verification report. Highveld objects, manufacturing during 1996 and not its inputs compared to the tonnage of slab however, to the Department’s proposed 1996 standard cost of manufacturing, we inputs used for other non-subject adjustment to value the cost of the agree with Highveld that the October products produced in the plant. The October 1995 to December 1995 sales through December 1995 sales should be petitioners reason that all products from 1995 standard per-unit costs to valued based on the average cost of produced by the flat products plant 1996 standard per-unit costs. Highveld manufacturing as contained in its response for purposes of the cost require different machine times per ton contends that the Department should reconciliation. We are satisfied that the and, therefore, should have different use the average of the per-unit costs reconciliation provided by Highveld in per-unit conversion costs according to reported to the Department in its its September 15, 1997, case brief their thickness, width, length, and other Section D response, which results in an establishes that the reported costs extras. Petitioners argue that Highveld insignificant difference between the COM submitted to the Department and reasonably agree with Highveld’s should have at least allocated the accounting records. Therefore, we did conversion costs for as-rolled products the COM in Highveld’s accounting system. Highveld maintains that its not adjust Highveld’s submitted costs over the output of finished products for this difference. instead of over the input. reconciliation of submitted COM to that contained in its cost accounting system Comment 17 Highveld asserts that it properly shows only a small difference. Any adjusted its normal accounting records, adjustment to the submitted costs for Petitioners contend that the which calculates a single cost for all such a small difference, according to Department should increase Highveld’s products, in order to capture the cost Highveld, is completely unjustifiable. COP because Highveld did not include differences due to the physical The petitioners urge the Department in the submitted costs the full G&A and characteristics on which the Department to base Highveld’s COM on total facts interest expense on materials purchased based its analysis. Highveld notes that it available because Highveld was unable from other divisions within Highveld. adjusted costs for differences in to reconcile its reported COM with its Highveld argues that G&A and interest chemical components, additional labor cost accounting system. If the for materials transferred from other and overhead costs associated with Department does not base the final divisions are already included in the normalizing, and labor and variable determination on total facts available, calculation of G&A and interest for the overhead costs based on yield factors to petitioners contend that the Department subject merchandise. Highveld reasons account for different rolling costs for should at least adjust COM by the that if the Department were to include different dimensions of merchandise. overall difference between Highveld’s these costs as a part of material costs, it reported COM and its cost accounting would be double counting G&A and DOC Position system. The petitioners contend that the interest. We agree with the petitioners in part flaws in Highveld’s submitted COM DOC Position that Highveld’s reporting methodology reconciliation identified by the We agree with Highveld. The failed to fully account for cost Department should be accounted for Department normally treats the cost of differences associated with differences when comparing the total submitted COM with that contained in Highveld’s inputs obtained from other divisions in certain physical characteristics of the cost accounting system for the same within the same company as a cost subject merchandise. Highveld’s time period. In particular, the incurred by that company (i.e., it is not reported COP and CV data does account petitioners claim that Highveld an input obtained from an affiliate, it is for (1) chemical input differences for incorrectly valued the cost of its 1995 an input produced by the respondent). differing quality and types of steel sales using 1995 standard costs rather In this instance we use the cost incurred produced, (2) the additional costs than 1996 standard costs which were by the company to produce the input. related to producing normalized the basis of its cost response. See e.g., Final Results of Antidumping products, and (3) yield loss differences Duty Administration Review: Certain between differing dimensions of DOC Position Forged Steel Crankshafts from the merchandise. Highveld’s reported cost We agree with Highveld that the cost United Kingdom, 61 FR 54613, 54614 data, however, failed to account for cost verification report miscalculated the (October 21, 1996) (‘‘Crankshafts’’). We differences associated with processing difference between its submitted COM state in Crankshafts that although time differences between varying and that recorded in its accounting respondent describes companies as dimensions of finished product. Our system. We reviewed the revised ‘‘related’’ in various sections of their verification of Highveld’s reported cost reconciliation calculation as contained questionnaire response, the weight of data showed that the variable cost of in the cost verification report and noted record evidence (e.g., corporate manufacturing the subject merchandise that G&A was erroneously computed. In structure charts and audited financial differs depending on the dimensions of the normal course of business, Highveld statements) indicate that they are the product produced. We therefore allocates G&A expenses to its steel divisions of the same corporation. Thus, adjusted Highveld’s reported costs to making cost centers, including these in Crankshafts the Department used the reflect these dimensional cost expenses as a cost of manufacturing, division’s actual verified cost of differences. and ultimately in the cost of sales for producing the input. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61743

Highveld’s record evidence indicates Comment 20 interest expense for COP and CV. that the inputs it identified as obtained Petitioners note that Highveld Petitioners state that the cases cited by from ‘‘related’’ parties were obtained incorrectly calculated G&A expenses by Highveld show that the Department from other divisions within the using different divisional levels in the calculates a consolidated interest factor company. While the Department’s numerator and denominator for the where the parent exercises control over the subsidiary. Since Highveld Steel normal practice is to value inputs from calculation. Petitioners suggest that the Works is controlled by the corporate divisions at actual cost, Highveld Department apply the recalculated G&A parent, Highveld Steel and Vanadium elected to value these inputs at its expenses to Highveld’s COP and CV. Corporation Limited, the use of the transfer prices for submission purposes. Highveld agrees that the G&A expense consolidated interest expense rate is Our verification of Highveld’s reported rate recalculated at verification should appropriate. Petitioners further argue cost data showed that the transfer prices be used for the final determination. for these inputs were higher than the that since Highveld includes interest COM. Since the transfer price was DOC Position expenses for the Columbus Joint higher than the cost of manufacturing We agree with both petitioners and Venture in its consolidated corporate each input, Highveld did not understate Highveld. The Department used financial statement and that the statute at 19 U.S.C. 1677b(f)(1)(A) provides that input costs in its reported COP and CV Highveld’s recalculated G&A expense to costs shall normally be calculated based data. We, therefore, agree with Highveld calculate COP and CV for the final on the exporter’s or producer’s records that to include G&A and interest as part determination. of material costs would lead to double if they are kept in accordance with the counting of G&A and interest. Comment 21 generally accepted accounting principles (‘‘GAAP’’) of the exporting Comment 18 Highveld maintains that it received net interest income and that it incurred country, the Department should include Petitioners claim that Highveld no interest expense associated with the all interest expenses consolidated by improperly allocated labor costs production of the subject merchandise. Highveld in its financial statement in between fixed and variable production Therefore, Highveld contends that COP calculating a corporate interest expense rate. costs by treating virtually all labor costs and CV interest expense should be zero. as fixed. Petitioners allege that Highveld argues that the Department’s DOC Position Highveld’s allocation of variable and consolidated interest expense We agree with petitioners. The fixed costs distorts the Department’s calculation should exclude the entire Department normally calculates interest difference-in-merchandise comparison amount of interest expense associated expense based on the respondent’s and product-matching. with Columbus Joint Venture, an entity audited consolidated financial Highveld maintains that it properly in which Highveld has only a 33 percent statements for the year that most closely reported total direct labor for the subject equity interest. Highveld contends that corresponds to the POI. Highveld merchandise and that variable labor having a 33 percent equity interest fails consolidated the financial results of the costs are not under-reported for the to meet the requirements for Columbus Joint Venture in its 1996 Department’s differences-in- consolidation. Highveld cites Final annual audited financial statements. merchandise adjustment. Results of Antidumping Duty Since Highveld’s audited financial DOC Position Administrative Reviews: Certain Cold- statements were found to be fairly Rolled and Corrosion-Resistant Carbon presented and in conformity with the We agree with Highveld that it Steel Flat Products from Korea, 62 FR GAAP of South Africa, we have no properly allocated labor costs between 18404, 18445 (April 15, 1997) and Final reason to believe that the financial variable and fixed costs using Determination of Sales at Less Than Fair results for the Columbus Joint Venture percentages based on the historical Value: Certain Carbon Steel Butt-Weld should not have been included in the experience of its plant management. Pipe Fittings from Thailand, 57 FR consolidated financial statements for Because Highveld reported in its 21065, 21069 (May 18, 1992), to support Highveld. Section D response both variable and its position that the Department should We disagree with Highveld that the fixed per-unit labor costs as direct labor, exclude the Columbus Joint Venture cases it cited support its argument. In we reclassified Highveld’s reported from Highveld’s consolidated interest Final Results of Antidumping Duty fixed labor costs as fixed overhead costs expense computation since there is no Administrative Reviews: Certain Cold- to compute the difference-in- parent-subsidiary corporate relationship Rolled and Corrosion-Resistant Carbon merchandise adjustment. or parental control between these two Steel Flat Products from Korea, 62 FR Comment 19 companies. To support its claim, 18404, 18445 (April 15, 1997), there Highveld notes that the Department did were several companies which met the Petitioners recommend that, if not consolidate a joint venture in which requirements for consolidation but accepted, Highveld’s Section D costs be the respondent had 50 percent equity because Korean GAAP did not require used as the basis for difference-in- ownership in Final Determination of companies to prepare consolidated merchandise adjustments and product Sales at Less Than Fair Value: Aramid financial statements, no audited matching. Fiber Formed of Poly-Phenylene consolidation was prepared. We Highveld agrees that its Section D Terephthalamide from the Netherlands, therefore combined the separate audited costs should be used to calculate the 59 FR 23684, 23688 (May 6, 1994), financial statements of the companies to differences-in-merchandise adjustment. because the Department determined that calculate a group-level interest expense parental control did not exist. Highveld factor. In Final Determination of Sales at DOC Position notes that it is not a parent to Columbus Less Than Fair Value: Aramid Fiber We agree with both petitioners and Joint Venture and it does not exercise Formed of Poly-Phenylene Highveld. The Department used parental control. Terephthalamide from the Netherlands, Highveld’s Section D costs to calculate Petitioners assert that Highveld’s 59 FR 23684, 23688 (May 6, 1994) and the differences-in-merchandise corporate consolidated financial in Final Determination of Sales at Less adjustments for the final determination. expenses must be used to calculate Than Fair Value: Certain Carbon Steel 61744 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Butt-Weld Pipe Fittings from Thailand, Highveld also objects to petitioners’ should not be based on total facts 57 FR 21065, 21069 (May 18, 1992), the claim that the Department should draw available. While the Department agrees respondents were not included in the adverse inferences. In Highveld’s view, with petitioners that there are errors and audited consolidated financial the minor errors that were found are not omissions in Highveld’s responses, we statements of the parent because they sufficient to cause the Department to do not believe that the scope and impact did not meet the consolidation resort to adverse inferences. Highveld of the errors in question are sufficient to requirements of their home country states that it did not fail to submit a warrant the application of facts GAAP. In this case, however, the questionnaire response, provide a available in the case as a whole. See Columbus Joint Venture is included in response which was wholly Circular Welded Non-Alloy Steel Pipe the audited consolidated financial unverifiable, or refuse to provide and Tube from Mexico: Final Results of statements of Highveld, in accordance information to the Department. See Antidumping Duty Administrative with its home country GAAP. Therefore, Final Determination of Sales at Less Review, 62 FR 37014, 37015 (July 10, none of these circumstances apply to Than Fair Value: Large Newspaper 1997). We note that the magnitude of Highveld, as Highveld included Printing Presses and Components the errors in this investigation are Columbus Joint Venture in its Thereof, Whether Assembled or substantially less than those noted in consolidated financial statements. Unassembled, From Germany, 61 FR Circular Welded Non-Alloy Steel Pipe 38166, 38167 (July 23, 1996); From South Africa, 61 FR 24271, Comment 22 Antifriction Bearings, 61 FR 35713, 24272–3 (May 14, 1996). With Petitioners argue that the final 35715–6 (June 8, 1996); Final appropriate corrections, the Department determination for Highveld should be Determination of Sales at Less Than Fair has determined that Highveld’s based on total facts available. Petitioners Value: Certain Pasta From Turkey, 61 responses are usable for purposes for the state that it has documented in previous FR 30309, 30312 (June 14, 1996). purpose of margin calculations. comments that Highveld’s cost and Highveld also cites other cases in which Pursuant to sections 776 and 782(e) of price responses are completely the Department did not apply adverse the Act, the Department has used the unreliable and unusable in their present inferences, and states that in facts otherwise available when form. Petitioners note that the number comparison with these cases, the necessary. of changes that the Department would application of adverse inferences is not Comment 23 need to make to use Highveld’s sales appropriate in this case. See Final data are substantial, to the extent the Determination of Sales at Less Than Fair Highveld argues that the Department data is usable at all. Petitioners argue Value: Circular Welded Non-Alloy Steel incorrectly determined there to be one that Highveld’s COP and CV data are Pipe From South Africa, 61 FR 24271 level of trade in the preliminary completely unusable (see comments (May 14, 1996) (Circular Welded Non- determination. Highveld claims that above). In petitioners’ view, as the cost Alloy Steel Pipe From South Africa). sales in the home market and sales in data are unusable, it is impossible to Highveld claims that the information the U.S. are at different levels of trade perform the below-cost sales analysis, it presented is not completely unreliable and that the Department should grant it use the CV data, or calculate difference as suggested by petitioners, and the a CEP offset. Highveld does not contest in merchandise adjustments. Indeed, Department should not use total facts the Department’s determination that petitioners claim that Highveld’s entire available or use adverse inferences in its there was only a single level of trade in submission is unreliable and unverified final determination. the home market, but does disagree with and that the Department should base the Petitioners counter that due to time the Department’s finding that home final determination on facts available. and resource constraints, verification market and U.S. sales are at the same As facts available, petitioners propose cannot be more than a spot-check of level of trade. that the Department use the higher of information provided by respondent. In Highveld notes that the Department the highest rate alleged in the petition petitioners’ view, the sheer volume and determines normal value for sales at the or the highest rate found for another pervasiveness of the errors discovered same level of trade as the U.S. sales and producer. during verification call into question the that the starting price for CEP is the first Highveld argues that the final accuracy and complement of the whole sale to an unaffiliated buyer from which determination should be based on its response. See Circular Welded Non- profit and expenses are deducted under submitted data, not facts available. Alloy Steel Pipe From South Africa, 61 section 772(d) of the Act. Highveld cites Highveld acknowledges that the FR 24271, 24274. Petitioners note that the preliminary determination which Department found several errors in its the statute allows the Department to use states that this deduction ‘‘will normally reported information, but claims that adverse facts available whenever an yield a different level of trade for the this data was substantially verified and interested party has failed to cooperate CEP than for the later resale which is that any errors were invariably minor by not acting to the best of its ability. used for the starting price.’’ Highveld and not sufficient for the Department to Petitioners claim that the extensive states that to determine whether sales resort to facts available. See Notice of pattern of inaccuracies and omissions is are at different levels of trade, the Final Determination of Sales at Less evidence of Highveld’s failure to Department considers the stage in the Than Fair Value: Beryllium Metal and cooperate. Petitioners argue that given marketing process, taking into account High Beryllium Alloys From the the extensive deficiencies found with the class of customer, selling functions Republic of Kazakstan, 62 FR 2648, respect to nearly every major cost and and expenses associated with these 2650 (January 17, 1997) and Certain Cut- price adjustment, the Department functions. (See Antifriction Bearings To-Length Carbon Steel Plate from should assign Highveld an adverse facts (Other Than Tapered Roller Bearings) Germany: Final Results of Antidumping available margin based on the highest and Parts Thereof From France, Duty Administrative Review, 61 FR margin found for another producer or Germany, Italy, Japan, Singapore, and 13834 (March 28, 1996). To the extent the highest rate in the petition. the United Kingdom: Final Results of the Department finds errors or gaps in Antidumping Duty Administrative Highveld’s information, respondent DOC Position Reviews, 62 FR 2081, 2107 (January 15, argues, it should revise the data using We agree with respondent that the 1997) (Antifriction Bearings).) Highveld non-adverse facts available. final determination in this investigation then cites the statute at 19 U.S.C. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61745

1677b(a)(7)(A), which provides for a Petitioners support the Department’s Highveld notes petitioners’ CEP offset if there is a difference in level determination in the preliminary acknowledgment of differences between of trade between CEP versus EP, but the determination that a single level trade personnel training, and states that this data available do not provide an exists in both the home market and the difference should not be ignored appropriate basis to determine a level of U.S. market, and urges the Department because it is limited in scope. Highveld trade adjustment. to reach the same conclusion for the reiterates the additional differences in Highveld argues that record final determination. Petitioners state selling functions cited in the information demonstrates Highveld’s that neither difference in selling preliminary determination, and again home market sales are at a different, functions or customer descriptions are asks the Department to grant it a CEP more remote, level of trade than its U.S. alone sufficient to establish different offset. sales. Highveld claims its home market levels of trade. See Certain Welded Steel Petitioners counter that Highveld’s and U.S. sales are to a different class of Pipe and Tube from Turkey, 61 FR U.S. and home market sales are at the customer and that the selling functions 69067, 69068. Petitioners claim that the same level of trade and no CEP offset is performed are qualitatively and record in this review does not contain warranted. Petitioners dispute quantitatively different (see Highveld’s sufficient evidence of differentiated Highveld’s claim that its home market sales verification report, at pages 13, 23– selling functions to justify more than sales are more remote than its U.S. sales. 25). one level of trade. Petitioners point to Petitioners note that steel service Highveld posits the existence of four Highveld’s sales verification report, at centers and distributors are not marketing stages for the subject page 23, where the verifiers stated that necessarily at different stages in the merchandise: (1) Production; (2) Sale to selling functions were handled the same marketing process. Petitioners state that Distributor; (3) Sale to Steel Service by Highveld, regardless of their service centers are often themselves Center (SSC); and, (4) Sale to End-User. classification and that Highveld distributors and that no recorded Highveld claims that its home market differentiated selling functions based on evidence indicates a clear distinction sales are at stage 3—to SCCs. Highveld the quantity of the sale rather than the between service centers and other states that its U.S. CEP sales to Newco level of trade. Petitioners claim that distributors. According to petitioners, are at stage 2—to distributors. Highveld market research, technical advice, both distributors and service centers argues that since the selling functions of product development research, freight may sell to other distributors and the U.S. importer (Newco) are and delivery, quality assurance service centers or directly to end-users. accounted for by a deduction under programs, and production planning Petitioners claim that many of provision of the law, they cannot be were all performed in both markets. Highveld’s home market selling included in the level of trade analysis. Petitioners noted that the only selling activities do not appear to be tangible. (See 62 FR 27295, 27370 (May 19, 1997) function that appeared to be different Petitioners note that Highveld must do and Antifriction Bearings.) was personnel training, but that verifiers rolling planning on all sales, in order to Highveld alleges that it has an found this function to be very limited in maximize the efficient use of its mill. additional layer of selling activity in the scope (see Highveld’s sales verification Petitioners state that there is no record home market which is qualitatively and report). Petitioners acknowledge other evidence that just-in-time delivery plays quantitatively different and amounts to small differences (i.e., just-in-time any significant role in Highveld’s sales a different selling function. Highveld delivery and advertising) (Preliminary as it generally produces all sales to claims that in the home market, it Results at 62 FR 31966). Petitioners state order. Petitioners note that pricing performs the following sales activities— that none of these differences are supports are simply discounts and rolling planning, order status feedback, sufficient enough to justify differing rebates which are already taken into pricing support, extensive post-sale levels of trade, and that the Department account in the Department’s analysis, service, market research, technical should not grant a CEP offset. along with warranty expenses. advice, advertising, freight and delivery In response to petitioners’ comments Petitioners argue that the record does arrangements, quality control, quality Highveld continues to maintain that its not demonstrate that customer care assurance, organizations and home market sales are at a different, visits, market share research or liaison memberships and customer relations. more remote level of trade from its U.S. meetings result in any significant costs Highveld states that in the U.S. sales sales, and that the Department should or effort on Highveld’s part. Petitioners functions are limited to moderate post- grant a CEP offset. Highveld claims that note that Highveld acknowledges that it sales service, market discussions and petitioners do not dispute the fact that has after-sales service, freight and meetings, freight and delivery its home market and U.S. sales are at a delivery arrangements, market arrangement, quality control and quality different stage of the marketing process. discussion and liaison meetings, and assurance. Highveld cites the Highveld disputes petitioners’ claim quality control and assurance for sales Preliminary Results, 62 FR at 31965– that selling functions are the same in in both markets. In petitioners view, 31966 where the Department notes both markets. there is not a quantitative or qualitative several differences in selling functions Highveld notes that market research is difference in the selling functions for U.S. and home market sales. focused primarily on the home market, performed in the two markets and no Highveld cites the Department’s Final and that any comparable functions CEP offset should be granted. Rules, 62 FR 27295, 27371, where it performed by Newco would be excluded states, ‘‘[S]ubstantial differences in the from the level of trade analysis. With DOC Position amount of selling expenses associated respect to technical advice and product We agree in part with petitioners and with two groups of sales also development research, Highveld claims with Highveld. In determining whether demonstrates that the two groups are at that there are qualitative and separate levels of trade actually existed different levels of trade.’’ quantitative differences in the advice between the U.S. and home markets, we Highveld states that since the provided. Highveld states that U.S. examined Highveld’s marketing stages, Department cannot quantify whether production planning involves reviewing the chains of distribution and Highveld’s different levels of trade affect shipments planned well in advance, customer categories reported in the price comparability, the Department whereas home market planning entails home market and in the United States. should grant Highveld a CEP offset. more short-term demands and requests. Highveld argues that its sales in the 61746 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices home market are more remote and at a in preparation for visits from Highveld different chemical composition and different stage of the marketing process officials, joint customer calls made by mechanical properties, it requires from its sales in the United States. Highveld and Newco officials evaluate different costs of production. In While we agree with petitioners that further these conditions and findings. conclusion, Highveld reiterates that the Highveld’s distinction between SSCs We agree with petitioners that better model match is U.S. model A515/ and distributors is questionable, we do because most of Highveld’s sales 516 to the home market model 300WA. agree with Highveld that after Newco’s involve merchandise produced to order Petitioners did not comment on this selling functions are accounted for by a and not sold from inventory, just-in- issue. deduction under section 772 (d) of the time delivery is not a significant selling DOC Position Act, they cannot be included in the function attributable to sales in one level of trade analysis. market versus another. Regarding We disagree with respondents. In the With respect to the selling activities technical advise, although Newco is ‘‘Fair Value Comparisons’’ section of described by Highveld as representative responsible for providing initial support this notice we note that when making of the greater quantitative and to U.S. customers, Highveld provides product comparisons the Department qualitative selling functions associated any necessary back-up, if requested. uses the following criteria listed in with home market sales compared to We do acknowledge that there are order of preference: paint, quality, U.S. sales, many home market selling some minimal differences in selling specification and/or grade, heat functions, although greater in number, functions between the two markets. treatments, standard thickness, standard appear to be activities similar in nature These differences have not changed width, whether or not checkered, and to the selling functions associated with from the ones noted in our preliminary descaling. Based on the Department’s U.S. sales. In addition, some of the determination, although as petitioners model matching hierarchy, products of home market selling functions detailed note these services appear to be the same quality will be matched to one by Highveld do not characterize services relatively minimal and in our judgment another before being matched on the provided to customers. are not sufficient to warrant a difference basis of similar product specifications. In some instances the activities in LOT. For this final determination, we Consequently, this comment is moot, as characterized by Highveld as selling are finding that Highveld has a single changing the plate specification functions are more appropriately level of trade in both markets. weighting as advocated by respondents characterized as activities and functions Accordingly, we have not granted will not effect the results of the associated with production and Highveld a CEP offset for this final Department’s model match program. manufacturing processes. Rolling determination. planning, for example, is something Comment 25 Comment 24 Highveld conducts in order to maintain With regard to U.S. warranty expense, efficiency during production, and it is Highveld argues that the Department Highveld urges the Department to required for products sold in all inappropriately matched U.S. utilize the more precise percentage markets. Nor do we consider order specification A 515/516 Grade 70 to a calculated during the Sales Verification status feedback and the conveyance to less similar home market product. at Newco. According to respondent, at customers of the progress of particular Highveld notes the Department’s model the start of verification, Highveld orders to be a selling function. In any matching program did not match the presented a percentage that it had case, these services are provided to U.S. product with the home market calculated as the cost of ‘‘returns’’ (the customers in both markets. product deemed by Highveld to be the cost to Newco of remedying defective With respect to pricing supports, such closest match (SABS 1431 300WA). merchandise, similar to warranty as discounts and rebates, these are Highveld states that even though the claims). However, Highveld observes already accounted for in the calculation SABS 1431 300WA is the best match that verifiers decided that this of NV, and we do not consider them to with the U.S. model, in terms of calculation was not specific enough and be distinct selling functions which are physical properties such as mechanical spent considerable time and effort to relevant to our level of trade analysis. properties and chemical composition, recalculate a more specific percentage Neither do various home market the model match program automatically (see Highveld’s sales verification report, organizations and memberships to discounted that model because it is at page 59). It is this more specific rate which Highveld belongs and makes classified as structural quality. Instead, that Highveld asks the Department to contributions and payments to relate to according to Highveld, the Department’s use to calculate the U.S. warranty services provided to customers per se. model match scenario chose a home expense for the final determination. A number of other selling functions market specification of BS 1501 151 Petitioners state that previously are provided to customers in both 430A as a best match because this unreported returns of merchandise markets. These include efforts to meet specification is classified as the same should be deducted from CEP as a customer delivery schedules, freight pressure vessel quality as the U.S. warranty expense. Petitioners separately arrangement and delivery services, and model. Highveld cites the Sales argue that another previously quality assurance and control (including Verification Exhibit 9 where evidence is unreported warranty expense should be line inspection and material testing and submitted that states that 300WA and subtracted from CEP. certification). Highveld performs A515/516 tend to be higher strength In response to petitioners’ comments, functions relating to market discussions with regard to ultimate tensile strength Highveld reiterates that the more precise and research, and customer liaison and yield strength. Highveld claims that warranty allocation calculated at meetings in both markets. Although the 430A is a much softer steel than the verification should be used in the final Highveld officials have less opportunity U.S. model; that 300WA and A515/516 determination. to physically meet with U.S. customers may be rolled from the same plate but than with those in the home market, 430A may not; and that the mechanical DOC Position they nonetheless do so regularly during and chemical similarities between the We disagree with respondents. each year. While Newco is responsible 300WA and the A515/516 translate into Although Highveld provided for conducting initial U.S. market cost and value similarities. Highveld documentation at verification which it research concerning market conditions states that since the 430A requires a indicated was a more precise Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61747 determination of U.S. warranty (see Highveld’s sales verification we have determined that Highveld expenses (see Highveld’s sales report). failed to cooperate by not acting to the verification report, at pages 58–59), the Highveld states that it has included best of its ability to comply with a Department also found certain this information in its revised database, request for information. See Pasta. unreported claims and credits relating and that these charges should be Consequently, the use of adverse facts to sales of subject merchandise. Because deducted from CEP. available under section 776(b) of the Act we are not confident that the amount DOC Position is warranted. As adverse facts available, Highveld contends is the more precise we are using the highest calculated non- amount includes all claims which We agree with both parties and have aberational margin for individual sales should have been reported to the made this change for the final of respondent in this investigation. See Department as U.S. warranty expenses, determination. Analysis Memo, dated October 24, 1997. we are continuing to use the percentage Comment 28 presented to us at the start of Comment 29 verification as the cost of ‘‘returns’’ for Petitioners state that Highveld failed Petitioners state that marine insurance this expense in the final determination. to report certain U.S. sales of subject on U.S. sales was incorrectly reported (See Analysis Memo, dated October 24, merchandise (see Highveld’s sales (see Highveld’s sales verification report, 1997.) verification report, at page 31). at page 38). Petitioners claim that since Petitioners note that the Court of it is not possible to understand whether Comment 26 International Trade has found that the this miscalculation occurred in all sales Petitioners note that the Department ‘‘capture of all U.S. sales at their actual or just those verified, the Department found unreported port of entry and exit prices is at the heart of the Department’s should increase all reported marine survey charges at the U.S. verification of investigation,’’ and that the omission of insurance by the percentage verified as Newco. Petitioners state that these even one U.S. sales is a ‘‘serious error.’’ facts available. charges are paid by Newco and passed See Florex v. United States, 705 F. Highveld counters that the deduction on to the customers and they should be Supp. 582, 588 (CIT 1988) and Persico for marine insurance should not be deducted from U.S. price as a direct Pizzamiglio v. United States, 16 CIT 299 based on facts available as the selling expense. Petitioners argue that (1994). Petitioners state that these Department only found that the reported since these charges have not been missing sales must be included in the amount of marine insurance for one included in the computer sales listing, final determination, and that if the shipment had been under-reported by a the Department should apply facts Department does not have detailed sales very small amount and marine available to this adjustment. See 19 data for these missing sales on the insurance was correctly reported for U.S.C. 1677e and 1677m. Petitioners record, it must resort to facts available. other transactions. Highveld states that argue that the Department should use Highveld notes that there was no the Department should add the the highest survey rates found for any significant failure to report U.S. sales. corrected amount (38 cents) to marine sale as identified in the Highveld’s sales Highveld states that Newco manually insurance for all invoices affected by the verification report. identified sales of subject merchandise one misreported shipment, but Highveld notes that it has submitted and missed several small sales. otherwise use Highveld’s reported data. a revised database including these Highveld argues that this error is minor charges and that these charges apply to (less than one percent of Highveld’s U.S. DOC Position CEP sales. Highveld states that these sales) and will not distort the We agree with Highveld and have charges do not apply to EP sales. antidumping calculation. Highveld made this correction for our final Highveld argues that the Department further argues that with one minor determination. requested this data and the use of facts exception these sales are the same available for these charges is not merchandise at the same prices as other Comment 30 appropriate. sales analyzed by the Department and Petitioners claim that Highveld did urges the Department to exclude these not correctly report the merchandise DOC Position sales from its antidumping analysis. processing fee portion of U.S. import We agree with respondent. It is true DOC Position duties. They state that the processing that the Department found unreported fees should be changed to the correct port of entry and exit survey charges at We agree with petitioners and have amount as verified, and the corrected the U.S. verification of Newco. These included these unreported sales in our USDTYU factors of 5.7359 percent and charges are paid by Newco and passed analysis for the final determination. As 5.135 percent should be applied to 1995 on to the customers and they should be the Department does not have detailed, and 1996 sales respectively. deducted from U.S. price as a direct verified sales data for these missing Highveld agrees that the Department selling expense. These charges have sales on the record, it is using facts should correct this error. However, been included in Highveld’s latest available for this portion of the final Highveld states that the correct factor submission and we have used determination. We fully agree with the for 1995 is 5.735 percent. Highveld’s submitted port of exit and finding of the Court of International entry survey charges for the final Trade that the ‘‘capture of all U.S. sales DOC Position determination. at their actual prices is at the heart of We agree with both parties and have the Department’s investigation.’’ See included the corrected U.S. duty Comment 27 Florex v. United States, 705 F. Supp. amounts submitted by Highveld in its Petitioners claim that Highveld failed 582, 588 (CIT 1988) and Persico revised sales listing for the final to report stevedoring and wharfage Pizzamiglio v. United States, 16 CIT 299 determination. charges in its sales listing, but reported (1994). It is essential that respondents them separately. Petitioners argue that fully report this information to the Comment 31 these fees must be subtracted from the Department. By not providing complete Petitioners claim that the interest rate CEP for the final determination, taking information for U.S. sales when such used to calculate credit expense on CEP into account the fees that were verified information was available to Highveld, sales through Newco is incorrect. 61748 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Petitioners state that Newco used a Department changes its treatment of this verification that its payment simple average of the applicable interest expense in the final determination it methodology is reflective of actual dates rates rather than a weighted average must ensure that this expense is treated of payment. There is no evidence on the interest rate, and used initial rates of in a neutral manner to reflect the fact record to suggest that payment is only interest for a particular loan, regardless that it is an expense incurred for both made at the end of the month. of whether or not the rates fluctuated home market and U.S. sales. Additionally, the Department notes that (see Highveld’s sales verification report, DOC Position even using Highveld’s reported at pages 38–40 ). For these reasons, methodology there are disprepancies petitioners believe that the Department We agree with petitioners. We have with Highveld’s reported credit should use the highest rate reported for reviewed the RSC levy since our expenses and those calculated by the any loan as the interest rate applied to preliminary determination and found, Department. A single example of this the credit expense calculation for all as Highveld itself indicated in its April was described in the verification report. CEP sales. 7, 1997, submission, that this levy However, a review of verification Highveld claims that the Department represents a turnover tax applied to net exhibits and other reported observations exhaustively verified the interest rate sales, regardless of whether the in Highveld’s database indicates that used to calculate CEP interest expenses. merchandise was sold for the export or there were in fact pervasive While Highveld continues to argue that local market. Since the levy is not discrepancies, some of which were its methodology is reasonable, it notes rebated and it is collected on export minor. For this final determination, as that based on information on the record, sales, it does not qualify as a deduction facts available, the Department has the Department could construct a from NV under section 773(a)(6)(B) of calculated the actual home market weighted average interest rate. the Act. Therefore, for the final credit expense for the limited number of determination we have not adjusted NV DOC Position observations for which actual date of or U.S. price for the RSC levy. payment information was supplied. We agree with petitioners. The This expense was compared to the methodology used by respondent does Comment 33 reported expense and we calculated an not accurately reflect Newco’s cost of Petitioners state that Highveld average percentage difference. We have borrowing. Nor does the Department overstated home market credit expenses adjusted all reported home market have complete documentation on all (see Highveld’s sales verification report, credit expenses downward by this interest rates where these rates at pages 43–44). Petitioners note that percentage difference. fluctuated. Even if the Department did Highveld reported payment dates as the have complete information, it is not the last day of the month, irrespective of the Highveld should have developed a Department’s responsibility to make actual date of payment. Petitioners state verifiable methodology for reporting extensive revisions to submitted that since the Department is unable to date of payment or alternatively chosen information. By not providing verifiable verify the accuracy of the home market a conservative methodology for information for U.S. interest rates when credit expense and has found reporting these dates. See Certain Cut- such information was available to inaccuracies in the reported amounts To-Length Carbon Steel Plate From Highveld, we have determined that using Highveld’s methodology, the Germany, 61 FR 13834, 13841 (March Highveld failed to cooperate by not Department should not adjust normal 28, 1996). By not providing verifiable acting to the best of its ability to comply value for such a credit expense. information for home market credit with a request for information. See Petitioners further state that if the expenses when such information was Pasta. Consequently, the use of adverse Department decides to make the available to Highveld, we have facts available under section 776(b) of adjustment, it should recalculate the determined that Highveld failed to the Act is warranted. As facts available adjustment correctly and reduce the cooperate by not acting to the best of its the Department is recalculating payment period by 30 days for all home ability to comply with a request for Highveld’s credit expenses using the market sales before performing the information. See Pasta. Consequently, highest interest rate reported for any credit expense calculation. the use of adverse facts available under loan for all CEP sales. Highveld claims that it properly section 776(b) of the Act is warranted. reported home market credit expenses. Comment 34 Comment 32 Highveld notes that the Department Petitioners state that the Department found a single calculation error which Petitioners stated that errors in the should not subtract the Regional was attributable to the calculation of reported inland freight were discovered Services Council (RSC) levy from credit expense on the invoice amount at verification (Highveld’s sales normal value as this tax is not solely due, not including a subsequently paid verification report, at pages 44, 53). rebated or not collected on exports. (See rebate. Highveld states that payment can Petitioners explain that these errors 19 U.S.C. 1677(a)(6)(B)(iii).) Highveld be received before or after the reported included miscalculations and freight indicates, according to petitioners, that payment date. Highveld explains that markups by Highveld. Petitioners this levy is placed on net sales of the customers tend to pay as late as contend that the Department should not company, whether or not the possible, making Highveld’s adjust normal value for home market merchandise was sold domestically or methodology a conservative one. freight expenses since there are obvious exported to another country. Petitioners Highveld reiterates that it has reported flaws in the reported data. Petitioners argue that if the Department continues the only payment date recorded in its state that if the Department does adjust to regard this levy as a direct selling accounting system, and urges the normal value, it should first reduce expense, then the Department should Department to use its reported home reported freight expenses on home make a circumstance of sale adjustment market credit expense, with the single market sales by multiplying the to add back the amount of tax collected exception noted above. correction value to account for on the U.S. sales. calculation inaccuracies, as well as Highveld responds that the deduction DOC Position multiply by the correction value to from normal value for the RSC levy is We agree in part with petitioners. account for the markup of freight appropriate. Highveld argues that if the Highveld did not demonstrate at charges. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61749

Highveld counters that inland freight discrepancies related to canceled sales, verifiers found that stevedoring and was not misreported. Highveld states but states that the Department verified total handling and brokerage was that the Department discovered a single that the amounts otherwise reported for understated. Petitioners explain that error in home market inland freight. this rebate were accurate. Highveld verifiers also discovered that the With respect to markup charges, urges the Department to use Highveld’s shipping rates reported by Highveld Highveld notes that these charges only reported data for this variable for the were inaccurate (Highveld’s sales apply to road haulage, not to all sales. final determination, but agrees that the verification report, at page 54). Highveld claims that this percentage is Department may exclude those sales Petitioners state that the highest an element of its accounting system, where the amounts of REBATE2H reported rate for any sale for each charge designed to capture actual expenses approximate gross unit price. should be used to calculate the (such as miscellaneous shipping fees adjustment as facts available. like waiting charges) and was not DOC Position Highveld maintains that handling and created for this investigation. Highveld We agree with both parties that we brokerage charges on U.S. sales were urges the Department to correct the should exclude for the final properly calculated. Highveld claims single error and otherwise use its determination those home market sales that the discrepancies identified at reported home market inland foreign where the amounts of REBATE2H verification apply only to specific expenses. approximate gross unit price. We note shipments, not to all shipments. that the discrepancies found by the Highveld notes that the discrepancy DOC Position Department at verification pertain to amounts to less than a rand per ton and We agree with respondents. Although these sales that we are excluding. that argues that the Department should petitioners are correct in noting that Consequently, we do not agree with make the corrections described in the during verification we found an error in petitioners’ argument that this rebate verification report, and otherwise use one of the calculated inland freight should be disallowed for other home Highveld’s reported handling and expenses, we also found instances market sales. brokerage charges. where the expense was reported correctly. Upon review of the Comment 36 DOC Position verification exhibits and the markup Petitioners note that the Department We agree with both petitioners and charges referred to petitioners, we agree found errors in the tonnages used to respondent in part. For the final with Highveld that these charges only calculate the data reported in the determination we are using the reported apply to road haulage, and not to all REBATE8H field (Highveld’s sales and brokerage and handling expenses sales, and that it is captured as an actual verification report, at page 51). for one shipment involving certain sales expense in its normal course of Petitioners state that since the which we found at verification to be business. As a result, we are correcting Department could not verify the correct. For a second shipment, we are the error referred to above and allowing accuracy of REBATE8H, it should not be correcting the expenses reported for all other home market inland freight used as an adjustment to normal value. certain sales which we found at charges as reported. However, petitioners state that the verification involved only minor corrections (see Highveld’s sales Comment 35 Department should use the reported REBATE8H as a deduction to price verification report, at pages 53–54). For Petitioners note that Highveld was when doing the cost/price comparison. a third shipment we examined, we unable to exclude returns from its home Highveld argues that the Department found extensive inaccuracies. Because market data. However, Highveld was should not deny it an adjustment for we are unable to determine the full able to report the refunded amount for this rebate. Highveld claims that the extent of the other inaccuracies found such sales in REBATE2H field. At tonnage discrepancy was insignificant. for other shipments, we are applying the verification, the Department discovered Highveld explains that the reason for highest reported brokerage and handling that in several instances the amount this difference was that the tonnage expense for any U.S. sale to this third reported in REBATE2H field did not used in the calculation of this rebate shipment and the remaining U.S. comply with those of the company’s was based on the original sales shipments. See Analysis Memo, dated record keeping system. Therefore, submission, prior to the exclusion of October 24, 1997. By not providing petitioners contend that the Department certain sales at the request of the verifiable information for brokerage and should not reduce the home market Department. handling expenses when such price by REBATE2H when calculating information was available to Highveld, normal value. Additionally, petitioners DOC Position we have determined that Highveld state that for cases where the We agree with respondent. We failed to cooperate by not acting to the REBATE2H field approximates gross determined that the methodology used best of its ability to comply with a unit price, the sale should be thrown to calculate the per customer amounts of request for information. See Pasta. out of the data pool since a rebate that the rebate was reasonable. As described Consequently, the use of adverse facts large would signify that most, if not all, in the sales verification report, the available under section 776(b) of the Act of the sale had been returned or discrepancy identified was small, and is warranted. canceled. there is no evidence that it affected the Highveld argues that REBATE2H calculation of this rebate. Therefore, for Comment 38 should be granted in the calculation of the final determination we are allowing Petitioners contend that the normal value. Highveld states that the reported amounts for REBATE8H as Department should use facts available where the amounts of the rebate adjustments to NV. for U.S. credit expenses because approximate gross unit price, the verifiers found that the U.S. sales trace’s amounts were reported as negatives and Comment 37 credit expense was understated the sale was effectively netted out. With Petitioners contend that the (Highveld’s sales verification report, at respect to petitioners’ claim that this Department should use facts available page 57). rebate was misreported, Highveld for all handling and brokerage charges Highveld claims that its U.S. credit acknowledges that there were a few on U.S. sales. Petitioners note that expenses were properly calculated. 61750 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Highveld acknowledges that credit expenses. Neither was it able to provide absorbing the cost of the payment as expenses were understated for one U.S. any documentation to support its part of the total price of the steel. EP sale, but argues that there is no claimed expenses. Because we were DOC Position evidence that credit expenses for other unable to verify this estimated U.S. sales were misreported. Highveld information, we are denying home We agree with petitioners. As states that the Department should market packing expenses as an Highveld’s sales verification report and correct the single error discovered at adjustment to NV. exhibit 24 indicate, the RSPCC levy is verification, but otherwise use assessed as a fee based on the quantity Comment 40 Highveld’s reported data. of sales. The amount of the levy is paid Petitioners argue that Highveld is not monthly to a fund to which Highveld DOC Position entitled to a deduction from normal voluntarily is a member. The purpose of We disagree with both petitioners and value for the RSPCC levy. In petitioners’ the fund is to promote the export sales respondent. For the two EP sales view, this payment is essentially a of steel produced in the local market. examined at verification, one overstated payment of dues to a voluntary Highveld claims that it gains benefits U.S. credit expense and the other sale organization. Petitioners argue that this from belonging to the fund by way of understated this expense; on average levy is not a tax, and that the only increased home market sales. However, Highveld has overstated these expenses. provision under which this adjustment even if these claims are true, we do not Consequently, for this final could be made would be as a consider this evidence of the value determination we are revising reported circumstances of sale adjustment. gained by purchasers of products credit expense for these two sales and However, petitioners claim, it would not subject to this investigation. As are otherwise using the reported credit be appropriate to make a circumstances petitioners correctly point out, the expenses. of sale adjustment for this levy as RSCPP levy appears to represent a adjustments under this provision are function of the relationship between Comment 39 limited to expenses that are bona fide Highveld and the organization to which Petitioners claim that Highveld did circumstances of sale and bear a direct the levy payments are made, rather than not report accurate data for its home relationship to the sale. Petitioners note of the relationship between Highveld market and U.S. packing expenses that with respect to credit, warranties or and purchasers of subject merchandise. (Highveld’s sales verification report, at technical assistance the seller is We do not believe this to be a pages 62–63). According to petitioners, conveying to the purchase something of characteristic of a direct selling expense. packing materials costs were not value. See Certain Welded Carbon Steel Therefore, for purposes of the final quantified, no accurate information on Pipe and Tubes from India, 56 FR determination, we have not deducted labor and overhead was supplied, and 64753, 64757 (December 12, 1991); see Highveld’s home market payments of all figures were based on estimates also Mantex v. United States, 841 F. the levy from NV. provided by management of the Supp 1290, 1302–3 (CIT 1993). Comment 41 company. Petitioners cite 19 U.S.C. Petitioners argue that the RSPCC levy 1677m(i) and state that the estimates of does not convey any value to the Petitioners claim that the Department the management cannot be empirically purchaser of the steel product, and that made a clerical error in the preliminary tested and thus, the data is unverified. the levy is not a function of the buyer- determination regarding the calculation Petitioners also cite 19 U.S.C. 1677e that seller relationship at all, but is a of CEP. According to petitioners, the states that since the necessary function of the relationship between the Department intended to deduct indirect information is not on the record or seller and the South African Steel selling expenses incurred in South cannot be verified, the Department Association. Petitioners claim that the Africa converted from rand to U.S. should use facts available. Petitioners levy is neither a circumstance of the sale dollars, but did not do so. suggest that as facts available, the nor directly related to the sale, and Highveld takes issue with petitioners Department did not adjust the normal question the existence of any evidence suggestion. Highveld rejects the value for home market packing and of a causal link between the levy and argument that the Department should create a U.S. packing expense by home market prices. deduct expenses from normal value inflating the packing material cost Highveld maintains that it is entitled after conversion into a dollar amount. reported for U.S. sales by the average to a deduction from normal value for the Highveld also rejects the argument that ratio of all transformation and overhead RSPCC payment as a direct selling indirect selling expenses incurred in the costs to all material costs. expense. Highveld argues that this home market should be deducted from Highveld claims that its packing payment is directly related to sales as CEP. Highveld notes that the expenses were calculated in a the amount of the payment is calculated Department only deducts from CEP reasonable manner. Highveld states that based on the value of local sales. While those indirect selling expenses its accounting system does not account admitting that payment of the RSPCC is associated with a sale to an unaffiliated for separate expense categories under voluntary, Highveld states that it customer in the United States. Highveld packaging material. Highveld states that benefits from the RSPCC payment in the states that the expenses at issue were it provided a reasonable estimate of form of increased home market steel incurred for activities performed packing materials cost and the sales and that steel purchasers also exclusively in South Africa, are general Department should use this information receive benefits from RSPCC programs. in nature, and are incurred for all export rather than resort to facts available for Highveld claims that this payment does sales. Because these expenses do not the final determination. bear a causal relationship to the sale as specifically relate to U.S. commercial Highveld would not make the payment activity, Highveld claims they were DOC Position in the absence of home market sales. properly not deducted. See Calcium We agree with petitioners. At Highveld maintains that it is not Aluminate Flux From France: verification we found that Highveld was necessary to demonstrate a causal effect Preliminary Results of Antidumping unable to provide an explanation for the on prices for the Department to accept Duty Administrative Review, 61 FR estimated and average costs used to a direct selling expense and that there 40396, 40397 (August 2, 1996). calculate home market and U.S. packing is a presumption that the customer is Highveld adds that to the extent that Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61751 some portion of these general expenses are causing material injury, or threat of Commission (ITC) notified the might be broadly attributable to U.S. material injury, to an industry in the Department of its affirmative sales, they would only relate to the sale United States. If the ITC’s injury preliminary injury determination (see by Highveld to Newco and are, determination is negative, the agreement ITC Investigation Nos. 731–TA–753– therefore, not expenses attributable to will have no force or effect, and the 756). On June 2, 1996, the Department the sale to the unaffiliated purchaser. investigation will be terminated (see preliminarily determined that CTL plate is being, or is likely to be, sold in the DOC Position section 734(f)(3)(A) of the Act). If the ITC’s determination is affirmative, the United States at less than fair value We agree with respondents. The Department will not issue an (LTFV), as provided in section 733 of Department only deducts indirect antidumping duty order as long as the the Tariff Act of 1930, as amended by selling expenses incurred in the country suspension agreement remains in force the Uruguay Round Agreements Act (62 of manufacture which are specifically (see section 734(f)(3)(B) of the Act). FR 31967 (June 11, 1997)). related to commercial activity in the This determination is published The Department and Iscor and United States. (See Calcium Aluminate pursuant to section 735(d) of the Act. Highveld initialed a proposed Flux From France: Preliminary Results Dated: October 24, 1997. agreement suspending this investigation of Antidumping Duty Administrative on September 25, 1997. On September Robert S. LaRussa, Review, 61 FR 40396, 40397 (August 2, 26, 1997, we invited interested parties 1996).) At verification, we found that Assistant Secretary for Import to provide written comments on the Administration. the expenses at issue were general in agreement and received comments from nature and did not relate specifically to [FR Doc. 97–30389 Filed 11–18–97; 8:45 am] Geneva Steel, Gulf States Steel, Iscor U.S. commercial activity. Therefore, BILLING CODE 3510±DS±P and Highveld. consistent with our preliminary The Department and Iscor and determination, we did not deduct these Highveld signed the final suspension DEPARTMENT OF COMMERCE expenses from CEP for the final agreement on October 24, 1997. determination. [A±791±804] Scope of Investigation Suspension of Liquidation Suspension of Antidumping Duty See Notice of Final Determination of On October 24, 1997, the Department Investigation: Certain Cut-to-Length Sales at Less Than Fair Value: Certain signed a suspension agreement with Carbon Steel Plate From South Africa Cut-to-Length Carbon Steel Plate from Iscor and Highveld suspending this South Africa, signed October 24, 1997. investigation. Pursuant to section AGENCY: Import Administration, 734(f)(2)(A) of the Act, we are International Trade Administration, Suspension of Investigation instructing Customs to terminate the Department of Commerce. The Department consulted with the suspension of liquidation of all entries SUMMARY: The Department of Commerce parties to the proceeding and has of cut-to-length carbon steel plate from (the Department) has suspended the considered the comments submitted South Africa. Any cash deposits of antidumping duty investigation with respect to the proposed suspension entries of cut-to-length carbon steel involving certain cut-to-length carbon agreement. In accordance with Section plate from South Africa shall be steel plate (CTL plate) from South 734(b) of the Act, we have determined refunded and any bonds shall be Africa. The basis for this action is an that the agreement will completely released. agreement between the Department and eliminate sales at less than fair value, On October 14, 1997, we received a Iscor Ltd. (Iscor) and Highveld Steel and that the agreement is in the public request from petitioners requesting that Vanadium Corporation Ltd. (Highveld) interest, and that the agreement can be we continue the investigation. We to revise their prices to eliminate monitored effectively. See Public received a separate request for completely sales of this merchandise to Interest Memorandum, October 24, continuation from the United the United States at less than fair value. 1997. We find, therefore, that the Steelworkers of America, an interested criteria for suspension of an EFFECTIVE DATE: October 24, 1997. party under section 771(9)(D) of the Act investigation pursuant to section 734(b) on October 15, 1997. Pursuant to these FOR FURTHER INFORMATION CONTACT: of the Act have been met. The terms and requests, we have continued and Charles Rast, Nancy Decker, or Linda conditions of this agreement, signed completed the investigation in Ludwig, Office of AD/CVD Enforcement October 24, 1997, are set forth in Annex accordance with section 734(g) of Act. III, Import Administration, International 1 to this notice. We have found the following margins of Trade Administration, U.S. Department Pursuant to section 734(f)(2)(A) of the dumping: of Commerce, 14th & Constitution Act, the suspension of liquidation of all Avenue N.W., Washington, D.C. 20230; entries of cut-to-length carbon steel Weight- telephone (202) 482–5811, (202) 482– plate from South Africa entered or average 0196, or (202) 482–3833, respectively. Manufacturer/producer/exporter margin withdrawn from warehouse, for percent- SUPPLEMENTARY INFORMATION: consumption, as directed in our Notice age of Preliminary Determination of Sales at Background Less Than Fair Value and Postponement Highveld ...... 26.01 On December 3, 1996, the Department of Final Determination: Certain Cut-to- Iscor ...... 50.87 initiated an antidumping investigation Length Carbon Steel Plate From South All Other ...... 38.36 under section 732 of the Tariff Act of Africa is hereby terminated. Any cash 1930, (the Act), as amended, to deposits on entries of cut-to-length ITC Notification determine whether imports of CTL plate carbon steel plate from South Africa In accordance with section 735(d) of from South Africa are being or are likely pursuant to that suspension of the Act, we have notified the ITC of our to be sold in the United States at less liquidation shall be refunded and any determination. As our determination is than fair value (61 FR 64051 (December bonds shall be released. affirmative, the ITC will determine, 3, 1996)). On December 19, 1996, the On October 14, 1997 we received a within 45 days, whether these imports United States International Trade request from petitioners requesting that 61752 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices we continue the investigation. We nonrectangular cross-section where such not to sell its merchandise subject to the received separate requests from the cross-section is achieved subsequent to the Agreement to any unaffiliated purchaser in United Steelworkers of America, rolling process (i.e., products which have the United States at prices that are less than Bethlehem Steel Corp., and U.S. Steel been ‘‘worked after rolling’’)—for example, the NV of the merchandise, as determined by products which have been beveled or the Department on the basis of information Corp. (a unit of USX Corporation), rounded at the edges. This merchandise is submitted to the Department not later than interested parties under section currently classified in the Harmonized Tariff the dates specified in section D of the 771(9)(D) of the Act. Pursuant to these Schedule of the United States (HTS) under Agreement and provided to parties not later requests, we have completed the item numbers 7208.40.3030, 7208.40.3060, than December 10, March 10, June 10, and investigation in accordance with section 7208.51.0030, 7208.51.0045, 7208.51.0060, September 10 of each year. This NV shall 734(g) of the Act, and have notified the 7208.52.0000, 7208.53.0000, 7208.90.0000, apply to sales occurring during the fiscal International Trade Commission (ITC) of 7210.70.3000, 7210.90.9000, 7211.13.0000, quarter beginning on the first day of the our determination. If the ITC’s injury 7211.14.0030, 7211.14.0045, 7211.90.0000, month following the date the Department provides the NV, as stated in this paragraph. determination is negative, the agreement 7212.40.1000, 7212.40.5000, 7212.50.0000. Excluded from subject merchandise within (D) Monitoring will have no force or effect, and the the scope of this agreement is grade X–70 investigation will be terminated (see plate. Although the HTS subheadings are Each signatory producer/exporter will section 734(f)(3)(A) of the Act). If the provided for convenience and customs supply to the Department all information that ITC’s determination is affirmative, the purposes, our written description of the the Department decides is necessary to Department will not issue an scope of this Agreement is dispositive. ensure that the producer/exporter is in full antidumping duty order as long as the compliance with the terms of the Agreement. (B) U.S. Import Coverage As explained below, the Department will suspension agreement remains in force The signatory producers/exporters provide each signatory producer/exporter a (see section 734(f)(3)(B) of the Act). detailed request for information and This notice is published pursuant to collectively are the producers and exporters in the Republic of South Africa that, during prescribe a required format and method of section 734(f)(1)(A) of the Act. the antidumping investigation on the data compilation, not later than the Dated: November 7, 1997. merchandise subject to the Agreement, beginning of each reporting period. Robert S. LaRussa, accounted for substantially all (not less than (1) Sales Information Assistant Secretary for Import 85 percent) of the subject merchandise The Department will require each Administration. imported into the United States, as provided producer/exporter to report, on computer in the Department’s regulations. The tape in the prescribed format and using the Appendix 1—Suspension Agreement Cut-to- Department may at any time during the prescribed method of data compilation, each Length Carbon Steel Plate From the Republic period of the Agreement require additional sale of the merchandise subject to the South Africa producers/exporters in the Republic of South Agreement, either directly or indirectly to Under section 734(b) of the Tariff Act of Africa to sign the Agreement in order to unaffiliated purchasers in the United States, 1930, as amended (19 U.S.C. 1673c(b)) (the ensure that not less than substantially all including each adjustment applicable to each Act), and 19 CFR 353.18, the U.S. imports into the United States are covered by sale, as specified by the Department. Department of Commerce (the Department) the Agreement. The first report of sales data shall be and the signatory producers/exporters of cut- In reviewing the operation of the submitted to the Department, on computer to-length carbon steel plate from the Republic Agreement for the purpose of determining tape in the prescribed format and using the of South Africa enter into this suspension whether this Agreement has been violated or prescribed method of data compilation, not agreement (the Agreement). On the basis of is no longer in the public interest, the later than January 31, 1998, and shall contain this suspension agreement, the Department Department will consider imports into the the specified sales information covering the shall suspend its antidumping investigation United States from all sources of the period October 24, 1997, to December 31, initiated on December 3, 1996 (61 FR 64051), merchandise described in Section A of the 1997. Subsequent reports of sales data shall with respect to cut-to-length carbon steel Agreement. For this purpose, the Department be submitted to the Department not later than plate from the Republic of South Africa, will consider factors including, but not January 31, April 30, July 31, and October 31 subject to the terms and provisions forth limited to, the following: volume of trade, of each year, and each report shall contain below. pattern of trade, whether or not the reseller the specified sales information for the is an original equipment manufacturer, and quarterly period ending one month prior to (A) Product Coverage the reseller’s export price (EP). the due date, except that if the Department The merchandise subject to this Agreement (C) Basis of the Agreement receives information that a possible violation is the following merchandise which has the of the Agreement may have occurred, the Republic of South Africa as its origin: On and after the effective date of the Department may request sales data on a (1) For purposes of the Agreement, cut-to- Agreement, each signatory producer/exporter monthly, rather than quarterly basis. length carbon steel plate includes hot-rolled individually agrees to make any necessary iron and non-alloy steel universal mill plates price revisions to eliminate completely any (2) Cost Information (i.e., flat-rolled products rolled on four faces amount by which the normal value (NV) of Producer/exporters must request NVs for or in a closed box pass, of a width exceeding this merchandise exceeds the U.S. price of its all subject merchandise that will be sold in 150 mm but not exceeding 1250 mm and of merchandise subject to the Agreement. For the United States. For those products which a thickness of not less than 4 mm, not in coils this purpose, the Department will determine the producer/exporter is requesting NVs, the and without patterns in relief), of rectangular the NV in accordance with section 773(e) of Department will require each producer/ shape, neither clad, plated nor coated with the Act and U.S. price in accordance with exporter to report: their actual cost of metal, whether or not painted, varnished, or section 772 of the Act. manufacturing; selling, general and coated with plastics or other nonmetallic (1) For all sales occurring on and after the administrative (SG&A) expenses; and profit substances; and certain iron and non-alloy effective date of the Agreement through data on a quarterly basis, in the prescribed steel flat-rolled products not in coils, of March 31, 1998 (interim period), each format and using the prescribed method of rectangular shape, hot-rolled, neither clad, signatory producer/exporter agrees not to sell data compilation. As indicated in Appendix plated, nor coated with metal, whether or not its merchandise subject to the Agreement to B, profit will be reported by the producers/ painted, varnished, or coated with plastics or unaffiliated purchasers in the United States exporters on a quarterly basis. Each such other nonmetallic substances, 4.75 mm or at prices that are less than its NV, as producer/exporter also must report more in thickness and of a width which determined by the Department, and provided anticipated increases in production costs and exceeds 150 mm and measures at least twice to parties not later than November 7, 1997; may report anticipated decreases in the thickness. and production costs in the quarter in which the (2) Included as subject merchandise in this (2) For all sales occurring on and after information is submitted resulting from Agreement are flat-rolled products of April 1, 1998, each producer/exporter agrees factors such as anticipated changes in Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61753 production yield, changes in production and timely fashion or is not fully verifiable, merchandise is sold by the producer or process, changes in production quantities or the Department may calculate normal value, exporter to the first unaffiliated person in the changes in production facilities. NV, and/or U.S. price based on facts United States, including the amount of any The first report of cost data for the post- otherwise available, as it determines discounts, rebates, price protection or ship interim period shall be submitted to the appropriate, unless the Department and debit adjustments, and other adjustments Department not later than January 20, 1998, determines that Section F applies. affecting the net amount paid or to be paid and shall contain the specified cost data by the unaffiliated purchaser, as determined covering the period October 1, 1997, through (E) Disclosure and Comment by the Department under section 772 of the December 31, 1997. Each subsequent report (1) The Department may make available to Act. shall be submitted to the Department not representatives of each domestic party to the (2) NORMAL VALUE—means the later than January 20, April 20, July 20, and proceeding, under appropriately drawn constructed value (CV) of the merchandise, October 20 of each year, and each report shall administrative protective orders, business as determined by the Department under contain specified information for the quarter proprietary information submitted to the section 773 of the Act and the corresponding ending one month prior to the due date. Department during reporting period as well sections of the Department’s regulations, and (3) Special Adjustment of Normal Value as the results of its analysis under section as adjusted in accordance with Appendix A 773 of the Act. to this Agreement. If the Department determines that the NV (2) Not later than February 20, May 20, (3) PRODUCER/EXPORTER—means (1) the it determined for a previous quarter was August 20, and November 20 of each year, foreign manufacturer or producer, (2) the erroneous because the reported costs for that the Department will disclose to each foreign producer or reseller which also period were inaccurate or incomplete, or for producer/exporter the results and the exports, and (3) the affiliated person by any other reason, the Department may adjust methodology of the Department’s whom or for whose account the merchandise NV in a subsequent period or periods, unless calculations of its NV. At that time, the is imported into the United States, as defined the Department determines that Section F of Department may also make available such in section 771(28) of the Act. the Agreement applies. information to the domestic parties to the (4) DATE OF SALE—means normally the (4) Verification proceeding, in accordance with this section. date of the invoice as recorded in the Each producer/exporter agrees to permit (3) Not later than 7 days after the date of exporter or producer’s records kept in the full verification of all cost and sales disclosure under paragraph E(2), the parties ordinary course of business, unless the information semi-annually, or more to the proceeding may submit written Department determines that a different date frequently, as the Department deems comments to the Department, not to exceed better reflects the date on which the exporter necessary. 15 pages. After reviewing these submissions, or producer establishes the material terms of the Department will provide to each sale, as determined by the Department under (5) Bundling or Other Arrangements producer/exporter its NV as provided in its regulations. Producers/exporters agree not to paragraph C(2). In addition, the Department The effective date of the Agreement is circumvent the Agreement. In accordance may provide such information to domestic October 24, 1997. with the date set forth in Section D(1) of the interested parties as specified in this section. For the Republic of South African Producers/ Agreement, producers/exporters will submit (F) Violations of the Agreement Exporters a written statement to the Department Iscor Ltd. certifying that the sales reported herein were If the Department determines that the lllllllllllllllllllll not, or are not part of or related to, any Agreement is being or has been violated or Marcela B. Stras, Esq., Adduci, Mastriani & no longer meets the requirements of section bundling arrangement, on-site processing Schaumberg, LLP arrangement, discounts/free goods/financing 734(b) or (d) of the Act, the Department shall lllllllllllllllllllll take action it determines appropriate under package, swap or other exchange where such Date arrangement is designed to circumvent the section 734(i) of the Act and the regulations. basis of the Agreement. In the event that the Department determines Highveld Steel and Vanadium Corp. Ltd. Where there is reason to believe that such that the investigation shall be resumed, it lllllllllllllllllllll an arrangement does circumvent the basis of will be resumed on the basis of the original Jeff Chegwidden, Director & General Manager the Agreement, the Department will request administrative record, and the statutes, Marketing producers/exporters to provide within 15 regulations, policies, and practices in effect lllllllllllllllllllll days all particulars regarding any such on the effective date of the Agreement. Date arrangement, including, but not limited to, (G) Other Provision sales information pertaining to covered and For U.S. Department of Commerce non-covered merchandise that is In entering into the Agreement, the lllllllllllllllllllll manufactured or sold by producers/ signatory producers/exporters do not admit Robert S. LaRussa, Assistant Secretary for exporters. The Department will accept that any sales of the merchandise subject to Import Administration written comments, not to exceed 30 pages, the Agreement have been made at less than lllllllllllllllllllll from all parties no later than 15 days after the fair value. Date date of receipt of such producer/exporter (H) Termination information. Appendix A—Cut-to-Length Carbon Steel If the Department, after reviewing all The Department will not consider requests Plate From the Republic of South Africa submissions, determines that such for termination of this suspended Principles of Cost investigation prior to October 2002. arrangement circumvents the basis of the General Framework Agreement, it may, as it deems most Termination will be conducted in accordance The cost information reported to the appropriate, utilize one of two options: (1) with section 351.222 of the Department’s Department that will form the basis of the NV the amount of the effective price discount regulations. calculations for purposes of the Agreement resulting from such arrangement shall be Any producer/exporter may terminate the Agreement at any time upon notice to the must be: reflected in the NV in accordance with • Section D(3), or (2) the Department shall Department. Termination shall be effective Comprehensive in nature and based on determine that the Agreement has been 60 days after such notice is given to the a reliable accounting system (i.e., a system violated and take action according to the Department. Upon termination, the based on well-established standards that can provisions under Section F. Department shall follow the procedures be tied to the audited financial statements); outlined in section 734(i)(1) of the Act. • Representative of the company’s costs (6) Rejection of Submissions incurred for the general class of merchandise; The Department may reject any (I) Definitions • Calculated on a quarterly weighted- information submitted after the deadlines set For purposes of the Agreement, the average basis of the plants or cost centers forth in this section or any information following definitions apply: manufacturing the product; which it is unable to verify to its satisfaction. (1) U.S. PRICE—means the export price or • Based on fully-absorbed costs of If information is not submitted in a complete constructed export price at which production, including any downtime; 61754 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

• Valued in accordance with generally expenses which are uniquely associated with FOR EP TRANSACTIONS accepted accounting principles; the covered products sold in the United • Reflective of appropriately allocated States are added to the CV to calculate the + direct materials common costs so that the costs necessary for NV. + direct labor the manufacturing of the product are not Export Price—Generally, a U.S. sale is + factory overhead absorbed by other products; and = Cost of Manufacturing • classified as an export price sale when the Reflective of the actual cost of producing + home market SG&A the product. first sale to an unaffiliated person occurs before the goods are imported into the United = Cost of Production Additionally, a single figure should be + U.S. packing reported for each cost component. States. In cases where the foreign + Profit manufacturer knows or has reason to believe Cost of Manufacturing (COM) = Constructed Value that the merchandise is ultimately destined + U.S. direct selling expense Costs of manufacturing are reported by for the United States, the manufacturer’s sale + U.S. commission expense major cost category and for major stages of is the sale subject to review. If, on the other + U.S. movement expense production. Weighted-average costs are used hand, the manufacturer sold the merchandise + U.S. credit expense for a product that is produced at more than to a foreign trader without knowledge of the ¥ HM direct selling expense one facility, based on the cost at each facility. 1 trader’s intention to export the merchandise ¥ HM commission expense Direct materials—cost of those materials ¥ HM credit expense to the United States, then the trader’s first which are input into the production process = NV for EP sales and physically become part of the final sale to an unaffiliated person is the sale product. subject to review. For EP NVs, the CV is 1 If the company does not have HM commis- Direct labor—cost identified with a specific adjusted for movement costs and differences sions, HM indirect expenses are subtracted product. These costs are not allocated among in direct selling expenses such as only up to the amount of the U.S. commis- sions. products except when two or more products commissions, credit, warranties, technical are produced at the same cost center. Direct services, advertising, and sales promotion. FOR CEP TRANSACTIONS labor costs should include salary, bonus and Constructed Export Price—Generally, a overtime pay, training expenses, and all U.S. sale is classified as a constructed export fringe benefits. Any contracted-labor expense + direct materials should reflect the actual billed cost or the price sale when the first sale to an + direct labor actual costs incurred by the subcontractor unaffiliated person occurs after importation. + factory overhead when the corporation has influence over the However, if the first sale to the unaffiliated = Cost of Manufacturing contractor. person is made by a person in the United + home market SG&A Factory overhead—overhead costs include States affiliated with the foreign exporter, = Cost of Production + U.S. packing indirect materials, indirect labor, constructed export price applies even if the + profit depreciation, and other fixed and variable sale occurs prior to importation, unless the expenses attributable to a production line or = Constructed Value U.S. affiliate performs only clerical functions + U.S. direct selling expense factory. Because overhead costs are typically in connection with the sale. For CEP NVs, the incurred for an entire production line, an + U.S. indirect selling expense CV is adjusted similar to EP sales, with appropriate portion of those costs must be + U.S. commission expense allocated to covered products, as well as any differences for adjustment to U.S. and HM + U.S. movement expense other products produced on that line. indirect-selling expenses. + U.S. credit expense Acceptable cost allocations can be based on Home market direct-selling expenses— + U.S. further manufacturing expenses (if labor hours or machine hours. Overhead expenses that are incurred as a direct result any) costs should also reflect any idle or of a sale. These include such expenses as + CEP profit ¥ HM direct selling expense downtime and be fully absorbed by the commissions, advertising, discounts and products. ¥ HM commission expense rebates, credit, warranty expenses, freight ¥ HM credit expense Cost of Production (COP) costs, etc. Certain direct-selling expenses are = NV for CEP sales Is equal to the sum of materials, labor, and treated individually. They include: overhead (COM) plus SG&A expenses in the commission expenses—payments to [FR Doc. 97–30390 Filed 11–18–97; 8:45 am] home market (HM). unaffiliated parties for sales in the HM. BILLING CODE 3510±DS±P SG&A—those expenses incurred for the credit expenses—expenses incurred for the operation of the corporation as a whole and extension of credit to HM customers. not directly related to the manufacture of a movement expenses—freight, brokerage and DEPARTMENT OF COMMERCE particular product. They include corporate handling, and insurance expenses. general and administrative expenses, International Trade Administration financing expenses, and general research and U.S. direct-selling expenses—the same as development expenses. Additionally, direct HM direct-selling expenses except that they [A±823±808] and indirect selling expenses incurred in the are incurred for sales in the United States. HM for sales of the product under Movement expenses—additional expenses Notice of Final Determination of Sales investigation are included. Such expenses are incidental to importation into the United at Less Than Fair Value: Certain Cut- allocated over cost of goods sold. States. These typically include U.S. inland to-Length Carbon Steel Plate From Constructed Value freight, insurance, brokerage and handling Ukraine expenses, U.S. Customs duties, and Is equal to the sum of materials, labor and international freight. AGENCY: Import Administration, overhead (COM) and SG&A expenses plus International Trade Administration, profit in the comparison market and the cost U.S. indirect-selling expenses—include of packing for exportation to the United general fixed expenses incurred by the U.S. Department of Commerce. States. sales subsidiary or affiliated exporter for EFFECTIVE DATE: November 19, 1997. sales to the United States. They may also FOR FURTHER INFORMATION CONTACT: Calculation of Suspension Agreement NVs include a portion of indirect expenses Nithya Nagarajan at (202) 482–1324 or NVs (for purposes of the Agreement) are incurred in the HM for export sales. Eugenia Chu at (202) 482–3964, Import calculated by adjusting the CV and are provided for both EP and CEP transactions. Administration, International Trade In effect, any expenses uniquely associated Administration, U.S. Department of with the covered products sold in the HM are Commerce, 14th Street and Constitution subtracted from the CV, and any such Avenue, NW., Washington, DC 20230. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61755

Applicable Statute: Unless otherwise section where such cross-section is As discussed in detail in our indicated, all citations to the statute are achieved subsequent to the rolling Memorandum on Separate Rates (dated references to the provisions effective process (i.e., products which have been June 3, 1997), since 1991 the January 1, 1995, the effective date of the ‘‘worked after rolling’’)—for example, Government of Ukraine has undertaken amendments made to the Tariff Act of products which have been bevelled or significant market reforms and passed 1930 (the Act) by the Uruguay Round rounded at the edges. This merchandise extensive legislation toward the Agreements Act (URAA). In addition, is currently classified in the development of an economy which can unless otherwise indicated, all citations Harmonized Tariff Schedule of the operate based upon free market to the Department’s regulations are to 19 United States (HTS) under item principles. However, in applying the CFR part 353 (1997). numbers 7208.40.3030, 7208.40.3060, factors required under section Final Determination: We determine 7208.51.0030, 7208.51.0045, 771(18)(B) of the Act, we have found that certain cut-to-length steel plate 7208.51.0060, 7208.52.0000, that Ukraine’s economy, while in (CTL plate) from Ukraine is being, or is 7208.53.0000, 7208.90.0000, transition, does not yet qualify as a likely to be, sold in the United States at 7210.70.3000, 7210.90.9000, market economy under the antidumping less than fair value (LTFV), as provided 7211.13.0000, 7211.14.0030, law. Therefore, we have determined that in section 735 of the Act. 7211.14.0045, 7211.90.0000, Ukraine remains an NME within the Case History 7212.40.1000, 7212.40.5000, meaning of the antidumping statute. 7212.50.0000. Excluded from the subject Section 771(18)(B)(i) of the Act Since the preliminary determination merchandise within the scope of the instructs the Department to take into in this investigation (Preliminary petition is grade X–70 plate. Although account the extent to which the Determination of Sales at Less Than the HTS subheadings are provided for currency of Ukraine is convertible into Fair Value: Certain Cut-to-Length convenience and customs purposes, our the currencies of other countries. Carbon Steel Plate From Ukraine, 62 FR written description of the scope of this Ukraine introduced a new currency, the 31958 (June 11, 1997), the following investigation is dispositive. See hryvnia, in August of 1996, which has events have occurred: memorandum on Scope of remained quite stable against the dollar In June 1997, we verified the Investigations on Carbon Steel Plate, and other currencies. While the hyrvnia respondent’s questionnaire responses. from Joseph Spetrini to Robert S. is traded with the Newly Independent On July 23, 1997, the Department issued LaRussa (October 24, 1997). States, it is not yet convertible its report on verification findings. elsewhere. Additionally, the Petitioners and Respondent submitted Period of Investigation (POI) Government of Ukraine retains control case briefs on August 22, 1997, and over the influx of foreign currency into rebuttal briefs on August 29, 1997. A The POI is April 1, 1996 through September 30, 1996. its domestic economy by requiring that public hearing was neither requested 50% of foreign export earnings be nor held. Nonmarket Economy Status converted to hryvnias through an On July 28, 1997, the Department Interbank Currency Exchange set up by In accordance with section 773(c) of provided interested parties the the Government of Ukraine for this the Act, the Department normally uses opportunity to submit additional purpose. See Law On A System of a factor valuation methodology to publicly-available information (PAI) Currency Regulation (August 1993). from surrogate countries to value certain calculate normal value when the Pursuant to section 771(18)(B)(ii) of factors of production. The Department country involved is an NME country the Act, the Department also considers received responses on August 18, 1997, and the Department determines that it the extent to which wage rates in the and comments on August 25, 1997. cannot determine normal value based foreign country are determined by free on the respondent’s prices or costs. In Scope of Investigation bargaining between labor and this investigation, the Government of management. Although under the Law The products covered by this Ukraine claims that economic on Enterprises in Ukraine a collective investigation are hot-rolled iron and conditions now prevalent throughout bargaining agreement between non-alloy steel universal mill plates Ukraine warrant revocation of Ukraine’s management and workers is obligatory, (i.e., flat-rolled products rolled on four NME-country status. it appears that with regard to wage rates faces or in a closed box pass, of a width Regarding the revocation of NME and employment the government exceeding 150 mm but not exceeding status, the Department’s analysis centers continues to be heavily involved. For 1250 mm and of a thickness of not less around the government’s role in example, Ukraine’s Tariff Rate System than 4 mm, not in coils and without economic activity. See Final grades all jobs and sets salaries based patterns in relief), of rectangular shape, Determination of Sales at Less Than upon the level of complexity and neither clad, plated nor coated with Fair Value: Certain Cut-to-Length workers’ qualifications, and the metal, whether or not painted, Carbon Steel Plate from Poland (58 FR Ministry of Labor establishes job varnished, or coated with plastics or 37205, July 9, 1993). In accordance with position criteria through job evaluation other nonmetallic substances; and section 771(18)(B) of the Act, in catalogs. See Law On Remuneration on certain iron and non-alloy steel flat- considering a country’s status, the Labor (March 1995). All state-owned rolled products not in coils, of Department analyzes the extent to enterprises must base their wage and rectangular shape, hot-rolled, neither which resources are allocated by the hiring decisions on this system. Non- clad, plated, nor coated with metal, market or government, taking into state-owned enterprises must compile whether or not painted, varnished, or account government involvement in their own job classification and wage coated with plastics or other currency and labor markets, pricing, and rates to reflect the government’s system. nonmetallic substances, 4.75 mm or production and investment decisions. The government also regulates where more in thickness and of a width which Where resources are not allocated by the and in what manner workers are paid exceeds 150 mm and measures at least market, the Department cannot and provides for criminal penalties for twice the thickness. Included as subject conclude that home market prices or violations by employers. Id. merchandise in this petition are flat- costs should be used to calculate normal Section 771(18)(B)(iii) directs the rolled products of nonrectangular cross- value. Department to examine the extent to 61756 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices which joint ventures or other Although respondents both qualify as prices and costs in Ukraine adequately investments by foreign firms are ‘‘joint stock companies,’’ the majority of reflect market considerations, we cannot permitted in Ukraine. As a general their shares are still owned by the at this time alter Ukraine’s designation matter, Ukraine is open to foreign government, which has yet to sell its as a nonmarket economy under the investment and the necessary shares in either company, either through antidumping law. supporting legislation is in place. Under auction, public tender, or other market Ukraine’s Foreign Investment Law of mechanisms. Therefore, even though the Fair Value Comparisons 1996, its fourth foreign investment law, Government of Ukraine’s submissions To determine whether certain carbon registered foreign investors are indicate that in 1995 and 1996, 34% and steel plate from Ukraine sold to the guaranteed equal treatment with local 44% respectively of state-owned United States by the Ukrainian companies. The law also provides enterprises were privatized, it is unclear exporters receiving separate rates were certain protections, including general whether those figures reflect 100 made at less than fair value, we guarantees against expropriation, percent privatization of the enterprises compared the EP to the NV, as specified unhindered transfer of profits and post- in question, or some continued level of in the ‘‘Export Price’’ and ‘‘Normal tax revenues, and a ten-year guarantee government ownership, as is the case Value’’ sections of this notice. against changes in legislation that affect with Azovstal and Ilyich. Export Price these basic protections. In 1996, Ukraine Pursuant to section 771(18)(v), the also added new laws and regulations on Department must also address the extent For Azovstal and Ilyich, we calculated energy and mining investment and of government control over the EP in accordance with section 772(a) of taxation of goods and services imported allocation of resources and over output the Act, because the subject by foreign investors. The U.S.-Ukraine and pricing decisions of enterprises. merchandise was sold directly to the Bilateral Investment Treaty, which took Even with the process of privatization first unaffiliated purchaser in the United effect on November 16, 1996, provides continuing, the Government of Ukraine States prior to importation and further protection for U.S. investors; still retains significant control over the constructed export price (CEP) other such treaties exist with, among means of production and in allocating methodology was not otherwise others, Canada, France, Germany, and resources regarding all state-owned indicated. In accordance with section Italy. Finally, Ukraine is a member of business enterprises, as well as those 777A(d)(1)(A)(i) of the Act, we the New York Convention of 1958 on enterprises leasing state-owned compared POI-wide weighted-average the Recognition and Enforcement of enterprises. Under Ukraine’s Law on EPs to the factors of production. Foreign Arbitral Awards, and has Enterprises, state-owned enterprises, or We corrected the respondent’s data enacted an international commercial enterprises leasing state-owned for errors and minor omissions arbitration law. However, areas of enterprises, are required to fill state submitted to the Department and found concern remain for foreign investors, in orders at the request of the government. at verification. We calculated EP in particular the reportedly burdensome Moreover, enterprises which the accordance with our preliminary and unpredictable arbitration and Government of Ukraine deems calculations. monopolies are also required to fulfill enforcement system, and the Normal Value prohibition, contained in the Land Code state orders, regardless of their form of of 1992, on foreigners owning land in ownership. See Law On Supply of Section 773(c) of the Act requires the Ukraine. Production For State Needs. Department to value the factors of With regard to the extent of The government also continues to set production, to the extent possible, in government ownership or control of the domestic prices in some areas of the one or more market economy countries means of production, a factor economy. According to the Law on that are at a level of economic considered under section 771(18)(B)(iv), Prices, the government has authority to development comparable to that of the record evidence demonstrates that the set prices on products which affect the non-market economy country and that Government of Ukraine has made entire economy, to set domestic prices are significant producers of comparable significant progress in privatizing state- of monopolies, and to render to the merchandise. owned business enterprises. However, government any monopoly profits In our preliminary determination, we privatization has proceeded unevenly deemed excessive. Generally, the selected Brazil as our surrogate country. thus far, with relatively rapid results in government will deem an enterprise a Brazil is an appropriate country for the small-scale privatization and a slower monopoly where its commodity has 35 reasons set forth in our preliminary pace for large-scale privatization, and percent of the domestic market share. determination. See the January 27, 1997 much of the economy remains in the See On Restricting Monopoly and memorandum from the Office of Policy hands of the government. Notably, Preventing Unfair Competition. discussing our selection of surrogate Ukraine has designated thousands of As the above analysis indicates, the countries for Ukraine (Policy Memo). companies in sectors such as energy, Ukrainian government has put into Since we find no compelling reason to communications, metallurgy, defense action a serious program of economic change this selection (see below for industries, and chemicals as ‘‘strategic’’ reform, particularly since July 1994. comments and further analysis), we enterprises and therefore not eligible for While significant progress has been have continued to base FMV on the privatization. These firms include most made in Ukraine’s transformation to a values of the factors of production as of Ukraine’s largest companies and market economy, under the analysis valued in Brazil. those with the greatest export potential. required by section 771(18)(B) of the Factors of Production In addition, foreign investors can Act, we cannot conclude that Ukraine participate in the privatization process should be treated as a market economy We calculated NV based on factors of only through financial intermediaries for purposes of the antidumping duty production cited in the preliminary (i.e., foreigners cannot acquire law. While many of the state controls determination, making adjustments for privatization certificates directly). have been abandoned, functioning specific verification findings. To Finally, in the case of the respondents markets have not completely replaced calculate NV, the verified amounts for in this investigation, their status as government controls. Because the the factors of production were privately-held companies is incomplete. evidence does not demonstrate that multiplied by the appropriate surrogate Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61757 value for the different inputs. We have Petitioners stress that the Government argue that the government is the alter used the same surrogate sources as in of Ukraine publishes ‘‘indicative prices’’ ego of the companies and that this, the preliminary determination with the pursuant to a February 10, 1996 combined with the registration and exception of overhead, SG&A, and Presidential Decree but that the minimum price requirements, is the profit. For the final determination we Department inappropriately concluded type of government control that based the percentages for overhead, that the decree did not apply to subject warrants application of a single country- SG&A and profit on the detailed public merchandise exported during the POI. wide rate. version of CST’s and Usiminas’ Petitioners contend that the categories Respondents counter that the law and financial statements that was placed on are not exhaustive and include goods regulation issued on February 10, 1996 the record of this investigation by where ‘‘special regimes’’ are applied. authorize the government to establish Respondents. See Comment 7, below. Petitioners argue that this appears to price guidelines for monitoring give the government very broad legal purposes, in certain circumstances, but Critical Circumstances control over setting prices since the only under the following conditions: (a) The Department has continued to find term is not defined or explained. the prices are merely ‘‘indicative’’ and that critical circumstances exist for cut- Petitioners contend that the Department not mandatory; (b) they may be issued to-length carbon steel plate by all should imply that investigations of only for certain goods subject to Ukrainian exporters. subject merchandise fit within the antidumping procedures, import category of ‘‘special regime’. procedures, quotas, licenses, or other Verification Furthermore, Petitioners interpret the special regimes; and (c) these indicative As provided in section 782(i) of the February 24, 1996 Ministry of Foreign prices may be established only to the Act, we verified the information Economic Relations and Trade (MFERT) extent that these goods may be exported submitted by Respondents for use in our Order to mean that the export controls free from state control, as provided in final determination. We used standard are applied not only after an Article 20 of Ukraine’s Law ‘‘On Foreign verification procedures, including antidumping investigation has been Economic Activity.’’ Respondents argue examination of relevant accounting and initiated, but also to prevent the that Article 20, which discusses production records and original source initiation of such an investigation. antimonopoly must be read together documents provided by Respondents. Petitioners point out that the MFERT with the February 10, 1996 Presidential Order provides a list of commodities Decree. Respondents argue that Article Separate Rates aimed at preventing antidumping and 20 provides for state control of the Comment 1: Separate Rates that the subject merchandise is on this export and import of weapons and list. Therefore the preventive nature of certain other items (not including the Petitioners oppose the Department’s this order indicates that special export subject merchandise) and specifically granting of separate rates to requirements can, and did, apply to provides that any organizations, Respondents. Petitioners argue that the subject merchandise prior to the including state-owned ones, have no Department should calculate and apply initiation of the antidumping right to prevent other subjects of foreign a single country-wide rate because investigation. Petitioners also point to economic activity from the free exercise Respondents’ exports of subject statements as described in the of such activity. Respondents claim that merchandise from Ukraine were subject verification report by both Azovstal and this interpretation is consistent with to de jure and de facto government Ilyich that pricing controls have applied statements by a MFERT official that no controls, including minimum price and to their exports of steel plate since 1995. pricing controls were observed during registration requirements, during the In addition, Petitioners argue that the the POI, and that the indicative prices POI. At verification, Petitioners argue, government-published price lists are did not apply to the subject the Department found that the convincing evidence that minimum merchandise during the POI. companies were required to register price restrictions were applied to Respondents further argue that contracts in order to control prices to subject merchandise during the POI. Petitioners’ theory that a system of avoid dumping. Also, Petitioners state Thus, the Department should not find indicative prices instituted after the POI that the Department found that export that Azovstal and Ilyich are entitled to retroactively translates into a system of contracts over $3.5 million are subject to separate rates in the final determination. price controls is neither factually correct government approval and that minimum Finally, Petitioners state that it is nor in accordance with Department pricing is mandatory. undisputed that upon initiation of this practice. Respondents argue that the Petitioners argue that the investigation, at the very least, the intent of the law and the Department’s inconsistencies between the minimum price and registration practice has been to permit the governmental Decrees requiring requirements became applicable to calculation of separate rates where registration and a government official’s Respondents’ exports of subject export prices, during the POI, were set representation that registration is merchandise. Petitioners argue that the by respondents rather than the unnecessary until antidumping policy behind applying a country-wide government. Respondents argue that not proceedings have been initiated led the dumping margin, to avoid government only have all of the conditions for Department to conclude that registration circumvention of antidumping orders, is separate rates have been met, as is for monitoring purposes only. prospective in nature. Accordingly, evidenced at verification, but the However, Petitioners claim that based Petitioners argue, even if the unilateral actions of both Respondents on a straight reading of the laws, government controls had not been in to change their legal status from registration is necessary for purposes of effect during the POI, the prospective leaseholding societies to that of stock administering the minimum price nature of the country-wide margin companies, and the right to pursue requirements and other actions policy warrants application of a single- litigation against the government prove controlling exports. Petitioners argue country-wide rate. Lastly, Petitioners Respondents’ independence from that this requirement is part of a larger argue that the recent government decree government control. Respondents Ukrainian regime controlling export ordering the two respondents to merge further argue that Petitioners’ assertion activities, including the setting of makes clear that the government that registration requirements are part of minimum prices. exercises direct control. Petitioners the larger Ukrainian regime controlling 61758 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices export activities is nonsense and that regarding the selection of management; With regard to registration, foreign goods subject to export controls, as and (4) whether the respondent retains economic agreements (contracts) are defined in the February 10, 1996 the proceeds of its export sales and registered with MFERT pursuant to the Resolution, does not include the subject makes independent decisions regarding 1994 Order of the President, On merchandise. disposition of profits or financing of Registration of Certain Types of Foreign Department Position losses. See Silicon Carbide. Economic Agreements (Contracts) in Ukraine Order of the President of Based on evidence on the record and 1. Absence of De Jure Control Ukraine, November 7, 1994. Under the our verification findings, we have As described in our Preliminary February 24, 1996 MFERT Order, during determined that Azovstal and Ilyich are Determination and Memorandum on the POI, it was necessary to register a entitled to separate rates in the final Separate Rates, dated June 3, 1997, contract for export of subject determination. Respondents have placed on the merchandise to the United States The Department’s NME separate rates administrative record a number of because under this Order, the United policy is based upon a rebuttable submissions to demonstrate absence of States is one of the listed countries and presumption that NME entities operate de jure control. These documents the subject merchandise is one of the under government control and therefore include laws, regulations, and listed goods. Therefore, contrary to the do not make independent business provisions enacted by the Government Ukrainian Government’s assertions, decisions. This presumption can only be of Ukraine which deregulate Ukrainian contracts for export of the subject overcome by a respondent’s affirmative state-owned enterprises and Ukrainian merchandise to the United States during showing that it conducts its exporting export trade. Moreover, Respondents the POI were legally required to be activities without government control. provided laws and regulations registered. However, we find that in this Evidence on the record supports a specifically governing their enterprises, instance, registration is for statistical finding that Azovstal and Ilyich have which provide these companies with and tax collection purposes, and for met their affirmative evidentiary legal autonomy to make their own monitoring compliance by exporters burden. operational and managerial decisions with international trading rules and To establish whether a firm is during the POI and are evidence of the agreements. There was no evidence at sufficiently independent from good faith effort on the part of the verification to indicate that through government control to be entitled to a Government of Ukraine to decentralize registration the Government of Ukraine separate rate, the Department analyzes control of state-owned companies. For a did anything other than monitor foreign each exporting entity under the test set more detailed description of these laws, economic activity of exports of certain forth in the Final Determination of Sales see Separate Rates Memorandum, dated goods in order to prevent dumping by at Less Than Fair Value: Sparklers from June 3, 1997. exporters subject to antidumping the People’s Republic of China, 56 FR Because the government has now measures in other countries and thereby 20588 (May 6, 1991) (Sparklers), and as created a right of ownership of business ensure compliance with international further developed in Final enterprises for private persons and trading rules. Determination of Sales at Less Than collectives, leaseholding societies, such Moreover, even though MFERT must Fair Value: Silicon Carbide from the as Azovstal and Ilyich, formerly state- approve export contracts of over $3.5 People’s Republic of China, 59 FR 2285 owned and operated, are now distinct million, we find that the purpose of this (May 2, 1994) (Silicon Carbide). The legal entities. In general, this ownership exercise is to monitor such activity for Department assigns separate rates in right allows business enterprises to tax collection and to ensure that large nonmarket economy cases only if freely engage in economic activity, volume exports of goods subject to respondents can demonstrate the negotiate and sign contracts, and antidumping measures or other absence of both de jure and de facto independently develop business plans. international trade agreements are not governmental control over export Collectives, like the leaseholding being dumped and are in compliance activities. societies of Azovstal and Ilyich, may with the government’s international The Department considers three independently select management agreements (e.g., suspension agreements factors which support, though do not through elections by the workers with the European Union). Therefore, require, a finding of de jure absence of collective and may exercise control and we find no evidence to support government control. These factors direction over the general director Petitioners’ claim that by registering include: (1) an absence of restrictive through a contract between the contracts for sales of subject stipulations associated with an enterprise and the general director. merchandise during the POI the individual exporter’s business and Enterprises, including collectives, may government was controlling export export licenses; (2) any legislative have their own bank account, and, after pricing, per se. enactments decentralizing control of taxes, may keep the profits from their With regard to the setting of prices, companies; or (3) any other formal sales, and engage in foreign economic since 1994 the government has set measures by the government activity, generally, without government minimum export prices for certain decentralizing control of companies. interference. categories of goods. While some The Department typically considers four Although there is no longer a general minimum export prices are obligatory, factors in evaluating whether each export licensing regime in place, the others are more in the nature of respondent is subject to de facto Ukrainian Government continues to guidelines to assist Ukrainian exporters governmental control of its export retain de jure control over exports for in pricing their goods competitively in functions: (1) whether the export prices certain categories of goods, including various export markets. During the POI, (‘‘EP’’) are set by or are subject to the goods subject to antidumping duty pursuant to the Decree of the President approval of a governmental authority; investigations and antidumping duty of Ukraine On Measures Regarding the (2) whether the respondent has orders. Mandatory controls are in place Improvement of Price Policy authority to negotiate and sign contracts regarding: (1) the registration of Configuration in Foreign Economic and other agreements; (3) whether the contracts for export of these goods and Activity, February 10, 1996, the respondent has autonomy from the (2) the setting of ‘‘indicative prices’’ for Government of Ukraine published these government in making decisions these goods by the government. so-called ‘‘indicative prices’’ on a Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61759 monthly basis. According to the 1996 concluded that, similar to our for subject merchandise during the POI, Decree, minimum prices are mandatory determination in Honey, such there was de facto control of such where the exporter of Ukrainian goods government action is not contrary to a pricing by the Government of Ukraine. is subject to antidumping measures finding of separate rates, because its Nevertheless, as discussed above, we do applied by other countries, including only purpose is to avoid dumping not find that setting of minimum prices the initiation of antidumping measures applied by other countries and to eliminate dumping by exporters investigations. The export of the subject because it demonstrates an effort on creates sufficient government control merchandise during the POI was not behalf of the government to comply over exporting activities to disqualify subject to the mandatory pricing with international trading rules as it Azovstal and Ilyich from receiving controls described. However, as enters the world marketplace. separate rates. Petitioners correctly point out, under The purpose of applying one country- Furthermore, at verification this 1996 Decree, merchandise covered wide rate in an NME context is to additional information and by this investigation was subject to prevent an NME government from later documentation was provided which mandatory pricing after the initiation of circumventing an antidumping order by demonstrates that Azovstal and Ilyich our antidumping investigation. controlling the flow of subject were not controlled by the government, However, there is no evidence on the merchandise through exporters which but were separate legal entities that record to support Petitioners have the lowest margin. Here, the were in control of their business presumption that the subject requirement of registration and the operations and planning during the POI. merchandise falls within the ‘‘special setting of floor prices do not See Verification Report at 3–6. For regime’’ referred to in the February 1996 demonstrate that the government can example, during the POI, both Decree. Therefore, we cannot find that control exporters in such a manner. To companies paid rent to the Ukraine subject merchandise is included in a the contrary, it is evidence of the State Property Fund, the government special export pricing regime. government’s good faith attempt to entity owning the steel plants leased by In a somewhat analogous situation, monitor exports of certain goods to both companies, and entered into the Department preliminarily ensure that such goods are not traded negotiations regarding an increase in determined that mandatory minimum unfairly. rent due to hyperinflation. Verification export prices set by the Chinese 2. Absence of De Facto Control Report at 6. Additionally, during the government, intended to control POI, a Cabinet of Ministers Decree was worldwide prices of exported honey and Each respondent exporter has asserted, and we have verified, the issued which attempted to merge the to increase such prices through macro- two respondents. Verification Report, economic means, did not preclude the following: (1) each sets its own export prices subject to indicative prices, as Exhibit SR–3. However, during that time respondent companies from receiving both companies continued the separate rates. See Notice of Preliminary discussed below; (2) each negotiates privatization process for state-owned Determination of Sales at Less Than contracts without guidance from any companies, as was their legal right Fair Value: Honey from the People’s governmental bodies; (3) each makes its under the reforms instituted by the Republic of China, 60 FR 14725 (March own personnel decisions with regard to Government of Ukraine, discussed 20, 1995) (Honey). In Honey, the selection of management through above. The merger did not transpire and Department found that, among other elections by the members of the shortly after the POI both companies things, the companies were free to leaseholding societies, and the General became public joint stock companies. independently negotiate export prices Director and his appointed Deputies Verification Report at 6. with their customers above the floor have authority to negotiate and enter price. In other words, when considering into contracts on behalf of the Additionally, when a decree was the totality of all circumstances, the enterprise; and (4) each has separate issued during the POI by the Ukraine Department found in Honey that the bank accounts and retains the proceeds State Property Fund appointing another companies had sufficient independence of its export sales (although 50 percent General Director in place of the elected in their export pricing decisions from of foreign currency earnings must be general director of Azovstal, the government control to qualify for converted into Ukrainian currency), company went to the Ukrainian separate rates. This is also the case with uses profits according to its business Arbitration Court. Verification Report, Azovstal and Ilyich, both of which the needs, and has the authority to sell its Exhibit SR–3. Azovstal claimed that by Department verified to have assets and to obtain loans. See law the Ukraine State Property Fund independently negotiated export prices Verification Report, dated July 25, 1997. had no authority to issue a decree which above the minimum prices set by the In addition, there is no record evidence directly conflicted with legal reforms Government of Ukraine. See de facto indicating that company-specific pricing regarding a lease-holding society’s right section below and the Verification during the POI was coordinated among to elect its own management. Id. As a Report, dated July 25, 1997. exporters. result, the Ukraine State Property Fund Based on evidence on the record, we Both Azovstal and Ilyich stated that issued a second decree voiding the find that during the POI there was no de prices are negotiated with their earlier decree, and Azovstal continues jure control of export prices of subject customers and are not subject to to have the same duly elected General merchandise. Moreover, we find that, approval or review by the government. Director. Id. Taken together, these even though there was de jure control of However, both companies also told the findings provide further proof that export prices for subject merchandise Department’s verifiers that prior to, and Azovstal and Ilyich were not controlled after the initiation of our antidumping during the POI they were required by by the government but were investigation, because the stated Ukrainian Customs officials to sell independent during the POI. purpose of these minimum prices was to subject merchandise at the minimum Based on the record evidence, we find avoid dumping by Ukrainian exporters, price published monthly by MFERT for that various legal reforms did provide such measures do not, in and of all sales to the U.S. market. See Azovstal and Ilyich the ability to protect themselves, indicate that the Verification Report, dated July 25, 1997. their rights to autonomy in their day to Government of Ukraine controls export Thus, as discussed above, while there day business operations, including their activities of companies. Rather, we have was no de jure control of export prices exporting activities. See Separate Rates 61760 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Memorandum, dated June 3, 1997; In addition, section 776(b) of the Act two sets of prices were consistent. We Verification Report, dated July 25, 1997. provides that, if the Department finds also compared the movement charges Consequently, we determine that that an interested party ‘‘has failed to used in the petition with the surrogate there is, legally and factually, absence of cooperate by not acting to the best of its values used by the Department in its governmental control of export ability to comply with a request for company-specific margin calculations functions during the POI. Contrary to information,’’ the Department may use and found them to be consistent. Petitioners’ arguments, the Department information that is adverse to the The information in the petition with does not examine the period after the interests of that party as the facts respect to the normal value (NV) is POI to determine separate rates. otherwise available. The statute also based on factors of production used by However, we will continue to closely provides that such an adverse inference the petitioners in the production of steel examine the effect, in fact and in law, may be based on secondary information, plate. Petitioners submitted usage of actions of the Government of Ukraine including the information drawn from amounts for materials, labor and energy, with respect to any reassertion of the petition. adjusted for known differences in government control over the export As discussed above, we have treated production efficiencies. To account for activities of these companies. However, all Ukrainian exporters that did not differences between the production based on the evidence on the record, we qualify for a separate rate as a single processes of petitioners and potential have granted separate rates for this final enterprise owned and controlled by the respondents, Petitioners submitted three determination. Government of Ukraine. Because some cost models in the petition: (1) Basic exporters of the single enterprise failed Oxygen Furnace (BOF) Cost Model; (2) Ukraine-Wide Rate to respond to the Department’s requests Open-Hearth Furnace Cost Model; and As stated above, we have granted for information, the single enterprise is (3) Weighted Average Normal Value of separate rates for Azovstal and Ilyich. considered to be uncooperative. (See the BOF and Open-Hearth methods. However, all other Ukrainian companies Concurrence Memorandum, dated The margins in the petition, which will be subject to the Ukraine-wide rate. October 24, 1997, for the list of ranged from 201.61 to 274.82 percent, were obtained by Petitioners by U.S. import statistics indicate that the exporters.) In such situations, consistent with section 776(b)(1) of the Act, the comparing the normal values to the total quantity and value of U.S. imports Department generally selects as adverse export price developed from customs of certain cut-to-length carbon steel total facts available the higher of the values and to export prices developed plate from Ukraine is greater than the average of the margin from the petition from actual U.S. price quotes. For each total quantity and value of steel plate or the highest rate calculated for a method, petitioners submitted estimated reported by all Ukrainian companies respondent in the proceeding. See also, dumping margins for the BOF method, that submitted responses. Given this Notice of Final Determination of Sales the open-hearth method and a weighted- discrepancy, we conclude that not all at Less Than Fair Value: Persulfates average of the two. See Corroboration exporters of Ukrainian certain cut-to- from the People’s Republic of China, 96 Memorandum, dated June 3, 1997. length carbon steel plate responded to FR 27222 (May 19, 1997). In the present Comment 2: Pirated Sales our questionnaire. Accordingly, we are case, the average margin in the petition applying a single antidumping deposit is higher than any calculated rate. Petitioners contend that certain rate—the Ukraine-wide rate—to all Accordingly, the Department has based ‘‘pirated’’ sales of steel plate produced exporters in Ukraine (other than the two the Ukraine-wide rate on the average by Ilyich should be included in the named as receiving separate rates), petition rate of 237.91 percent. margin calculation because there is a based on our presumption that those Section 776(c) of the Act provides that strong likelihood that a large volume of respondents who failed to respond where the Department relies on similar sales may have ultimately constitute a single enterprise, and are ‘‘secondary information,’’ the entered the United States. In addition, under common control by the Ukraine Department shall, to the extent Petitioners argue that there is a very government. See, e.g., Final practicable, corroborate that information high likelihood that these sales have Determination of Sales at Less Than from independent sources reasonably at gone unreported and the Department Fair Value: Bicycles from the People’s the Department’s disposal. The should apply an overall facts available Republic of China, 61 FR 19026 (April Statement of Administrative Action rate for Ilyich because they did not 30, 1996). (SAA), accompanying the URAA (H. properly respond to the Department’s This Ukraine-wide antidumping rate Doc. 316, Vol. 1, 103d Cong., 2d Sess. questionnaires. is based on adverse facts available. 870 (1996)), clarifies that the petition is Ilyich argues that the Department Section 776(a)(2) of the Act provides ‘‘secondary information’’ and that properly excluded pirated sales from the that ‘‘if an interested party or any other ‘‘corroborate’’ requires that the preliminary margin calculations and person—(A) withholds information that information relied upon have probative should continue to do so for the final has been requested by the administering value. determination. Ilyich argues that it authority; (B) fails to provide such In accordance with section 776(c) of made these sales believing they were information by the deadlines for the the Act, we corroborated the margins in destined to third countries and had no submission of the information or in the the petition to the extent practicable. knowledge that these sales were form and manner requested, subject to The information contained in the ultimately destined for the United subsections (c)(1) and (e) of section 782; petition indicates that petitioners States. Ilyich argues that at verification (C) significantly impedes a proceeding calculated export price based on: (1) the the Department examined two of these under this title; or (D) provides such import values declared to the U.S. pirated sales and concluded that Ilyich information but the information cannot Customs Service, and (2) an average had no prior knowledge that the be verified as provided in section 782(i), export price derived from actual U.S. shipments were to be delivered to the the administering authority . . . shall, selling prices known to petitioners. We United States. Ilyich further claims that subject to section 782(d), use the facts compared the starting prices used by it is the Department’s practice not to otherwise available in reaching the petitioners, less the importer mark-ups, include such sales in its determinations applicable determination under this to prices derived from contemporaneous under these circumstances and cited title.’’ U.S. import statistics and found that the several cases as precedent. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61761

Department Position contend that Brazil’s Gross Domestic Furthermore, Petitioners argue that We agree with Respondent. It is the Product (GDP) is now more than double Brazil is comparable to Ukraine in terms Department’s practice to include as U.S. that of Ukraine and the World Bank of economic development, as recognized sales only those sales known by the classifies Brazil within a different tier of in this case and in other cases involving producer/exporter to be destined for the countries than Ukraine. Furthermore, Ukraine. Petitioners claim that the United States at the time of sale and Respondents claim that Brazil’s World Bank’s classification for Ukraine delivery. See, e.g., Final Determination industrial data is maintained via an is preliminary and moreover, that this of Sales at Less Than Fair Value: accounting system which deviates from category contains countries whose per Manganese Sulfate from the People’s generally accepted accounting capita GNPs vary widely, including Republic of China, 60 FR 52155, 52158 principles because it requires producers some that differ more widely from (October 5, 1995); Notice of Final to maintain two separate sets of Ukraine’s GNP than does Brazil’s. Determination of Sales at Less Than financial records, one to report Furthermore, Petitioners add that when Fair Value: Pure Magnesium and Alloy historical costs of corporate activities the Department issued its surrogate Magnesium from the Russian and another to report the effects of country selection memorandum, it was Federation, 60 FR 16440, 16445 (March inflation and currency fluctuations on aware of the GNP levels of Brazil, 30, 1995). Based on findings at those corporate costs and revenues. Poland, and Ukraine and stated that all verification, the Department has Respondents further argue that the countries are equally comparable to determined that these originally non- Department’s use of Brazilian labor rates Ukraine in terms of economic U.S. bound shipments were delivered to also illustrates the inappropriateness of development. Petitioners argue that the U.S. without prior knowledge of using Brazil as a surrogate. However, if even if Poland’s GNP is closer, the Ilyich. Therefore, consistent with our Brazil is chosen as a surrogate, Department has already determined that preliminary determination and Respondents argue that surrogate prices any such difference is insignificant. Department practice, we have not from other countries should be used Petitioners argue that per capita GNP is included the pirated sales in the final where the use of Brazilian prices will only one of several measures the margin calculation for Ilyich. produce distorted results and cite Department considers in determining Certain Cased Pencils from the People’s the most appropriate surrogate country Comment 3: Surrogate Country Republic of China, 59 FR 55625 (Nov. 8, and cite Final Results of Antidumping Selection 1994) (Pencils), as precedent. Duty Administrative Review: Tapered Respondents argue that Brazil is an Respondents submit that Poland is a Roller Bearings and Parts Thereof, inappropriate surrogate for Ukraine for preferable surrogate choice because it is Finished and Unfinished, from several reasons. Respondents state that, the only country which satisfies both Romania, 62 FR 31075 (June 6, 1997). because Ukraine’s economy has statutory criteria of comparable Petitioners further argue that Poland’s undergone radical transformations in economic development and significant rate of per capita GNP growth was recent years, the Department should production of CTL plate. Respondents positive, while that of both Brazil and reconsider its choice of a surrogate argue that in practice the Department Ukraine was negative. Additionally, the country based upon changed economic will change its choice of surrogate purchasing power parity GNP for Brazil conditions and/or possible industrial where it finds a compelling reason to and Poland are virtually the same. incomparability. Respondents claim that make the change and cite Notice of Final Moreover, citing Technoimportexport v. the Department has shown its Determination of Sales at Less Than United States, 15 CIT 250, 255, 766 F. willingness to reconsider its choice of a Fair Value: Pure and Alloy Magnesium Supp 1169, 1175 (1991) surrogate country if a given country is from the Russian Federation, 60 FR (Technoimportexport), Petitioners argue no longer comparable and cite Certain 16440 (March 30, 1995) (Pure that the Department does not have to Helical Spring Lock Washers from the Magnesium from Russia) and Notice of choose the most comparable surrogate People’s Republic of China: Final Determination of Sales at Less country and cite petitioners claim that Memorandum to David Binder from Than Fair Value: Pure Magnesium From Brazil also satisfies the Department’s David Mueller, Office of Policy re: AD Ukraine, 60 FR 16432 (March 30, 1995) other criteria for selection of a surrogate Investigation of Sebacic Acid from the (Pure Magnesium From Ukraine). country. PRC: Non-market Economy Status and Respondents argue that Poland is an For example, Petitioners contend, Surrogate Country Selection (9/23/93), appropriate surrogate in terms of the Brazil is a significant producer of among others, to support their similarity of its history of economic subject merchandise and there is a argument. development, industrial infrastructure wealth of publicly available information Next, Respondents argue that it is the and distribution of labor and on factor prices in Brazil. Furthermore, Department’s preference to select the production. In addition, Respondents Petitioners claim that use of Brazil as country closest to the NME country submit that the quality of data publicly the surrogate country will not produce under investigation in terms of the GDP available from Polish companies aberrational results in this investigation when faced with multiple potential compares to that of Brazil. and argue that in the case cited by surrogates and cite several cases to Petitioners counter that there is no Respondents, Pencils, the Department support this position. For instance, basis nor compelling reason for rejected certain surrogate data because it Respondents compare the instant case to changing surrogate countries in the final pertained to a type of material not used Final Determination of Sales at Less determination and further emphasize to produce the subject merchandise. Than Fair Value: Beryllium Metal from that the cases Respondents cite, Pure Moreover, Petitioners claim that the Kazakstan, 62 FR 2648 (June 11, 1997), Magnesium from Russia and Pure alleged inconsistencies between where the Department rejected Brazil as Magnesium from Ukraine, did not Brazilian accounting methods and a surrogate because Brazil’s GDP was far affirmatively state that the Department GAAP are not sufficient grounds to in excess of Kazakstan’s. Respondents will change surrogate countries where deem financial ratios aberrational since argue that the variance between ‘‘compelling reasons’’ exist. The the Department has extensive Ukraine’s GDP and Brazil’s GDP is Department did not change surrogate experience dealing with Brazilian similarly excessive. Respondents countries in either case. financial statements. 61762 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Petitioners argue that the Department above, Brazil qualifies as an appropriate 1991); and Final Notice of Sales at Less has obtained reliable Brazilian surrogate surrogate because it satisfies the than Fair Value: Pure Magnesium from values for virtually all factors of statutory criteria listed. Furthermore, we Ukraine, 60 FR 16432 (March 30, 1995). production and stress that the record were able to obtain publicly available Petitioners argue that, because these does not contain complete surrogate contemporaneous information on all commissions have been verified and values for Poland. Moreover, Petitioners factor inputs required. Thus, the there is no evidence to indicate that the argue that the data available for Poland selection of Brazil also achieves the rate of the commission was other than is of lesser quality. For example, Department’s goals of providing arm’s length, the Department must Petitioners claim that the format used in transparency and reasonable accuracy in deduct these commissions from U.S. the Polish financial statements renders valuing factors. Moreover, our choice of price pursuant to 19 CFR section them virtually impossible to use for Brazil provides predictability for 353.41(e)(1). Furthermore, Petitioners purposes of calculating surrogate Ukrainian exporters as the Department claim that the cases cited by Azovstal do financial ratios. Petitioners therefore has used Brazil as a surrogate for not support its argument and that in this argue that Poland does not satisfy the Ukraine in past antidumping case, the commissions paid to AST, information-availability criterion that proceedings. See Initiation of Avostal’s reseller in London, have not the Department uses to assess the Antidumping Duty Investigation: Pure been taken into account in the U.S. or appropriateness of a potential surrogate and Alloy Magnesium for the people’s the foreign market price. country. Republic of China, the Russian Department Position Finally, Petitioners argue that the Federation, and Ukraine, 80 FR 21748 Department should rely only on Brazil (April 26, 1994). In accordance with section for all surrogate values in the final While we have used surrogate prices 772(d)(1)(A), in CEP circumstances, the determination based on its preference for selected surrogate values from Department’s normal practice is to for using only one surrogate country. countries other than the selected deduct commissions from U.S. sales surrogate country in previous cases, to price as direct selling expenses if the Department Position the extent possible it is the commissions were incurred when We agree with Petitioners and have Department’s preference and practice to making the sale to the United States. continued to use Brazil as the surrogate rely on information from the first choice See, e.g., Notice of Final Determination country in the final determination. surrogate country to value all factors for of Sales at Less than Fair Value: Section 773(c)(4) of the Act requires the which such information is available. See Bicycles from the People’s Republic of Department to value the NME Final Determination of Sales at Less China, 61 FR 19026 (April 30, 1996). In producer’s factors of production, to the Than Fair Value: Certain Carbon Steel the present case, we do not have CEP extent possible, in one or more market Butt-Weld Pipe Fittings from the sales and have not deducted economy countries that: (1) are at a level People’s Republic of China, 57 FR 21058 commissions in calculating EP. Azovstal of economic development comparable to (May 18, 1992). did not incur any commissions directly that of the NME and (2) are significant Thus, because acceptable public on U.S. sales, as all sales were made producers of comparable merchandise. information from Brazil is available for through trading companies not located As discussed in the preliminary all material input factors, it is in the United States, which incurred the determination, Brazil is at a level of unnecessary for us to use data from selling expenses associated with the economic development comparable to other countries. Therefore, the individual transactions. Therefore, we Ukraine in terms of per-capita GNP Department has continued to use only have continued to utilize the levels and distribution of the labor force Brazil as the most appropriate surrogate methodology from our preliminary in the varying sectors of the economy. country for purposes of this final determination and have not adjusted for Furthermore, Petitioners are correct in determination. See generally, Policy commission expenses on U.S. sales for stating that even if Poland’s GDP is Memo. this final determination. closer to that of Ukraine’s than is Brazil’s, per capita GNP is only one of Comment 4: Commissions Comment 5: Movement Charges the measures that the Department Azovstal argues that commissions Petitioners argue that the Department considers in determining the most were properly excluded from its should use facts available to determine appropriate surrogate country. database because the company receiving the surrogate value of movement and Furthermore, Brazil is a significant commissions was not an affiliated storage charges incurred but not producer of comparable merchandise. reseller in the United States. Azovstal reported by both respondents. Thus, Brazil fulfills both statutory further argues that, because the payment Petitioners argue that Azovstal had criteria and qualifies as an acceptable of a commission on a U.S. sale in a non- unreported movement charges for which surrogate for Ukraine under section market economy (NME) investigation is there are no surrogate values on the 773(c)(4) of the Act. See also the January not offset by direct selling expenses on record and that Ilyich did not report the 27, 1997 memorandum from the Office home market sales, the Department costs for storage for which there are also of Policy discussing our selection of ignores home market sales and relies no surrogate values on the record. surrogate countries for Ukraine (Policy solely on surrogate SG&A expenses in Therefore, the Department should apply Memo). calculating normal value. Azovstal cites facts available. Congress provided the Department several cases where the Department has Azovstal claims that it reported the with broad discretion in selecting rejected similar adjustments in prior appropriate movement charges in its surrogate countries in NME cases. See NME proceedings, including Final April 11, 1997 and August 22, 1997, 19 U.S.C. 773(c)(1)(B) (valuation of Determination of Sales at Less than Fair responses as requested by the factors of production shall be based on Value: Coumarin from the People’s Department. In regards to Petitioners the best available information from a Republic of China, 59 FR 66895 allegations regarding storage charges, market economy country(s) considered (December 28, 1994); Final Azovstal and Ilyich argue that these to be appropriate); see also, Lasko Determination of Sales at Less than Fair charges are not movement expenses but Metals v. United States, 43 F3d. 1442, Value: Sparklers from the People’s are direct selling expenses. Respondents 1443 n.3 (Fed. Cir. 1994). As stated Republic of China, 56 FR 20588 (May 6, cite the Department’s Antidumping Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61763

Manual which indicates that expenses packing expenses in the calculation of Sponge), the Department used only the are directly related to the sales under normal value. line item expenses which corresponded consideration and assert that it is the directly to the factor values which were Comment 7: Factory Overhead, SG&A, Department’s practice to make a calculated. Respondents argue that the and Profit circumstance of sale adjustment for Department should make adjustments to such expenses. Moreover, both Azovstal Petitioners claim that the the reported net income data and further and Ilyich claim that the Department Department’s preliminary results did asserts that, when calculating the SG&A does not make these adjustments in not include all factory overhead costs factor the Department incorrectly NME cases because there is no offset for and that a dumping margin cannot included profit sharing expenses. home market sales. Both Respondents accurately be calculated without the Respondents state that profit sharing argue that consistent with this inclusion of non-depreciation overhead expenses do not represent actual methodology, the Department did not costs. Although Petitioners have been expenses incurred by the companies but even include a field for warehousing or unable to find publicly available reflect the value of profits shared with storage in its U.S. Sales file. Under the information in Brazil, they provided one employees and management, dividend circumstances, Azovstal argues that the integrated Korean steel producer’s distributions to employees, and annual Department should use its reported public financial statement (Pohang Iron taxes on net income. charges rather than facts available. & Steel Co., Ltd. (‘‘POSCO’’)) which Petitioners rebut by stating that the Therefore, both Azovstal and Ilyich provided a detailed list of the types of Polish financial statements are argue that the Department should make non-depreciation expenses incurred as substantially less reliable than the no adjustments for storage charges for manufacturing costs. Petitioners urge Brazilian financial statements. either company. the Department to either use the Petitioners claim that, because the percentages from POSCO’s financial Polish financial statements fail to Department’s Position statement as facts available to separately account for costs of sales and Pursuant to section 773(6)(B), the approximate the proper amount of SG&A costs, any ratios calculated from Department adjusts normal value for factory overhead costs, or use the the financial statements would be movement expenses which are incident Department’s resources to find distorted. Also, Petitioners state that one to bringing the subject merchandise in additional information on the surrogate of the Polish financial statements condition packed ready for shipment to value. contains no specific information on Respondents argue that Petitioners’ the United States. We verified that factory overhead costs. Petitioners claim that surrogate value information Respondents reported movement additionally argue that the Department’s from Brazil on factory overhead must be preliminary calculations are consistent expenses to our satisfaction. Moreover, adjusted based upon the experience of the surrogate value that we applied in with Brazilian GAAP and the a Korean steel producer underscores the Department’s normal methodology for our preliminary determination included flawed nature of this information and of all movement and handling charges to calculating costs. The Petitioners the surrogate value information from maintain that, while the methodology ship subject merchandise from the Brazil for SG&A and profit. Respondents factory to the port, which also takes into used in Titanium Sponge was required argue that the Department should reject by the insignificance of the operating account storage/warehousing expenses. information from Brazil, because it is Therefore, any additional deductions for costs in that case, in this case, the other insufficient and use information from general expenses are not insignificant movement expenses would, in effect, Poland in calculating normal value. and were properly included in the result in double-counting. Respondents further argue that if the calculated ratios. Petitioners argue that Additionally, we agree with Department should continue to use it is the Department’s practice to Respondents’ claim that the Department Brazil as the surrogate, it should include all non-extraordinary cost items does not adjust EP sales for warehousing recalculate the surrogate overhead, in its calculations. Thus, Petitioners expenses under section 772(c)(2)(A). In SG&A, and profit rates in accordance argue because SG&A normally includes an NME case, it is the Department’s with generally accepted accounting other costs like non-operating costs, the policy to not deduct warehousing principles as the Department did in Department should disregard expenses from EP because there is no Titanium Sponge from the Russian Respondents’ claim that only those comparable adjustment on the home Federation, 61 FR 3938 (July 29, 1996) items nominally identified as SG&A market side. (Titanium Sponge) (see below). should be included. Petitioners further Comment 6: Packing Expenses Furthermore, Respondents argue that argue that the Department appropriately the Department was incorrect to use included social contributions and profit Petitioners argue that, because there is data from the Brazilian steel producers’ sharing costs in its SG&A calculation. no evidence to suggest that the prices on financial statements that was for the Petitioners additionally assert that Respondents’ sales invoices do not POI. Respondents argue that, consistent constant currency financial statements include packing costs, the Department with its prior practice, the Department provide the most reasonable measure of incorrectly added packing expenses to should use financial data the overhead, SG&A, and profit ratios Respondents’ reported U.S. prices for contemporaneous with the POI and because it is the Department’s purposes of the preliminary assert that the use of a ‘‘constant of preference to base its calculations on determination. currency’’ accounting system is such statements and because the ratios Respondents did not comment on this inappropriate now that Brazil’s inflation would be calculated on values that are issue. rate is only at 18 percent. Respondents on the same basis. Petitioners argue that Department Position provided the 1996 public financial the Department should use the 1996 statements of two Brazilian companies financial statements of CSN previously We agree with Petitioners. We and provided recalculated ratios for submitted by Petitioners. incorrectly added packing expenses to overhead, SG&A, and profit. Finally, Petitioners argue that, if the export price in the preliminary Respondents argue that in Titanium Department does use the financial determination. Accordingly, for the final Sponge from the Russian Federation, 61 statements prepared under the corporate determination we have adjusted for FR 3938 (July 29, 1996) (Titanium legislative method of accounting or 61764 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices historical cost method, it should revise merchandise similar to that under Carbon Steel Flat Products, Certain the calculations submitted by investigation and both had public Cold-Rolled Carbon Steel Flat Products, Respondents. Petitioners argue that financial statements available for the Certain Corrosion-Resistant Carbon Respondents have understated the Department’s calculations. Steel Flat Products, and Certain Cut-to- SG&A costs by excluding certain non- When using Brazil as a surrogate Length Carbon Steel Plate From Brazil, operating costs and have artificially country in the past, including in our 58 FR 7080 (February 4, 1993). reduced net income by ignoring income preliminary determination, the actually earned by the companies while Department used constant currency Comment 8: Usage Factors at the same time failing to account for financial statements because they adjust In the preliminary determination, the the increase in net income that results costs for the effects of inflation. Brazil, Petitioners argue that the Department from not taking certain expenses into in the past, has experienced significant did not calculate the dumping margin account. inflation and significant changes in the for all of Respondents’ U.S. sales. value of its currency. However, in 1996, Department Position Petitioners argue that the Department’s the Brazilian economy was no longer in inability to calculate dumping margins We disagree with Petitioners’ a state of hyperinflation as its inflation results directly from Respondents’ suggestion to use the data from a Korean rate dropped to 18 percent and its failure to provide the factor usage data steel producer’s financial statement to currency stabilized. In non- required to determine normal value and calculate factory overhead and we also hyperinflation situations, it is the that, as a result, the Department should disagree with Respondents’ suggestion Department’s practice to calculate ratios use adverse facts available to determine to use Polish data. It is the Department’s based upon historical cost financial the dumping margins for all U.S. sales practice to only use data from those statements. See generally, SAA at 164. for which Respondents failed to provide countries listed as potential surrogates The corporate legislative method of the usage factor information. identified in the Policy Memo (see cases accounting is the primary source for Respondents argue that the cited above.) Korea was never identified GAAP in Brazil. Therefore, we have Department should not use adverse facts as a potential surrogate for the used the 1996 income statements of CST available to determine dumping margins Ukrainian economy. Although Poland and Usiminas, prepared under the for any U.S. sales by Azovstal and Ilyich was identified as a potential surrogate, corporate legislative method of because the absence of normal value it is the Department’s preference to use accounting in our final determination. matches for these sales was not due to a single surrogate country as the source In contrast to our preliminary the companies’ failure to report factor of data in a NME investigation unless determination, for this final usage for those sales. Rather, it was the such value is aberrational or otherwise determination, in order to ensure that result of typographical errors which inappropriate. See Comment 3. all costs are properly accounted for, we Therefore, the Department will continue revised the overhead ratio to include resulted in incorrect CONNUMU to use Brazilian data for the final employee profit sharing in accordance designations. Respondents argue that determination. with our practice. Despite the manner in factor usage was provided by both We agree with Respondents that the which labor costs are packaged (i.e., companies for all sales and should be Department should use the financial either through straight salary, profit used to determine dumping margins. data of producers in the surrogate sharing, etc.), total labor costs remain Azovstal argues that its missing matches country which are contemporaneous the same to the employer. This includes were the result of a typographical error with the POI, and we have done so for all profit sharing expenses. See in the field ‘‘PLCHECK’’ and an error in this final determination. In general, the Porcelain-on-Steel Cookware from the related portion of the CONNUMU Department will not seek information Mexico: Notice of Final Results of which described the product as such. from particular producers in the Antidumping Duty Administrative Azovstal argues that for all of Azovstal’s surrogate country to value material Review, 62 FR 25908 (May 12, 1997), products, the field ‘‘PLCHECK’’ should inputs or electricity. The exception to where the Department determined that be categorized the same way because this rule is for overhead, SG&A, and profit sharing expenses relate to the Azovstal only produces merchandise profit. For these categories of costs, the compensation of direct labor. Labor is with that characteristic. Azovstal claims Department will seek product-specific captured in the cost of manufacturing that a review of those CONNUMUs information from producers in the which is part of the cost of sales. Thus, described by Petitioners as not having surrogate country, where possible. See we have included profit sharing in matching normal values in relation to Notice of Final Determination of Sales overhead. However, if a company broke other CONNUMUs in Azovstal’s U.S. at Less Than Fair Value: Melamine out profit sharing between employees Sale Listing and Azovstal’s Section D Institutional Dinnerware Products from and management, as CST has done, we computer response clearly shows that the People’s Republic of China, 62 FR included management profit sharing in the absence of corresponding factor 1708 (January 13, 1997). Based on the the SG&A calculation and employee usages for the CONNUMUs in question submitted information and the profit sharing in the overhead is the result of an inadvertent error. Department’s own research, we agree calculation. See Final Determination Ilyich argues that its two CONNUMUs with Respondents that the financial data Calculation Memorandum, dated without corresponding factor usages are from the 1996 income statements of the October 24, 1997. for products identical to those listed two Brazilian steel companies we used Consistent with prior Department under two other CONNUMUs. Ilyich in the preliminary determination, CST practice, we have continued to include argues that when preparing its Section and Usiminas, are the most appropriate social contributions in SG&A for the C Response it inadvertently used two surrogate information available to final determination. See Final CONNUMUs for the same products in calculate the percentages for overhead, Determination Calculation two instances. Ilyich argues that, as SG&A, and profit for our final Memorandum, dated October 24, 1997. such, there is no need to use facts determination. In the preliminary See also, Notice of Preliminary available. Rather, the Department has all determination the Department Determination of Sales at Less Than necessary data and should treat each determined that both CST and Usiminas Fair Value and Postponement of Final pair of corresponding CONNUMUs as a were significant producers of Determinations: Certain Hot-Rolled single CONNUMU. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61765

Department Position appropriate surrogate country for this calculated at a higher percentage of the Petitioners are correct that we did not investigation. Furthermore, the value of manganese ore. Department has determined, that calculate the dumping margin for all Department Position U.S. sales because of the absence of Brazilian wage rates are not aberrational some normal value matches, as but provide a reasonable surrogate value We agree with Respondents in part. described above. However, while the for the cost of labor for producing steel Based on the Department’s knowledge Department is always concerned with and thus, do not warrant an attempt to of the steel production process and such discrepancies, we did not identify find more comparable values. Therefore, independent research (including 15 any attempt by Respondents to mislead we have continued to use the same labor Encyclopedia of Chemical Technology calculation used in the preliminary the Department or to distort information (4th Ed. 1995) at 963–980 and Velichko, determination in the final on the record, nor does the record et al., 1 Stal’ (1993), a Ukrainian article determination. indicate that Respondents were which explains the typical composition uncooperative. Rather, the record Comment 10: Labor Usage Rates of siliconmanganese for a specific indicates that, while the Respondents Petitioners argue that, because the Ukrainian plant), we have determined inadvertently misreported their Department examined Azovstal’s that the chemical makeup of CONNUM listings, they nevertheless reported labor usage rates at verification siliconmanganese is primarily complied with all Department requests and determined that they were manganese. Therefore, we have valued to the best of their ability under the inaccurate, the Department should siliconmanganese slag at 100 percent circumstances. Therefore, we have revise Azovstal’s reported labor usage the value of manganese ore. determined that such inadvertent errors rates to reflect its verification findings. Comment 12: Limestone, Dolomite do not warrant an overall application of Respondents did not comment on this adverse facts available. Accordingly, for issue. Respondents claim that the this final determination we have Department should not value limestone corrected all such errors using an Department Position and dolomite based upon the full value overall average of the final dumping We agree with Petitioners. We verified of lime. Respondents argue that, not margins for each Respondent’s U.S. the correct labor rates and have only is limestone probably the least sales. The details of these errors and incorporated those figures for the expensive of all raw materials used in steps we have taken to correct them are purpose of our final determination. set forth in the Final Determination the industry, but, based on information Calculation Memorandum, dated Comment 11: Siliconmanganese Slag from the U.S. Geological Survey, in the October 24, 1997. See also, Concurrence Respondents claim that slag is a by- United States limestone and dolomite Memorandum, dated October 24, 1997. product that has relatively little value in are valued at 8.39 percent and 8.68 relation to the primary product percent of lime, respectively. Comment 9: Surrogate Value for Labor produced, with the slag’s market value Respondents claim that the Department Respondents argue that the depending on its use. Respondents should, therefore, value limestone and Department’s calculation of a surrogate argue that the Department should not dolomite using the Survey’s value for labor illustrates the distorted value siliconmanganese slag using the percentages. effects which result from using Brazil as full value of ferroalloys since to do so Petitioners argue that the a surrogate for Ukraine. Respondents would produce an aberrational surrogate Department’s valuation of limestone and argue that the Department’s BISNIS factor that is far greater in value than the dolomite is correct. Petitioners claim report indicates that Ukraine’s hourly slag at issue. Respondents argue that that a single value was applied to both labor rate is less than $1.00. Therefore, siliconmanganese slag is a substitute for products as information available Respondents argue, Poland is a manganese ore and is valued in the because Respondents failed to provide preferable surrogate because, when market based on its manganese content. separate information on each factor. compared to Brazil it is more Respondents assert that the proper Petitioners claim that Respondents are comparable in terms of its labor rates. valuation for Ukrainian now attempting to file new information Furthermore, Respondents claim that siliconmanganese slag is a percentage of which is untimely, and assert that, even Poland is also more comparable to the surrogate value of manganese ore, if this information were admissible, it is Ukraine in terms of the makeup of its rather than 100 percent of the value of unusable because the alleged values are ferroalloys. workforce and the percentage of the based on U.S. statistics. Petitioners workforce engaged in industrial activity. Petitioners argue that the value of further argue that nothing in the record Petitioners argue that Respondents are siliconmanganese should be based on supports Respondents’ implication that comparing general employment data for the value of ferroalloys because the relative value of lime to limestone Ukraine to inadmissible new Respondents claim that the input is in the United States is equivalent to that information regarding Poland. used only as a substitute for manganese in Brazil and that there is no Petitioners further argue that even if the ore is unsupported. Furthermore, information regarding the value of Polish information was admissible, it Petitioners argue that the figures quoted dolomite to limestone in any country. does not support Respondents’ by Respondents regarding the alleged challenge to the use of Brazil as a percentage of manganese content in Department Position surrogate country because the siliconmanganese slag and the alleged information does not provide surrogate value of siliconmanganese as a We agree with Petitioners. Moreover, values related to labor costs for making percentage of manganese ore are based the Department’s research indicates that steel or the costs of providing housing on an unverified, untimely submitted both limestone and dolomite are for workers. letter. However, Petitioners argue that if equivalent to lime. See Making, Shaping the Department does decide to use the and Treating of Steel (10th ed. 1985). Department Position information provided by Respondents, We have, therefore, continued to value As discussed in Comment 3, we have as facts available, the value of limestone and dolomite at the full value determined that Brazil is the siliconmanganese slag should be of lime for the final determination. 61766 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Comment 13: Wood refunded and any bonds shall be DEPARTMENT OF COMMERCE Respondents claim that the wood it released. International Trade Administration utilizes in packing/loading was verified On October 14, 1997, we received a through invoices provided to the request from Petitioners requesting that [A±823±808] Department. we continue the investigation. We Petitioners argue that the Department received a separate request from the Suspension of Antidumping Duty should use its PAI information and United Steelworkers of America, an Investigation: Certain Cut-to-Length Carbon Steel Plate From Ukraine conversion factor to value wood. interested party under section 771(9)(D) Department Position of the Act, on October 14, 1997. AGENCY: Import Administration, Based on both Petitioners’ and Pursuant to these requests, we have International Trade Administration, Respondents’ submissions and briefs, continued and completed the Department of Commerce. we have used Respondents’ value for investigation in accordance with section softwood and applied Petitioners’ 734(g) of the Act. We have found the SUMMARY: The Department of Commerce conversion methodology to calculate a following margins of dumping: (the Department) has suspended the factor for wood packing. See Final antidumping duty investigation Determination Calculation Weight-av- involving certain cut-to-length carbon Memorandum, dated October 24, 1997. Manufacturer/producer/exporter erage per- steel plate (CTL plate) from Ukraine. centage The basis for this action is an agreement margin Comment 14: Publicly Available between the Department and the Information (PAI) Azovstal ...... 81.43 Government of Ukraine wherein the Petitioners argue that the Department Ilyich ...... 155.00 Government of Ukraine has agreed to should use the factor value information Ukraine-Wide Rate ...... 237.91 restrict the volume of direct or indirect contained in it submissions because this exports to the United States of CTL plate information is the only reliable PAI on from all Ukrainian producers/exporters The Ukraine-wide rate applies to all the surrogate values of the factors, and and to revise its prices to eliminate because the information submitted by entries of subject merchandise except completely sales of this merchandise to Respondents is based on an for entries from Azovstal and Ilyich. the United States at less than fair value. inappropriate surrogate country and is ITC Notification EFFECTIVE DATE: October 24, 1997. fraught with errors. FOR FURTHER INFORMATION CONTACT: Respondents argue that the In accordance with section 735(d) of Nithya Nagarajan, or Eugenia Chu, Department should not use Petitioners’ the Act, we have notified the ITC of our Office of AD/CVD Enforcement III, PAI. Respondents argue that the determination. As our final Import Administration, International Department should change its surrogate determination is affirmative, the ITC Trade Administration, U.S. Department from Brazil to Poland (Comment 3). will determine, within 45 days, whether of Commerce, 14th & Constitution Respondents argue that much of the these imports are causing material Avenue N.W., Washington, D.C. 20230; information on the record concerning injury, or threat of material injury, to an telephone (202) 482–1324, or (202) 482– material factors for Poland are UN industry in the United States. If the 3964 respectively. statistics corresponding to the statistics ITC’s injury determination is negative, SUPPLEMENTARY INFORMATION: submitted by Petitioners themselves for the agreement will have no force or Brazil, as well as to statistics used by effect, and the investigation shall be Background the Department in its preliminary terminated. See section 734(f)(3)(A) of determination. On December 3, 1996, the Department the Act. If, on the other hand, the initiated an antidumping investigation Department Position Commission’s determination is under section 732 of the Tariff Act of We do not agree with Petitioners’ affirmative, the Agreement shall remain 1930, (the Act), as amended, to contention that its own publicly in force but the Department shall not determine whether imports of CTL plate available information is the only reliable issue an antidumping duty order so long from Ukraine are being or are likely to information for valuing factors. as (1) the Agreement remains in force, be sold in the United States at less than However, as stated throughout this (2) the Agreement continues to meet the fair value (61 FR 64051 (December 3, notice, the Department has continued to requirements of subsection (d) and (1) of 1996)). On December 19, 1996, the use Brazil as the surrogate for the final the Act, and the parties to the United States International Trade determination. Therefore, whether the Agreement carry out their obligations Commission (ITC) notified the information on Poland is reliable is under the Agreement in accordance Department of its affirmative irrelevant, as we have only used PAI with its terms. See section 734(f)(3)(B) preliminary injury determination (see from Brazil to value factors in this of the Act. ITC Investigation Nos. 731–TA–753– investigation. 756). On June 11, 1997, the Department This determination is published preliminarily determined that CTL plate Continuation of Suspension of pursuant to section 735(d) of the Act. is being, or is likely to be, sold in the Liquidation Dated: October 24, 1997. United States at less than fair value On October 24, 1997, the Department Robert S. LaRussa, (LTFV), as provided in section 733 of signed a suspension agreement with the the Tariff Act of 1930, as amended by Assistant Secretary for Import Government of Ukraine (the Administration. the Uruguay Round Agreements Act (62 Agreement). Therefore, we will instruct FR 31958, (June 11, 1997)). [FR Doc. 97–30391 Filed 11–18–97; 8:45 am] Customs to terminate the suspension of The Department and the Government liquidation of all entries of cut-to-length BILLING CODE 3510±DS±P of Ukraine initialed a proposed carbon steel plate from Ukraine. Any agreement suspending this investigation cash deposits of entries of cut-to-length on September 24, 1997. On September carbon steel plate from Ukraine shall be 25, 1997, we invited interested parties Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61767 to provide written comments on the Act, and have notified the International B. ‘‘Parties to the Proceeding’’ means agreement and received comments from Trade Commission (ITC) of our any interested party, within the Geneva Steel, Gulf States Steel, determination. If the ITC’s injury meaning of section 353.2(k) of the Bethlehem Steel Corp., U.S. Steel determination is negative, the agreement Department’s Regulations, which Group, United Steel Workers of will have no force or effect, and the actively participates through written America, and the Government of investigation will be terminated (see submissions of factual information or Ukraine. section 734(f)(3)(A) of the Act). If the written argument. The Department and the Government ITC’s determination is affirmative, the C. ‘‘Indirect Exports’’ means of Ukraine signed the final suspension Department will not issue an arrangements as defined in Section III.E agreement on October 24, 1997. antidumping duty order as long as the of this Agreement and exports from Scope of Investigation suspension agreement remains in force Ukraine through one or more third (see section 734(f)(3)(B) of the Act). countries, whether or not such exports See Notice of Final Determination of This notice is published pursuant to are further processed, insofar as they Sales at Less Than Fair Value: Certain section 734(f)(1)(A) of the Act. remain within the scope of the Cut-to-Length Carbon Steel Plate from Agreement, and includes further Ukraine, signed on October 24, 1997. Dated: November 7, 1997. Robert S. LaRussa, processing which results in minor alterations, or under certain limited Suspension of Investigation Assistant Secretary for Import The Department consulted with the Administration. circumstances, as described in Section parties to the proceeding and has VII. G., further processing which results Agreement Suspending the considered the comments submitted in substantial transformation as a result Antidumping Investigation on Certain with respect to the proposed suspension of an attempt to circumvent the Cut-To-Length Carbon Steel Plate From agreement. In accordance with Section Agreement, whether or not such exports Ukraine 734 (l) of the Act, we have determined are sold in one or more third countries that the agreement will prevent the For purposes of encouraging free and prior to importation into the United suppression or undercutting of price fair trade in certain cut-to-length carbon States and whether or not the Ukrainian levels of domestic products by imports steel plate (CTL plate), establishing producer knew the product was of the merchandise under investigation, more normal market relations, and destined to enter the United States. that the agreement is in the public preventing the suppression or D. For purposes of this Agreement, interest, and that the agreement can be undercutting of price levels of the ‘‘United States’’ shall comprise the monitored effectively. See Public domestic products by imports of the customs territory of the United States of Interest Memorandum, dated October merchandise subject to this Agreement, America (the 50 States, the District of 24, 1997. We find, therefore, that the the United States Department of Colombia and Puerto Rico) and foreign criteria for suspension of an Commerce (‘‘the Department’’) and the trade zones located in the territory of investigation pursuant to section 734(l) Government of Ukraine enter into this the United States of America. of the Act have been met. The terms and suspension agreement (‘‘the E. ‘‘For Consumption’’ means all CTL conditions of this agreement, signed Agreement’’). plate sold to customers, such as, trading October 24, 1997, are set forth in Annex Pursuant to this Agreement, the companies, distributors, resellers. end- 1 to this notice. Government of Ukraine will restrict the users, or service centers. Pursuant to section 734(f)(2)(A) of the volume of direct and indirect exports to F. Customer means an entity, such as Act, the suspension of liquidation of all the United States of CTL plate from all a steel service center, reseller, trading entries of cut-to-length carbon steel Ukrainian producers/exporters, subject company, end-user, etc., which plate from Ukraine entered or to the terms and provisions set forth consumes CTL plate as defined in withdrawn from warehouse, for below. Section I.E. consumption, as directed in our notice On the basis of this Agreement, G. ‘‘Date of Sale’’ is defined as the of ‘‘Preliminary Determination of Sales pursuant to the provisions of Section date on which price and quantity at Less Than Fair Value: Cut-to-Length 734(1 ) of the Tariff Act of 1930, as become firm, e.g.* the specification date Carbon Steel Plate from Ukraine’’ and amended, by the Uruguay Round or, in the case of a long-term contract, ‘‘Postponement of the Final Agreements Act, as effective on January the date of contract, as recorded in the Determination: Cut-to-Length Carbon 1, 1995 (‘‘the Act’’) (l9 U.S.C. 1673c(1)), company’s records kept in the ordinary Steel Plate from Ukraine’’ is hereby the Department shall suspend its course of business. terminated. Any cash deposits on antidumping investigation with respect H. ‘‘Export License’’ is the document entries of cut-to-length carbon steel to CTL plate produced in Ukraine, issued by the Ministry of Foreign plate from Ukraine pursuant to that subject to the terms and provisions set Economic Relations (‘‘MINFER’’) which suspension of liquidation shall be forth below. Further the Department must accompany all shipments of CTL refunded and any bonds shall be will instruct the U.S. Customs Service plate from Ukraine to the United States, released. (‘‘Customs’’) to terminate the and must contain all of the information On October 14, 1997 we received a suspension of liquidation of, and release enumerated in the Appendix to this request from petitioners requesting that any cash deposit or bond posted on, Agreement, except that Date of Entry we continue the investigation. We CTL plate covered by this Agreement as and Final Destination may be omitted if received separate requests for of the effective date of this Agreement. unknown to the MINFER and the continuation from Bethlehem Steel licensee. It shall be required for customs Corp., U.S. Steel Corp. (A Unit of USX I. Definitions clearance into the United States. Corporation), and the United For purposes of this Agreement, the I. ‘‘Reference Price’’ means the price Steelworkers of America, interested following definitions apply: calculated by the Department, as parties under section 771(9)(D) of the A. ‘‘Date of Export’’ for imports of described in Section IV, on a quarterly Act. Pursuant to these requests, we have subject merchandise into the United basis to be used as a floor price for sales completed the investigation in States shall be considered the date the of Ukrainian CTL plate into the United accordance with section 734(g) of the export license was issued. States. 61768 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

J. ‘‘Relevant Period’’ for the export circumstances: (1) The Government of the United States between November 5, limits of the Agreement means the Ukraine shall receive a 5 percent 1996 and the effective date of this period November 1, through October 31 increase in the export limit for each Agreement will be subject to the of each year that the Agreement is in subsequent Relevant Period if the following conditions: effect. weighted-average F.O.B. sales price for 1. Such inventories will not be A36 plate over 0.375 inches exceeds the II. Product Coverage transferred or withdrawn from reference price by more than 5 percent The products covered by this inventory for consumption in the during the most recently completed United States without an Export License Agreement include hot-rolled iron and Relevant Period; (2) this increase in the issued by MINFER. Any such transfers non-alloy steel universal mill plates export limit may be used only for or withdrawals from inventory shall be (i.e., flat-rolled products rolled on four exports of A36 plate which is over 0.375 deducted from the export limits in effect faces or in a closed box pass, of a width inches in thickness; (3) the at the time the Export License is issued. exceeding 150 mm but not exceeding determination to increase the export 1250 mm and of a thickness of not less limit for each subsequent Relevant 2. A request for an Export License than 4 mm, not in coils and without Period will be made by the Department under this provision shall be patterns in relief), of rectangular shape, based on the Government of Ukraine’s accompanied by a report containing the neither clad, plated nor coated with compliance with all relevant data information set forth in the Appendix to metal, whether or not painted, reporting requirements. this Agreement. varnished, or coated with plastics or B. No later than 60 days prior to the F. Any arrangement involving the other nonmetallic substances; and end of the first Relevant Period, the exchange, sale, or delivery of CTL plate certain iron and non-alloy steel flat- Department shall calculate an upward products from Ukraine, whether or not rolled products not in coils, of or downward adjustment to the next further processed, to the degree it rectangular shape, hot-rolled, neither Relevant Period’s export limit based results in the sale or delivery in the clad, plated, nor coated with metal, upon changes in U.S. apparent United States of CTL plate from a whether or not painted, varnished, or consumption for steel plate. U.S. country other than Ukraine, is subject to coated with plastics or other apparent consumption will be the requirements of Section V and will nonmetallic substances, 4.75 mm or calculated using official statistics from be counted toward the export limits. more in thickness and of a width which the U.S. Census Bureau and data from Any such transaction that does not exceeds 150 mm and measures at least the American Iron and Steel Institute twice the thickness. Included as subject regarding domestic shipments. The comply with the requirements of merchandise in this Agreement are flat- maximum adjustment will be plus or Section V will be deducted from the rolled products of nonrectangular cross- minus no more than 6 percent per export limits pursuant to Section VII. section where such cross-section is Relevant Period, and will be calculated G. Where CTL plate is imported into achieved subsequent to the rolling by comparing the most recent twelve the United States and is subsequently process (i.e., products which have been months of data for U.S. apparent re-exported or re-packaged and re- ‘‘worked after rolling’’) for example, consumption available to the exported, the export limits shall be products which have been beveled or Department at the time of the increased by the quantity of product re- rounded at the edges. This merchandise calculation to the level of the previous exported. Such increase will be is currently classified in the corresponding twelve months of data. applicable to the Relevant Period Harmonized Tariff Schedule of the The Department will then apply the corresponding to the time of such re- United States (HTS) under item adjustment to the Relevant Period’s export. Such increase will be applied numbers 7208.40.3030, 7208.40.3060, export limit. The Department will only after the Department receives, and 7208.51.0030, 7208.51.0045, similarly adjust the export limit every has the opportunity to verify, evidence 7208.51.0060, 7208.52.0000, Relevant Period, and the effects of the demonstrating original importation, any 7208.53.0000, 7208.90.0000, adjustment will be cumulative. re-packaging, and subsequent 7210.70.3000, 7210.90.9000, Deductions from the export limits shall exportation. The re-exported material 7211.13.0000, 7211.14.0030, be made based on the ‘‘Date of Export’’, must be identical to the imported 7211.14.0045, 7211.90.0000, as defined in Section I. MINFER will not material. 7212.40.1000, 7212.40.5000, issue Export Licenses accounting for H. Export Licenses for a given 7212.50.0000. Although the HTS more than sixty percent of the export Relevant Period may not be issued after subheadings are provided for limit for any Relevant Period during the expiration of the Relevant Period, convenience and customs purposes, the either semi-annual period within such except that Export Licenses not so written description of the scope of this Relevant Period. issued may be issued during the first C. On and after the effective date of Agreement is dispositive. three months of the following Relevant Specifically excluded from subject this Agreement, the Government of Period, up to a maximum of 15 percent merchandise within the scope of this Ukraine will restrict the volume of of the export limit for that following Agreement is grade X–70 steel plate. direct and indirect exports of CTL plate Relevant Period. Such ‘‘carried-over’’ to the United States, and the transfer III. Export Limits quota shall be counted against the and withdrawal from inventory of CTL export limits applicable to the previous A. The export limit for CTL plate for plate (consistent with the provisions of Relevant Period. the first Relevant Period shall be Section III.E), in accordance with the 158,000 metric tons. Of this export limit export limits then in effect. Export Licenses for up to 15 percent not more than 20,000 metric tons may D. Any export of CTL plate shall not of the export limits for a subsequent be utilized in selling CTL plate which when cumulated with all prior exports Relevant Period may be issued as early is 0.375 inches or less in actual or in such Relevant Period exceed the as 45 days prior to the beginning of the nominal thickness. The parties also export limit for that Relevant Period. subsequent Relevant Period. Such agree that an increase in the export limit E. Any inventories of CTL plate ‘‘carried-back’’ quota shall be counted for each subsequent Relevant Period currently held in the United States by a against the export limits applicable to shall be made under the following Ukrainian legal entity and imported into the following Relevant Period. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61769

IV. Reference Price F.O.B.). MINFER will ensure that United States, the Government of A. CTL plate will not be sold below contracts and all relevant Ukraine agrees to implement the the reference price. Each grade of CTL documentation will be available to the following procedures no later than 90 plate shall have its own reference price, Department and will be subject to days after the effective date of this and all such reference prices shall be verification. Agreement, except as provided for in calculated in the same manner. VI.A.: V. Export License A. Establish, through MINFER, an B. The reference price issued A. The Government of Ukraine will export licensing program for all exports quarterly by the Department shall be restrict the volume of direct and indirect of CTL plate to, or destined directly or released by October 1, January 1, April exports of CTL plate to the United States indirectly for consumption in, the 1, and July 1 of each year and shall be by means of Export Licenses. Export United States, as of the effective date of effective on November 1, February 1, Licenses shall be issued by MINFER for the Agreement. May 1, and August 1, respectively. The all direct and indirect exports of CTL B. Ensure compliance by any official reference price for the first Relevant plate to the United States in accordance Ukrainian institution, chamber, or other Period is set forth in Section IV.C. of with the export limits in section III and entities authorized by the Government this Agreement and shall remain the reference price in section IV. of Ukraine, all producers, exporters, effective until revised by the B. MINFER shall issue Export brokers, and traders of CTL plate, and Department pursuant to this paragraph Licenses on a first-come-first-serve basis their affiliated parties, as well as IV:B. Either party is entitled to request for all Ukrainian producers. independent trading companies/ consultations regarding the calculation C. Before it issues an Export License, resellers utilized by the Ukrainian of reference prices. MINFER will ensure that the Relevant producer to make sales to the United C. The reference price for the first Period’s export limit is not exceeded States, with all procedures established Relevant Period shall be as follows: and that the price for the CTL plate is in order to effectuate this Agreement. C. Collect information from all Grade of CTL at or above the reference price. plate Reference price D. MINFER shall take action, producers, exporters, brokers, and including the imposition of penalties, as traders of the CTL plate to the United A36 ...... $359.00 per metric ton. may be necessary to make effective the States, and their affiliated parties; as A572 ...... 387.00 per metric ton. obligations resulting from the price well as independent trading companies/ A516 ...... 390.00 per metric ton. restrictions, export limits, and Export resellers utilized by the Ukrainian API±2H ...... 530.00 per metric ton. Licenses. MINFER will inform the producer, on the sale of the CTL plate, Department, in writing, of any and report such information pursuant to The reference price for API–2Y will violations concerning the price Section VIII (A) of this Agreement. be determined at a later date. restrictions, export limits, or Export D. The Government of Ukraine, by Until such time as the Department Licenses which come to its attention law, will prohibit direct and indirect and MINFER agree upon references and the action taken with respect exports to the United States of CTL plate prices for other grades of CTL plate, thereto. except under Export Licenses issued only grades A36, A572, A516, and API– The Department will inform MINFER pursuant to Section V.A and impose 2H may be exported to the United in writing of violations concerning the strict sanctions, such as penalties or States. price restrictions, export limits or prohibition from participation in the Best efforts will be made by the Export Licenses which come to its export limits allowed by the Agreement, Department and MINFER to consult for attention and the action taken with in the event that any Ukrainian or the purpose of establishing references respect thereto. Ukrainian-affiliated party does not prices for other grades of CTL plate by E. Export Licenses will be issued comply in full with all terms of the November 30, 1997. sequentially, endorsed against the Agreement. D. For each subsequent Relevant export limit for the Relevant Period, and E. Require that purchasers agree: Not Period the reference price will be will reference the report of quota to circumvent this Agreement; to report adjusted on a quarterly basis to reflect allocation results for the appropriate to MINFER any subsequent arrangement the change in the BLS Producer Price Relevant Period. entered into for the sale, exchange, or Index for carbon steel plate for the most F. Export Licenses must contain an loan to a person or entity in the United recent three months for which data is English language translation. States of CTL plate purchased from available preceding the date on which G. On and after the effective date of Ukraine; and to include these same the reference price is issued. this Agreement, the United States shall provisions in any subsequent contracts If the last month of BLS PPI for the require presentation of an Export involving CTL plate purchased from three-month period preceding the date License as a condition for entry of CTL Ukraine. on which the reference price is issued plate into the United States. The United F. Prohibit direct and indirect exports has fallen by more than 2.6 percent from States will prohibit the entry of any CTL to the United States of CTL plate which the average of the first two months of plate not accompanied by an Export is not die-stamped with the mark of the the period the reference price will be License. producing mill and which is not marked adjusted on the basis of the PPI for the H. The validity of Export License with Ukraine as the country of origin. last month of the three-month period. shall be six (6) months, except that no VII. Anticircumvention E. MINFER will ensure that with more than 90 days shall elapse between respect to merchandise covered by each the date of issuance of the Export A. MINFER will take all appropriate Export License, the Ukrainian unit License and the date on which the measures under Ukrainian law to values of imports of CTL plate into the merchandise is cleared through prevent circumvention of this United States will equal or exceed the Ukrainian customs for export. Agreement. It shall respond promptly to reference price at equivalent points in conduct an inquiry into any and all the transaction chain. The reference VI. Implementation allegations of circumvention, including price will be at a level in the transaction In order to effectively restrict the allegations raised by the Department, chain as far upstream as possible (i.e., volume of exports of CTL plate to the and shall complete such inquiries in a 61770 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices timely manner (normally within 45 sharing evidence regarding such the circumvention of the export limits days). MINFER shall notify the circumvention and reaching mutual established by this Agreement: Department, in writing, of the results of agreement on the appropriate steps to be 1. Existence of any verbal or written its inquiries within ten days of the taken to eliminate such circumvention, arrangements which would result in the conclusion of such inquiries. Within 15 such as MINFER prohibiting sales of circumvention of the export limits days of a request from the Department, Ukrainian CTL plate to the company established by this Agreement; MINFER shall share with the responsible or reducing CTL plate 2. Existence of any arrangement as Department all information received or exports to the country in question. If the defined in Section III.E that was not collected by MINFER regarding its parties are unable to reach a mutual reported to the Department pursuant to inquiries, its analysis of such agreement within 45 days, then the Section VIII.A; information and the results of such Department may take appropriate 3. Existence and function of any inquiries. MINFER will require all action, such as deducting the amount of subsidiaries or affiliates of the parties exporters of CTL plate to include a CTL plate involved in such involved: provision in their contracts for sales to circumvention from the export limit, or 4. Existence and function of any countries other than the United States instructing Customs to deny entry to historical and/or traditional trading that the CTL plate sold through such any CTL plate sold by the entity found patterns among the parties involved; contracts cannot be re-exported, to be circumventing the Agreement, 5. Deviations (and reasons for transhipped, or swapped to the United taking into account all relevant factors. deviation) from the above patterns, States, or otherwise used to circumvent Before taking such action, the including physical conditions of the export limits of this Agreement. Department will notify MINFER of the relevant steel producing facilities; MINFER will also establish appropriate facts and the reasons constituting the 6. Existence of any payments mechanisms to enforce this basis for the Department’s intended unaccounted for by previous or requirement. action and will afford MINFER ten days subsequent deliveries, of any payments B. MINFER of Ukraine shall advise in which to comment. to one party for merchandise delivered within one month after the effective E. If the Department determines that or swapped by another party; date of this Agreement that all contracts a Ukrainian/ or third country entity 7. Sequence and timing of the for sales of CTL plate to third countries participated in circumvention, the arrangements; and by Ukrainian producers/exporters shall parties shall hold consultations for the 8. Any other information relevant to include a clause which stipulates the purpose of sharing evidence regarding the transaction or circumstances. following: that in the event that their such circumvention and reaching H. ‘‘Swaps’’ include, but are not customer sells the merchandise to mutual agreement on an appropriate limited to: another trading company it must resolution of the problem. If the parties Ownership swaps—involve the provide the identity of the subsequent are unable to reach mutual agreement exchange of ownership of any type of trading company to MINFER. within 45 days, the Department may CTL plate product(s),without physical Given the critical need to prevent take appropriate action, such as transfer. These may include exchange of circumvention, both Governments agree deducting the amount of CTL plate ownership of CTL plate products in to share information to the greatest involved in such circumvention from different countries, so that the parties extent their national legislation will the export limit, or instructing Customs obtain ownership of products located in allow. Therefore, MINFER agrees to use to deny entry to any CTL plate sold by different countries; or exchange of its maximum efforts to provide the entity found to be circumventing the ownership of CTL plate products transaction specific data for all third Agreement. Before taking such action, produced in different countries so that country sales to the final end-user. the Department will notify MINFER of the parties obtain ownership of products C. If, in an inquiry pursuant to the facts and reasons constituting the of different national origin. paragraph A, MINFER determines that a basis for the Department’s intended Flag swaps—involve the exchange of Ukrainian company has participated in action and will afford MINFER ten days indicia of national origin of CTL plate a transaction that resulted in in which to comment. products without any exchange of circumvention of the export limits of F. The Department shall direct the ownership. this Agreement, then MINFER shall U.S. Customs Service to require all Displacement swaps—involve the sale impose penalties on such company importers of CTL plate into the United or delivery of any type of steel including, but not limited to, denial of States, regardless of stated country of product(s) from Ukraine to an access to the CTL plate quota. origin, to submit at the time of entry a intermediary country (or countries) Additionally, MINFER shall deduct an written statement certifying that the which can be shown to have resulted in amount of CTL plate equivalent to the CTL plate being imported was not the ultimate delivery or sale into the amount involved in such circumvention obtained under any arrangement, swap, United States of displaced CTL plate from the export limit and shall or other exchange which would result in products of any type, regardless of the immediately notify the Department, in the circumvention of the export limits sequence of the transaction. writing, of the amount deducted. If established by this Agreement. Where I. The Department will enter its sufficient tonnage is not available in the the Department has reason to believe determinations regarding circumvention current Relevant Period, then the that such a certification has been made into the record of the Agreement. remaining amount necessary shall be falsely, the Department will refer the deducted from the subsequent Relevant matter to U.S. Customs or the U.S. VIII. Monitoring Period. Department of Justice for further action. MINFER will provide to the D. If MINFER determines that a G. Given the fungibility of the world Department such information as is company from a third country has steel market, the Department will take necessary and appropriate to monitor circumvented the Agreement and the the following factors into account in the implementation of and compliance parties agree that no Ukrainian entity distinguishing normal steel market with the terms of this Agreement. The participated in or had knowledge of arrangements, swaps, or other Department shall provide semi-annual such activities, then the parties shall exchanges from arrangements, swaps, or reports to MINFER indicating the hold consultations for the purpose of other exchanges which would result in volume of imports of the CTL plate to Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61771 the United States, together with such Both governments recognize that request, and in any administrative additional information as is necessary effective monitoring of this Agreement review of this Agreement. and appropriate to monitor the may require that MINFER provide B. Not later than 30 days after the date implementation of this Agreement. information additional to that which is of disclosure under Section VII.A, the identified above. Accordingly, the parties to the proceeding may submit A. Reporting of Data Department may establish additional written comments to the Department, Beginning on the effective date of this reporting requirements, as appropriate, not to exceed 30 pages. Agreement, MINFER shall collect and during the course of this Agreement. C. During the anniversary month of provide to the Department the The Department shall provide notice to this Agreement, each party to the information set forth, in the agreed MINFER of any additional reporting proceeding may request a hearing on format, in the Appendix to this requirements no later than 45 days prior issues raised during the preceding Agreement. All such information will be to the period covered by such reporting Relevant Period. If such a hearing is provided to the Department by the 15th requirements unless a shorter notice requested, it will be conducted in of each month for exports to the United period is mutually agreed. accordance with Section 751 of the Act States occurring during the previous (19 U.S.C. 1675) and applicable month. For exports to countries other B. Other Sources for Monitoring regulations. than the United States and for home The Department will review publicly- X. Consultations market sales, all such information will available data as well as Customs Form be provided to the Department by May 7501 entry summaries and other MINFER and the Department shall 30 of each year for exports and home financial import data from the Bureau of hold consultations regarding matters market sales during the period the Census, on a monthly basis, to concerning the implementation, November 1 through April 30, and by determine whether there have been operation, including the calculation of November 30 of each year for exports imports that are inconsistent with the reference prices, and/or enforcement of and sales during May 1 through October provisions of this Agreement. this Agreement. Such consultations will 31, or within 90 days of a request made The Department will monitor Bureau be held each year during the by the Department. All information will of the Census IM–115 computerized anniversary month of this Agreement. be subject to the verification provision records, which include the quantity and Additional consultations may be held at identified in Section VIII.C of this value of each entry. Because these any other time upon request of either Agreement. MINFER agrees to allow records do not provide other specific MINFER or the Department. sales of CTL plate only through those entry information, such as the identity XI. Violations of the Agreement brokers and trading companies which of the producer/exporter which may be permit verification and full reporting of responsible for such sales, the A. Violation data. The Department may disregard any Department may request the U.S. ‘‘Violation’’ means noncompliance information submitted after the Customs Service to provide such with the terms of this Agreement caused deadlines set forth in this Section or any information. The Department may by an act or omission, in accordance information which it is unable to verify request other additional documentation with Section 353.19 of the Department’s to its satisfaction. from the U.S. Customs Service. Regulations. Each party will inform the Aggregate quantity and value of The Department may also request the other party of any violations of the exports by HTS category to each third U.S. Customs Service to direct ports of Agreement which come to their country will be provided to the entry to forward an Antidumping Report attention and the action taken with Department by July 30 of each year for of Importations for entries of the CTL respect thereto. exports during the period November 1 plate during the period this Agreement Prior to making a determination of an through April 30 and by January 31 of is in effect. alleged violation, the Department will each for exports during period May 1 engage in emergency consultations. C. Verification through October 31. Such consultations shall begin no later Transaction-specific data for all third MINFER will permit full verification than 14 days from the day of request country sales will also be reported on of all information affiliated to the and shall provide for full review, but in the schedule provided above in the administration of this Agreement, no event will exceed 30 days. After format provided in the Appendix. including verification of the Ukrainian consultations, the Department will However, if the Department concludes producer and the trading companies/ provide MINFER 20 days within which that transaction-specific data is not brokers utilized in making sales/ to provide comments. The Department necessary for a given period, it will shipments to the United States, on an will make a determination within 30 notify MINFER at least 90 days before annual basis or more frequently, as the days of the date established for the reporting deadline that transaction- Department deems necessary to ensure submission of comments by MINFER. specific sales data need not be reported. that the Government of Ukraine is in If the Department determines that such full compliance with the terms of the B. Appropriate Action data is relevant in connection with Agreement. Such verifications may take If the Department determines that this Section VII and requests information on place in association with scheduled Agreement is being or has been violated transactions for one or more third consultations whenever possible. the Department will take such action as countries during a period for which the it determines is appropriate under 734(i) IX. Disclosure and Comment Department waived complete reporting, of the Act and Section 353.19 of the MINFER will provide the data listed in A. The Department shall make Department’s Regulations. the Appendix for those specific available to representatives of each transactions within 90 days of the party to the proceeding under XII. Duration request. appropriately-drawn administrative The export limit provided for in MINFER will also report transaction- protective orders consistent with the Section III of this Agreement shall specific data for home market sales as Department’s Regulations business remain in force from the effective date specified in the Appendix to this proprietary information submitted to the of this Agreement through November 1, Agreement. Department semi-annually or upon 2002. 61772 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

The Department will, upon receiving C. The Department does not consider A. Report of Inventories a proper request no later than November any of the obligations concerning Report by location, the inventories of CTL 1, 2001, conduct an administrative exports of CTL plate to the United States plate held by an Ukrainian legal entity in the review under Section 751 of the Act. undertaken by MINFER pursuant to this United States and imported into the United The Department expects to terminate Agreement relevant to the question of States during the period November 5, 1996, this Agreement and the underlying whether firms in the underlying through the effective date of the Agreement. investigation no later than November 1, investigation would be entitled to 1. Quantity: Indicate original units of measure (metric tons). 2002, provided that Ukraine has not separate rates, should the investigation 2. Location: Identify where the inventory is been found to have violated the be resumed for any reason. currently being held. Provide the name and Agreement in any substantive manner. D. The English language version of address for the location. Such review and termination shall be this Agreement shall be controlling. 3. Titled Party: Name and address of party conducted consistent with Section who legally has beneficial title to the E. For all purposes hereunder, the merchandise. 353.25 of the Department’s Regulations. Department and the signatory The Government of Ukraine may 4. Contract Registration Number: Indicate Government of Ukraine shall be the number(s) relating to each entry now terminate this Agreement at any time represented by, an all communications being held in inventory. upon notice to the Department. and notices shall be given and 5. Export License Number: Indicate the Termination shall be effective 60 days addressed to: number(s) relating to each sale or entry. after such notice is given to the 6. Date of Original Export: Date the Export Department. Upon termination at the Department of Commerce License is issued. request of MINFER, the provisions of 7. Date of Entry: Date the merchandise U.S. Department of Commerce, Section 734(i) of the Act shall apply. entered the United States or the date book Assistant Secretary for Import transfer took place. XIII. Conditions Administration, International Trade 8. Original Importer: Name and address. Administration, Washington, DC 9. Original Exporter: Name and address The Department recognizes that it 20230 10. Complete Description of Merchandise: may determine during the life of this Include heat numbers, HTS number, physical Agreement that the Ukrainian CTL plate Government of Ukraine description, ASTM specification, and other industry is a market-oriented industry, available information. Ministry of Foreign Economic Relations or that Ukraine is a market economy B. Exports to the United States country. In either event, the Department and Trade of Ukraine, 8 Livivska may: Square, Kiev, GSP. 655,254655, MINFER will provide all Export Licenses Ukraine issued to Ukrainian entities which shall (a) Enter into a new suspension contain the following information with the agreement under section 734(b) or XV. Effective Date exception that information requested in item 734(c) of the Act: or #9, date of entry, item 10, importer of record, (b) If the investigation was not The effective date of this Agreement and item #16, final destination may be completed under section 353.18(i) of the suspending the antidumping omitted if unknown to MINFER and the Department’s regulations, afford investigation on CTL plate from Ukraine licensee. MINFER a full opportunity to submit shall be October 24, 1997. 1. Export License Number(s): Indicate the number(s) relating to each sale and/or entry. new information, and take such Signed on this 24 day of October, 1997. 2. Complete Description of Merchandise: information into account in reaching its For the U.S. Department of Commerce. Include the 10 digit HTS category, and the final determination—provided that all Robert S. LaRussa, ASTM or equivalent grade. parties to the proceeding are given a full Assistant Secretary for Import 3. Quantity: Indicate in metric tons. opportunity to submit factual Administration. 4. F.O.B. Sales Value: Indicate currency information and argument in rebuttal; or used. For the Government of Ukraine. (c) If the investigation was completed 5. Unit Price: Indicate per metric ton. Sergei Gryshchenko, under section 353.18(i), consider a 6. Date of Sale: The date all essential terms of order (i.e., price and quantity) become request made no later than 30 days after Deputy Minister for Ministry of Industrial Policy. fixed. termination of the Agreement to 7. Sales Order Number (s): Indicate the conduct a changed circumstances Appendix specification number/order number relating review under section 751 (b). In accordance with the established format, to each sale and/or shipment. MINFER shall collect and provide to the 8. Date of Export: Date the export license XIV. Other Provisions Department all information necessary to is issued. A. In entering into this Agreement. ensure compliance with this Agreement. This 9. Date of Entry: Date the merchandise MINFER does not admit that any sales information will be provided to the entered the United States or the date book of the merchandise subject to this Department on a semi-annual basis, or upon transfer took place. Agreement have been made at less than request. 10. Importer of Record: Name and address. MINFER will collect and maintain data on 11. Trading Company: Name and address fair value or that such sales have exports to the United States and to countries of trading company involved in sale. materially injured or threatened other than the United States, on a continuous 12. Customer: Name and address of the material injury to, an industry or basis and provide the prescribed information first unaffiliated party purchasing from the industries in the United States. to the Department. Ukrainian producer/exporter. B. The Department finds that this MINFER will report home market sales for 13. Customer Relationship: Indicate Agreement is in the public interest; that those companies which represent whether the customer is affiliated or effective monitoring of this Agreement substantially all of domestic production of unaffiliated to the Ukrainian producer/ by the United states is practicable; and CTL plate. For these companies, MINFER exporter. will report all home market sales of CTL 14. Remaining Export Limit: Indicate the that this Agreement will prevent the plate for those grades listed in Section IV. C. remaining export limit available to the suppression or undercutting of price Of the Agreement. Ukrainian producers during the Relevant levels of United States domestic CTL MINFER will provide a narrative Period. plate products by imports of the explanation to substantiate all data collected 15. Final Destination: The complete name merchandise subject to this Agreement. in accordance with the following formats. and address of the end-user. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61773

Customer Certification DEPARTMENT OF COMMERCE Geneva Steel, Gulf States Steel, MINFER shall ensure that all customers of Bethlehem Steel Corp., U.S. Steel the CTL plate shall certify that the International Trade Administration Group, United Steel Workers of merchandise imported into-the United States [A±570±849] America, Liaoning, Anshan, Bao Steel, pursuant to this Agreement shall not be Shanghai Pudong and WISCO. loaned or swapped. Suspension of Antidumping Duty The Department and the Government Mill Certification Investigation: Certain Cut-to-Length of the People’s Republic of China signed Carbon Steel Plate From the People's the final suspension agreement on MINFER shall ensure that all shipments of October 24, 1997. CTL plate exported to the United States Republic of China pursuant to this Agreement, shall be AGENCY: Import Administration, Scope of the Investigation accompanied by a copy of the original mill International Trade Administration, See Notice of Final Determination of certification, which includes the heat Department of Commerce. Sales at Less than Fair Value: Certain number(s). SUMMARY: The Department of Commerce Cut-to-Length Carbon Steel Plate from C. Sales to Countries Other Than the United (the Department) has suspended the the People’s Republic of China, signed States antidumping investigation on cut-to- on October 24, 1997. Pursuant to Section VIII, paragraph A, length carbon steel plate from the Suspension of Investigation MINFER will provide country-specific People’s Republic of China (PRC). The The Department consulted with the volume and value information for all exports basis for the suspension is an agreement of CTL plate to third countries. by the Government of the PRC to restrict parties to the proceeding and has 1. Customs Export Declaration Number: the volume of direct and indirect considered the comments submitted Indicates the number(s) related to each exports to the United States of cut-to- with respect to the proposed suspension shipment. length carbon steel plate from all PRC agreement. In accordance with Section 2. Quantity: Indicate in original units of producers/exporters and to revise its 734 (l) of the Act, we have determined measure sold and/or entered in metric tons. prices to eliminate completely sales of that the agreement will prevent the 3. Date of Sale: The date all essential terms this merchandise to the United States at suppression or undercutting of price of the order (i.e., price and quantity) become less than fair value. levels of domestic products by imports fixed. of the merchandise under investigation, EFFECTIVE DATE: October 24, 1997. 4. Sales Order Number(s): Indicate the that the agreement is in the public number(s) relating to each sale and/or entry. FOR FURTHER INFORMATION CONTACT: interest, and that the agreement can be 5. Date of Export: Date of Export Edward Yang, Import Administration, monitored effectively. See Public Certification is issued. International Trade Administration, Interest Memorandum, dated October 6. Importer of Record: Name and address. U.S. Department of Commerce, 14th 24, 1997. We find, therefore, that the 7. Customer: Name and address of the first Street and Constitution Avenue, N.W., criteria for suspension of an unaffiliated party purchasing from the Washington, D.C. 20230; telephone: investigation pursuant to section 734(l) Ukrainian producer/exporter. (202) 482–3910. of the Act have been met. The terms and 8. Customer Relationship: Indicate whether SUPPLEMENTARY INFORMATION: conditions of this Agreement, signed the customer is affiliated or unaffiliated. October 24, 1997, are set forth in Annex 9. Name of Vessel: Identity of the name of Background 1 to this notice. vessel for each shipment to third countries. On December 3, 1996, the Department Pursuant to section 734(f)(2)(A) of the 10. Other: The identity of any subsequent initiated an antidumping investigation Act, the suspension of liquidation of all trading company in the transaction chain under section 732 of the Tariff Act of entries of cut-to-length carbon steel pursuant to Section VII.B. 1930, (the Act), as amended, to plate from the People’s Republic of 11. Estimated Date of Entry: Date the determine whether imports of CTL plate China entered or withdrawn from merchandise entered the third country or the from the People’s Republic of China are warehouse, for consumption, as directed date a book transfer took place. being or are likely to be sold in the in our notice of ‘‘Preliminary D. Home Market Sales United States at less than fair value (61 Determination of Sales at Less Than Fair Pursuant to Section VIII.A., MINFER will FR 64051 (December 3, 1996)). On Value: Cut-to-Length Carbon Steel Plate provide home market sales data for those December 19, 1996, the United States from the People’s Republic of China’’ companies which represent substantially all International Trade Commission (ITC) and ‘‘Postponement of the Final of domestic production of CTL plate. For notified the Department of its Determination: Cut-to-Length Carbon these companies, the MINFER will report all affirmative preliminary threat of injury Steel Plate from the People’s Republic of home market sales of CTL plate for those determination (see ITC Investigation China’’ is hereby terminated. Any cash grades listed in Section IV. C. Of the Nos. 731–TA–756). On June 11, 1997, deposits on entries of cut-to-length Agreement. the Department preliminarily carbon steel plate from the People’s 1. Quantity: Indicate in original units of determined that CTL plate is being, or Republic of China pursuant to that measure sold and/or entered in metric tons. is likely to be, sold in the United States suspension of liquidation shall be 2. Date of Sale: The date all essential terms at less than fair value (LTFV), as refunded and any bonds shall be of the order (i.e., price and quantity become provided in section 733 of the Tariff Act released. fixed. of 1930, as amended by the Uruguay On October 14, 1997, we received a 3. Sales Order Number(s): Indicate the Round Agreements Act (62 FR 31958, request from petitioners requesting that number(s) relating to each sale. (June 11, 1997)). we continue the investigation. We 4. Customer: Name and address of the first The Department and the People’s received separate requests for unaffiliated party purchasing from the Republic of China initialed a proposed continuation from Bethlehem Steel Ukrainian producer. agreement suspending this investigation Corp., U.S. Steel Corp. (A Unit of USX 5. Customer Relationship: Indicate whether on September 24, 1997. On September Corporation), and the United the customer is affiliated or unaffiliated. 25, 1997, we invited interested parties Steelworkers of America, interested [FR Doc. 97–30392 Filed 11–18–97; 8:45 am] to provide written comments on the parties under section 771(9)(D) of the BILLING CODE 3510±DS±P agreement and received comments from Act. Pursuant to these requests, we have 61774 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices completed the investigation in posted on, CTL plate covered by this Appendix to this Agreement, except that accordance with section 734(g) of the Agreement as of the effective date of this the categories Date of Entry, Importer of Act, and have notified the International Agreement. Record, Final Destination, and Other Trade Commission (ITC) of our may be omitted if unknown to the I. Definitions determination. If the ITC’s injury MOFTEC and the licensee. An export determination is negative, the agreement For purposes of this Agreement, the license shall be required for customs will have no force or effect, and the following definitions apply: clearance into the United States. investigation will be terminated (See A. ‘‘Date of Export’’ for imports of CTL plate into the United States shall be I. ‘‘Reference Price’’ means the price section 734(f)(3)(A) of the Act). If the calculated by the Department, as ITC’s determination is affirmative, the considered the date the export license was issued. described in Section IV, on a quarterly Department will not issue an basis to be used as a floor price for sales antidumping duty order as long as the B. ‘‘Parties to the Proceeding’’ means any interested party, within the of Chinese CTL plate into the United suspension agreement remains in force States. (See section 734(f)(3)(B) of the Act). meaning of section 353.2(k) of the This notice is published pursuant to Department’s Regulations, which J. ‘‘Relevant Period’’ for the export section 734(f)(1)(A) of the Act. actively participates through written limits of the Agreement means the submissions of factual information or period November 1, through October 31 Dated: November 7, 1997. written argument. of each year that the Agreement is in Robert S. LaRussa, C. ‘‘Indirect Exports’’ means effect. Assistant Secretary for Import arrangements as defined in Section III.E Administration. of this Agreement and exports from the II. Product Coverage People’s Republic of China through one Annex 1—Agreement Suspending the The products covered by this or more third countries, whether or not Antidumping Investigation on Certain Agreement include hot-rolled iron and such exports are further processed, Cut-to-Length Carbon Steel Plate From non-alloy steel universal mill plates insofar as they remain within the scope the People’s Republic of China (i.e., flat-rolled products rolled on four of the Agreement, and includes further faces or in a closed box pass, of a width For purposes of encouraging free and processing which results in minor fair trade in certain cut-to-length carbon alterations, or under certain limited exceeding 150 mm but not exceeding steel plate (CTL plate), establishing circumstances, as described in Section 1250 mm and of a thickness of not less more normal market relations, and VII. G., further processing which results than 4 mm, not in coils and without preventing the suppression or in substantial transformation as a result patterns in relief), of rectangular shape, undercutting of price levels of the of an attempt to circumvent the neither clad, plated nor coated with domestic products by imports of the Agreement, whether or not such exports metal, whether or not painted, merchandise subject to this Agreement, are sold in one or more third countries varnished, or coated with plastics or the United States Department of prior to importation into the United other nonmetallic substances; and Commerce (‘‘the Department’’) and the States and whether or not the Chinese certain iron and non-alloy steel flat- Government of the People’s Republic of producer knew the product was rolled products not in coils, of China enter into this suspension destined to enter the United States. rectangular shape, hot-rolled, neither agreement (‘‘the Agreement’’). D. For purposes of this Agreement, clad, plated, nor coated with metal, Pursuant to this Agreement, the ‘‘United States’’ shall comprise the whether or not painted, varnished, or Government of the People’s Republic of customs territory of the United States of coated with plastics or other China will restrict the volume of direct America (the 50 States, the District of nonmetallic substances, 4.75 mm or and indirect exports to the United States Colombia and Puerto Rico) and foreign more in thickness and of a width which of CTL plate from all Chinese trade zones located in the territory of exceeds 150 mm and measures at least producers/exporters, subject to the the United States of America. twice the thickness. Included as subject terms and provisions set forth below. E. ‘‘For Consumption’’ means all CTL merchandise in this Agreement are flat- For any of the deadlines mentioned in plate sold to customers, such as, trading rolled products of nonrectangular cross- this Agreement, the Ministry of Foreign companies, distributors, resellers, end- section where such cross-section is Trade and Economic Cooperation users, or service centers. achieved subsequent to the rolling (‘‘MOFTEC’’) may request an extension F. Customer means an entity, such as process (i.e., products which have been which will be considered by the a steel service center, reseller, trading ‘‘worked after rolling’’)—for example, Department if it is received in writing company, end-user, etc., which products which have been bevelled or prior to the deadline in question and consumes CTL plate as defined in rounded at the edges. This merchandise includes reasons for the extension. Section I.E. is currently classified in the On the basis of this Agreement, G. ‘‘Date of Sale’’ is defined as the Harmonized Tariff Schedule of the pursuant to the provisions of Section date on which price and quantity United States (HTS) under item 734(1) of the Tariff Act of 1930, as become firm, e.g., the specification date numbers 7208.40.3030, 7208.40.3060, amended, by the Uruguay Round or, in the case of a long-term contract, 7208.51.0030, 7208.51.0045, Agreements Act, as effective on January the date of contract, as recorded in the 7208.51.0060, 7208.52.0000, 1, 1995 (‘‘the Act’’) (19 U.S.C. 1673c(1)), company’s records kept in the ordinary 7208.53.0000, 7208.90.0000, the Department shall suspend its course of business. 7210.70.3000, 7210.90.9000, antidumping investigation with respect H. ‘‘Export License’’ is the document 7211.13.0000, 7211.14.0030, to CTL plate produced in the People’s issued by the Ministry of Foreign Trade 7211.14.0045, 7211.90.0000, Republic of China, subject to the terms and Economic Cooperation 7212.40.1000, 7212.40.5000, and provisions set forth below. Further, (‘‘MOFTEC’’) which must accompany 7212.50.0000. Although the HTS the Department will instruct the U.S. all shipments of CTL plate from the subheadings are provided for Customs Service (‘‘Customs’’) to People’s Republic of China to the convenience and customs purposes, the terminate the suspension of liquidation United States, and must contain all of written description of the scope of this of, and release any cash deposit or bond the information enumerated in the Agreement is dispositive. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61775

Specifically excluded from subject D. Any inventories of CTL plate against the export limits applicable to merchandise within the scope of this currently held in the United States by a the following Relevant Period. Agreement is grade X–70 steel plate. Chinese legal entity and imported into H. For the first 90 days after the the United States between November 5, effective date of this Agreement, CTL III. Export Limit 1996 and the effective date of this plate shall be admitted into the United A. The export limit for CTL plate for Agreement will be subject to the States with a temporary Export License. the first Relevant Period shall be following conditions: The volume of any such imports will 150,000 metric tons. Until such time as 1. Such inventories will not be be deducted from the export limits reference prices are agreed to for other transferred or withdrawn from applicable to the first Relevant Period. grades, only grade A36 may be exported. inventory for consumption in the A full reporting of any such imports, Of this export limit, not more than United States without an Export License which must correspond to the United 25,000 metric tons may be utilized in issued by MOFTEC. Any such transfers States sales information detailed in the selling CTL plate which is 0.375 inches or withdrawals from inventory shall be Appendix to this Agreement, must be or less in actual or nominal thickness, deducted from the export limits in effect submitted to the Department no later and not more than 25,000 metric tons at the time the Export License is issued. than 30 days after the conclusion of the may be utilized in selling CTL plate 2. A request for an Export License 90 day period. This data must be sorted which is three inches or more in actual under this provision shall be on the basis of date of export and must or nominal thickness. No later than 60 accompanied by a report containing the be set forth on a transaction-specific days prior to the end of the first information set forth in the Appendix to basis. Relevant Period, the Department shall this Agreement. calculate an upward or downward IV. Reference Price E. Any arrangement involving the adjustment to the next Relevant Period’s exchange, sale, or delivery of CTL plate A. CTL plate will not be sold below quota based upon changes in U.S. products from the People’s Republic of the reference price on the date of sale. apparent consumption for steel plate. China, whether or not further processed, Each grade of CTL plate shall have its U.S. apparent consumption will be to the degree it results in the sale or own reference price, and all such calculated using official statistics from delivery in the United States of CTL reference prices shall be calculated in the U.S. Census Bureau and data from plate from a country other than the the same manner. the American Iron and Steel Institute People’s Republic of China, is subject to B. The reference price issued regarding domestic shipments. The quarterly by the Department shall be maximum adjustment will be plus or the requirements of Section V and will be counted toward the export limits. released by October 1, January 1, April minus no more than 6 percent per 1, and July 1 of each year and shall be Relevant Period, and will be calculated Any such transaction that does not comply with the requirements of effective on November 1, February 1, by comparing the most recent twelve May 1, and August 1, respectively. The months of data for U.S. apparent Section V will be deducted from the export limits pursuant to Section VII. reference price for the first Relevant consumption available to the Period is set forth in Section IV.C. of Department at the time of the F. Where CTL plate is imported into the United States and is subsequently this Agreement and shall remain calculation to the level of the previous effective until revised by the corresponding twelve months of data. re-exported or re-packaged and re- exported, the export limits shall be Department pursuant to this paragraph The Department will then apply the IV.B. Either party is entitled to request adjustment to the Relevant Period’s increased by the quantity of product re- exported. Such increase will be consultations regarding the calculation export limit. The Department will of reference prices. similarly adjust the export limit every applicable to the Relevant Period corresponding to the time of such re- C. The reference price for the first Relevant Period, and the effects of the Relevant Period shall be as follows: adjustment will be cumulative. export. Such increase will be applied only after the Department receives, and Deductions from the export limits shall Grade of CTL be made based on the ‘‘Date of Export’’, has the opportunity to verify, evidence plate Reference price as defined in Section I. No more than demonstrating original importation, any sixty percent of the export limit for any re-packaging, and subsequent A36 ...... $350.00 per metric ton. Relevant Period may be licensed during exportation. The re-exported material each half (six-month period) within a must be identical to the imported D. For each subsequent Relevant given Relevant Period. material. Period, the reference price will be B. On and after the effective date of G. Export Licenses for a given adjusted on a quarterly basis to reflect this Agreement, the Government of the Relevant Period may not be issued after the change in the BLS Producer Price People’s Republic of China will restrict the expiration of the Relevant Period, Index for carbon steel plate for the most the volume of direct and indirect except that Export Licenses not so recent three months for which data is exports of CTL plate to the United issued may be issued during the first available preceding the date on which States, and the transfer and withdrawal three months of the following Relevant the reference price is issued. If the last from inventory of CTL plate (consistent Period, up to a maximum of 15 percent month of the BLS PPI for carbon steel with the provisions of Section III.D), in of the export limit for that following plate for the three-month period accordance with the export limits then Relevant Period. Such ‘‘carried-over’’ preceding the date on which the in effect. quota shall be counted against the reference price is issued has fallen by C. Export licenses may not be issued export limits applicable to the previous more than 2.6 percent from the average for more than the entire amount of quota Relevant Period. of the first two months of the quarter, allocated in any given Relevant Period. Export Licenses for up to 15 percent the reference price will be adjusted on Any CTL plate exported during a of the export limits for a subsequent the basis of the BLS PPI for carbon steel Relevant Period shall not when Relevant Period may be issued as early plate for the last month of the three- cumulated with all prior exports in such as 45 days prior to the beginning of the month period. Relevant Period exceed the export limit subsequent Relevant Period. Such E. MOFTEC will ensure that, with for that Relevant Period. ‘‘carried-back’’ quota shall be counted respect to merchandise covered by each 61776 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Export License, the Chinese unit values restrictions, export limits, and Export resellers utilized by the Chinese of imports of CTL plate into the United Licenses. MOFTEC will inform the producer, on the sale of the CTL plate, States will equal or exceed the reference Department, in writing, of any and report such information pursuant to price at equivalent points in the violations concerning the price Section VIII(A) of this Agreement. transaction chain. The reference price restrictions, export limits, or Export D. Prohibit, by law, direct and will be at a level in the transaction Licenses which come to its attention indirect exports to the United States of chain as far upstream as possible (i.e., and the action taken with respect CTL plate except under Export Licenses F.O.B Chinese ocean port, (excluding thereto. issued pursuant to Section V.A and Hong Kong)). MOFTEC will ensure that The Department will inform MOFTEC impose strict sanctions, such as contracts and all relevant in writing of violations concerning the penalties or prohibition from documentation will be available to the price restrictions, export limits, and/or participation in the export limits Department and will be subject to Export Licenses which come to its allowed by the Agreement, in the event verification. attention and the action taken with that any Chinese or Chinese-affiliated F. CTL plate imported after the respect thereto. party does not comply in full with all effective date of the Agreement, E. Export Licenses will be issued terms of the Agreement. exported from the People’s Republic of sequentially, endorsed against the E. Require that purchasers agree: not China prior to October 24, 1997 and export limit for the Relevant Period, and to circumvent this Agreement; to report sold pursuant to a contract in effect on will reference the report of quota to MOFTEC any subsequent or before August 31, 1997, in which the allocation results for the appropriate arrangement(s) entered into for the sale, price to the first unrelated purchaser in Relevant Period. exchange, or loan to a person or entity the United States is fixed at a specific F. Export Licenses must be issued no in the United States of CTL plate and definite amount with respect to the earlier than 90 days before the day on purchased from the People’s Republic of import at issue, shall not be subject to which the merchandise is accepted by a China; and to ensure that these same reference price restrictions. Consistent transportation company, as indicated in provisions are included in any with Section III.H, the volume of such the bill-of-lading or a comparable subsequent contracts involving CTL imports shall be deducted from the transportation document, for export. plate purchased from the People’s export limits. Export Licenses must contain an English Republic of China. F. Prohibit direct and indirect exports V. Export License language translation. G. On and after the effective date of to the United States of CTL plate which A. MOFTEC will restrict the volume this Agreement, the United States shall is not die-stamped with the mark of the of direct and indirect exports of CTL require presentation of an Export producing mill and which is not marked plate to the United States by means of License as a condition for entry of CTL with the People’s Republic of China as annual quota allocations and Export plate into the United States. The United the country of origin. Licenses. Export Licenses shall be States will prohibit the entry of any CTL VII. Anticircumvention issued by MOFTEC for all direct and plate not accompanied by an Export indirect exports of CTL plate to the License. A. MOFTEC will take all appropriate United States in accordance with the H. For purposes of this Agreement, measures under Chinese law to prevent export limits in section III and the the duration of the validity of the Export circumvention of this Agreement. It reference price in section IV. License will be a period of 180 days. shall respond promptly to conduct an B. Thirty days following the annual inquiry into any and all allegations of allocation of quota rights for any VI. Implementation circumvention, including allegations Relevant Period, MOFTEC shall provide In order to effectively restrict the raised by the Department, and shall to the Department a written report volume of exports of CTL plate to the complete such inquiries in a timely identifying each quota recipient and the United States, MOFTEC agrees to manner (normally within 45 days). volume of quota which each recipient implement the following procedures no MOFTEC shall notify the Department, in has been accorded (‘‘report of quota later than 90 days after the effective date writing, of the results of its inquiries allocation results’’). MOFTEC may of this Agreement. within ten days of the conclusion of reallocate the volume of quota among A. Establish, through MOFTEC, an such inquiries. Within 15 days of a quota recipients without prior approval export licensing program for all exports request from the Department, MOFTEC from the Department, but must inform of CTL plate to, or destined directly or shall share with the Department all the Department in writing within thirty indirectly for consumption in, the information received or collected by days of such reallocation. United States. MOFTEC regarding its inquiries, its C. Before it issues an Export License, B. Ensure compliance by any official analysis of such information and the MOFTEC will ensure that the Relevant Chinese institution, chamber, or other results of such inquiries. MOFTEC will Period’s export limit is not exceeded entities authorized by the Government require all exporters of CTL plate to and that the price for the CTL plate is of the People’s Republic of China, all include a provision in their contracts for at or above the reference price on the producers, exporters, brokers, and sales to countries other than the United date of sale. The quantity specified on traders of CTL plate, and their affiliated States that the CTL plate sold through each export license may vary up to ten parties, as well as independent trading such contracts cannot be re-exported, percent above or below the quantity companies/resellers utilized by the transhipped, or swapped to the United actually shipped under that license. Chinese producer to make sales to the States, or otherwise used to circumvent MOFTEC, however, will ensure that the United States, with all procedures the export limits of this Agreement. total amount of CTL plate shipped established in order to effectuate this MOFTEC will also establish appropriate under such licenses does not exceed the Agreement. mechanisms to enforce this export limit for the Relevant Period. C. Collect information from all requirement. D. MOFTEC shall take action, producers, exporters, brokers, and B. MOFTEC shall advise within one including the imposition of penalties, as traders of the CTL plate to the United month after the effective date of this may be necessary to make effective the States, and their affiliated parties; as Agreement that all contracts for sales of obligations resulting from the price well as independent trading companies/ CTL plate to third countries by Chinese Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61777 producers/exporters shall include a participated in circumvention, the 7. Sequence and timing of the clause which stipulates the following: parties shall hold consultations for the arrangements; and that in the event that their customer purpose of sharing evidence regarding 8. Any other information relevant to sells the merchandise to another trading such circumvention and reaching the transaction or circumstances. company it must provide the identity of mutual agreement on an appropriate H. ‘‘Swaps’’ include, but are not the subsequent trading company to the resolution of the problem. If the parties limited to: Government of the People’s Republic of are unable to reach mutual agreement Ownership swaps—involve the China. within 45 days, the Department may exchange of ownership of any type of Given the critical need to prevent take appropriate action, such as CTL plate product(s), without physical circumvention, both Governments agree deducting the amount of CTL plate transfer. These may include exchange of to share information to the greatest involved in such circumvention from ownership of CTL plate products in extent their national legislation will the export limit, or instructing Customs different countries, so that the parties allow. Therefore, MOFTEC agrees to use to deny entry to any CTL plate sold by obtain ownership of products located in its maximum efforts to provide the entity found to be circumventing the different countries; or exchange of transaction specific data for all third Agreement. Before taking such action, ownership of CTL plate products country sales to the final end-user. the Department will notify MOFTEC of produced in different countries, so that C. If, in an inquiry pursuant to the facts and reasons constituting the the parties obtain ownership of products paragraph A, MOFTEC determines that basis for the Department’s intended of different national origin. a Chinese company has participated in action and will afford MOFTEC ten days Flag swaps—involve the exchange of a transaction that resulted in in which to comment. indicia of national origin of CTL plate circumvention of the export limits of F. The Department shall direct the products, without any exchange of this Agreement, then MOFTEC shall U.S. Customs Service to require all ownership. impose penalties on such company importers of CTL plate into the United Displacement swaps—involve the sale including, but not limited to, denial of States, regardless of stated country of or delivery of any type of steel access to the CTL plate quota. origin, to submit at the time of entry a product(s) from the People’s Republic of Additionally, MOFTEC shall deduct an written statement certifying that the China to an intermediary country (or amount of CTL plate equivalent to the CTL plate being imported was not countries) which can be shown to have amount involved in such circumvention obtained under any arrangement, swap, resulted in the ultimate delivery or sale from the export limit and shall or other exchange which would result in into the United States of displaced CTL immediately notify the Department, in the circumvention of the export limits plate products of any type, regardless of writing, of the amount deducted. If established by this Agreement. Where the sequence of the transaction. Two sufficient tonnage is not available in the the Department has reason to believe years after the effective date of this current Relevant Period, then the that such a certification has been made Agreement, this provision with regard to remaining amount necessary shall be falsely, the Department will refer the displacement swaps will cease to exist deducted from the subsequent Relevant matter to Customs or the Department of unless the Department determines that Period. Justice for further action. there has been evidence of displacement D. If MOFTEC determines that a swaps during the preceding two years. G. Given the fungibility of the world company from a third country has I. The Department will enter its steel market, the Department will take circumvented the Agreement and the determinations regarding circumvention the following factors into account in parties agree that no Chinese entity into the record of the Agreement. participated in or had knowledge of distinguishing normal steel market such activities, then the parties shall arrangements, swaps, or other VIII. Monitoring hold consultations for the purpose of exchanges from arrangements, swaps, or MOFTEC will provide to the sharing evidence regarding such other exchanges which would result in Department such information as is circumvention and reaching mutual the circumvention of the export limits necessary and appropriate to monitor agreement on the appropriate steps to be established by this Agreement: the implementation of and compliance taken to eliminate such circumvention, 1. Existence of any verbal or written with the terms of this Agreement. The such as MOFTEC prohibiting sales of arrangements which would result in the Department shall provide semi-annual Chinese CTL plate to the company circumvention of the export limits reports to MOFTEC indicating the responsible or reducing CTL plate established by this Agreement; volume of imports of the CTL plate to exports to the country in question. If the 2. Existence of any arrangement as the United States, together with such parties are unable to reach a mutual defined in Section III.E that was not additional information as is necessary agreement within 45 days, then the reported to the Department pursuant to and appropriate to monitor the Department may take appropriate Section VIII.A; implementation of this Agreement. action, such as deducting the amount of 3. Existence and function of any CTL plate involved in such subsidiaries or affiliates of the parties A. Reporting of Data circumvention from the export limit, or involved; Beginning on the effective date of this instructing Customs to deny entry to 4. Existence and function of any Agreement, MOFTEC shall collect and any CTL plate sold by the entity found historical and/or traditional trading provide to the Department the to be circumventing the Agreement, patterns among the parties involved; information set forth, in the agreed taking into account all relevant factors. 5. Deviations (and reasons for format, in the Appendix to this Before taking such action, the deviation) from the above patterns, Agreement. All such information will be Department will notify MOFTEC of the including physical conditions of provided to the Department by May 30 facts and the reasons constituting the relevant steel producing facilities; of each year for exports and aggregate basis for the Department’s intended 6. Existence of any payments home market sales during the period action and will afford MOFTEC ten days unaccounted for by previous or November 1 through April 30, and by in which to comment. subsequent deliveries, or any payments November 30 of each year for exports E. If the Department determines that to one party for merchandise delivered during the period May 1 through a Chinese or third country entity or swapped by another party; October 31, or within 90 days of a 61778 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices request made by the Department. The Department will monitor Bureau this Agreement. Such consultations will MOFTEC agrees to provide transaction- of the Census IM–115 computerized be held each year during the specific information for home market records, which include the quantity and anniversary month of this Agreement. sales upon demand, within 30 days of value of each entry. Because these Additional consultations may be held at a request made by the Department. Such records do not provide other specific any other time upon request of either information will be subject to the entry information, such as the identity MOFTEC or the Department. verification provision identified in of the producer/exporter which may be XI. Violations of the Agreement Section VIII.C of this Agreement. responsible for such sales, the MOFTEC agrees to allow sales of CTL Department may request the U.S. A. Violation plate only through those brokers and Customs Service to provide such ‘‘Violation’’ means noncompliance trading companies which permit information. The Department may with the terms of this Agreement caused verification and full reporting of data. request other additional documentation by an act or omission, in accordance The Department may disregard any from the U.S. Customs Service. with Section 353.19 of the Department’s information submitted after the The Department may also request the Regulations. deadlines set forth in this Section or any U.S. Customs Service to direct ports of Each party will inform the other party information which it is unable to verify entry to forward an Antidumping Report of any violations of the Agreement to its satisfaction. of Importations for entries of the CTL which come to their attention and the Aggregate quantity and value of plate during the period this Agreement action taken with respect thereto. exports by HTS category to each third is in effect. country will be provided to the Exports in excess of the export limits Department by July 30 of each year for C. Verification set out in this Agreement shall not be exports during the period November 1 MOFTEC will permit full verification considered a violation of the Agreement through April 30 and by January 31 of of all information affiliated to the or an indication that the Agreement no each year for exports during period May administration of this Agreement, longer meets the requirements of U.S. 1 through October 31. including verification of the Chinese laws and regulations where such Transaction-specific data for all third producer and the trading companies/ exports are inconsequential, country sales will also be reported on brokers utilized in making sales/ inadvertent, and are applied against the the schedule provided above in the shipments to the United States, on an export limits of the following Relevant format provided in the Appendix. annual basis or more frequently, as the Period. However, if the Department concludes Department deems necessary to ensure Prior to making a determination of an that transaction-specific data is not that the Government of the People’s alleged violation, the Department will necessary for a given period, it will Republic of China is in full compliance engage in emergency consultations. notify MOFTEC at least 90 days before with the terms of the Agreement. Such Such consultations shall begin no later the reporting deadline that transaction- verifications may take place in than 14 days from the day of request specific sales data need not be reported. association with scheduled and shall provide for full review, but in If the Department determines that such consultations whenever possible. no event will exceed 30 days. After data is relevant in connection with consultations, the Department will Section VII and requests information on IX. Disclosure and Comment provide MOFTEC 20 days within which transactions for one or more third A. The Department shall make to provide comments. The Department countries during a period for which the available to representatives of each will make a determination within 30 Department waived complete reporting, party to the proceeding, under days of the date established for MOFTEC will provide the data listed in appropriately-drawn administrative submission of comments by MOFTEC. the Appendix for those specific protective orders consistent with the B. Appropriate Action transactions within 90 days of the Department’s Regulations, business request. proprietary information submitted to the If the Department determines that this Both governments recognize that Department semi-annually or upon Agreement is being or has been violated, effective monitoring of this Agreement request, and in any administrative the Department will take such action as may require that MOFTEC provide review of this Agreement. it determines is appropriate under 734(i) information additional to that which is B. Not later than 30 days after the date of the Act and Section 353.19 of the identified above. Accordingly, the of disclosure under Section VII.A, the Department’s Regulations. Department may establish additional parties to the proceeding may submit XII. Duration reporting requirements, as appropriate, written comments to the Department, during the course of this Agreement. not to exceed 30 pages. The export limits provided for in The Department shall provide notice to C. During the anniversary month of Section III of this Agreement shall MOFTEC of any additional reporting this Agreement, each party to the remain in force from the effective date requirements no later than 45 days prior proceeding may request a hearing on of this Agreement through November 1, to the period covered by such reporting issues raised during the preceding 2002. requirements unless a shorter notice Relevant Period. If such a hearing is The Department will, upon receiving period is mutually agreed. requested, it will be conducted in a proper request no later than November accordance with Section 751 of the Act 1, 2001, conduct an administrative B. Other Sources for Monitoring (19 U.S.C. 1675) and applicable review under Section 751 of the Act. The Department will review publicly- regulations. The Department expects to terminate available data as well as Customs Form this Agreement and the underlying 7501 entry summaries and other official X. Consultations investigation no later than November 1, import data from the Bureau of the MOFTEC and the Department shall 2002, provided that the People’s Census, on a monthly basis, to hold consultations regarding matters Republic of China has not been found to determine whether there have been concerning the implementation, have violated the Agreement in any imports that are inconsistent with the operation, including the calculation of substantive manner. Such review and provisions of this Agreement. reference prices, and/or enforcement of termination shall be conducted Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61779 consistent with section 353.25 of the E. For all purposes hereunder, the 3. Titled Party: Name and address of party Department’s Regulations. Department and the signatory who legally has beneficial title to the The Government of the People’s Government of the People’s Republic of merchandise. Republic of China may terminate this 4. Contract Registration Number: Indicate China shall be represented by, and all the number(s) relating to each entry now Agreement at any time upon notice to communications and notices shall be being held in inventory. the Department. Termination shall be given and addressed to: 5. Export License Number: Indicate the effective 60 days after such notice is U.S. Department of Commerce, number(s) relating to each sale or entry. given to the Department. Upon Assistant Secretary for Import 6. Date of Original Export: Date the Export termination at the request of MOFTEC, Administration, International Trade License is issued. the provisions of Section 734(i) of the Administration, Washington, D.C. 7. Date of Entry: Date the merchandise Act shall apply. entered the United States or the date book 20230 transfer took place. XIII. Conditions Government of the People’s Republic of 8. Original Importer: Name and address. China, Ministry of Foreign Trade and 9. Original Exporter: Name and address. The Department recognizes that it Economic Cooperation of the People’s 10. Complete Description of Merchandise: may determine during the life of this Republic of China, Beijing 100731 Include heat numbers, HTS number, physical Agreement that the Chinese CTL plate description, ASTM specification, and other industry is a market-oriented industry, XV. Effective Date available information. or that the People’s Republic of China The effective date of this Agreement Exports to the United States is a market economy country. In either suspending the antidumping MOFTEC will provide all Export Licenses event, the Department may: investigation on CTL plate from the (a) Enter into a new suspension issued to Chinese entities which shall People’s Republic of China shall be contain the following information with the agreement under Section 734(b) or October 24, 1997. exception that information requested in item 734(c) of the Act; or # # Signed on this 24th day of October, 1997. 9, date of entry, item 10, Importer of (b) If the investigation was not Record; item #16, final destination, item #17, For the U.S. Department of Commerce. completed under section 353.18(i) of the other, may be omitted if unknown to Department’s regulations, afford Robert S. LaRussa, MOFTEC and the licensee. MOFTEC a full opportunity to submit Assistant Secretary for Import 1. Export License number(s): Indicate the new information, and take such Administration. number(s) relating to each sale and/or entry. information into account in reaching its For the Government of the People’s 2. Complete Description of Merchandise: Include the 10 digit HTS category, and the final determination—provided that all Republic of China. Shi Jianxin, ASTM or equivalent grade. parties to the proceeding are given a full 3. Quantity: Indicate in metric tons. opportunity to submit factual Minister Counsellor, Embassy of the People’s 4. F.O.B. Sales Value: Indicate currency information and argument in rebuttal; or Republic of China. used. (c) If the investigation was completed Appendix 5. Unit Price: Indicate per metric ton. under section 353.18(i), consider a 6. Date of Sale: The date all essential terms In accordance with the established format, request made no later than 30 days after of order (i.e., price and quantity) become MOFTEC shall collect and provide to the fixed. termination of the Agreement to Department all information necessary to conduct a changed circumstances 7. Sales Order Number (s): Indicate the ensure compliance with this Agreement. This specification number/order number relating review under Section 751(b). information will be provided to the to each sale and/or shipment. Department on a semi-annual basis, or upon XIV. Other Provisions 8. Date of Export: Date the export license request. is issued. A. In entering into this Agreement, MOFTEC will collect and maintain data on 9. Date of Entry: Date the merchandise MOFTEC does not admit that any sales exports to the United States, and to countries entered the United States or the date book of CTL plate subject to this Agreement other than the United States, on a continuous transfer took place. have been made at less than fair value basis and provide the prescribed information 10. Importer of Record: Name and address. to the Department. or that such sales have materially 11. Trading Company: Name and address MOFTEC will report the aggregate volume of trading company involved in sale. injured, or threatened material injury to, and value of home market sales of CTL plate an industry or industries in the United 12. Customer: Name and address of the for those companies which exported to the first unaffiliated party purchasing from the States. United States in the same reporting period as Chinese producer/exporter. B. The Department finds that this specified in Section VIII.A. For these 13. Customer Relationship: Indicate Agreement is in the public interest; that companies, MOFTEC will report the whether the customer is affiliated or effective monitoring of this Agreement aggregate home market sales of CTL plate for unaffiliated with the Chinese producer/ by the United States is practicable; and the grade listed in Section IV. C. of the exporter. that this Agreement will prevent the Agreement. Upon demand, MOFTEC will 14. Quota Allocated to Exporter: Indicate suppression or undercutting of price provide the information requested in the the total amount of quota allocated to the ‘‘Home Market Sales’’ section. levels of United States domestic CTL individual Chinese producer/exporter during MOFTEC will provide a narrative the Relevant Period. plate products by imports of the explanation to substantiate all data collected 15. Quota Remaining: Indicate the merchandise subject to this Agreement. in accordance with the following formats. remaining quota available to the individual C. The Department does not consider Chinese producer/exporter during the Report of Inventories any of the obligations concerning Relevant Period. exports of CTL plate to the United States Report, by location, the inventories of CTL 16. Final Destination: Indicate the undertaken by MOFTEC pursuant to plate held by a Chinese legal entity in the complete name and address of the end-user. this Agreement relevant to the question United States and imported into the United 17. Other: Indicate the identity of any of whether firms in the underlying States during the period November 5, 1996, party(ies) in the transaction chain between through the effective date of the Agreement. investigation would be entitled to the customer and the final destination/end 1. Quantity: Indicate original units of user. separate rates, should the investigation measure (metric tons). be resumed for any reason. 2. Location: Identify where the inventory is Customer Certification D. The English language version of currently being held. Provide the name and MOFTEC shall ensure that all customers of this Agreement shall be controlling. address for the location. the CTL plate shall certify that the 61780 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices merchandise imported into the United States DEPARTMENT OF COMMERCE suspending this investigation on pursuant to this Agreement shall not be September 24, 1997. On September 25, loaned or swapped. International Trade Administration 1997, we invited interested parties to Mill Certification [A±821±808] provide written comments on the MOFTEC shall ensure that all shipments of agreement and received comments from CTL plate exported to the United States Suspension of Antidumping Duty Geneva Steel, Gulf States Steel, pursuant to this Agreement shall be Investigation: Certain Cut-to-Length Bethlehem Steel Corp., U.S. Steel accompanied by a copy of the original mill Carbon Steel Plate From the Russian Group, United Steel Workers of certification, which includes the heat Federation America, and the Government of the number(s). Russian Federation. AGENCY: Import Administration, The Department and MINFER signed Sales to Countries Other Than the United International Trade Administration, the final suspension agreement on States Department of Commerce. October 24, 1997. Pursuant to Section VIII, paragraph A, MOFTEC will provide country-specific SUMMARY: The Department of Commerce Scope of Investigation volume and value information for all exports (the Department) has suspended the See Notice of Final Determination of of CTL plate to third countries. The following antidumping duty investigation Sales at Less Than Fair Value: Certain information shall be provided except that involving certain cut-to-length carbon Cut-to-Length Carbon Steel Plate From information requested in item #6, importer of # steel plate (CTL plate) from the Russian Ukraine, signed on October 24, 1997. record, and item 10, other, may be omitted Federation. The basis for this action is if unknown to MOFTEC and the licensee. Suspension of Investigation 1. Customs Export Declaration Number: an agreement between the Department Indicate the number(s) related to each and the Ministry of Foreign Economic The Department consulted with the shipment. Relations and Trade of the Russian parties to the proceeding and has 2. Quantity: Indicate in original units of Federation (MINFER) wherein MINFER considered the comments submitted measure sold and/or entered in metric tons. has agreed to restrict the volume of with respect to the proposed suspension 3. Date of Sale: The date all essential terms direct or indirect exports to the United agreement. In accordance with Section of the order (i.e., price and quantity) become States of CTL plate from all Russian 734 (l) of the Act, we have determined fixed. producers/exporters and to revise its that the agreement will prevent the 4. Sales Order Number(s): Indicate the prices to eliminate completely sales of suppression or undercutting of price number(s) relating to each sale and/or entry. this merchandise to the United States at levels of domestic products by imports 5. Date of Export: Date of Export less than fair value. of the merchandise under investigation, Certification is issued. EFFECTIVE DATE: October 24, 1997. that the agreement is in the public 6. Importer of Record: Name and address. interest, and that the agreement can be 7. Customer: Name and address of the first FOR FURTHER INFORMATION CONTACT: monitored effectively. See October 24, unaffiliated party purchasing from the Nithya Nagarajan, or Eugenia Chu, 1997, Public Interest Memorandum. We Chinese producer/exporter. Office of AD/CVD Enforcement III, find, therefore, that the criteria for 8. Customer Relationship: Indicate whether Import Administration, International suspension of an investigation pursuant the customer is affiliated or unaffiliated. Trade Administration, U.S. Department to section 734(l) of the Act have been 9. Name of Vessel: Identify the name of of Commerce, 14th & Constitution vessel for each shipment to third countries. met. The terms and conditions of this Avenue N.W., Washington, D.C. 20230; 10. Other: The identity of any subsequent agreement, signed October 24, 1997, are telephone (202) 482–1324, or (202) 482– trading company in the transaction chain set forth in Annex 1 to this notice. pursuant to Section VII.B. 3964 respectively. Pursuant to section 734(f)(2)(A) of the 11. Estimated Date of Entry: Date the SUPPLEMENTARY INFORMATION: Act, the suspension of liquidation of all merchandise entered the third country or the entries of cut-to-length carbon steel Background date a book transfer took place. plate from the Russian Federation Home Market Sales On December 3, 1996, the Department entered or withdrawn from warehouse, Pursuant to Section VIII.A., MOFTEC will initiated an antidumping investigation for consumption, as directed in our provide transaction-specific home market under section 732 of the Tariff Act of notice of ‘‘Preliminary Determination of information for sales of subject merchandise, 1930, (the Act), as amended, to Sales at Less Than Fair Value: Cut-to- upon demand. The following information determine whether imports of CTL plate Length Carbon Steel Plate from the shall be provided, except that information from the Russian Federation are being or Russian Federation’’ and requested in item #6 may be omitted if are likely to be sold in the United States ‘‘Postponement of the Final unknown to MOFTEC and the licensee. at less than fair value (61 FR 64051 Determination: Cut-to-Length Carbon 1. Quantity: Indicate in original units of (December 3, 1996)). On December 19, Steel Plate from the Russian Federation’’ measure sold and/or entered in metric tons. 1996, the United States International is hereby terminated. Any cash deposits 2. Date of Sale: The date all essential terms Trade Commission (ITC) notified the of the order (i.e., price and quantity become on entries of cut-to-length carbon steel fixed. Department of its affirmative plate from the Russian Federation 3. Sales Order Number(s): Indicate the preliminary injury determination (see pursuant to that suspension of number(s) relating to each sale and/or entry. ITC Investigation Nos. 731–TA–753– liquidation shall be refunded and any 4. Customer: Name and address of the first 756). On June 11, 1997, the Department bonds shall be released. affiliated party purchasing from the Chinese preliminarily determined that CTL plate On October 14, 1997 we received a exporter. is being, or is likely to be, sold in the request from petitioners requesting that 5. Customer Relationship: Indicate whether United States at less than fair value we continue the investigation. We the customer is affiliated or unaffiliated. (LTFV), as provided in section 733 of received separate requests for 6. Other: The identity of any party(ies) in the Tariff Act of 1930, as amended by continuation from Bethlehem Steel the transaction chain between the customer the Uruguay Round Agreements Act (62 Corp., U.S. Steel Corp. (A Unit of USX and the final destination. FR 31967, (June 11, 1997)). Corporation), and the United [FR Doc. 97–30394 Filed 11–18–97; 8:45 am] The Department and MINFER Steelworkers of America, interested BILLING CODE 3510±DS±P initialed a proposed agreement parties under section 771(9)(D) of the Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61781

Act. Pursuant to these requests, we have B. ‘‘Parties to the Proceeding’’ means used as a floor price for sales of steel completed the investigation in any interested party, within the plate to the United States. accordance with section 734(g) of the meaning of section 353.2(k) of the J. ‘‘Relevant Period’’ for the export Act, and have notified the International Department’s Regulations, which limit of this Agreement means the Trade Commission (ITC) of our actively participates through written period from January I through December determination. If the ITC’s injury submission of factual information or 31 of each year that the Agreement is in determination is negative, the agreement written argument. effect, except that the First Relevant will have no force or effect, and the C. ‘‘Indirect Exports’’ means Period shall be the period from October investigation will be terminated (see arrangements as defined in Section III.E 24, 1997 through December 31, 1998. section 734(f)(3)(A) of the Act). If the of this Agreement and exports from The Final Relevant Period shall be the ITC’s determination is affirmative, the Russia through one or more third period from January 1, 2002 through Department will not issue an countries, whether or not such exports October 23, 2002. antidumping duty order as long as the are further processed, insofar as they suspension agreement remains in force remain within the scope of the II. Product Coverage (see section 734(f)(3)(B) of the Act). Agreement, and includes further This notice is published pursuant to processing which results in minor The products covered by this section 734(f)(1)(A) of the Act. alterations, or under certain limited Agreement include hot-rolled iron and Dated: November 7, 1997. circumstances, as described in Section non-alloy steel universal mill steel Robert S. LaRussa, VII. G., further processing which results plates (i.e., flat-rolled products rolled on Assistant Secretary for Import in substantial transformation as a result four faces or in a closed box pass. of a Administration. of an attempt to circumvent the width exceeding 150 mm but not Agreement, whether or not such exports exceeding 1250 mm and of a thickness Agreement Suspending the are sold in one or more third countries of not less than 4 mm, not in coils and Antidumping Investigation on Cut-To- prior to importation into the United without patterns in relief), of Length Carbon Steel Plate From the States and whether or not the Russian rectangular shape, neither clad, plated Russian Federation producer knew the product was nor coated with metal, whether or not For the purpose of encouraging free destined to enter the United States. painted, varnished, or coated with and fair trade in cut-to-length carbon D. For purposes of this Agreement, plastics or other non-metallic steel plate (‘‘steel plate’’), establishing ‘‘United States’’ shall comprise the substances; and certain iron and non- more normal market relations, and customs territory of the United States of alloy steel flat-rolled products not in preventing the suppression or America (the 50 States, the District of coils, of rectangular shape. hot-rolled, undercutting of price levels of the Columbia and Puerto Rico) and foreign neither clad, plated, nor coated with domestic product, the United States trade zones located in the territory of metal. whether or not painted, Department of Commerce (‘‘U.S. DOC’’) the United States. varnished, or coated with plastics or and the Ministry of Foreign Economic E. ‘‘For Consumption’’ means all steel other nonmetallic substances, 4.75 mm Relations and Trade of the Russian plate sold to customers, such as, trading or more in thickness and of a width Federation (‘‘MINFER of Russia’’) enter companies, distributors, resellers, end- which exceeds 150 mm and measures at into this suspension agreement (‘‘the users, or service centers. Agreement’’). least twice the thickness. Included as F. ‘‘End-User’’ means an entity, such steel plate in this Agreement are Pursuant to this Agreement, MINFER as a steel service center, reseller, trading of Russia will restrict the volume of flatrolled products of nonrectangular company, end-user. etc. which direct and indirect exports to the United cross-section where such cross-section consumes steel plate as defined in States of steel plate from all Russian is achieved subsequent to the rolling Section I.E. producers/exporters, subject to the process (i.e., products which have been G. ‘‘Date of Sale’’ is defined as the terms and provisions set forth below. ‘‘worked after rolling’’) for example. On the basis of this Agreement, date on which price and quantity products which have been beveled or pursuant to the provisions of Section become firm, e.g., the specification date rounded at the edges. This merchandise 734(1) of the Tariff Act of 1930, as or, the date of the contract if the is currently classifiable in the amended (19 U.S.C. 1673c(1)), (see contract fixes the price and quantity for Harmonized Tariff Schedule of the Appendix II), U.S. DOC shall suspend more than one year. as recorded in the United States (‘‘HTS’’) under item its antidumping investigation with company s records kept in the ordinary numbers 7208.40.3030, 7208.40.3060. respect to steel plate produced in course of business. 7208.51.0030, 7208.51.0045, Russia, subject to the terms and H. ‘‘Export License/Temporary 7208.51.0060, 7208.52.0000, provisions set forth below. Further, U.S. Document’’ is the document issued by 7208.53.0000, 7208.90.0000, (‘‘MINFER’’) of Russia which serves also DOC will instruct the U.S. Customs 7210.70.3000, 7210.90.9000, as both a quota certificate and a Service to terminate the suspension of 7211.13.0000, 7211.14.0030, certificate of origin. An Export License/ liquidation of, and release any cash 7211.14.0045, 7211.90.0000, Temporary Document must accompany deposit or bond posted on, the steel 7212.40.1000, 7212.40.5000, all shipments of steel plate from Russia plate covered by this Agreement as of 7212.50.0000. Excluded from steel plate the effective date of this Agreement. to the United States, and must contain all of the information enumerated in the within the scope of this Agreement is I. Definitions Appendix I to this Agreement, except grade X–70 steel plate. Although the HTS subheadings are provided for For purposes of this Agreement, the that Date of Entry, Importer of Record, convenience and customs purposes, the following definitions apply. Final Destination, and Other, may be A. ‘‘Date of Export’’ for imports of omitted if unknown to MTNFFR of written description of the scope of this steel plate to the United States shall be Russia and the licensee. Agreement is dispositive. considered the date on which the Export I. Reference Price’’ means the price The products covered by the above License/Temporary Document was calculated by U.S. DOC, as described in definition shall be referred to issued. Section IV, on a quarterly basis to be hereinafter as ‘‘steel plate’’. 61782 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

III. Export Limits such Relevant Period, exceed the export Relevant Period, up to a maximum of 15 A. The export limit for each Relevant limit for that Relevant Period except as percent of the export limit for that Period shall be 100,000 metric tons of provided for in Section III.G. following Relevant Period. Such D. Any inventories of steel plate steel plate, except that for the First ‘‘carried-over’’ quota shall be counted currently held in the United States by a Relevant Period the export limit shall be against the export limit applicable to the Russian entity and imported into the 118,630 metric tons of steel plate and previous Relevant Period. United States between November 5, Export Licenses/Temporary for the Final Relevant Period the export 1996, and October 24 1997. will be Documents for up to 15 percent of the limit shall be 81,370 metric tons of steel subject to the following conditions: export limit for a subsequent Relevant plate. No later than 60 days prior to the 1. Such inventories will not be Period may be issued as early as 45 days end of the First Relevant Period, U.S. transferred or withdrawn from prior to the beginning of the subsequent DOC shall calculate an upward or inventory for consumption in the Relevant Period. Such ‘‘carried-back’’ downward adjustment to the next United States without an Export quota shall be counted against the Relevant Period’s export limit based License/Temporary Document issued by export limit applicable to the following upon the changes in U.S. apparent MINFER of Russia. Any such transfers Relevant Period. consumption for steel plate. U.S. or withdrawals from inventory shall be H. For the first 120 days after October apparent consumption will be deducted from the export limit in effect 24, 1997, steel plate shall be admitted calculated using of financial statistics of at the time the Export License/ into the United States with a the U.S. Census Bureau and data from Temporary Document is issued. ‘‘Temporary Document.’’ the American Iron and Steel Institute 2. A request for an Export License/ The volume of any such imports will regarding domestic shipments. The Temporary Document under this be deducted from the export limit maximum adjustment will be plus or provision shall be accompanied by a applicable to the First Relevant Period. minus no more than 6 percent per report specifying the data pursuant to A full reporting of any such imports, Relevant Period, and will be calculated the provisions of Russian legislation, in which must correspond to the by comparing the most recent twelve particular, the identity of the original information detailed in Appendix I.B. to months of data for U.S. apparent exporter and importer, the customer, if this Agreement, must be submitted to consumption available to U.S. DOC at known, the original date of export and U.S. DOC no later than 45 days after the the time of the calculation, to the level entry into the United States, if known, conclusion of the 120 day period. This of the previous corresponding twelve the quantity expressed in metric tons, data must be sorted on the basis of date months of data. U.S. DOC will then and a complete description of the steel of export and must be set forth on a apply the adjustment to the Relevant plate (including heat numbers and other transaction-specific basis. Period’s export limit. U.S. DOC will available identifying documentation). similarly adjust the export limit every E. Any arrangement involving the IV. Reference Price Relevant Period, and the effects of the exchange, sale, or delivery of steel plate A. Steel plate will not be sold below adjustments shall be cumulative. products from Russia whether or not the reference price in effect on the date Deductions from the export limit shall further processed within the meaning of of sale. be made based on the ‘‘Date of Export’’, I.C., to the degree it can be shown to B. The reference price issued as defined in Section I. MINFER of have resulted in the sale or delivery in quarterly by U.S. DOC shall be released Russia will not issue Export Licenses/ the United States of steel plate products by September 1, December 1, March 1, Temporary Documents accounting for from a country other than Russia, will and June 1 of each year and shall be more than sixty percent of the export be counted toward the export limit effective on October 1, January 1, April limits for any Relevant Period during under this Agreement. Any such 1, and July 1, respectively. The either semi-annual period within such transaction that does not comply with reference price for the First Relevant Relevant Period. The two semi-annual the requirements of Section V will be Period shall be issued and effective on periods within the Relevant Period are deducted from the export limit pursuant October 24. 1997. Either party is entitled defined as: (I) January 1 through June to Section VII. to request consultations regarding the 30; and (2) July 1 through December 31 F. When steel plate is imported into calculation of reference prices. and except that for the First Relevant the United States and is subsequently C. The reference price for the First Period, the two semi-annual periods are re-exported, or re-packaged and re- Relevant Period shall be as follows: defined as: (1) the period beginning on exported or further processed within the A36—$300.00 per metric ton October 24, 1997 through May 31 1998; meaning of I.C. and re-exported, the AS72—$325.00 per metric ton and (2) the period June 17 1998 through export limit shall be increased by the Until such time as U.S. DOC and December 31, 1998. and for the Final quantity re-exported. Such increase will MINFER of Russia agree, after Relevant Period, the semi-annual be applicable to the Relevant Period consultations, upon reference prices for periods are defined as: (1) January 1, corresponding to the time of such re- other grades of steel plate, only grades 2002 through May 31, 2002; and (2) June export. Such increase will be applied A36 and A572 rnay be exported to the 1, 2001 through October 23, 2002. only after U.S. DOC receives, and has United States. Consultations regarding B. On and after October 24, 1997, the opportunity to verify, evidence reference prices for other grades of steel MINFER of Russia will restrict the demonstrating original importation. any plate shall be held within 30 days of a volume of direct or indirect exports of repackaging or further processing, and request and shall be completed within steel plate to the United States, and the subsequent exportation. 15 days. transfer and withdrawal from inventory G. Export Licenses/Temporary D. For each subsequent Relevant of steel plate (consistent with the Documents issued for a given Relevant Period, the reference price will be provisions of Section III.D) in Period may not be used after the adjusted on a quarterly basis to reflect accordance with the export limit then in expiration of that Relevant Period, the change in the BLS Producer Price effect. except that Export Licenses/Temporary Index (PPI) for carbon steel plate over C. Any amount delivered during a Documents not used during the the three months for which data is Relevant Period shall not when Relevant Period may be used during the available preceding the date on which cumulated with all prior deliveries in first three months of the following the reference price is issued. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61783

If the last month of BLS PPI for the reference price, export limits, and/or exporters of steel plate for the duration three-month period preceding the date Export Licenses/Temporary Documents of this Agreement in accordance with on which the reference price is issued which come to its attention and the Russian legislation. has fallen by more than 2.6 percent from actions taken with respect thereto. E. Impose strict measures, such as the average of the first two months of E. Export Licenses/Temporary prohibition from participation in the the period, the reference price will be Documents will be issued sequentially, export limits allowed by the Agreement. adjusted on the basis of the PPI for the endorsed against the export limit for the in the event that any Russian entity does last month of the three-month period. Relevant Period, and will reference the not comply in full with the terms of the E. MINFER of Russia will ensure that, notice of quota allocation results for the Agreement. with respect to merchandise covered by appropriate Relevant Period. F. Require that purchasers agree not to each Export License/Temporary F. Export License/Temporary circumvent this Agreement, report to Document, the Russian unit values of Document must be issued no earlier MINFER of Russia subsequent steel plate exports will equal or exceed than 90 days before the day on which arrangement entered into for the sale, the reference price at equivalent points the steel plate is accepted-by a exchange, or loan to the United States in the transaction chain. The reference transportation company, as indicated in of steel plate purchased from Russia, price will be F.O.B. port. MINFER of the bill of lading or a comparable and include these same provisions in Russia will ensure that contracts and all transportation document, for export. any subsequent contracts involving steel relevant documentation will be Export License/Temporary Document plate purchased from Russia. available to U.S. DOC and will be must be also issued in English. G. For purposes of this Agreement the subject to verification. G. On and after October 24, 1997, the duration of validity of Export Licenses/ Temporary Documents will be six (6) V. Export License/Temporary Document United States shall require presentation of an original stamped Export License/ months. U.S. D.O.C. and MINFER of A. MINFER of Russia shall restrict the Temporary Document as a condition for Russia may agree to an extension of the volume of direct or indirect exports of entry of steel plate into the United validity of the Export License/ steel plate to the United States by means States. The United States will prohibit Temporary Document in cases of force of annual quota allocations and Export the entry of any steel plate not majeure. Licenses/Temporary Documents. Export accompanied by an original stamped VII. Anticircumvention Licenses/Temporary Documents shall be Export License/Temporary Document.1 issued by MINFER of Russia for all A. MINFER of Russia will take all direct or indirect exports of steel plate VI. Implementation appropriate measures under Russian law to prevent circumvention of this to the United States in accordance with In order to effectively restrict the Agreement. It shall respond promptly to the export limit in Section III and the volume of exports of steel plate to the conduct an inquiry into allegations of reference price in Section IV. United States, MINFER of Russia agrees circumvention, including allegations B. Thirty days following the to implement the following procedures raised by U.S. DOC, and shall complete allocation of quota rights for any no later than 90 days after October 24 such inquiries in a timely manner Relevant Period. 1997, except as noted in Section VI.A.: (normally within 45 days). MINFER of MINFER of Russia shall provide to A. Establish a quota and licensing Russia shall notify U.S. DOC of the U.S. DOC a notice identifying each program for all exports of steel plate to, results of its inquiries within 15 days of quota recipient and the volume of quota or destined directly or indirectly for the conclusion of such inquiries. Within which each recipient has been accorded consumption in, the United States no 15 days of a request from U.S. DOC, (‘‘notice of quota allocation results’’). later than 120 days after October 24, MINFER of Russia shall share with U.S. MINFER of Russia shall not be required 1997. to seek the approval of U.S. DOC for B. Ensure compliance by any official DOC all information received or changing the volume of quota assigned Russian institution, chamber, or other collected by MINFER of Russia to individual quota recipients. MINFER entities authorized by the Government regarding its inquiries, its analysis of of Russia shall inform U.S. DOC of any of Russia all Russian producers, such information, and the results of changes in the volume of quota assigned exporters, brokers. and traders of the such inquiries. MINFER of Russia will to individual quota recipients within 60 steel plate, and their relevant affiliated require all Russian exporters of steel days of the date on which such changes parties; as well as relevant trading plate to include a provision in their become effective. companies/resellers utilized by the contracts for sales to countries other C. Before it issues an Export License/ Russian producer to make sales to the than the United States that the steel Temporary Document, MINFER of United States. with all procedures plate sold through such contracts cannot Russia will ensure that the Relevant established in order to effectuate this be re-exported, transshipped, or Period’s export limit is not exceeded Agreement. swapped to the United States, or and that the price for the steel plate is C. Collect information-from all otherwise used to circumvent the export at or above the reference price. Russian producers, exporters, brokers, limits of this Agreement. This D. MINFER of Russia shall take and traders of steel plate, and their requirement does not apply to exports to measures, as may be necessary, to make relevant affiliated parties, as well as the United States through a third effective the obligations resulting from relevant trading companies/resellers country which are accompanied by a the reference price, export limits and utilized by the Russian producer, on the valid Export License/Temporary Export Licenses/Temporary Documents. sale of the steel plate, and report such Document. MINFER of Russia will also MINFER of Russia will inform U.S. DOC information pursuant to Article VIII.A of establish appropriate mechanisms to of any violations concerning reference this Agreement enforce this requirement. B. If, in an inquiry pursuant to price, export limits and/or Export D. Issue Export Licenses/Temporary Section VI.A, MINFER of Russia Licenses/Temporary Documents which Documents to Russian producers and come to its attention and the measures determines that a Russian entity has taken with respect thereto. 1 The validity of an Export License/Temporary participated in a transaction that U.S. DOC will inform MINFER of Document will not be affected by a subsequent resulted in circumvention of the export Russia of violations concerning the change of an HTS number. limits of this Agreement, then MINFER 61784 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices of Russia shall impose measures on statement certifying that the steel plate regardless of the sequence of the such company including, but not being imported was not obtained under transaction. limited to, denial of access to a quota for any arrangement, swap, or other H. U.S. DOC will enter its the steel plate. Additionally, MINFER of exchange which would result in the determinations regarding circumvention Russia shall deduct an amount of steel circumvention of the export limits into the record of the Agreement. plate equivalent to the amount involved established by this Agreement. Where I. MINFER of Russia may request an in such circumvention from the export U.S. DOC has reason to believe that extension of up to 15 days for any of the limit and shall immediately notify U.S. such a certification has been made deadlines mentioned in this Section. DOC of the amount deducted. If falsely, U.S. DOC will refer the matter sufficient tonnage is not available in the to the U.S. Customs Service or U.S. VIII. Monitoring current Relevant Period, then the Department of Justice for further action. MINFER of Russia will provide to remaining amount necessary shall be F. U.S. DOC will take the following U.S. DOC such information as is deducted from the subsequent Relevant factors into account in distinguishing necessary and appropriate to monitor Period. normal steel plate market arrangements, the implementation of and compliance C. If MINFER of Russia determines swaps, or other exchanges from with the terms of this Agreement. U.S. that a company from a third country has arrangements, swaps, or other DOC shall provide semi-annual reports circumvented the Agreement and the exchanges which would result in the to MINFER of Russia indicating the parties agree that no Russian entity circumvention of the export limits volume of imports of the steel plate to participated in or had knowledge of established by this Agreement: the United States, together with such such activities, then the parties shall 1. Existence of any verbal or written additional information as is necessary hold consultations for the purpose of arrangements which would result in the and appropriate to monitor the sharing information regarding such circumvention of the export limits implementation of this Agreement. circumvention and reaching mutual established by this Agreement; A. Reporting of Data agreement on the appropriate measures 2. Existence of any arrangement as to be taken to eliminate such defined in Section III.E that was not Beginning on October 24, 1997, circumvention. If the parties are unable reported to U.S. DOC pursuant to MINFER of Russia shall collect and to reach mutual agreement within 45 Section VIII; provide to U.S. DOC information for days, then U.S. DOC may take 3. Existence and function of any exports to the United States set forth in appropriate measures, such as subsidiaries or affiliates of the parties the agreed format in the Appendix I to deducting the amount of steel plate involved; this Agreement. All such information involved in such circumvention from 4. Existence and function of any will be provided to U.S. DOC by March the export limit, or instructing U.S. historical and/or traditional trading 31st of each year for exports to the Customs to deny entry to any steel plate patterns among the parties involved; United States during the period from sold by the entity found to be 5. Deviations (and reasons for July 1st through December 31st. In circumventing the Agreement, taking deviation) from the above patterns, addition, such information will be into account all relevant factors. Before including physical conditions of provided to U.S. DOC by September taking such measures U.S. DOC will 30th for exports from January 1st notify MINFER of Russia of the facts and relevant steel plate facilities; through June 30th, or within 90 days of reasons constituting the basis for U.S. 6. Existence of any payments a request made by U.S. DOC. Such DOC’s intended action and will afford unaccounted for by previous or information will be subject to the MINFER of Russia 15 days in which to subsequent deliveries, or any payments comment. to one party for steel plate delivered or verification provision identified in D. If U.S. DOC determines that a swapped by another party; Section VIII.C of this Agreement. Russian entity participated in 7. Sequence and timing of the MINFER of Russia agrees to provide circumvention the parties shall hold arrangements; and Export Licenses/Temporary Documents consultations for the purpose of sharing 8. Any other information relevant to to only those Russian producers/ evidence regarding such circumvention the transaction or circumstances. exporters which permit verification and and reaching mutual agreement on an G. ‘‘Swaps’’ include, but are not full reporting of data. U.S. DOC may appropriate resolution of the problem. If limited to: disregard any information submitted the parties are unable to reach mutual Ownership swaps—involve the after the deadlines set forth in this agreement within 60 days, U.S. DOC exchange of ownership of steel plate Section or any information which it is may take appropriate measures, such as without physical transfer. These may unable to verify to its satisfaction. deducting the amount of steel plate include exchange of ownership of steel Aggregate quantity and value of involved in such circumvention from plate in different countries, so that the exports of steel plate to each third the export limit or instructing U.S. parties obtain ownership of products country will be provided to U.S. DOC by Customs to deny entry to any steel plate located in different countries, or March 31st of each year for exports sold by the entity found to be exchange of ownership of steel plate during the period from July 1st through circumventing the Agreement. Before produced in different countries, so that December 31st. In addition, such taking such measures, U.S. DOC will the parties obtain ownership of products information will be provided to U.S. notify MINFER of Russia of the facts and of different national origin. DOC by September 30th for exports reasons constituting the basis for U.S. Flag swaps—involve the exchange of from January 1st through June 30th. DOC’s intended action and will afford indicia of national origin of steel plate, Upon request by the U.S. DOC, MINFER of Russia 30 days in which to without any exchange of ownership. transaction-specific data for exports of comment. Displacement swaps—involve the sale steel plate to third country(ies) and E. U.S. DOC shall direct the U.S. or delivery of steel plate from Russia to home market sales of steel plate will Customs Service to require all importers an intermediary country (or countries) also be reported in the format provided of steel plate into the United States, which can be shown to have resulted in in the Appendix I. This information regardless of stated country of origin, to the ultimate delivery or sale into the shall be provided within 45 days of the submit at the time of entry a written United States of displaced steel plate, request. However, MINFER of Russia Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61785 may request an extension of up to 30 semi-annually or upon request, and in U.S. DOC will take such action as it days. any administrative review of this determines is appropriate under the Both Parties recognize that the Agreement. U.S. laws and regulations. effective monitoring of this Agreement B. Not later than 45 days after the date C. MINFER of Russia may request an may require that MINFER of Russia of disclosure under Section VIII.A, the extension of up to 15 days for any of the provide information additional to that parties to the proceeding may submit deadlines mentioned in this Section. which is identified above. Accordingly, written comments to U.S. DOC, not to XII. Duration U.S. DOC may establish additional exceed 30 pages. reporting requirements, as appropriate, C. During the anniversary month of The export limit provided for in during the course of this Agreement. this Agreement each party to the Section III of this Agreement shall U.S. DOC shall provide notice to proceeding may request a hearing on remain in force from October 24, 1997 MINFER of Russia of any additional issues raised during the preceding through October 23, 2002. reporting requirements no later than 45 Relevant Period. If such a hearing is U.S. DOC will, upon receiving a days prior to the period covered by such requested, it will be conducted in proper request made by MINFER of reporting requirements unless a shorter accordance with U.S. laws and Russia, conduct an administrative notice period is mutually agreed. regulations. review under the U.S. laws and MINFER of Russia may request an regulations. U.S. DOC expects to X. Consultations extension of up to 30 days for any of the terminate this Agreement and the deadlines mentioned in this Section. MINFER of Russia and U.S. DOC shall underlying investigation no later than 5 B. Other Sources for Monitoring hold consultations regarding matters years from October 24, 1997, provided concerning the implementation that no Russian entity has been found to U.S. DOC will review publicly operation including the calculation of have violated the Agreement in any available data as well as U.S. Customs reference prices, and/or enforcement of substantive manner. Such review and entry summaries and other of financial this Agreement. Such consultations will termination shall be conducted with import data from the Bureau of the be held each year during the U.S. laws and regulations. Census, on a monthly basis, to anniversary month of this Agreement. MINFER of Russia may terminate this determine whether there have been Additional consultations may be held at Agreement at any time upon notice to imports that are inconsistent with the any other time upon request of either U.S. DOC. Termination shall be effective provisions of this Agreement. MINFER of Russia or U.S. DOC. 60 days after such notice is given to U.S. U.S. DOC will monitor Bureau of the XI. Violations of the Agreement DOC. Upon termination at the request of Census computerized records, which MINFER of Russia, the provisions of include the quantity and value of each A. Violation U.S. laws and regulations shall apply. entry. Because these records do not provide other specific entry ‘‘Violation’’ means noncompliance XIII. Other Provisions with the terms of this Agreement caused information, such as the identity of the A. U.S. DOC finds that this Agreement producer/exporter which may be by an act or omission, in accordance with U.S. Laws and regulations. is in the public interest, that effective responsible for such sales, U.S. DOC monitoring of this Agreement by the may request the U.S. Customs Service to MINFER of Russia and U.S. DOC will inform the other Party of any violations United States is practicable, and that provide such information. U.S. DOC this Agreement will prevent the may request other additional of the Agreement which come to their attention and the action taken with suppression or undercutting of price documentation from the U.S. Customs levels of United States domestic steel Service. respect thereto. Exports in excess of the export limits plate products by imports of the steel U.S. DOC may also request the U.S. plate subject to this Agreement. Customs Service to direct ports of entry set out in this Agreement shall not be considered a violation of this Agreement B. U.S. DOC does not consider any of to forward an Antidumping Report of the obligations concerning exports of Importations for entries of the steel plate or an indication the Agreement no longer meets the requirements of U.S. steel plate to the United States during the period this Agreement is in undertaken by MINFER of Russia effect. laws and regulations where such exports are inconsequential, pursuant to this Agreement relevant to C. Verification inadvertent, and are applied against the the question of whether firms in the MINFER of Russia will permit full export limits of the following Relevant underlying investigation would be verification of all information related to Period. entitled to separate rates, should the the administration of this Agreement, on Prior to making a determination of an investigation be resumed for any reason. an annual basis or more frequently, as alleged violation, U.S. DOC will engage C. The English and Russian language the U.S. D.O.C. deems necessary to in emergency consultations. Such versions of this Agreement shall be ensure that MINFER of Russia is in full consultations shall begin no later than authentic and equally binding, with the compliance with the terms of the 21 days from the day of request and English version being controlling. Agreement. Such verifications may take shall provide for full review, but in no D. All provisions of this Agreement, place in association with scheduled event will exceed 40 days. After including the provisions of the consultations whenever possible. consultations, U.S. DOC will provide Preamble, shall have equal force. MINFER of Russia 20 days within which E. For all purposes hereunder, the IX. Disclosure and Comment to provide comments. U.S. DOC will signatory Parties shall be represented A. U.S. DOC shall make available to make a determination within 30 days by, and all communications and notices representatives of each party to the after the date established for submission shall be given and addressed to: proceeding, under appropriately-drawn of comments by MINFER of Russia. Department: U.S. Department of administrative protective orders Commerce, Assistant Secretary for consistent with U.S. laws and B. Appropriate Action Import Administration, International regulations, business proprietary If U.S. DOC determines that this Trade Administration, Washington, information submitted to U.S. DOC Agreement is being or has been violated, D.C. 20230 61786 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Ministry: Head of Department for the B. Exports to The United States 1. Export License/Temporary Document: Regulation of External Economic MINFER of Russia will provide all Export Indicate the number(s) relating to each Activities of the Ministry for Foreign License/Temporary Document, which shall sale and/or entry, if any. 2. Quantity: Indicate in original units of Economic Relations and Trade of the contain the following information except that measure sold and/or entered in metric information requested in item #9, date of Russian Federation, 18/1 tons. Ovchinnikovskaya naberezhnaya, entry, item #10, importer of record, item #16, #17 3. Date of Sale: The date all essential terms Moscow∼ 1 13324, Russia final destination, and item other, may be of the order (i.e., price and quantity) omitted if unknown to MINFFR of Russia and XIV. Effective Date become fixed. the Russian licensee. 4. Sales Order Number(s): Indicate the The effective date of this Agreement 1. Export License/Temporary Document: number(s) relating to each sale and/or suspending the antidumping Indicate the number(s) relating to each entry. investigation on cut-to-length carbon sale and or entry. 5. Date of Export: Date Export License/ steel plate from Russia shall be October 2. Complete Description of Merchandise: Temporary Document is issued, if any. 24, 1997. Include the 10 digit HTS category, and 6. Date of Entry: Date the merchandise the ASTM or equivalent grade. entered the third country or the date a Signed on this 24th day of October, 1997. 3. Quantity: Indicate in metric tons. book transfer took place. For U.S. DOC. 4. F.O.B. Sales Value: Indicate currency used. 7. Importer of Record: Name and address. Robert LaRussa, 5. Unit Price: Indicate currency used per 8. Customer: Name and address of the first unaffiliated party purchasing from the Assistant Secretary for Import metric ton. Russian exporter. Administration. 6. Date of Sale: The date all essential terms of the order (i.e, price and quantity) 9. Customer Relationship: Indicate whether For MINFER of Russia. become fixed. the customer is affiliated or unaffiliated. Vladimir M. Chibirev, 7. Sales Order Number(s): Indicate the 10. Other: The identity of any party(ies) in Acting Trade Representative of the Russian number(s) relating to each sale and/or the transaction chain between the Federation to the United States. entry. customer and the final destination. 8. Date of Export: Date the Export License/ Appendix I D. Home Market Sales Temporary Document is Issued. In accordance with the established format, Pursuant to Section VIII, paragraph A, the 9. Date of Entry: Date the merchandise MINFER of Russia will provide home market MINFER of Russia shall collect and provide entered the United States or the date to U.S. DOC all information necessary to volume and value information for sales of book transfer took place. steel plate, upon request. The following ensure compliance with this Agreement. This 10. Importer of Record: Name and address. information will be provided-to U.S. DOC on information shall be provided with the 11. Trading Company: Name and address of exception of item #6, if unknown to MINFER a semi-annual basis. trading company involved in sale. MINFER of Russia will collect and of Russia and the Russian producer/exporter. 12. Customer: Name and address of the first maintain data on exports to the United States 1. Quantity: Indicate in original units of unaffiliated party purchasing from the on a continuous basis. Sales data for the measure sold and/or entered in metric Russian exporter. home market, and data for exports to tons. . 13. Customer Relationship: Indicate whether countries other than the United States. will 2. Date of Sale: The date all essential terms the customer is affiliated or unaffiliated be reported upon request. of order (i.e., price and quantity) become MINFER of Russia will provide a narrative to the Russian exporter. fixed. explanation to substantiate all data collected 14. Quota Allocated to Exporter: Indicate the 3. Sales Order Number(s): Indicate the in accordance with the following formats. total amount of quota allocated to the number(s) relating to each sale and/or individual exporter during the Relevant entry. A. Report of Inventories Period. 4. Customer: Name and address of the first Report by location, the inventories held by 15. Quota Remaining: Indicate the remaining unaffiliated party purchasing from the Russian entities in the United States and quota available to the individual Russian exporter. imported into the United States during the exporter during the Relevant Period. 5. Customer Relationship: Indicate whether period November 5, 1996 through October 16. Final Destination: The complete name the customer is affiliated or unaffiliated. 24, 1997. and address of the end-user. 6. Other: The identity of any party(ies) in the l. Quantity: Indicate original units of measure 17. Other: The identity of any party(ies) in transaction chain between the customer and in metric tons. the transaction chain between the and the final destination. customer and the final destination/end- 2. Location: Identify where the inventory is Appendix II currently being held. Provide the name user. Section 734 (1) of the Tariff Act of 1930 as and address for the location. Mill Certification amended: 3. Titled Party: Name and address of party MINFER of Russia shall ensure that all who legally has title to the steel plate. shipments of steel plate exported to the (1) Special Rule for Non-Market Economy 4. Export License/Temporary Document United States pursuant to this Agreement, Countries Number: Indicate the number(s) relating shall be accompanied by a copy of the to each entry now being held in (I) In General.—The administering inventory. original mill certification, which includes the authority may suspend an investigation 5. Certificate of Origin Number(s): Indicate heat number(s). under this subtitle upon acceptance of an agreement with a non-market economy the number(s) relating to each sale or C. Exports Other Than to The United States entry. country to restrict the volume of imports into 6. Date of Original Export: Date the Export Pursuant to Section VIII, paragraph A, the United States of the merchandise under License/Temporary Document is issued. MINFER of Russia will provide country- investigation only if the administering 7. Date of Entry: Date the steel plate entered specific volume and value information for authority determines that: the United States or the date book exports of steel plate to third countries, upon (A) such agreement satisfies the requirements transfer took place. request, regardless of whether MINFER of of subsection (d), and 8. Original Importer: Name and address. Russia licenses exports of steel plate to such (B) will prevent the suppression or 9. Original Exporter: Name and address. country(ies). The following information shall undercutting of price levels of domestic 10. Complete Description of Merchandise: be provided except that information products by imports of the merchandise Include heat numbers, HTS numbers, requested in item #6, date of entry, #7, under investigation. physical description. ASTM importer of record, and item #10, may be (2) Failure of Agreements.—If the specification, and other available omitted if unknown to MINFER of Russia and administering authority determines that the information. the Russian licensee. agreement accepted under this subsection no Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61787 longer prevents the suppression or publicly-available information (PAI) the POI is that of a publicly owned joint undercutting of domestic prices of from surrogate countries to value certain stock company, where the state owned merchandise manufactured in the United factors of production. The Department 20% of the shares. States, the provisions of subsection (I) shall received responses on August 15, 1997, To establish whether a firm is apply. and comments on August 22, 1997. sufficiently independent from [FR Doc. 97–30395 Filed 11–18–97; 8:45 am] government control to be entitled to a Scope of Investigation BILLING CODE 3510±DS±P separate rate, the Department analyzes The products covered by this each exporting entity under a test investigation are hot-rolled iron and arising out of the Final Determination of DEPARTMENT OF COMMERCE non-alloy steel universal mill plates Sales at Less Than Fair Value: Sparklers (i.e., flat-rolled products rolled on four from the People’s Republic of China, 56 International Trade Administration faces or in a closed box pass, of a width FR 20588 (May 6, 1991) (Sparklers) and [A±821±808] exceeding 150 mm but not exceeding amplified in Final Determination of 1250 mm and of a thickness of not less Sales at Less Than Fair Value: Silicon Notice of Final Determination of Sales than 4 mm, not in coils and without Carbide from the People’s Republic of at Less Than Fair Value: Certain Cut- patterns in relief), of rectangular shape, China, 59 FR 22585 (May 2, 1994) to-Length Carbon Steel Plate from the neither clad, plated nor coated with (Silicon Carbide). Under the separate Russian Federation metal, whether or not painted, rates criteria, the Department assigns varnished, or coated with plastics or separate rates in nonmarket economy AGENCY: Import Administration, other nonmetallic substances; and cases only if a respondent can International Trade Administration, certain iron and non-alloy steel flat- demonstrate the absence of both de jure Department of Commerce. rolled products not in coils, of and de facto governmental control over EFFECTIVE DATE: November 19, 1997. rectangular shape, hot-rolled, neither export activities. FOR FURTHER INFORMATION CONTACT: clad, plated, nor coated with metal, Nithya Nagarajan at (202) 482–1324 or whether or not painted, varnished, or 1. Absence of De Jure Control Eugenia Chu at (202) 482–3964, Import coated with plastics or other An individual company may be Administration, International Trade nonmetallic substances, 4.75 mm or considered for a separate rate if it meets Administration, U.S. Department of more in thickness and of a width which the following de jure criteria: (1) an Commerce, 14th Street and Constitution exceeds 150 mm and measures at least absence of restrictive stipulations Avenue, N.W., Washington, D.C. 20230. twice the thickness. Included as subject associated with an individual exporter’s Applicable Statute: Unless otherwise merchandise in this petition are flat- business and export licenses; (2) any indicated, all citations to the statute are rolled products of nonrectangular cross- legislative enactments decentralizing references to the provisions effective section where such cross-section is control of companies; and (3) any other January 1, 1995, the effective date of the achieved subsequent to the rolling formal measures by the government amendments made to the Tariff Act of process (i.e., products which have been decentralizing control of companies. 1930 (the Act) by the Uruguay Round ‘‘worked after rolling’’)—for example, Severstal has placed on the Agreements Act (URAA). In addition, products which have been bevelled or administrative record a number of unless otherwise indicated, all citations rounded at the edges. This merchandise documents demonstrating absence of de to the Department’s regulations are to 19 is currently classified in the jure control. These documents include C.F.R. part 353 (1997). Harmonized Tariff Schedule of the laws, regulations, and provisions Final Determination: We determine United States (HTS) under item enacted by the government of the that certain cut-to-length steel plate numbers 7208.40.3030, 7208.40.3060, Russian Federation, describing the (CTL plate) from the Russian Federation 7208.51.0030, 7208.51.0045, deregulation of Russian enterprises as is being, or is likely to be, sold in the 7208.51.0060, 7208.52.0000, well as the deregulation of the Russian United States at less than fair value 7208.53.0000, 7208.90.0000, export trade (except for a list of (LTFV), as provided in section 735 of 7210.70.3000, 7210.90.9000, products that may be subject to the Act. 7211.13.0000, 7211.14.0030, government export constraints which Severstal claims, and the Department Case History 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, verified, do not include subject Since the preliminary determination 7212.50.0000. Excluded from the subject merchandise). Specifically, Severstal in this investigation (Preliminary merchandise within the scope of the provided English translations of the Determination of Sales at Less Than petition is grade X–70 plate. Although laws and regulations governing their Fair Value: Certain Cut-to-Length the HTS subheadings are provided for enterprises. These laws and regulations Carbon Steel Plate From the Russian convenience and customs purposes, our authorized Severstal to make its own Federation, 62 FR 31967 (June 11, written description of the scope of this operational and managerial decisions 1997)), the following events have investigation is dispositive. See during the POI. See Separate Rates occurred: memorandum on Scope of Memorandum, dated June 3, 1997. In June 1997, we verified the Investigations on Carbon Steel Plate, 2. Absence of De Facto Control Severstal’s questionnaire responses. On from Joseph Spetrini to Robert S. July 23, 1997, the Department issued its LaRussa (October 24, 1997). The Department typically considers report on verification findings. four factors in evaluating whether each Petitioners and Respondent, Severstal, Period of Investigation (POI) respondent is subject to de facto submitted case briefs on July 31, 1997, The POI is April 1, 1996 through governmental control of its export and rebuttal briefs on August 5, 1997. A September 30, 1996. functions: (1) whether the export prices public hearing was not requested nor (‘‘EP’’) are set by or subject to the held. Separate Rates approval of a governmental authority; On August 8, 1997, the Department Severstal has requested a separate, (2) whether the respondent has provided interested parties the company-specific rate. The claimed authority to negotiate and sign contracts opportunity to submit additional ownership structure of Severstal during and other agreements; (3) whether the 61788 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices respondent has autonomy from the information by the deadlines for the petition shows that petitioners government in making decisions submission of the information or in the calculated export price based on two regarding the selection of management; form and manner requested, subject to methods: (1) the import values declared and (4) whether the respondent retains subsections (c)(1) and (e) of section 782; to the U.S. Customs Service; and (2) an the proceeds of its export sales and (C) significantly impedes a proceeding average export price derived from actual makes independent decisions regarding under this title; or (D) provides such U.S. selling prices known to petitioners. disposition of profits or financing of information but the information cannot We compared the starting prices used by losses. be verified as provided in section 782(i), petitioner less the importer mark-ups Severstal asserted, and we verified, the administering authority * * * shall, against prices derived from U.S. import the following: (1) it establishes its own subject to section 782(d), use the facts statistics and found that the two sets of EPs; (2) it negotiates contracts without otherwise available in reaching the prices were consistent. We also guidance from any governmental applicable determination under this compared the movement charges used entities or organizations; (3) it selects its title.’’ in the petition with the surrogate values own management; and (4) it retains the In addition, section 776(b) of the Act used by the Department in its margin proceeds of its export sales, uses profits provides that, if the Department finds calculations and found them to be according to its business needs, and has that an interested party ‘‘has failed to consistent. the authority to sell its assets and to cooperate by not acting to the best of its The information in the petition with obtain loans. In addition, Severstal’s ability to comply with a request for respect to the normal value (NV) is questionnaire responses indicate that information,’’ the Department may use based on factors of production used by company-specific pricing during the information that is adverse to the the petitioner in the production of steel POI does not suggest coordination interests of that party as the facts plate. Petitioner submitted usage among exporters. During verification otherwise available. The statute also amounts for materials, labor and energy, proceedings, Department officials provides that such an adverse inference adjusted for known differences in viewed such evidence as sales may be based on secondary information, production efficiencies. To account for documents, company correspondence, including the information drawn from differences between the production and bank statements. This information the petition. processes of petitioners and potential As discussed above, all Russian supports a finding that, during the POI, respondents, Petitioner submitted three exporters that do not qualify for a there was a de facto absence of cost models in the petition: (1) Basic separate rate are treated as a single governmental control of export Oxygen Furnace (BOF) Cost Model; (2) functions. In addition, we determined enterprise. Because some exporters of Open-Hearth Furnace Cost Model; and that Severstal had autonomy from the the single enterprise failed to respond to (3) Weighted Average Normal Value of government in making decisions the Department’s requests for the BOF and Open-Hearth methods. regarding the selection of management information, that single enterprise is during the POI. Therefore, we have considered to be uncooperative. In such The margins in the petition, which concluded that Severstal is entitled to a situations, the Department generally ranged from 139.97 to 230.38 percent, separate rate. See Separate Rates selects as total facts available either the were obtained by Petitioners by Memorandum, dated June 3, 1997. higher of the average of the margin from comparing the normal values to the the petition or the highest rate export price developed from customs The Russia-Wide Rate calculated for a respondent in the values and to export prices developed U.S. import statistics indicate that the proceeding. See, e.g., Notice of Final from actual U.S. price quotes. For each total quantity and value of U.S. imports Determination of Sales at Less Than method, petitioners submitted estimated of certain carbon steel plate from the Fair Value: Persulfates From the dumping margins for the BOF method, Russian Federation is greater than the People’s Republic of China, 96 FR 27222 the open-hearth method and a weighted- total quantity and value of steel plate (May 19, 1997). In the present case, the average of the two. See Corroboration reported by all Russian companies that average margin in the petition is higher Memorandum, dated June 3, 1997. submitted responses. Given this than the one calculated rate. Fair Value Comparisons discrepancy, we conclude that not all Accordingly, the Department has based exporters of Russian carbon steel plate the Russia-wide rate on information in To determine whether the sale of responded to our questionnaire. the petition. In this case, the average certain carbon steel plate from the Accordingly, we are applying a single petition rate is 185.00 percent. Russian Federation sold to the United antidumping deposit rate—the Russia- Section 776(c) of the Act provides that States by the Russian exporters wide rate—to all exporters in the where the Department relies on receiving separate rates were made at Russian Federation (other than ‘‘secondary information,’’ the less than fair value, we compared the EP Severstal), based on our presumption Department shall, to the extent to the NV, as specified in the ‘‘Export that those respondents who failed to practicable, corroborate that information Price’’ and ‘‘Normal Value’’ sections of respond constitute a single enterprise from independent sources reasonable at this notice. and are under common control by the the Department’s disposal. The Export Price Russian Federation government. See, Statement of Administrative Action e.g., Final Determination of Sales at Less (SAA), accompanying the URAA (H. For Severstal, we calculated EP in Than Fair Value: Bicycles from the Doc. 316, Vol. 1, 103d Cong., 2d Sess. accordance with section 772(a) of the People’s Republic of China, 61 FR 19026 870 (1996)), clarifies that the petition is Act, because the subject merchandise (April 30, 1996). ‘‘secondary information’’ and that was sold directly to the first unaffiliated This Russia-wide antidumping rate is ‘‘corroborate’’ means to determine that purchaser in the United States prior to based on adverse facts available. Section the information used has probative importation and constructed export 776(a)(2) of the Act provides that ‘‘if an value. See SAA at 870. price (CEP) methodology was not interested party or any other person (A) In accordance with section 776(c) of otherwise indicated. In accordance with withholds information that has been the Act, we corroborated the margins in section 777A(d)(1)(A)(i) of the Act, we requested by the administering the petition to the extent practicable. compared POI-wide weighted-average authority; (B) fails to provide such The information contained in the EPs to the factors of production. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61789

We corrected Severstal’s data for production records and original source Additionally, Severstal argues that it is errors and minor omissions found at documents provided by Severstal. the Department’s standard to accept verification and submitted to the Comment 1: Input Freight Factors for such corrected data. Department. We calculated EP in Limestone and Ferroalloy Purchases. Department Position accordance with our preliminary Petitioners claim that Severstal falsely calculations, except that we: (1) reported no transportation costs We agree with Petitioner that the corrected for the errors found at incurred in connection with its Department must resort to facts verification as submitted by Severstal on purchases of limestone and ferroalloys available to calculate freight for July 18, 1997, and (2) corrected input for use as raw material inputs. ferroalloys. Section 776(b) of the Act freight factors for limestone and Petitioners state that at verification the provides that adverse inferences may be ferroalloy purchases based on findings Department determined that one of used if a party has failed to cooperate from verification, see Comments below. Severstal’s two limestone suppliers is by not acting to the best of its ability to located near Severstal’s Cherepovets comply with requests for information. Normal Value facility, and the other is located a fair Severstal reported no transportation Section 773(c) of the Act requires the distance away. Additionally, Petitioners costs for its purchase of ferroalloys Department to value the factors of assert that Severstal has numerous despite the fact that none of the production, to the extent possible, in suppliers of ferroalloys located at suppliers of ferroalloys are located in one or more market economy countries varying distances from Severstal’s the vicinity of Severstal’s steel mill. that are at a level of economic facility. Petitioners argue that the failure Therefore, for the final determination, development comparable to that of the to report these facts was not an we have used the greatest reported non-market economy country and that ‘‘inadvertent’’ error and the information distance to calculate freight for are significant producers of comparable does not constitute a ‘‘minor’’ ferroalloys as adverse facts available. merchandise. correction. Therefore, Petitioners argue However, based on the fact that a In our preliminary determination, we that the Department should treat major source of limestone is located in selected Brazil as our surrogate country. Severstal’s withholding of this the immediate vicinity of Severstal’s Brazil is an appropriate country for the information as a failure to provide steel mill, we agree with Severstal that reasons set forth in our preliminary requested information in a timely the other source was a mere oversight determination. See the January 27, 1997 fashion and an impediment to this and constitutes an inadvertent error. memorandum from the Office of Policy proceeding. Petitioners rely on Titanium Therefore, we did not use the greatest discussing our selection of surrogate Sponge from the Russian Federation; distance to calculate freight for countries for Russia (Policy Memo). Notice of Final Results of Antidumping limestone. Instead, we have used, as Since we find no compelling reason to Duty Administrative Review, 61 FR adverse facts available, a simple average change this selection, we have 58525 (Nov. 15, 1996) (Titanium Sponge of the two verified distances to calculate continued to base FMV on the values of from Russia) to argue that the transportation costs incurred with the factors of production as valued in Department may not accept this new Severstal’s purchase of limestone. Brazil. information at verification, stating that The submission of these corrections is ‘‘the Department accepts new not the same as the submission of data, Factors of Production information at verification only when rejected by the Department in Titanium We calculated NV based on factors of (1) the need for that information was not Sponge from Russia, where a party production cited in the preliminary evident previously, (2) the information claimed a by-product deduction at determination, making adjustments for makes minor corrections to information verification. Severstal’s information, specific verification findings. See Final already on the record, or (3) the contrary to Petitioners’ assertions, Determination Calculation information corroborates, supports, or constitutes a minor correction to the Memorandum, dated October 24, 1997. clarifies information already on the information placed on the record by To calculate NV, we multiplied the record.’’ Furthermore, Petitioners argue Severstal and it has a negligible impact verified amounts for the factors of that, because Severstal did not act to the on the weighted-average margin production by the appropriate surrogate best of its ability in responding to the calculation. Therefore, we have value for the different inputs. We have Department’s requests, the Department accepted this information. However, as used the same surrogate sources as in should apply adverse facts available by stated above, we have used facts the preliminary determination with the calculating freight for both limestone available to calculate freight for both exception of overhead, SG&A, and and ferroalloys as originating from the limestone and ferroalloys in the final profit. For the final determination we most distant suppliers of each input. determination because Severstal failed based the percentages for overhead, Severstal argues that the use of ‘‘facts to provide the requested information in SG&A and profit on the detailed public available’’ is not appropriate in this timely fashion. version of Companhia Siderurgica de situation as Severstal, who has never Comment 2: Non-Metallic Waste at Tubarao’s (CST) and Usinas before been involved in a U.S. the BOF and Recycled Materials at the Siderurgicas de Minas Gerais’ antidumping proceeding and has never Open Hearth Furnace. (Usiminas) financial statements that before faced data-gathering demands of Petitioners argue that the information were placed on the record of this such intensity, submitted a massive first submitted at verification that investigation by Severstal. See Comment amount of data, the overwhelming bulk allegedly corrects ‘‘minor errors’’ in 3, below. of which was verified. Severstal argues Severstal’s reported non-metallic waste that in the limited amount of time to offset at the basic oxygen furnace (BOF) Verification prepare its responses it focused on the and recycled materials offset for the As provided in section 782(i) of the major inputs. Furthermore, Severstal open hearth furnaces should be rejected Act, we verified the information asserts, because one of the major sources because it does not correct clerical or submitted by Severstal for use in our of limestone is located in the immediate minor errors in Severstal’s original final determination. We used standard vicinity of Severstal’s steel mill, it is not submission and it is untimely, unclear, verification procedures, including surprising that it overlooked the more and incorrect. In addition, Petitioners examination of relevant accounting and distant source in preparing its response. argue that Severstal’s corrected 61790 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices information changes the reported its resources to find this additional value of profits shared with employees volume of recycled materials at the open information. and management, dividend hearth. Severstal argues that the Department distributions to employees, and annual Severstal does not insist that the offset should reject Petitioners’ proposal to taxes on net income. Additionally, for non-metallic waste at the BOF be use factory overhead values obtained Severstal states that the Department adopted because Severstal has come to from the financial reports of a steel made a mathematical error in the conclusion that it erred in including company in Korea. Respondents calculating the average profit ratio. this information in its correction letter contend that Korea is not an appropriate Severstal requests that, if the provided to the verifiers. Severstal has surrogate country for Russia, and it was Department chose not to utilize the since determined that the non-metallic never considered by the Department or contemporaneous data, the Department waste amounts reported in its BOF the parties in this (or any other) should at least utilize the correct ratio ledger are not included as offsets by the investigation as a potential surrogate. of 25.56 percent as opposed to the 26.65 company when calculating its cost of Severstal cites Antifriction Bearings value utilized in the preliminary production of products for which that (Other Than Tapered Roller Bearings) determination. shop is utilized. However, Severstal and Parts Thereof from France, et al.; argues that the Department should make Final Results of Antidumping Duty Department Position the requested correction for the offset Administrative Reviews, 57 FR 28360 We agree with Petitioner that our for recycled materials at the open hearth (June 24, 1992) (Antifriction Bearings) preliminary results did not include all furnace. Severstal explains that it where the Department refused to use a factory overhead costs; however, we simply made an error when manually surrogate overhead rate from another disagree with Petitioner’s suggestion to preparing the database for submission, country because it was not among the use the data from a Korean steel which it corrected in its June 16, 1997 surrogate countries cited for that review. producer’s financial statement to letter of verification corrections. Additionally, Severstal claims that to calculate a factory overhead ratio. It is Severstal argues that it is the stray from Brazil to Korea would violate the Department’s preference to use a Department’s well-established practice the Department’s preference for single surrogate country as the source of to accept the correction of such errors, consistency in the calculation of factor data in an NME investigation. See especially in a case where the values, which is referenced through its Carbon Steel Butt-Weld Pipe Fittings. overwhelming volume of submitted data reliance on data in a single surrogate Furthermore, it is the Department’s was verified as accurate. country if possible. See Final practice to only use data of those Determination of Sales at Less Than countries listed as potential surrogates Department Position Fair Value: Certain Carbon Steel Butt- identified in the Policy Memo. See We agree with Petitioners that the Weld Pipe Fittings from the People’s Antifriction Bearings. Korea was never new information claiming an offset for Republic of China, 57 FR 21058 (May identified as a potential surrogate for the non-metallic waste at BOF should be 18, 1992) (Carbon Steel Butt-Weld Pipe Russian economy. Therefore, we have rejected since the non-metallic waste Fittings). Severstal further argues that continued to use Brazilian data for the amounts are not included as offsets by while only depreciation is identified in final determination. Severstal. Therefore, we did not make the financial reports of the Brazilian We agree with Severstal that the an adjustment in calculating normal steel producers whose financial Department should use financial data value. information the Department used in the contemporaneous with the POI. Based Based on the results of verification, Preliminary Results, the Department on the submitted information and the we agree with Severstal regarding the merely accepted Petitioners’ own Department’s own research, we agree correction of the recycled materials at proposal in using this data as the basis with Severstal that the financial data the open hearth. The revision corrects for calculating the factory overhead from the 1996 income statements of the an error that arose from the manual ratio. two Brazilian companies used in the extraction of data from the open hearth’s Furthermore, Severstal argues that the preliminary determination, CST and records which we verified (see Department incorrectly utilized the data Usiminas, are the most appropriate Verification Report, dated July 23, from surrogate country steel producers’ surrogate information available to 1997). We have corrected for this error financial statements for periods outside calculate the percentages for overhead, in the final determination. the period of investigation (POI). SG&A, and profit for our final Comment 3: Factory Overhead, SG&A, Severstal argues that, consistent with determination. and Profit. the Department’s prior practice, the In contrast to our preliminary Petitioners claim that the Department should use financial data determination, for this final Department’s preliminary results did contemporaneous with the POI. determination, in order to ensure that not include all factory overhead costs Severstal cites several cases where the all costs are properly accounted for, in and that a dumping margin cannot Department has noted its policy to use accordance with our practice we revised accurately be calculated without the contemporaneous surrogate values. the overhead ratio to include employee inclusion of non-depreciation overhead Severstal also provided the 1996 profit sharing. Despite the manner in costs. Although Petitioners have not financial statements of the surrogate which labor costs are packaged (i.e., been able to find this information, they country companies and provided either through straight salary, profit provided one integrated producer’s recalculated ratios. Severstal sharing, etc.), total labor costs remain financial statement (Pohang Iron & Steel additionally alleges that the Department the same to the employer. This includes Co., Ltd. (‘‘POSCO’’)) which provides a made two clerical errors in calculating all profit sharing expenses. See detailed list of the types of expenses the SG&A and profit ratios. Severstal Porcelain-on-Steel Cookware from incurred as manufacturing costs. states that, when calculating the SG&A Mexico: Notice of Final Results of Petitioners urge the Department to factor, the Department incorrectly Antidumping Duty Administrative either use the percentages from included profit sharing expenses. Review, 62 FR 25908 (May 12, 1997), POSCO’s financial statement as facts Severstal states that these expenses do where the Department determined that available to approximate the proper not represent actual expenses incurred profit sharing expense relates to the amount of factory overhead costs, or use by the companies but, rather, reflect the compensation of direct labor. Labor is Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61791 captured in the cost of manufacturing was based on a scientific study and Department adjusted the respondent’s which is part of the cost of sales. Thus, made available for the Department at reported costs because its reporting we have included profit sharing in verification, there is no reason to doubt method did not account for certain overhead. However, if a company broke its accuracy. However, Severstal does differences in physical characteristics. out profit sharing between employees not object to the proposal to use the Petitioners argue that some products and management, as CST has done, we second table (showing the quantity of cost more to produce and that the included management profit sharing in energy (in calories) generated by each Department should assign certain the SG&A calculation and employee type of fuel) to convert to an equivalent products the highest total calculated profit sharing in the overhead consumption value in terms of natural cost for any Severstal product. calculation. See Final Determination gas usage. Severstal argues that it explained the Calculation Memorandum, dated calculations to the Department and the Department Position October 24, 1997. data was verified. Severstal asserts that Consistent with prior Department Based on our findings at verification, it does not maintain its books in the practice, we have continued to include all gas input factors are reported in normal course of business according to social contributions in SG&A for the cubic meters needed to produce one ton the product definitions established by final determination. See Final of plate. Usage rates were adjusted to the Department in creating CONNUMs, Determination Calculation account for yields and waste. In and that it submitted its factor data on Memorandum, dated October 24, 1997; obtaining surrogate value information, the basis of the company books and see also Notice of Preliminary we were able to find values for natural records. Severstal claims that it reported Determination of Sales at Less Than gas in cubic meters based on Brazilian its costs to the degree of specificity Fair Value and Postponement of Final import statistics, but were unable to allowed by its records, and that in Determinations: Certain Hot-Rolled obtain surrogate values for other input situations where a respondent reported Carbon Steel Flat Products, Certain energy sources on the same basis. its costs in as much detail as its normal Cold-Rolled Carbon Steel Flat Products, Therefore, in order to ensure that the accounting system would allow, the Certain Corrosion-Resistant Carbon value of energy was consistent across all Department has repeatedly held that Steel Flat Products, and Certain Cut-to- energy sources in calculating normal ‘‘adjustment’’ of the reported data Length Carbon Steel Plate From Brazil, value, we chose to convert the other would be inappropriate. Severstal 58 FR 7080 (February 4, 1993). energy sources into natural gas further argues that Carbon Steel Flat Comment 4: Energy. equivalents. Products from Korea does not support In our preliminary determination, we In response to Petitioners’ argument Petitioners’ point. In that case, Severstal used a ‘‘theoretical fuel’’ ratio submitted that the Department should use the argues, the Department adjusted the by Severstal to derive values for various caloric output of fuels to determine the respondents’s cost data only where the energy inputs. Petitioners allege that value of these fuels, we have used factor respondent had weight-averaged cost this approach is flawed for several inputs as reported on a caloric output data for all products that contained reasons, particularly with respect to basis. We simply converted the certain product characteristics. For costs inputs of energy gases. First, Petitioners surrogate value for natural gas into other associated with other physical assert that the Department used gas equivalents using public conversion characteristics, Severstal contends, the numbers that represent the amount of rates. Therefore, we have continued to Department concluded that the energy or fuel theoretically necessary to use the methodology from our respondent reported costs in as much create the energy instead of the energy preliminary determination as this detail as its accounting system allowed generated (caloric output) by the methodology is an accurate means of and that any costs associated with other particular type of fuel. Petitioners argue valuing energy usage. physical characteristics were captured that the calculations should be based on Comment 5: Reported Factor Usage and allocated to all products. Severstal caloric yield because the heat Data. references several other cases to support requirements of the steelmaking process Petitioners allege that the production this interpretation. demand a certain caloric yield factor data submitted by Severstal are Finally, Severstal argues that if the regardless of the amount of energy that distorted in that they report the same Department were to inflate the reported may have been used to create the fuel factors of production for multiple factors for one of the products sold, it before it was purchased by the steel CONNUMs. Petitioners claim that must somehow compensate by reducing producer. Second, Petitioners argue that Severstal did not submit its factor usage the factors for other subject merchandise it is not clear what Respondents’ data at the CONNUM-specific level of because the total quantity of factors reported figures represent because detail requested by the Department and consumed in the production of the Severstal did not provide a citation or that Severstal reported the same factor subject merchandise shipped to the supporting documentation for its table. input values for multiple CONNUMs. United states is fixed and verified. Third, Petitioners claim that the table Petitioners are primarily concerned with Severstal alleges that any other response used by the Department is flawed Severstal’s failure to distinguish the by the Department would not be an because the ratios representing the different costs. Petitioners argue that the ‘‘adjustment,’’ but would rather energy needed to create each fuel are the Department should adjust Severstal’s constitute a punitive inflation of same as the ratios representing the submitted factor usage data to account Severstal’s reported factors. energy yield of the resulting product. In for differences in production costs. other words, Petitioners conclude it Petitioners argue that in the past, the Department Position appears as though every fuel listed has Department has adjusted information to We agree with Severstal. The exactly the same energy efficiency. correct for data which did not conform Department has in the past, as Severstal agrees that the Department to the level of specificity required and Petitioners correctly point out, adjusted may use the ‘‘theoretical fuel’’ ratios to cite Certain Cold-Rolled and Corrosion- information to correct for data which derive the values for energy sources. Resistant Carbon Steel Flat Products did not appropriately account for Furthermore, Severstal claims that, from Korea, 62 FR 18404 (April 15, physical characteristics. However, even because the ‘‘theoretical fuel’’ data in 1997) (Carbon Steel Flat Products from in cases where a company has been the first table to which Petitioners object Korea) as an example where the unable to provide information at the 61792 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices level of detail requested by the make any adjustments in this final that because the ITC preliminarily Department, we still accepted the determination. found only a threat of material injury reported costs where we were satisfied Comment 6: Indirect Materials and rather than actual injury, the that these costs nonetheless reasonably Energy in Factory Overhead. Department may not impute that the reflected the actual costs of producing Petitioners argue that the Department importers had knowledge that these the subject merchandise during the POI. should utilize the value of U.S. exports sales would cause material injury to a For the same reasons outlined in to Brazil for certain energy and indirect U.S. domestic industry. Severstal alleges Carbon Steel Flat Products from Korea materials which were not valued for the that the Department’s preliminary and in Final Results of Antidumping preliminary determination. Petitioners decision is unlawful and contrary to its Administrative Review: Certain provided the Department with publicly determination in Notice of Final Corrosion-Resistant Carbon Steel Flat available information taken from U.S. Determination of Sales at Less Than Products and Certain Cut-to-Length Census statistics for exports to Brazil for Fair Value: Brake Drums and Brake Carbon Steel Plate from Canada, 61 FR 1996 and claim that in the absence of Rotors from the People’s Republic of 13815 (March 28, 1996), we agree with alternative data, the Department should China, 62 FR 9162 (Feb. 28. 1997) Severstal that its reported costs were use data on U.S. exports of certain (Brake Drums and Rotors) where the reasonable. In these cases, we indirect inputs to Brazil to determine Department stated that ‘‘when the ITC concluded that the respondent’s the appropriate surrogate value. has preliminarily found no reasonable Severstal states that because these methodology was reasonable given the indication that a U.S. industry is materials and types of energy are not nature of its cost accounting system, its experiencing present material injury by directly related to the production of the verified inability to determine specific reason of the dumped subject merchandise under investigation, the costs, and the conservative method in merchandise, but only a threat of such Department properly treated these which the costs were reported. injury, the Department has determined inputs as overhead expenses. Severstal that it is not reasonable to conclude that In this case, Severstal has reported cited several cases including Notice of product-specific costs from its normal an importer knew or should have Preliminary Determinations of Sales at known that its imports would cause cost accounting system, which we Less Than Fair Value and Postponement verified reasonably reflect the actual material injury * * *.’’ of Final Determinations: Brake Drums Severstal further argues that the usage of materials to produce the and Brake Rotors From the People’s Department’s reliance on the increase in merchandise under investigation. Republic of China, 61 FR 53190 (Oct. the volume of imports and the Furthermore, given the nature of 10, 1996) (Brake Drums and Rotors from magnitude of the margins is not only Severstal’s cost accounting system, our the PRC); Sulfanilic Acid From the contrary to the Department’s previous verification findings confirmed People’s Republic of China; Final practice but also redundant because Severstal’s inability to determine Results of Antidumping Duty these factors are also reviewed when specific costs. The instant situation is Administrative Review, 61 FR 53711 determining whether there has been very different from that in Carbon Steel (Oct. 15, 1996) (Sulfanilic Acid from the massive imports during a short period of Flat Products from Korea where we PRC); and Porcelain-on-Steel Cooking time and whether the importer had determined that the respondent did not Ware From the People’s Republic of knowledge of LTFV sales. Therefore, appropriately account for two China; Preliminary Results of Respondents asset, the Department has characteristics where the respondent Antidumping Duty Administrative collapsed the first prong of its analysis derived a general weighted-average cost Review, 62 FR 4979 (Feb. 3, 1997) of the issue with the second and third and applied it to all merchandise that (Porcelain-on-Steel Cooking Ware from prongs of the analysis to incorrectly contained the two certain physical the PRC), as cases where the Department conclude that critical circumstances characteristics. This weight-averaged stated that its general policy is not to existed in the preliminary cost was contrary to the respondent’s calculate surrogate values of indirect determination. normal cost accounting system, resulted inputs separately, but instead is to Petitioners rebut Severstal’s argument in a distortion of the cost of include these inputs as part of the that the Department improperly found manufacturing, and differentiations overhead expenses. critical circumstances for the were lost through averaging. For these preliminary determination. Petitioners reasons we calculated adjustment Department Position note that it is a well established practice factors in that case. However, this We agree with Severstal that these for the Department to impute knowledge clearly is not the case here. inputs are not materials directly of material injury based on dumping In regards to the other physical incorporated in the production of steel margins of greater than 25 percent. characteristics in Carbon Steel Flat and thus are not part of materials Petitioners argue that the Products from Korea, the Department consumed. Therefore, consistent with Department’s negative finding in Brake found that costs were captured and our preliminary determination, we have Drums and Rotors from the PRC-Final allocated to all products because the treated these inputs as part of factory does not preclude it from making an respondent reported costs in as much overhead in the final determination. affirmative finding in the current case detail as its normal accounting system Comment 7: Critical Circumstances. because (1) the SAA and the URAA are provided, as Severstal has in this case. Severstal alleges that the Department silent as to how the Department is to Furthermore, Severstal submitted its acted unlawfully in finding critical make a finding of importer knowledge factor usage ratios as recorded in the circumstances in the preliminary of material injury and, (2) it is within company books and records. As stated determination. They base their the Department’s discretion to select a above, based on our findings at argument on the fact that the 1994 reasonable and administrable approach. verification, we have determined that URAA added a new element to the Petitioners also argue that an ITC threat Severstal’s reported costs reflect the critical circumstances analysis that the determination does not mean that an actual costs as recorded in its normal importer ‘‘knew or should have known’’ importer of Russian CTL plate cannot accounting system and reasonably that ‘‘there was likely to be material have known that there was likely to be reflect the cost of producing the injury by reason of’’ the LTFV sales of material injury by reason of dumped merchandise. Therefore, we did not the subject merchandise. Severstal states imports during the critical Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61793 circumstances period. Petitioners argue Department will consider an increase of less than fair value, importer knowledge that the basis for an affirmative threat 15 percent or more in the imports of the of injury, and massive imports are the determination by the ITC is ‘‘whether subject merchandise over the relevant three separate criteria considered in further dumped or subsidized imports period to be massive. As noted, because determining whether critical are imminent and whether material imports of the subject merchandise circumstances exist. However, some of injury by reason of imports would occur increased 145 percent during the the factors we examine to determine unless an order is issued or a relevant period, we have determined whether each of these criteria are met suspension agreement is accepted’. that imports have been massive. may be relevant to more than one of the criteria. For example, the magnitude of Department Position 3. Importer Knowledge of Material the margins is relevant to the importer’s Injury We agree with Petitioner and continue knowledge of sales at less than fair to find critical circumstances in the The statute and the Statement of value and the increase in import final determination. Administrative Action which volumes is likewise relevant to the Section 735(a)(3) of the Act provides accompanies the Uruguay Round massive imports criterion. However, that if the final determination is Agreements Act (SAA) are silent as to both of these factors are also relevant to affirmative, then that determination how we are to make a finding that there the knowledge of injury criterion. If the shall also contain a finding of whether: was knowledge that there would be margins and the increase in imports are (A)(i) there is a history of dumping and material injury. Therefore, Congress has very large, it is reasonable for us to material injury by reason of dumped left the method of implementing this assume that the importer knew that imports in the United States or provision to the Department’s such an increase in imports at such low elsewhere of the subject merchandise, or discretion. prices would injure the U.S. domestic (ii) the person by whom, or for whose In determining whether an importer industry. account, the merchandise was imported knew or should have known that there In response to Severstal’s argument knew or should have known that the would be material injury by reason of regarding Brake Drums and Rotors, the exporter was selling the subject dumped imports, we normally will look Department, in deciding the issue of merchandise at less than its fair value to the preliminary injury determination importer knowledge of material injury and that there would be material injury of the ITC. If the ITC finds a reasonable in Brake Drums and Rotors was faced by reason of such sales, and (B) there indication of present material injury to with very different facts and have been massive imports of the the relevant U.S. industry, we will circumstances. In that case, the subject merchandise over a relatively determine that a reasonable basis exists company specific margins were all short period. to impute importer knowledge that there under 15% for Rotors, except for one Because there is no history of would be material injury by reason of company with a margin of 16.35%. dumping and material injury by reason dumped imports during the critical Moreover, for that one company, the of dumped imports for cut-to-length circumstances period—the 90-day increase of its imports to the U.S. was steel plate, we conducted our analysis period beginning with the initiation of under 15%. Thus, the circumstances in under section 735(a)(3)(A)(ii) of the Act the investigation (see 19 C.F.R. Brake Drums and Rotors, where the ITC (importer knowledge of dumping and 353.16(g)). If the ITC preliminarily finds finding of threat of injury was coupled material injury). threat of material injury, we would with comparatively minimal company- normally not find knowledge of injury. specific margins and absence of massive 1. Importer Knowledge of Dumping However, in this case, the magnitude of imports, are very different from those in In determining whether an importer the margins and increase in imports are the present investigation. knew or should have known that the so great that we have concluded that the Thus, because we have determined in exporter was selling the plate at less importer knew or should have known this case that the importer knew or than fair value, the Department that these sales of subject merchandise should have known that Russian normally considers margins of 15 to the U.S. would cause material injury. exporters were selling the subject percent or more sufficient to impute In this case, imports of Russian plate merchandise at less than its fair value knowledge of dumping for constructed increased 145 percent in the three and that there would be material injury export price (CEP) sales, and margins of months following the initiation of the by reason of such sales, and because 25 percent or more for export price (EP) investigation when compared to the there have been massive imports of the sales. See, e.g., Preliminary Critical three months immediately preceding subject merchandise over a relatively Circumstances Determination: Honey initiation, or almost ten times the level short time period, we have determined from the People’s Republic of China of increase needed to find ‘‘massive that critical circumstances exist for (PRC), 60 FR 29824 (June 6, 1995) imports’’ during the same period (see Severstal. (Honey). Since the company-specific below). Furthermore, we preliminarily 4. Unexamined Respondents/Russia- margins for EP sales in our preliminary determined that margins of 53.81 Wide Entity determination for CTL plate are greater percent exist for Severstal. Based on the than 25 percent for Severstal, we have ITC’s preliminary determination of As stated above, in a nonmarket imputed knowledge of dumping. threat of injury, the massive increase in economy case, the Department imports noted above, and the high presumes that those respondents who 2. Massive Imports preliminary margins, we have failed to respond to the Department’s To determine whether imports were determined that the importer knew or questionnaire constitute a single massive over a relatively short time should have known that there would be enterprise and are under common period, the Department typically material injury by means of sales of the control by the Russian government. compares the import volume of the subject merchandise at less than fair Therefore, for companies subject to the subject merchandise for the three value. Russia-wide rate (i.e., companies which months immediately preceding and In response to Severstal’s allegation, did not respond to the Department’s following the initiation of the we did not collapse the first prong of questionnaire), as facts available, we are proceeding. See 19 C.F.R. 353.16(g). our analysis with the second and third imputing knowledge based on the Pursuant to 19 C.F.R. 353.16(f)(2), the prongs. Importer knowledge of sales at Russia-wide rate. 61794 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

As noted above, we have determined, ITC Notification FOR FURTHER INFORMATION CONTACT: based on facts available, that importers In accordance with section 735(d) of Tamara Underwood or Maureen knew or should have known that there the Act, we have notified the ITC of our Flannery, Import Administration, would be material injury to the U.S. cut- determination. As our final International Trade Administration, to-length steel plate industry based on determination is affirmative, the ITC U.S. Department of Commerce, 14th the ITC’s preliminary determination of a will determine, within 45 days, whether Street and Constitution Avenue, N.W., reasonable indication of present these imports are causing material Washington, D.C. 20230; telephone: material injury. In the absence of injury, or threat of material injury, to an (202) 482–4733. shipment data for the Russia-wide industry in the United States. If the entity, we have determined based on Background ITC’s injury determination is negative, facts available and making the adverse the Agreement will have no force or The Department published the inference permitted under section effect, and the investigation shall be preliminary results of this review of the 776(b) of the Act, that because this terminated. See section 734(f)(3)(A) of antidumping duty order on HSLWs from entity did not provide an adequate the Act. If, on the other hand, the the PRC in the Federal Register on July response to our questionnaire, there Commission’s determination is 11, 1997 (62 FR 37192). On August 11, were massive imports of subject affirmative, the Agreement shall remain 1997, petitioner, Shakeproof Industrial merchandise. We further note that the Products Division of Illinois Tool Works record indicates a post-filing surge in in force but the Department shall not issue an antidumping duty order so long (SIP), and respondent, Zhejiang Wanxin U.S. cut-to-length steel plate imports Group, Co., Ltd. (ZWG), submitted from Russia which is not accounted for as (1) the Agreement remains in force, (2) the Agreement continues to meet the comments on the Department’s by the cooperating respondent, preliminary results. On August 18, Severstal. Finally, the Russia-wide requirements of subsection (d) and (1) of the Act, and the parties to the 1997, petitioner and respondent margin of 185 percent exceeds the 25 submitted rebuttal comments. The percent threshold for imputing a Agreement carry out their obligations under the Agreement in accordance Department rejected respondent’s knowledge of dumping to the importers August 11, 1997 submission because it of the merchandise. Therefore, for the with its terms. See section 734(f)(3)(B) of the Act. contained new information. Respondent Russia-wide entity, critical resubmitted comments on August 22, circumstances exist with respect to This determination is published pursuant to section 735(d) of the Act. 1997. We held a hearing on September imports of subject merchandise. 22, 1997. On October 28, 1997, the Therefore, we find that critical Dated: October 24, 1997. Department placed new information on circumstances exist for cut-to-length Robert S. LaRussa, the record and gave interested parties an carbon steel plate sales by all Russian Assistant Secretary for Import opportunity to comment pursuant to 19 exporters. Administration. U.S.C. section 1677m(g). The Continuation of Suspension of [FR Doc. 97–30396 Filed 11–18–97; 8:45 am] respondent submitted comments on Liquidation BILLING CODE 3510±DS±P October 31, 1997. The Department has On October 24, 1997, the Department now completed this review in accordance with section 751 of the signed a suspension agreement with the DEPARTMENT OF COMMERCE Ministry of Foreign Economic Relations Tariff Act of 1930, as amended (the Act). and Trade of the Russian Federation International Trade Administration Applicable Statute and Regulations (the Agreement). Therefore, we will instruct Customs to terminate the [A±570±822] Unless otherwise stated, all citations suspension of liquidation of all entries to the statute are references to the of cut-to-length carbon steel plate from Certain Helical Spring Lock Washers provisions effective January 1, 1995, the the Russian Federation. Any cash From the People's Republic of China; effective date of the amendments made deposits of entries of cut-to-length Final Results of Antidumping Duty to the Act by the Uruguay Round of carbon steel plate from the Russian Administrative Review Agreements Act. In addition, unless Federation shall be refunded and any otherwise stated, all citations to the AGENCY: Import Administration, bonds shall be released. Department’s regulations are references On October 14, 1997, we received a International Trade Administration, to the regulations as codified at 19 CFR request from Petitioners requesting that Department of Commerce. Part 353 (1996). we continue the investigation. We SUMMARY: The Department of Commerce Scope of Review received a separate request from the (the Department) published the United Steelworkers of America, an preliminary results of the administrative The products covered by this review interested party under section 771(9)(D) review of the antidumping duty order are HSLWs of carbon steel, of carbon of the Act, on October 14, 1997. on certain helical spring lock washers alloy steel, or of stainless steel, heat- Pursuant to these requests, we have (HSLWs) from the People’s Republic of treated or non-heat-treated, plated or continued and completed the China (PRC) in the Federal Register on non-plated, with ends that are off-line. investigation in accordance with section July 11, 1997 (62 FR 37192). This review HSLWs are designed to: (1) function as 734(g) of the Act. We have found the covers sales of this merchandise to the a spring to compensate for developed following margins of dumping: United States during the period October looseness between the component parts 1, 1995 through September 30, 1996. We of a fastened assembly; (2) distribute the Weight-av- gave interested parties an opportunity to load over the larger area for screws or erage mar- comment on our preliminary results. Manufacturer/producer/exporter gin percent- bolts; and (3) provide a hardened age Based upon analysis of the comments bearing surface. The scope does not received, we changed the results from include internal or external tooth Severstal ...... 53.81 those presented in the preliminary washers, nor does it include spring lock Russia-Wide Rate ...... 185.00 results of the review. washers made of other metals, such as EFFECTIVE DATE: November 19, 1997. copper. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61795

HSLWs subject to this review are Petitioner claims that the Department Lasko: ‘‘Where we can determine that an currently classifiable under subheading cannot use import prices to accurately NME producer’s input prices are market 7318.21.0030 of the Harmonized Tariff and fairly reflect the value of the determined, accuracy, fairness, and Schedule of the United States (HTS). domestically-sourced steel. Petitioner predictability are enhanced by using Although the HTS subheading is takes issue with the proposed those prices. Therefore, using surrogate provided for convenience and Customs antidumping duty regulations on this values when market-based values are purposes, the written description of the point (Antidumping Duties; available would, in fact be contrary to scope of this proceeding is dispositive. Countervailing Duties; Notice of the intent of the law.’’ 43 F.3d 1442, This review covers one exporter of Proposed Rulemaking (61 FR 7309, 1446 (Fed. Cir. 1994). Respondent HSLWs from the PRC, ZWG, and the 7345, February 27, 1996)), and contends maintains that the decision in Lasko period October 1, 1995 through that it is not enough to provide that the confirms that surrogate values are September 30, 1996. market-economy price may be merely the best approximation of what Analysis of Comments Received disregarded ‘‘where the amount the NME producer might pay if the NME purchased from a market economy producer were operating in a market Comment 1: Use of Import Prices to supplier is insignificant.’’ Petitioner Value Steel Inputs. economy. Respondent also adds that the suggests that it should be the other way court stated in Lasko that the Petitioner, SIP, asserts that the around: at most, only if the amount Department’s practice is a ‘‘legitimate Department should limit the use of purchased within the NME is policy choice . . . in interpreting and imported steel prices to valuing the insignificant, should the Department applying the statute.’’ 43 F.3d at 1446. imported steel actually used. Petitioner use the non-surrogate, market-economy argues that, in accordance with section actual price to value all steel. Petitioner Respondent claims that Lasko upheld 1677b(c)(1) of the Act, the Department cites the Department’s practice of the Department’s market-economy input must determine normal value (NV) ‘‘on valuing inputs based on the weighted methodology as consistent with the the basis of the value of the factors of average of prices paid in constructed statute. Respondent also cites the production utilized in producing the value (CV) market economy cases. Department’s position in the Notice of merchandise.’’ Petitioner contends that, Petitioner cites Notice of Final Final Determination of Sales at Less although the Department used non- Determination of Sales at Less Than Than Fair Value: Melamine Institutional surrogate, market-economy actual prices Fair Value: Collated Roofing Nails from Dinnerware Products from the People’s in Final Determination of Sales at Less Korea (62 FR 25895, 25897, May 12, Republic of China (62 FR 1798, 1710, Than Fair Value: Oscillating Fans and 1997) as an example of this practice. January 13, 1997)(Melamine), which Ceiling Fans from the People’s Republic Petitioner also asserts that, if the states that ‘‘the market economy price is of China (56 FR 55271, October 25, Department values all steel at the import the most appropriate basis for 1991)(Fans), and affirmed in Lasko price, it can drastically distort the NME determining the value of the [input] Metal Products v. United States, 43 F producer’s costs when, for example, the purchased from the PRC suppliers.’’ .3d 1442 (Fed. Cir. 1994)(Lasko), the NME producer uses imported steel to Respondent concludes that when the Department only applied these values to fulfill half of its steel requirements and NME producer actually purchases a the actual imports. Petitioner states that domestic steel to fulfill the remainder of market-economy input and pays in the Department relied on surrogate its steel requirements. Petitioner adds market economy currency, there is no values to value all non-imported inputs. that the major defect in the need to use the best approximation. Petitioner claims that the use of import Department’s approach is that it fails to prices to cover non-imported factor Respondent asserts that the CV recognize that an NME producer will calculation methodology referenced by inputs is an arbitrary extension of the import factors at prices which are less Department’s authority. petitioner is irrelevant to NME cases. than the prices it would otherwise pay Respondent states that, pursuant to 19 Petitioner contends that the import for the input. Petitioner concludes that U.S.C. § 1677b(a)(2), CV applies to quantities of steel are not the same as the Department’s methodology does not market-economy cases and not to NME the domestically-sourced quantities of promote either accuracy or fairness. steel and that the Department should Respondent asserts that the cases. Respondent claims that, pursuant value these quantities as two separate Department correctly used the imported to 19 U.S.C. § 1677b(c), the Department factors of production. Petitioner states steel price to value all of its steel inputs is required to use a selected import that the Act defines ‘‘factors of in the preliminary results and should price or a surrogate price to value an production’’ to include the ‘‘quantities continue to do so in the final results. NME producer’s production costs. of raw materials employed.’’ Petitioner Respondent states that the imported Respondent asserts that petitioner’s contends that, although the Act and steel meets all criteria established by the argument that the Department’s practice Lasko affirm that the Department can Department for using market-economy distorts the NME producer’s costs consider non-surrogate, market- prices and that the Department is ignores commercial reality and is economy actual prices to be the best obliged to use the price paid for that contrary to the court rulings and the information and use those prices, input to value all of the respondent’s basic principles underlying NME cases. neither the Act nor Lasko provides consumption of that input. Respondent Respondent argues that, contrary to justification for the Department’s use of argues that the Department’s petitioner’s argument, NME producers values for one factor as the value for methodology in the preliminary results will purchase domestic materials when another factor, even if both factors are is fully supported by the Department’s the domestic price is less than the steel. prior practice, the proposed and final import price. Respondent claims that in Petitioner asserts that accuracy is not regulations, the court decisions, and the Sigma Corp. v. United States, 117 F.3d enhanced by using import prices for statute. Respondent maintains that the 1401 (Fed. Cir. 1997) (Sigma), the court valuing all steel inputs. Petitioner states Department’s established practice of suggested that the Department may not that the goal of the Act is to valuing all of the production input assume that the NME producers approximate the costs where non- using the NME producer’s actual import purchase domestic materials at a higher market economy (NME) costs do not prices for that input is legitimate and delivered price than that for imported reflect market-determined prices. does enhance accuracy, as affirmed in materials. 61796 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Department’s Position of the steel used to produce the subject Petitioner states that, although the We disagree with petitioner. In merchandise. In this respect, the preliminary results mention that the general, the purpose of the antidumping Department’s determination to value all Department ‘‘made further adjustments statute is to ‘‘determine margins as steel inputs using the market-economy to account for the freight costs incurred accurately as possible.’’ Rhone Poulenc, input prices respondent actually paid is between the port and ZWG,’’ a review Inc. v. United States, 899 F.2d 1185, consistent with these goals and of the calculations reveals that this 1190 (Fed. Cir. 1991). Section 773 (c)(4) practices. adjustment may have not be included. Petitioner’s contention that imported Department’s Position: We agree with of the Act, the provision for factors of steel and domestically-produced steel petitioner in part. While we agree that production methodology, was intended constitute separate factors of production the Department should value the non- to be used when NME prices and costs is, in effect, just another way of arguing surrogate, market-economy actual prices are unreliable, i.e., not market-based. that we should value them separately. by including all expenses such as See, e.g., S. Rep. No. 93–1298, 93d There is no evidence that the imported brokerage and handling and Cong., 2d Sess. 174 (1974). The purpose steel is physically different from the transportation from the port to the of section 773(c) is to determine what domestically-sourced steel, such that factory, the facts of this case make the firm’s prices or costs would be if the imported steel should be considered changes to the preliminary results such prices or costs were determined by a different factor of production from the unnecessary. See the proprietary version market forces. domestically-sourced steel. of ‘‘Memo to the File: Analysis for the Because the statute does not explicitly Therefore, in accordance with the Final Results of the Third address the situation in which an NME Department’s established practice, we Administrative Review of Certain producer imports some inputs from continue to use the actual imported Helical Spring Lock Washers from the market economies, cf. 19 U.S.C. steel prices to value steel inputs because People’s Republic of China,’’ dated § 1677b(c), the Department has these prices represent the actual market- November 10, 1997 (Final Analysis determined that if an NME producer based prices incurred by the respondent Memo), for a discussion on movement reports prices that are based on inputs in producing the subject merchandise adjustments. from market-economy suppliers, it is and, as such, are the most accurate and Comment 4: Steel Scrap. appropriate to use those prices instead appropriate values for this particular Petitioner asserts that the Department of a surrogate value, if the amounts factor for the purpose of calculating NV. grossly distorted the net cost of the steel purchased are meaningful, i.e., they are Comment 2: Adjusting Imported Steel input to the Chinese producer by using not insignificant. The Department has Prices for Inflation. a non-surrogate import price for steel applied this practice consistently in Petitioner asserts that if the and a surrogate value for steel scrap. recent years, See Melamine, 62 FR at Department uses import prices for the Petitioner claims that scrap value is 1710, and has received affirmation of final results, the Department should based on a relationship between steel this practice in court decisions. See, adjust the import prices to reflect the (from which the scrap steel generated) e.g., Lasko, 43 F.3d at 1446, as cited by period of review (POR) where those and scrap which can be recycled. respondents. The Department import prices are used to value non- Petitioner maintains that the steel scrap subsequently codified this practice in imported steel used to produce HSLWs. value in India (the surrogate country) is Section 351.408(c)(1) of the Petitioner recognizes that the different from the scrap value in the Antidumping Duties; Countervailing Department has not made adjustments United Kingdom (the non-surrogate Duties; Final Rule, published in the in the past to values based on market- country from which ZWG purchased the Federal Register on May 19, 1997 (62 economy prices, but argues that the steel). FR 27296, 27413) (Final Rule). As Department’s approach does not apply Petitioner suggests that the explained in the background section of to the facts of this case. Department correct this distortion by the those regulations, the only situation Respondent asserts that the prices for using the scrap value in the United in which we would not rely on the price imported steel already reflect the POR Kingdom or applying the ratio of scrap paid by an NME producer to a market price levels because ZWG imported the value-to-steel value in India to the economy supplier is where the quantity steel during the POR and, therefore, the imported (U.K.) steel value in order to of the input purchased was prices do not need adjustment. value the Chinese producer’s scrap. insignificant. See Final Rule, 62 FR at Department’s Position: We agree with Respondent states that the 27366. respondent. Because the prices for the Department correctly valued steel scrap In factor valuation, the Department steel imports used to value the steel in the preliminary results. Respondent has developed practices which factor are POR prices, there is no need argues that petitioner failed to provide emphasize accuracy, fairness, and for any further adjustment to account for any supporting evidence for its predictability. The Department stated inflation. arguments. Respondent maintains that that ‘‘the simplest example of a value Comment 3: Movement Expenses for petitioner failed to provide any factual based on market principles in a Imported Steel. evidence showing that Indian import proceeding involving an NME is a price Petitioner asserts that the Department prices of steel scrap are not appropriate paid in convertible or market economy should value imported steel by to value the steel scrap generated by currency for an input sourced from a including all costs, such as brokerage ZWG from the consumption of steel market economy country.’’ (See Fans, and handling fees and transportation wire rod from the United Kingdom. Comment 1.) In this instant case, the from the port to the factory, and adjust Respondent contends that petitioner amount of steel imported is these costs for inflation. Petitioner cites further failed to provide any links approximately equal to one-third of the Sebacic Acid from the People’s Republic between steel wire rod prices and steel amount used to produce the subject of China; Final Results of Antidumping scrap prices. merchandise during the period of Duty Administrative Review (62 FR Respondent also asserts that the review. We consider this to be a 10530, March 7, 1997) (Sebacic Acid), Department must use a surrogate value meaningful amount, i.e., it is not where the Department added PRC for steel scrap because respondent sold insignificant, for purposes of using the brokerage and freight from the port to the steel scrap in the PRC in PRC market-economy input price to value all the factory for market-economy inputs. currency. Respondent adds that Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61797 petitioner failed to provide any Weekly issues used for this review and chemical inputs in the MFTI. Absent surrogate information on the value of found that two issues, February 14–20, any evidence that they do not reflect steel scrap. 1996, and April 15–20, 1996, contained standard concentrations commonly Department’s Position: We disagree values at least 12 times the average sold, an adjustment is unwarranted. with petitioner’s assertions that we value. The values of these two issues Where the information regarding the distorted the cost of the steel input by seem to be related to exceptionally low level of chemical concentration is valuing steel using actual prices quantities of HCL exports. We excluded insufficient, we have not made any respondent paid for U.K. steel and these values from the final calculations. adjustment. (See Final Analysis Memo.) valuing scrap using surrogate prices We found a clerical error in the Comment 7: HCL Concentration. from India. Petitioner did not provide transcription of one HCL price from the Petitioner asserts that the Department any evidence to support its claim of a July 27–31, 1996, issue, used to erred in adjusting HCL concentration. clear relationship between the prices of calculate a surrogate value in the Petitioner argues that the Department steel and scrap. Even if petitioner had preliminary results. Therefore, in the purportedly adjusted HCL surrogate established that such a relationship final calculations, we have corrected values to match the reported exists, there are no data on the price of this price. (See Final Analysis Memo.) concentration although the surrogate scrap imported from the United Comment 6: Adjustments for data did not indicate concentration Kingdom into the PRC. Chemical Purity. level. Moreover, we compared the prices of Respondent asserts that the Petitioner also asserts that, because steel scrap imported into India, Department should calculate the ratio of the HCL used to make HSLWs is already Indonesia, Canada, the European the purity of chemical inputs consumed diluted, the Department must, in Community, the United Kingdom, and to the purity of the chemicals as sold calculating the value of the diluted HCL, the United States during a period commercially and apply this ratio to the include the value of the diluting water contemporaneous with the POR. We Indian import data. Respondent argues or chemical. were unable to obtain statistics on that the Department adopted this Respondent contends that the prices of steel scrap imported into methodology in past NME cases and Department will double-count water if it Pakistan, Sri Lanka, and Egypt, which refers to the calculation memoranda for values the water for diluting HCL were potential surrogate countries. Our several proceedings, including Notice of separately from factory overhead and analysis of the Indian imports of steel Final Determination of Sales at Less electricity values, as suggested by scrap from the Monthly Statistics of the Than Fair Value: Collated Roofing Nails petitioner. Respondent claims that the Foreign Trade of India (MFTI) show that from the People’s Republic of China (62 water inputs were included in factory the price of steel scrap imports into FR 25899, May 12, 1997) and Notice of overhead for the production factory and India are not aberrational. (See ‘‘Memo Final Determination of Sales at Less were included and valued in electricity to the File: Comparison of Steel Scrap Than Fair Value: Beryllium and High inputs for the plating factory in the Values for the Final Results of the Third Beryllium Alloys from the Republic of preliminary calculations. Administrative Review of Certain Kazakstan (62 FR 44293, January 17, Department’s Position Helical Spring Lock Washers from the 1997). People’s Republic of China’’ (Steel Petitioner asserts that there is We agree, in part, with petitioner Scrap Price Comparison Memo), insufficient information on the record regarding an adjustment to the value of November 7, 1997.) Therefore, in for the Department to adjust values for HCL based on concentration level. As accordance with our established chemical concentration. Petitioner we mentioned in Comment 6, for inputs practice of valuing factors of production argues that to adjust chemical where the chemical concentration levels using surrogate values that are concentrations, the Department must are defined in the surrogate value demonstrated to be a reliable reflection ascertain the actual chemical source, and where respondent reported of prices during the POR, we are concentration from which the value was chemical concentration levels used, we continuing to use Indian import price derived and must determine which have made adjustments. However, there from MFTI to value steel scrap for the additional chemicals were used to is no evidence on the record with regard final results. dilute or alter the concentration of the to the HCL concentration level Comment 5: Hydrochloric Acid. chemical. Petitioner argues that the associated with the HCL prices in Petitioner argues that the Department Department must value the additional Chemical Weekly. Absent any evidence included three aberrational values for chemicals. Petitioner adds that even this that they do not reflect standard determining the average hydrochloric suggested methodology may result in concentrations commonly sold, an acid (HCL) value. Petitioner claims that, underreporting the value of the diluted adjustment is unwarranted. Therefore, because the Department has consistently chemical because of the additional costs we have not adjusted the surrogate avoided using aberrational values, these of performing the dilution, such as value for HCL for concentration level in aberrational values should be omitted in labor, equipment, and energy. the final results. (See Notice of Final the final results. Department’s Position: We agree, in Determination of Sales at Less Than Respondent asserts that the part, with respondent’s assertions that Fair Value: Saccharin from the People’s Department correctly valued HCL using we should make adjustments for Republic of China, 59 FR 58818, Chemical Weekly’s FOB prices, except chemical purity, as we have done in Comment 4, November 15, 1994 for freight costs associated with the previous cases. For inputs where the (Saccharin).) HCL. Respondent argues that because chemical concentration levels of the We disagree with petitioner’s petitioner failed to identify any specific HTS categories are defined in the Indian assertions that the diluting agent, water data as aberrational and failed to import statistics, and where respondent or another chemical, should be included provide any supporting evidence for its reported chemical concentration levels in calculating the value of the HCL. We argument, the Department should reject used, we have made adjustments have no basis to conclude that petitioner’s argument. accordingly. respondent did not report all input Department’s Position: We agree with However, there is no evidence on the amounts required to produce HSLWs, petitioner. We analyzed the HCL values record with regard to the chemical regardless of the manner in which the published in each of the Chemical concentration levels associated with all input enters the production process. 61798 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Therefore, the value of the diluting supplier to the factory. We then merchandise to the consumer in the agent is accounted for in the values for multiplied the shorter of the distances surrogate country. In the preliminary water and other chemical inputs. for each supplier by the proportion of results, we relied on Chemical Weekly Comment 8: Freight Costs. the input purchased from each supplier for a surrogate value for HCL. The HCL Respondent disputes the to calculate the weighted average inland prices in Chemical Weekly are based Department’s addition of freight costs to freight expense for each input. upon FOB export prices from the the imported steel prices and to the Comment 9: HCL Freight Expense. surrogate country, India. FOB export input prices obtained from MFTI Respondent asserts that the prices by definition include the cost of because these prices include foreign Department should not add freight costs transporting the merchandise from the inland freight and ocean freight costs. for transporting HCl from PRC suppliers Indian supplier to the Indian port. We Respondent asserts that, by adding the to respondent’s factories to the consider this cost to be equivalent to the freight costs to these prices, the Chemical Weekly price because the cost of transporting the merchandise Department double-counted the freight Chemical Weekly price is an FOB Indian from the Indian supplier to the Indian costs. Respondent argues that, in Sigma, export price. Respondent argues that consumer. See the factor valuation the court prohibited the Department because the price is an FOB Indian memos for Bicycles and Polyvinyl from such double-counting. Respondent seaport price, it includes both the ex- Alchohol. Therefore, for these final suggests that the Department value the factory price of HCl and the results we have not added any freight cost of PRC-sourced material transportation costs thereof from an additional freight to the FOB value. based on the reported distance and Indian factory to an Indian seaport. Petitioner’s assertions that the record method of transportation from the Respondent maintains that the does not provide specific information importing seaport to the factory, where Department double-counted freight from which the Department can that cost is lower than the calculated costs for HCl by adding PRC domestic calculate freight costs is moot because freight costs based on actual distance freight costs to the domestic there is no need to calculate such costs. and method of transportation from the transportation costs included in the Comment 10: Wood Pallets. domestic supplier. Respondent surrogate value. Respondent asserts that the contends that these adjustments are in Respondent adds that the Department Department should value the wood accordance with the Sigma ruling. did not include the domestic freight pallet input by using HTS 4403.2000, Petitioner asserts that a change to the costs in the respondent’s country when ‘‘sawlogs and veneerlogs in rough w/n Department’s adjustment to material the Department used Chemical Weekly’s striped of bark or merely rough down,’’ inputs for domestic freight costs is not FOB Indian seaport price in past NME instead of HTS 4415.1000, ‘‘cases, warranted. Petitioner argues that cases. Respondent cites the April 22, boxes, crate, drum and similar respondent has not indicated why or to 1996 Factors Valuation Memorandum packings—cable drums of wood,’’ what extent any inland freight expense for the Notice of Final Determination of because respondent produces finished should be adjusted to accord with Sales at Less Than Fair Value: Bicycles pallets itself. Respondent states that Sigma. from the People’s Republic of China (61 because it uses the same wood to Department’s Position: We agree with FR 19026, April 30, 1996) (Bicycles) and produce wood brackets and wood respondent that the Department should the October 22, 1995 Valuation pallets, the Department should value adjust freight costs of the inputs in Memorandum for the Notice of Final wood for pallets using the same HTS accordance with Sigma. In Sigma, the Determination of Sales at Less Than number it used to value wood brackets, court ruled that the Department Fair Value: Polyvinyl Alcohol from the HTS 4403.2000. Respondent argues that, overvalued freight when it added to the People’s Republic of China (61 FR during the investigation, the Department surrogate value for a material input, 14057, March 29, 1996) (Polyvinyl verified that respondent produces which was obtained from the import Alcohol), in which the Department did finished pallets. Respondent contends statistics of the surrogate country, an not add freight to the surrogate value. that because the Department added the amount for freight from the NME Petitioner asserts that the Department value for finished wood pallets, using supplier factory to the NME factory. The should continue to add domestic PRC HTS 4415.1000, and the values for court reasoned that a manufacturer freight costs to the value for HCL wood, nails, and packing labor in the would minimize its material and freight because specific distance and NV calculation, the Department double- costs by purchasing imported material if transportation modes for moving the counted the costs of wood, nails, and the cost of transportation from the port HCL from the supplier to respondent’s packing labor. to the factory were less than the cost of factory, and for moving the HCL in the Respondent also asserts that, even if transportation from the domestic surrogate country from supplier to port the Department determines not to use supplier to the factory. For the final of export, are not identified on the input values under HTS 4403.2000, the results, we adjusted the CIF surrogate record. Petitioner argues that Department should use HTS 4415.2000 values by revaluing freight expenses respondent reported the HCL to minimize double-counting. based on the shorter of two distances: transportation distance as short and the Respondent argues that MFTI classifies the distance from the port of import to mode as truck, while transportation wood pallets under HTS 4415.2000, the factory or the distance from the distance and mode are unknown for the which states ‘‘pallet box, pallets, and actual supplier to the factory. (See Indian HCL surrogate value. other load boards of wood.’’ Respondent Notice of Final Determination of Sales maintains that in comparison to the at Less Than Fair Value: Collated Department’s Position MFTI definition of HTS 4415.1000, Roofing Nails from the People’s We agree with respondent that freight ‘‘cases, boxes, crates, drums, and similar Republic of China (62 FR 51410, 51414, costs for transporting HCL from the PRC packing cable drums of wood,’’ it is October 1, 1997) (Roofing Nails).) In suppliers to the factory should not be clear that MFTI includes a wood pallet situations where an input is purchased added to the surrogate value. When we in HTS 4415.2000. from several suppliers, we adjusted the use, as a surrogate for respondent’s Petitioner asserts that the Department value for inland freight by comparing materials costs, the cost of the material correctly valued pallets using the the distance from the port of import to in a surrogate country, this cost should surrogate value for the finished pallet. the factory to the distance from each include the cost of transporting the Petitioner states that the Department can Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61799 choose to value the finished pallets or in the construction of wood pallets have should be valued using categories 351, construct the value of the pallet from been valued as mentioned above, we ‘‘manufacture of industrial chemicals,’’ labor, material (including scrap), tools, find that further adjustments are not and 352, ‘‘manufacture of other energy, transportation, and overhead. warranted. chemical products,’’ instead of using Petitioner argues that, if all the inputs Comment 11: Error in Valuing Wood category 381, ‘‘manufacture of fabricated are not available, the Department must Pallets and Coal. metal products.’’ use surrogate values. Petitioner adds In the preliminary results, the Petitioner also asserts that the that the Department should include the Department used data from the February Department should use different values cost of brackets and labor, etc., to 1995 (April 1994 to February 1995) and for skilled and unskilled labor. account for additional packing expense August 1996 (April 1995 to August Petitioner argues that the use of one in addition to using surrogate values for 1996) issues of MFTI to value wood average labor value does not accurately pallets. pallets and coal inputs. Respondent reflect the cost of labor mix used to Department’s Position: We agree with asserts that the Department should produce HSLWs. Petitioner references respondent that we should value pallets value inputs using data most Sulfanilic Acid from China; Preliminary using HTS 4403.2000, a surrogate value contemporaneous with the POR when Results of Antidumping Duty for the wood used to construct the wood determining the final results. Administrative Review (62 FR 25917, pallets, because respondent constructs Specifically, respondent requests that May 12, 1997) (Sulfanilic Acid), where the pallets, instead of HTS 4415.100, a the Department use data from the March the Department selected surrogate surrogate value for the finished pallet, 1996 (April 1995 to March 1996) issue values broken out into skilled labor and as used in the preliminary results. In the of MFTI, rather than the April 1994 to unskilled labor from the Economist preliminary results, because we valued February 1995 data, to value wood Intelligence Unit’s Investing, Licensing finished pallets, as well as materials pallets. Respondent argues that the and Trading Conditions Abroad (ILT). used to construct the pallets, such as April 1995 to March 1996 data are most Petitioner further asserts that the nails and wood brackets, we overstated contemporaneous with the POR. Department should reject labor values Petitioner asserts that the Department the value of pallets. This change in used in the preliminary results because should use only the April 1995 to methodology is in accordance with the these values do not include fringe August 1995 data from MFTI to value Department’s determination in the Final benefits and bonuses. Petitioner coal and wood pallets. Petitioner argues Results of Antidumping Administrative suggests that the Department use ILT that these values for a five-month period Review of Heavy Forged Hand Tools, because it was used in other cases most closely reflect the values for the Finished or Unfinished, With or Without covering the same POR and does POR. Handles, from the People’s Republic of include those benefits. China (61 FR 15028, Comment 3, April Petitioner also asserts that the Respondent states that the 4, 1996) (Hand Tools). In Hand Tools, Department included the wholesale Department correctly selected category the Department determined that ‘‘we price index (WPI) for March 1995 when 381 in the YLS as the labor category should value the pallets using the factor inflating the value, although March equivalent to ZWG’s plating labor. and surrogate values for wood, nails, 1995 was not included in either data Respondent argues that categories 351 and packing labor, separately, rather source used in the preliminary results. and 352, suggested by petitioner, only than for the complete pallet. The Petitioner argues that if the Department information on the record at the time of uses both data sources, the Department include labor information related to the the preliminary results indicates that should not include the WPI for March manufacture of industrial chemicals and the factories make the pallets from wood 1995 in the inflator calculation. other chemical products. Respondent and nails rather than purchase the Department’s Position: We agree with states that its plating factory did not completed pallet.’’ both respondent’s and petitioner’s manufacture any chemicals or chemical We agree with petitioner’s assertions premise that the Department should use products. Rather, respondent argues, the that the Department should include the data most contemporaneous with the plating factory consumes chemicals and cost of labor, material, tools, energy, POR to value inputs for the final results. chemical products in plating HSLWs, transportation, and overhead in For the final results, we obtained and which are metal products. Respondent constructing the value for the pallet. used Indian import statistics from MFTI contends that the plating factory is Respondent separately reported for the period September 1995 through engaged in the manufacture of metal consumption amounts for wood, June 1996 to value wood for pallets and products, which is classified as category depending upon its application, and for coal for the final results. Therefore, we 381 in YLS. nails; thus, respondent reported have used values for a ten-month period Respondent agrees with the materials used to construct the finished that most closely reflects the POR. Department’s use of one labor value. pallet. (See Respondent’s January 21, We agree with petitioner’s assertion Respondent asserts that petitioner did 1997 and February 21, 1997 that the Department should not have not provide any information showing submissions.) We have no basis in the included the WPI for March 1995 in the separate values for skilled and unskilled record to conclude that the packing calculation of the inflator for coal and labor and that no such data are available labor amounts required to construct the wood. However, because we have not to the Department. pallets is not included in the reported used the March 1995 data in the final Respondent agrees with the input amounts for packing labor, or that results, we have not included the March Department’s use of YLS to value labor the energy amounts required to 1995 WPI in the calculation of the inputs. Respondent argues that the construct the pallets are not included in inflator. Department should not use ILT because the reported amounts for energy. We Comment 12: Labor. the Department has consistently rejected also consider, in this instant case, that Petitioner asserts that the Department it as a source for surrogate labor values expenses for tools and transportation of should use a different category for because the data are not based on actual pallet materials are included in valuing plating labor if the Department data. overhead. Therefore, because the bases labor values from the 1995 Finally, respondent requests that the expenses for labor, tools, energy, Yearbook of Labour Statistics (YLS). Department value labor for the final transportation, and overhead incurred Petitioner argues that the plating labor results using updated labor rates. 61800 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Department’s Position: We disagree that the Department has established the ‘‘* * * essential for producing the with petitioner’s suggestion that the practice of including the value of water finished product * * *.’’ and if this Department should use categories 351 inputs in the value of factory overhead input appears ‘‘* * * to be [a] and 352 for valuing plating labor. The where water is supplied by a public significant input[s] into the labor used in plating HSLWs represents utility or by a nearby body of water and manufacturing process rather than labor used in the manufacture of refers to Saccharin, Sebacic Acid, miscellaneous or occasionally used fabricated metal products. Though the Sulfanilic Acid from the People’s materials, i.e., cleaning supplies which labor used in plating utilizes chemicals, Republic of China (61 FR 53711, might normally be included in it is not used to manufacture chemicals. October 15, 1996), Polyvinyl Alcohol, consumables.’’ Based upon respondent’s We have continued to value all labor Disposable Lighters from the People’s submission, water is a significant input using category 381. Republic of China (60 FR 22359, May 5, into the manufacturing process. (See We disagree with petitioner’s 1995), Silicon Carbide from the PRC ( 59 Exhibit 9 of the proprietary versions of assertion that the Department should FR 22585, May 2, 1994), and Coumarin. respondent’s January 21, 1997 use ILT to value labor because it Respondent adds that in Sebacic Acid, submission and Final Analysis Memo.) provides different values for skilled and the Department stated that it presumes unskilled labor and includes fringe factory overhead values obtained from Unlike the instant case, in Sulfanilic benefits and bonuses. The Department the Reserve Bank of India Bulletin, the Acid, the Department included the has routinely used YLS to value labor factory overhead source used in the water value in the factory overhead because the ILT reports labor rate instant review, to include values for value because respondents pumped estimates based on rates stipulated in water. water from their own wells for use in various Indian laws and not based upon Petitioner asserts that the Department the production process and recirculated actual wage rates. correctly valued water in the the water. (See Sulfanilic Acid, 61 FR at Additionally, we disagree with preliminary determination. Petitioner 53716.) However, in Saccharin, the petitioner’s assertion that the YLS data states that respondent correctly cited Department valued water purchased by used in the preliminary results does not Saccharin where the Department respondent separately, because it was include fringe benefits and bonuses. The considered water an overhead item. considered to be a direct input in the Department considers the ILO statistics, Petitioner argues that respondent failed production of the finished product. (See such as the YLS data, to be fully loaded to mention that the Department also Saccharin, Comment 7.) Also, in with respect to all labor expenses. (See stated in Saccharin that water required Porcelain-on-Steel Cooking Ware From Polyvinyl Alcohol, 61 FR at 14061.) for a particular segment of the the People’s Republic of China; Final Accordingly, because the use of YLS is production process may ‘‘be more Results of Antidumping Duty consistent with the Department’s typical of items that are accounted for Administrative Review, 62 FR 32757, established practice, the YLS has been as direct material inputs, rather than as 32759, 32762, June 17, 1997, the determined to include all expenses overhead item, and as such, valued Department considered water consumed associated with labor, and the ILT data separately.’’ Petitioner asserts that the in the production process as a direct have been determined to be an Department should value water as a material input and valued it as such. inappropriate source for wage rates, we separate input factor in plating because Although respondent’s HSLW factory have continued to use YLS for the final water is directly incorporated into the purchased water from a public utility, results. (See Certain Helical Spring Lock final product. Washers From the People’s Republic of Department’s Position: We disagree that alone is not dispositive as to how China; Final Results of Antidumping with respondent and have continued to it should be valued. Here, as in Administrative Review, 61 FR 66255, include the water inputs as material Saccharin and Porcelain-on-Steel, the 66259, December 17, 1996, Chrome- inputs in the calculations of production water was also a required input in a Plated Lug Nuts from the People’s cost of ZWG’s factory. Following the particular segment of the production Republic of China; Final Results of Department’s criteria in Saccharin, we process. Therefore, we have valued it as Antidumping Duty Administrative value water if it is required for a a separate input. Review, 61 FR 58519, 58522, November particular segment of the production Disposable Pocket Lighters and the 15, 1996.) process. (See Saccharin, 59 FR 58818, other cases on which respondent relies, Comment 13: Water. Comment 7, November 15, 1994.) Based do not indicate whether respondent Respondent requested that the upon respondent’s description of the purchased the water, consumed the Department calculate ZWG’s production production process, we consider water as a direct input, or required the cost without valuing water. Respondent respondent’s use of water in the acid water for producing the finished asserts that the Department double- treatment as required for that particular product. Moreover, with regard to counted the water input by valuing segment, because the steel wire rod considering the Reserve Bank of India water in addition to valuing factory must be rinsed with water after an acid Bulletin (RBIB) factory overhead values overhead for ZWG. Respondent bath. (See Exhibit 5 of respondent’s as inclusive of water values, the contends that the reported water input January 21, 1997 submission.) Because Department stated in Disposable Pocket for ZWG represents water used at the the water for ZWG’s HSLW production Lighters that, ‘‘the RBIB data did not HSLW production factory, not at the factory is a required input for a indicate to the contrary.’’ (See plating factory. Respondent claims that particular segment of the HSLW Disposable Pocket Lighters, 60 FR at because the HSLW factory’s water was production process, the Department’s 22367.) supplied by a public utility during the practice is to value it separately like POR, was not physically incorporated other direct material inputs required in In the instant case, as we have into the HSLWs, and was not a major the production process. Moreover, in explained, water purchased from the indirect material input which could be determining whether an input should be public utility is not an incidental input separately valued, ZWG’s water valued separately or considered valued into the production process. Rather, it is consumption meets the criteria in overhead, the Department stated in a direct input required for a particular established in Saccharin for inclusion Bicycles that, the input in question segment of the production process. in factory overhead. Respondent argues should be valued separately if it is Additionally, there is no basis for Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61801 determining whether water is included antidumping duties on all appropriate Dated: November 10, 1997. in the factory overhead value in the entries. Robert S. LaRussa, RBIB, and thus no basis for an Individual differences between Assistant Secretary for Import adjustment. Therefore, in the final Untied States price and normal value Administration. results, we are continuing to value water may vary from the percentages stated [FR Doc. 97–30397 Filed 11–18–97; 8:45 am] for ZWG’s factory in accordance with above. The Department will issue BILLING CODE 3510±DS±P the Department’s practice in the appraisement instructions directly to previous segments of this case, as well as its position in previous cases. the Customs service. DEPARTMENT OF COMMERCE Comment 14: Aberrational Factor Furthermore, the following deposit Values. rates will be effective upon publication International Trade Administration Respondent asserts that the of these final results for all shipments of [A±580±807] Department should not use data from HSLWs from the PRC entered, or the June 1996 MFTI to value trisodium withdrawn from warehouse, for Polyethylene Terephthalate Film, Sheet phosphate (HTS 2835.23.00), cases, consumption on or after the publication and Strip From the Republic of Korea, boxes, crates, and drums (HTS date, as provided for by section Initiation and Preliminary Results of 4415.10.00), and pallets and load boards 751(a)(1) of the Act: (1) for ZWG, which Changed Circumstances Antidumping (HTS 4415.20.00), because respondent has a separate rate, and all ZWG exports Duty Administrative Review claims that the data are aberrational. through market-economy trading AGENCY: Import Administration, Department’s Position: We agree with companies, the cash deposit rate will be International Trade Administration, respondent’s assertion that the value in the company-specific rate established in Department of Commerce. the June 1996 MFTI for trisodium these final results of review; (2) for all ACTION: Notice of Initiation and phosphate, HTS 2835.23.00, is other PRC exporters, the cash deposit Preliminary Results of Changed aberrational, apparently due to the rate will be 128.63 percent, the PRC rate Circumstances Antidumping Duty extraordinarily low quantity reported. established in the less-than-fair-value Administrative Review. Because we could not obtain more investigation of this case; and (3) for contemporaneous data to value non-PRC exporters of subject SUMMARY: The Department of Commerce trisodium phosphate, we have merchandise from the PRC, the cash (the Department) has received continued to use the March 1996 issue deposit rate will be the rate applicable information sufficient to warrant of MFTI, covering the period April 1995 to the PRC supplier of that exporter. initiation of a changed circumstances through March 1996. administrative review of the Respondent’s comments regarding the These deposit rates shall remain in antidumping duty order on issue of the valuation of pallets using effect until publication of the final polyethylene terephthalate film, sheet, data in the June 1996 MFTI for cases, results of the next administrative and strip from Korea (56 FR 25669 (June boxes, crates, and drums (HTS review. 5, 1991)). On July 5, 1996, Cheil 4415.10.00), and pallets and load boards This notice also serves as a final Synthetics, Inc. (Cheil) was revoked (HTS 4415.20.00), are moot because we reminder to importers of their from the order based on three did not value pallets using HTS responsibility under 19 CFR 353.26 to consecutive years of no dumping. (See 4415.10.00 or HTS 4415.20.00 in the file a certificate regarding the Polyethtylene Terephthalate Film, final results. (See Comment 10.) reimbursement of antidumping duties Sheet, and Strip from the Republic of prior to liquidation of the relevant Korea; Final Results of Antidumping Additional Changes for the Final Duty Administrative Reviews and Notice Results entries during this review period. Failure to comply with this requirement of Revocation in Part, 61 FR 35177 (July 5, 1996).) Based on information For the final results of this review, we could result in the Secretary’s provided in its September 29, 1997 have updated most surrogate values presumption that reimbursement of letter, we preliminarily determine that based on MFTI. Additionally, we have antidumping duties occurred and the updated the labor surrogate value using Saehan Industries, Inc. (Saehan) is the subsequent assessment of double the 1996 YLS. (See Final Analysis successor firm to Cheil, and therefore, antidumping duties. Memo.) the Department’s revocation of Cheil This notice also serves as a reminder applies to Saehan. Final Results of the Review to parties subject to administrative Interested parties are invited to As a result of the comments received, protective orders (APOs) of their comment on these preliminary results. we have changed the results from those responsibility concerning the EFFECTIVE DATE: November 19, 1997. presented in the preliminary results of disposition of proprietary information FOR FURTHER INFORMATION CONTACT: the review: disclosed under APO in accordance Michael J. Heaney at (202) 482–4475 or with 19 CFR 353.34.(d)(1). Timely Linda Ludwig at (202) 482–3833, AD/ Manu- Time Margin written notification of the return/ CVD Enforcement Office Eight, Import facturer/ Administration, International Trade exporter period (percent) destruction of APO materials or conversion to judicial protective order is Administration, U.S. Department of Zhejiang hereby requested. Failure to comply Commerce, 14th Street and Constitution Wan- with the regulations and the terms of an Avenue, N.W., Washington, DC 20230. xin APO is a sanctionable violation. Group The Applicable Statute and Regulations Co., This administrative review and notice Unless otherwise indicated, all Ltd .... 10/01/95±09/30/96 14.15 are in accordance with section 751(a)(1) citations to the statute are references to of the Act (19 U.S.C. 1675(a)(1)) and 19 the provisions effective January 1, 1995, The Department shall determine, and CFR 353.22. the effective date of the amendments the Customs service shall assess, made to the Tariff Act by the Uruguay 61802 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Round Agreements Act. In addition, 3920.62.00.00. The HTS subheading is the notice of initiation in accordance unless otherwise indicated, all citations provided for convenience and customs with 19 CFR 351.221(c)(3)(ii). to the Department’s regulations are to purposes. The written description of the Interested parties may submit case the regulations codified at 19 CFR 351 scope of this order is dispositive. briefs and/or written comments no later (62 FR 27296). This changed circumstances than 30 days after the date of administrative review covers Saehan. publication of these preliminary results. SUPPLEMENTARY INFORMATION: Initiation and Preliminary Results of Rebuttal briefs and rebuttals to written Background Changed Circumstances Antidumping comments, limited to issues raised in On September 29, 1997, Saehan Duty Administrative Review such briefs or comments, may be filed no later than 37 days after the date of requested that the Department conduct In accordance with section 751(b) of a changed circumstances administrative publication. The Department will the Tariff Act, as amended (the Act), the publish the final results of this changed review pursuant to section 751(b) of the Department is initiating a changed Tariff Act to determine whether Saehan circumstances review, which will circumstances administrative review to include the results of its analysis raised should properly be considered the determine whether Saehan is the successor firm to Cheil and if, as such, in any such written comments. successor company to Cheil. In making This initiation of review and notice the revocation issued for Cheil should such a determination, the Department are in accordance with sections 751(b) apply to Saehan. Saehan also requested examines several factors including, but of the Act, as amended (19 U.S.C. the Department to publish the not limited to, changes in (1) 1675(b)), and 19 CFR 351.216. preliminary results concurrently with management, (2) production facilities, this notice of initiation, pursuant to 19 (3) supplier relationships, and (4) Dated: November 12, 1997. CFR 351.221(c)(3)(ii). In its request, customer base, See e.g., Brass Sheet and Robert S. LaRussa, Saehan notified the Department that on Strip from Canada; Final Results of Assistant Secretary for Import February 28, 1997, Cheil officially Antidumping Duty Administrative Administration. changed its corporate name to Saehan, Review, 57 FR 20460 (May 13, 1992). [FR Doc. 97–30388 Filed 11–18–97; 8:45 am] and despite this change in corporate While no one or several of these factors BILLING CODE 3510±DS±M name, the management, production will necessarily provide a dispositive facilities, supplier relationships, and indication, the Department will customer base of Saehan are virtually generally consider the new company to DEPARTMENT OF COMMERCE identical to those of the former Cheil. In be the successor to the previous International Trade Administration support of its claim, Saehan submitted company if its resulting operation is documentary evidence demonstrating similar to that of the predecessor. See [A±549±502] that Saehan maintained essentially the e.g., Industrial Phosphoric Acid from same management, production facilities, Israel, Final Results of Changed Notice of Extension of Time Limit for supplier, and customer relationships as Circumstances Review, 59 FR 6944 Antidumping Duty Administrative Cheil. Citing the Department’s (February 14, 1994). Thus, if evidence Review of Certain Welded Carbon Steel determinations in Sugars and Syrups demonstrates that, with respect to the Pipes and Tubes From Thailand from Canada; Initiation and Preliminary production and sale of the subject AGENCY: Import Administration, Results of Changed Circumstances merchandise, the new company International Trade Administration, Review, 61 FR 48885 (Sept. 17, 1996) operates as the same entity as the former Department of Commerce. and Industrial Phosphoric Acid from company, the Department will treat the EFFECTIVE DATE: November 19, 1997. Israel; Preliminary Results of successor company the same as the Antidumping Duty Changed predecessor for purposes of SUMMARY: The Department of Commerce Circumstances Review, 58 FR 59010 antidumping liability, e.g., assign the (the Department) is extending the time (Nov. 5, 1993), Saehan claimed that the same cash deposit rate, revocation, etc. limit for the preliminary results of the Department should determine that it is We have examined the information antidumping duty administrative review the successor-in-interest to Cheil. provided by Saehan in its September 29, for the antidumping order on certain 1997 letter and determined that Saehan welded carbon steel pipes and tubes Scope of the Review has established a prima facie case that from Thailand, pursuant to the Tariff The merchandise subject to this it is the successor-in-interest to Cheil. Act of 1930, as amended by the Uruguay antidumping duty order are shipments The management and organizational Round Agreements Act (hereinafter, of all gauges of raw, pretreated, or structure of the former Cheil has ‘‘the Act’’). primed polyethylene terephthalate, film, remained intact under Saehan, and FOR FURTHER INFORMATION CONTACT: John sheet, and strip, whether extruded or there have been no changes in the Totaro or Dorothy Woster, AD/CVD coextruded. The films excluded from production facilities, supplier Enforcement Office 7, Import this review are metallized films, and relationships, or customer base. Administration, International Trade other finished films that have had at Therefore, we preliminarily determine Administration, U.S. Department of least one of their surfaces modified by that Saehan has maintained the same Commerce, 14th Street and Constitution the application of a performance- management, production facilities, Avenue, N.W., Washington, D.C. 20230, enhancing resinous or inorganic layer of supplier relationships, and customer telephone (202) 482–1398 or 482–3362, more than 0.00001 inches (0.254 bases as did Cheil. respectively. micrometers) thick. Roller transport Based upon the foregoing, we SUPPLEMENTARY INFORMATION: Under the cleaning film which has at least one of preliminarily determine that the July 5, Act, the Department may extend the its surfaces modified by the application 1996 revocation issued for Cheil applies deadline for completion of an of SBR latex has also been ruled as not to Saehan. Because Saehan has administrative review if it determines within the scope of the order. presented evidence to establish a prima that it is not practicable to complete the PET film is currently classifiable facie case of its successorship status, we review within the statutory time limit of under Harmonized Tariff Schedule of find it appropriate to issue the 365 days. In the instant case, the the United States subheading preliminary results in combination with Department has determined that it is not Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61803 practicable to complete the review Since it is not practicable to complete for final results), in accordance with within the statutory time limit (see this review within the time limits section 751(a)(3)(A) of the Act, the Memorandum to Robert S. LaRussa from mandated by the Act (245 days from the Department is extending the time limit Joseph A. Spetrini, November 12, 1997). last day of the anniversary month for as follows: preliminary results, 120 additional days

Initiation Prelim due Final due Product Country Review period date date date*

Certain Welded Carbon Steel Pipes and Tubes (A±549± Thailand ...... 03/01/96±02/28/97 04/24/97 03/31/98 08/05/98 502). *The Department shall issue the final determination 120 days after the publication of the preliminary determination. This final due date is esti- mated based on publication of the preliminary notice five business days after signature.

Dated: November 12, 1997. Island Fisheries (collectively referred to was unwarranted. On August 21, 1997, Joseph A. Spetrini, hereinafter as ‘‘petitioners’’). we decided to include certain benefits allegedly provided under Law No. Deputy Assistant Secretary, AD/CVD Case History Enforcement Group III. 18,480 in our investigation (see [FR Doc. 97–30398 Filed 11–18–97; 8:45 am] Since the publication of the notice of Memorandum from team to Richard W. BILLING CODE 3510±DS±P initiation in the Federal Register (62 FR Moreland, Acting Deputy Assistant 36772 (July 9, 1997) (‘‘Initiation Secretary for Import Administration). Notice’’), the following events have On August 25, 1997, the Department DEPARTMENT OF COMMERCE occurred. requested that the GOC provide We deemed this case to be information regarding rebates for International Trade Administration extraordinarily complicated and on July exports using domestically produced 28, 1997, we postponed the preliminary inputs provided under Law No. 18,480. [C±337±802] determination until November 10, 1997 The Department received the GOC (62 FR 40335). and company questionnaire responses Preliminary Negative Countervailing On July 23, 1997, we issued a on September 15, 1997 and September Duty Determination and Alignment of countervailing duty questionnaire to the 22, 1997. The Department issued Final Countervailing Duty Government of Chile (‘‘GOC’’). Due to supplemental questionnaires to the GOC Determination With Final Antidumping the large number of producers and and the four companies, and their Duty Determination: Fresh Atlantic exporters of fresh Atlantic salmon in affiliates, on September 30, 1997, and Salmon From Chile Chile, and with the GOC’s assurance received the supplemental responses on that it could provide aggregate data for October 14, 1997. On October 21, 1997, AGENCY: Import Administration, most programs, we solicited information the Department issued a second International Trade Administration, from the GOC on an aggregate or supplemental questionnaire to the GOC. Department of Commerce. industry-wide basis, rather than from The GOC responded to this EFFECTIVE DATE: November 19, 1997. the individual producers and exporters. questionnaire on October 27 and FOR FURTHER INFORMATION CONTACT: Rosa On August 1, 1997, the GOC notified us October 29, 1997. Jeong, Marian Wells or Todd Hansen, that it lacked usage information for the On November 6, 1997, we received a Office of Antidumping/Countervailing following programs: Chilean Production request from petitioners, pursuant to 19 Duty Enforcement, Group 1, Import Development Corporation (‘‘CORFO’’) CFR 355.20(c), to postpone the final Administration, U.S. Department of Export Credits and Long-Term Export determination in this investigation to Commerce, Room 3099, 14th Street and Financing, Law 18,439 Export Credit coincide with the final determination in Constitution Avenue, N.W., Limits, Law 18,449 (Stamp Tax the antidumping duty investigation of Washington, D.C. 20230; telephone Exemption), and Article 59 of Decree the fresh Atlantic salmon from Chile. (202) 482–1278, 482–6309 or 482–1276, Law 824. Therefore, on August 7, 1997, Accordingly, we are aligning the final respectively. we issued an additional questionnaire to determination in this investigation with four producers/exporters of the subject the date of the final determination in the Preliminary Determination merchandise concerning the above four antidumping duty investigation of the The Department of Commerce (the programs as well as Chapter XVIII and fresh Atlantic salmon from Chile. ‘‘Department’’) preliminarily determines Chapter XIX. The questionnaire was Scope of Investigation that countervailable subsidies are not sent to the following companies: being provided to producers or Pesquera Mares Australes Ltda., Marine The scope of this investigation covers exporters of fresh Atlantic salmon Harvest Chile, Aguas Claras S.A., and fresh, farmed Atlantic salmon, whether (‘‘salmon’’) in Chile. Pesquera Eicosal Ltda. imported ‘‘dressed’’ or cut. Atlantic On August 1, 1997, petitioners salmon is the species Salmo salar, in the Petitioners submitted comments arguing that the genus Salmo of the family salmoninae. The petition in this investigation was Law No. 18,480 program should have ‘‘Dressed’’ Atlantic salmon refers to filed by the Coalition for Fair Atlantic been included in the initiation. In the salmon that has been bled, gutted, and Salmon Trade (‘‘FAST’’) and the Initiation Notice, the Department cleaned. Dressed Atlantic salmon may following individual members of FAST: declined to initiate on Law No. 18,480, be imported with the head on or off; Atlantic Salmon of Maine; Cooke partly based on information provided with the tail on or off; and with the gills Aquaculture U.S., Inc.; DE Salmon, Inc.; during consultations with the GOC. in or out. All cuts of fresh Atlantic Global Aqua—USA, llc; Island Upon further review of information on salmon are included in the scope of the Aquaculture Corp.; Maine Coast Nordic, the record, we determined that our investigation. Examples of cuts include, Inc.; ScanAm Fish Farms; and Treats initial rejection of petitioners’ allegation but are not limited to: crosswise cuts 61804 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

(steaks), lengthwise cuts (fillets), Agreements Act effective January 1, ‘‘internationalization’’ of the private lengthwise cuts attached by skin 1995 (the ‘‘Act’’). sector participant. (butterfly cuts), combinations of ‘‘Internationalization’’ refers to the Injury Test crosswise and lengthwise cuts extension of a company’s commercial (combination packages), and Atlantic Because Chile is a ‘‘Subsidies operations to the external markets, salmon that is minced, shredded, or Agreement Country’’ within the which can be achieved through ground. Cuts may be subjected to meaning of section 701(b) of the Act, the exportation, mixed-ownership (foreign various degrees of trimming, and International Trade Commission (ITC) is and domestic), joint ventures, and imported with the skin on or off and required to determine whether imports international subsidiaries. Typical with the ‘‘pin bones’’ in or out. of the subject merchandise from Chile ProChile projects include advertising Excluded from the scope are: (1) fresh materially injure, or threaten material and promotional campaigns, creation of Atlantic salmon that is ‘‘not farmed’’ injury to, a U.S. industry. On August 6, catalogs and brochures, and (i.e., wild Atlantic salmon); (2) live 1997, the ITC published its preliminary organization of trade fairs. These Atlantic salmon; and (3) Atlantic determination finding that there is a projects are co-financed by ProChile and salmon that has been subjected to reasonable indication that an industry the private sector participants. further processing, such as frozen, in the United States is being materially The producers and exporters of canned, dried, and smoked Atlantic injured or threatened with material salmon in Chile received funding under salmon, or processed into forms such as injury by reason of imports from Chile this program for several salmon-related sausages, hot dogs, and burgers. of the subject merchandise (62 FR projects targeted to the U.S. and other The merchandise subject to this 42262). export markets. investigation is classifiable at statistical In the past, the Department has reporting numbers 0302.12.0003 and Period of Investigation (‘‘POI’’) recognized that general export 0304.10.4091 of the Harmonized Tariff The period for which we are promotion programs which provide Schedule (HTS) of the United States. measuring subsidies is calendar year only general informational services, do Although the HTS numbers are 1996. not constitute a countervailable benefit. provided for convenience and Customs See, e.g., Fresh Cut Flowers from purposes, the written description of the Subsidies Valuation Information Mexico, 49 FR 15007 (1984). However, merchandise is dispositive. Benchmarks for Loans and Discount where such activities promoted a specific product, or provided financial Comment on Scope Rates assistance to a firm, we have found the To calculate the countervailable As discussed in the Initiation Notice programs to be countervailable. See, benefit from loans and nonrecurring at 36773, we invited comments on the e.g., Fresh Atlantic Groundfish from grants, we have used the average rates scope of this proceeding. On August 8, Canada, 51 FR 10041 (1986) for U.S. dollar lending in Chile, as 1997, we received a comment from the (government funding of attendance at calculated by the Superintendencia de National Restaurant Association, an trade fair which targeted the exports of Bancos e Instituciones Financieras interested party, regarding product specific product to the U.S. market coverage. Specifically, the National (‘‘SBIF’’), the Chilean bank supervisory found to be countervailable); and Fresh Restaurant Association argued that agency. The U.S. dollar interest rates Cut Flowers from Israel, 52 FR 3316 ‘‘dressed’’ whole Atlantic salmon and were used because the loans in question (1987) (government reimbursements of ‘‘cut’’ salmon are not ‘‘like products.’’ were denominated in U.S. dollars and up to 50 percent of actual expenses Most of the National Restaurant the grant that was allocated over time incurred by the firm for promotional Association’s arguments have already was made in U.S. dollars. activities found to be countervailable). been addressed in the Initiation Notice, Allocation Period Based on the information on the record, where the Department adopted the we find that ProChile’s projects went Based on information provided by the single domestic like product definition beyond what we normally consider to GOC, we have used nine years, the set forth in the petition. In addition, the be general export promotional activities. weighted-average useful life of fact that ‘‘dressed’’ salmon and ‘‘cut’’ The projects were aimed at the productive assets for the Chilean salmon salmon are classified under separate promotion of specific products to industry, as the allocation period in this HTS categories is irrelevant. Like targeted export markets and also investigation. provided direct financial assistance to products can and often do comprise Based upon our analysis of the the participating firms. several HTS categories or a subset of petition and the responses to our merchandise covered by a single HTS Accordingly, we preliminarily questionnaires, we determine the determine that the ProChile grants number. Finally, the specific exclusion following: of ‘‘cut’’ salmon from the scope of the provide countervailable subsidies Salmon from Norway proceeding was a I. Programs Preliminarily Determined within the meaning of section 771(5) of result of the fact that the petition in that To Be Countervailable the Act. The grants are a direct transfer case did not include cut salmon, of funds from the GOC providing a A. ProChile Export Promotion benefit in the amount of the grant. The whereas, due to changing market Assistance conditions, the petition in this case grants are also specific within the specifically did. See, e.g., Antidumping ProChile, the Export Promotion meaning of section 771(5A)(B) of the Duty Order: Fresh and Chilled Atlantic Bureau of the Chilean Ministry of Act because their receipt is tied to the Salmon from Norway, 56 Fed. Reg. Foreign Affairs, aims to promote and anticipated exportation of the subject 14920 (1991). diversify Chile’s exports by providing merchandise to the United States and grants to private companies or other export markets. The Applicable Statute industries for export promotional We are treating these grants as ‘‘non- Unless otherwise indicated, all activities. Each ProChile project is recurring’’ based on the analysis set citations to the statute are references to designed and developed through a joint forth in the Allocation section of the the provisions of the Tariff Act of 1930, participation of ProChile and the private General Issues Appendix because they as amended by the Uruguay Round sector. The projects are aimed at the are exceptional rather than ongoing Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61805 events. Each project funded by a grant exporters of salmon during the POI. On D. Import Substitution of Capital Goods requires a separate application and this basis, we determine the In addition to the duty deferral and approval, and the projects represent countervailable subsidy for this program waiver program discussed above, Law one-time events. to be 0.01 percent ad valorem. 18,634 also contains a provision related To calculate the countervailable to the purchase of domestically sourced subsidy, we used our standard grant C. Law No. 18,634 (Deferred and Waived capital goods. According to the GOC, methodology. In accordance with our Import Duties on Capital Goods) this program is intended to encourage past practice, we allocated over time Law Number 18,634 of August 5, capital investment in Chile and to avoid grants from those years in which the 1987, established a program whereby a preference for imported capital goods benefits from this program exceeded 0.5 customs duties may be deferred and resulting from the import duty deferral percent of the value of appropriate subsequently waived on imported and waiver provisions of the same law. exports in the year of receipt. We capital goods used in the production of Under this provision, companies divided the benefit attributable to the exports. Under this program, both purchasing capital equipment POI by the value of appropriate exports exporters and non-exporters are allowed domestically can borrow up to 73 in the POI. On this basis, we determine to defer paying duties on certain capital the countervailable subsidy rate for this percent of the amount of customs duties goods. During the deferral period, the that would have been paid on the program to be 0.05 percent ad valorem. amount of duties owed is treated as a For a discussion of the denominators capital goods if they had been imported. loan on which the producer is required If the capital goods are ultimately used used in the calculation of the subsidy to pay interest. If the capital goods are rate for this program, see November 10, in the production of exports, the loan ultimately used for the production of balances and any unpaid interest are 1997 Calculation Memorandum to file exported goods, the outstanding balance from team. waived and the producer is not required and interest on the loan are waived. to repay the loan. The GOC has B. CORFO Export Credit Insurance The Law 18,634 deferral program is provided the amounts of loans and Premium Assistance available to exporters as well as non- waivers received under this program by exporters. The usage data provided by In 1995, CORFO established a exporters of subject merchandise for the program entitled ‘‘Export Credit the GOC indicates that the fishing and POI. Insurance Premium Assistance For aquaculture sector is neither a Because the receipt of loans under Small and Medium-Sized Companies.’’ predominant nor disproportionate user this program is contingent upon the This program provides a grant of up to of the program. Moreover, many sectors purchase of domestically produced 50 percent of the value of the export not normally considered to be exporters, capital equipment, we determine that credit insurance premium, subject to a such as the construction, electric, gas these loans are specific in accordance cap of one percent of the particular and water industries, participated in the with section 771(5A)(C) of the Act. export invoice, for export insurance duty deferral program. Accordingly, we Based on a comparison of the purchased by small and medium-sized preliminarily determine that the benefit, benchmark interest rates (see Subsidies Chilean exporting companies from if any, under the deferral program is not Valuation section of this notice) to the private insurance companies. Only specific within the meaning of section rates charged on the loans, we those Chilean exporters with annual 771(5A) of the Act. preliminarily determine that certain sales of up to US $10,000,000 are Under the Law 18,634 waiver loans confer benefits within the eligible for this program. CORFO’s program, the waiver of duties is meaning of section 771(5)(E)(ii) of the liability to the insurers is limited to the allowed, in whole or in part, if imported Act because the rate charged is less than payment of a portion of the insurance capital goods are used in the production the benchmark rate. We calculated the premium for the eligible company. Once of merchandise that is later exported. benefit from these loans by subtracting the exporter is approved, the agreed We preliminarily determine that the the interest charged during the POI portion of the insurance premium is waiver program provides under the program from interest under paid directly to the insurance company countervailable subsidies within the the benchmark rate and dividing this by CORFO. CORFO made payments to meaning of section 771(5) of the Act. difference by the value of all sales of insurance companies on behalf of The waiver of import duties represents producers and exporters of salmon. On eligible salmon-exporters under this revenue foregone by the GOC, providing this basis, we determine the program. a benefit in the amount of the waiver. countervailable subsidy from this We preliminarily determine that Because the waiver program is program to be 0.02 percent ad valorem. CORFO’s payments of the insurance contingent on export performance, we Regarding the waivers provided under premiums constitute countervailable preliminarily determine that it is the program, we preliminarily grants within the meaning of section specific within the meaning of section determine that the waivers are 771(5) of the Act. They are a direct 771(5A)(B) of the Act. countervailable subsidies within the transfer of funds from the GOC that The GOC has provided the amounts of meaning of section 771(5) of the Act. confer a benefit in the amount of the customs duties waived during the POI The waiver of the loan balances grant. These grants are specific within for exporters of subject merchandise. represents a direct transfer of funds the meaning of section 771(5A)(B) of the Because these waivers are automatic from the GOC, providing a benefit in the Act because their receipt is contingent when exportation is demonstrated, we amount of the balance and any unpaid upon export performance. Because these determine that the benefits under this interest waived. Further, the waivers are grants are made on an ongoing basis, we program are recurring. To calculate the specific within the meaning of section have treated the benefits as recurring in countervailable subsidy from this 771(5A)(B) of the Act because their accordance with the analysis set forth in program, we divided the total amount of receipt is contingent upon export the General Issues Appendix. waivers granted during the POI by the performance. To calculate the subsidy rate, we value of all exports of producers and Because these waivers are automatic divided the benefit attributable to the exporters of salmon. On this basis, we when exportation occurs, we determine POI by the value of all exports of fresh determine the countervailable subsidy that the benefit from this program is Atlantic salmon by producers and from this program to be 0.23 percent. recurring. To calculate the 61806 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices countervailable subsidy from the waiver determine the countervailable subsidy Under the terms of the agreement, ITT portion of this program, we divided the for this program to be 0.01 percent ad agreed to contribute its $25 million total amount of waivers granted during valorem. compensation to FCH’s endowment, and the POI by the value of all exports of the GOC matched this amount. F. Law No. 18,480 producers and exporters of salmon from FCH’s mission is to carry out Chile. On this basis, we determine the Law 18,480 of December 19, 1985, scientific and technological research countervailable subsidy from this established a simplified duty drawback and apply the research to industrial program to be 0.25 percent ad valorem. system for inputs used in small volume production and service areas of Chile. exports. In addition to the duty To meet these objectives, FCH forms E. Promotion and Development Fund drawback provision for imported inputs, The Promotion and Development companies to pursue technologies of the law also contains a provision interest, which are later sold to private Fund for Extreme Regions was whereby exporters using domestically established pursuant to Decree Law No. investors, and also provides technical produced inputs in their export assistance, consulting services, and 3,529, published on December 6, 1980. operations are entitled to the amount of Article 38 of this law established the training to companies for a fee. In 1996, the duty drawback that the exporter a major portion of FCH’s operating fund to aid in the development of would otherwise have realized if they remote regions of Chile. These regions budget came from fees for services and had imported the inputs. Because fresh profit from the sale of its companies are Tarapaca, Aysen del Presidente Atlantic salmon is excluded from the Carlos Ibanez del Campo, Magallanes with the remaining amount from the duty drawback portion of the program, original endowment. and Antartica Chilena and the provinces our investigation of Law No. 18,480 is of Chiloe and Pelena. The fund was limited to the payments for using Under section 771(5)(B) of the Act, a established to assist small and medium- domestically sourced inputs in the countervailable subsidy exists where the sized investors who make investments production of exported goods. government provides a financial or reinvestments in these regions. The maximum export values for contribution or ‘‘makes a payment to a Decree 15 of Decree Law 3,529 which the rates are applicable and the funding mechanism to provide a (published April 20, 1981) established list of eligible inputs are updated each financial contribution, or entrusts or the regulations pertaining to the fund. year. For an input to be eligible as a directs a private entity to make a These investments must be directly domestic input, the CIF value of its financial contribution, if providing the linked to the production process and imported raw materials and inputs may contribution would normally be vested involve capital assets relating to the not exceed 50 percent of its net value. in the government and the practice does company’s regular business activities. We preliminarily determine that Law not differ in substance from practices The program provides grants in the 18,480 is a countervailable subsidy normally followed by governments.’’ amount of 15 percent of the cost of new within the meaning of section 771(5) of The GOC has argued that FCH should investments or reinvestments made the Act. It is specific within the not be viewed as the government, nor between January 1 and December 31, meaning of section 771(5A)(B) of the was FCH entrusted or directed by the 1981, and 20 percent of the cost of Act because the receipt of the payment GOC to take actions that would investments and reinvestments made is contingent upon export performance. normally be vested in the government. between January 1, 1982 and December The program provides a financial We have not addressed these claims 31, 1999. The GOC has provided contribution because it is a direct because, as explained below, we have information on the amount of grants transfer of funds from the GOC to the preliminarily determined that the received under this program by the exporters and producers of salmon. financial contributions provided by FCH producers and exporters of the fresh Because the payment is automatic for do not confer a benefit. Atlantic salmon. eligible products, we have treated these With respect to the company start-up We preliminarily determine that grants as recurring. To calculate the Promotion and Development Fund ventures, FCH created or co-invested in countervailable subsidy from this three salmon-related companies. The grants provide countervailable subsidies program, we divided the total amount of within the meaning of section 771(5) of first venture was Salmones Antartica grants received during the POI by the (‘‘Antartica’’), created in 1982, which the Act. The grants are a direct transfer value of all exports of producers and of funds from the GOC providing a became the first company to exporters of salmon during the POI. On successfully demonstrate the technical benefit in the amount of the grant. The this basis, we determine the grants are specific within the meaning and economic viability of salmon countervailable subsidy from this of section 771(5A)(D)(iv) because they farming in Chile. FCH made three program to be 0.05 percent ad valorem. are limited to firms located in a separate equity infusions in Antartica, designated geographical region. II. Programs Preliminarily Determined the last of which was disbursed in 1988. We have treated these grants as non- Not to Be Countervailable Antartica was sold to private investors recurring based on the analysis set forth in 1989. Although Antartica produced in the Allocation section of the General A. Fundacio´ n Chile Assistance the subject merchandise during the POI, Issues Appendix. In accordance with Fundacio´n Chile (‘‘FCH’’) is a private, it did not do so during the time FCH our practice, we allocated over time, the non-profit organization established in had ownership interest. The second grants from those years in which the 1976 through an agreement between the venture was in 1988 when FCH, benefits from this program exceeded 0.5 GOC and the International Telephone together with three other private percent of the value of all sales of and Telegraph Corporation (‘‘ITT’’) with companies, formed Salmones Huillinco producer and exporters of salmon in the an original endowment fund of US $50 (25 percent equity participation by FCH) year of receipt. To calculate the million. This agreement (Decree No. which produces and commercializes countervailable subsidy, we used our 1528) stemmed from an earlier smolts. Finally, Salmotec S.A. standard grant methodology. We agreement (Decree No. 801) in which (Salmotec) was created by FCH and divided the benefit attributable to the the GOC agreed to compensate ITT for Antartica in 1988. Salmotec was sold to POI by the value of all sales of the value of certain ITT property that a a private company in 1995. FCH made producers and exporters of salmon former Chilean government had equity infusions in Salmotec in 1988 during the POI. On this basis, we previously expropriated from ITT. and 1990. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61807

Section 771(5)(E)(i) of the Act of salmon production. The growth was aimed at innovations in technology and provides that in the case of an equity projected to continue at an even greater for investment projects in technological infusion, a benefit is conferred if the rate (see Concurrence Memorandum to infrastructure. investment decision is inconsistent with Richard W. Moreland, Deputy Assistant The amount of FONTEC financing the usual investment practice of private Secretary, Import Administration from was subject to a ceiling dependent on investors, including the practice team dated November 10, 1997). Based the line of financing: (1) the first line regarding the provision of risk capital, on the growth projections and the health was for ‘‘technology innovation’’ in the county in which the equity of the Chilean salmon industry in 1988 projects involving financing requests infusion is made. and the entry into that industry by lower than US $100,000; (2) the second In making this determination, the private investors in the same year, we line was for projects involving financing Department examines the following preliminarily determine that FCH’s requests larger than US $100,000; and factors, among others: decision to invest in Salmotec was (3) the third line was for technological 1. Current and past indicators of a consistent with the usual investment infrastructure projects. Any private firm’s financial condition; practice of private investors in Chile. company or entity in the production 2. Future financial prospects of the We have not analyzed nor sector is eligible for FONTEC funding, firm including market studies, economic investigated FCH’s investment in provided that the company forecasts, and projects or loan Salmones Huillinco because this demonstrates that it has the proper appraisals; company is not a producer or exporter technical, administrative and financial 3. Rates of return on equity in the of the subject merchandise. capacity to execute and implement the three years prior to the equity infusion; The GOC reported that FCH did not proposed project and that the project is 4. Equity investment in the firm by provide any aquaculture infrastructure aimed at technological innovation in private investors; and to the salmon industry during the AUL products or processes. In addition, the 5. Prospects in world markets for the period, and there can be no residual third line of financing is only available product under consideration. benefits from the provision of to entities which: (1) are formed by at In start up situations and major infrastructure prior to the AUL period. least five companies; (2) organized as a expansion programs, where past Therefore, we did not examine this corporation or a foundation whose main experience is of little use in assessing program further. line of business is technological future performance, we recognize that Finally, regarding the technical transfer; and (3) can show stable the factors considered and the relative assistance provided by FCH, this projections of the project over time. weight placed on such factors may differ assistance included research and Applicants, regardless of the line of from the analysis of an established development, consultations, seminars financing under which they are enterprise. (For a more detailed and inspection services. For each type applying, must demonstrate the discussion of the Department’s of service provided, FCH charged a fee. eligibility of the project and the equityworthiness criteria see the Pursuant to section 771(5)(E)(iv) of the applicant company as well as the General Issues Appendix at 37244.) Act, a countervailable benefit exists in economic benefits of the project. In With respect to FCH’s investments in this situation if the services are particular, the evaluation guidelines for Antartica, the decision to invest was provided for less than adequate the second line of financing (projects made in 1981. FCH provided the remuneration. The adequacy of over US $100,000) specifies that the Department with three separate remuneration is determined in relation economic benefit criterion may be feasibility studies that it considered at to prevailing market conditions for the satisfied by factors such as ‘‘cost that time. The factors evaluated in the service. savings, production increases, export studies included the environmental We have examined the fees charged increases, etc.’’ (Emphasis added). The conditions of Chile, world market by private companies which are FCH’s guidelines for the other two lines of conditions, and projected costs and major competitors and have found that financing do not enumerate specific profits. One of the studies in particular the fees charged by FCH are in line with factors to measure the economic benefit. projected an internal rate of return, in those charged by the private service Chilean salmon producers received U.S. dollar terms, of over 30 percent on providers. Accordingly, we grants under all three lines of financing investment. Based on these factors, the preliminarily determine that FCH’s fees of this program. studies conclude that the conditions in provided adequate remuneration for the We analyzed whether the program is Chile were such that salmon farming services it provided. specific ‘‘in law or fact’’ within the would be profitable. In light of the For the foregoing reasons, we meaning of section 771(5A) of the Act. studies, we preliminarily determine that preliminarily determine that the Chilean We preliminarily determine that the FCH’s 1982 decision to invest in salmon industry has not received a program is not de jure specific because Antartica was consistent with the usual benefit from financial contributions the receipt of the benefits, in law, is not investment practice of private investors provided by FCH. contingent on export performance or on in Chile. use of domestically goods over imported The decision to invest in Salmotec B. Fund for Technological and goods nor are the benefits limited to an was approved by FCH in 1988. The GOC Productive Development (FONTEC) enterprise, industry or region. As stated claims that at the time, the Chilean FONTEC was established in 1991 by above, we note that anticipated salmon industry was well-established CORFO to promote, guide, finance, and exportation could have been a factor in and profitable. The GOC points to the assist the execution of technological the approval process of projects under fact that by 1988, there were 20 research and development projects in the second line of financing. producers and/or exporters of salmon in Chile. FONTEC is a committee Nevertheless, we have no evidence that operation in Chile and more private composed of eight members from the the GOC approved the salmon project companies were investing in the salmon public and private sectors with under the second line of financing based industry. Moreover, the Chilean salmon significant experience and reputation in on the export factor. In other words, industry had been growing at an technological fields. This program although the applicant may have extraordinary rate, as evidenced by the provides grants and loans for research fulfilled the economic benefits criterion dramatic increase in volume and value and development projects that are by demonstrating anticipated increases 61808 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices in exports, it is also possible that the whether FONTEC’s grants to INTESAL The GOC provided information on the criterion was met by other factors such constituted a non-actionable subsidy. amount of debt renegotiated and as savings in cost and production invested in each industry and region for C. Central Bank Chapter XIX increases. At verification, we will each of the years in which Chapter XIX closely examine the actual application Chapter XIX of the Central Bank’s operations occurred. Only 4.4 percent of and approval documents of the project Compendium of International Exchange the operations were in the fishing and under the second line of financing to Rules was designed to reduce the strain aquaculture sector; other sectors determine whether the GOC’s approval on Chile’s foreign currency reserves represented in Chapter XIX operations of the project was actually contingent on following the country’s external debt included mining, forestry, the company’s export performance. crisis at the beginning of the 1980s. communications, and financial Pursuant to section 771(5A)(D)(iii) of Chapter XIX permitted non-resident institutions, among others. Manufacture the Act, a subsidy is de facto specific if investors who bought Chilean external of paper and printing was the industry one or more of the following factors debt to trade that debt in Chile for local sector with the highest representation at exists: (1) the number of enterprises, currency to be used in carrying out nearly 20 percent of operations. industries or groups thereof, which use investment projects in Chile. The debt Accordingly, we preliminarily a subsidy is limited; (2) there is swap and subsequent investment had to determine that the farmed salmon predominant use of a subsidy by an be authorized by the Executive Council industry was neither a predominant nor enterprise, industry, or group; (3) there of the Central Bank. Chapter XIX came a disproportionate user of this program. is disproportionate use of a subsidy by into effect on May 14, 1985, and was D. Export Credit Limits an enterprise, industry, or group; or (4) abolished on August 3, 1995. No the manner in which the authority operations were carried out after 1991, Law Number 18,576 of 1986 governs providing a subsidy has exercised however, because Chile’s external debt lending limits for Chilean banks. Under discretion indicates that an enterprise or appreciated in international markets, this law, Chilean banks are prohibited industry is favored over others. As reducing the attractiveness of the debt from extending more than five percent explained in the Statement of swap operations. of their paid-in-capital in non- guaranteed loans to any single borrower. Administrative Action (‘‘SAA’’) (H.R. Petitioners alleged that the Central (For guaranteed loans, the limit is 25 Doc. No. 316, Vol. I, 103d Cong., 2d Bank used its authority in approving the percent.) However, this law also allows Session (1994) at 931), the fourth debt swaps to promote export-oriented Chilean banks to lend an additional five criterion normally serves to support the industries and import substitution. percent of their paid-in-capital to analysis of other de facto specificity Based on the evidence provided by the exporters for their foreign currency criteria. GOC, we have determined that the During the period 1991 through 1996, loans. benefit, if any, of these debt swaps and assistance under this program was While this program allows a Chilean equity investments is not specific. distributed to a large number and wide bank to lend a greater percentage of its variety of users in the majority of Neither the laws nor the regulations paid-in capital to an exporter than to a regions of Chile. Therefore, the program concerning Chapter XIX debt for equity customer that does not export, we have is not limited based on the number of swaps contained any formal provision preliminarily determined that this does users. The evidence also indicates that favoring exports or import substitution not confer a benefit on exporters. Based neither the salmon nor the fishing and at the time the investments at issue were on the information submitted, it does aquaculture industry received a approved. Moreover, based on not appear that non-exporting borrowers predominant or a disproportionate share information provided by the GOC, have less access to credit because, if of the total funding. Given our findings nearly 30 percent of the operations their borrowings will exceed the lending that the number of users is large and carried out under Chapter XIX were for limit at one bank, they can simply that there is no predominant or sectors producing non-traded goods. borrow from another commercial bank disproportionate use of the program by While certain anecdotal evidence exists at equivalent rates and terms. We intend the salmon industry, we do not reach regarding a bias towards export to examine the information closely at the issue of whether administrators of industries, other anecdotal evidence verification. Therefore, we preliminarily the program exercised discretion in indicates that the Central Bank did not determine that the export credit limits awarding benefits. Accordingly, we favor exporters in its authorizations. do not constitute a countervailable preliminarily determine that the The GOC has claimed that the Central subsidy within the meaning of section funding of projects by FONTEC is not Bank’s purpose in authorizing these 771(5)(E)(ii) of the Act because there is specific and has not conferred transactions was to ensure that the no benefit conferred on exporters. countervailable subsidies to the Chilean parties were legally eligible to E. Law No. 18,449 (Stamp Tax salmon industry within the meaning of participate and that the investment was section 771(5) of the Act. not fraudulent. Exemption) Of the several salmon-related projects We note that the Central Bank rejected Under Decree Law 3,475 of 1980, a funded by FONTEC, the GOC has a large number of proposed operations. stamp tax is levied on checks, letters of argued in the alternative that the Because it was not obligated to publish exchange, money orders, promissory funding provided to the Instituto its reasons for accepting or rejecting an notes and loan documents in Chile. The Tecnolo´gico del Salmo´n, S.A. application, we are unable to determine tax is levied on checks at the flat rate (‘‘INTESAL’’) falls within the definition whether the Central Bank directed of 109 pesos, and on other types of of a non-actionable subsidy under operations under Chapter XIX to export- documents at the rate of 0.1 percent of Article 8 of the WTO Agreement on oriented or import substituting the capital amount per month, to a Subsidies and Countervailing Measures industries. At verification, we intend to maximum of 1.2 percent per annum, or (‘‘SCM Agreement’’). Because we have review closely the rejected proposals to 0.5 percent on obligations payable on preliminarily determined that the determine if the Central Bank used demand or with no specified maturity project funding provided by FONTEC discriminatory criteria to favor date. The stamp tax is paid at the time does not constitute countervailable orientation towards specific sectors of a loan is disbursed, as the issuing bank subsidies, we do not reach the issue of the economy. withholds the amount of the stamp tax Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61809 from the gross amount of the loan. Law D. CORFO Export Credits and Long- this notice in the Federal Register to the 18,449 exempts documents relating to Term Export Financing Assistant Secretary for Import the financing of exports from this tax. E. Law No. 18,392 (Tax Exemptions) Administration, U.S. Department of In the Final Affirmative Commerce, Room B099, 14th Street and Countervailing Duty Determination: IV. Programs Preliminarily Determined Not To Exist Constitution Avenue, N.W., Standard Carnations from Chile, 52 FR Washington, DC 20230. Parties should 3313, 3314 (February 3, 1987), the Based on information provided by the confirm by telephone the time, date, and Department found the stamp tax GOC, we preliminarily determine that place of the hearing 48 hours before the exemption countervailable, stating: the following programs do not exist: scheduled time. ‘‘Neither the Government of Chile nor A. GOC Guarantee of Private Bank Requests for a public hearing should the respondent companies gave us clear Loans contain: (1) The party’s name, address, explanations as to what is meant by B. Import Substitution Subsidy for New and telephone number; (2) the number ‘export credit operations.’ ’’ In this Industries of participants; (3) the reason for proceeding, the GOC has placed on the C. Tax Deductions Available to attending; and (4) a list of the issues to record the copies and translations of Exporters be discussed. In addition, ten copies of regulations relating to this program Summary the business proprietary version and which describe the types of operations five copies of the nonproprietary and instruments eligible for the The total estimated preliminary net version of the case briefs must be exemption. We have previously countervailable subsidy rate for all submitted to the Assistant Secretary no determined that the non-excessive producers or exporters of fresh Atlantic later than February 24, 1998. Ten copies rebate or exemption of indirect taxes salmon in Chile is 0.62 percent, AD of the business proprietary version and levied at the final stage is not VALOREM, which is de minimis. five copies of the nonproprietary considered a subsidy (see, e.g., Final Therefore, we preliminarily determine version of the rebuttal briefs must be Negative Countervailing Determination: that countervailable subsidies are not submitted to the Assistant Secretary no Welded Carbon Steel Line Pipe from being provided to producers, or later than March 3, 1998. An interested Taiwan, 50 FR 53364 (December 31, exporters of fresh Atlantic salmon in party may make an affirmative 1985)). Because the amount of the Chile. presentation only on arguments exemption is not greater than the Verification included in that party’s case or rebuttal amount of the stamp tax due, we briefs. Written arguments should be preliminarily determine that this In accordance with section 782(i) of submitted in accordance with 19 CFR program does not confer countervailable the Act, we will verify the information 355.38 and will be considered if benefits within the meaning of section submitted by respondents prior to received within the time limits specified 771(5)(E) of the Act. making our final determination. above. F. Article 59 of Decree Law 824 ITC Notification This determination is published pursuant to section 703(f) of the Act. Under Article 59 of Decree Law 824, In accordance with section 703(f) of effective January 1, 1994, all foreign the Act, we will notify the ITC of our Dated: November 10, 1997. service providers doing business in determination. In addition, we are Robert S. LaRussa, Chile are required to pay income tax at making available to the ITC all non- Assistant Secretary for Import the rate of 35 percent. This tax is privileged and nonproprietary Administration. withheld by the Chilean company to information relating to this [FR Doc. 97–30387 Filed 11–18–97; 8:45 am] which the service is provided and then investigation. We will allow the ITC BILLING CODE 3510±DS±P paid to the government. The law access to all privileged and business exempts the foreign service providers proprietary information in our files, from paying the tax if the income was provided the ITC confirms that it will DEPARTMENT OF DEFENSE for certain services related to exportable not disclose such information, either goods and services produced in Chile. If publicly or under an administrative Department of the Army protective order, without the written the services are eligible for the Availability of U.S. Patents for Non- exemption, the Chilean company (i.e., consent of the Deputy Assistant Secretary, Import Administration. Exclusive, Exclusive, or Partially- the purchaser of the services) is also Exclusive Licensing exempt from the withholding If our final determination is requirement. affirmative, the ITC will make its final AGENCY: U.S. Army Research We found no evidence that the determination within 45 days after the Laboratory, Adelphi, Maryland. benefit, if any, resulting from the Department make its final ACTION: Notice. exemption from the tax and the determination. SUMMARY: In accordance with 37 CFR withholding requirement accrues to the Public Comment subject merchandise. Therefore, we 404.6, announcement is made of the preliminarily determine that this In accordance with 19 CFR 355.38, we availability of the following U.S. patents program does not constitute a will hold a public hearing, if requested, for non-exclusive, partially exclusive or countervailable subsidy. to afford interested parties an exclusive licensing. All of the listed opportunity to comment on this patents have been assigned to the III. Programs Preliminarily Determined preliminary determination. The hearing United States of America as represented To Be Not Used will be held on March 6, 1998, at the by the Secretary of the Army, The following programs were not U.S. Department of Commerce, Room Washington, DC. used: 3708, 14th Street and Constitution These patents cover a wide variety of A. Institute for Technological Research Avenue, N.W., Washington, D.C. 20230. technical arts including: A new type (INTEC) Individuals who wish to request a kinetic energy projectile; a new ceramic B. Central Bank Chapter XVIII hearing must submit a written request nanocomposite; a device to locate the C. Export Promotion Fund within ten days of the publication of position of impact of a projectile on a 61810 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices target and an impact absorbing sole for by the Paperwork Reduction Act of Dated: November 13, 1997. parachutists. 1995. Gloria Parker, Under the authority of Section Deputy Chief Information Officer, Office of DATES: Interested persons are invited to 11(a)(2) of the Federal Technology the Chief Information Officer. Transfer Act of 1986 (Pub. L. 99–502) submit comments on or before Office of Postsecondary Education and Section 207 of Title 35, United December 19, 1997. States Code, the Department of the ADDRESSES: Written comments should Type of Review: New. Army as represented by the U.S. Army be addressed to the Office of Title: Final Performance Report for Research Laboratory wish to license the Information and Regulatory Affairs, the Business and International U.S. patents listed below in a non- Attention: Dan Chenok, Desk Officer, Education Program (BIE). Frequency: At the Completion of the exclusive, exclusive or partially Department of Education, Office of Project Period. exclusive manner to any party Management and Budget, 725 17th Affected Public: Not-for-profit interested in manufacturing, using, and/ Street, NW., Room 10235, New or selling devices or processes covered institutions. Executive Office Building, Washington, by these patents. Annual Reporting and Recordkeeping DC 20503. Requests for copies of the Title: Kinetic Energy Projectile with Hour Burden: proposed information collection Responses: 30 Fin Leading Edge Protection requests should be addressed to Patrick mechanisms. Burden Hours: 150 J. Sherrill, Department of Education, 600 Inventor: Ameer G. Mikhail. Abstract: The data collected through Patent Number: 5,668,347. Independence Avenue, S.W., Room the final performance report will enable Issue Date: September 16, 1997. 5624, Regional Office Building 3, ED officials to determine the impact of Washington, DC 20202–4651. Title: Device for Locating the Position the BIE federal funds on its recipients. US/ED will use the information of Impact of a Projectile. FOR FURTHER INFORMATION CONTACT: collected to meet Government Inventors: George M. Thomson, Patrick J. Sherrill (202) 708–8196. Performance and Results Act Thomas W. Kottke and Paul R. Berning. Individuals who use a Patent Number: 5,669,608. requirements and to provide budget telecommunications device for the deaf justifications. Issue Date: September 23, 1997. (TDD) may call the Federal Information Title: Sion Low Dielectric Constant Relay Service (FIRS) at 1–800–877–8339 Office of Postsecondary Education Ceramic Nanocomposite. between 8 a.m. and 8 p.m., Eastern time, Type of Review: Extension. Inventors: Gary Gilde, Parimal Patel, Monday through Friday. Title: Guaranty Agency Quarterly/ Clifford Hubbard, Brain Pothier, Annual Report. SUPPLEMENTARY INFORMATION: Section Thomas Hynes, William Croft and Joe Frequency: Annually. 3506 of the Paperwork Reduction Act of Wells. Affected Public: Business or other for- Patent Number: 5,677,252. 1995 (44 U. S. C. Chapter 35) requires profit; State, local or Tribal Gov’t, SEAs Issue Date: October 14, 1997. that the Office of Management and or LEAs. Title: Impact Absorbing Soles for Budget (OMB) provide interested Annual Reporting and Recordkeeping Parachutist. Federal agencies and the public an early Hour Burden: Inventors: Jim Faughn and Harrison P. opportunity to comment on information Responses: 37 Crowell, III. collection requests. OMB may amend or Burden Hours: 2,941 Patent Number: 5,675,915. waive the requirement for public Abstract: The Guaranty Agency Issue Date: October 14, 1997. consultation to the extent that public Quarterly/Annual Report is submitted FOR FURTHER INFORMATION CONTACT: participation in the approval process by 37 agencies operating a student loan Mr. Michael Rausa, Technology Transfer would defeat the purpose of the insurance Program under agreement Office, AMSRL–CS–TT/Bldg 434, U.S. information collection, violate State or with the Department of Education. Army Research Laboratory, Aberdeen Federal law, or substantially interfere These reports are used to evaluate Proving Ground, Maryland 21005–5425, with any agency’s ability to perform its agency operations, make payments to tel: (410) 278–5028; fax: (410) 278–5820. statutory obligations. The Deputy Chief agencies as authorized by law, and to SUPPLEMENTARY INFORMATION: None. Information Officer, Office of the Chief make reports to Congress. Mary V. Yonts, Information Officer, publishes this [FR Doc. 97–30317 Filed 11–18–97; 8:45 am] Alternate Army Federal Register Liaison notice containing proposed information BILLING CODE 4000±01±P Officer. collection requests prior to submission [FR Doc. 97–30293 Filed 11–18–97; 8:45 am] of these requests to OMB. Each BILLING CODE 3710±08±M proposed information collection, DEPARTMENT OF ENERGY grouped by office, contains the following: (1) Type of review requested, National Petroleum Council; Notice of DEPARTMENT OF EDUCATION e.g., new, revision, extension, existing Open Meeting or reinstatement; (2) Title; (3) Summary AGENCY: Department of Energy. Submission for OMB Review; of the collection; (4) Description of the SUMMARY: Pursuant to the provisions of Comment Request need for, and proposed use of, the the Federal Advisory Committee Act information; (5) Respondents and AGENCY: Department of Education (Pub. L. No. 92–463, 86 Stat. 770), ACTION: Submission for OMB review; frequency of collection; and (6) notice is hereby given of the following comment request. Reporting and/or Recordkeeping meeting: burden. OMB invites public comment at SUMMARY: The Deputy Chief Information the address specified above. Copies of NAME: National Petroleum Council Officer, Office of the Chief Information the requests are available from Patrick J. (NPC). Officer, invites comments on the Sherrill at the address specified above. DATE AND TIME: Thursday, December 11, submission for OMB review as required 1997, 9:00 am. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61811

ADDRESS: ANA Hotel, Grand Ballroom, programmatic issues which had to be is open between the hours of 8:00 a.m. 2401 M Street, NW., Washington, D.C. resolved prior to publication in the and 4:30 p.m., Monday through Friday, FOR FURTHER INFORMATION CONTACT: Federal Register. except Federal holidays. Margie D. Biggerstaff, U.S. Department Transcripts: Available for public Issued in Washington, D.C. November 6, of Energy, Office of Fossil Energy, FE– review and copying at the Public 1997. 5, Washington, D.C. 20585, Telephone: Reading Room, Room IE–190, Forrestal Wayne E. Peters, Building, 1000 Independence Avenue, (202) 586–3867. Manager, Natural Gas Regulation, Office of S.W., Washington, D.C., between 9:00 SUPPLEMENTARY INFORMATION: Natural Gas & Petroleum Import and Export AM and 4:00 PM, Monday through Activities, Office of Fossil Energy. Purpose: To provide advice, Friday, except Federal holidays. [FR Doc. 97–30349 Filed 11–18–97; 8:45 am] information, and recommendations to Issued at Washington, D.C., on November BILLING CODE 6450±01±P the Secretary of Energy on matters 13, 1997. relating to oil and gas or the oil and gas Althea T. Vanzego, industry. Acting Deputy Committee Advisory, DEPARTMENT OF ENERGY Management Officer. Tentative Agenda: [FE Docket Nos. 97±70-NG et al;] [FR Doc. 97–30345 Filed 11–18–97; 8:45 am] —Call to order and introductory remarks by Joe B. Foster, Chair of BILLING CODE 6450±01±P Office of Fossil Energy, Plum Street the NPC. Energy Marketing, Inc. et al, Orders Granting, Transferring and Vacating —Remarks by the Honorable Federico F. DEPARTMENT OF ENERGY Pen´ a, Secretary of Energy. Blanket Authorizations to Import and/ —Status report from NPC Committee on [FE Docket No. 97±48±NG] or Export Natural Gas Product Supply. AGENCY: —Presentation on monograph of NPC’s Office of Fossil Energy; Engage Office of Fossil Energy, DOE. first 50 years. Energy US, L.P.; Order Granting Long- ACTION: Notice of orders. —Administrative matters. Term Authorization to Import Natural SUMMARY: —Discussion of any other business Gas From Canada The Office of Fossil Energy of the Department of Energy gives notice properly brought before the NPC. AGENCY: Office of Fossil Energy, DOE. —Public comment (10-minute rule). that it has issued Orders authorizing, ACTION: —Adjournment. Notice of order. transferring and/or vacating various imports and/or exports of natural gas. Public Participation: The meeting is SUMMARY: The Office of Fossil Energy of These Orders are summarized in the open to the public. The chairperson of the Department of Energy gives notice attached appendix. the Council is empowered to conduct that it has issued an Order granting These Orders are available for the meeting in a fashion that will Engage Energy US, L.P. authority to inspection and copying in the Office of facilitate the orderly conduct of import from Canada up to 30.5 MMCF Natural Gas & Petroleum Import and business. Any member of the public per day of natural gas for a ten-year Export Activities, Docket Room, 3F–056, who wishes to file a written statement period beginning on November 1, 1998. Forrestal Building, 1000 Independence with the Council will be permitted to do This natural gas will be purchased from Avenue, S.W., Washington, D.C. 20585, so, either before or after the meeting. six Canadian producers and may be (202) 586–9478. The Docket Room is Members of the public who wish to imported near Emerson, Manitoba/ open between the hours of 8:00 a.m. and make oral statements pertaining to Noyes, Minnesota, or at alternative 4:30 p.m., Monday through Friday, agenda items should contact Margie D. border points where transportation except Federal holidays. Biggerstaff at the address or telephone facilities are accessible to Engage. number listed above. Requests must be This order is available for inspection Issued in Washington, D.C., on November received at least five days prior to the and copying in the Office of Natural Gas 6, 1997. meeting and reasonable provision will & Petroleum Import and Export Wayne E. Peters be made to include the presentation on Activities Docket Room, 3F–056, Manager, Natural Gas Regulation, Office of the agenda. This notice is being Forrestal Building, 1000 Independence Natural Gas & Petroleum Import and Export published less than 15 days in advance Avenue, SW., Washington, D.C. 20585– Activities, Office of Fossil Energy. of the meeting due to certain 0350, (202) 586–9478. The docket room Attachment

APPENDIXÐBLANKET IMPORT/EXPORT AUTHORIZATIONS GRANTED

Two-year maximum Order No. Date issued Importer/Exporter FE docket No. Import vol- Export vol- Comments ume ume

1303 ...... 10/01/97 Plum Street Energy Marketing, Inc., 97±70± 75 Bcf Import and export up to a combined total NG. from and to Canada. 1304 ...... 10/03/97 CNG Energy Services Corporation, 97±71± 200 Bcf 200 Bcf Import and export from and to Canada. NG. 200 Bcf 200 Bcf Import and export from and to Mexico. 1305 ...... 10/03/97 Pacific Gas and Electric Company Core 600 Bcf Import from Canada. Procurement Department (Formerly Gas Supply Business Unit), 97±69±NG. 1306 ...... 10/03/97 DEK Energy Company, 97±63±NG ...... 73 Bcf Import from Canada. 1307 ...... 10/10/97 Inland pacific Energy Services Ltd., 97±73± 50 Bcf 50 Bcf Import and export from and to Canada. NG. 61812 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

APPENDIXÐBLANKET IMPORT/EXPORT AUTHORIZATIONS GRANTEDÐContinued

Two-year maximum Order No. Date issued Importer/Exporter FE docket No. Import vol- Export vol- Comments ume ume

1308 ...... 10/16/97 Tenaska Marketing Ventures, 97±72±NG .... 200 Bcf Import and export up to a combined total from and to Canada and Mexico. 1309 ...... 10/16/97 San Diego gas & Electric Company, 97±67± 73 Bcf Import from Canada. NG. 1310 ...... 10/16/97 Avista Energy, Inc., 97±64±NG ...... 219 Bcf Import from Canada. 1311 ...... 10/16/97 Centra Gas Ontario, Inc., 97±74±NG ...... 16 Bcf Export to Canada. 1312 ...... 10/22/97 North Atlantic Pipeline Partners, L.P., 97± 500 Bcf Import from Canada. 82±NG. 1313 ...... 10/24/97 Murphy Gas Gathering Company, 97±83± 75 Bcf Import from Canada. NG. 1314 ...... 10/24/97 Northern Utilities, Inc., 97±91±NG ...... 15 Bcf Import from Canada. 1315 ...... 10/24/97 Suncor Energy Inc. (Formerly Suncor Inc.), 127.66 Bcf Import from Canada. 97±85±NG. 1316 ...... 10/24/97 Natural Gas Clearinghouse, 97±78±NG ...... 600 Bcf 330 Bcf Import up to a combined total from Canada and Mexico. Export up to a combined total to Canada and Mexico. 1317 ...... 10/24/97 Paramount Resources U.S. Inc., 97±84±NG 300 Bcf Import from Canada. 1318 ...... 10/27/97 Williams Energy Services Company, 97± 200 Bcf Import from Canada. 79±NG. 1319 ...... 10/27/97 Jonan Gas Marketing Inc., 97±77±NG ...... 100 Bcf Import and export up to a combined total from and to Canada. 1320 ...... 10/27/97 Victoria International, Ltd., 97±86±NG ...... 10 Bcf Import and export up to a combined total from and to Canada. 1321 ...... 10/27/97 Ocean State Power 97±92±NG ...... 36.5 Bcf Import and export up to a combined total from and to Canada. 1322 ...... 10/27/97 Enron Capital & Trade Resources Corpora- 400 Bcf 400 Bcf Import and export from and to Mexico. tion, 97±75±NG. 1323 ...... 10/27/97 Enron Capital & Trade Resources Corpora- 1,000 Bcf 1,000 Bcf Import and export from and to Canada. tion, 97±76±NG. 1324 ...... 10/31/97 United States Gypsum Company, 97±93± 7.3 Bcf Import from Canada. NG. 1325 ...... 10/31/97 Corpus Christi Gas Marketing, L.P., 97±90± 8 Bcf 290 Bcf Import up to a combined total from Canada NG. and Mexico. Export up to a combined total to Canada and Mexico. 1325 ...... 10/31/97 Corpus Christi Gas Marketing, L.P., 90±79± Vacated. NG. 1325 ...... 10/31/97 Corpus Christi Gas Marketing, L.P., 96±04± Vacated. NG.

[FR Doc. 97–30350 Filed 11–18–97; 8:45 am] This order is available for inspection DEPARTMENT OF ENERGY BILLING CODE 6450±01±P and copying in the Office of Natural Gas [FE Docket No. 97±88±NG] & Petroleum Import and Export Activities Docket Room, 3F–056, Office of Fossil Energy; Progas U.S.A., DEPARTMENT OF ENERGY Forrestal Building, 1000 Independence Inc. Order Granting Long-Term Avenue, SW., Washington, DC 20585– Authorization to Import Natural Gas [FE Docket No. 97±87±NG] 0350, (202) 586–9478. The docket room From Canada is open between the hours of 8:00 a.m. AGENCY: Office of Fossil Energy, DOE. Office of Fossil Energy; PROGAS and 4:30 p.m., Monday through Friday, U.S.A., Inc.; Order Granting Long-Term ACTION: except Federal holidays. Notice of order. Authorization To Import Natural Gas From Canada Issued in Washington, D.C. November 6, SUMMARY: The Office of Fossil Energy of 1997. the Department of Energy gives notice AGENCY: Office of Fossil Energy, DOE. Wayne E. Peters, that it has issued an order granting ProGas U.S.A., Inc. authority to import ACTION: Notice of order. Manager, Natural Gas Regulation, Office of from Canada up to 7,850 Mcf per day of Natural Gas & Petroleum Import and Export SUMMARY: The Office of Fossil Energy of Activities, Office of Fossil Energy. natural gas for the period of November the Department of Energy gives notice 1, 1997, through March 1, 2007. This [FR Doc. 97–30346 Filed 11–18–97; 8:45 am] that it has issued an order granting natural gas will be purchased from ProGas U.S.A., Inc. authority to import BILLING CODE 6450±01±P ProGas Limited and imported near from Canada up to 26,500 Mcf per day Eastport, Idaho. of natural gas for the period of This order is available for inspection November 1, 1998, through October 31, and copying in the Office of Natural Gas 2008. This natural gas will be purchased & Petroleum Import and Export from ProGas Limited and imported near Activities Docket Room, 3F–056, Noyes, Minnesota. Forrestal Building, 1000 Independence Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61813

Avenue, S.W., Washington, D.C. 20585– that it has issued an order granting Any person desiring to be heard or 0350, (202) 586–9478. The docket room Sierra Pacific Power Company authority any person desiring to make any protest is open between the hours of 8:00 a.m. to import from Canada up to 15,000 with reference to said application and 4:30 p.m., Monday through Friday, MMBtu per day of natural gas for the should on or before December 4, 1997, except Federal holidays. period of April 1, 1997, through March file with the Federal Energy Regulatory Issued in Washington, D.C. November 6, 31, 2000. This natural gas will be Commission, Washington, DC 20426, a 1997. purchased from Amoco Canada motion to intervene or a protest in Wayne E. Peters, Petroleum Company Ltd. and may be accordance with the requirements of the Manager, Natural Gas Regulation, Office of imported near Eastport, Idaho/ Commission’s Rules of Practice and Natural Gas & Petroleum Import and Export Kingsgate, British Columbia. Procedure (18 CFR 385.214 or 385.211) Activities, Office of Fossil Energy. This order is available for inspection and the Regulations under the Natural [FR Doc. 97–30347 Filed 11–18–97; 8:45 am] and copying in the Office of Natural Gas Gas Act (18 CFR 157.10). All protests filed with the Commission will be BILLING CODE 6450±01±P & Petroleum Import and Export Activities Docket Room, 3F–056, considered by it in determining the Forrestal Building, 1000 Independence appropriate action to be taken but will DEPARTMENT OF ENERGY Avenue, SW., Washington, DC 20585– not serve to make the protestants parties 0350, (202) 586–9478. The docket room to the proceeding. Any person wishing [FE Docket No. 97±89±NG] is open between the hours of 8:00 a.m. to become a party to a proceeding or to participate as a party in any hearing Office of Fossil Energy; ProGas U.S.A., and 4:30 p.m., Monday through Friday, therein must file a motion to intervene Inc. Order Granting Long-Term except Federal holidays. in accordance with the Commission’s Authorization to Import Natural Gas Issued in Washington, D.C. November 7, 1997. Rules. From Canada Take further notice that, pursuant to Wayne E. Peters, AGENCY: Office of Fossil Energy, DOE. the authority contained in and subject to Manager, Natural Gas Regulation, Office of ACTION: Notice of order. the jurisdiction conferred upon the Natural Gas & Petroleum Import and Export Federal Energy Regulatory Commission Activities, Office of Fossil Energy. SUMMARY: The Office of Fossil Energy of by Sections 7 and 15 of the Natural Gas the Department of Energy gives notice [FR Doc. 97–30351 Filed 11–18–97; 8:45 am] Act and the Commission’s Rules of that it has issued an order granting BILLING CODE 6450±01±P Practice and Procedure, a hearing will ProGas U.S.A., Inc. authority to import be held without further notice before the from Canada up to 30,000 Mcf per day Commission or its designee on this of natural gas for the period of DEPARTMENT OF ENERGY application if no motion to intervene is November 1, 1998, through March 1, Federal Energy Regulatory filed within the time required herein, if 2008. This natural gas will be purchased Commission the Commission on its own review of from ProGas Limited and imported near the matter finds that permission and Port of Morgan, Montana. [Docket No. CP98±71±000] approval for the proposed abandonment This order is available for inspection are required by the public convenience and copying in the Office of Natural Gas ANR Pipeline Company; Notice of and necessity. If a motion for leave to & Petroleum Import and Export Application intervene is timely filed, or if the Activities Docket Room, 3F–056, Commission on its own motion believes Forrestal Building, 1000 Independence November 13, 1997. that a formal hearing is required, further Avenue, SW., Washington, DC 20585– Take notice that on November 5, notice of such hearing will be duly 0350, (202) 586–9478. The docket room 1997, ANR Pipeline Company (ANR), given. is open between the hours of 8:00 a.m. 500 Renaissance Center, Detroit, MI Under the procedure herein provided and 4:30 p.m., Monday through Friday, 48243, filed in Docket No. CP98–71–000 for, unless otherwise advised, it will be except Federal holidays. an application pursuant to Section 7(b) unnecessary for ANR to appear or be of the Natural Gas Act for permission represented at the hearing. Issued in Washington, D.C. November 6, and approval to abandon by transfer 1997. Lois D. Cashell, 11.74 miles of 10-inch pipeline located Secretary. Wayne E. Peters, in Wheeler County, TX and Beckham [FR Doc. 97–30309 Filed 11–18–97; 8:45 am] Manager, Natural Gas Regulation, Office of County, OK, all as more fully set forth Natural Gas & Petroleum, Import and Export in the application which is on file with BILLING CODE 6717±01±M Activities, Office of Fossil Energy. the Commission and open to public [FR Doc. 97–30348 Filed 11–18–97; 8:45 am] inspection. DEPARTMENT OF ENERGY BILLING CODE 6450±01±P ANR proposes to transfer to its affiliate, ANR Field Services Company Federal Energy Regulatory DEPARTMENT OF ENERGY at net book value, its Mayfield Lateral Commission located in Beckham County, OK and [FE Docket No. 97±81±NG] Wheeler County, TX. [Docket No. CP97±769±000] The facilities, it is said, consists of Office of Fossil Energy; Sierra Pacific Colorado Interstate Gas Company; 11.74 miles of 10-inch pipeline and Notice of Site Visits Power Company, Order Granting Long- extent from the Mayfield Gathering Term Authorization to Import Natural System to an intersection with ANR’s November 13, 1997. Gas From Canada 16-inch trunkline 496–1602. The Office of Pipeline Regulation AGENCY: Office of Fossil Energy, DOE. ANR requests that the Commission (OPR) will conduct a site visit with ACTION: Notice of Order. declare that the facilities are gathering representatives of Colorado Interstate facilities exempt from the Commission’s Gas Company, of its proposed Campo SUMMARY: The Office of Fossil Energy of jurisdiction under Section 1(b) of the Lateral in Las Animas and Baca the Department of Energy gives notice Natural Gas Act. Counties, Colorado. The site visit will 61814 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices take place on November 19 and 20, protest is filed and not withdrawn filed within the time allowed therefor, 1997. within 30 days after the time allowed the proposed activity shall be deemed to All interested parties may attend. for filing a protest, the instant request be authorized effective the day after the Those planning to attend must provide shall be treated as an application for time allowed for filing a protest. If a their own transportation. authorization pursuant to Section 7 of protest is filed and not withdrawn For further information, please the Natural Gas Act. within 30 days after the time allowed contact Paul McKee at (202) 208–1088. Lois D. Cashell, for filing a protest, the instant request Lois D. Cashell, Secretary. shall be treated as an application for Secretary. [FR Doc. 97–30307 Filed 11–18–08; 8:45am] authorization pursuant to Section 7 of [FR Doc. 97–30371 Filed 11–18–97; 8:45 am] BILLING CODE 6717±01±M the Natural Gas Act. BILLING CODE 6712±01±M Lois D. Cashell, Secretary. DEPARTMENT OF ENERGY [FR Doc. 97–30310 Filed 11–18–97; 8:45 am] DEPARTMENT OF ENERGY Federal Energy Regulatory BILLING CODE 6717±01±M Federal Energy Regulatory Commission Commission [Docket No. CP98±73±000] DEPARTMENT OF ENERGY [Docket No. CP98±68±000] Texas Gas Transmission Corporation; Federal Energy Regulatory Natural Gas Pipeline Company of Notice of Request Under Blanket Commission America; Notice of Request under Authorization Blanket Authorization [Docket No. OA96±50±001] November 13, 1997. November 13, 1997. Take notice that on November 6, Union Electric Company; Notice of Take notice that on November 5, 1997, Texas Gas Transmission Filing 1997, Natural Gas Pipeline Company of Corporation (Texas Gas), P.O. Box November 13, 1997. America (Natural), 701 East 22nd Street, 20008, Owensboro, Kentucky 42304, Take notice that on July 9, 1996, Lombard, Illinois 60148, filed in Docket filed in Docket No. CP98–73–000 a Union Electric Company tendered for No. CP98–68–000 a request pursuant to request pursuant to Sections 157.205, filing its non-rate terms and conditions Sections 157.205, and 157.212, of the and 157.211, of the Commission’s in the above-referenced docket. Commission’s Regulations under the Regulations under the Natural Gas Act Any person desiring to be heard or to Natural Gas Act (18 CFR 157.205, (18 CFR 157.205, 157.211) for protest said filing should file a motion 157.212) for authorization to construct authorization to operate an existing to intervene or protest with the Federal and operate facilities in Lonoke County, delivery point under Texas Gas’s Energy Regulatory Commission, 888 Arkansas, under Natural’s blanket blanket certificate issued in Docket No. First Street, N.E., Washington, D.C. certificate issued in Docket No. CP82– CP88–686–000 pursuant to Section 7 of 402–000 pursuant to Section 7 of the the Natural Gas Act, all as more fully set 20426, in accordance with Rules 211 Natural Gas Act, all as more fully set forth in the request that is on file with and 214 of the Commission’s Rules of forth in the request that is on file with the Commission and open to public Practice and Procedure (18 CFR 385.211 the Commission and open to public inspection. and 18 CFR 385.214). All such motions inspection. Texas Gas proposes to operate an or protests should be filed on or before Natural proposes to install a 2-inch existing 3-inch delivery meter and November 25, 1997. Protests will be meter and 3-inch side tap facilities for related facilities that was originally considered by the Commission in an interconnection with Arkla, a constructed under the authority of determining the appropriate action to be Division of Noram Energy Corporation Section 311 of the Natural Gas Policy taken, but will not serve to make (Arkla). These facilities will be Act of 1978 to transport gas for Natural protestants parties to the proceeding. constructed to deliver approximately Gas of Kentucky, Inc. (NGKY). The Any person wishing to become a party 1,000 MMBtu per day of natural gas to facilities are located at mile 3+2750 on must file a motion to intervene. Copies Arkla in Cabot, Arkansas. They are Texas Gas’s Russellville Bowling Green of this filing are on file with the estimated to cost $55,000. Natural states 8-inch line in Logan County, Kentucky. Commission and are available for public that it has sufficient capacity to provide Texas Gas states that because only inspection. these services at the proposed delivery interruptible transportation service is Lois D. Cashell, point without detriment or disadvantage proposed to be provided to NGKY at Secretary. to Natural’s peak day and annual this point, the proposal will have no [FR Doc. 97–30316 Filed 11–18–97; 8:45 am] delivery capacity. significant effect on Texas Gas’s peak BILLING CODE 6717±01±M Any person or the Commission’s staff day and annual deliveries, and service may, within 45 days after issuance of to NGKY through this point can be the instant notice by the Commission, accomplished without detriment to DEPARTMENT OF ENERGY file pursuant to Rule 214 of the Texas Gas’s other customers. Commission’s Procedural Rules (18 CFR Any person or the Commission’s staff Federal Energy Regulatory 385.214) a motion to intervene or notice may, within 45 days after issuance of Commission of intervention and pursuant to Section the instant notice by the Commission, [Docket No. CP98±70±000] 157.205 of the Regulations under the file pursuant to Rule 214 of the Natural Gas Act (18 CFR 157.205) a Commission’s Procedural Rules (18 CFR The Union Light, Heat and Power protest to the request. If no request is 385.214) a motion to intervene or notice Company; Notice of Application filed within the time allowed therefor, of intervention and pursuant to Section the proposed activity shall be deemed to 157.205 of the Regulations under the November 13, 1997. be authorized effective the day after the Natural Gas Act (18 CFR 157.205) a Take notice that on November 5, time allowed for filing a protest. If a protest to the request. If no protest is 1997, The Union Light, Heat and Power Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61815

Company (Union Light), 139 East Fourth convenience and necessity. If a motion total) with exhaust mufflers and Street, Cincinnati, Ohio 45202, filed in for leave to intervene is timely filed, or aftercoolers for gas injection to and Docket No. CP98–70–000 an application if the Commission on its own motion withdrawal from et al. pursuant to Section 7(c) of the Natural believes that a formal hearing is • The storage caverns, meter station, Gas Act for a certificate of public required, further notice of such hearing electrical substation, emergency convenience and necessity to modify will be duly given. generator, and other appurtenant the service currently provided under Under the procedure herein provided facilities; Rate Schedule X–4, all as more fully set for, unless otherwise advised, it will be • Four segments of 26-inch-diameter forth in the application which is on file unnecessary for Union Light to appear transmission pipeline totaling 12.3 with the Commission and open to or be represented at the hearing. miles; • public inspection. Lois D. Cashell, 7.7 miles of 12-inch-diameter brine It is stated that under Rate Schedule Secretary. and freshwater pipelines; • 5.0 miles of 4-inch-diameter fuel X–4, Union Light provides for the [FR Doc. 97–30308 Filed 11–18–97; 8:45 am] transportation of gas to The Cincinnati gas and residual/mineral salt purge Gas & Electric Company (Cincinnati) for BILLING CODE 6717±01±M pipelines; the account of Columbia Gas • 1.4 miles of 12-inch-diameter Transmission Corporation (Columbia). It DEPARTMENT OF ENERGY freshwater, mid-brine return, mid-brine, is further stated that for such service, and saturated brine pipelines; • Union Light bills Columbia and then Federal Energy Regulatory 3.7 miles of 24-inch-diameter gas Cincinnati reimburses Columbia. Union Commission storage pipeline; and Light states that Columbia’s • Two meter stations. involvement in the transportation [Docket No. CP96±53±000 et al.] In conjunction with these facilities, USN proposes to construct and operate service is no longer necessary due to NE Hub Partners, L.P.; Notice of changed delivery points. Therefore, the following: Availability of the Environmental • Union Light states that it proposes to A railroad siding turnout and truck/ Assessment for the Proposed NE Hub modify the service currently provided hopper railcar bulk loading station to Partners, L.P. Tioga Storage Project under Rate Schedule X–4 to reflect that ship commercial salt products; and • the service rendered by Union Light to November 13, 1997. A brine evaporation/salt plant to Cincinnati no longer requires The staff of the Federal Energy dispose of the brine by production of Columbia’s involvement and that the Regulatory Commission (FERC or commercial salt products, and other gas transported by Union Light on Commission) has prepared an facilities to the extent needed for salt behalf of Cincinnati may include environmental assessment (EA) on both production, storage, and transportation. The purpose of the proposed facilities customer-owned gas. the natural gas storage field and would be to provide two high Any person desiring to be heard or to pipeline facilities proposed by NE Hub deliverability natural gas storage make any protest with reference to said Partners, L.P. (NE Hub) in the above- caverns with a capacity of up to 3 application should on or before referenced docket and the related brine billion cubic feet per cavern. The December 4, 1997, file with the Federal evaporation/salt plant proposed by storage facility near tioga, Pennsylvania Energy Regulatory Commission, United Salt Northeast, L.L.C. (USN). Washington, D.C. 20426, a motion to The EA was prepared to satisfy the would be interconnected with certain intervene or a protest in accordance requirements of the National interstate and intrastate pipelines. The with the requirements of the Environmental Policy Act. The staff gas injection/withdrawal facilities Commission’s Rules of Practice and concludes that approval of the proposed would be designed to allow the gas Procedure (18 CFR 385.214 or 385.211) project, with appropriate mitigating storage facility to withdraw natural gas and the Regulations under the Natural measures, would not constitute a major from various existing pipelines during Gas Act (18 CFR 157.10). All protests Federal action significantly affecting the periods of low gas demand and inject filed with the Commission will be quality of the human environment. the gas under high pressure into the considered by it in determining the The EA assesses the potential storage caverns. During periods of high appropriate action to be taken but will environmental effects of the gas demand, the natural gas would be not serve to make the protestants parties construction and operation of NE Hub’s withdrawn from the caverns and to the proceeding. Any person wishing proposed underground gas storage released into the various pipelines at the to become a party to a proceeding or to facility and related pipeline facilities, appropriate pressure. The injection/ participate as a party in any hearing including: withdrawal facilities would be designed therein must file a motion to intervene • A freshwater intake pumping to inject 250 million cubic feet of gas a in accordance with the Commission’s station at the Cowanesque Reservoir; day and withdraw 500 million cubic Rules. • 3.9 miles of 12-inch-diameter feet of gas a day. The injection/ Take further notice that, pursuant to freshwater pipeline to transport water to withdrawal cycle would be 20 days/10 the authority contained in and subject to the leaching operation; days. jurisdiction conferred upon the Federal • Two cavern leaching/natural gas In conjunction with the storage Energy Regulatory Commission by storage wells; facilities, USN, would receive the brine Sections 7 and 15 of the Natural Gas Act • Two gas storage caverns with a from NE Hub via pipeline and develop and the Commission’s Rules of Practice capacity of 3 billion cubic feet each; a commercial salt business at a site and Procedure, a hearing will be held • A leaching plant facility including about 1.5 miles northeast of Tioga, without further notice before the electrical substation, emergency Pennsylvania. Commission or its designee on this generator, warehouse, office/control The EA has been placed in the public application if no motion to intervene is room, four 300,000 barrel storage tanks, files of the FERC. A limited number of filed within the time required herein, if six 4,000 barrel storage tanks, and other copies of the EA are available for the Commission on its own review of appurtenant facilities; distribution and public inspection at: the matter finds that a grant of the • A gas system facility, including a Federal Energy Regulatory Commission, certificate is required by the public compression facility (18,750 horsepower Public Reference and Files Maintenance 61816 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Branch, 888 First Street, N.E., Room 2A, Commission’s (Commission) j. Comment Date: December 18, 1997. Washington, DC 20426, (202) 208–1371. regulations, 18 CFR Part 380 (Order No. k. Description of Project: Grand River Copies of the EA have been mailed to 486, 52 F.R. 47897), the Office of Dam Authority, licensee for the Federal, state and local agencies, public Hydropower Licensing has reviewed the Pensacola Project, requests Commission interest groups, interested individuals, application for an original license for authorization to permit Glenn Tucker, newspapers, and parties to this the major, unconstructed, Mahoney d/b/a Newport Village (permittee) to proceeding. Lake Hydroelectric Project. The project install five new floating, covered boat Any person wishing to comment on would be located on Upper Mahoney the EA may do so. To ensure lake and Upper Mahoney Creek near docks, containing a total of 57 slips and consideration prior to a Commission Ketchikan in Southeast Alaska. 7 additional slips to an existing, decision on the proposal, it is important On July 14, 1997, the Commission covered, floating, boat dock with 9 slips. that we receive your comments before staff issued and distributed to all parties The existing and proposed dock the date specified below. Please a Draft Environmental Assessment facilities contain a total of 73 slips. The carefully follow these instructions to (DEA) on the project, and requested that proposed docks would be used by the ensure that your comments are received comments be filed with the Commission local homeowner’s association. in time and properly recorded: within 30 days. Comments were filed • 1. This notice also consists of the Send two copies of your comments and are addressed in the Final following standard paragraphs: B, C1, to: Lois Cashell, Secretary, Federal Environmental Assessment (FEA). and D2. Energy Regulatory Commission, 888 The FEA contains the staff’s analysis First St., N.E., Room 1A, Washington, of the potential environmental impacts B. Comments, Protests, or Motions to DC 20426; of the project and concludes that Intervene—Anyone may submit • Label one of those copies for the licensing the project, with appropriate comments, a protest, or a motion to attention of the Environmental Review environmental protective measures, intervene in accordance with the and Compliance Branch II, PR–11.2; requirements of Rules of Practice and • would not constitute a major federal Reference Docket No. CP96–53–000; action that would significantly affect the Procedures, 18 CFR 385.210, .211, .214. and In determining the appropriate action to • quality of the human environment. Mail your comments so that they Copies of the FEA are available for take, the Commission will consider all will be received in Washington, DC on review in the Public Reference Room, protests or other comments filed, but or before December 15, 1997. Room 2A, of the Commission’s offices at only those who file a motion to Comments will be considered by the 888 First Street, N.E., Washington, D.C. intervene in accordance with the Commission but will not serve to make 20426. Commission’s Rules may become a the commentor a party to the proceeding. Any person seeking to Lois D. Cashell, party to the proceeding. Any comments, become a party to the proceeding must Secretary. protests, or motions to intervene must file a motion to intervene pursuant to [FR Doc. 97–30315 Filed 11–18–97; 8:45 am] be received on or before the specified Rule 214 of the Commission’s Rules of BILLING CODE 6717±01±M comment date for the particular Practice and procedures (18 CFR application. 385.214). C1. Filing and Service of Responsive The date for filing timely motions to DEPARTMENT OF ENERGY Documents—Any filings must bear in intervene in this proceeding has passed. Federal Energy Regulatory all capital letters the title, Therefore, parties now seeking to file Commission ‘‘COMMENTS’’, late interventions must show good ‘‘RECOMMENDATIONS FOR TERMS cause, as required by section Notice of Non-Project Use of Project AND CONDITIONS’’, ‘‘PROTEST’’, or 385.214(b)(3), why this time limitation Lands and Waters ‘‘MOTION TO INTERVENE’’, as should be waived. applicable, and the Project Number of Environmental issues have been November 13, 1997. the particular application to which the viewed as good cause for late Take notice that the following filing refers. Any of the above-named intervention. You do not need hydroelectric application has been filed documents must be filed by providing intervenor status to have your with the Commission and is available the original and the number of copies comments considered. for public inspection: provided by the Commission’s Lois D. Cashell, a. Type of Application: Non-project regulations to: The Secretary, Federal Secretary. Use of Project Lands and Waters. Regulatory Commission, 888 First [FR Doc. 97–30306 Filed 11–18–97; 8:45 am] b. Project No.: 1494–146. Street, N.E., Washington, D.C. 20426. A BILLING CODE 6717±01±M c. Date Filed: September 4, 1997. d.. Applicant: Grand River Dam copy of any motion to intervene must Authority. also be served upon each representative DEPARTMENT OF ENERGY e. Name of Project: Pensacola. of the Applicant specified in the f. Location: The proposed facilities particular application. Federal Energy Regulatory would be located on Monkey Island on D2. Agency Comments—Federal, Commission Grand Lake O’ the Cherokees in state, and local agencies are invited to Delaware County, Oklahoma. Project No. 11393±001 Alaska file comments on the described g. Filed Pursuant to: Federal Power application. A copy of the application Act, 16 U.S.C. § 791(a)–825(r). City of Saxman; Notice of Availability may be obtained by agencies directly h. Applicant Contact: Mary Von of Final Environmental Assessment from the Applicant. If an agency does Drehle, Grand River Dam Authority, November 13, 1997. P.O. Box 409, Vinita, OK 74301, (918) not file comments within the time In accordance with the National 256–5545. specified for filing comments, it will be Environmental Policy Act of 1969 and i. FERC Contact: Jon Confrancesco, presumed to have no comments. One the Federal Energy Regulatory (202) 219–0079. copy of an agency’s comments must also Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61817 be sent to the Applicant’s individuals on the Commission mailing Individuals, organizations, and representatives. list. Copies of the scoping document agencies with environmental expertise Lois D. Cashell, may also be requested from the staff. and concerns are encouraged to attend Secretary. Persons who have views on the issues the meetings and assist the staff in [FR Doc. 97–30311 Filed 11–18–97; 8:45 am] or information relevant to the issues defining and clarifying issues to be addressed in any environmental BILLING CODE 6717±01±M may submit written statements for inclusion in the public record. Those analysis. written comments should be filed with Persons choosing not to speak at the DEPARTMENT OF ENERGY the Secretary, Federal Energy Regulatory meetings, but who have views on the Commission, 888 First Street, N.E., issues or relevant information related to Federal Energy Regulatory Washington, D.C., 20426, by the the issues, may submit written Commission deadline date shown in item (j) above. statements for inclusion in the public All written correspondence should record at the meetings. In addition, Notice of Application Accepted for clearly show the following caption on written scoping comments may be filed Filing; Notice That the Application Is the first page: Big Creek No. 4 with Secretary, Federal Energy Not Ready for Environmental Analysis; Hydropower Project, FERC No. 2017– Regulatory Commission, 888 First Notice of Solicitation of Interventions 011. Street, NE, Washington, D.C. 20426, and Protests; Notice of Intent To m. Invitation to Participate in Public until January 16, 1998. Conduct Public Scoping Meetings and Scoping Meetings and Site Visit: A All written correspondence should Site Visit; and Notice of Solicitation of scoping meeting oriented towards the show the following caption on the first Written Scoping Comments public will be conducted on December page: Big Creek No. 4 Hydropower Project, FERC Project No. 2017–011. November 13, 1997. 15, 1997, beginning at 6:00 PM, at Sierra Take notice that the following National Forest, Minaret District Office Site Visit hydroelectric application has been filed in North Fork, California. A scoping A site visit to the Big Creek No. 4 with the Commission and is available meeting oriented towards the agencies Hydropower Project is planned for for public inspection: will be conducted on December 16, December 15, 1997. Those who wish to a. Type of Application: Major License. 1997, beginning at 8:00 AM, at the attend should plan to meet at the b. Project No.: 2017–011. Sierra National Forest Supervisor’s Auberry Post Office, in Auberry, c. Date Filed: February 26, 1997. Office at 1600 Tollhouse Road, in California at 1:00 PM. d. Applicant: Southern California Clovis, California. Any questions regarding this notice Edison Company. Interested individuals, organizations, should be directed to John Ramer e. Name of Project: Big Creek No. 4 and agencies are invited to attend either (environmental coordinator), at (202) Hydropower Project. or both meetings and assist staff in 219–2833. f. Location: On the San Joaquin River identifying the scope of environmental n. Invitation to Intervene or Protest: near the town of Auberry in Madera, issues that should be analyzed in any Intervenors are reminded of the Tulare, and Fresno Counties. environmental analysis the Commission’s Rules of Practice and g. Filed Pursuant to: Federal Power Commission’s staff undertakes. Procedure requiring parties filing Act, 16 U.S.C. § 791(a)–825(r) and 18 Objectives documents with the Commission to CFR sections 4.51 and 16.9. serve a copy of the document on each h. Applicant Contact: Mr. C. Edward At the scoping meetings the FERC person whose name appears on the Miller, Manager of Hydro Generation, staff will: (1) outline preliminary official service list for the project. Southern California Edison Company, environmental issues they believe are Further, if a party or intervenor files 2244 Walnut Grove Avenue, P.O. Box related to the proposed project and need comments or documents with the 800, Rosemead, CA 91770, (818) 302– to be evaluated; (2) identify preliminary Commission relating to the merits of an 1564. resource issues that are not important issue that may affect the responsibilities i. FERC Contact: John Ramer, (202) and do not require detailed analysis; (3) of a particular resource agency, they 219–2833. identify reasonable alternatives to be must also serve a copy of the document j. Deadline Date: January 16, 1998. addressed in an environmental analysis; on that resource agency. See attached k. Status of Application and (4) solicit from meeting participants all paragraph B1. Environmental Analysis: This available information relevant to the o. Description of the Project: The application has been accepted for filing, identified resource issues; and (5) proposed project would consist of: (1) but it is not ready for environmental request that the meeting participants an existing 875-foot-long, 250-foot-high analysis—see attached paragraph E1. provide comments on staff’s preliminary concrete dam, impounding a 35,033- l. Invitation for Written Scoping assessment of the issues and alternatives acre-foot reservoir; (2) a combination Comments: Interested individuals, that should be evaluated in an penstock/pressure tunnel about 11,770 organizations, and agencies with environmental analysis, including any feet long; (3) one powerhouse with a environmental expertise are invited to suggestions for additional issues and total installed capacity of 98,822 assist the staff in identifying the scope alternatives which should be evaluated. kilowatts: (4) two, 220-kilovolt of environmental issues that should be Procedures transmission lines totaling about 87 analyzed in the environmental analysis miles in length; (5) a bypassed river once the application is determined The meetings will be recorded by a reach totaling about 6.3 river miles; and ready for environmental analysis by court recorder and all statements (6) appurtenant facilities. submitting written scoping comments. thereby become a part of the record of p. This notice contains the standard To help focus these comments, a the Commission proceedings on the Big paragraphs B1 and E1. scoping document outlining subject Creek No. 4 Project. Individuals q. Locations of the Application: A areas which could be addressed in an presenting statements at the meeting copy of the application is available for environmental analysis will be mailed will be asked to identify themselves for inspection or reproduction at the to all agencies and interested the record. Commission’s Public Reference and 61818 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Files Maintenance Branch, located at representative of the applicant specified party to the proceeding. Any comments, 888 First Street, NE, Room 2A–1, in the particular application. protests, or motions to intervene must Washington, DC 20426, or by calling Lois D. Cashell, be received on or before the specified (202) 208–2326. A copy is also available Secretary. comment date for the particular for inspection and reproduction at C.E. [FR Doc. 97–30312 Filed 11–18–97; 8:45 am] application. C1. Filing and Service of Responsive Miller, Southern California Edison BILLING CODE 6717±01±M Company, 2244 Walnut Grove Avenue, Documents—Any filings must bear in P.O. Box 800, Rosemead, California, all capital letters the title ‘‘COMMENTS’’, 91770, at (818) 302–1564. DEPARTMENT OF ENERGY ‘‘RECOMMENDATIONS FOR TERMS B1. Protest or Motions to Intervene— Federal Energy Regulatory AND CONDITIONS’’, ‘‘PROTEST’’, OR Anyone may submit a protest or a Commission ‘‘MOTION TO INTERVENE’’, as motion to intervene in accordance with applicable, and the Project Number of the requirements of the Rules of Practice Notice of Extension of License Term the particular application to which the and Procedures, 18 C.F.R. sections filing refers. Any of the above-named 385.210, .211, and .214. In determining November 13, 1997. documents must be filed by providing the appropriate action to take, the Take notice that the following the original and the number of copies Commission will consider all protests hydroelectric application has been filed provided by the Commission’s with the Commission and is available filed, but only those who file a motion regulations to: The Secretary, Federal for public inspection: to intervene in accordance with the Energy Regulatory Commission, 888 a. Type of Application: Extension of Commission’s Rules may become a First Street, N.E., Washington, D.C. License Term. 20426. A copy of any motion to party to the proceeding. Any protests or b. Project No.: 3030–012. motions to intervene must be received intervene must also be served upon each c. Licensee: Antrim County, Michigan. representative of the Applicant on or before the specified deadline date d. Name of Project: Elk Rapids. specified in the particular application. for the particular application. e. Location: Elk River, Antrim County, D2. Agency Comments—Federal, E1. Filing and Service of Responsive Michigan. state, and local agencies are invited to Documents—The application is not f. Pursuant to: Federal Power Act, 16 file comments on the described ready for environmental analysis at this U.S.C. §§ 792–828c. application. A copy of the application time; therefore, the Commission is not g. Licensee Contact: Peter Garwood, may be obtained by agencies directly now requesting comments, Office of Coordinator/Planner, P.O. Box from the Applicant. If an agency does recommendations, terms and 187, Bellaire, MI 49615, (616) 533–6265. not file comments within the time h. FERC Contact: Dean C. Wight, (202) conditions, or prescriptions. specified for filing comments, it will be 219–2675. presumed to have no comments. One When the application is ready for i. Comment Date: December 2, 1997. copy of an agency’s comments must also environmental analysis, the j. Description of Proposed Action: The be sent to the Applicant’s Commission will issue a public notice licensee requests an extension of the 20- representatives. requesting comments, year term of the project license. The Lois D. Cashell, recommendations, terms and current term expires February 28, 2001. Secretary. conditions, and prescriptions. The requested extension would cause the license to expire on December 31, [FR Doc. 97–30313 Filed 11–18–97; 8:45 am] All filings must: (1) bear in all capital BILLING CODE 6717±01±M letters the title ‘‘PROTESTS’’ or 2014. ‘‘MOTION TO INTERVENE’’; (2) set The licensee states that, in setting the license term for 20 years, the forth in the heading the name of the DEPARTMENT OF ENERGY Commission erroneously relied on applicant and the project number of the precedent for projects which operated application to which the filing Federal Energy Regulatory prior to receiving licenses. The licensee Commission responds; (3) furnish the name, address, further states that the project will not and telephone number of the person support the cost of relicensing (the Notice of Transfer of License protesting or intervening; and (4) licensee must file a relicense otherwise comply with the requirements application in February 1999) and that November 13, 1997. of 18 CFR 385.2001 through 385.2005. the present 20-year term is insufficient Take notice that the following Agencies may obtain copies of the for it to recover the cost of developing hydroelectric application has been filed application directly from the applicant. the project. with the Commission and is available Any of these documents must be filed k. This notice also consists of the for public inspection: a. Type of Application: Transfer of by providing the original and the following standard paragraphs: B, C1, License. number of copies required by the and D2. b. Project No.: 11077–018. Commission’s regulations to: Secretary, B. Comments, Protests, or Motions to c. Date Filed: October 1, 1997. Federal Energy Regulatory Commission, Intervene—Anyone may submit d. Applicants: Alaska Power & 888 First Street, NE., Washington, DC comments, a protest, or a motion to Telephone Company Goat Lake Hydro, 20426. An additional copy must be sent intervene in accordance with the Inc. to: Director, Division of Licensing and requirements of Rules of Practice and e. Name of Project: Goat Lake. Compliance, Office of Hydropower Procedure, 18 CFR 385.210, .211, .214. f. Location: Pitchfork Falls, near the Licensing, Federal Energy Regulatory In determining the appropriate action to town of Skagway, in the First Judicial Commission, Room 62–15, at the above take, the Commission will consider all District in Southeast Alaska. address. A copy of any protest or motion protests or other comments filed, but g. Filed Pursuant to: Federal Power to intervene must be served upon each only those who file a motion to Act, 16 U.S.C. §§ 791(a)–825(r). intervene in accordance with the h. Applicant Contact: Robert S. Commission’s Rules may become a Grimm, Alaska Power & Telephone Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61819

Company, P.O. Box 222, Port ENVIRONMENTAL PROTECTION performance demonstration; and date Townsend, WA 98368, (360) 385–1733. AGENCY and results of the initial performance Alan D. See, Goat Lake Hydro, Inc., P.O. test. Plant owner/operators must also Box 459, Skagway, AK 99840, (907) [FRL±5924±2] provide semi-annual reports of excess 983–2902. Agency Information Collection emissions, as promulgated in the i. FERC Contact: Regina Saizan, (202) Activities: Submission for OMB December 13, 1990 Federal Register (55 219–2673. Review; Comment Request; NSPS for FR 51378). j. Comment Date: December 26, 1997. Owner/operators must maintain Stationary Gas Turbines k. Description of the Request: The records of the occurrence and duration purpose of the transfer to Goat Lake AGENCY: Environmental Protection of any start-up, shutdown, or Hydro, Inc. is to facilitate the Agency (EPA). malfunction in operations, or any development and financing of the ACTION: Notice. periods during which the monitoring project. system is inoperative. Recordkeeping is 1. This notice also consists of the SUMMARY: In compliance with the also required to document process following standard paragraphs: B, C1, Paperwork Reduction Act (44 U.S.C. information regarding the: sulfur and and D2. 3501 et seq.), this notice announces that nitrogen content of the fuel; fuel:water B. Comments, Protects, or Motions to the following Information Collection ratio; rate of fuel consumption; and Intervene—Anyone may submit Request (ICR) has been forwarded to the ambient conditions. This latter comments, a protest, or a motion to Office of Management and Budget recordkeeping function involves daily intervene in accordance with the (OMB) for review and approval: NSPS measurements from the continuous requirements of Rules of Practice and (Subpart GG) for Stationary Gas monitoring system to monitor ambient Procedure, 18 CFR 385.210, .211, .214. Turbines; OMB Control Number 2060– conditions, and to record the fuel In determining the appropriate action to consumption and the ratio of water to take, the Commission will consider all 0028; expiring 1/31/98. The ICR describes the nature of the information fuel being fired in the turbine only for protests or other comments filed, but plants which use water or steam only those who file a motion to collection and its expected burden and injection to control NOX emissions. intervene in accordance with the cost; where appropriate, it includes the actual data collection instrument. There is generally no additional burden Commission’s Rules may become a on the owner/operator to provide this DATES: Comments must be submitted on party to the proceeding. Any comments, information because adequate or before December 19, 1997. protests, or motions to intervene must recordkeeping is required of plant be received on or before the specified FOR FURTHER INFORMATION CONTACT: For operations. comment date for the particular a copy of the ICR, call Sandy Farmer at It is important to note that if these application. EPA, by phone at (202) 260–2740, by E- data and reports are not collected, the C1. Filing and Service of Responsive Mail at [email protected] Agency has no means for ensuring that Documents—Any filings must bear in or download off the Internet at http:// compliance with the standards is being all capital letters the title www.epa.gov/icr/icr.htm, and refer to achieved and/or maintained by the new, ‘‘COMMENTS’’, EPA ICR No. 1071.06. modified, or reconstructed sources ‘‘RECOMMENDATIONS FOR TERMS SUPPLEMENTARY INFORMATION: which are subject to regulation. In the AND CONDITIONS’’, ‘‘PROTEST’’, OR absence of information collection ‘‘MOTION TO INTERVENE’’, as Title: NSPS (Subpart GG) for requirements, compliance with the applicable, and the Project Number of Stationary Gas Turbines; OMB Control standards could be ensured only the particular application to which the Number 2060–0028; EPA ICR No. through continuous on-site inspections filing refers. Any of the above-named 1071.06; expiring 1/31/98. This is a by regulatory agency personnel. documents must be filed by providing request for extension of a currently Consequently, not collecting the the original and the number of copies approved collection. information would result in either provided by the Commission’s Abstract: NSPS for stationary gas greatly increased expenditures of regulations to: The Secretary, Federal turbines (GG) were promulgated on resources, or the inability to ensure Energy Regulatory Commission, 888 September 10, 1979 to regulate the compliance with the standards. In First Street, N.E., Washington, D.C. emissions of Nitrogen Oxide (NOX) and addition to the purposes mentioned 20426. A copy of any motion to Sulfur Dioxide (SO2) into the ambient above, this kind of information is used intervene must also be served upon each air supply. The EPA is charged under for targeting plants for inspections and representative of the Applicant section 111 of the Clean Air Act of 1990, as evidence when compliance cases are specified in the particular application. as amended, to establish these standards taken to court. D2. Agency Comments—Federal, for new stationary sources that reflect An agency may not conduct or state, and local agencies are invited to application of the best demonstrated sponsor, and a person is not required to file comments on the described technology. In addition, section 114(a) respond to, a collection of information application. A copy of the application of the Clean Air Act provides for unless it displays a currently valid OMB may be obtained by agencies directly monitoring, recordkeeping, and control number. The OMB control from the Applicant. If an agency does reporting requirements for these numbers for EPA’s regulations are listed not file comments within the time standards. in 40 CFR part 9 and 48 CFR chapter 15. specified for filing comments, it will be Owner/operators of affected facilities Any information submitted to the presumed to have no comments. One must make one-time only reports which Agency for which a claim of copy of an agency’s comments must also include the following notifications: date confidentiality is requested will be be sent to the Applicant’s of construction/reconstruction; safeguarded according to the Agency representatives. anticipated and actual dates of start-up; policies set forth in Title 40, chapter 1, Lois D. Cashell, any physical or operational change part 2, subpart B: Confidentiality of Secretary. which may increase the SO2 or NOX Business Information (see 40 CFR 2; 41 [FR Doc. 97–30314 Filed 11–18–97; 8:45 am] emission rates; commencement date for FR 36902, September 1, 1976; amended BILLING CODE 6717±01±M the continuous monitoring system by 43 FR 39999, September 8, 1978; FR 61820 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

42251, September 28, 1978; 44 FR ENVIRONMENTAL PROTECTION Harbor, and one additional facility 17674, March 23, 1979). The Federal AGENCY proposed for construction. One facility Register notice required under 5 CFR is owned and operated by the [FRL±5924±4] 1320.8(d), soliciting comments on this Mamaroneck Municipal Marina. This collection of information was published New York State Prohibition on Marine facility is open continuously and on 8/20/97; No comments were Discharges of Vessel Sewage; Final charges no fee for pump-out services. It received. Affirmative Determination can service vessels up to 80 feet in Burden Statement: The annual public length with up to a 8 foot draft based on reporting and recordkeeping burden for AGENCY: Environmental Protection the mean low water depth. A second this collection of information is Agency (EPA). unit is planned at this facility with the estimated to average 51 hours per ACTION: Notice. same operating schedule. response. Burden means the total time, The other facilities are privately SUMMARY: Notice is hereby given that effort, or financial resources expended owned and charge no fee for pump-out by persons to generate, maintain, retain, the Regional Administrator, Environmental Protection Agency (EPA) services to patrons. They are located at or disclose or provide information to or Nichols Boat Yard and Boston Post Road for a Federal agency. This includes the Region II has affirmatively determined, pursuant to section 312(f) of Pub. L. 92– Boat Yard. Operating hours for Nichols time needed to review instructions; Boat Yard pump-out are 0900 to 1700 develop, acquire, install, and utilize 500, as amended by Pub. L. 95–217 and Pub. L. 100–4, (the Clean Water Act), hours, Monday through Friday and by technology and systems for the purposes appointment on the weekend. It can of collecting, validating, and verifying that adequate facilities for the safe and sanitary removal and treatment of service vessels up to 40 feet in length information, processing and with up to a 6 foot draft based on the maintaining information, and disclosing sewage from all vessels are reasonably available for the coastal waters of mean low water depth. The other and providing information; adjust the facility is located at the Boston Post existing ways to comply with any Mamaroneck Harbor, Village of Mamaroneck, County of Westchester, Road Boat Yard and operates from 0830 previously applicable instructions and to 1630 Monday through Friday. Length requirements; train personnel to be able State of New York. A petition was made by the New York and draft restrictions are 50 feet and 5.1 to respond to a collection of feet based on mean low water depth. information; search data sources; State Department of Environmental Conservation (NYSDEC) in cooperation Within seven nautical miles of complete and review the collection of Mamaroneck Harbor are five other information; and transmit or otherwise with the Village of Mamaroneck. Upon receipt of this affirmative determination locations that provide pump-out disclose the information. facilities. Respondents/Affected Entities: Plant in response to this petition, NYSDEC owner/operators of stationary gas will completely prohibit the discharge Vessel waste generated from the turbines. of sewage, whether treated or not, from pump-out facilities in Mamaroneck Estimated Number of Respondents: any vessel in Mamaroneck Harbor in Harbor is disposed of in the Village of 625 accordance with section 312(f)(3) of the Mamaroneck Waste Water Treatment Frequency of Response: Annual Clean Water Act and 40 CFR 140.4(a). Plant. This plant operates under a State notification reports, and semi-annual Notice of the Receipt of Petition and Pollutant Discharge Elimination System emission reports. Tentative Determination was published (SPDES) permit issued by the New York Estimated Total Annual Hour Burden: in the Federal Register on July 16, 1997. State Department of Environmental 76,681. Comments on the tentative Conservation. Estimated Total Annualized Cost determination were accepted during a According to the State’s petition, the Burden: 0. 30-day period which closed on August maximum daily vessel population for Send comments on the Agency’s need 15, 1997. No comments were received. the waters of Mamaroneck Harbor is for this information, the accuracy of the The Village of Mamaroneck is located approximately 1160 vessels. This provided burden estimates, and any on Long Island Sound. Mamaroneck estimate is based on summer weekend/ suggested methods for minimizing Harbor encompasses numerous holiday levels of usage and includes respondent burden, including through wetlands, marshes and mud flats 1040 vessels berthed in marinas of the use of automated collection including Guion Creek, Otter Creek, Salt Mamaroneck Harbor and less than 120 techniques to the following addresses. Creek and Van Amringe Mill Pond. The transient vessels in Mamaroneck Please refer to EPA ICR No. 1071.06 and No-Discharge Zone includes waters not Harbor. OMB Control No. 2060–0028 in any indexed lying northerly of a line drawn The EPA hereby makes a final correspondence. in a northeasterly direction from the affirmative determination that adequate Ms. Sandy Farmer, U.S. Environmental southern tip of the sea wall at Orienta facilities for the safe and sanitary Protection Agency, OPPE Regulatory Point near the Orienta Yacht Club at the removal and treatment of sewage from Information Division (2137), 401 M foot of Rushmore Avenue in all vessels are reasonably available for Street, SW, Washington, DC 20460 Mamaroneck, to a point on the Mamaroneck Harbor in the Village of and mainland immediately north of Spike Mamaroneck, New York. A final Office of Information and Regulatory Island at the intersection of the determination on this matter has been Affairs, Office of Management and shoreline and the extension of the line made and will result in a New York Budget, Attention: Desk Officer for to the center gable of large stone and State prohibition of any sewage EPA, 725 17th Street, NW, stucco residence at No. 6 Shore Road in discharges from vessels in Mamaroneck Washington, DC 20503. the Greenhaven section within the City Harbor. of Rye. Dated: November 13, 1997. Information submitted by the State of Dated: November 4, 1997. Joseph Retzer, New York and the Village of William J. Muszynski, Director, Regulatory Information Division. Mamaroneck states that there are three Acting Regional Administrator. [FR Doc. 97–30377 Filed 11–18–97; 8:45 am] existing pump-out facilities available to [FR Doc. 97–30379 Filed 11–18–97; 8:45 am] BILLING CODE 6560±50±P service vessels which use Mamaroneck BILLING CODE 6560±50±P Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61821

ENVIRONMENTAL PROTECTION 1997, in order to be included on the testing conducted pursuant to testing AGENCY Agenda. The request should identify the enforceable consent agreements/orders name of the individual who will make will be announced to the public in [FRL±5924±3] the presentation and an outline of the accordance with procedures specified in issues to be addressed. At least 35 section 4(d) of TSCA. Science Advisory Board; Notification copies of any written comments to the of Public Advisory Committee Meeting; I. Test Data Submissions Committee are to be given to Mr. Miller December 1997 no later than the time of the Environmental release data for Pursuant to the Federal Advisory presentation for distribution to the cyclohexane were submitted by the Committee Act, Pub. L. 92–463, notice Committee and the interested public. Cyclohexane Panel of the Chemical is hereby given that the Drinking Water The Science Advisory Board expects Manufacturers Association (CMA). The Committee (DWC) of the Science that public statements presented at its seven Panel companies include: Advisory Board (SAB) will hold a meetings will not be repetitive of Chevron Chemical Company; CITGO public meeting beginning on Thursday, previously submitted oral or written Refining Chemicals Co., LP; E.I. du Pont December 4, 1997 beginning at 9:00 a.m. statements. In general, each individual de Nemours Company; Huntsman and ending not later than 5:00 p.m. or group making an oral presentation Corporation; Koch Industries Inc.; (Eastern Time) on December 5, 1997. will be limited to a total time of ten Phillips Petroleum Company; and Sun The meeting will be held in Room 2103- minutes. Written comments received in Company, Inc. The data was submitted Mall of the EPA Headquarters Building, the SAB Staff Office sufficiently prior to pursuant to a TSCA section 4 enforceable testing consent agreement/ 401 M Street, S.W., Washington, DC a meeting date, may be mailed to the order at 40 CFR 799.5000 and represents 20460. relevant SAB committee or the last study report required under the The purpose of the meeting is to subcommittee prior to its meeting; enforceable consent agreement. EPA discuss a number of issues that are of comments received too close to the received the data on September 19, importance to the Agency’s future meeting date will normally be provided 1997. The consent agreement signed by activities under the recently amended to the committee at its meeting. Written the cyclohexane producers stipulated Safe Drinking Water Act. The Drinking comments may be provided to the that within 3 months following Water Committee will receive briefings relevant committee or subcommittee up submission of the last study report on: (a) A notice of data availability until the time of the meeting. required under the agreement, the relevant to the Stage I Disinfection Dated: November 13, 1997. companies would submit a final report Byproducts Rule and the Interim Donald G. Barnes, to EPA summarizing the then current Enhanced Surface Water Treatment Staff Director, Science Advisory Board. data on environmental releases of Rule, (b) the EPA’s Draft Drinking Water [FR Doc. 97–30378 Filed 11–18–97; 8:45 am] cyclohexane from facilities that Contaminant Candidate List, (c) BILLING CODE 6560±50±P manufacture, process or use prioritization process for future cyclohexane. The purpose of this disinfection byproduct research, (d) a product stewardship program was to pilot project for the Integrated Risk ENVIRONMENTAL PROTECTION reduce cyclohexane emissions. As Information System (IRIS), (e) the status AGENCY reported by the Panel companies, of a number of risk assessment research [OPPTS±44644; FRL±5753±7] cyclohexane environmental emissions projects conducted jointly between EPA were decreased by 52.5% during a 5 and the International Life Sciences TSCA Chemical Testing; Receipt of year period from 1991 to 1995 and 57% Institute (ILSI), (f) probabilistic risk Test Data as compared to the total cyclohexane assessment techniques, and (g) the EPA emissions reported in the 1989 Toxic cumulative risk policy. AGENCY: Environmental Protection Release Inventory database. FOR FURTHER INFORMATION CONTACT: Agency (EPA). Cyclohexane is found in a number of Single copies of the background ACTION: Notice. consumer products including spray information for this review, or the paint and spray adhesives. It is also meeting agenda, can be obtained by SUMMARY: This notice announces EPA’s available as a laboratory solvent. contacting Mr. Thomas O. Miller, receipt of environmental release data on EPA has initiated its review and Designated Federal Officer for the cyclohexane (CAS No. 110–827). These evaluation process for this data Drinking Water Committee, Science data were submitted pursuant to an submission. At this time, the Agency is Advisory Board (1400), U.S. EPA, 401 M enforceable testing consent agreement/ unable to provide any determination as Street, SW, Washington, DC 20460; by order issued by EPA under section 4 of to the completeness of the submission. telephone at (202)260–5886; by fax at the Toxic Substances Control Act (202) 260–7118 or via the INTERNET at: (TSCA). Publication of this notice is in II. Public Record [email protected], or by compliance with section 4(d) of TSCA. EPA has established a public record contacting Ms. Mary L. Winston at (202) FOR FURTHER INFORMATION CONTACT: for this TSCA section 4(d) receipt of 260–8414, by fax at (202) 260–7118, and Susan B. Hazen, Director, data notice (docket number OPPTS– by INTERNET at: Environmental Assistance Division 44644). This record includes a copy of [email protected]. (7408), Office of Pollution Prevention the report indicated in this notice. The and Toxics, Environmental Protection record is available for inspection from Providing Oral or Written Comments at Agency, Rm. E–543B, 401 M St., SW., 12 noon to 4:00 p.m., Monday through SAB Meetings Washington, D.C. 20460, (202) 554– Friday, except legal holidays, in the Anyone wishing to make an oral 1404, TDD (202) 554–0551; e-mail: TSCA Nonconfidential Information presentation to the Committee must [email protected]. Center (also known as the TSCA Public contact Mr. Miller, in writing (by letter, SUPPLEMENTARY INFORMATION: Under 40 Docket Office), Rm. B–607 Northeast fax, or INTERNET—at the INTERNET CFR 790.60, all TSCA section 4 Mall, 401 M St., SW., Washington, DC address) no later than 12 noon (Eastern enforceable consent agreements/orders 20460. Requests for documents should Standard Time) Monday, November 28, must contain a statement that results of be sent in writing to: Environmental 61822 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Protection Agency, TSCA Flemington, NJ 08822, Officers: Board of Governors of the Federal Reserve Nonconfidential Information Center Daniel Di Sisto, President; Ann Marie System, November 14, 1997. (7407), 401 M St., SW., Washington, DC Di Sisto, Secretary. Jennifer J. Johnson, 20460 or fax: (202) 260-5069 or e-mail: Deputy Secretary of the Board. Dated: November 14, 1997. [email protected]. [FR Doc. 97–30375 Filed 11–18–97; 8:45 am] Joseph C. Polking, Authority: 15 U.S.C. 2603. BILLING CODE 6210±01±F Secretary. List of Subjects [FR Doc. 97–30404 Filed 11–18–97; 8:45 am] Environmental protection, Test data. BILLING CODE 6730±01±M FEDERAL RESERVE SYSTEM

Dated: November 4, 1997. Formations of, Acquisitions by, and Mergers of Bank Holding Companies Charles M. Auer, FEDERAL RESERVE SYSTEM The companies listed in this notice Director, Chemical Control Division, Office have applied to the Board for approval, Change in Bank Control Notices; of Pollution Prevention and Toxics. pursuant to the Bank Holding Company Acquisitions of Shares of Banks or [FR Doc. 97–30384 Filed 11–18–97; 8:45 am] Act of 1956 (12 U.S.C. 1841 et seq.) Bank Holding Companies BILLING CODE 6560±50±F (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes The notificants listed below have and regulations to become a bank applied under the Change in Bank FEDERAL MARITIME COMMISSION holding company and/or to acquire the Control Act (12 U.S.C. 1817(j)) and § assets or the ownership of, control of, or Ocean Freight Forwarder License 225.41 of the Board’s Regulation Y (12 the power to vote shares of a bank or Applicants CFR 225.41) to acquire a bank or bank bank holding company and all of the holding company. The factors that are banks and nonbanking companies Notice is hereby given that the considered in acting on the notices are owned by the bank holding company, following applicants have filed with the set forth in paragraph 7 of the Act (12 including the companies listed below. Federal Maritime Commission U.S.C. 1817(j)(7)). The applications listed below, as well applications for licenses as ocean freight as other related filings required by the forwarders pursuant to section 19 of the The notices are available for immediate inspection at the Federal Board, are available for immediate Shipping Act of 1984 (46 U.S.C. app. inspection at the Federal Reserve Bank 1718 and 46 CFR 510). Reserve Bank indicated. The notices also will be available for inspection at indicated. The application also will be Persons knowing of any reason why available for inspection at the offices of any of the following applicants should the offices of the Board of Governors. Interested persons may express their the Board of Governors. Interested not receive a license are requested to persons may express their views in views in writing to the Reserve Bank contact the Office of Freight Forwarders, writing on the standards enumerated in indicated for that notice or to the offices Federal Maritime Commission, the BHC Act (12 U.S.C. 1842(c)). If the Washington, D.C. 20573. of the Board of Governors. Comments proposal also involves the acquisition of Internaitonal Shipping Management must be received not later than a nonbanking company, the review also USA, Inc., 1630 Bath Avenue, December 4, 1997. includes whether the acquisition of the Brooklyn, NY 11214, Officer: Gary A. Federal Reserve Bank of Cleveland nonbanking company complies with the Solovey, President (Jeffery Hirsch, Banking Supervisor) standards in section 4 of the BHC Act. U.S. SIGO INC., 8016 N.W. 68th Street, 1455 East Sixth Street, Cleveland, Ohio Unless otherwise noted, nonbanking Miami, FL 33160, Officer: Roman 44101-2566: activities will be conducted throughout Martinez, President 1. Leo A. and Louis A. Altier, both of the United States. Express Shipping Service, Inc., 1075 Unless otherwise noted, comments Corning, Ohio; William H. Altier, Edward Street, Linden, N.J. 07036, regarding each of these applications Zanesville, Ohio; John F. Altier, Officers: Leonid Ivanutenko, must be received at the Reserve Bank President; Mikhail Dyakovetsky, Vice Crooksville, Ohio; Paul W. Altier, indicated or the offices of the Board of President Corning, Ohio; Christina M. Altier, Governors not later than December 12, Atlas Freight Systems, Inc., 525 North Columbus, Ohio; Mary Ann Flowers, 1997. Sam Houston Parkway East, Suite Lancaster, Ohio; Pamela R. Compston, A. Federal Reserve Bank of Chicago 655, Houston, TX 77060, Officers: New Lexington, Ohio; Donald M. Altier, (Philip Jackson, Applications Officer) James P. Middleton, President; Lisa A. Somerset, Ohio; and Angela L. Hopkins, 230 South LaSalle Street, Chicago, Barragan, Vice President Cedar Hill, Texas; to retain voting shares Illinois 60690-1413: Scott Container Services, Inc., 9607 of The Bank of Corning Company, 1. Koss-Winn Bancshares, Inc. South Dearborn, Detroit, MI 48209, Corning, Ohio. Employee Stock Ownership Plan with Officers: Charles H. Scott, President, B. Federal Reserve Bank of Dallas 401(k) Provisions, Buffalo Center, Iowa; Sheila Pullen, Vice President (Genie D. Short, Vice President) 2200 to become a bank holding company by Logisticon, Incorporated, 305 E. Poplar North Pearl Street, Dallas, Texas 75201- acquiring 30.09 percent of the voting Avenue, Carrboro, NC 27510, Officer: 2272: shares of Koss-Winn Bancshares, Inc., John Marshall, III, President Buffalo Center, Iowa, and thereby Cargo Transport Inc., 18000 1. Jack C. Vanderburg, Scot A. Renick, indirectly acquire Farmers Trust and International Blvd., Suite 400, Seattle, and Philip B. Davis, all of Dalhart, Savings Bank, Buffalo Center, Iowa. WA 98188, Officers: Sonny Joe Texas, acting in concert; to retain voting 2. RW Bancorp., Ltd., Reeseville, Sanders, President; Larry K. Stauffer, shares of First Dalhart Bancshares, Inc., Wisconsin; to become a bank holding Vice President Dalhart, Texas, and thereby indirectly company by acquiring 100 percent of DAMAK Leasing & Financial, Inc., 20 retain First National Bank in Dalhart, the voting shares of State Bank of Commerce Street, Suite 14–15, Dalhart, Texas. Reeseville, Reeseville, Wisconsin. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61823

B. Federal Reserve Bank of San Wilmington, Delaware; to merge with DEPARTMENT OF HEALTH AND Francisco (Pat Marshall, Manager of Fidelity Resources Company, University HUMAN SERVICES Analytical Support, Consumer Park, Texas, and Fidelity Resources Regulation Group) 101 Market Street, Company of Delaware, Wilmington, Food and Drug Administration San Francisco, California 94105-1579: Delaware, and thereby indirectly [Docket No. 97C±0466] 1. Community West Bancshares, acquire Fidelity Bank, National Goleta, California; to become a bank Association, University Park, Texas. Archer Daniels Midland Co.; Filing of holding company by acquiring 100 Color Additive Petition percent of the voting shares of Goleta B. Federal Reserve Bank of Chicago National Bank, Goleta, California. (Philip Jackson, Applications Officer) AGENCY: Food and Drug Administration, 230 South LaSalle Street, Chicago, Board of Governors of the Federal Reserve HHS. System, November 13, 1997. Illinois 60690-1413: ACTION: Notice. Jennifer J. Johnson, 1. Richmond Mutual Bancorporation, SUMMARY: The Food and Drug Deputy Secretary of the Board. Inc., and First Mutual of Richmond, Inc., both of Richmond, Indiana; to Administration (FDA) is announcing [FR Doc. 97–30280 Filed 11–18–97; 8:45 am] that Archer Daniels Midland Co. has BILLING CODE 6210±01±F become bank holding companies by acquiring 100 percent of the voting filed a petition proposing that the color shares of First Bank of Richmond, additive regulations be amended to provide for the safe use of astaxanthin FEDERAL RESERVE SYSTEM Richmond, Indiana. from Phaffia rhodozyma as a color Formations of, Acquisitions by, and C. Federal Reserve Bank of Kansas additive in salmonid fish feeds. Mergers of Bank Holding Companies City (D. Michael Manies, Assistant Vice FOR FURTHER INFORMATION CONTACT: President) 925 Grand Avenue, Kansas Aydin O¨ rstan, Center for Food Safety The companies listed in this notice City, Missouri 64198-0001: and Applied Nutrition (HFS–215), Food have applied to the Board for approval, 1. Sundance Bankshares, Inc., and Drug Administration, 200 C St. SW., pursuant to the Bank Holding Company Sundance, Wyoming; to become a bank Washington, DC 20204, 202–418–3076. Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR Part holding company by acquiring 100 SUPPLEMENTARY INFORMATION: Under the 225), and all other applicable statutes percent of the voting shares of Sundance Federal Food, Drug, and Cosmetic Act and regulations to become a bank State Bank, Sundance, Wyoming. (sec. 721(d)(1) (21 U.S.C. 379e(d)(1))), holding company and/or to acquire the D. Federal Reserve Bank of San notice is given that a color additive assets or the ownership of, control of, or Francisco (Pat Marshall, Manager of petition (CAP 8C0252) has been filed by the power to vote shares of a bank or Analytical Support, Consumer Archer Daniels Midland Co., P.O. Box 1470, Decatur, IL 62525. The petition bank holding company and all of the Regulation Group) 101 Market Street, proposes to amend the color additive banks and nonbanking companies San Francisco, California 94105-1579: regulations to provide for the safe use of owned by the bank holding company, 1. Eggemeyer Advisory Corp., and including the companies listed below. astaxanthin from P. rhodozyma as a The applications listed below, as well Castle Creek Capital LLC, Castle Creek color additive in salmonid fish feeds. as other related filings required by the Capital Partners Fund - I, LP, all of La The agency has determined under 21 Board, are available for immediate Jolla, California; to acquire up to 24.9 CFR 25.32(r) that this action is of a type inspection at the Federal Reserve Bank percent of the voting shares of Regency that does not individually or indicated. The application also will be Bancorp, Fresno, California, and thereby cumulatively have a significant effect on available for inspection at the offices of indirectly acquire Regency Bank, the human environment. Therefore, the Board of Governors. Interested Fresno, California. neither an environmental assessment nor an environmental impact statement persons may express their views in In connection with this application, is required. writing on the standards enumerated in Applicants have also applied to acquire the BHC Act (12 U.S.C. 1842(c)). If the Regency Investment Advisors, Fresno, Dated: October 31, 1997. proposal also involves the acquisition of California, and thereby engage in Alan M. Rulis, a nonbanking company, the review also financial and investment advisory Director, Office of Premarket Approval, includes whether the acquisition of the activities, pursuant to § 225.28(b)(6) of Center for Food Safety and Applied Nutrition. nonbanking company complies with the the Board’s Regulation Y. [FR Doc. 97–30336 Filed 11–18–97; 8:45 am] standards in section 4 of the BHC Act. BILLING CODE 4160±01±F Unless otherwise noted, nonbanking 2. InterWest Bancorp, Inc., Oak activities will be conducted throughout Harbor, Washington; to merge with the United States. Puget Sound Bancorp, Inc., Port DEPARTMENT OF HEALTH AND Unless otherwise noted, comments Orchard, Washington, and thereby HUMAN SERVICES regarding each of these applications indirectly acquire First National Bank of must be received at the Reserve Bank Port Orchard, Port Orchard, Food and Drug Administration indicated or the offices of the Board of Washington. [Docket No. 97F±0467] Governors not later than December 15, Board of Governors of the Federal Reserve 1997. System, November 14, 1997. Ciba Specialty Chemicals Corp.; Filing A. Federal Reserve Bank of Atlanta of Food Additive Petition (Lois Berthaume, Vice President) 104 Jennifer J. Johnson, Marietta Street, N.W., Atlanta, Georgia Deputy Secretary of the Board. AGENCY: Food and Drug Administration, 30303-2713: [FR Doc. 97–30374 Filed 11–18–97; 8:45 am] HHS. 1. Compass Bancshares, Inc., and BILLING CODE 6210±01±F ACTION: NOTICE. Compass Banks of Texas, Inc., both of Birmingham, Alabama, and Compass SUMMARY: The Food and Drug Bancorporation of Texas, Inc., Administration (FDA) is announcing 61824 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices that Ciba Specialty Chemicals Corp. has ACTION: Notice. duplicates information previously filed a petition proposing that the food reviewed by this panel. On May 10, additive regulations be amended to SUMMARY: The Food and Drug 1996, CDRH approved the application provide for the safe use of Administration (FDA) is announcing its by a letter to the applicant from the benzenesulfonic acid, 4-chloro–5- approval of the application submitted Director of the Office of Device methyl–2-[[4,5-dihydro–3-methyl–5- by Ventritex, Inc., Sunnyvale, CA, for Evaluation, CDRH. oxo–1–(3-sulfophenyl)–1H-pyrazo–4- premarket approval, under the Federal A summary of the safety and Food, Drug, and Cosmetic Act (the act), effectiveness data on which CDRH yl]azo], ammonium salt (C.I. Pigment  Yellow 191:1) as a colorant in polymers of the TVL Lead System. FDA’s Center based its approval is on file in the intended for use in contact with food. for Devices and Radiological Health Dockets Management Branch (address (CDRH) notified the applicant, by letter DATES: Written comments on above) and is available from that office of May 10, 1996, of the approval of the petitioner’s environmental assessment upon written request. Requests should application. by December 19, 1997. be identified with the name of the DATES: ADDRESSES: Submit written comments Petitions for administrative device and the docket number found in to the Dockets Management Branch review by December 19, 1997. brackets in the heading of this (HFA–305), Food and Drug ADDRESSES: Written requests for copies document. Administration, 12420 Parklawn Dr., of the summary of safety and Opportunity for Administrative Review rm. 1–23, Rockville, MD 20857. effectiveness data and petitions for administrative review to the Dockets Section 515(d)(3) of the act authorizes FOR FURTHER INFORMATION CONTACT: Vir Management Branch (HFA–305), Food any interested person to petition, under D. Anand, Center for Food Safety and and Drug Administration, 12420 section 515(g) of the act, for Applied Nutrition (HFS–216), Food and Parklawn Dr., rm. 1–23, Rockville, MD administrative review of CDRH’s Drug Administration, 200 C St. SW., 20857. decision to approve this application. A Washington, DC 20204, 202–418–3081. petitioner may request either a formal FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Under the hearing under 21 CFR part 12 of FDA’s Doris J. Terry, Center for Devices and Federal Food, Drug, and Cosmetic Act administrative practices and procedures Radiological Health (HFZ–450), Food (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), regulations or a review of the and Drug Administration, 9200 notice is given that a food additive application and CDRH’s action by an Corporate Blvd., Rockville, MD 20850, petition (FAP 8B4566) has been filed by independent advisory committee of 301–443–8609. Ciba Specialty Chemicals Corp., 335 experts. A petition is to be in the form Water St., Newport, DE 19804. The SUPPLEMENTARY INFORMATION: On June of a petition for reconsideration under petition proposes to amend the food 30, 1995, Ventritex, Inc., Sunnyvale, CA 21 CFR 10.33(b). A petitioner shall additive regulations in § 178.3297 94086–6527, submitted to CDRH an identify the form of review requested application for premarket approval of (hearing or independent advisory Colorants for polymers (21 CFR   178.3297) to provide for the safe use of the TVL Lead System. The TVL Lead committee) and shall submit with the benzenesulfonic acid, 4-chloro–5- System is indicated for use with petition supporting data and methyl–2-[[4,5-dihydro–3-methyl–5- commercially available pulse generators information showing that there is a with which it has been tested. The genuine and substantial issue of oxo–1–(3-sulfophenyl)–1H-pyrazo–4-  yl]azo], ammonium salt (C.I. Pigment TVL Lead System is a transvenous material fact for resolution through Yellow 191:1) as a colorant in polymers defibrillation lead system and is administrative review. After reviewing intended for use in contact with food. indicated for use in patients with a the petition, FDA will decide whether to The agency has determined under 21 history of hemodynamically grant or deny the petition and will CFR 25.32(i) that this action is of the compromising ventricular publish a notice of its decision in the type that does not individually or tachyarrhythmias. These patients may Federal Register. If FDA grants the cumulatively have a significant effect on have experienced a cardiac arrest not petition, the notice will state the issue the human environment. Therefore, associated with an acute myocardial to be reviewed, the form of the review infarction or have ventricular to be used, the persons who may neither an environmental assessment  nor an environmental impact statement tacharrhythmias. In addition, the TVL participate in the review, the time and is required. Lead System can be used in patients place where the review will occur, and whose primary therapy for other details. Dated: November 3, 1997. hemodynamically significant, sustained Petitioners may, at any time on or Alan M. Rulis, ventricular tachycardia is before December 19, 1997, file with the Director, Office of Premarket Approval, antitachycardia pacing; the Dockets Management Branch (address Center for Food Safety and Applied Nutrition. defibrillation capabilities of the above) two copies of each petition and [FR Doc. 97-30406 Filed 11–18–97; 8:45 am] connected pulse generator provide supporting data and information, BILLING CODE 4160±01±F therapy backup in the event that the identified with the name of the device arrhythmia accelerates. and the docket number found in In accordance with the provisions of brackets in the heading of this DEPARTMENT OF HEALTH AND section 515(c)(2) of the Federal Food, document. Received petitions may be HUMAN SERVICES Drug, and Cosmetic Act (the act) (21 seen in the office above between 9 a.m. U.S.C. 360e(c)(2)) as amended by the and 4 p.m., Monday through Friday. Food and Drug Administration Safe Medical Devices Act of 1990, this This notice is issued under the [Docket No. 97M±0460] premarket approval application (PMA) Federal Food, Drug, and Cosmetic Act was not referred to the Circulatory (secs. 515(d), 520(h) (21 U.S.C. 360e(d), Ventritex, Inc.; Premarket Approval of System Devices Advisory Panel of the 360j(h))) and under authority delegated the TVL Lead System Medical Devices Advisory Committee, to the Commissioner of Food and Drugs an FDA advisory committee, for review (21 CFR 5.10) and redelegated to the AGENCY: Food and Drug Administration, and recommendation because the Director, Center for Devices and HHS. information in the PMA substantially Radiological Health (21 CFR 5.53). Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61825

Dated: October 16, 1997. number, to [email protected], or call to the Medicare beneficiary to assist Joseph A. Levitt, the Reports Clearance Office on (410) them in choosing among health plans; Deputy Director for Regulations Policy, Center 786–1326. Written comments and (2) to provide information to health for Devices and Radiological Health. recommendations for the proposed plans for internal quality improvement [FR Doc. 97–30333 Filed 11–18–97; 8:45 am] information collections must be mailed activity; and (3) to provide HCFA, as BILLING CODE 4160±01±F within 30 days of this notice directly to purchaser, information useful for the OMB Desk Officer designated at the monitoring quality of and access to care following address: OMB Human provided by the plans; Frequency: DEPARTMENT OF HEALTH AND Resources and Housing Branch, Annually; Affected Public: Individuals HUMAN SERVICES Attention: Allison Eydt, New Executive or Households, non-profit and for profit Office Building, Room 10235, HMOs which contract with HCFA to Health Care Financing Administration Washington, D.C. 20503. provide managed health care to Medicare beneficiaries; Number of Document Identifier: HCFA±R±94 Dated: October 6, 1997. John P. Burke III, Respondents: 293,834; Total Annual HCFA Reports Clearance Officer, HCFA, Responses: 293,834; Total Annual Agency Information Collection Hours Requested: 181,520. Activities: Submission for OMB Office of Information Services,Information Technology Investment Management To obtain copies of the supporting Review; Comment Request Group,Division of HCFA Enterprise statement for the proposed paperwork In compliance with the requirement Standards. collections referenced above, or to of section 3506(c)(2)(A) of the [FR Doc. 97–30368 Filed 11–18–97; 8:45 am] obtain the supporting statement and any Paperwork Reduction Act of 1995, the BILLING CODE 4120±03±P related forms, E-mail your request, Health Care Financing Administration including your address and phone (HCFA), Department of Health and number, to [email protected], or call Human Services, has submitted to the DEPARTMENT OF HEALTH AND the Reports Clearance Office on (410) Office of Management and Budget HUMAN SERVICES 786–1326. Written comments and recommendations for the proposed (OMB) the following proposal for the Health Care Financing Administration collection of information. Interested information collections must be mailed persons are invited to send comments [Document Identifier: HCFA±R±200] within 30 days of this notice directly to regarding the burden estimate or any the OMB Desk Officer designated at the other aspect of this collection of Agency Information Collection following address: OMB Human information, including any of the Activities: Submission for OMB Resources and Housing Branch, following subjects: (1) The necessity and Review; Comment Request Attention: Allison Eydt, New Executive Office Building, Room 10235, utility of the proposed information In compliance with the requirement collection for the proper performance of of section 3506(c)(2)(A) of the Washington, D.C. 20503. the agency’s functions; (2) the accuracy Paperwork Reduction Act of 1995, the Dated: October 21, 1997. of the estimated burden; (3) ways to Health Care Financing Administration John P. Burke III, enhance the quality, utility, and clarity (HCFA), Department of Health and HCFA Reports Clearance Officer, HCFA, of the information to be collected; and Human Services, has submitted to the Office of Information Services, Information (4) the use of automated collection Office of Management and Budget Technology Investment Management Group, techniques or other forms of information (OMB) the following proposal for the Division of HCFA Enterprise Standards. technology to minimize the information collection of information. Interested [FR Doc. 97–30369 Filed 11–18–97; 8:45 am] collection burden. persons are invited to send comments BILLING CODE 4120±03±P Type of Information Collection regarding the burden estimate or any Request: Extension of a currently other aspect of this collection of approved collection; Title of information, including any of the DEPARTMENT OF HEALTH AND Information Collection: Medicaid following subjects: (1) The necessity and HUMAN SERVICES Sterilization Regulations 45 CFR 96.73, utility of the proposed information 42 CFR 441 subpart F and Consent collection for the proper performance of National Institutes of Health Form; Form No.: HCFA–R–94 OMB the agency’s functions; (2) the accuracy Drug Accountability Record; 0938–0481; Use: All Medicaid-eligible of the estimated burden; (3) ways to Submission of OMB Review; Comment individuals seeking sterilization are enhance the quality, utility, and clarity Request required to sign the federally mandated of the information to be collected; and consent form, acknowledging that they (4) the use of automated collection SUMMARY: Under the provisions of understand the benefits and risks of techniques or other forms of information Section 3506(c)(2)(A) of the Paperwork sterilization, and have received oral technology to minimize the information Reduction Act of 1995, the National information concerning the sterilization collection burden. Cancer Institute, the National Institutes operation from the provider. Frequency: Type of Information Request: Revision of Health (NIH) has submitted to the Other (each time sterilization is sought); of a currently approved collection; Title Office of Management and Budget Affected Public: Individuals or of Information Collection: HEDIS 3.0 (OMB) a request to review and approve Households; Number of Respondents: (Health Plan Data and Information Set), the information collection listed below. 112,526; Total Annual Responses: including the Health of Seniors and This proposed information collection 112,526; Total Annual Hours: 140,658. Consumer Assessment of Health Plans was previously published in the Federal To obtain copies of the supporting Study (CAHPS) surveys and supporting Register on July 10, 1997, page 37069 statement for the proposed paperwork regulations 42 CFR 417.470, and 42 CFR and allowed 60-days for public collections referenced above, or to 417.126; Form Number: HCFA–R–200 comment. No public comments were obtain the supporting statement and any (OMB #0938–0701); Use: HEDIS and received. The purpose of this notice is related forms, E-mail your request, CAHPS will be used for 3 purposes: (1) to allow an additional 30-days for including your address and phone To provide summary comparative data public comment. The National Institutes 61826 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices of Health may not conduct or sponsor, drug form multiplied by the number of Authorization Section, Pharmaceutical and the respondent is not required to forms completed annually. The record Management Branch, Cancer Therapy respond to, an information collection keeping burden represents an average Evaluation Program, Division Cancer that has been extended, revised, or time required for multiple entries (4 Therapy, Diagnosis, and Centers, implemented on or after October 1, minutes or 0.0666 hour per entry) on the National Cancer Institute, Executive 1995, unless it displays a currently valid drug accountability form, the average Plaza North, Room 707, 9000 Rockville OMB control number. number of forms maintained by each Pike, Bethesda, MD 20892 or call non- PROPOSED COLLECTION: Title: Drug record keeper and the number of record toll-free number (301) 496–5725 or E- Accountability Record (NIH form 2564) keepers. These estimates are based on mail your request, including your and Transfer Investigational Drug the 36,500 items shipped by PMB and address to: [email protected]. Record (NIH form 2564–1). Type of the 1,200 items transfer approvals in COMMENTS DUE DATE: Comments Information Collection Request: calendar year 1996. Cost estimates are regarding this information collection are Revision of a currently approved based upon burden hours at an average best assured of having their full effect if collection, OMB No. 0925–0240, cost of $25.00 per hour. received on or before December 19, Expiration Date 1/31/98. Need and Use Drug Accountability Form: 1997. of Information Collection: Food and No. Of Respondents—4560 Dated: November 12, 1997. Drug Administration (FDA) regulations No. Of responses per respondent—8 Nancie L. Bliss, Average Burden per response—0.0666 require investigators to establish a OMB Project Clearance Liaison. Annual Burden hours—2430 record of the receipt, use and Drug Transfer Form: [FR Doc. 97–30322 Filed 11–18–97; 8:45 am] disposition of all investigational agents. No. Of respondents—1200 BILLING CODE 4140±07±M The National Cancer Institute, NCI, as a No. Of responses per respondent—1 sponsor of investigational drug trails, Average burden per response—0.0666 has the responsibility to assure the FDA Annual Burden hours—80 DEPARTMENT OF HEALTH AND that investigators in its clinical trials Total Annualized Burden For Record HUMAN SERVICES program are maintaining systems for Keeping and Reporting: 2,510. National Institutes of Health drug accountability. In order to fulfill There are no Capital Costs, Operating these requirements, a standard Costs, and/or Maintenance Cost to National Institute of Child Health and Investigational Drug Accountability report. Report Form (NIH 2564) was designed Human Development; Notice of to account for drug inventories and Request for Comments Meeting of the Board of Scientific Counselors usage by protocols. The Transfer Written comments and/or suggestions Investigational Drug Form (NIH 2564–1) from the public and affected agencies Pursuant to Public Law 92–463, permits intra-institutional transfer of are invited on one or more of the notice is hereby given of the meeting of drugs to other approved investigators for following points: (1) Whether the the Board of Scientific Counselors, other approved protocols. The data proposed collection of information is National Institute of Child Health and obtained from the drug accountability necessary for the proper performance of Human Development, December 5, record will be used to keep track of the the function of the agency, including 1997, in Building 31, Room 2A52. dispensing of investigational anticancer whether the information will have This meeting will be open to the agents to patients. It is used by NCI practical utility; (2) The accuracy of the public from 8:00 a.m. to 12 noon on management to ensure that agency’s estimate of the burden of the December 5 for the review of the investigational drug supplies are not proposed collection of information, Intramural Research Program and diverted for inappropriate protocol or including the validity of the scientific presentations. Attendance by patient use. The information is also methodology and assumptions used; (3) the public will be limited to space compared to patient flow sheets Ways to enhance the quality, utility, and available. (protocol reporting forms) during site clarity of the information to be In accordance with the provisions set visits conducted for each investigator collected: and (4) Ways to minimize the forth in section 552b(c)(6), Title 5, once every three years. All comparison burden of the collection of information U.S.C. and section 10(d) of Public Law are done with the intention of ensuring on those who are to respond, including 92–463, the meeting will be closed to protocol, patient and drug compliance the use of appropriate automated, the public on December 5 from 1:00 for patient safety and protections. electronic, mechanical, or other p.m. to adjournment of the review, Frequency of Response: Daily. Affected technological collection techniques or discussion, and evaluation of individual Public: state or local governments, other forms of information technology. programs and projects conducted by the businesses, or other for-profit, Federal National Institutes of Health, including agencies or employees, non-profit Direct Comments To OMB consideration of personnel institutions, and small business or Written comments and/or suggestions qualifications and performance, the organizations. Type of Respondents: regarding the item(s) contained in this competence of individual investigators, Investigators, pharmacist; nurses, notice, especially regarding the and similar items, the disclosure of pharmacy technicians, data managers. estimated public burden and associated which would constitute a clearly The annual reporting burden is as response time, should be directed to the: unwarranted invasion of personal follows: The annualized burden Office of Management and Budget, privacy. Ms. Catherine O’Connor, Senior estimate for record keeping is estimated Office of Regulatory Affairs, New Biomedical Research Program Assistant, to require 3,650 hours for drug Executive Office Building, Room 10235, NICHD, Building 31, Room 2A50, accountability and 120 hours for drug Washington, D.C. 20503, Attention: National Institutes of Health, Bethesda, transfer. The annualized cost to the Desk Officer for NIH. To request Maryland, 20892–2425, 301–496–2133, respondents is estimated at $94,500. information on the proposed project or will provide a summary of the meeting, The reporting burden is the average time to obtain a copy of the data collection a roster of Board members, and (4 minutes or 0.0666 hour) required to plans and instruments, contact Joseph substantive program information upon complete the transfer investigational High, Head, Drug Management and request. Individuals who plan to attend Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61827 the open session and need special Bureau of Land Management, 2555 East oral comments may be limited. assistance, such as sign language Gila Ridge Road, Yuma, Arizona 85365, Individuals who plan to attend and interpretation or other reasonable telephone (520) 317–3211. need further information about the accommodations, should contact Ms. Dated: November 10, 1997. meetings, or need special assistance O’Connor in advance of the meeting. Curtis Gunn, such as sign language interpretation or other reasonable accommodations, Dated: November 12, 1997. Program Manager, Resources, Lands, and should contact Michael Dwyer at the LaVeen Ponds, Minerals/Acting Field Manager. Las Vegas District Office, 4765 Vegas Acting, Committee Management Officer, NIH. [FR Doc. 97–30299 Filed 11–18–97; 8:45 am] Dr., Las Vegas, NV 89108, telephone, [FR Doc. 97–30322 Filed 11–18–97; 8:45 am] BILLING CODE 4310±32±M (702) 647–5000. BILLING CODE 4140±01±M DATES: Date is December 8, 1997, from DEPARTMENT OF THE INTERIOR 1:00 p.m. to approximately 4 p.m. and will reconvene on December 9, 1997 DEPARTMENT OF THE INTERIOR Bureau of Land Management and meet from 8 a.m. to 4:40 p.m. The Bureau of Land Management [NV±040±1020±001] public comment period will begin at 2 p.m. on December 8, 1997 at 2:00 p.m. [AZ±050±08±1110±00; 6780; 1782] Mojave-Southern Great Basin ADDRESSES: The council will meet at the Resource Advisory CouncilÐNotice of Las Vegas District Office, 4765 West Arizona: Availability of the Final Meeting, Locations and Times Lechuguilla-Mohawk Habitat Vegas Drive, Las Vegas, NV. Management Plan (HMP), Yuma Field AGENCY: Bureau of Land Management, FOR FURTHER INFORMATION CONTACT: Office Interior. Dan Netcher, District Minerals ACTION: Resource Advisory Council Specialist, Ely, telephone: (702) 289– AGENCY: Bureau of Land Management, 1872. Interior. Meeting Locations and Times. Dated: November 10, 1997. ACTION: Notice of availability of the final SUMMARY: In accordance with the Gene A. Kolkman, Lechuguilla-Mohawk Habitat Federal Land Policy and Management Ely District Manager. Management Plan (HMP) and Act and the Federal Advisory [FR Doc. 97–30300 Filed 11–18–97; 8:45 am] environmental assessment, Yuma Field Committee Act of 1972 (FACA), 5 Office. U.S.C., the Department of the Interior, BILLING CODE 4310±HC±M Bureau of Land Management (BLM), SUMMARY: The Lechuguilla-Mohawk council meeting of the Mojave-Southern DEPARTMENT OF THE INTERIOR Habitat Management Plan covers Great Basin Resource Advisory Council wildlife habitat improvement projects (RAC) will be held as indicated below. Bureau of Land Management and monitoring on approximately The agenda includes a public comment 930,000 acres of public land and period, and discussion of public land military-withdrawn public land in issues. [ES±960±1420±00] ES±49231, Group 34, southwestern Arizona. The plan will be Illinois The Resource Advisory Council implemented in cooperation with develops recommendations for BLM Arizona Game and Fish Department Notice of Filing of Plat of Survey; regarding the preparation, amendment, under the Sikes Act. Most of the land Illinois and implementation of land use plans included in the plan is part of the Barry for the public lands and resources The plat of the survey of the M. Goldwater Air Force Range which is within the jurisdiction of the council. Kaskaskia Lock and Dam acquisition administered by the Luke Air Force For the Mojave-Great Basin RAC this boundary, Township 6 South, Range 8 Base in Glendale, Arizona. The western jurisdiction is Clark, Esmeralda, Lincoln West, Third Principal Meridian, Illinois, portion of the Goldwater Range is used and Nye counties in Nevada. Except for will be officially filed in Eastern States, primarily by the Marine Corps Air the purposes of long-range planning and Springfield, Virginia at 7:30 a.m., on Station, Yuma for training. the establishment of resource December 22, 1997. Objectives of the plan include management priorities, the RAC shall The survey was requested by the U.S. maintenance and enhancement of not provide advice on the allocation and Army Corps of Engineers. habitat for Sonoran pronghorn, desert expenditure of Federal funds, or on All inquiries or protests concerning tortoise, flat-tailed horned lizard, mule personnel issues. deer, desert bighorn sheep, upland the technical aspects of the survey must The RAC may develop game, nongame, and other sensitive be sent to the Chief Cadastral Surveyor, recommendation for implementation of wildlife habitat. It is projected that the Eastern States, Bureau of Land ecosystem management concepts, plan objectives will be achieved within Management, 7450 Boston Boulevard, principles and programs, and assist the 20 years. Springfield, Virginia 22153, prior to BLM to establish landscape goals and 7:30 a.m., December 22, 1997. ADDRESSES: A limited number of copies objectives. Copies of the plat will be made of the Plan and Environmental All meetings are open to the public. available upon request and prepayment Assessment are available upon request The public may present written of the reproduction fee of $2.75 per to: Field Manager, Bureau of Land comments to the council. Public copy. Management, 2555 East Gila Ridge comments should be limited to issues Road, Yuma, Arizona 85365. There are for which the RAC may make Dated: November 7, 1997. also copies available for review at the recommendations within its area of Stephen G. Kopach, above location. jurisdiction. Depending of the number Chief Cadastral Surveyor. FOR FURTHER INFORMATION CONTACT: of persons wishing to comment, and [FR Doc. 97–30298 Filed 11–18–97; 8:45 am] Wildlife Biologist Susanna Henry, time available, the time for individual BILLING CODE 4310±GJ±M 61828 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

DEPARTMENT OF THE INTERIOR resource problems. This effort, the by January 20, 1998, to be assured of CALFED Bay-Delta Program (Program), consideration. Bureau of Reclamation is being carried out under the policy ADDRESSES: Comments may be mailed to direction of CALFED. The CALFED Bay- John A. Trelease, Office of Surface Bay-Delta Advisory Council Meeting Delta Program is exploring and Mining Reclamation and Enforcement, AGENCY: Bureau of Reclamation, developing a long-term solution for 1951 Constitution Ave, NW, Room 210– Interior. cooperative planning process that will SIB, Washington, DC 20240. Comments ACTION: Notice of Meeting. determine the most appropriate strategy may also be submitted electronically to and actions necessary to improve water [email protected]. SUMMARY: The Bay-Delta Advisory quality, restore health to the Bay-Delta FOR FURTHER INFORMATION CONTACT: Council (BDAC) will meet to discuss ecosystem, provide for a variety of To request a copy of the information several issued including: consideration beneficial uses, and minimize Bay-Delta collection request, explanatory and discussion of preliminary draft system vulnerability. A group of citizen information and related forms, contact alternatives being developed for the advisors representing California’s John A. Trelease, at (202) 208–2783. programmatic EIS/EIR, a report on the agricultural, environmental, urban, SUPPLEMENTARY INFORMATION: findings and recommendations of the The Office business, fishing, and other interests of Management and Budget (OMB) Ecosystem Restoration Program Plan who have a stake in finding long term Scientific Review Panel, reports from regulations at 5 CFR 1320, which solutions for the problems affecting the implementing provisions of the the BDAC Work Groups, and other Bay-Delta system has been chartered policy issues pertaining to the CALFED Paperwork Reduction Act of 1995 (Pub. under the Federal Advisory Committee L. 104–13), require that interested Bay-Delta Program. Interested persons Act (FACA) as the Bay-Delta Advisory may make oral statements to the BDAC members of the public and affected Council (BDAC) to advise CALFED on agencies have an opportunity to or may file written statements for the program mission, problems to be consideration. comment on information collection and addressed and objectives for the recordkeeping activities (see 5 CFR DATES: The Bay-Delta Advisory Council CALFED Bay-Delta Program. BDAC 1320.8(d)). This notice identifies meeting will be held from 9:30 am to provides a forum to help ensure public information collections that OSM will 5:00 pm on Friday, December 12, 1997. participation, and will review reports be submitting to OMB for extension. ADDRESSES: The Bay-Delta Advisory and other materials prepared by These collections are contained in 30 Council meeting will meet at the CALFED staff. CFR 702, Exemption for Coal Extraction Radison Hotel, 500 Leisure Lane, Minutes of the meeting will be Incidental to the Extraction of Other Sacramento, California 95815, (916) maintained by the CALFED Bay-Delta Minerals. 922–2020. Program, Suite 1155, 1416 Ninth Street, OSM has revised burden estimates, CONTACT PERSON FOR MORE INFORMATION: Sacramento, CA 95814, and will be where appropriate, to reflect current Mary Selkirk, CALFED Bay-Delta available for public inspection during reporting levels or adjustments based on Program, at (916) 657–2666. If regular business hours, Monday through reestimates of burden or respondents. reasonable accommodation is needed Friday within 30 days following the OSM will request a 3-year term of due to a disability, please contact the meeting. approval for each information collection Equal Employment Opportunity Office Dated: November 13, 1997. activity. at (916) 653–6952 or TDD (916) 653– Roger Patterson, Comments are invited on: (1) The 6934 at least one week prior to the Regional Director, Mid-Pacific Region. need for the collection of information meeting. [FR Doc. 97–30327 Filed 11–18–97; 8:45 am] for the performance of the functions of SUPPLEMENTARY INFORMATION: The San the agency; (2) the accuracy of the BILLING CODE 4310±94±M Francisco Bay/Sacramento-San Joaquin agency’s burden estimates; (3) ways to Delta Estuary (Bay-Delta system) is a enhance the quality, utility and clarity critically important part of California’s DEPARTMENT OF THE INTERIOR of the information collection; and (4) natural environment and economy. In ways to minimize the information recognition of the serious problems Office of Surface Mining Reclamation collection burden on respondents, such facing the region and the complex and Enforcement as use of automated means of collection resource management decisions that of the information. A summary of the must be made, the state of California Notice of Proposed Information public comments will accompany and the Federal government are working Collection OSM’s submission of the information together to stabilize, protect, restore, collection request to OMB. AGENCY: and enhance the Bay-Delta system. The Office of Surface Mining This notice provides the public with State and Federal agencies with Reclamation and Enforcement. 60 days in which to comment on the management and regulatory ACTION: Notice and request for following information collection responsibilities in the Bay-Delta system comments. activity: are working together as CALFED to Title: Exemption for Coal Extraction provide policy direction and oversight SUMMARY: In compliance with the Incidental to the Extraction of Other for the process. Paperwork Reduction Act of 1995, the Minerals, 30 CFR part 702. One area of Bay-Delta management Office of Surface Mining Reclamation OMB Control Number: 1029–0089. includes the establishment of a joint and Enforcement (OSM) is announcing Summary: This part implements the State-Federal process to develop long- its intention to request approval for the requirement in Section 701(28) of the term solutions to problems in the Bay- collection of information for the Surface Mining Control and Delta system related to fish and wildlife, exemption of coal extraction incidental Reclamation Act of 1977 (SMCRA), water supply reliability, natural to the extraction of other minerals at 30 which grants an exemption from the disasters, and water quality. The intent CFR part 702. requirements of SMCRA to operators is to develop a comprehensive and DATES: Comments on the proposed extracting not more than 162⁄3 balanced plan which addresses all of the information collection must be received percentage tonnage of coal incidental to Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61829 the extraction of other minerals. This SUPPLEMENTARY INFORMATION: In accordance with the Federal information will be used by the Scope: Regulated persons are required Advisory Committee Act, all meetings of regulatory authorities to make that to report suspicious regulated the Task Force shall be open to the determination. transactions to DEA pursuant to 21 CFR public with notice of times and Bureau Form Number: None. 1310.05(a)(1) and 21 U.S.C. 830(b)(1)(A). locations appearing in the Federal Frequency of Collection: Once and Register. Interested parties shall be annually thereafter. In the past, DEA has had general guidelines which were published in the permitted to attend meetings, appear Description of Respondents: before the Task Force and present Producers of coal and other minerals. Chemical Handlers’ Manual as to what constituted a suspicious chemical order. limited verbal statements, and file Total Annual Responses: 78. written statements with Task Force Total Annual Burden Hours: 733. The Comprehensive Methamphetamine Control Act of 1996 (MCA) mandated members. Written statements will be Dated: November 12, 1997. the establishment of the Suspicious taken at any time during the meeting Richard G. Bryson, Orders Task Force with the express and distributed to the Task Force as Chief, Division of Regulatory Support. purpose of developing proposals that soon as feasible. Presenters of written [FR Doc. 97–30305 Filed 11–18–97; 8:45 am] further define a suspicious order. The statements are requested to provide 25 BILLING CODE 4310±05±M scope of discussion of this Task Force copies of the statement to expedite shall be limited to enhancements and distribution to the Task Force members. clarifications of what constitutes a If the presenter does not/can not DEPARTMENT OF JUSTICE suspicious chemical order that needs to provide the requested copies, the be reported to DEA. Designated Federal Official (DFO) will Drug Enforcement Administration Membership: In accordance with the make the copies and the Task Force will [DEA Number 170N] provisions of the MCA, this Task Force consider the statement when the copies will be composed of appropriate are available. Verbal comments may be Task Force on Suspicious Orders personnel with experience in limited in time by the DFO to insure investigating and prosecuting illegal adequate opportunity for testimony by AGENCY: Drug Enforcement as many presenters as possible. Administration (DEA), Justice. transactions of listed chemicals and supplies, and representatives from the The Task Force will be advisory only ACTION: Notice of establishment of Task chemical and pharmaceutical and will provide its report to the Force on Suspicious Orders. industries. Attorney General. SUMMARY: In accordance with the The Task Force will consist of 20 Dated: November 10, 1997. provisions of the Federal Advisory members nominated by the chairman of John H. King, Committee Act, 5 U.S.C. App. 2 (1972), the Task Force from relevant industry/ Deputy Assistant Administrator, Office of and 41 CFR 101–6.1001–6.1035 (1992), trade associations and state and local Diversion Control. the Administrator of the Drug law enforcement agencies. The [FR Doc. 97–30275 Filed 11–18–97; 8:45 am] Enforcement Administration (DEA), composition of the Task Force shall be: BILLING CODE 4410±09±M with the concurrence of the Attorney Two members from the DEA General, is establishing a Task Force on investigative workforce Suspicious Orders for the purpose of One member from the U.S. Attorney’s DEPARTMENT OF JUSTICE developing proposals to define Office, Southern District of California suspicious orders of listed chemicals One member from the International Drug Enforcement Administration which can be used by registrants in Association of Chiefs of Police [DEA NUMBER 171N] determining if an order is a suspicious One member from The National order which must be reported to the Association of Diversion Investigators Task Force on Suspicious Orders DEA. One member from the California Bureau Meeting The Task Force is authorized by of Narcotics Enforcement Public Law 104–237, Section 504 of One member from the Missouri State AGENCY: Drug Enforcement Subtitle V, Education and Research, the Highway Patrol Administration (DEA), Justice. Comprehensive Methamphetamine One member from the Missouri ACTION: Notice of Meeting. Control Act of 1996 (the MCA). The Attorney General’s Office specific provisions of the Act state that: One member from the National SUMMARY: Pursuant to Section 10(a)(2) of The Task Force shall be responsible Association of Boards of Pharmacy the Federal Advisory Committee Act for providing the Attorney General with One member from the National (Pub. L. 92–463), as amended, notice is recommendations, advice, and Association of State Controlled hereby given that a meeting of the proposals for the establishment of such Substances Authorities Suspicious Orders Task Force will be guidelines that will adequately define Two members from the Chemical held on December 16–17, 1997. The suspicious orders of listed chemicals. Manufacturers Association panel will meet from 9:00 a.m. to 5:00 The Task Force shall limit its area of Two members from the National p.m. both days at The Marriot Residence consideration to domestic issues Association of Chemical Distributors Inn, 550 Army Navy Drive, Arlington, regarding suspicious orders. One member from the national Non- Virginia 22202. DATES: This Task Force is effective Prescription Drug Manufacturers’ This meeting will be open to the September 3, 1997. Association public on a space available basis. Any FOR FURTHER INFORMATION CONTACT: Four members from the wholesale and interested person may observe meetings Michael Leser, Program Analyst, Liaison retail pharmaceutical marketing or portions thereof and shall be and Policy Section, Office of Diversion associations permitted to participate in the Control, Drug Enforcement The chairman of the Task Force shall discussions at the discretion of the Administration, Washington, D.C. reserve the right to add up to two meeting chairman and with the 20537, Telephone (202) 307–4026 or additional members to the Task Force as approval of the full-time Designated Facsimile (202) 307–8570. appropriate. Federal Official (DFO) in attendance. 61830 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

In addition to presenting limited This proposed collection was previously (5) An estimate of the total number of verbal statements, interested parties published in the Federal Register on respondents and the amount of time shall be permitted to file written September 2, 1997, at 62 FR 46375. No estimated for an average respondent to statements with Task Force members. comments were received by the respond: 150,000 responses at 30 Written statements will be taken at any Immigration and Naturalization Service. minutes (.5) hours per response. time during the meeting and distributed The purpose of this notice is to allow (6) An estimate of the total public an additional 30 days for public to the Task Force as soon as feasible. burden (in hours) associated with the comments. Comments are encouraged Presenters of written statements are collection: 75,000 annual burden hours. requested to provide 25 copies of the and will be accepted until December 19, If you have additional comments, statement to expedite distribution to the 1997. This process is conducted in suggestions, or need a copy of the Task Force members. If the presenter accordance with 5 CFR 1320.10. proposed information collection does not/can not provide the requested Written comments and/or suggestions instrument with instructions, or copies, the DFO will make the copies regarding the items contained in this additional information, please contact and the Task Force will consider the notice, especially regarding the Richard A. Sloan 202–514–3291, statement when the copies are available. estimated public burden and associated Director, Policy Directives and Verbal comments may be limited in response time, should be directed to the Instructions Branch, Immigration and time by the DFO to insure adequate Office of Management and Budget, Naturalization Service, U.S. Department opportunity for testimony by as many Office of Regulatory Affairs, Attention: Department of Justice Desk Officer, of Justice, Room 5307, 425 I Street, NW., presenters as possible. Washington, DC 20530. Washington, DC 20536. Additionally, DATES: December 16, 17, 1997. Written comments and suggestions comments may be submitted to INS via FOR FURTHER INFORMATION CONTACT: from the public and affected agencies facsimile to (202) 305–0143. Michael Leser, Program Analyst, Liaison concerning the proposed collection of and Policy Section, Office of Diversion If additional information is required information should address one or more contact: Mr. Robert B. Briggs, Clearance Control, Drug Enforcement of the following four points: Administration, Washington, D.C. (1) Evaluate whether the proposed Officer, United States Department of 20537, 20537, Telephone (202) 307– collection of information is necessary Justice, Information Management and 4026, Facsimile (202) 307–8570. for the proper performance of the Security Staff, Justice Management SUPPLEMENTARY INFORMATION: If you functions of the agency, including Division, Suite 850, Washington Center, need special accommodations due to a whether the information will have 1001 G Street, NW, Washington, DC disability, please contact the Office of practical utility; 20530. Diversion Control, Drug Enforcement (2) Evaluate the accuracy of the Dated: November 13, 1997. Administration, 600 Army Navy Drive, agencies estimate of the burden of the Robert B. Briggs, Arlington, Virginia, 22202, (202) 307– proposed collection of information, Department Clearance Officer, United States 4026 at least seven (7) days prior to the including the validity of the Department of Justice. meeting. methodology and assumptions used; (3) Enhance the quality, utility, and [FR Doc. 97–30302 Filed 11–18–97; 8:45 am] Dated: November 10, 1997. clarity of the information to be BILLING CODE 4410±18±M John H. King, collected; and Deputy Assistant Administrator Office of (4) Minimize the burden of the Diversion Control. collection of information on those who [FR Doc. 97–30276 Filed 11–18–97; 8:45 am] are to respond, including through the DEPARTMENT OF LABOR BILLING CODE 4410±09±M use of appropriate automated, Employment and Training electronic, mechanical, or other Administration technological collection techniques or DEPARTMENT OF JUSTICE other forms of information technology, Labor Standards for the Registration of e.g., permitting electronic submission of Immigration and Naturalization Service Apprenticeship ProgramsÐEqual responses. Employment Opportunity in Agency Information Collection Overview of This Information Apprenticeship and Training; Activities: Proposed Collection; Collection Comment Request Comment Request (1) Type of Information Collection: ACTION: Notice. ACTION: Revision of Existing Collection; Revision of currently approved Generic Clearance of Customer Service information collection. SUMMARY: The Department of Labor, as Surveys. (2) Title of the Form/Collection: Generic Clearance of Customer Service part of its continuing effort to reduce On September 2, 1997, the Surveys. paperwork and respondent burden Immigration and Naturalization Service (3) Agency form number, if any, and conducts a preclearance consultation (Service) published a notice in the the applicable component of the program to provide the general public Federal Register at 62 FR 46375, Department of Justice sponsoring the and Federal agencies with an revising Generic Clearance of Customer collection: No agency form number. opportunity to comment on proposed Service Surveys. On page 46376, first Office of Policy and Planning, and/or continuing collections of column, first paragraph, last sentence, Immigration and Naturalization Service. information in accordance with the the Service encouraged public (4) Affected public who will be asked Paperwork Reduction Act of 1995 comments from November 3, 1997. That or required to respond, as well as a brief (PRA95) (44 U.S.C. 3506(c)(2)(A)). This sentence should have read ‘‘Comments abstract: Primary: Individuals and program helps to ensure that requested are encouraged and will be accepted for Households. This information will be data can be provided in the desired ‘‘sixty days until November 3, 1997.’’ used to assess individual and agency format, reporting burden (time and Office of Management and Budget needs, identify problems, and plan for financial resources) is minimized, approval is being south for the programmatic improvements in the collection instruments are clearly information collection listed below. delivery of immigration services. understood, and the impact of collection Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61831 requirements on respondents can be contracts of apprenticeship, to bring cognizant State government to operate properly assessed. Currently, the together employers and labor for the their proposed programs consistent with Employment and Training formulation of programs of 29 CFR parts 29 and 30. Apprenticeship Administration is soliciting comments apprenticeship, to cooperate with State sponsors are not required to file reports concerning the proposed revision of the agencies engaged in the formulation and regarding their apprentices other than collection of the information regarding promotion of standards of individual registration and update registered apprenticeship programs apprenticeship, and to cooperate with information as an apprentice moves under Title 29 CFR part 29 (Labor the Office of Education under the through their program. As requested by Standards for the Registration of Department of Health, Education, and the Office of Management and Budget, Apprenticeship Programs) and the Welfare * * *. ‘‘Section 2 of the Act a revision is being made to the extension of the collection of the authorizes the Secretary of Labor to Apprenticeship Agreement Form, ETA information under CFR part 30 (Equal ‘‘publish information relating to existing 671, to include a statement regarding Employment Opportunity in and proposed labor standards of the voluntary disclosure of the social Apprenticeship and Training). apprenticeship,’’ and to ‘‘appoint security number by the apprentice. DATES: Written comments must be national advisory committees * * *.’’ Also, as requested by the Solicitor’s submitted to the office listed in the (29 U.S.C. 50a). Office of the U.S. Department of Labor, addressee section below on or before Title 29 CFR part 29 sets forth labor another revision to the form includes a January 20, 1998. standards to safeguard the welfare of statement informing the apprentice that The Department of Labor is apprentices, and to extend the the information contained on the particularly interested in comments application of such standards by Apprenticeship Agreement Form, is which: prescribing policies and procedures included in the Apprenticeship • Evaluate whether the proposed concerning registration, for certain Management System. The information collection of information is necessary Federal purposes, of acceptable on this form is protected in accordance for the proper performance of the apprenticeship programs with the U.S with the Privacy Act. functions of the agency, including Department of Labor, Employment and Type of Review: Revision. whether the information will have Training Administration, Bureau of Apprenticeship and Training. These Agency: Employment and Training practical utility; Administration. • labor standards, policies and procedures Evaluate the accuracy of the Title: Title 29 CFR part 29, Labor agency’s estimate of the burden of the cover the registration, cancellation, and deregistration of apprenticeship Standards for the Registration of proposed collection of information, Apprenticeship Programs. including the validity of the programs and of apprenticeship methodology and assumptions used; agreements; the recognition of a State OMB Number: 1205–0223 for 29 CFR • Enhance the quality, utility, and agency as the appropriate agency for part 29. clarity of the information to be registering local apprenticeship Type of Review: Extension. collected; and programs for certain Federal purposes; Agency: Employment and Training • Minimize the burden of the and matters relating thereto. Administration. Title 29 CFR part 30 sets forth policies collection of information on those who Title: Title 29 CFR part 30, Equal and procedures to promote equality of are to respond, including through the Employment Opportunity in opportunity in apprenticeship programs use of appropriate automated, Apprenticeship and Training. electronic, mechanical, or other registered with the U.S. Department of Labor and recognized State OMB Number: 1205–0224 for 29 CFR technological collection techniques or part 30. other forms of information technology, apprenticeship agencies. These policies Recordkeeping: Apprenticeship e.g., permitting electronic submissions and procedures apply to recruitment sponsors are required to keep accurate of responses. and selection of apprentices, and to all conditions of employment and training records on the qualifications of each ADDRESSES: Anthony Swoope, Director, during apprenticeship. The procedures applicant pertaining to determination of Bureau of Apprenticeship and Training, provide for review of apprenticeship compliance with these regulations. 200 Constitution Ave., N.W., Room programs, for registering apprenticeship Records must be retained, where 4649, Washington, DC 20210; E-mail programs, for processing complaints, appropriate, regarding affirmative action Internet address: [email protected]; and for deregistering noncomplying plans and evidence that qualification Telephone number: (202) 219–5921 (this apprenticeship programs. This part also standards have been validated. State is not a toll-free number); Fax number: provides policies and procedures for Apprenticeship Councils are also (202)219–5011(this is not a toll-free continuation or withdrawal of obligated to keep adequate records number). recognition of State agencies which pertaining to determination of SUPPLEMENTARY INFORMATION: register apprenticeship programs for compliance with these regulations. All Federal purposes. of the above records are required to be I. Background maintained for five years. If this The National Apprenticeship Act of II. Current Actions information was not required, there 1937 authorizes and directs the Recordkeeping and data collection would be no documentation that the Secretary of Labor ‘‘to formulate and activities regarding registered apprenticeship programs were being promote the furtherance of labor apprenticeship are by-products of the operated in a nondiscriminatory standards necessary to safeguard the registration system. Organizations manner. Many apprenticeship programs welfare of apprentices, to extend the which apply for apprenticeship are 4 years or more in duration; application of such standards by sponsorship enter into an agreement therefore, it is important to maintain the encouraging the inclusion thereof in with the Federal Government or records for at least 5 years. 61832 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Total respond- Total re- Average time Section ents Frequency sponses per response Burden

Summary of Burden for 29 CFR Part 29

Sec. 29.3 ...... 94,041 1-time ...... 94,041 1¤4 hour ...... 23,510 Sec. 29.6 ...... 62,940 1-time ...... 62,940 1¤12 hour ...... 5,245 Sec. 29.5 ...... 1,906 1-time ...... 3,600 2 hours ...... 3,812 Sec. 29.7 ...... 40 1-time ...... 40 1¤12 hour ...... 3 Sec. 29.12 ...... 30 1-time ...... 30 2 hours ...... 60 Sec. 29.13 ......

Total ...... 160,651 ...... 32,630

Summary of Burden for 30 CFR Part 29

Sec. 30.3 ...... 1,024 1-time ...... 1,024 1¤2 hour ...... 512 Sec. 30.4 ...... 247 1-time ...... 247 1 hour ...... 247 Sec. 30.5 ...... 3,662 1-time/applicant ...... 3,662 1¤2 hour ...... 1,1834 Sec. 30.6 ...... 50 1-time ...... 50 5 hours ...... 250 Sec. 30.8 ...... 35,848 1-time ...... 35,848 1 minute ...... 597 Sec. 30.8 ...... 30 1-time/program ...... 17,924 5 minutes .... 1,494 Sec. 30.11 ...... 35,848 1-time ...... 35,848 Hand-out ...... ETA 9039 ...... 50 1-time ...... 50 1¤2 hour ...... 25 Sec. 30.15 ...... 30 1-time ...... (1) ...... Sec. 30.19 ...... 30 varies ......

Total ...... 94,653 ...... 4,959 1 Completed.

Comments submitted in response to the prospective grant of a license should ADDRESSES: Comments should be sent this notice will be summarized and/or be sent to NASA Ames Research Center. to: Office of Information and Regulatory included in the request for Office of DATES: Responses to this notice must be Affairs, Office of Management and Management and Budget approval of the received by January 20, 1998. Budget, Attn: Ms. Maya Bernstein, Desk information collection request; they will Officer for NARA, Washington, DC FOR FURTHER INFORMATION CONTACT: also become a matter of public record. 20503. Kenneth L. Warsh, Patent Attorney, FOR FURTHER INFORMATION CONTACT: Dated: November 14, 1997. NASA Ames Research Center, Mail Requests for additional information or Anthony Swoope, Code 202A–3, Moffett Field, CA 94035, copies of the proposed information Director, Bureau of Apprenticeship and telephone (650) 604–5104. Training. collection(s) and supporting Dated: November 12, 1997. [FR Doc. 97–30360 Filed 11–18–97; 8:45 am] statement(s) should be directed to Diana Edward A. Frankle, Bentley at telephone number 301–713– BILLING CODE 4510±30±M General Counsel. 6730 or fax number 301–713–6913. [FR Doc. 97–30373 Filed 11–18–97; 8:45 am] SUPPLEMENTARY INFORMATION: Pursuant NATIONAL AERONAUTICS AND BILLING CODE 7510±01±M to the Paperwork Reduction Act of 1995 SPACE ADMINISTRATION (Pub. L. 104–13), NARA invites the general public and other Federal [Notice (95±162)] agencies to comment on proposed NATIONAL ARCHIVES AND RECORDS information collections. NARA Notice of Prospect Patent License ADMINISTRATION published notices of proposed AGENCY: National Aeronautics and collections for these information Space Administration. Agency Information Collection collections on August 5 (62 FR 42144) Activities: Submission for OMB ACTION: Notice of Prospective Patent and September 3, 1997 (62 FR 46514 Review; Comment Request License. and 46515). There were no comments received. NARA has submitted the AGENCY: SUMMARY: NASA hereby gives notice National Archives and Records described information collections to that Mr. Richard Hular, doing business Administration (NARA). OMB for approval. as Fast Track Management Consulting, ACTION: Notice. In response to this notice, comments of San Carlos, CA 94070, has applied for and suggestions should address one or a partially exclusive patent license to SUMMARY: NARA is giving public notice more of the following points: (a) practice the invention described and that the agency has submitted to OMB whether the proposed information claimed in NASA Case No. ARC 14172– for approval the information collections collection(s) is/are necessary for the ICU, entitled ‘‘ROBOTICS SYSTEM described in this notice. The public is proper performance of the functions of WITH MULTIMODALITY invited to comment on the proposed NARA; (b) the accuracy of NARA’s INSTRUMENT FOR TISSUE information collections pursuant to the estimate(s) of the burden(s) of the IDENTIFICATION,’’ which is assigned Paperwork Reduction Act of 1995. proposed information collection(s); (c) to the United States of America as DATES: Written comments must be ways to enhance the quality, utility, and represented by the Administrator of the submitted to OMB at the address below clarity of the information to be National Aeronautics and Space on or before December 19, 1997 to be collected; and (d) ways to minimize the Administration. Written objections to assured of consideration. burden(s) of the collection(s) of Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61833 information on respondents, including Estimated total annual burden hours: Estimated No. of Respondents/ the use of information technology. In 36 hours. Recordkeepers: 11,335. this notice, NARA is soliciting Abstract: The information collection Estimated Burden Hours Per comments concerning the following is prescribed by 36 CFR 1206. The sales Response: 3.5. information collections: information provided by non-profit Frequency of Response: Quarterly. presses is used by NHPRC to gauge 1. Title: Customer Comment Form. Estimated Total Annual Burden interest among scholars and the general OMB number: 3095–0007. Hours: 39,673. Agency form number: NA Form public in documentary editions 14045. supported by NHPRC grants. Estimated Total Annual Cost: N/A. Type of review: Regular. Dated: November 10, 1997. OMB Number: New. Affected public: Individuals. L. Reynolds Cahoon, Form Number: None. Estimated number of respondents: Type of Review: New. 3,200. Assistant Archivist for Human Resources and Information Services. Title: Survey—Sampled Credit Estimated time per response: 5 Unions. minutes. [FR Doc. 97–30282 Filed 11–18–97; 8:45 am] Frequency of response: On occasion. BILLING CODE 7515±01±P Description: National Credit Union Estimated total annual burden hours: Administration is considering policy 267 hours. changes that may allow more than one Abstract: The information collection NATIONAL CREDIT UNION credit union to serve the same group of is a customer comment form made ADMINISTRATION potential members. As part of the available to persons who use NARA consideration, NCUA is concerned with services or visit NARA museums. The Information Collections Under Review the potential impact of those changes on credit unions. The proposed survey will form is voluntary and is used to record DATES: November 19, 1997. gather information to be used in the comments, complaints, and suggestions The National Credit Union policy writing process. from NARA customers. NARA uses the Administration (NCUA) intends to information to correct problems and submit the following new public Respondents: Federal and State Credit improve service. information collection requests to the Unions. 2. Title: National Historical Office of Management and Budget Estimated No. of Respondents/ Publications and Records Commission (OMB) for review and clearance under Recordkeepers: 1,137. (NHPRC) Subvention Grant Guidelines the Paperwork Reduction Act of 1995 Estimated Burden Hours Per and Application. (Pub. L. 104–13, 44 U.S.C. Chapter 35). Response: .5. OMB number: 3095–0021. These information collections are Frequency of Response: On occasion. Agency form number: N/A. published to obtain comments from the Estimated Total Annual Burden Type of review: Regular. public. Public comments are encouraged Hours: 1,137. Affected public: Universities and non- and will be accepted for 60 days from Estimated Total Annual Cost: N/A. profit presses. the date listed at the top of this page in OMB Number: New. Estimated number of respondents: 18. the Federal Register. Estimated time per response: 3.75 Copies of the information collection Form Number: None. hours. requests, with applicable supporting Type of Review: New. Frequency of response: On occasion. documentation, may be obtained by Title: Survey—Selected Overlapped On the average, nonprofit presses calling the NCUA Clearance Officer, Credit Unions. submit two subvention grant Betty May, (703–518–6414). Comments Description: National Credit Union applications per year. and/or suggestions regarding the Administration is considering policy Estimated total annual burden hours: information collection requests should changes that may allow more than one 135 hours. be directed to Mrs. May at the National credit union to serve the same group of Abstract: The information collection Credit Union Administration, 1775 potential members. As part of the is prescribed by 36 CFR 1206. The Duke Street, Alexandria, Virginia consideration, NCUA is concerned with application is submitted by university 22314–3428; Fax No. 703–518–6433; e- the potential financial impact. The and other non-profit presses applying to mail address: [email protected] within proposed survey will gather information the NHPRC grant program for 60 days from the date of this publication from credit unions with actual subvention of part of the costs of in the Federal Register. experience in this area. manufacturing and distributing volumes published by NHPRC-supported National Credit Union Administration Respondents: Federal and State Credit Unions. editorial projects. OMB Number: New. 3. Title: NHPRC Annual Sales Report Form Number: None. Estimated No. of Respondents/ for Subvention Grants. Type of Review: New collection. Recordkeepers: 200. OMB number: 3095–0022. Title: Year 2000 Quarterly Credit Estimated Burden Hours Per Agency form number: None. Union Report. Response: .5. Type of review: Regular. Description: To obtain information to Frequency of Response: On occasion. Affected public: Non-profit presses track credit unions’ progress toward Estimated Total Annual Burden that have received an NHPRC ‘‘Year 2000’’ compliance in order to Hours: 100. subvention grant. ensure the safety and soundness of Estimated Total Annual Cost: N/A. Estimated number of respondents: 18. individual credit unions and the Estimated time per response: 1 hour. industry and to provide specifically By the National Credit Union Frequency of response: One time only. required monitoring reports to respond Administration Board on November 10, 1997. On the average, nonprofit presses have to ongoing congressional and other Becky Baker, two on-going subvention grants and inquiries. Secretary of the Board. therefore would submit two sales Respondents: Federal and State Credit [FR Doc. 97–30325 Filed 11–18–97; 8:45 am] reports per year. Unions. BILLING CODE 7535±01±P 61834 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

NATIONAL SCIENCE FOUNDATION Equipment Program, Dr. Lawrence Seiford, NATIONAL SCIENCE FOUNDATION Program Director, Operations Research and Special Emphasis Panel in Chemistry; Production Systems, (703) 306–1330, Special Emphasis Panel in Notice of Meeting National Science Foundation, 4201 Wilson Mathematical Sciences; Notice of Boulevard, Arlington, VA 22230. Meeting In accordance with the Federal Purpose of Meeting: To provide advice and Advisory Committee Act (Pub. L. 92– recommendations concerning proposals In accordance with the Federal 463, as amended), the National Science submitted to the NSF for financial support. Advisory Committee Act (Pub. L. 92– Foundation announces the following Agenda: To review and evaluate 463, as amended), the National Science Unsolicited proposals as part of the selection meeting: Foundation announces the following process for awards. Name and Committee Code: Special meeting. Emphasis Panel in Chemistry (#1191). Reason for Closing: The proposals being Date and Time: December 11–12, 1997. reviewed include information of proprietary Name and Committee Code: Special Place: Rooms, 360, and 370, NSF, 4201 or confidential nature, including technical Emphasis in Mathematical Sciences (1204). Wilson Boulevard, Arlington, VA 22230. information, financial data such as salaries, Date and Time: December 4–6, 1997; 8:30 Type of Meeting: Closed. and personal information concerning a.m. until 5:00 p.m. Contact Person: Dr. George Rubottom, individuals associated with the proposals. Place: Room 1020, National Science Program Director, Organic and These matters are exempt under 5 U.S.C. Foundation, 4201 Wilson Boulevard, Macromolecular Chemistry, Chemistry 552b(c) (4) and (6) of the Government in the Arlington, VA 22230. Division, Room 1055, National Science Sunshine Act. Type of Meeting: Closed. Foundation, 4201 Wilson Boulevard, Dated: November 14, 1997. Contact Person: Mr. Lloyd Douglas, Arlington, VA 22230, Telephone: (703) 306– Program Director, National Science 1851. M. Rebecca Winkler, Foundation, 4201 Wilson Boulevard, Purpose of Meeting: To provide advice and Committee Management Officer. Arlington, VA 22230. Telephone: (703) 306– recommendations concerning proposals [FR Doc. 97–30364 Filed 11–18–97; 8:45 am] 1874. submitted to NSF for financial support. BILLING CODE 7555±01±M Purpose of Meeting: To provide advice and Agenda: To review and evaluate proposals recommendations concerning proposals for Sites for Research Experiences for submitted to NSF for financial support. Undergraduates in Chemistry as part of the NATIONAL SCIENCE FOUNDATION Agenda: To review and evaluate proposals selection process for awards. concerning REU Sites as part of the selection Reason for Closing: The proposals being process for awards. reviewed include information of a Special Emphasis Panel in Geosciences; Notice of Meeting Reason for Closing: The proposals being proprietary or confidential nature, including reviewed include information of a technical information, financial data such as proprietary or confidential nature, including salaries, and personal information In accordance with the Federal technical information; financial data, such as concerning individuals associated with the Advisory Committee Act (Pub. L. 92– salaries and personal informaiton concerning proposals. These matters are exempt under 5 463, as amended), the National Science individuals associated with the proposals. U.S.C. 552b(c) (4) and (6) of the Government Foundation announces the following These matters are exempt under 5 U.S.C. in the Sunshine Act. meeting. 552b(c) (4) and (6) of the Government in the Dated: November 14, 1997. Sunshine Act. Name: Special Emphasis Panel in M. Rebecca Winkler, Geosciences (1756). Dated: November 14, 1997. Committee Management Officer. Date and Time: December 19, 1997; 8:30 M. Rebecca Winkler, [FR Doc. 97–30365 Filed 11–18–97; 8:45 am] a.m.–5:00 p.m. Committee Management Officer. # BILLING CODE 7555±01±M Place: Room 770, 4201 Wilson Blvd., [FR Doc. 97–30361 Filed 11–18–97; 8:45 am] Arlington, VA. BILLING CODE 7555±01±M Type of Meeting: Closed. NATIONAL SCIENCE FOUNDATION Contact Person: Dr. Michael Mayhew, Program Director, Education and Human NATIONAL SCIENCE FOUNDATION Special Emphasis Panel in Design, Resources Program, Division of Earth Manufacture, and Industrial Sciences, Room 785, National Science Special Emphasis Panel in Innovation; Notice of Meeting Foundation, 4201 Wilson Blvd., Arlington, Mathematical Sciences; Notice of VA 22230. Telephone: (703) 306–1557. Meeting In accordance with the Federal Purpose of Meeting: To provide advice and Advisory Committee Act (Pub. L. 92– recommendations concerning proposals 463, as amended), the National Science submitted to NSF for financial support. In accordance with the Federal Foundation announces the following Agenda: To review and evaluate REU-Sites Advisory Committee Act (Pub. L. 92– meeting: Panel proposals as part of the selection 463, as amended), the National Science process for awards. Foundation announces the following Name: Special Emphasis Panel in Design, Reason for Closing: The proposals being meeting. Manufacture, and Industrial Innovation— reviewed include information of a (1194). Name and Committee Code: Special proprietary or confidential nature, including Date and Time: December 8, 9, and 10, Emphasis in Mathematical Sciences (1204). 1997, 8:00 a.m.–5:30 p.m. technical information; financial data, such as Date and Time: December 15–17, 1997; Place: Rooms 330, 340, 365, 390, 530, 580, salaries; and personal information 8:30 a.m. until 5:00 p.m. 630, 680, and 920, National Science concerning individuals associated with the Place: Rooms 310, 320 & 330, National Foundation, 4201 Wilson Boulevard, proposals. These matters are exempt under 5 Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. U.S.C. 552(c), (4) and (6) of the Government Arlington, VA 22230. Type of Meeting: Closed. in the Sunshine Act. Type of Meeting: Closed. Contact Person: Dr. Delcie Durham, Dated: November 14, 1997. Contact Person: Drs. Keith N. Crank, James Program Director, Materials Processing and M. Rebecca Winkler, Gentle, James Davenport, and Javier Rojo Manufacturing Program, Dr. George Program Directors, National Science Committee Management Officer. Hazelrigg, Program Director, Design and Foundation, 4201 Wilson Boulevard, Integration Program, Dr. Ming Leu, Program [FR Doc. 97–30362 Filed 11–18–97; 8:45 am] Arlington, VA 22230. Telephone: (703) 306– Director, Manufacturing Machines and BILLING CODE 7555±01±M 1870. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61835

Purpose of Meeting: To provide advice to a two-year rate investigation, the Agencies and Persons Consulted Program Officers concerning proposals Louisiana Public Service Commission submitted to NSF for financial support. In accordance with its stated policy, disallowed from rate recovery Cajun’s on November 13, 1997, the staff Agenda: To review and evaluate proposals $1.8 billion investment in River Bend. for the Statistics and Probability Program as consulted with the Louisiana State part of the selection process for awards. This action precipitated Cajun’s official, Mr. William Spell of the Reason for Closing: The proposals being decision on December 21, 1994, to file Department of Environmental Quality, reviewed include information of a a voluntary petition with the United Radiation Protection Division, regarding proprietary or confidential nature, including States Bankruptcy Court for the Middle the environmental impact of the technical information; financial data, such as District of Louisiana (the ‘‘Bankruptcy proposed action. The State official had salaries and personal information concerning Court’’) for protection under Chapter 11 no comments. individuals associated associated with the of the Bankruptcy Code. Cajun had proposals. These matters are exempt under 5 borrowed the majority of the $1.8 billion Finding Of No Significant Impact U.S.C. 552(c) (4) and (6) of the Government to invest in RBS from the Rural Utilities Based upon the environmental in the Sunshine Act. Service (‘‘RUS’’) of the United States assessment, the Commission concludes Dated: November 14, 1997. Department of Agriculture. On August that the proposed action will not have M. Rebecca Winkler, 26, 1996, the Bankruptcy Court a significant effect on the quality of the Committee Management Officer. approved the terms of a settlement human environment. Accordingly, the [FR Doc. 97–30363 Filed 11–18–97; 8:45 am] agreement between Cajun, EGSI, and the Commission has determined not to BILLING CODE 7555±01±M RUS which allows the Trustee to seek prepare an environmental impact authority to transfer Cajun’s 30% statement for proposed action. undivided ownership interest in RBS. For further details with respect to the NUCLEAR REGULATORY The application dated October 15, 1997, proposed action, see the application COMMISSION seeks consent to transfer Cajun’s 30% dated October 15, 1997, which is interest to EGSI and an amendment to available for public inspection at the [Docket No. 50±458] the license to reflect that transfer. Commission’s Public Document Room, The Gelman Building, 2120 L Street, Entergy Gulf States, Inc. and Cajun Environmental Impacts of the Proposed NW., Washington, DC, and at the local Electric Power Cooperative, Inc.; River Action Bend Station, Unit No. 1, public document room located at the Environmental Assessment and The Commission has completed its Government Documents Department, Finding of No Significant Impact evaluation of the proposed action and Louisiana State University, Baton concludes that there will be no changes Rouge, LA 70803. The U.S. Nuclear Regulatory to the facility or its operation as a result Dated at Rockville, Maryland, this 13th day Commission (the Commission) is of the proposed action. Accordingly, the of November 1997. considering issuance of an order NRC staff concludes that there are no For the Nuclear Regulatory Commission. approving, under 10 CFR 50.80, the significant radiological environmental James W. Clifford, transfer of Facility Operating License impacts associated with the proposed Acting Director, Project Directorate IV–1, No. NPF–47, to the extent now held by action. Division of Reactor Projects III/IV, Office of Cajun Electric Power Cooperative, Inc. With regard to potential Nuclear Reactor Regulation. (Cajun), to Entergy Gulf States, Inc. nonradiological impacts, the proposed [FR Doc. 97–30331 Filed 11–18–97; 8:45 am] (EGSI, the licensee) with respect to the action will not affect nonradiological BILLING CODE 7590±01±P River Bend Station, Unit No. 1 (RBS), plant effluents and will have no other located in West Feliciana Parish, environmental impact. Accordingly, the Louisiana, and issuance of a conforming Commission concludes that there are no NUCLEAR REGULATORY amendment under 10 CFR 50.90. significant nonradiological COMMISSION Environmental Assessment environmental impacts associated with the proposed action. Assurance of Equipment Operability Identification of the Proposed Action and Containment Integrity During Alternatives to the Proposed Action The proposed action would consent, Design-Basis Accident Conditions; by the issuance of an order, to the Since the Commission has concluded Issue transfer of the 30% minority ownership there is no measurable environmental AGENCY: Nuclear Regulatory interest in the facilities for RBS from impact associated with the proposed Commission. Cajun to EGSI and approve the issuance action, any alternatives with equal or ACTION: Notice of Issuance. of a conforming amendment to the greater environmental impact need not license. be evaluated. As an alternative to the SUMMARY: The Nuclear Regulatory The proposed action is in accordance proposed action, the staff considered Commission (NRC) has issued Generic with the application, endorsed and denial of the proposed action. Denial of Letter (GL) 96–06, Supplement 1 to consented to by EGSI, dated October 15, the application would result in no inform all holders of operating licenses 1997, filed by Ralph R. Mabey, Trustee change in current environmental for nuclear power reactors, except those for Cajun. impacts. The environmental impacts of who have permanently ceased the proposed action and the alternative operations and have certified that fuel The Need for the Proposed Action action are similar. has been permanently removed from the The proposed action is required to reactor vessel, about ongoing efforts and Alternative Use of Resources obtain the necessary consent to the new developments associated with GL transfer of the license, to the extent now This action does not involve the use 96–06, and to provide additional held by Cajun, and approval of the of any resources not previously guidance that addressees may find amendment discussed above. Cajun is a considered in the Final Environmental useful in planning and scheduling minority owner of RBS with an Statement for the River Bend Station, future actions associated with GL 96–06. ownership share of 30%. In 1994, after Unit No. 1. This generic letter is for information 61836 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices only; no specific action or written MATTERS TO BE CONSIDERED: NUCLEAR REGULATORY response is required. Conformance with COMMISSION Week of November 17 the guidance provided in the generic letter is voluntary. Friday, November 21 Biweekly Notice The generic letter is available in the Applications and Amendments to NRC Public Document Room under 11:30 a.m. Affirmation Session (Public Meeting) Facility Operating Licenses Involving accession number 9711050091. No Significant Hazards Considerations A. Final Rule—Deliberate Misconduct DATES: The generic letter was issued on I. Background November 13, 1997. by Unlicensed Persons (Tentative) B. Louisiana Energy Services— Pursuant to Public Law 97-415, the ADDRESSEES: Not applicable. Financial Qualifications Aspects of U.S. Nuclear Regulatory Commission FOR FURTHER INFORMATION CONTACT: Beth Petitions for Review of LBP–96–25 (the Commission or NRC staff) is A. Wetzel at (301) 415–1355. (Contact: Ken Hart, 301–415–1659) publishing this regular biweekly notice. Public Law 97-415 revised section 189 SUPPLEMENTARY INFORMATION: Week of November 24—Tentative Addressees of GL 96–06 have of the Atomic Energy Act of 1954, as experienced difficulty in determining There are no meetings the week of amended (the Act), to require the and implementing corrective actions for November 24. Commission to publish notice of any resolving the issues identified in the amendments issued, or proposed to be generic letter. Additionally, questions Week of December 1—Tentative issued, under a new provision of section have been raised regarding (1) the risk 189 of the Act. This provision grants the There are no meetings the week of Commission the authority to issue and implications of installing relief valves to December 1. deal with the thermal make immediately effective any overpressurization issue; (2) the use of Week of December 8—Tentative amendment to an operating license upon a determination by the the ASME Code, Section III, Appendix Thursday, December 11 F, criteria for permanent resolution of Commission that such amendment the thermal overpressurization issue; 2:00 p.m. Briefing on Investigative involves no significant hazards and (3) the NRC staff’s closure of Matters (Closed—Ex. 5 & 7) consideration, notwithstanding the Generic Safety Issue 150, pendency before the Commission of a 3:00 p.m. Affirmation Session (Public request for a hearing from any person. ‘‘Overpressurization of Containment meeting) (if needed) Penetrations.’’ Given these This biweekly notice includes all considerations, risk insights, and Friday, December 12 notices of amendments issued, or industry initiatives that are being proposed to be issued from October 27, considered or that may be proposed, 9:00 a.m. Meeting with Northeast 1997, through November 6, 1997. The addressees may require additional time Nuclear on Millstone (Public last biweekly notice was published on to fully evaluate and resolve the GL 96– meeting) (Contact: Bill Travers, November 5, 1997 (62 FR 59912). 301–415–1200) 06 issues. Therefore, addressees who Notice Of Consideration Of Issuance Of find it necessary to revise their Note: The schedule for commission Amendments ToFacility Operating corrective actions or schedular meetings is subject to change on short notice. Licenses, Proposed No Significant commitments for resolving GL 96–06 To verify the status of meetings call Hazards Consideration Determination, (recording)—(301) 415–1292. Contact person issues may submit a revised response to And Opportunity For A Hearing the generic letter. Nevertheless, specific for more information: Bill Hill (301) 415– corrective actions that have been 1661. The Commission has made a defined and are clearly needed should proposed determination that the The NRC Commission Meeting following amendment requests involve not be delayed without suitable Schedule can be found on the Internet justification. no significant hazards consideration. at: http://nrc.gov/SECY/smj/ Under the Commission’s regulations in Dated at Rockville, Maryland, this 13th day schedule.htm. 10 CFR 50.92, this means that operation of November 1997. This notice is distributed by mail to of the facility in accordance with the For the Nuclear Regulatory Commission. several hundred subscribers; if you no proposed amendment would not (1) David B. Matthews, longer wish to receive it, or would like involve a significant increase in the Acting Director, Division of Reactor Program to be added to it, please contact the probability or consequences of an Management, Office of Nuclear Reactor Office of the Secretary, Attn: Operations accident previously evaluated; or (2) Regulation. Branch, Washington, DC 20555 (301– create the possibility of a new or [FR Doc. 97–30332 Filed 11–18–97; 8:45 am] 415–1661). different kind of accident from any BILLING CODE 7590±01±P In addition, distribution of this accident previously evaluated; or (3) meeting notice over the Internet system involve a significant reduction in a is available. If you are interested in margin of safety. The basis for this NUCLEAR REGULATORY proposed determination for each COMMISSION receiving this Commission meeting schedule electronically, please send an amendment request is shown below. The Commission is seeking public Sunshine Act Meeting electronic message to [email protected] or [email protected]. comments on this proposed determination. Any comments received DATE: Weeks of November 17, 24, Dated: November 14, 1997. December 1 and 8, 1997. within 30 days after the date of William M. Hill, Jr., publication of this notice will be PLACE: Commissioners’ Conference SECY Tracking Officer, Office of the considered in making any final Room, 11555 Rockville Pike, Rockville, Secretary. determination. Maryland. [FR Doc. 97–30527 Filed 11–17–97; 12:32 pm] Normally, the Commission will not STATUS: Public and Closed. BILLING CODE 7590±01±M issue the amendment until the Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61837 expiration of the 30-day notice period. Atomic Safety and Licensing Board contention will not be permitted to However, should circumstances change Panel, will rule on the request and/or participate as a party. during the notice period such that petition; and the Secretary or the Those permitted to intervene become failure to act in a timely way would designated Atomic Safety and Licensing parties to the proceeding, subject to any result, for example, in derating or Board will issue a notice of a hearing or limitations in the order granting leave to shutdown of the facility, the an appropriate order. intervene, and have the opportunity to Commission may issue the license As required by 10 CFR 2.714, a amendment before the expiration of the petition for leave to intervene shall set participate fully in the conduct of the 30-day notice period, provided that its forth with particularity the interest of hearing, including the opportunity to final determination is that the the petitioner in the proceeding, and present evidence and cross-examine amendment involves no significant how that interest may be affected by the witnesses. hazards consideration. The final results of the proceeding. The petition If a hearing is requested, the determination will consider all public should specifically explain the reasons Commission will make a final and State comments received before why intervention should be permitted determination on the issue of no action is taken. Should the Commission with particular reference to the significant hazards consideration. The take this action, it will publish in the following factors: (1) the nature of the final determination will serve to decide Federal Register a notice of issuance petitioner’s right under the Act to be when the hearing is held. and provide for opportunity for a made a party to the proceeding; (2) the hearing after issuance. The Commission nature and extent of the petitioner’s If the final determination is that the expects that the need to take this action property, financial, or other interest in amendment request involves no will occur very infrequently. the proceeding; and (3) the possible significant hazards consideration, the Written comments may be submitted effect of any order which may be Commission may issue the amendment by mail to the Chief, Rules and entered in the proceeding on the and make it immediately effective, Directives Branch, Division of Freedom petitioner’s interest. The petition should notwithstanding the request for a of Information and Publications also identify the specific aspect(s) of the hearing. Any hearing held would take Services, Office of Administration, U.S. subject matter of the proceeding as to place after issuance of the amendment. Nuclear Regulatory Commission, which petitioner wishes to intervene. If the final determination is that the Washington, DC 20555-0001, and Any person who has filed a petition for amendment request involves a should cite the publication date and leave to intervene or who has been significant hazards consideration, any page number of this Federal Register admitted as a party may amend the notice. Written comments may also be petition without requesting leave of the hearing held would take place before delivered to Room 6D22, Two White Board up to 15 days prior to the first the issuance of any amendment. Flint North, 11545 Rockville Pike, prehearing conference scheduled in the A request for a hearing or a petition Rockville, Maryland from 7:30 a.m. to proceeding, but such an amended for leave to intervene must be filed with 4:15 p.m. Federal workdays. Copies of petition must satisfy the specificity the Secretary of the Commission, U.S. written comments received may be requirements described above. Nuclear Regulatory Commission, examined at the NRC Public Document Not later than 15 days prior to the first Washington, DC 20555-0001, Attention: Room, the Gelman Building, 2120 L prehearing conference scheduled in the Rulemakings and Adjudications Staff, or Street, NW., Washington, DC. The filing proceeding, a petitioner shall file a may be delivered to the Commission’s of requests for a hearing and petitions supplement to the petition to intervene Public Document Room, the Gelman for leave to intervene is discussed which must include a list of the Building, 2120 L Street, NW., below. contentions which are sought to be Washington DC, by the above date. A By December 19, 1997, the licensee litigated in the matter. Each contention copy of the petition should also be sent may file a request for a hearing with must consist of a specific statement of to the Office of the General Counsel, respect to issuance of the amendment to the issue of law or fact to be raised or the subject facility operating license and controverted. In addition, the petitioner U.S. Nuclear Regulatory Commission, any person whose interest may be shall provide a brief explanation of the Washington, DC 20555-0001, and to the affected by this proceeding and who bases of the contention and a concise attorney for the licensee. wishes to participate as a party in the statement of the alleged facts or expert Nontimely filings of petitions for proceeding must file a written request opinion which support the contention leave to intervene, amended petitions, for a hearing and a petition for leave to and on which the petitioner intends to supplemental petitions and/or requests intervene. Requests for a hearing and a rely in proving the contention at the for a hearing will not be entertained petition for leave to intervene shall be hearing. The petitioner must also absent a determination by the filed in accordance with the provide references to those specific Commission, the presiding officer or the Commission’s ‘‘Rules of Practice for sources and documents of which the Atomic Safety and Licensing Board that Domestic Licensing Proceedings’’ in 10 petitioner is aware and on which the the petition and/or request should be CFR Part 2. Interested persons should petitioner intends to rely to establish granted based upon a balancing of consult a current copy of 10 CFR 2.714 those facts or expert opinion. Petitioner factors specified in 10 CFR which is available at the Commission’s must provide sufficient information to 2.714(a)(1)(i)-(v) and 2.714(d). Public Document Room, the Gelman show that a genuine dispute exists with Building, 2120 L Street, NW., the applicant on a material issue of law For further details with respect to this Washington, DC and at the local public or fact. Contentions shall be limited to action, see the application for document room for the particular matters within the scope of the amendment which is available for facility involved. If a request for a amendment under consideration. The public inspection at the Commission’s hearing or petition for leave to intervene contention must be one which, if Public Document Room, the Gelman is filed by the above date, the proven, would entitle the petitioner to Building, 2120 L Street, NW., Commission or an Atomic Safety and relief. A petitioner who fails to file such Washington, DC, and at the local public Licensing Board, designated by the a supplement which satisfies these document room for the particular Commission or by the Chairman of the requirements with respect to at least one facility involved. 61838 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Baltimore Gas and Electric Company, The degraded (transient) voltage setpoint is emergency busses during loss of voltage or Docket Nos. 50-317 and 50-318, Calvert being changed from 3628 [plus or minus] 25 degraded voltage conditions. The relays also Cliffs Nuclear Power Plant, Unit Nos. 1 Volts to 3710 [plus or minus] 80 Volts. Based ensure the EDGs are started and loaded. and 2, Calvert County, Maryland on the most recent calculations, a minimum Ultimately, these actions ensure the minimal voltage of 3630 Volts is required to ensure at terminal voltage necessary to start and run all Date of amendments request: October least 75 percent of the nominal voltage is safety-related electrical equipment is 22, 1997 available to No. 13 Charging Pump, which is maintained. The proposed changes revise the Description of amendments request: the most limiting electrical load. current degraded voltage setpoint and adds The proposed amendment incorporates The new steady state degraded voltage an additional steady state undervoltage both steady state and transient degraded relay setpoint will be established at 3900 requirement. Additionally, the acceptable [plus or minus] 80 Volts. The setpoint voltage setpoints into Technical voltage range during EDG surveillance testing ensures that there is at least 90 percent of is being decreased to ensure actuation of the Specifications, as opposed to the current nominal voltage available to No. 13 Charging steady state degraded voltage relays does not single degraded voltage setpoint. The Pump. The time delay associated with this occur during proposed changes ensure adequate actuation is 101 [plus or minus] 3.5 seconds. EDG testing, and to ensure the 4 kV motors terminal voltage to all safety-related The time delay provides adequate time for are operated within their rated voltage range. equipment during steady state and the voltage regulator to recover bus voltage Because the proposed changes ultimately transient voltage conditions. following a voltage swing on the 500 kV ensure adequate terminal voltage to all Additionally, the 4 kV voltage range system and time for the EDG voltage safety-related electrical equipment during regulator to stabilize. The steady state transient and steady state undervoltage required during testing of the emergency degraded voltage relays will be tested in the diesel generators (EDGs) will be conditions, the safety function of the same manner, and at the same frequency, as degraded voltage relays, as well as the margin decreased to ensure the new steady state the loss of voltage and transient degraded of safety afforded by these relays is degraded voltage relays are not actuated voltage relays. unchanged. during testing and to ensure the 4 kV The required voltage range during EDG Therefore, the changes do not involve a motors are operated within their voltage surveillance testing is being revised from significant reduction in the margin of safety. rating. 4160 [plus or minus] 420 Volts to 4160 +240, The NRC staff has reviewed the Basis for proposed no significant -100 Volts. The surveillance requirement licensee’s analysis and, based on this hazards consideration determination: verifies that the EDG voltage regulator is maintaining an acceptable voltage. The review, it appears that the three As required by 10 CFR 50.91(a), the new value ensures the 4 kV motors are standards of 50.92(c) are satisfied. licensee has provided its analysis of the operated within their rated voltage and Therefore, the NRC staff proposes to issue of no significant hazards prevents actuation of the steady state determine that the amendments request consideration, which is presented degraded voltage relay during surveillance involves no significant hazards below: testing. consideration. 1. Would not involve a significant increase The degraded voltage relays are not Local Public Document Room in the probability or consequences of an initiators in any previously evaluated location: Calvert County Library, Prince accident previously evaluated. accidents. Additionally, decreasing the Frederick, Maryland 20678 The proposed changes revise the current acceptable voltage range during EDG testing Attorney for licensee: Jay E. Silbert, degraded voltage setpoint and adds an does not affect the initiation of any additional steady state undervoltage previously analyzed accidents. Therefore, the Esquire, Shaw, Pittman, Potts and requirement to Unit 1 and 2 Technical proposed changes do not involve an increase Trowbridge, 2300 N Street, NW., Specifications. The current degraded voltage in the probability or consequences of an Washington, DC 20037 relays will be referred to as accident previously analyzed. NRC Project Director: S. Singh Bajwa, ≥transient degraded voltage relays.’’ The 2. Would not create the possibility of a new Director new settings allow for calibration tolerances, or different type of accident from any potential transformer correction factors, test accident previously evaluated. Carolina Power & Light Company, equipment uncertainties, and relay drift. The The license amendment request revises the Docket No. 50-261, H. B. Robinson nominal settings account for the above current degraded voltage setpoint and adds Steam Electric Plant, Unit No. 2, factors, plus additional margin to the an additional steady state degraded voltage Darlington County, South Carolina analytical limit. The acceptable voltage range requirement. Additionally, the acceptable during EDG surveillance testing is also being voltage range during EDG surveillance testing Date of amendment request: October decreased. The setpoint and time delay is being decreased. The proposed changes 2, 1997 associated with the 4 kV bus loss of voltage ensure adequate starting and running Description of amendment request: relays is unaffected by this amendment terminal voltage to all safety-related electrical The proposed amendment would request. equipment during steady state and transient address an unreviewed safety question The accident analyses credit the loading of degraded voltage conditions. The addition of associated with the analysis of a fuel the EDGs based on loss of offsite power. The the steady state degraded voltage relays handling accident in the Fuel Storage 4 kV emergency bus loss of voltage and provide an extra scheme of protection against Building as described in Section 15.7.4, degraded voltage relays initiate starting and sustained degraded voltage conditions. The ‘‘Design Basis Fuel Handling loading of the emergency diesel generators facility currently relies upon degraded (EDGs) when the preferred power source voltage relays to start and load the EDGs and Accidents,’’ of the H.B. Robinson Steam voltage is lost or drops below a to disconnect the preferred power source Electric Plant (HBR) Updated Final predetermined value. The relays also initiate from the 4 kV emergency busses. Therefore, Safety Analysis Report (UFSAR). disconnection of the preferred power source revising the relay setpoint, adding additional Carolina Power & Light Company (the from the 4 kV emergency busses. These steady state degraded voltage protection, and licensee) determined that an assumption actions ensure adequate terminal voltage to decreasing the acceptable voltage range used in the accident analysis for depth all safety-related electrical equipment during EDG testing does not create the of water above the top of irradiated fuel required to support accident mitigation. The possibility of a new or different type of in the spent fuel pit was non- required voltage necessary to ensure safety- accident from any accident previously conservative. The accident analysis related motors are capable of starting is 75 evaluated. percent of nominal rated equipment voltage. 3. Would not involve a significant assumed a depth of 23 feet instead of The required voltage necessary to ensure reduction in a margin of safety. the correct value of 21 feet. The licensee these motors continue running for extended The safety function of the degraded voltage has submitted a revised accident periods is 90 percent of nominal rated relays is to ensure that the preferred power analysis using the correct assumption equipment voltage. source is disconnected from the 4 kV and has proposed that the UFSAR be Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61839 changed to incorporate the results of the 147 West College Avenue, Hartsville, evaluated is not increased by this proposed revised analysis. South Carolina 29550 amendment which incorporates the Basis for proposed no significant Attorney for licensee: R. E. Jones, requirements of Section 3.10.1 of NUREG- hazards determination: As required by General Counsel, Carolina Power & 1433. In addition, the proposed limiting 10 CFR 50.91(a), the licensee has Light Company, Post Office Box 1551, conditions for operation and surveillance requirements for the proposed amendment provided its analysis of the issue of no Raleigh, North Carolina 27602 ensure a level of equipment operability significant hazards consideration, which NRC Project Director: James E. sufficient to mitigate any operational is presented below: LyonsCommonwealth Edison Company, occurrences which could occur while 1. Does the change involve a significant Docket Nos. 50-237 and 50-249, Dresden operating under this Special Test Exception. increase in the probability or consequences Nuclear Power Station, Units 2 and 3, Furthermore, any operational occurrence of an accident previously evaluated? Grundy County, Illinois Docket Nos. 50- postulated during operation under this The proposed change to the UFSAR is to 254 and 50-265, Quad Cities Nuclear Special Test Exception is bounded by the change assumptions associated with the Power Station, Units 1 and 2, Rock Design Basis Accidents. Therefore, the evaluation of a fuel handling accident in the proposed amendment does not increase the Fuel Storage Building. The change in Island County, Illinois Date of consequences of nay accident previously assumptions is to reduce the application for amendment request: evaluated. decontamination factor associated with the September 30, 1997 There is no change to the consequences of removal of elemental iodine from the spent Description of amendment request: an accident previously evaluated because fuel pool water. Because the decontamination This request changes the Technical Pressure Testing Operations does not factor for elemental iodine is reduced, the Specifications (TS) by adding a new adversely affect either the on-site or off-site consequences of a fuel handling accident in Section 3/4.12.C, ‘‘Inservice Leak and does consequences resulting from an the Fuel Storage Building is [sic] increased. Hydrostatic Testing Operation,’’ to accident. In addition, Pressure Testing However, because the radiological Operations is not an accident initiator. As consequences remain well within the allow certain reactor coolant pressure tests to be performed in MODE 4 when such, there is no adverse impact on the exposure guideline values of 10 CFR 100, probability of accident initiators. Thus, there paragraph 11 (i.e., 25% or less of the values), the metallurgical characteristics of the is no significant increase in the probability of the increase in consequences is not reactor pressure vessel require the any previously analyzed accident. significant. The change in assumptions for pressure testing at or approaching 2) Create the possibility of a new or the fuel handling accident in the Fuel Storage temperatures ≤212°F, which normally different kind of accident from any accident Building do [sic] not affect operation, previously evaluated because: maintenance, or design of equipment correspond with MODE 3. The proposed amendment represents the associated with the handling of fuel in the Basis for proposed no significant conversion of current Technical Specification Fuel Storage Building, therefore, the hazards determination: As required by requirements to maintain consistency with probability of a fuel handling accident as 10 CFR 50.91(a), the licensee has previously evaluated is not changed. provided its analysis of the issue of no those requirements specified in Section 3.10.1 of NUREG-1433. The proposed 2. Does the change create the possibility of significant hazards consideration, which a new or different kind of accident from any changes are consistent with the current plant is presented below: 1) Involve a safety analyses. These proposed changes do accident previously evaluated? significant increase in the probability or The proposed change does not involve any not involve revisions to the design of the physical alteration of plant systems, consequences of an accident previously station. In addition, the proposed limiting structures or components, changes in evaluated because of the following: conditions for operation and surveillance parameters governing normal plant The proposed amendment represents the requirements for the proposed amendment operation, or methods of operation. The addition of a Special Test Exception to ensure a level of equipment operability proposed change does not introduce a new perform Pressure Testing Operations sufficient to mitigate any operational mode of operation or changes in the method consistent with the requirements of Section occurrences which could occur while of normal plant operation. Therefore, the 3.10.1 of the Improved Standard Technical operating under the Special Test Exception. possibility of a new or different kind of Specifications (NUREG-1433). The proposed Some of the changes may involve revision in accident from any accident previously changes are consistent with the current plant the testing of components at the station; evaluated is not created. safety analyses. Implementation of these however, these are in accordance with the 3. Does this change involve a significant changes will provide continued assurance current plant safety analyses. The proposed reduction in a margin of safety? that specified parameters associated with changes will not introduce new failure The proposed change to the UFSAR to Pressure Testing Operations will remain mechanisms beyond those already change the assumptions associated with a within their acceptance limits, and as such, considered In the current plant safety fuel handling accident in the Fuel Storage will not significantly increase the probability analyses. Building is to change the assumption for the or consequences of a previously evaluated The associated systems that affect Pressure decontamination factor for elemental iodine accident. Testing Operations related to the proposed to a smaller value. The new assumption for The proposed changes are based on amendment, are not assumed in any plant elemental iodine decontamination factor requirements specified by Section 3.10.1 of safety analysis to initiate any accident preserves the approximate factor of 24 NUREG-1433. Any such changes are sequence. In addition, the proposed margin between experimental data for consistent with the current plant safety surveillance requirements for any such elemental iodine decontamination factor and analyses and have been determined to affected systems are consistent with the the assumed value provided in NRC Safety represent sufficient requirements for the requirements of Section 3.10.1 of NUREG- Guide 25. Therefore, the change does not assurance and reliability of equipment 1433. Therefore, the possibility of a new or involve a significant reduction in a margin of assumed to operate in the safety analyses, or different kind of accident from any accident safety. provide continued assurance that specified previously evaluated is not created. The NRC staff has reviewed the parameters associated with Pressure Testing 3) Involve a significant reduction in the licensee’s analysis and, based on this Operations remain within their acceptance margin of safety because: review, it appears that the three limits. As such, these changes will not ComEd proposes to revise the Technical standards of 10 CFR 50.92(c) are significantly increase the probability or Specifications to be consistent with those consequences of a previously evaluated provisions specified in Section 3.10.1 of satisfied. Therefore, the NRC staff accident. NUREG-1433. The proposed changes are proposes to determine that the The associated systems affecting Pressure consistent with the current plant safety amendment request involves no Testing Operations related to this proposed analyses. In addition, these proposed changes significant hazards consideration. amendment are not assumed in any analyses do not involve revisions to the design of the Local Public Document Room to initiate any accident sequence; therefore, station. As such, the proposed individual location: Hartsville Memorial Library, the probability of any accident previously changes will maintain the same level of 61840 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices reliability of the equipment associated with 1) Involve a significant increase in the No new plant equipment is being installed, Pressure Testing Operations, assumed to probability or consequences of an accident and use of currently installed plant operate in the plant safety analysis, or previously evaluated because: equipment is not affected by this proposed provide continued assurance that specified a. Drywell and Suppression Chamber Purge change. The proposed revision to TS 3.6.1.8 parameters affecting, will remain within their System provides additional limitations on the acceptance limits. Therefore, the proposed The purpose of the drywell and opening of the drywell and suppression changes provide continued assurance of suppression chamber purge system isolation chamber purge system isolation valves. Pressure Testing Operations without valves is to mitigate the consequences of a b. Ventilation Filter Testing Program adversely affecting the public health and design bases accident. Operation of these No new plant equipment is being installed, safety and as such, will not significantly valves will have no effect on the probability and use of currently installed plant reduce existing plant safety margins. of a design bases accident occurring. equipment is not affected by this proposed The proposed amendment to the Technical The current TS 3.6.1.8 allows for the change. These proposed revisions will Specifications implements present drywell and suppression chamber purge demonstrate operability of the Control Room requirements, or the requirements in system isolation valves to be open and AEER Emergency Filtration System using simultaneously. In this condition, accordance with the guidelines set forth in the latest industry standards. containment pressure and offsite dose during Section 3.10.1 of NUREG-1433. The proposed c. Other Control Room and Auxiliary design bases accidents would be greater than changes have been evaluated and found to be Electric Equipment Room Emergency acceptable for use at the stations based on previously evaluated. The proposed revision to TS 3.6.1.8 would prevent the simultaneous Filtration System Changes system design, safety analysis requirements, No new plant equipment is being installed, and operational performance. Since the opening of the drywell and suppression chamber purge system isolation valves thus and use of currently installed plant proposed changes are based on NRC accepted assuring that the consequences of design equipment is not affected by this proposed provisions that are applicable at the stations bases accidents previously evaluated are still change. These proposed revisions will and maintain necessary levels of system or bounding. demonstrate habitability of the AEER by component reliability affecting Pressure b. Ventilation Filter Testing Program imposing operability requirements on the Testing Operations, the proposed changes do The SBGTS [Standby Gas Treatment AEER recirculation filter units. not involve a significant reduction in the System] and Control Room and AEER d. Editorial Changes margin of safety. [Auxiliary Electric Equipment Room] The proposed revisions to TS 6.2.F.7 The NRC staff has reviewed the Emergency Filtration Systems are designed to reformat the requirement to establish licensee’s analysis and, based on this mitigate the radiological consequences of consistency with the remainder of TS 6.2.F. review, it appears that the three previously evaluated design bases accidents. There are no technical changes being standards of 10 CFR 50.92 are satisfied. Operation and testing of these systems will proposed. Therefore, the NRC staff proposes to have no effect on the probability of a design Based upon the above, the proposed bases accident occurring. determine that the amendment request change will not create the possibility of a The proposed revisions associated with new or different kind of accident or transient involves no significant hazards this change relocate the requirements for previously evaluated. consideration. SBGTS and Control Room and AEER 3) Involve a significant reduction in the Local Public Document Room Emergency Filtration System filter testing margin of safety because: location: for Dresden, Morris Area from the current TS SRs to a new TS a. Drywell and Suppression Chamber Purge Public Library District, 604 Liberty administrative control program. The testing System Street, Morris, Illinois 60450; for Quad requirements are being upgraded to the latest The current TS 3.6.1.8 requirements are industry standards. Filter testing in non-conservative with respect to the Cities, Dixon Public Library, 221 accordance with the proposed program will Hennepin Avenue, Dixon, Illinois 61021 assumptions used when evaluating steam ensure that Title 10, Code of Federal bypass of the suppression chamber; Attorney for licensee: Michael I. Regulations, Part 50 (10 CFR 50), Appendix specifically, a maximum allowable leakage Miller, Esquire; Sidle and Austin, One A, General Design Criteria (GDC) 19 and 10 area of 0.03 square feet with the only credible First National Plaza, Chicago, Illinois CFR 100 limits are not exceeded. leakage path was assumed to be suppression 60603 c. Other Control Room and Auxiliary chamber vacuum breaker valve seat leakage. Electric Equipment Room Emergency This proposed revision to TS 3.6.1.8 will NRC Project Director: Robert A. Capra Filtration System Changes make the TS requirements consistent with The SBGTS and Control Room and AEER Commonwealth Edison Company, those assumptions. Emergency Filtration System are designed to Docket Nos. 50-373 and 50-374, LaSalle b. Ventilation Filter Testing Program mitigate the radiological consequences of These proposed revisions will ensure County Station, Units 1 and 2, LaSalle previously evaluated design bases accidents. County, Illinois Operation and testing of these systems will operability of the Control Room and Auxiliary Electric Equipment Room (AEER) Date of amendment request: have no effect on the probability of a design bases accident occurring. Emergency Filtration system using the latest September 26, 1997 The proposed revisions associated with industry standards. Filter testing in Description of amendment request: this change acknowledge that the AEERs are accordance with the proposed program will The proposed amendments would required to be habitable during design bases ensure that GDC 19 and 10 CFR 100 limits revise the Technical Specifications to accidents. This is consistent with the are not exceeded. (1) prohibit the simultaneous opening of plant—s design bases. c. Other Control Room and Auxiliary d. Editorial Changes Electric Equipment Room Emergency the drywell and suppression chamber Filtration System Changes purge system isolation valves, (2) The proposed revisions to TS 6.2.F.7 reformat the requirement to establish These proposed revisions will ensure upgrade the ventilation filter testing consistency with the remainder of TS 6.2.F. operably of the control room and AEER program to the latest industry standards, There are no technical changes being Emergency Filtration System by and (3) specify that the auxiliary electric proposed. demonstrating system performance with the equipment room is required to be Based upon the above, the proposed control room and AEER recirculation filter habitable during design bases accidents. amendment will not increase the probability units to ensure GDC 19 limits are not Basis for proposed no significant or consequences of any accident previously exceeded. d. Editorial Changes hazards determination: As required by evaluated. 2) Create the possibility of a new or The proposed revisions to TS 6.2.F.7 10 CFR 50.91(a), the licensee has different kind of accident from any accident reformat the requirement to establish provided its analysis of the issue of no previously evaluated because: consistency with the remainder of TS 6.2.F. significant hazards consideration, which a. Drywell and Suppression Chamber Purge There are no technical changes being is presented below: System proposed. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61841

Based on the above, the proposed TS evaluated, because this detail in the TS does delete all references to the steam line change does not involve a significant not change the requirement of performing a low pressure safety injection function. reduction in the margin of safety. channel calibration at the specified Basis for proposed no significant The NRC staff has reviewed the frequency. In addition, the ability to monitor hazards determination: As required by licensee’s analysis and, based on this hydrogen during an accident will not be 10 CFR 50.91(a), the licensee has review, it appears that the three affected by deletion of the footnote. Therefore, this change does not involve an provided its analysis of the issue of no standards of 10 CFR 50.92(c) are significant hazards consideration, which satisfied. Therefore, the NRC staff increase in the probability or consequences of an accident previously evaluated. is presented below: proposes to determine that the 2) Create the possibility of a new or 1. Involve a significant increase in the requested amendments involve no different kind of accident from any accident probability or consequences of an accident significant hazards consideration. previously evaluated because: previously evaluated? Local Public Document Room This is monitoring instrumentation only. Answer location:Jacobs Memorial Library, Deletion of the footnote concerning specifics Probability Illinois Valley Community College, on how to calibrate this instrumentation will Accident initiators can affect the Oglesby, Illinois 61348 not affect the reliability or failure modes of probability of a previously evaluated Attorney for licensee: Michael I. the drywell hydrogen concentration analyzer accident. The addition of a new device or and monitors. Therefore, this change will not piece of equipment to the plant may Miller, Esquire; Sidley and Austin, One introduce a new accident initiator. No new First National Plaza, Chicago, Illinois create the possibility of a new or different kind of accident from any accident equipment is added to the plant as a result 60603 previously evaluated. of this change. The proposed removal of the NRC Project Director: Robert A. Capra 3) Involve a significant reduction in the low steam line steam pressure will involve Commonwealth Edison Company, margin of safety because: removing the steam line pressure safety This is monitoring instrumentation only. injection function. This results in a reduction Docket Nos. 50-373 and 50-374, LaSalle in the likelihood of spurious safety County Station, Units 1 and 2, LaSalle Deletion of the footnote concerning specifics on how to calibrate this instrumentation will injections. Spurious safety injections can County, Illinois not change the requirement to perform result in inadvertent ECCS [emergency core Date of amendment request: October Channel Calibrations at the frequency cooling system] actuations. Inadvertent ECCS 15, 1997 specified in the TS. The details of how to Actuation is a UFSAR [updated Final Safety Description of amendment request: perform a Channel Calibration on the drywell Analysis Report] accident (UFSAR 15.5.1). The proposed amendments would hydrogen concentration analyzer and Therefore, this change will result in a monitors are located in plant procedures and reduction in the probability of an accident revise Technical Specification Table previously evaluated. 4.3.7.5-1, Accident Monitoring are in accordance with vendor recommendations. The TS requirements for Routine plant operating practices and Instrumentation Surveillance redundancy of the instrumentation and the conditions will not be altered by the removal Requirements, by deleting a footnote actions to be taken for inoperable of the safety injection function. Therefore, that provides details concerning the instrumentation are also not affected by the there is no operating practice or condition calibration requirements for the drywell deletion of this footnote. change that could increase the probability of hydrogen concentration analyzer and This change to the level of information occurrence of a previously evaluated monitor. regarding this calibration is consistent with accident. Basis for proposed no significant the detail for this and other instrumentation There is no significant increase in the in NUREG-1434, Revision 1, Standard probability of an accident previously hazards determination: As required by evaluated. 10 CFR 50.91(a), the licensee has Technical Specifications, General Electric Plants, BWR/6. Consequences provided its analysis of the issue of no Therefore, deletion of footnote * from TS Accidents previously evaluated that could significant hazards consideration, which Table 4.3.7.5-1 will not involve a reduction be adversely affected are the steam line break is presented below: in the margin of safety. and the feedwater line break. These accidents 1) Involve a significant increase in the The NRC staff has reviewed the will result in secondary side depressurization probability or consequences of an accident licensee’s analysis and, based on this with pressure reaching the current actuation previously evaluated because: setpoint. The review of these accidents found The drywell hydrogen concentration review, it appears that the three that the consequences of the previous analyzer and monitors are required to be standards of 10 CFR 50.92(c) are accident analysis acceptance criteria remain operable by TS 3/4.7.5, Accident Monitoring satisfied. Therefore, the NRC staff satisfied. The specifics of the accident Instrumentation. Table 4.3.7.5-1, Accident proposes to determine that the analysis is discussed below. Monitoring Instrumentation Surveillance requested amendments involve no The steam line break accident was Requirements, includes a footnote providing significant hazards consideration. analyzed to demonstrate short term cooling unnecessary details related to the calibration Local Public Document Room capability. A spectrum of break sizes were of this specific analyzer and monitors. The location:Jacobs Memorial Library, evaluated to determine the limiting break footnote provides information that was Illinois Valley Community College, size. For smaller breaks (including the determined to put the hydrogen analyzers limiting break size), the safety injection and monitors outside of the design basis by Oglesby, Illinois 61348 actuation on low pressurizer pressure occurs limiting the range of the indication to 0% to Attorney for licensee: Michael I. prior to low steam line pressure safety 4% hydrogen in the drywell. The calibration Miller, Esquire; Sidley and Austin, One injection. However, for larger steam line method is being corrected to provide the First National Plaza, Chicago, Illinois breaks the setpoint for low steam line correct range of 0% to 10%, and requires this 60603 pressure safety injection is reached prior to note in the TS to be changed or deleted. The NRC Project Director: Robert A. Capra low pressurizer pressure safety injection. The footnote is proposed to be deleted from the larger spectrum of breaks were analyzed TS, because it provides unnecessary detail. Duke Energy Corporation, Docket Nos. without credit for the low steam line pressure Deletion of the footnote will not cause an 50-369 and 50-370, McGuire Nuclear safety injection. The results of this analysis increase in the probability of an accident, Station, Units 1 and 2, Mecklenburg found that there would be a slight increase because this instrumentation is only for County, North Carolina in time required for safety injection to accident monitoring instrumentation and actuate. The low pressurizer safety injection thus does not affect accident initiators or Date of amendment request: October would actuate in these accidents due to the assumptions. 6, 1997 cooldown and depressurization of the reactor Deletion of the footnote will not change the Description of amendment request: coolant system in response to the secondary consequences of an accident previously The proposed amendments would side energy removal. The Departure from 61842 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Nucleate Boiling Ratios (DNBRs) were There is no introduction of new equipment Description of amendment request: analyzed with this time delay in safety or operating practices that could result in a The proposed amendment would affect injection. The DNBRs for these cases were new operating condition. The plant will nominal trip setpoints and allowable found to be less limiting than those continue to operate in the same method with values for Reactor Trip System (RTS) calculated for the limiting break size. the same complement of equipment with the Therefore, the removal of steam line low exception of the actuation logic associated Instrumentation Trip Setpoints Table pressure safety injection does not adversely with the steam line low pressure safety 2.2-1, and Engineered Safety Features affect the DNBR, fuel failure or dose injection. Therefore, there is no new Actuation System (ESFAS) consequences of the main steam line break operating condition that would be expected Instrumentation Trip Setpoints Table accident. Other acceptance criteria would not to generate a new sequence of events which 3.3-4. In addition, the proposed be expected to be affected by the small could generate a new or different accident. amendment would (1) decrease the change in timing of the safety injection There is no new equipment that could reactor trip setpoint for the reactor interact with other plant structures, systems signal. coolant pump (RCP) low shaft speed In addition, to the Chapter 15 accident or components. analysis, the Chapter 6 containment response The low pressure safety injection (underspeed trip setpoint) from 95.8 to mass and energy releases was evaluated equipment is the only plant equipment percent to 92.4 percent of rated speed, without credit for steam line low pressure affected by this change. There are no new (2) make editorial changes, and (3) safety injection. The evaluation demonstrated equipment failure modes which might result change the Bases to reflect the new that for steam line breaks inside of in a new or different accident. methodology. Affected accidents were evaluated to containment, the high containment pressure Basis for proposed no significant safety injection set point is reached prior to validate that the accident sequence would the pressure associated with steam line low not deviate in a fashion which would create hazards determination: As required by pressure safety injection. Therefore the a new or different accident. The analysis of 10 CFR 50.91(a), the licensee has existing containment response evaluation is the feedwater line break and steam line break provided its analysis of the issue of no not adversely affected by the removal of the did not reveal any new or different type of significant hazards consideration, which low steam pressure safety injection. This also accident. is presented below: assures that the existing environmental Removal of the low steam line pressure NNECO has reviewed the proposed qualification envelope for McGuire is not safety injection will not create the possibility revision in accordance with 10CFR50.92 and affected by this change. For steam line breaks of a new or different kind of accident from has concluded that the revision does not outside of containment the maximum any accident previously evaluated; involve a significant hazards consideration required breaksize is 1.0 ft2, which results in (OR) (SHC). The basis for this conclusion is that 3. Involve a significant reduction in the transients with safety injection caused by low the three criteria of 10CFR50.92(c) are not margin of safety? pressurizer pressure prior to low steam line satisfied. The proposed revision does not Answer pressure safety injection. involve [an] SHC because the revision would The margin of safety relevant to this The feedwater line break accidents were not: change is represented by the margin of analyzed to demonstrate long term core physical protection provided by fuel 1. Involve a significant increase in the cooling capability. During a feedwater line cladding and the reactor containment. Effects probability or consequence of an accident break, the secondary system will of this change on the safety analysis was previously evaluated. depressurize if the break occurs between the described under question 1 above. The The proposed changes to Tables 2.2-1 and main feedwater check valve and the steam results of the analysis demonstrate that 3.3-4 involve changes from a five column generator. However, breaks are only required DNBR, fuel clad integrity and containment format to a two column format. The RTS trip to occur at the terminal ends of feedwater response were not significantly affected by setpoints and ESFAS trip setpoints remain piping (i.e., at the feedwater pump or at the the removal of low steam line pressure safety unchanged with the exception of the RCP steam generator). For a feedwater line break injection. Therefore, the physical protection low shaft speed trip setpoint discussed at the main feedwater pump, the main feed provide[d] by the fuel cladding and reactor below. Detailed operability criteria will be check valve will prevent depressurization of containment were not affected by this moved to surveillance procedures and the steam generator. For a feedwater line change. Accident acceptance criteria analysis has demonstrated that an adequate break at the steam generator, a safety continued to be met without credit for the margin for normal trip setpoints exist and injection on high containment pressure will safety function. The radiological safety analysis limits are preserved in all occur prior to safety injection on steam consequences of accidents was not affected RTS/ESFAS functions. pressure. Therefore, the elimination of the by the change. Changing the RCP low shaft speed trip steam line low pressure safety injection does The removal of the low steam line pressure setpoint will not change the probability of not adversely impact the feedwater line break safety injection did not significantly reduce occurrence of the event. The existing accident. the margin of safety. accident analysis (Millstone Unit No. 3 FSAR In summary, a review was conducted of all The NRC staff has reviewed the [final safety analysis report] section 15.3.2) of design basis accidents to identify those licensee’s analysis and, based on this the complete loss of forced reactor coolant which result in a low steam pressure safety review, it appears that the three flow remains valid for the proposed change. injection. These accidents were then standards of 10 CFR 50.92(c) are Therefore, the change to the RCP low shaft evaluated to verify that the accident analysis speed trip setpoint does not increase the were within acceptance criteria. This review satisfied. Therefore, the NRC staff probability or consequences of any revealed that all accident analysis results proposes to determine that the previously analyzed accident. were within current analysis acceptance amendment request involves no In addition, the proposed changes to criteria. significant hazards consideration. Tables 2.2-1 and 3.3-4 do not alter the intent Therefore, there is no significant increase Local Public Document Room or method by which the surveillances are in the consequences of a previously location: J. Murrey Atkins Library, conducted. Therefore, the scope of evaluation evaluated accident. University of North Carolina at performed gives reasonable assurance that Conclusion Charlotte, 9201 University City there will not be an adverse impact on the Elimination of the low steam line pressure Boulevard, North Carolina consequences or the probability of any safety injection results in no significant previously analyzed accident. increase in the probability or consequences Northeast Nuclear Energy Company Therefore, the proposed revision does not of an accident previously evaluated. (NNECO), et al., Docket No. 50-423, involve a significant increase in the (OR) Millstone Nuclear Power Station, Unit probability or consequence of an accident 2. Create the possibility of a new or No. 3, New London County, Connecticut previously evaluated. different kind of accident from any accident 2. Create the possibility of a new or previously evaluated[?] Date of amendment request: October different kind of accident from any accident Answer 15, 1997 previously evaluated. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61843

The existing design basis adequately covers Description of amendment requests: probability of an accident previously the plant response with the proposed change The proposed amendments would evaluated. to the RCP low shaft speed trip setpoint. The revise the combined Technical Consequences change does not introduce new failure Specifications (TS) for the Diablo The consequences of an SGTR event are modes. affected by the primary-to-secondary leakage The proposed changes to Tables 2.2-1 and Canyon Power Plant Unit Nos. 1 and 2 flow during the event. Primary-to-secondary 3.3-4 do not modify the design or operation to revise TS 3/4.4.5 and 3.4.6.2, leakage flow through a postulated broken of any plant system. The proposed changes including associated Bases 3/4.4.5 and tube is not affected by the proposed change do not alter the intent or method by which 3/4.4.6.2, to allow the implementation since the tubesheet enhances the tube the surveillances are conducted, other than of steam generator (SG) tube alternate integrity in the region of the WEXTEX adjusting the allowable values to reflect repair criteria for axial indications in expansion by precluding tube deformation historical instrument performance data. the Westinghouse explosive tube beyond its initial expanded outside diameter. Therefore, the proposed revision does not The resistance to both tube rupture and expansion (WEXTEX) region below the collapse is strengthened by the tubesheet in create the possibility of a new or different top of the tubesheet and below the kind of accident from any accident that region. At normal operating pressures, previously evaluated. bottom of the WEXTEX transition that leakage from primary water stress corrosion 3. Involve a significant reduction in a may exceed the current TS depth-based cracking (PWSCC) in the W* length is limited margin of safety. plugging limit. The allowed primary-to- by both the tube-to-tubesheet crevice and the The proposed changes to Tables 2.2-1 and secondary operational leakage from any limited crack opening permitted by the 3.3-4 modify the existing five column format one SG would be reduced from 500 gpd tubesheet constraint. Consequently, negligible normal operating leakage is to a two column format to show the RTS and to 150 gpd. expected from cracks within the tubesheet ESFAS nominal trip setpoints and the Basis for proposed no significant region. process rack bistable allowable values for hazards determination: As required by SLB leakage is limited by leakage flow individual functions. Detailed operability 10 CFR 50.91(a), the licensee has restrictions resulting from the crack and tube- criteria will be moved to the surveillance provided its analysis of the issue of no to-tubesheet contact pressures that provide a procedures. With the exception of the low restricted leakage path above the indications shaft speed trip discussed below, the RTS significant hazards consideration, which is presented below: and also limit the degree of crack face and ESFAS setpoints remain unchanged and opening compared to free span indications. analysis has demonstrated that an adequate 1. The proposed change does not involve a significant increase in the probability or The total leakage, that is, the combined margin for normal trip setpoints exist and leakage for all such tubes, plus the combined consequences of an accident previously safety analysis limits are preserved in all leakage developed by any other ARC, must be evaluated. RTS/ESFAS functions. below the maximum allowable SLB leak rate Probability Since the safety limits of the design are limit, such that off-site doses are maintained Of the various accidents previously still met, the proposed change to the RCP low less than 10 CFR 100 guideline values. evaluated, the proposed changes only affect shaft speed trip setpoint does not reduce the Therefore, based on the above evaluation, margin of safety. the steam generator tube rupture (SGTR) the proposed changes do not involve a Therefore, the proposed revision does not event evaluation and the postulated steam significant increase in the consequences of an involve a significant reduction in a margin of line break (SLB) accident evaluation. Loss-of- accident previously evaluated. safety. coolant accident (LOCA) conditions cause a 2. The proposed change does not create the In conclusion, based on the information compressive axial load to act on the tube. possibility of a new or different kind of provided, it is determined that the proposed Therefore, since the LOCA tends to force the accident from any accident previously revision does not involve an SHC. tube into the tubesheet rather than pull it out, evaluated. The NRC staff has reviewed the it is not a factor in this amendment request. The proposed changes do not introduce Another faulted load consideration is a safe licensee’s analysis and, based on this any changes or mechanisms that create the shutdown earthquake (SSE); however, the possibility of a new or different kind of review, it appears that the three seismic analysis of Series 51 steam generators standards of 10 CFR 50.92(c) are accident. Tube bundle integrity is expected has shown that axial loading of the tubes is to be maintained for all plant conditions satisfied. Therefore, the NRC staff negligible during an SSE. upon implementation of the proposed steam proposes to determine that the For the SGTR event, the required structural generator alternate tube plugging criteria. amendment request involves no margins of the steam generator tubes will be WCAP-14797, Revision 1, ‘‘Generic W* significant hazards consideration. maintained by the presence of the tubesheet. Tube Plugging Criteria for 51 Series Steam Local Public Document Room Tube rupture is precluded for cracks in the Generator Tubesheet Region WEXTEX Westinghouse explosive tube expansion Expansions,’’ requires that any tubes with location: Learning Resources Center, (WEXTEX) region due to the constraint Three Rivers Community-Technical indications identified using the bobbin coil provided by the tubesheet. Therefore, probe during the bobbin sampling plan also College, 574 New London Turnpike, Regulatory Guide (RG) 1.121, ‘‘Bases for be inspected with the RPC coil throughout Norwich, Connecticut, and the Plugging Degraded PWR Steam Generator the W* length of the tubes. The use of the Waterford Library, ATTN: Vince Tubes,’’ margins against burst are maintained RPC will: (a) identify any new or non- Juliano, 49 Rope Ferry Road, Waterford, for both normal and postulated accident expected degradation mode that may not be Connecticut conditions. identified using the bobbin coil probe, and The W* length supplies the necessary (b) confirm and characterize the bobbin coil Attorney for licensee: Lillian M. resistive force to preclude pullout loads Cuoco, Esq., Senior Nuclear Counsel, indication. under both normal operating and accident These changes do not introduce any new Northeast Utilities Service Company, conditions. The contact pressure results from equipment or any change to existing P.O. Box 270, Hartford, Connecticut the WEXTEX expansion process, thermal equipment. No new effects on existing NRC Deputy Director: Phillip F. McKee expansion mismatch between the tube and equipment are created nor are any new tubesheet and from the differential pressure malfunctions introduced. Pacific Gas and Electric Company, between the primary and secondary side. Therefore, based on the above evaluation, Docket Nos. 50-275 and 50-323, Diablo Therefore, the proposed change results in no the proposed changes do not create the Canyon Nuclear Power Plant, Unit Nos. significant increase in the probability of the possibility of a new or different kind of 1 and 2, San Luis Obispo County, occurrence of an SGTR or SLB accident. 1 accident from any accident previously California The proposed changes do not affect other evaluated. systems, structures, components or 3. The proposed change does not involve Date of amendment requests: March operational features. Therefore, based on the a significant reduction in a margin of safety. 10, 1997, as supplemented by letter above evaluation, the proposed changes do The proposed changes maintain the dated May 20, 1997 not involve a significant increase in the required structural margins of the steam 61844 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices generator tubes for both normal and accident Philadelphia Electric Company, Docket Therefore, the proposed TS change does conditions. RG 1.121 is used as the basis in No. 50-352, Limerick Generating not involve an increase in the probability or the development of the W* alternate tube Station, Unit 1, Montgomery County, consequences of an accident previously plugging criteria for determining that steam Pennsylvania evaluated. generator tube integrity considerations are 2. The proposed TS change does not create maintained within acceptable limits. RG Date of amendment request: October the possibility of a new or different kind of accident from any accident previously 1.121 describes a method acceptable to the 24, 1997 evaluated. NRC staff for meeting General Design Criteria Description of amendment request: The proposed Technical Specifications The Safety Analysis Report (SAR) analyzed 14, 15, 31, and 32 by reducing the probability Control Rod Drop Accident (CRDA) remains and consequences of an SGTR. RG 1.121 (TS) changes would revise TS Section 3/ 4.1.3.6 to exempt control rod 50-27 from the only type of accident initiated (or concludes that by determining the limiting contributed to) by the control rod drive/ safe conditions of tube wall degradation the coupling test for the remainder of control blade interface. The compensatory beyond which tubes with unacceptable Cycle 7. actions to be taken when operating the cracking, as established by inservice Basis for proposed no significant subject blade in a condition not verified to inspection, should be removed from service hazards determination: As required by be coupled assure that no new types of or repaired, the probability and consequences 10 CFR 50.91(a), the licensee has accidents can occur. The subject control of an SGTR are reduced. This RG uses safety provided its analysis of the issue of no blade will be fully inserted below 10% factors on loads for tube burst that are significant hazards consideration, which thermal power where the CRDA is a concern consistent with the requirements of Section is presented below: and will be monitored during drive withdrawal above 10% thermal power to III of the ASME Code. 1. The proposed Technical Specifications assure it is tracking with the drive. Scram For primarily axially oriented cracking (TS) change does not involve a significant performance is not adversely affected by located within the tubesheet, tube burst is increase in the probability or consequences of an accident previously evaluated. The operation from the near full-out position of precluded due to the presence of the probability of occurrence of the analyzed 46. Since no adverse effect on insertion or tubesheet. WCAP-14797 defines a length, Control Rod Drop Accident (CRDA) is not scram performance is expected, the W*, of degradation free expanded tubing that increased by operating with the subject previously analyzed accidents encompass provides the necessary resistance to tube control blade in a condition not known to be any potential consequence of operating with pullout due to the pressure induced forces coupled since the compensatory measures an uncoupled control blade. (with applicable safety factors applied). will assure that the blade will remain fully The compensatory actions to be taken Application of the W* criteria will preclude inserted below 10% rated thermal power when operating the subject blade in a unacceptable primary-to-secondary leakage where the CRDA is a concern. Monitoring of condition not verified to be coupled assure during all plant conditions. The methodology nuclear instrumentation responses in the that no new failure modes are created, and, for determining leakage provides for large vicinity of the blade when the drive is therefore, no new type of equipment margins between calculated and actual withdrawn above 10% power will assure the malfunction is introduced by operating the blade is tracking with the drive with no leakage values in the W* criteria. subject control blade in the proposed potential to stick and then drop. Scram manner. Plugging of the steam generator tubes impact forces from an uncoupled control rod Therefore, the proposed TS change does reduces the reactor coolant flow margin for are of insufficient energy to dislodge the fuel not create the possibility of a new or different core cooling. Implementation of the proposed support (or fuel) or to cause a threat to the kind of accident from any accident changes are expected to result in plugging of pressure boundary integrity. No reduction of previously evaluated. fewer tubes than with the current criteria. system or equipment redundancy is 3. The proposed TS change does not Thus, implementation of the proposed involved. involve a significant reduction in a margin of changes will maintain the margin of flow that The CRDA analyzed in the Safety Analysis safety. may have otherwise been reduced by tube Report (SAR) remains the limiting rod drop Operation with the subject control blade in plugging. accident, and its consequences are unaffected a condition not known to be coupled for the Based on the above, it is concluded that the by operation of the subject blade in the remainder of Cycle 7 at LGS [Limerick proposed manner. Operation of the control proposed changes do not result in a Generating Station] Unit 1, but with the blade as described, i.e., withdrawn no further compensatory actions described below, does significant reduction of margin with respect than the 46 position and in a condition not to plant safety as defined in the FSAR Update not reduce the existing margin of safety known to be coupled, has no adverse effect determined by the analysis of the Control or bases of the plant Technical on scram performance in response to any Rod Drop Accident (CRDA). The CRDA Specifications. other postulated accident. The scram insert analyzed in the Safety Analysis Report (SAR) motion of the rod is not affected by the The NRC staff has reviewed the remains bounding in that the subject rod will potentially uncoupled condition, and since licensee’s analysis and, based on this be fully inserted below 10% rated thermal the rod is already partially inserted at review, it appears that the three position 46, it should have a slightly better power where the CRDA is a concern. Above standards of 50.92(c) are satisfied. negative reactivity insertion characteristic. 10% power, when the associated drive is Therefore, the NRC staff proposes to Therefore, no potential to increase onsite or withdrawn, the nuclear instrumentation in determine that the amendment requests offsite radiological consequences beyond the vicinity of the blade will be monitored to involve no significant hazards those previously analyzed in the SAR is assure the blade tracks with the drive, providing assurance that the position of the consideration. created. Operating the subject control blade in a blade can be ascertained by the drive Local Public Document Room condition not known to be coupled does not position. If the control blade can not be location: California Polytechnic State result in any onsite or offsite radiological verified to have followed the drive, then the University, Robert E. Kennedy Library, consequences different from those previously rod shall be completely inserted and the Government Documents and Maps analyzed in the SAR. The subject control control rod directional valves disarmed in Department, San Luis Obispo, California blade will be fully inserted below 10% accordance with existing TS requirements. To minimize any scram impact loadings, the 93407 thermal power where the CRDA is a concern and will be monitored during drive blade will be operated at the near full-out Attorney for licensee: Christopher J. withdrawal above 10% thermal power to position of 46 except for intermediate Warner, Esq., Pacific Gas and Electric assure it is tracking with the drive. Scram positions temporarily occupied during Company, P.O. Box 7442, San performance is not adversely affected by standard rod withdrawal sequences. Francisco, California 94120 operation from the near full-out position of Operating the subject control blade in the 46. Hence, no new failure modes are created proposed manner will have no adverse effect NRC Project Director: William H. and consequences of any postulated failures on insertion or scram performance of the Bateman are not increased. blade and will preserve the margin of safety. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61845

Therefore, the proposed TS change does been analyzed in Westinghouse WCAP- Therefore, there is no change to the peaking not involve a reduction in a margin of safety. 14672. As provided in WCAP-14672, above factors assumed in the safety analysis. In The NRC staff has reviewed the 85% the allowable misalignment is governed addition to peaking factors, there is no licensee’s analysis and, based on this by the available peaking factor margins as change in any other current limit input into review, it appears that the three determined by flux maps. the safety analysis. As the input, or initial standards of 10 CFR 50.92(c) are [Public Service Electric & Gas] PSE&G is conditions, of the safety analysis have not satisfied. Therefore, the NRC staff simplifying the proposed change by keeping changed, there is no reduction in the margin the currently allowed [plus or minus] 12 step to safety. proposes to determine that the misalignment in Technical Specifications The NRC staff has reviewed the amendment request involves no 3.1.3.1 and 3.1.3.2.1 for reactor power greater significant hazards consideration. licensee’s analysis and, based on this than 85% RTP. review, it appears that the three Local Public Document Room The PSE&G proposed change is to allow location:Pottstown Public Library, 500 [plus or minus] 18 steps misalignments in standards of 10 CFR 50.92(c) are High Street, Pottstown, PA 19464 Technical Specifications 3.1.3.1 and 3.1.3.2.1 satisfied. Therefore, the NRC staff Attorney for licensee: J. W. Durham, for reactor power less than or equal to 85% proposes to determine that the Sr., Esquire, Sr. V. P. and General RTP. As demonstrated in WCAP-14672, for amendment request involves no Counsel, Philadelphia Electric reactor powers less than 85% RTP, the significant hazards consideration. available peaking factor margin increases Company, 2301 Market Street, Local Public Document Room faster than any penalty associated with a location: Salem Free Public Library, 112 Philadelphia, PA 19101 [plus or minus] 18 step misalignment. NRC Project Director: John F. Stolz As described in Section 4.0 of the West Broadway, Salem, NJ 08079 Public Service Electric & Gas Company, Westinghouse WCAP, a conservative penalty Public Service Electric & Gas Company, Docket No. 50-272, Salem Nuclear factor has been applied to the rod insertion Docket No. 50-272, Salem Nuclear allowance (RIA) of the shutdown margin Generating Station, Unit No. 1, Salem Generating Station, Unit No. 1, Salem calculation to account for rods misaligned an County, New Jersey additional [plus or minus] 6 steps (for a total County, New Jersey Date of amendment request: October of [plus or minus] 18 steps). This Date of amendment request: October 6, 1997 conservative penalty factor is applied as part 14, 1997 Description of amendment request: of the reload analysis in order to satisfy Description of amendment request: The amendment to the Technical Technical Specification 3.1.1.1. In addition to the normal, or Condition 1, The proposed amendment will modify Specifications would increase the operational transients, the impacts of the Salem Unit 1 Technical allowable band for control and increased rod misalignment on Condition II, Specification (TS) 3.4.6.3, ‘‘Primary shutdown rod demanded position III and IV accident analysis have also been Coolant System Pressure Isolation versus indicated position from plus or evaluated. The proposed increase in rod Valves Limiting Condition for minus 12 steps to plus or minus 18 misalignment does not have a significant Operation,’’ to be consistent with Salem steps when the power level is not effect on any moderator or Doppler reactivity Unit 2 TSs. greater than 85% rated thermal power. coefficients or defects, boron worth or reactor Basis for proposed no significant kinetics parameters. The amendment is identical to hazards determination: As required by Amendment 183 for Salem Unit 2, To account for the potential increase in ejected rod parameters, conservative penalty 10 CFR 50.91(a), the licensee has which was issued September 10, 1997, factors have been applied to the reload safety provided its analysis of the issue of no as an exigent amendment. evaluation to cover the additional [plus or significant hazards consideration, which Basis for proposed no significant minus] 6 step misalignment. Margin is is presented below: hazards determination: As required by available in the reload safety analysis to 1. The proposed change does not involve 10 CFR 50.91(a), the licensee has accommodate this impact. a significant increase in the probability or provided its analysis of the issue of no Therefore, the proposed amendment does consequences of an accident previously significant hazards consideration, which not increase the probability or consequences evaluated. is presented below: of any accident previously evaluated. The majority of the proposed changes, as 1. The proposed change does not involve 2. The proposed change does not create the described above, are editorial in nature. a significant increase in the probability or possibility of a new or different kind of Rewording, and reformatting the Limiting consequences of an accident previously accident from any accident previously Condition for Operation, including the evaluated. evaluated. surveillance requirements do not involve a The proposed change to the rod 0No new accident scenarios, failure significant increase to the probability or misalignment criteria of [plus or minus] 18 mechanisms or limiting single failures are consequences of an accident. steps for core powers equal to or below 85% introduced as a result of the proposed change Those substantive changes involving the of RATED THERMAL POWER (RTP) does not to the rod misalignment criteria of [plus or addition of (1) new reactor coolant system increase the probability of previously minus] 18 steps below 85% RTP. The pressure isolation valves, (2) providing for a evaluated accidents. Increasing the implementation of the proposed rod shorter test frequency upon entry into Mode magnitude of the allowed control rod misalignment criteria will have no adverse 4, and (3) adding a new surveillance test misalignment is not a contributor to the effect on the performance of any other safety requirement, do not increase the probability mechanistic cause of an accident evaluated related system. Therefore, the proposed or consequences of an accident. These in any accident analysis. The magnitude of amendment does not create the possibility of changes ensure that the system and control rod indicated misalignment is a a new or different kind of accident from any components needed to prevent and minimize parameter used to establish the initial previously evaluated. the effects of inter-system loss of coolant are conditions for accident evaluation. 3. The proposed change does not involve properly identified in the Technical The proposed increase in the allowable rod a significant reduction in a margin of safety. Specifications. misalignment from the current [plus or Operation of the facility in accordance Although pressure isolation valves are minus] 12 steps for reactor powers equal to with the proposed amendment would not being added to the Technical Specification or less than 85% RTP does not involve a involve a significant reduction in the margin table, these valves were already included in significant increase in the consequence of of safety. The Technical Specifications the IST [inservice testing] program as any previously evaluated accident. Rod allowed increase in peaking factors as power pressure isolation valves and were being misalignment affects power distribution, is reduced accommodates the peaking factor tested as such. The proposed changes do not shutdown margin and the ejected rod penalty associated with the additional [plus involve a significant increase in the accident. An extension of the allowable rod or minus] 6 step misalignment for core probability or consequences of an accident misalignment above and below 85% RTP has powers equal to or less than 85% RTP. previously evaluated. 61846 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

2. The proposed change does not create the 10 CFR 50.91(a), the licensee has The Cleveland Electric Illuminating possibility of a new or different kind of provided its analysis of the issue of no Company, Centerior Service Company, accident from any accident previously significant hazards consideration, which Duquesne Light Company, Ohio Edison evaluated. The proposed change, as described above, is presented below: Company, Pennsylvania Power does not physically alter the facility or the 1. The proposed change does not involve Company, Toledo Edison Company, operation of the facility. The majority of the a significant increase in the probability or Docket No. 50-440, Perry Nuclear changes are editorial in nature and provide consequences of an accident previously Power Plant, Unit 1, Lake County, Ohio for improvement in the human factors of the evaluated. Date of amendment request: August Technical Specifications, while properly The requirement for operability of a trip 28, 1997 identifying all the pressure isolation valves and the surveillance requirements to ensure in the Technical Specifications. The addition Description of amendment request: the functionality of the trip are independent The proposed change would revise of valves into the Technical Specification is of the probability of an accident previously an administrative change that improves the Technical Specification 3.4.11, ‘‘Reactor quality of the LCO [limiting condition for evaluated. The accident that this trip is Coolant System (RCS) Pressure and operation], but does not add components to intended to mitigate is the Rod Withdrawal Temperature (P/T) Limits,’’ to the facility. from Subcriticality event. The surveillance incorporate the new P/T curves, which procedure and the requirement for the trip to The proposed changes do not create the were provided by General Electric possibility of a new or different kind of be operational when the Control Rod Drive Nuclear Energy in report number GE- accident from any accident previously System is capable of rod movement mitigate NE-B1301793-01, ‘‘Perry Unit 1 RPV evaluated. the consequences of this event, and do not Surveillance Materials Testing and 3. The proposed change does not involve increase the probability of a rod withdrawal a significant reduction in a margin of safety. from subcritical. Analysis.’’ The margin of safety, as defined in the Basis for proposed no significant Therefore, the probability and bases for any technical specifications, hazards determination: As required by consequences of an accident previously depend upon proper identification of 10 CFR 50.91(a), the licensee has evaluated are not significantly increased. equipment and performance of the proper provided its analysis of the issue of no surveillance requirements to demonstrate 2. The proposed change does not create the equipment operability. The proposed change possibility of a new or different kind of significant hazards consideration which will ensure that the proper valves are accident from any accident previously is presented below: 1. The proposed change does not involve identified and tested in accordance with the evaluated. a significant increase in the probability or Technical Specification requirements. The proposed changes do not involve any The proposed changes do not involve a consequences of an accident previously modifications to existing plant equipment, do significant reduction in a margin of safety. evaluated. The NRC staff has reviewed the not alter the function of any plant systems, The proposed change will provide for licensee’s analysis and, based on this do not introduce any new operating approved P/T limit curves which are valid review, it appears that the three configurations or new modes of plant through 9 effective full-power years (EFPY) and 18 EFPY. This change will not affect any standards of 10 CFR 50.92(c) are operation, or change the safety analyses. The proposed change is intended to ensure that Safety Limits, Power Distribution Limits, or satisfied. Therefore, the NRC staff Limiting Conditions for Operation. The proposes to determine that the the trip function is available and will perform as designed in the event of a proposed changes incorporate operating amendment request involves no limits which provide margin to brittle failure previously evaluated event. significant hazards consideration. of the reactor vessel based on testing of the Local Public Document Room The proposed changes will not create the irradiated reactor vessel materials (base location: Salem Free Public Library, 112 possibility of a new or different kind of metal, weld material, and heat affected zone West Broadway, Salem, NJ 08079 accident from any accident previously material). The limits ensure that adequate Attorney for licensee: Jeffrie J. Keenan, evaluated. safety margins against nonductile or rapidly Esquire, Nuclear Business Unit - N21, 3. The proposed change does not involve propagating failure exist during normal a significant reduction in a margin of safety. operation, anticipated operational P.O. Box 236, Hancocks Bridge, NJ The proposed change does not reduce the occurrences, and system hydrostatic tests. 08038 The specimens have been tested and NRC Project Director: John F. Stolz margin of safety, because assurance of the operability of the trip function is increased analyzed in accordance with 10 CFR 50, Appendices G and H, using the methods Public Service Electric & Gas Company, by the proposed change. described in Generic Letter 88-11 and Based on the above, PSE&G [Public Service Docket Nos. 50-272 and 50-311, Salem Regulatory Guide 1.99 Revision 2. The Nuclear Generating Station, Unit Nos. 1 Electric & Gas Company] has determined that predicted lowest upper shelf energy at 32 and 2, Salem County, New Jersey the proposed changes do not involve a EFPY was greater than the minimum Date of amendment request: October significant hazards consideration. required by 10 CFR 50, Appendix G. The 21, 1997 The NRC staff has reviewed the adjusted reference temperature for the Description of amendment request: licensee’s analysis and, based on this limiting material was lower than the 200 review, it appears that the three degree Fahrenheit limit required by The proposed amendment revises Regulatory Guide 1.99 Revision 2. As such, Technical Specification Tables 3.3-1 standards of 10 CFR 50.92(c) are the integrity of the reactor pressure coolant and 4.3-1 to require that Functional satisfied. Therefore, the NRC staff boundary is maintained. The changes will Unit, ≥2. Power Range, Neutron Flux,’’ proposes to determine that the result in equivalent or more conservative be operable in Mode 3, as well as in amendment request involves no limits on reactor vessel pressure as a function Modes 1 and 2. The change is being significant hazards consideration. of temperature for all operational conditions proposed because the licensee has Local Public Document Room (hydrostatic and leak testing, non-nuclear heatup/cooldown, and core critical determined that the power range location: Salem Free Public library, 112 nuclear instrumentation should be operations). The methodology used to derive West Broadway, Salem, NJ these values produces limits which continue operable in Mode 3 whenever the Attorney for licensee: Jeffrie J. Keenan, to ensure that sufficient margin is maintained reactor trip system breakers are in the to meet the criteria of GDC 31, ‘‘Fracture closed position and the control rods are Esquire, Nuclear Business Unit - N21, P.O. Box 236, Hancocks Bridge, NJ Prevention of Reactor Coolant Pressure capable of being withdrawn. Boundary.’’ There are no plant modifications Basis for proposed no significant 08038 associated with this change and no new or hazards determination: As required by NRC Project Director: John F. Stolz revised system interfaces. The proposed Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61847 changes do not increase the probability of amendment request involves no accident from any accident previously occurrence or consequences previously significant hazards consideration. evaluated because the proposed change does evaluated because the temperature shifts are Local Public Document Room not change the way the plant is operated, and well within equipment operating ranges. As location: Perry Public Library, 3753 no new or different failure modes have been such, there is no increase in the probability Main Street, Perry, OH 44081 defined for any plant system or component of occurrence or the consequences of an important to safety, nor has any limiting accident previously evaluated. Attorney for licensee: Jay Silberg, Esq., single failure been identified as a result of the 2. The proposed change does not create the Shaw, Pittman, Potts & Trowbridge, proposed change. No new or different types possibility of a new or different kind of 2300 N Street, NW., Washington, DC of failures or accident initiators are accident from any accident previously 20037 introduced by the proposed change. evaluated. NRC Project Director: Gail H. Marcus The proposed change to TS 5.2.2.e only The proposed changes do not create the alters the administrative location of and the possibility of a new or different kind of The Cleveland Electric Illuminating regulatory controls applicable to unit staff accident from any accident previously Company, Centerior Service Company, specific overtime limits and working hours. evaluated because the proposed changes do Duquesne Light Company, Ohio Edison Therefore, there is no possibility created for not involve any new modes of operation. The Company, Pennsylvania Power a new or different kind of accident. only change will be operation of the plant Company, Toledo Edison Company, 3. The proposed change does not involve within operating pressure limits which are Docket No. 50-440, Perry Nuclear a significant reduction in a margin of safety. determined in a more conservative manner. Power Plant, Unit 1, Lake County, Ohio The proposed change does not involve a Therefore, no new failure mode or accident reduction in a margin of safety because unit sequence is introduced by this change. Date of amendment request: staff overtime is not an input in the The testing and analysis meets 10 CFR 50, September 8, 1997 calculation of a safety margin with regard to Appendices G and H, requirements; Description of amendment request: Technical Specification Safety Limits, therefore, no new accident types, such as The proposed amendment would revise Limiting Safety System Settings, other brittle fracture of a reactor pressure coolant Technical Specification (TS) 5.2.2.e, Technical Specification Limiting Conditions boundary component is postulated. The ‘‘Organization - Unit Staff,’’ by removing for Operation, the Operational Requirements adjusted reference temperature and upper the reference to the NRC Policy Manual, or other previously defined margins shelf energy predicted at 32 EFPY are well for any structure, system, or component within the limits of 10 CFR 50, Appendices Statement on working hours. important to safety. The proposed change to G and H. Therefore, the possibility of an Administrative procedures will be TS 5.2.2.e only alters the administrative accident of a new or different type than any developed to limit the working hours of location of and the regulatory controls previously evaluated is not created. unit staff who perform safety-related applicable to unit staff specific overtime 3. The proposed change does not involve functions. limits and working hours. a significant reduction in a margin of safety. Basis for proposed no significant The NRC staff has reviewed the The P/T limits are established to provide hazards determination: As required by licensee’s analysis and, based on this acceptable margins for the operation of the 10 CFR 50.91(a), the licensee has review, it appears that the three reactor coolant system during heat up and cool down, criticality, and hydrotest provided its analysis of the issue of no standards of 10 CFR 50.92(c) are conditions. Technical Specification 3.4.11 significant hazards consideration which satisfied. Therefore, the NRC staff limits the rates of change of temperature and is presented below: proposes to determine that the pressure to values consistent with the 1. The proposed change does not involve amendment request involves no fracture toughness requirements of 10 CFR a significant increase in the probability or significant hazards consideration. 50, Appendices G and H, and ASME Boiler consequences of an accident previously Local Public Document Room and Pressure Vessel Code Section III evaluated. location: Perry Public Library, 3753 The proposed change to TS 5.2.2.e only Appendix G. The bases section for Technical Main Street, Perry, OH 44081 Specification 3.4.11 refers to 10 CFR 50, alters the administrative location of and the regulatory controls applicable to unit staff Attorney for licensee: Jay Silberg, Esq., Appendices G and H, and ASME Code Shaw, Pittman, Potts & Trowbridge, Section III Appendix G. Changes in these specific overtime limits and working hours. limits are necessary because the fracture Overtime will remain controlled by plant 2300 N Street, NW., Washington, DC toughness properties of ferritic materials in administrative procedures. Changes to the 20037 the reactor vessel change as a function of relocated overtime limits and working hours NRC Project Director: Gail H. Marcus will be subject to review and evaluation reactor operating time. The specific TU Electric Company, Docket Nos. 50- requirements for fracture toughness and under 10 CFR 50.59, ‘‘Changes, Tests and reactor vessel material surveillance that must Experiments.’’ There is not an increase in the 445 and 50-446, Comanche Peak Steam be considered in developing the P/T limits probability of an accident previously Electric Station, Units 1 and 2, are defined by 10 CFR 50, Appendices G and evaluated because no change is being made Somervell County, Texas to any accident initiator. No previously H. The specific limits defined by 10 CFR 50, Date of amendment request: October Appendices G and H, set the margin of safety analyzed accident scenario is changed, and initiating conditions and assumptions remain 24, 1997 for the reactor pressure vessel coolant Brief description of amendments: boundary. Since the testing and analysis of as previously analyzed. the vessel specimens meet the requirements There is not an increase in the radiological Change to the core safety limit curves and limits defined in 10 CFR 50, Appendices consequences of an accident previously and overtemperature N-16 reactor trip G and H, the margin of safety as defined in evaluated because the proposed change does function setpoints to support operation the basis for Technical Specification 3.4.11 is not affect accident conditions or assumptions with Unit 1, cycle 7 core configuration. not reduced. The revised curves are based on used in evaluating the radiological Basis for proposed no significant the latest NRC guidelines along with actual consequences of an accident. The proposed hazards determination: As required by change does not alter the source term, neutron fluence data for Perry. The new 10 CFR 50.91(a), the licensee has limits conservatively account for irradiation containment isolation, or allowable radiological releases. Therefore, there is no provided its analysis of the issue of no embrittlement effects, thereby maintaining significant hazards consideration, which the margin of safety. increase in the radiological consequences of The NRC staff has reviewed the an accident previously evaluated. is presented below: 1. Do the proposed changes involve a licensee’s analysis and, based on this 2. The proposed change does not create the possibility or a new or different kind of significant increase in the probability or review, it appears that the three accident from any accident previously consequences of an accident previously standards of 10 CFR 50.92(c) are evaluated. evaluated? satisfied. Therefore, the NRC staff The proposed change does not create the A. Revision to the Unit 1 Core Safety proposes to determine that the possibility of a new or different kind of Limits 61848 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Analyses of reactor core safety limits are The proposed changes involve the in Technical Specification Table 2.2-1. required as part of reload calculations for calculation of new reactor core safety limits Meeting the requirements of Technical each cycle. TU Electric has performed the and overtemperature reactor trip setpoint Specification Table 2.2-1 assures that the analyses of the Unit 1, Cycle 7 core resets. As such, the changes play an Overtemperature reactor trip setpoint configuration to determine the reactor core important role in the analysis of postulated assumed in the safety analyses remains valid. safety limits. The methodologies and safety accidents but none of the changes effect plant The CPSES Unit 1, Cycle 7 Overtemperature analysis values result in new operating hardware or the operation of plant systems in reactor trip setpoint is not significantly curves which, in general, permit plant a way that could initiate an accident. different from the previous cycle, and thus operation over a similar range of acceptable Therefore, the proposed changes do not provides operational flexibility to withstand conditions. This change means that if a create the possibility of a new or different mild transients without initiating automatic transient were to occur with the plant kind of accident from any accident protective actions. Although the value of the operating at the limits of the new curve, a previously evaluated. f(deltaI) trip reset function setpoint is different temperature and power level might 3. Do the proposed changes involve a different, the Reactor Trip System be attained than if the plant were operating significant reduction in a margin of safety? instrumentation setpoint values for the within the bounds of the old curves. In reviewing and approving the methods Overtemperature N-16 reactor trip setpoint However, since the new curves were used for safety analyses and calculations, the are consistent with the safety analysis developed using NRC approved NRC has approved the safety analysis limits assumptions which have been analytically methodologies which are wholly consistent which establish the margin of safety to be demonstrated to be adequate to meet the with and do not represent a change in the maintained. While the actual impact on applicable event acceptance criteria. Thus, Technical Specification BASES for safety safety is discussed in response to question 1, there is no reduction in a margin of safety. limits, all applicable postulated transients the impact on margin of safety is discussed Using the NRC approved TU Electric will continue to be properly mitigated. As a below: methods, the reactor core safety limits are result, there will be no significant increase in A. Revision to the Unit 1 Reactor Core determined such that all applicable limits of the consequences, as determined by accident Safety Limits the safety analyses are met. Because the analyses, of any accident previously The NRC-approved TU Electric reload applicable event acceptance criteria continue evaluated. analysis methods have been used to to be met, there is no significant reduction in B. Revision to Unit 1 Overtemperature N- determine new reactor core safety limits. All the margin of safety. 16 Reactor Trip Setpoints applicable safety analysis limits have been As a result of changes discussed, the met. The methods used are wholly consistent The NRC staff has reviewed the Overtemperature reactor trip setpoint has with Technical Specification BASES 2.1 licensee’s analysis and, based on this been recalculated. These trip setpoints help which is the bases for the safety limits. In review, it appears that the three ensure that the core safety limits are particular, the curves assure that for Unit 1, standards of 10 CFR 50.92(c) are protected and that all applicable limits of the Cycle 7, the calculated DNBR is no less than satisfied. Therefore, the NRC staff safety analysis are met. the safety analysis limit and the average proposes to determine that the Based on the calculations performed, no enthalpy at the vessel exit is less than the amendment request involves no significant changes to the safety analysis enthalpy of saturated liquid. The acceptance values for Overtemperature reactor trip criteria remains valid and continues to be significant hazards consideration. setpoint were required. The f(deltaI) trip reset satisfied; therefore, no change in a margin of Local Public Document Room function was revised due to more top-skewed safety occurs. location:University of Texas at axial power distributions predicted for this B. Revision to Unit 1 Overtemperature N- Arlington Library, Government cycle. The analyses performed show that, 16 Reactor Trip Setpoints Publications/Maps, 702 College, P.O. using the TU Electric methodologies, all Because the reactor core safety limits for Box 19497, Arlington, TX 76019 applicable limits of the safety analysis are CPSES Unit 1, Cycle 7 are recalculated, the met. This setpoint provides a trip function Reactor Trip System instrumentation setpoint Attorney for licensee: George L. Edgar, which allows the mitigation of postulated values for the Overtemperature N-16 reactor Esq., Morgan, Lewis and Bockius, 1800 accidents and has no impact on accident trip setpoint which protect the reactor core M Street, N.W., Washington, DC 20036 initiation. Therefore, the changes in safety safety limits must also be recalculated. The analysis values do not involve an increase in Overtemperature N-16 reactor trip setpoint NRC Project Director: James W. the probability of an accident and, based on helps prevent the core and Reactor Coolant Clifford, Acting satisfying all applicable safety analysis System from exceeding their safety limits Previously Published Notices Of limits, there is no significant increase in the during normal operation and design basis Consideration Of Issuance Of consequences of any accident previously anticipated operational occurrences. The evaluated. most relevant design basis analysis in Amendments To Facility Operating In addition, sufficient operating margin has Chapter 15 of the CPSES Final Safety Licenses, Proposed No Significant been maintained in the overtemperature Analysis Report (FSAR) which is affected by Hazards Consideration Determination, setpoint such that the risk of turbine the Overtemperature reactor trip setpoint is And Opportunity For A Hearing runbacks or reactor trips due to upper the Uncontrolled Rod Cluster Control plenum flow anomalies or other operational Assembly Bank Withdrawal at Power (FSAR The following notices were previously transients will be minimized, thereby, Section 15.4.2). This event has been analyzed published as separate individual reducing potential challenges to the plant with the new safety analysis value for the notices. The notice content was the safety systems. Overtemperature reactor trip setpoint to same as above. They were published as SUMMARY demonstrate compliance with event specific individual notices either because time The changes in the amendment request acceptance criteria. Because all event did not allow the Commission to wait applies NRC approved methodologies to acceptance criteria are satisfied, there is no changes in safety analysis values, new core degradation in a margin of safety. for this biweekly notice or because the safety limits and new N-16 setpoint and The nominal Reactor Trip System action involved exigent circumstances. parameter values to assure that all applicable instrumentation setpoints values for the They are repeated here because the safety analysis limits have been met. The Overtemperature N-16 reactor trip setpoint biweekly notice lists all amendments potential for an operational transient to occur (Technical Specification Table 2.2-1) are issued or proposed to be issued has not been affected and there has been no determined based on a statistical involving no significant hazards significant impact on the consequences of combination of all of the uncertainties in the consideration. any accident previously evaluated. channels to arrive at a total uncertainty. The 2. Do the proposed changes create the total uncertainty plus additional margin is For details, see the individual notice possibility of a new or different kind of applied in a conservative direction to the in the Federal Register on the day and accident from any accident previously safety analysis trip setpoint value to arrive at page cited. This notice does not extend evaluated? the nominal and allowable values presented the notice period of the original notice. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61849

Duke Energy Corporation, Docket Nos. Commission’s rules and regulations. conforming changes in the TS Index 50-369 and 50-370, McGuire Nuclear The Commission has made appropriate pages. Station, Units 1 and 2, Mecklenburg findings as required by the Act and the Date of issuance: October 28, 1997 County, North Carolina Commission’s rules and regulations in Effective date: Both units, as of date of issuance, to be implemented within Date of amendment request: October 10 CFR Chapter I, which are set forth in the license amendment. 60 days. 13, 1997 Notice of Consideration of Issuance of Amendment Nos.: 207, 86 Description of amendment request: Amendment to Facility Operating Facility Operating License Nos. DPR- The proposed amendments would License, Proposed No Significant 66 and NPF-73: Amendments revised support replacement of the three safety- Hazards Consideration Determination, the Technical Specifications. related wide range level instruments. and Opportunity for A Hearing in Date of initial notice in Federal The engineered safety features trip connection with these actions was Register: December 18, 1996 (61 FR setpoint for the refueling water published in the Federal Register as 66706) The Commission’s related automatic switchover to recirculation indicated. evaluation of the amendments is would be revised to account for the Unless otherwise indicated, the contained in a Safety Evaluation dated difference in instrument uncertainty Commission has determined that these October 28, 1997. No significant hazards associated with wide range level amendments satisfy the criteria for consideration comments received: No. instruments and provide additional categorical exclusion in accordance Local Public Document Room response time margin. with 10 CFR 51.22. Therefore, pursuant location: B. F. Jones Memorial Library, Date of publication of individual to 10 CFR 51.22(b), no environmental 663 Franklin Avenue, Aliquippa, PA notice in Federal Register: October 22, impact statement or environmental 15001 1997 (62 FR 54859) assessment need be prepared for these Expiration date of individual notice: amendments. If the Commission has Entergy Operations, Inc., System November 21, 1997 prepared an environmental assessment Energy Resources, Inc., South Local Public Document Room under the special circumstances Mississippi Electric Power Association, location: J. Murrey Atkins Library, provision in 10 CFR 51.12(b) and has and Mississippi Power & Light University of North Carolina at made a determination based on that Company, Docket No. 50-416, Grand Charlotte, 9201 University City assessment, it is so indicated. Gulf Nuclear Station, Unit 1, Claiborne Boulevard, North Carolina For further details with respect to the County, Mississippi Duke Energy Corporation, Docket Nos. action see (1) the applications for Date of application for amendment: 50-269, 50-270, and 50-287, Oconee amendment, (2) the amendment, and (3) May 27, 1997, supplemented by October Nuclear Station, Units 1, 2, and 3, the Commission’s related letter, Safety 6, 1997 Oconee County, South Carolina Evaluation and/or Environmental Brief description of amendment: The Assessment as indicated. All of these amendment eliminated selected Date of amendment request: October items are available for public inspection response time testing (RTT) surveillance 20, 1997 at the Commission’s Public Document requirements (SRs) from the Technical Description of amendment request: Room, the Gelman Building, 2120 L Specifications (TSs) for certain The proposed amendments would allow Street, NW., Washington, DC, and at the components of the following systems: use of a rerolling process as an local public document rooms for the reactor protection system (SR additional repair method for tube particular facilities involved. 3.3.1.1.15), primary containment and degradation found in the tubesheet drywell isolation instrumentation (SR region. The rerolling method is designed Duquesne Light Company, et al., Docket Nos. 50-334 and 50-412, Beaver Valley 3.3.6.1.8), and emergency core cooling to ensure that the area of degradation system (SRs 3.5.1.8 and 3.5.2.7). will not serve as a pressure boundary Power Station, Unit Nos. 1 and 2, Shippingport, Pennsylvania Date of issuance: November 5, 1997 once the repair roll is installed, thus Effective date: November 5, 1997 permitting the tube to remain in service. Date of application for amendments: Amendment No.: 133 Date of publication of individual October 4, 1997 Facility Operating License No. NPF- notice in Federal Register: October 28, Brief description of amendments: 29: Amendment revises the Technical 1997 (62 FR 55835) These amendments revise the Specifications. Expiration date of individual notice: surveillance requirements in Technical Date of initial notice in Federal Comment period ends November 12, Specifications (TSs) 4.1.2.3.1, 4.1.2.4.1, Register: June 18, 1997 (62 FR 33122) 1997; Notice period ends November 28, 4.5.2.b, and 4.6.2.1.b and associated The Commission’s related evaluation of 1997 Bases. The subject surveillance the amendment is contained in a Safety Local Public Document Room requirements are applicable to the Evaluation dated November 5, 1997.No location: Oconee County Library, 501 charging/high-head safety injection significant hazards consideration West South Broad Street, Walhalla, pumps, low-head safety injection comments received: No. South Carolina pumps, and the containment quench Local Public Document Room spray pumps. The proposed changes location: Judge George W. Armstrong Notice Of Issuance Of Amendments To replace the current specific test Facility Operating Licenses Library, 220 S. Commerce Street, acceptance criteria contained in these Natchez, MS 39120 During the period since publication of surveillance requirements with the last biweekly notice, the requirements to verify pump Entergy Operations, Inc., Docket No. Commission has issued the following performance in accordance with the 50-382, Waterford Steam Electric amendments. The Commission has inservice testing program, the Station, Unit 3, St. Charles Parish, determined for each of these emergency core cooling system flow Louisiana amendments that the application analysis, or the containment integrity Date of amendment request: July 17, complies with the standards and safety analysis, as applicable. The 1996, as supplemented October 14, 1997 requirements of the Atomic Energy Act proposed changes also make minor Brief description of amendment: The of 1954, as amended (the Act), and the editorial changes in these TSs and make amendment revises 61850 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Facility Operating License No. NPF-38 Florida Power and Light Company, associated Bases to remove run mode to reflect the name change from Docket Nos. 50-250 and 50-251, Turkey intermediate range monitor high flux/ Louisiana Power & Light Company to Point Plant Units 3 and 4, Dade County, inoperative with the associated average Entergy Louisiana, Inc. Florida power range monitor downscale scram Date of issuance: November 3, 1997 Date of application for amendments: trip function. The amendment also August 27, 1997 makes other editorial revisions. Effective date: November 3, 1997, to Date of issuance: October 27, 1997 Brief description of amendments: The be implemented within 60 days. Effective date: As of the date of admendments change the Amendment No.: 134 issuance, to be implemented within 60 Administrative Section of the Technical days. Facility Operating License No. NPF- Specifications (TS) to allow the use of 38: Amendment revised Amendment No.: 103 12-hour shifts. Facility Operating License No. DPR- Facility Operating License No. NPF- Date of issuance: October 27, 1997 21: Amendment revised the Technical 38. Effective date: October 27, 1997 Specifications. Date of initial notice in Federal Amendment Nos: 194 and 188Facility Date of initial notice in Federal Register: April 9, 1997 (62 FR 29749) Operating Licenses Nos. DPR-31 and Register: June 18, 1997 (62 FR 33127) The Commission’s related evaluation of DPR-41: Amendments revised the TS. The Commission’s related evaluation of the amendment is contained in a Safety Date of initial notice in Federal the amendment is contained in a Safety Evaluation dated November 3, 1997. Register: September 24, 1997 (62 FR Evaluation dated October 27, 1997. No The letter dated October 14, 1997, 50006) The Commission’s related significant hazards consideration provided clarifying information which evaluation of the amendments is comments received: No. did not alter the initial no significant contained in a Safety Evaluation dated Local Public Document Room hazards determination. No significant October 27, 1997. No significant hazards location: Learning Resources Center, hazards consideration comments consideration comments received: No. Three Rivers Community-Technical received: No. Local Public Document Room College, 574 New London Turnpike, location: Florida International Local Public Document Room Norwich, Connecticut 06360 and at the University, University Park, Miami, Waterford Library, ATTN: Vince location: University of New Orleans Florida 33199 Library, Louisiana Collection, Lakefront, Juliano, 49 Rope Ferry Road, Waterford, New Orleans, LA 70122 Indiana Michigan Power Company, Connecticut 06385 Docket Nos. 50-315 and 50-316, Donald Florida Power Corporation, et al., Northeast Nuclear Energy Company, et C. Cook Nuclear Plant, Units 1 and 2, al., Docket No. 50-336, Millstone Docket No. 50-302, Crystal River Unit Berrien County, Michigan No. 3 Nuclear Generating Plant, Citrus Nuclear Power Station, Unit No. 2, New County, Florida Date of application for amendments: London County, Connecticut March 26, 1997. Date of application for amendment: Date of application for amendment: Brief description of amendments: The September 2, 1997 March 27, as supplemented April 3, amendments modify surveillance Brief description of amendment: The May 1, and August 20, 1997. 4.7.5.1.e.2 which requires verification of amendment changes the Technical Brief description of amendment: the control room ventilation system Specifications (TSs) by modifying the Change Technical Specifications (TS) to autostart function. maximum allowed primary containment permanently establish a primary-to- Date of issuance: October 28, 1997 internal pressure during normal secondary leak rate of 150 gallons per Effective date: October 28, 1997, with operation from 2.1 pounds per square day through any one steam generator full implementation within 45 days. inch gauge (psig) to 1.0 psig. The TS and specify the steam generator tube Amendment Nos.: 218 and 202 Bases, Section 3/4.6.1.4, is also updated inservice inspection requirements for Facility Operating License Nos. DPR- to reflect the new maximum allowed pit-like intergranular attack degradation 58 and DPR-74: Amendments revised primary containment internal pressure in the ‘‘B’’ Once-Through-Steam- the Technical Specifications. during normal operation. Generator. Date of initial notice in Federal Date of issuance: October 27, 1997 Register: May 21, 1997 (62 FR 27796) Date of issuance: October 28, 1997 Effective date: As of the date of The Commission’s related evaluation of issuance, to be implemented within 30 Effective date: October 28, 1997 the amendments is contained in a Safety days. Amendment No.: 158 Evaluation dated October 28, 1997. No Amendment No.: 209 Facility Operating License No. DPR- significant hazards consideration Facility Operating License No. DPR- 72: Amendment revised the TS. comments received: No. 65: Amendment revised the Technical Local Public Document Room Specifications. Date of initial notice in Federal location: Maud Preston Palenske Date of initial notice in Federal Register: June 4, 1997 (62 FR 30632) Memorial Library, 500 Market Street, St. Register: September 24, 1997 (62 FR The August 20, 1997, letter provided Joseph, Michigan 49085 50007) The Commission’s related clarifying information that did not affect evaluation of the amendment is Northeast Nuclear Energy Company, the initial no significant hazards contained in a Safety Evaluation dated Docket No. 50-245, Millstone Nuclear consideration. The Commission’s October 27, 1997. No significant hazards Power Station, Unit 1, New London related evaluation of the amendment is consideration comments received: No. contained in a Safety Evaluation dated County, Connecticut Local Public Document Room October 28, 1997. No significant hazards Date of application for amendment: location: Learning Resources Center, consideration comments received: No. May 15, 1997 Three Rivers Community-Technical Local Public Document Room Brief description of amendment: The College, 574 New London Turnpike, location: Coastal Region Library, 8619 amendment revises Technical Norwich, Connecticut, and Waterford W. Crystal Street, Crystal River, Florida Specification Sections 3.1 and 4.1, Library, ATTN: Vince Juliano, 49 Rope 32629 ‘‘Reactor Protection System,’’ and the Ferry Road, Waterford, Connecticut Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61851

Northern States Power Company, changes to TS 4.12, ‘‘Steam Generator (REGIONAL DEPOSITORY) Education Docket No. 50-263, Monticello Nuclear Tube Surveillance,’’ and its associated Building, Walnut Street and Generating Plant, Wright County, Bases Section B.4.12, ‘‘Steam Generator Commonwealth Avenue, Box 1601, Minnesota Tube Surveillance.’’ Harrisburg, PA 17105 Date of application for amendment: Date of issuance: November 4, 1997 Effective date: November 4, 1997, Public Service Electric & Gas Company, November 25, 1996, as supplemented with full implementation within 30 Docket No. 50-354, Hope Creek December 12, 1996, April 23, May 8, days Generating Station, Salem County, New July 1, August 21, and September 29, Amendment Nos.: 132 and 124 Jersey 1997 Facility Operating License Nos. DPR- Date of application for amendment: Brief description of amendment: The 42 and DPR-60: Amendments revised May 19, 1997, as supplemented by letter amendment modifies the Technical the Technical Specifications. dated August 25, 1997 Specification requirements associated Date of initial notice in Federal Brief description of amendment: This with the Minimum Critical Power Ratio Register: August 13, 1997 (62 FR 43370) amendment changes the Hope Creek (MCPR) safety limits for Cycle 18 based The August 15, September 2, and Technical Specification (TS) 3.7.1.3, on the cycle-specific analysis of the October 3, 1997, letters provided ‘‘Ultimate Heat Sink,’’ to raise the current mixed core of GE11/GE10 fuel clarifying information and updated TS minimum allowable ulimate heat sink parameters. pages. This information was within the (UHS) water level from 76 feet to 80 Date of issuance: October 29, 1997 scope of the original application and did feet, lower the maximum allowable UHS Effective date: October 29, 1997 not change the staff’s initial no temperature from 88.6°F to 85°F, and Amendment No.: 99 significant hazards considerations reflect that continued plant operation to Facility Operating License No. DPR- determination. The Commission’s a UHS temperature of 87°F depends 22: Amendment revised the Technical related evaluation of the amendments is upon the association of UHS Specifications. contained in a Safety Evaluation dated temperature and safety system Date of initial notice in Federal November 4, 1997. availability. The associated Surveillance Register: April 9, 1997 (62 FR 17238) Local Public Document Room Requirement, TS 4.7.1.3, is changed to The December 12, 1996, letter provided location: Minneapolis Public Library, decrease the river water temperature, at an affidavit for the original application Technology and Science Department, which increasing temperature dated November 25, 1996. The April 23, 300 Nicollet Mall, Minneapolis, surveillance is required, from 85°F to May 8, August 21, and September 29, Minnesota 55401 82°F. The requirements of TS 3.7.1.1, 1997, letters provided clarifying PECO Energy Company, Public Service ‘‘Safety Auxiliaries Cooling System information in response to the staff’s (SACS),’’ TS 3.7.1.2, ‘‘Station Service request for additional information Electric and Gas Company Delmarva Power and Light Company, and Water System (SSWS),’’ and TS 3.8.1.1, during a teleconference on March 18, ‘‘Electrical Power Systems,’’ are revised 1997. The July 1, 1997, letter provided Atlantic City Electric Company, Docket Nos. 50-277 and 50-278, Peach Bottom to reflect the revised TS 3.7.1.3. In a nonproprietary version of the April 23, addition, the Bases for 3/4.7.1, ‘‘Service 1997, submittal. This information was Atomic Power Station, Unit Nos. 2 and 3, York County, Pennsylvania Water Systems,’’ are appropriately within the scope of the original revised. application and did not change the Date of application for amendments: Date of issuance: October 28, 1997 staff’s initial proposed no significant June 4, 1997 Effective date: As of the date of hazards considerations determination. Brief description of amendments: The issuance to be implemented within 60 Therefore, renoticing was not proposed change revises the Peach days from the date of issuance. warranted. The Commission’s related Bottom Atomic Power Station, Unit Nos. Amendment No.: 106 evaluation of the amendment is 2 and 3, Technical Specifications to Facility Operating License No. NPF- contained in a Safety Evaluation dated eliminate an inconsistency between 57: This amendment revised the October 29, 1997. No significant hazards emergency core cooling system (ECCS) Technical Specifications. consideration comments received: No. operability requirements and the auto- Date of initial notice in Federal Local Public Document Room start and protective trip bypass of the Register: June 18, 1997 (62 FR 33132) location:Minneapolis Public Library, emergency diesel generators on an ECCS The Commission’s related evaluation of Technology and Science Department, initiation signal during certain plant the amendment is contained in a Safety 300 Nicollet Mall, Minneapolis, configurations. Evaluation dated October 28, 1997. No Minnesota 55401 Date of issuance: October 24, 1997 significant hazards consideration Northern States Power Company, Effective date: Both units, as of date comments received: No. Docket Nos. 50-282 and 50-306, Prairie of issuance, to be implemented within Local Public Document Room Island Nuclear Generating Plant, Unit 30. location: Pennsville Public Library, 190 Amendments Nos.: 221 and 226 Nos. 1 and 2, Goodhue County, S. Broadway, Pennsville, NJ 08070 Facility Operating License Nos. DPR- Minnesota 44 and DPR-56: The amendments Public Service Electric & Gas Company, Date of application for amendments: revised the Technical Specifications. Docket No. 50-354, Hope Creek November 27, 1996, as supplemented Date of initial notice in Federal Generating Station, Salem County, New August 15, September 2, and October 3, Register: August 13, 1997 (62 FR 43373) Jersey 1997 The Commission’s related evaluation of Date of application for amendment: Brief description of amendments: The the amendments is contained in a Safety March 31, 1997, as supplemented by amendments incorporate Combustion Evaluation dated October 24, 1997. No letters dated July 16, August 26, and Engineering steam generator tube sleeve significant hazards consideration October 3, 1997 designs and installation and comments received: No. Brief description of amendment: This examination techniques into the plant Local Public Document Room amendment changes Technical Technical Specifications (TS). location: Government Publications Specification (TS) 2.1.2, ‘‘THERMAL Specifically, the amendments make Section, State Library of Pennsylvania, POWER, High Pressure and High Flow,’’ 61852 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

ACTION a.1.c for TS 3.4.1.1, significant hazards consideration Date of initial notice in Federal ‘‘Recirculation Loops,’’ and the Bases comments received: No. Register: September 24, 1997 (62 FR for TS 2.1, ‘‘Safety Limits.’’ These Local Public Document Room 50010) The Commission’s related changes are being made to implement location: Pennsville Public Library, 190 evaluation of the amendment is an appropriately conservative Safety S. Broadway, Pennsville, NJ 08070 contained in a Safety Evaluation dated Limit Minimum Critical Power Ratio to November 6, 1997. No significant Public Service Electric & Gas Company, include Cycle 8 specific analyses for all hazards consideration comments Docket No. 50-354, Hope Creek Hope Creek core and fuel designs. received: No. Generating Station, Salem County, New Local Public Document Room Date of issuance: November 4, 1997 Jersey Effective date: The license location: Pennsville Public Library, 190 amendment is effective as of its date of Date of application for amendment: S. Broadway, Pennsville, NJ 08070 issuance and shall be implemented September 24, 1997 Brief description of amendment: This Rochester Gas and Electric within 60 days. Corporation, Docket No. 50-244, R. E. Amendment No.: 107 amendment adds a Surveillance Requirement to Technical Specification Ginna Nuclear Power Plant, Wayne Facility Operating License No. NPF- County, New York 57: This amendment revised the 3/4.5.1, ‘‘Emergency Core Cooling Technical Specifications. Systems’’, to perform a monthly valve Date of application for amendment: Date of initial notice in Federal position verification for the four August 19, 1997, as supplemented Register: August 13, 1997 (62 FR 43374) residual heat removal cross-tie valves. September 29, 1997. The August 26 and October 3, 1997, Date of issuance: November 6, 1997 Brief description of amendment: The letters provided clarifying information Effective date: As of the date of proposed amendment revises the Ginna that did not change the initial proposed issuance, to be implemented within 60 Station Improved Technical no significant hazards consideration days. Specifications by adding a note to the Amendment No.: 109 determination. The Commission’s Containment Spray (CS) Limiting Facility Operating License No. NPF- related evaluation of the amendment is Condition for Operation 3.6.6 which 57: This amendment revised the contained in a Safety Evaluation dated allows the CS pumps in MODE 4 to be Technical Specifications. placed in pull-stop, and motor-operated November 4, 1997. No significant Date of initial notice in Federal hazards consideration comments valves 896A and 896B to have their DC Register: October 6, 1997 (62 FR 52162) control power restored with the valves received: No. The Commission’s related evaluation of Local Public Document Room placed in the closed position in order to the amendment is contained in a Safety perform interlock and valve testing of location:Pennsville Public Library, 190 Evaluation dated November 6, 1997. No S. Broadway, Pennsville, NJ 08070 MOVs 857A, 857B, and 857C. A time significant hazards consideration limit of 2 hours is placed on this Public Service Electric & Gas Company, comments received: No. configuration for each test. Docket No. 50-354, Hope Creek Local Public Document Room Date of issuance: October 29, 1997 Generating Station, Salem County, New location: Pennsville Public Library, 190 Effective date: October 29, 1997 Jersey S. Broadway, Pennsville, NJ 08070 Amendment No.: 68 Facility Operating License No. DPR- Public Service Electric & Gas Company, Date of application for amendment: 18: Amendment revised the Technical Docket No. 50-354, Hope Creek September 29, 1997 Specifications. Brief description of amendment: This Generating Station, Salem County, New Date of initial notice in Federal amendment changes Technical Jersey Register: September 24, 1997 (62 FR Specification (TS) 3/4.11.1, ‘‘Liquid Date of application for amendment: 50011) The September 29, 1997, letter Effluent - Concentration.’’ The change August 20, 1997 provided clarifying information that did adds a requirement to perform weekly Brief description of amendment: This not change the initial proposed no sampling and monthly and quarterly amendment changes the Technical significant hazards consideration composite analyses of the Station Specifications (TSs) to provide for: 1) determination. The Commission’s Service Water System when the Reactor the relocation of suppression chamber related evaluation of the amendment is Auxiliaries Cooling System is volume references in Limiting contained in a Safety Evaluation dated contaminated. The licensee has also Condition for Operation (LCO) 3.5.3 to October 29, 1997. No significant hazards proposed an editorial change to TS the Hope Creek (HC) Updated Final consideration comments received: No. Table 4.11.1.1.1-1. In Liquid Release Safety Analysis Report (UFSAR) and TS Local Public Document Room Type B, the licensee is proposing that Bases as appropriate; 2) the revision of location: Rochester Public Library, 115 the acronym for Station Service Water the suppression chamber volume South Avenue, Rochester, New York System be changed from GSW to SSWS. currently listed in LCO 3.5.3.b; 3) the 14610 This proposed change will be addressed relocation of the suppression chamber Southern Nuclear Operating Company, in a future license amendment. volume references in LCO 3.6.2.1.a.1 to Inc., Docket Nos. 50-348 and 50-364, Date of issuance: November 6, 1997 the UFSAR and TS Bases; and 4) the Joseph M. Farley Nuclear Plant, Units Effective date: As of date of issuance, revision to the suppression chamber 1 and 2, Houston County, Alabama to be implemented within 60 days. volume reference in TS 5.2.1 to Amendment No.: 108 reference the TS Bases section where Date of amendments request: Facility Operating License No. NPF- this information will reside. September 17, 1997 57: This amendment revised the Date of issuance: November 6, 1997 Brief description of amendments: The Technical Specifications. Effective date: As of date of issuance, amendments change Technical Date of initial notice in Federal to be implemented within 60 days. Specification 3/4.4.9, ‘‘Specific Register: October 6, 1997 (62 FR 52161) Amendment No.: 110 Activity,’’ and the associated Bases to The Commission’s related evaluation of Facility Operating License No. NPF- reduce the limit associated with dose the amendment is contained in a Safety 57: This amendment revised the equivalent iodine-131. The steady-state Evaluation dated November 6, 1997. No Technical Specifications and License. dose equivalent iodine-131 limit would Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61853 be reduced by 50 percent from 0.3 mu TU Electric Company, Docket Nos. 50- For exigent circumstances, the Curie/gram to 0.15 mu Curie/gram and 445 and 50-446, Comanche Peak Steam Commission has either issued a Federal the maximum instantaneous value Electric Station, Unit Nos. 1 and 2, Register notice providing opportunity would be reduced by 50 percent from 18 Somervell County, Texas for public comment or has used local mu Curie/gram to 9 mu Curie/gram. Date of amendment request: May 16, media to provide notice to the public in Date of issuance: October 29, 1997 1997 (TXX-97119) the area surrounding a licensee’s facility Effective date: As of the date of Brief description of amendments: The of the licensee’s application and of the issuance to be implemented within 30 amendments revised core safety limit Commission’s proposed determination days curves and Overtemperature N-16 of no significant hazards consideration. Amendment Nos.: Unit 1 - 132; Unit reactor trip setpoints based on analyses The Commission has provided a 2 - 124 of the core configuration for CPSES Unit reasonable opportunity for the public to Facility Operating License Nos. NPF- 2, Cycle 4. These changes apply equally comment, using its best efforts to make 2 and NPF-8: Amendments revise the to CPSES Units 1 and 2 licenses since available to the public means of Technical Specifications. the Technical Specifications are communication for the public to Date of initial notice in Federal combined. respond quickly, and in the case of Register: September 24, 1997 (62 FR Date of issuance: October 30, 1997 telephone comments, the comments 49998) The Commission’s related Effective date: October 30, 1997 have been recorded or transcribed as evaluation of the amendments is Amendment Nos.: Unit 1 - appropriate and the licensee has been contained in a Safety Evaluation dated Amendment No. 55; Unit 2 - informed of the public comments. October 29, 1997. No significant hazards Amendment No. 41 In circumstances where failure to act consideration comments received: No. Facility Operating License Nos. NPF- in a timely way would have resulted, for Local Public Document Room 87 and NPF-89: The amendments example, in derating or shutdown of a location: Houston-Love Memorial revised the Technical Specifications. nuclear power plant or in prevention of Date of initial notice in Federal Library, 212 W. Burdeshaw Street, Post either resumption of operation or of Register: July 16, 1997 (62 FR 38140) increase in power output up to the Office Box 1369, Dothan, Alabama The Commission’s related evaluation of plant’s licensed power level, the 36302 the amendments is contained in a Safety Commission may not have had an The Cleveland Electric Illuminating Evaluation dated October 30, 1997. No opportunity to provide for public Company, Centerior Service Company, significant hazards consideration comment on its no significant hazards Duquesne Light Company, Ohio Edison comments received: No. consideration determination. In such Company, OES Nuclear, Inc., Local Public Document Room case, the license amendment has been Pennsylvania Power Company, Toledo location: University of Texas at issued without opportunity for Edison Company, Docket No. 50-440 Arlington Library, Government comment. If there has been some time Perry Nuclear Power Plant, Unit 1, Publications/Maps, 702 College, P.O. for public comment but less than 30 Lake County, Ohio Box 19497, Arlington, TX 76019 days, the Commission may provide an opportunity for public comment. If Date of application for amendment: Notice Of Issuance Of Amendments To comments have been requested, it is so August 14, 1997, as supplemented Facility Operating Licenses And Final stated. In either event, the State has September 26 and October 1, 1997. Determination Of No Significant been consulted by telephone whenever Brief description of amendment: This Hazards Consideration And Opportunity For A Hearing (Exigent possible. amendment changes the design basis as Under its regulations, the Commission Public Announcement Or Emergency described in the Updated Safety may issue and make an amendment Circumstances) Analysis Report by adding a description immediately effective, notwithstanding of the methodology utilized for During the period since publication of the pendency before it of a request for determining the systems and the last biweekly notice, the a hearing from any person, in advance components that are considered to Commission has issued the following of the holding and completion of any require protection from tornado amendments. The Commission has required hearing, where it has missiles. determined for each of these determined that no significant hazards Date of issuance: November 4, 1997 amendments that the application for the consideration is involved. Effective date: November 4, 1997 amendment complies with the The Commission has applied the Amendment No.: 90 standards and requirements of the standards of 10 CFR 50.92 and has made Facility Operating License No. NPF- Atomic Energy Act of 1954, as amended a final determination that the 58: This amendment revised the license. (the Act), and the Commission’s rules amendment involves no significant Date of initial notice in Federal and regulations. The Commission has hazards consideration. The basis for this Register: September 16, 1997 (62 FR made appropriate findings as required determination is contained in the 48674). The September 26 and October by the Act and the Commission’s rules documents related to this action. 1, 1997, submittals provided and regulations in 10 CFR Chapter I, Accordingly, the amendments have supplemental information that did not which are set forth in the license been issued and made effective as change the initial proposed no amendment. indicated. significant hazards consideration Because of exigent or emergency Unless otherwise indicated, the determination. The Commission’s circumstances associated with the date Commission has determined that these related evaluation of the amendment is the amendment was needed, there was amendments satisfy the criteria for contained in a Safety Evaluation dated not time for the Commission to publish, categorical exclusion in accordance November 4, 1997. No significant for public comment before issuance, its with 10 CFR 51.22. Therefore, pursuant hazards consideration comments usual 30-day Notice of Consideration of to 10 CFR 51.22(b), no environmental received: No. Issuance of Amendment, Proposed No impact statement or environmental Local Public Document Room Significant Hazards Consideration assessment need be prepared for these location: Perry Public Library, 3753 Determination, and Opportunity for a amendments. If the Commission has Main Street, Perry, OH 44081 Hearing. prepared an environmental assessment 61854 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices under the special circumstances entered in the proceeding on the Rulemakings and Adjudications Staff or provision in 10 CFR 51.12(b) and has petitioner’s interest. The petition should may be delivered to the Commission’s made a determination based on that also identify the specific aspect(s) of the Public Document Room, the Gelman assessment, it is so indicated. subject matter of the proceeding as to Building, 2120 L Street, NW., For further details with respect to the which petitioner wishes to intervene. Washington, DC, by the above date. A action see (1) the application for Any person who has filed a petition for copy of the petition should also be sent amendment, (2) the amendment to leave to intervene or who has been to the Office of the General Counsel, Facility Operating License, and (3) the admitted as a party may amend the U.S. Nuclear Regulatory Commission, Commission’s related letter, Safety petition without requesting leave of the Washington, DC 20555-0001, and to the Evaluation and/or Environmental Board up to 15 days prior to the first attorney for the licensee. Assessment, as indicated. All of these prehearing conference scheduled in the Nontimely filings of petitions for items are available for public inspection proceeding, but such an amended leave to intervene, amended petitions, at the Commission’s Public Document petition must satisfy the specificity supplemental petitions and/or requests Room, the Gelman Building, 2120 L requirements described above. for a hearing will not be entertained Street, NW., Washington, DC, and at the Not later than 15 days prior to the first absent a determination by the local public document room for the prehearing conference scheduled in the Commission, the presiding officer or the particular facility involved. proceeding, a petitioner shall file a Atomic Safety and Licensing Board that The Commission is also offering an supplement to the petition to intervene the petition and/or request should be opportunity for a hearing with respect to which must include a list of the granted based upon a balancing of the the issuance of the amendment. By contentions which are sought to be factors specified in 10 CFR December 19, 1997, the licensee may litigated in the matter. Each contention 2.714(a)(1)(i)-(v) and 2.714(d). file a request for a hearing with respect must consist of a specific statement of Boston Edison Company, Docket No. to issuance of the amendment to the the issue of law or fact to be raised or 50-293, Pilgrim Nuclear Power Station, subject facility operating license and controverted. In addition, the petitioner Plymouth County, Massachusetts any person whose interest may be shall provide a brief explanation of the affected by this proceeding and who bases of the contention and a concise Date of application for amendment: wishes to participate as a party in the statement of the alleged facts or expert October 24, 1997 proceeding must file a written request opinion which support the contention Brief description of amendment: The for a hearing and a petition for leave to and on which the petitioner intends to amendment adds a footnote to intervene. Requests for a hearing and a rely in proving the contention at the Technical Specification 3.7.A.5, petition for leave to intervene shall be hearing. The petitioner must also ‘‘Primary Containment.’’ The footnote filed in accordance with the provide references to those specific provides a one time exception to the Commission’s ‘‘Rules of Practice for sources and documents of which the reverse flow testing requirement for Domestic Licensing Proceedings’’ in 10 petitioner is aware and on which the containment isolation check valve 30- CFR Part 2. Interested persons should petitioner intends to rely to establish CK-432. consult a current copy of 10 CFR 2.714 those facts or expert opinion. Petitioner Date of issuance: October 30, 1997 which is available at the Commission’s must provide sufficient information to Effective date: As of date of issuance Public Document Room, the Gelman show that a genuine dispute exists with and shall be implemented by November Building, 2120 L Street, NW., the applicant on a material issue of law 2, 1997. Amendment No.: 174 Washington, DC and at the local public or fact. Contentions shall be limited to Facility Operating License No. DPR- document room for the particular matters within the scope of the 35: This amendment revised the facility involved. If a request for a amendment under consideration. The Technical Specifications. hearing or petition for leave to intervene contention must be one which, if Public comments requested as to is filed by the above date, the proven, would entitle the petitioner to proposed no significant hazards Commission or an Atomic Safety and relief. A petitioner who fails to file such consideration: No. Licensing Board, designated by the a supplement which satisfies these The Commission’s related evaluation Commission or by the Chairman of the requirements with respect to at least one of the amendment, finding of emergency Atomic Safety and Licensing Board contention will not be permitted to circumstances, consultation with the Panel, will rule on the request and/or participate as a party. State of Massachusetts, and final no petition; and the Secretary or the Those permitted to intervene become significant hazards consideration designated Atomic Safety and Licensing parties to the proceeding, subject to any determination are contained in a Safety Board will issue a notice of a hearing or limitations in the order granting leave to Evaluation dated October 30, 1997. an appropriate order. intervene, and have the opportunity to Attorney for licensee: W. S. Stowe, As required by 10 CFR 2.714, a participate fully in the conduct of the Esquire, Boston Edison Company, 800 petition for leave to intervene shall set hearing, including the opportunity to Boylston Street, 36th Floor, Boston, forth with particularity the interest of present evidence and cross-examine Massachusetts 02199 the petitioner in the proceeding, and witnesses. Since the Commission has Local Public Document Room how that interest may be affected by the made a final determination that the location: Plymouth Public Library, 11 results of the proceeding. The petition amendment involves no significant North Street, Plymouth, Massachusetts should specifically explain the reasons hazards consideration, if a hearing is 02360 why intervention should be permitted requested, it will not stay the NRC Project Director: Ronald B. with particular reference to the effectiveness of the amendment. Any Eaton, Acting Director following factors: (1) the nature of the hearing held would take place while the petitioner’s right under the Act to be amendment is in effect. Wolf Creek Nuclear Operating made a party to the proceeding; (2) the A request for a hearing or a petition Corporation, Docket No. 50-482, Wolf nature and extent of the petitioner’s for leave to intervene must be filed with Creek Generating Station, Coffey property, financial, or other interest in the Secretary of the Commission, U.S. County, Kansas the proceeding; and (3) the possible Nuclear Regulatory Commission, Date of amendment request: October effect of any order which may be Washington, DC 20555-0001, Attention: 17, 1997 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61855

Brief description of amendment: The 13(a)(2), 18(f)(1), 22(f), and 22(g) of the serving as the underlying investment amendment revised Technical Act; and (ii) section 17(d) of the Act and medium for Variable Contracts issued Specification 4.5.2b and associated rule 17d–1 to permit certain joint by the Equitable Life Assurance Society Bases to eliminate the requirement to transactions. of the United States (‘‘Equitable’’). The vent the centrifugal charging pump Trust may in the future offer its shares casings. Summary of Application: Applicants to separate accounts funding Variable Date of issuance: November 3, 1997 request an order to permit EQ Advisors Contracts of insurance companies Effective date: November 3, 1997 Trust to implement a deferred unaffiliated with Equitable or directly to Amendment No.: 114 compensation plan for certain of its tax qualified pension and retirement Facility Operating License No. NPF- trustees. plans outside the separate account 42: The amendment revised the Applicants: HQ Advisors Trust (the context. Technical Specifications. Press release ‘‘Trust’’) and EQ Financial Consultants, 2. The Manager, an indirect wholly- issued requesting comments as to Inc. (the ‘‘Manager’’). owned subsidiary of Equitable, has proposed no significant hazards FILING DATES: The application was overall responsibility for the investment consideration: Yes. October 24, 1997. filed on April 7, 1997, and amendments management and administration of the Coffey County Today Newspaper were filed on July 14, 1997 and Trust and its Portfolios. Rowe Price- (Kansas). Comments received: Yes. November 10, 1997. Fleming International, Inc., T. Rowe Comments were submitted by Mr. Dave Hearing or Notification of Hearing: An Price Associates, Inc., Putnam Lochbaum of the Union of Concerned order granting the application will be Investment Management, Inc., Scientists by letter dated October 29, issued unless the SEC orders a hearing. Massachusetts Financial Services 1997. Verbal comments were received Interested persons may request a Company, Morgan Stanley Asset from Larry Myers on October 28, 1997. hearing by writing to the SEC’s Management, Inc., Warburg Pincus The staff responded to these comments Secretary and serving applicant with a Counsellors, Inc., and Merrill Lynch in the safety evaluation attached to the copy of the request, personally or by Asset Management, L.P. serve as the November 3, 1997, amendment. The mail. Hearing requests should be sub-advisers (each an ‘‘Adviser’’) to one Commission’s related evaluation of the received by the SEC by 5:30 p.m. on or more Portfolios. Applicants request amendment, finding of exigent December 8, 1997, and should be that the relief apply to the Trust and any circumstances, consultation with the accompanied by proof of service on registered open-end management State of Kansas and final determination applicant, in the form of an affidavit or, investment company that in the future of no significant hazards consideration for lawyers, a certificate of service. is advised by the Manager or any entity are contained in a Safety Evaluation Hearing requests should state the nature controlled by the Manager.1 dated November 3, 1997. of the writer’s interest, the reason for the 3. The Trust’s board of trustees Local Public Document Room request, and the issues contested. (‘‘Trustees’’) currently consists of six locations: Emporia State University, Persons who wish to be notified of a members, two of whom are ‘‘interested William Allen White Library, 1200 hearing may request notification by persons’’ of the Trust within the Commercial Street, Emporia, Kansas writing to the SEC’s Secretary. meaning of Section 2(a)(19) of the Act. 66801 and Washburn University School ADDRESSES: Secretary, SEC, 450 Fifth The four non-interested Trustees of Law Library, Topeka, Kansas 66621 Street, N.W., Washington, D.C. 20549. (‘‘Eligible Trustees’’) will receive an Attorney for licensee: Jay Silberg, Esq., EQ Advisors Trust, 1290 Avenue of the annual retainer fee, a fee for each board Shaw, Pittman, Potts and Trowbridge, Americas, New York, New York 10104. meeting and committee meeting 2300 N Street, N.W., Washington, D.C. FOR FURTHER INFORMATION CONTACT: attended, and an additional fee for 20037 Deepak T. Pai, Staff Attorney, at (202) performing special services for the NRC Project Director: William H. 942–0574, or Nadya B. Roytblat, Trust. Bateman Assistant Director, at (202) 942–0564 4. The deferred compensation plan for Dated at Rockville, Maryland, this (Division of Investment Management, Eligible Trustees (the ‘‘Plan’’) was 12th day of November 1997. Office of Investment Company ratified by the Trustees on March 31, For the Nuclear Regulatory Commission Regulation). 1997. The purpose of the Plan is to Elinor G. Adensam, permit Eligible Trustees to defer receipt SUPPLEMENTARY INFORMATION: The of all or a portion of their fees to enable Acting Director, Division of Reactor Projects following is a summary of the - III/IV Office of Nuclear Reactor Regulation. them to defer payment of income taxes, application. The complete application to avoid a loss or reduction of Social [FR Doc. 97–30217 Filed 11–18–97; 8:45 am] may be obtained for a fee at the SEC’s BILLING CODE 7590±01±F Security benefits, or for other reasons. Public Reference Branch, 450 Fifth Applicants believe that the Plan will Street, N.W., Washington, D.C. 20549 better enable the Trust to attract and (tel. 202–942–8090). SECURITIES AND EXCHANGE retain high caliber trustees. The Plan COMMISSION Applicants’ Representations may be amended from time to time, provided that, any amendments are not 1. The Trust is an open-end [Rel. No. IC±22883/812±10536] inconsistent with the relief granted management investment company pursuant to this application. EQ Advisors Trust; Notice of registered under the Act and organized 5. Under the Plan, each Eligible Application as a Delaware business trust. The Trust Trustee who elects to defer receipt of is currently composed of several, November 12, 1997. separately managed series 1 The Manager is an investment adviser to the AGENCY: Securities and Exchange (‘‘Portfolios’’). The Trust offers shares in Trust and serves in such capacity pursuant to a Commission (‘‘SEC’’). each of its Portfolios only to insurance contract subject to section 15 of the Act. All ACTION: Notice of Application for an companies and their separate accounts registered open-end investment companies that currently intend to rely on the order have been order under (i) section 6(c) of the that fund variable annuity and variable named as applicants. Any other existing or future Investment Company Act of 1940 (the life insurance contracts (‘‘Variable investment company that relies on the order will ‘‘Act’’) granting relief from sections Contracts’’). The Trust is currently comply with the terms and conditions of the order. 61856 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices fees will enter into an agreement with Account Rate each time the Equitable Applicants’ Legal Analysis the Trust (‘‘Agreement’’). The election Rate changes but it is the present 1. Applicants request an order will continue in effect unless the intention of the Trust to do so only in pursuant to (i) section 6(c) of the Act to Eligible Trustee delivers to the Trust a accordance with the Equitable Rate. exempt the Trust from the provisions of written modification of such election at Instances when the Account rate would sections 13(a)(2), 18(f)(1), 22(f) and 22(g) least 60 days prior to January 1 in any not be in accordance with the Equitable to the extent necessary to permit the given year. Pursuant to the Agreement, Rate would be (i) in any interim period Trust to enter into deferred fee a bookkeeping account will be between a change in the Equitable Rate arrangements with the Eligible Trustees; established by the Trust for each and the time it takes to effectuate any and (ii) section 17(d) of the Act and rule Eligible Trustee that elects to defer change in the Account Rate, or (ii) if the 17d–1 thereunder to permit the Trust compensation (‘‘Deferral Account’’), and Trustees determine that it is not in the and the Eligible Trustees to effect the amount of fees deferred will be best interests of the Trust’s shareholders certain transactions incident to the credited to the Deferral Account. to change the Account Rate to the deferred fee arrangements. Although the Trust expects the Plan to Equitable Rate. 2. Section 6(c) of the Act provides that remain in effect indefinitely, the Trust the SEC may exempt any person, has reserved the right to unilaterally 8. An Eligible Trustee will specify a date for the initial disbursement of security, or transaction from any modify or terminate the Plan at any provision of the Act, if and to the extent payments from the Deferral Account. time. However, any modification or that such exemption is necessary or The disbursement date may not be termination would not affect amounts appropriate in the public interest and sooner than five years following the already credited to an Eligible Trustee’s consistent with the protection of Deferral Account. election of deferral, or the Eligible investors and the purposes fairly 6. In addition to deferred fees, the Trustee’s anticipated retirement from intended by the policy and provisions of Trust will periodically credit to the the board. Payments will be made in a the Act. Applicants believe that the Deferral Account interest in an amount lump sum or in annual or semiannual requested relief is necessary and equal to the interest rate credited to installments for the number of years appropriate in the public interest and fixed income accounts under the elected by the Eligible Trustee, or until consistent with the protection of Equitable Investment Plan for the Deferral Account is exhausted. The investors and the purposes fairly 2 Employees, Managers, and Agents (the Deferral Account will continue to be intended by the Act. ‘‘Equitable Rate’’). The Equitable Rate is credited with interest during the payout 3. Section 18(f)(1) of the Act generally a blended rate based on a weighted period. Notwithstanding any elections, prohibits a registered open-end average of the separate interest rates an Eligible Trustee’s Deferral Account investment company from issuing payable under the Fixed Income Fund’s will be distributed (i) in the event of a senior securities. In addition, section 3 various investments. The Equitable Trustee’s death, or (ii) upon the 13(a)(2) of the Act requires that a Rate is adjusted periodically as GICs in dissolution, liquidation, or transfer of registered investment company obtain the Fixed Income Fund mature and are all or substantially all of the Trust’s shareholder authorization before issuing reinvested at current rates and as the assets. In the event of an Eligible any senior security not contemplated by returns on the Fixed Income Fund’s Trustee’s death, the amount of the the recitals of policy in its registration variable rate investments change. The Deferral Account will be paid to the statement. Applicants state that the Plan amounts to be paid under the Plan will Eligible Trustee’s executors or does not give rise to any of the concerns not depend upon, or in any way reflect, administrators in a single lump sum that prompted the enactment of sections the investment performance of any distribution. In the event of a 13(a)(2) and 18(f)(1). Applicants state Portfolio. In that regard, the Equitable discontinuance of deferment or an that the Trust will not be borrowing Rate will merely be used as a reference Eligible Trustee’s retirement, the from its Eligible Trustees, and all the Trust believes to be fair in crediting Deferred Account will continue to be liabilities for deferred fees are expected interest to the Deferral Account. paid out in installments. The Trustees to be de minimis in relation to the 7. The Trust has reserved the right to Trust’s net assets. Applicants assert that change the rate of interest credited to a in their sole discretion may accelerate payments out of a Deferral Account at the Plan will not induce speculative Deferral Account (‘‘Account Rate’’) in investments by the Trust or provide accordance with changes that may be any time after termination of the Eligible Trustee’s service, provided that the opportunity for manipulation of made periodically to the Equitable expenses and profits. In addition, Rate.4 The Trust need not change the Eligible Trustee does not participate in the Trustees’ determination. applicants assert that the control of the Trust will not be affected, and the Plan 2 The Equitable Investment Plan for Employees, 9. The administrator of the Plan will will not confuse investors. Managers, and Agents (the ‘‘Equitable Investment maintain the Deferral Accounts. The Plan’’) is a tax-qualified profit-sharing plan that 4. Section 22(f) prohibits restrictions contains a cash-or-deferred arrangement. As amounts credited to an Eligible on the transferability or negotiability of administrator of the Equitable Investment Plan, Trustee’s Deferral Account will be redeemable securities issued by an Equitable’s Officers Committee on Benefit Plans has payable solely from the Trust’s general authority to control and manage the Plan’s open-end investment company unless operation and administration. assets and will represent an unsecured the restrictions are disclosed in its 3 The Fixed Income Fund is one of seven obligation of the Trust. Eligible Trustees registration statement and do not investment funds available to participants in the will have the status of general creditors. contravene SEC rules and regulations. Equitable Investment Plan, and invests primarily in The Trust will not purchase any of its Applicants state that the Plan will guaranteed investment contracts (‘‘GICs’’) issued by shares for any Deferral Account, nor insurance companies and synthetic GICs managed plainly set forth the applicable by investment management firms. The Fixed will it create any specified fund or restrictions against the assignment, Income Fund also invests in short-term securities to segregate any of its assets for purposes commutation, and encumbrance of any ensure the availability of adequate funds to cover of the Plan. The Trust’s liabilities for amounts credited to a Deferral Account. participant transfers, withdrawals, and distributions. deferred fees are expected to be de Applicants assert that these restrictions 4 In addition, the Trust has reserved the right to minimis in relation to the Trust’s net are designed to benefit the Eligible use a different index for crediting interest. assets. Trustees and would not adversely affect Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61857 the interests of the Eligible Trustees or participation in the Equitable Board (‘‘Board or ‘‘MSRB’’) filed with the Trust’s shareholders. Investment Plan or in the performance the Securities and Exchange 5. Section 22(g) generally prohibits of the Trust. Commission (‘‘Commission’’ or ‘‘SEC’’) registered open-end investment For the Commission, by the Division of a proposed rule change (File No. SR– companies from issuing any of their Investment Management, under delegated MSRB–97–7). The proposed rule change securities for services or for property authority. is described in Items, I, II, and III below, other than cash or securities. Applicants Margaret H. McFarland, which Items have been prepared by the assert that the legislative history of Deputy Secretary. Board. The Commission is publishing section 22(g) was primarily concerned this Notice to solicit comments on the [FR Doc. 97–30297 Filed 11–18–97; 8:45 am] with the dilutive effect on the equity proposed rule change from interested and voting power of common stock of, BILLING CODE 8010±01±M persons. or units of beneficial interest in, an investment company if the company’s I. Self-Regulatory Organization’s SECURITIES AND EXCHANGE securities are issued for consideration Statement of The Terms of Substance of COMMISSION not readily valued. Applicants contend The Proposed Rule Change that the Plan does not raise these [File No. 500±1] The MSRB is filing herewith a concerns because any rights issued proposed rule change to revise the study under the Plan to Eligible Trustees will HealthTech International, Inc.; Order of outline for the Board’s Municipal not be issued for services but in Suspension of Trading Securities Principal Qualification consideration for the Trust not being Examination, Test Series 53 November 17, 1997 required to pay the fees on a current (‘‘Examination’’). The Board requests It appears to the Securities and basis. In addition, applicants state that that the Commission delay the Exchange Commission that questions the Eligible Trustees’ compensation effectiveness of the revised study have been raised about the adequacy arrangements, including the right to outline until January 1, 1998, in order and accuracy of publicly-disseminated defer fees, will be described in the to provide time to modify the information about HealthTech Trust’s proxy statements. Examination to reflect the changes in 6. Section 17(d) and rule 17d–1 International, Inc. concerning, among the study outline and for information prohibit affiliated persons from other things, its financial condition and concerning the revised outline to be participating in joint arrangements with acquisitions made by the company. circulated to the industry. a registered investment company unless The Commission is of the opinion that II. Self-Regulatory Organization’s authorized by the SEC. In passing on the public interest and the protection of Statement of The Terms of Substance of applications for such orders, rule 17–d investors require a suspension of trading provides that the SEC will consider in the securities of the above listed The Proposed Rule Change whether the participation of such company. In its filing with the Commission, the investment company is consistent with Therefore, it is ordered, pursuant to Board included statements concerning the provisions, policies, and purposes of Section 12(k) of the Securities Exchange the purpose of and basis for the the Act and the extent to which such Act of 1934, that trading in the above proposed rule change and discussed any participation is on a basis different from listed company is suspended for the comments it received on the proposed or less advantageous than that of other period from 9:30 a.m. EST, November rule change. The texts of these participants. Applicants acknowledge 17, 1997, through 11:59 p.m. EST, on statements may be examined at the that the Plan may be deemed to December 1, 1997. places specified in Item IV below. The constitute a joint arrangement within By the Commission. Board has prepared summaries, set forth the meaning of rule 17d–1. Applicants Jonathan G. Katz, in Sections, A, B, and C below, of the state that the Eligible Trustees will not Secretary. most significant aspects of such share in any increase or decrease in the [FR Doc. 97–30490 Filed 11–17–97; 11:37 statements. value of amounts retained by the Trust am] A. Self-Regulatory Organization’s or otherwise participate in that BILLING CODE 8010±01±M Statement of the Purpose of, and investment experience. Except for Statutory Basis for, the Proposed Rule accrued interest to be paid on Deferral Change Accounts, Eligible Trustees will receive SECURITIES AND EXCHANGE the same fixed amounts that would have COMMISSION 1. Purpose been received if fees were paid on a [Release No. 34±39320; File No. SR±MSRB± The Examination is the only current basis. Therefore, applicants 97±7] examination a candidate may take to assert that the Trust’s obligation to make qualify as a municipal securities payments to Trustees under the Plan Self-Regulatory Organizations; Notice principal. A municipal securities will not be based upon a level of the of Filing and Immediate Effectiveness principal manages, directs or supervises Trust’s income, its realized gains or of Proposed Rule Change by the the municipal securities activities of a losses on investments, or the unrealized Municipal Securities Rulemaking broker, dealer or municipal securities appreciation or depreciation of its Board to Revise the Study Outline for dealer. Specific subjects and questions assets. Applicants believe that the the Board's Municipal Securities have been updated from time to time in selection of the Equitable Rate is Principal Qualification Examination the Examination to reflect changes in inherently no different from the (Test Series 53) Board rules or applicable federal selection of a prime rate, the interest regulation. The Board’s Professional rate on U.S. Treasury Bills, or other November 12, 1997. Qualification Advisory Committee assumed interest rates for fixed Pursuant to section 19(b)(1) of the (‘‘PQAC’’) 1 determined that the content retirement type obligations. Thus, Securities Exchange Act of 1934 Applicants contend that the selection of (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is 1 PQAC is composed of the Representative the Equitable Rate as a convenient hereby given that on October 16, 1997, Examination Subcommittee and the Principal reference point does not represent a the Municipal Securities Rulemaking Continued 61858 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices of the study outline should be revised B. Self-Regulatory Organization’s the Commission’s Public Reference to reflect additions to and changes in Statement on Burden on Competition Room. Copies of the filing will also be Board rules since the outline was last The Board does not believe that the available for inspection and copying at revised. The revised outline also proposed rule change will impose any the Board’s principal offices. All provides for the inclusion of new Board burden on competition not necessary or submissions should refer to File No. rules as they are promulgated. appropriate in furtherance of the SR–MSRB–97–7 and should be Treatment of the following existing purposes of the Act. submitted by December 10, 1997. Board rules has changed in the revised For the Commission by the Division of study outline: C. Self-Regulatory Organization’s Market Regulation, pursuant to delegated Statement on Comments on the • Rule G–3 on professional authority, 17 CFR 200.30–3(a)(12). Proposed Rule Change Received From qualifications. Margaret H. McFarland, Members, Participants, or Others • Rule G–8 on books and records. Deputy Secretary. Written comments were neither • Rule G–23 on activities of financial [FR Doc. 97–30340 Filed 11–18–97; 8:45 am] solicited nor received. advisors. BILLING CODE 8010±01±M • Rule G–34 on CUSIP numbers and III. Date of Effectiveness of the new issue requirements. Proposed Rule Change and Timing for • Rule G–37 on political Commission Action DEPARTMENT OF TRANSPORTATION contributions and prohibitions on Because the foregoing proposed rule Federal Aviation Administration municipal securities business. change: (i) does not significantly affect • Rule G–38 on consultants. the protection of investors or the public Advisory Circular 27±1A, Certification • Rule G–39 on telemarketing. interest; (ii) does not impose any of Normal Category Rotorcraft The test specifications for the significant burden on competition; (iii) was provided to the Commission for its AGENCY: Federal Aviation Examination have not been changed, Administration (FAA), DOT. and it will remain a three-hour 100 review at least five days prior to the filing date; and (iv) does not become ACTION: Notice of issuance and question examination administered by availability. National Association of Securities operative for thirty (30) days from the date of its filing on October 16, 1997, Dealers Regulation, Inc. (‘‘NASDR’’) SUMMARY: Advisory Circular (AC) 27– the proposed rule change has become using the PROCTOR system. 1A, Certification of Normal Category effective pursuant to Section 19(b)(3)(A) Rotorcraft, is a total revision of AC 27– Examinations administered after of the Act and Rule 19b–4(e)(6) 1 dated August 29, 1985, with changes January 1, 1998 will include an exhibits thereunder. In particular, the 1, 2, 3, and 4 dated September 16, 1987, book, which is a compilation of Commission believes the proposed rule April 24, 1989, September 12, 1991, and materials (e.g., syndicate agreement, change qualifies as a ‘‘non-controversial August 18, 1995, respectively, trade blotter) that a principal might filing’’ in that the proposed Standards incorporated. In addition, new material employ in the conduct of his job do not significantly affect the protection plus changes to existing paragraphs responsibilities, and will be used to of investors or the public interest and do have been incorporated to bring the AC answer certain questions. not impose any significant burden on up-to-date with various rule changes to 2. Statutory Basis competition. At any time within sixty days of the filing of the proposed rule 14 CFR Part 27. As part of the FAA It is the Board’s responsibility under change, the Commission may summarily effort to achieve national Section 15B(b)(2)(A) of the Act, to abrogate such rule change if it appears standardization in rotorcraft propose and adopt rules which to the Commission that such action is certification, the AC serves as a ready provide that no municipal securities broker necessary or appropriate in the public reference for manufacturers, modifiers, or municipal securities dealer shall effect any interest, for the protection of investors, FAA design evaluation engineers, flight transaction in, or induce the purchase or sale or otherwise in furtherance of the test engineers, and engineering flight of, any municipal security unless * * * such purposes of the Act. test pilots and has been harmonized municipal securities broker or municipal with the Joint Aviation Authority (JAA) securities dealer and every natural person IV. Solicitation of Comments to establish common guidance for the associated with such municipal securities Interested persons are invited to U.S. and for JAA member nations. The broker or municipal securities dealer meets submit written data, views, and AC material has no legally binding such standards of training, experience, status and must be treated as advisory competence, and such other qualifications as arguments concerning the foregoing. the Board finds necessary or appropriate in Persons making written submissions only. the public interest or for the protection of should file six copies thereof with the DATES: AC 27–1A was issued by the investors. Secretary, Securities and Exchange Rotorcraft Directorate, Aircraft Commission, 450 Fifth Street, NW., Certification Service, on July 30, 1997. Section 15B(b)(2)(A) of the Act also Washington, DC 20549. Copies of the How to Order: A copy of AC 27–1A provides that the Board may submissions, all subsequent may be purchased from the appropriately classify municipal amendments, all written statements Superintendent of Documents, Mail securities brokers and municipal with respect to the proposed rule Stop: SSOP, U.S. Government Printing securities dealers and their associated change that are filed with the Office, Washington, DC 20402, or from personnel and require persons in any Commission, and all written any of the Government Printing Offices such class to pass tests prescribed by the communications relating to the located in major cities throughout the Board. proposed rule change between the United States. Identify the publication Commission and any person, other than as AC 27–1A, Certification of Normal Examination Subcommittee. The subcommittees are those that may be withheld from the Category Rotorcraft, Stock Number 050– composed of individuals with extensive experience in the securities industry. The committee members public in accordance with the 007–01186–5. The cost is $57.00 per are employed by securities firms and bank dealers provisions of 5 U.S.C. 552, will be copy for orders mailed within the U.S. and come from diverse geographic locations. available for inspection and copying in and $71.25 for orders mailed outside of Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61859 the U.S. Send a check or money order, Category Rotorcraft, Stock Number 050– may be reviewed between the hours of made payable to Superintendent of 007–01187–3. The cost if $63.00 per 8:30 a.m. and 5:00 p.m., Monday Documents, with your request. Requests copy for orders mailed within the U.S. through Friday, except Federal holidays. may also be made by calling the and $78.75 for orders mailed outside of Requests for a copy of an information Government Printing Office at 202–512– the U.S. Send a check or money order, collection should be directed to Deborah 1800. No c.o.d. orders are accepted. made payable to Superintendent of Boothe, Office of Hazardous Materials FOR FURTHER INFORMATION CONTACT: Documents, with your request. Requests Standards (DHM–10), Research and Ms. Kathy Jones, FAA, Rotorcraft may also be made by calling the Special Programs Administration, Room Standards Staff, Rotorcraft Directorate, Government Printing Office at 202–512– 8102, 400 Seventh Street, SW, Aircraft Certification Service, Fort 1800. No c.o.d. orders are accepted. Washington, DC 20590–0001, Worth, Texas 76193–0110, telephone FOR FURTHER INFORMATION CONTACT: Ms. Telephone (202) 366–8553. (817) 222–5359, fax (817) 222–5961. Kathy Jones, FAA, Rotorcraft Standards FOR FURTHER INFORMATION CONTACT: Issued in Fort Worth, Texas, on November Staff, Rotorcraft Directorate, Aircraft Deborah Boothe, Office of Hazardous 7, 1997. Certification Service, Fort Worth, Texas Materials Standards (DHM–10), Eric Bries, 76193–0110, telephone (817) 222–5359, Research and Special Programs Acting Manager, Rotorcraft Directorate, fax (817) 222–5961. Administration, Room 8102, 400 Aircraft Certification Service. Issued in Fort Worth, Texas, on November Seventh Street, SW, Washington, DC [FR Doc. 97–30359 Filed 11–18–97; 8:45 am] 7, 1997. 20590–0001, Telephone (202) 366–8553. BILLING CODE 4910±13±M Eric Bries, SUPPLEMENTARY INFORMATION: Section Acting Manager, Rotorcraft Directorate, 1320.8 (d), Title 5, Code of Federal Aircraft Certification Service. Regulations requires that RSPA provide DEPARTMENT OF TRANSPORTATION [FR Doc. 97–30358 Filed 11–18–97; 8:45 am] interested members of the public and BILLING CODE 4410±13±M affected agencies an opportunity to Federal Aviation Administration comment on information collection and Advisory Circular 20±2B, Certification recordkeeping requests. This notice of Transport Category Rotorcraft DEPARTMENT OF TRANSPORTATION identifies information collections that RSPA is submitting to OMB for renewal AGENCY: Federal Aviation Research and Special Programs and extension. These collections are Administration (FAA), DOT. Administration contained in the Hazardous Materials ACTION: Notice of issuance and [Notice No. 97±12] Regulations (HMR; 49 CFR parts 171– availability. 180). RSPA has revised burden Information Collection Activities estimates, where appropriate, to reflect SUMMARY: Advisory Circular (AC) 29– current reporting levels or adjustments 2B, Certification of Transport Category AGENCY: Research and Special Programs based on changes in proposed or final Rotorcraft, is a total revision of AC 29– Administration (RSPA), DOT. rules published since the information 2A dated September 16, 1987, with ACTION: Notice and request for collections were last approved. The changes 1, 2, and 3, dated April 24, comments. following information is provided for 1989, September 24, 1991, and June 1, each information collection: (1) Title of SUMMARY: 1995, respectively, incorporated. In In accordance with the the information collection, including addition, new material plus changes to Paperwork Reduction Act of 1995, former title if a change is being made; existing paragraphs have been RSPA invites comments on certain (2) OMB control number; (3) summary incorporated to bring the AC up-to-date information collections pertaining to of the information collection activity; (4) with various rule changes to 14 CFR hazardous materials transportation for description of affected public; (5) Part 29. As part of the FAA effort to which RSPA intends to request renewal estimate of total annual reporting and achieve national standardization in from the Office of Management and recordkeeping burden; and (6) rotorcraft certification, the AC serves as Budget (OMB). frequency of collection. RSPA will a ready reference for manufacturers, DATES: Interested persons are invited to request a three-year term of approval for modifiers, FAA design evaluation submit comments on or before January each information collection activity and, engineers, flight test engineers, and 20, 1998. when approved by OMB, publish notice engineering flight test pilots and has ADDRESSES: Address written comments of the approval in the Federal Register. been harmonized with the Joint to the Dockets Unit (DHM–30), Room RSPA requests comments on the Aviation Authority (JAA) to establish 8421, Research and Special Programs following information collections: common guidance for the U.S. and for Administration, U.S. Department of Title: Hazardous Materials Shipping JAA member nations. The AC material Transportation, 400 Seventh St., SW, Papers and Emergency Response has no legally binding status and must Washington, DC 20590–0001. Information (Former Title: Hazardous be treated as advisory only. Comments may also be submitted by e- Materials Shipping Papers). DATES: AC 29–2B was issued by the mail to: rules @ rspa.dot.gov, or faxed to OMB Control Number: 2137–0034. Rotorcraft Directorate, Aircraft (202) 366–3753. Comments should Summary: Shipping papers and Certification Service, on July 30, 1997. identify the Notice number (97–12) and emergency response information are a How to Order: A copy of AC 29–2B the appropriate Office of Management basic communication tool used in the may be purchased from the and Budget (OMB) Control Number(s). safe transportation of hazardous Superintendent of Documents, Mail Mailed written comments should be materials. They serve as a principal Stop: SSOP, U.S. Government Printing submitted in two copies. Persons means of identifying hazardous Office, Washington, DC 20402, or from wishing to receive confirmation of materials during transportation, any of the Government Printing Offices receipt of their mailed written including emergencies, by providing the located in major cities throughout the comments should include a self- proper shipping name, hazard class, UN United States. Identify the publication addressed, stamped postcard showing identification number, packing group, as AC 29–2B, Certification of Transport the Notice number. Public information and quantity of each hazardous material 61860 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices being transported. Shipping papers also shippers using foreign-made packages Corporate Activities, Office of Thrift provide emergency response hold a foreign competent authority Supervision, or her designee, acting information for use in the mitigation of certificate and verification that the pursuant to delegated authority, an incident, and an emergency response terms of the certificate are being approved the application of First telephone number for use in the event followed for RAM shipments being Federal Savings and Loan Association of of an emergency. The telephone number made into this country; and specific Cheraw, Cheraw, South Carolina, to must be monitored at all times the handling instructions from shippers to convert to the stock form of hazardous material is in transportation, carriers for fissile RAM, bulk shipments organization. Copies of the application by a person who is either of low specific activity RAM and are available for inspection at the knowledgeable of the hazardous packages of RAM which emit high Dissemination Branch, Office of Thrift material being shipped and has levels of external radiation. These Supervision, 1700 G Street, NW, comprehensive emergency response and information collection requirements Washington, DC 20552, and the incident mitigation information for that help to establish that proper packages Southeast Regional Office, Office of material, or has immediate access to a are used for the type of radioactive Thrift Supervision, 1475 Peachtree person who possesses such knowledge material being transported, external and information. Shipping papers also radiation levels do not exceed Street, N.E., Atlanta, GA 30309. serve as a means of notifying transport prescribed limits, packages are handled Dated: November 14, 1997. workers that hazardous materials are appropriately and delivered in a timely By the Office of Thrift Supervision. present, so that the proper loading, manner, so as to ensure the safety of the Nadine Y. Washington, unloading, handling and safety general public, transport workers and Corporate Secretary. procedures may be followed. This emergency responders. This information information collection renewal includes collection has been adjusted to reflect [FR Doc. 97–30381 Filed 11–18–97; 8:45 am] new requirements for: shippers and program changes regarding BILLING CODE 6720±01±M carriers to retain shipping papers for responsibility for the routing of highway one year as mandated by Section controlled quantities of radioactive 5110(e) under the Federal hazardous materials. material transportation law; compliance Affected Public: Shippers and carriers DEPARTMENT OF VETERANS with the HMR by intrastate shippers and of radioactive materials. AFFAIRS carriers, published under Docket HM– Annual Reporting and Recordkeeping: 200, ‘‘Hazardous Materials in Intrastate Number of Respondents: 3,807. Gulf War Expert Scientific Advisory Commerce; Final Rule’’, on January 8, Total Annual Responses: 21,319.2. Committee, Notice of Charter Renewal 1997 (62 FR 1108); and the President’s Total Annual Burden Hours: 14,480. initiative to reduce the regulatory Frequency of collection: On occasion. This gives notice under the Federal burdens imposed by the Federal Advisory Committee Act, as amended Issued in Washington, DC on November 14, (Pub. L. 92–463; 5 U.S.C. App.), that the government. 1997. Affected Public: Shippers and carriers Department of Veterans Affairs’ Gulf of hazardous materials in intrastate, Edward T. Mazzullo, War Expert Scientific Advisory interstate, and foreign commerce. Director, Office of Hazardous Materials Committee (formerly named Persian Standards. Annual Reporting and Recordkeeping: Gulf Expert Scientific Committee) has [FR Doc. 97–30352 Filed 11–18–97; 8:45 am] Number of Respondents: 250,000. been renewed for a 2-year period Total Annual Responses: 260,000,000. BILLING CODE 4910±60±P beginning November 10, 1997, through Total Annual Burden Hours: 6,500,000. November 10, 1999. Frequency of collection: On occasion. DEPARTMENT OF THE TREASURY Dated: November 12, 1997. Title: Radioactive Materials By Direction of the Acting Secretary. (RAM)Transportation Requirements. Office of Thrift Supervision Heyward Bannister, OMB Control Number: 2137–0510. Summary: The requirements for [AC±35: OTS No. 00770] Committee Management Officer. [FR Doc. 97–30401 Filed 11–18–97; 8:45 am] transportation of RAM are provided in First Federal Savings and Loan 49 CFR parts 171–180. Information Association of Cheraw, Cheraw, South BILLING CODE 8320±01±M collection requirements for RAM Carolina, Approval of Conversion include shipper notification to Application consignees of the dates of shipment of RAM, expected arrival, special loading/ Notice is hereby given that on unloading instructions; verification that November 12, 1997, the Director, federal register November 19,1997 Wednesday Actions UndertheGuidelines;Notice Recombinant DNAResearch:Proposed National InstitutesofHealth Services Health andHuman Department of Part II 61861 61862 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

DEPARTMENT OF HEALTH AND DNA Activities web site is located at Institutional Review Board); (6) Informed HUMAN SERVICES http://www.nih.gov/od/orda for further Consent Document—approved by the information about the office. Institutional Review Board (see Appendix National Institutes of Health M–III, Informed Consent); (7) appendices I. Proposed Actions Regarding (including tables, figures, and manuscripts); Recombinant DNA Research: Amendments to the NIH Guidelines and (8) curricula vitae—2 pages for each key Proposed Actions Under the professional person in biographical sketch The NIH will consider the following format. Investigational New Drug (IND) Guidelines actions under the NIH Guidelines for applications shall be submitted to FDA in the AGENCY: National Institutes of Health Research Involving Recombinant DNA format described in 21 CFR, Chapter I, (NIH), PHS, DHHS. Molecules (NIH Guidelines): Subchapter D, Part 312, Subpart B, Section 23, IND Content and Format. Submissions to ACTION: Notice of proposed actions I–A. Amendment to Appendix M–I, FDA should be sent to the Division of under the NIH Guidelines for Research Submission Requirements—Human Congressional and Public Affairs, Document Involving Recombinant DNA Molecules Gene Transfer Experiments, Under the Control Center, HFM–99, Center for Biologics (NIH Guidelines). NIH Guidelines Regarding Deadline for Evaluation and Research, 1401 Rockville Submission for RAC Review Pike, Rockville, Maryland 20852–1448. SUMMARY: This notice sets forth ‘‘Note: Submission material will be proposed actions to be taken under the On November 12, 1997, Dr. Scott accepted by NIH/ORDA at any time. NIH Guidelines for Research Involving McIvor, a member of the Recombinant However, if a protocol is recommended for Recombinant DNA Molecules (59 FR DNA Advisory Committee (RAC), full RAC review, the submission material 34496, amended 59 FR 40170, 60 FR requested a proposed action regarding must be received in NIH/ORDA a minimum 20726, 61 FR 1482, 61 FR 10004, 62 FR the deadline for submission of human of eight weeks prior to the next scheduled 4782, 62 FR 53335, 62 FR 56196, 62 FR gene transfer protocols that will require RAC meeting.’’ 59032). Interested parties are invited to public discussion at the RAC meetings. I–B. Amendment to Appendix K, submit comments concerning these To give the RAC sufficient time to Physical Containment for Large Scale proposals. These proposals will be review the protocols and the Uses of Organisms Containing considered by the Recombinant DNA investigators to respond to primary Recombinant DNA Molecules, of the Advisory Committee (RAC) at its reviewer’s written comments, Appendix NIH Guidelines meeting on December 15–16, 1997, M–I, Submission Requirements— Human Gene Transfer Experiments, of In a letter dated November 5, 1997, along with the proposed actions Gerard J. McGarrity, Ph.D., Senior Vice published in the Federal Register on the NIH Guidelines, is proposed to be amended to include a statement President for Development, Genetic October 16, 1997 (62 FR 53908). After Therapy, Inc., Gaithersburg, Maryland, consideration of these proposals and regarding the submission deadline. Submission material will be accepted by requested amendments to Appendix K, comments by the RAC, the NIH Director Physical Containment for Large Scale of will issue decisions in accordance with NIH/ORDA at any time. However, if a protocol is recommended for full RAC Uses of Organisms Containing the NIH Guidelines. Recombinant DNA Molecules, of the DATES: Interested parties are invited to review, the submission material must be received in NIH/ORDA a minimum of NIH Guidelines to clarify the submit comments concerning the containment requirements for large proposed actions. Comments received eight weeks prior to the next scheduled RAC meeting. scale production of viral vectors for by December 8, 1997, will be gene therapy. The letter states that: reproduced and distributed to the RAC Appendix M–I is proposed to read: for consideration at its December 15–16, ‘‘Appendix M–I. Submission Requirements— ‘‘The purpose of this correspondence is to Human Gene Transfer Experiments point out a section of Appendix K of the NIH 1997, meeting. After consideration of Guidelines (January 1997) that requires this proposal and comments by the ‘‘Investigators must submit the following clarification for large scale production of RAC, the NIH Director will issue material to the Office of Recombinant DNA viral vectors for gene therapy. decisions in accordance with the NIH Activities, National Institutes of Health/MSC ‘‘Appendix K specifies containment Guidelines. 7010, 6000 Executive Boulevard, Suite 302, guidelines for research or production Bethesda, Maryland 20892–7010, (301) 496– material that exceed 10 liters in volume. Each ADDRESSES: Written comments and 9838 (see exemption in Appendix M–VIII–A, recommendations should be submitted of the large scale (LS) biosafety levels (BL): Footnotes of Appendix M). Proposals shall be Good Large Scale Production (GLSP), BL1/LS to Debra Knorr, Office of Recombinant submitted to NIH/ORDA in the following (Appendix K–III–C), BL2/LS (Appendix K– DNA Activities, National Institutes of order: (1) Scientific abstract; (2) non- IV–C) and BL3/LS (Appendix K–V–C) specify Health, MSC 7010, 6000 Executive technical abstract; (3) Institutional Biosafety the requirements that: Boulevard, Suite 302, Bethesda, Committee and Institutional Review Board ‘Culture fluids (except as allowed by Maryland 20892–7010, Phone 301–496– approvals and their deliberations pertaining Appendix K–III–D, K–IV–D, K–V–D) shall 9838, FAX 301–496–9839. to your protocol (Instutitional Biosafety not be removed from a closed system or other All comments received in response to Committee approval must be obtained from primary containment equipment unless the each institution at which recombinant DNA viable organisms containing recombinant this notice will be considered and will material will be administered to human be available for public inspection in the DNA molecules have been inactivated by a subjects (as opposed to each institution validated inactivation procedure.’ above office on weekdays between the involved in the production of vectors for ‘‘Related language addresses the primary hours of 8:30 a.m. and 5:00 p.m. human application and each institution at containment equipment: FOR FURTHER INFORMATION CONTACT: which there is ex vivo transduction of ‘A closed system or other primary Background documentation and recombinant DNA material into target cells containment equipment that has contained additional information can be obtained for human application)); (4) Responses to viable organisms containing recombinant from the Office of Recombinant DNA Appendix M–II through M–V. Description of DNA molecules shall not be opened for the Proposal, Informed Consent, Privacy and Activities, National Institutes of Health, maintenance or other purposes unless it has Confidentiality, and Special Issues (the been sterilized by a validated sterilization MSC 7010, 6000 Executive Boulevard, pertinent responses can be provided in the procedure.’ (Sections K–III–F, K–IV–F and Suite 302, Bethesda, Maryland 20892– protocol or as an appendix to the protocol); K–V–F) 7010, Phone 301–496–9838, FAX 301– (5) clinical protocol (as approved by the local ‘‘As its title (Physical Containment for 496–9839. The Office of Recombinant Institutional Biosafety Committee and Large Scale Uses of Organisms Containing Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61863

Recombinant DNA Molecules) indicates. Appendix K–III–C is proposed to using the organisms that will serve as the Appendix K was written to deal with read: host for propagating the recombinant DNA prokaryotic and eukaryotic cells that molecules.’’ elaborate proteins expressed by recombinant ‘‘Appendix K–III. Biosafety Level (BL1)— DNA molecules. It was not intended for the Large Scale Appendix K–V–C is proposed to read: production of viral vectors used in gene ‘‘Appendix K–III–C. Culture fluids (except ‘‘Appendix K–V. Biosafety Level 3 (BL3)— therapy. If fact, adherence to sections K–III– as allowed in Appendix K–III–D) shall not be Large Scale C, K–IV–C, or K–V–C is incompatible with removed from a closed system or other ‘‘Appendix K–V–C. Culture fluids (except the production and harvest of viral vectors in primary containment equipment unless the as allowed in Appendix K–V–D) shall not be volumes larger than 10 liters as active viral viable organisms containing recombinant removed from a closed system or other vectors must be removed from the DNA molecules have been inactivated by a primary containment equipment unless the equipment. Clearly, this was not the purpose validated inactivation procedure. A validated viable organisms containing recombinant of Appendix K. inactivation procedure is one which has been DNA molecules have been inactivated by a ‘‘Several possible solutions exist. First, demonstrated to be effective using the validated inactivation procedure. A validated Section III–D–6 of the Guidelines, organism that will serve as the host for inactivation procedure is one which has been ‘Experiments Involving More Than 10 Liters propagating the recombinant DNA molecules. demonstrated to be effective using the Of Culture,’ states: Culture fluids that contain viable organisms organisms that will serve as the host for ‘The appropriate containment will be or viral vectors intended as final product may propagating the recombinant DNA molecules. decided by the Institutional Biosafety be removed from the primary containment Culture fluids that contain viable organisms Committee. Where appropriate, Appendix K, equipment by way of closed systems for or viral vectors intended as final product may Physical Containment for Large Scale Uses of sample analysis, further processing or final be removed from the primary containment Organisms Containing Recombinant DNA fill.’’ Molecules, shall be used.’ equipment by way of closed systems for ‘‘We interpret this to mean that for Appendix K–III–F is proposed to read: sample analysis, further processing or final fill.’’ production of viral vectors, the IBC has the ‘‘Appendix K–III–F. A closed system or authority to establish the specifics of large other primary containment equipment that Appendix K–V–F is proposed to read: scale containment, using the principles has contained viable organisms containing ‘‘Appendix K–V–F. A closed system or described in Appendix K. For harvesting of recombinant DNA molecules shall not be supernatant fluids that contain the viral other primary containment equipment that opened for maintenance or other purpose has contained viable organisms containing vector product, the IBC can establish unless it has been sterilized by a validated recombinant DNA molecules shall not be practices and facilities which are consistent sterilization procedure except when the opened for maintenance or other purposes with the objectives and spirit of the NIH culture fluids contain viable organisms or unless it has been sterilized by a validated Guidelines. vectors intended as final product as sterilization procedure except when the ‘‘In this regard, Genetic Therapy, Inc., has described in Section K–III–C above. A culture fluids contain viable organisms or adhered to Section III–D–6 in the validated sterilization procedure is one vectors intended as final product as establishment of facilities and practices for which has been demonstrated to be effective described in Section K–V–C above. A large scale production of retroviral vectors to using the organism that will serve as the host validated sterilization procedure is one the extent that Sections can be applied to for propagating the recombinant DNA which has been demonstrated to be effective viral vectors. These have included the molecules.’’ practices for the appropriate large scale using the organisms that will serve as the biosafety level except for the requirement to Appendix K–IV–C is proposed to host for propagating the recombinant DNA inactivate the culture fluids and to sterilize read: molecules.’’ the primary containment equipment prior to ‘‘Appendix K–IV. Biosafety Level 2 (BL2)— I–C. Amendment to Section III–D–6, opening the primary containment equipment Large Scale and removing the culture fluids. These Experiments Involving More Than 10 practices have been approved by our IBC. ‘‘Appendix K–IV–C. Culture fluids (except Liters of Culture, of the NIH Guidelines as allowed in Appendix K–IV–D) shall not be ‘‘A second possible solution is to limit In a letter dated November 6, 1997, volumes to less than 10 liters. However, this removed from a closed system or other primary containment equipment unless the Richard A. Knazek, Medical Officer, will be impractical for commercial purposes. Clinical Research, National Center for Third, the Guidelines can be modified to viable organisms containing recombinant address the requirements for large scale DNA molecules have been inactivated by a Research Resources, NIH, requested an production of viral vectors for gene therapy. validated inactivation procedure. A validated amendment to Section III–D–6, ‘‘For the longer term, we believe it is most inactivation procedure is one which has been Experiments Involving More Than 10 appropriate to revise the relevant portions of demonstrated to be effective using the Liters of Culture, of the NIH Guidelines. Appendix K to enable application of large organism that will serve as the host for Dr. Knazek proposed an addition of a scale to viral vectors. We request that RAC propagating the recombinant DNA molecules. statement, ‘‘When more than 10 Liters of address this issue and propose the following Culture fluids that contain viable organisms or viral vectors intended as final product may culture media is to be produced within language be added to the end of Section K– a GMP-accredited facility for subsequent III–C, K–IV–C and K–V–C of Appendix K: be removed from the primary containment ‘Culture fluids that contain viable equipment by way of closed systems for clinical use, the level of appropriate organisms or viral vectors intended as final sample analysis, further processing or final containment shall be determined by the product may be removed from the primary fill.’’ Institutional Biosafety Committee (IBC) containment equipment by way of closed Appendix K–IV–F is proposed to affiliated with the institution where the systems for sample analysis, further read: investigator will perform the clinical processing or final fill.’ manipulation of the vector.’’ Dr. Knazek ‘‘We propose the following language be ‘‘Appendix K–IV–F. A closed system or stated the rationale of his request as other primary containment equipment that added to the end of the first sentence of follows: Sections K–III–F, K–IV–F and K–V–F: has contained viable organisms containing ‘* * * except when the culture fluids recombinant DNA molecules shall not be ‘‘The purpose of this amendment is to contain viable organisms or vectors intended opened for maintenance or other purposes prevent an additional layer of bureaucracy as final product as described in Section K– unless it has been sterilized by a validated from impeding the implementation of an III–C (or K–IV–C or K–V–C respectively) sterilization procedure except when the appropriately reviewed and approved gene above.’ culture fluids contain viable organisms or therapy protocol. ‘‘We believe these additions maintain the vectors intended as final product as ‘‘The risks due to exposure to a gene vector original concept of Appendix K while described in Section K–IV–C above. A will be greatest at the time when the final addressing the needs of specific product validated sterilization procedure is one media product is either incubated with the types.’’ which has been demonstrated to be effective target cells (ex vivo transduction) and/or 61864 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices infused into the recipient (in vivo Containment for Large Scale Uses of in which DNA recombinant molecule transduction). The IBC at that clinical Organisms Containing Recombinant DNA techniques could be used, it has been institution bears the responsibility of being Molecules, shall be used. Appendix K determined not to be cost effective or in knowledgeable about attendant risks to the describes containment conditions Good Large the public interest to attempt to list investigator, laboratory and medical Scale Practice through BL3–Large Scale. these programs. Such a list would likely personnel, patient and the environment. When more than 10 Liters of culture media ‘‘While being produced within a qualified is to be produced within a GMP-accredited require several additional pages. In GMP facility, the vector is, by definition, facility for subsequent clinical use, the level addition, NIH could not be certain that both protected from the environment and of appropriate containment shall be every Federal program would be prevented from escaping into the determined by the IBC affiliated with the included as many Federal agencies, as environment. institution where the investigator will well as private organizations, both ‘‘Clearly, the vector and its proposed use perform the clinical manipulation of the national and international, have elected must be scrutinized by an IBC. However, the vector.’’ to follow the NIH Guidelines. In lieu of IBC review of the vector and its protocol is the individual program listing, NIH most appropriately performed at the clinical OMB’s ‘‘Mandatory Information invites readers to direct questions to the site rather than at the GMP facility. Review Requirements for Federal Assistance by more than one IBC would be redundant.’’ information address above about Program Announcements’’ (45 FR whether individual programs listed in Section III–D–6 is proposed to read: 39592) requires a statement concerning the Catalog of Federal Domestic ‘‘Section III–D. Experiments That Require the official government programs Assistance are affected. contained in the Catalog of Federal Institutional Biosafety Committee Approval Dated: November 12, 1997. Before Initiation Domestic Assistance. Normally NIH lists Lana R. Skirboll, ‘‘Section III–D–6. Experiments Involving in its announcements the number and More than 10 Liters of Culture. The title of affected individual programs for Associate Director for Science Policy, appropriate containment will be decided by the guidance of the public. Because the National Institutes of Health. the Institutional Biosafety Committee. Where guidance in this notice covers virtually [FR Doc. 97–30321 Filed 11–18–97; 8:45 am] appropriate, Appendix K, Physical every NIH and Federal research program BILLING CODE 4140±01±M federal register November 19,1997 Wednesday Proposed Rule Appreciation ofaClient'sAccount; Capital GainsUponor To ChargeFeesBasedUponaShareof Exemption toAllowInvestmentAdvisers 17 CFRPart275 Proposed Rule Investment AdvisersActof1940; Rules ImplementingAmendmentstothe Operating inMultipleStates;Revisionsto Exemption forInvestmentAdvisers 17 CFRParts275and279 Commission Exchange Securities and Part III 61865 61866 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

SECURITIES AND EXCHANGE 1940 [15 U.S.C. 80b–1 et seq.] number of accommodation clients who COMMISSION (‘‘Advisers Act’’). The Commission also have certain business or familial is proposing to withdraw rule 203A–5 relationships with the supervised 17 CFR Parts 275 and 279 [17 CFR 275.203A–5] and Form ADV–T person or the supervised person’s [17 CFR 279.3] under the Advisers Act. business or institutional clients. [Release No. IA±1681, File No. S7±28±97] Table of Contents I. Background RIN 3235±AH22 Executive Summary Last year, Congress enacted the Exemption for Investment Advisers I. Background National Securities Markets Operating in Multiple States; Revisions II. Discussion Improvement Act of 1996 (‘‘1996 to Rules Implementing Amendments to A. Multi-State Investment Adviser Act’’). 1 Title III of the 1996 Act, the the Investment Advisers Act of 1940 Exemption From Prohibition on Investment Advisers Supervision Registration With the Commission Coordination Act (‘‘Coordination Act’’), AGENCY: Securities and Exchange B. Definition of Investment Adviser amended the Advisers Act by Commission. Representative 1. Accommodation Clients reallocating federal and state ACTION: Proposed rules. 2. ‘‘High Net Worth’’ Clients responsibilities for regulation of C. Other Amendments investment advisers. By limiting federal SUMMARY: The Commission is 1. Pension Consultants—Determining the registration and preempting certain state publishing for comment under the Value of Assets of Plans laws, the Coordination Act divided Investment Advisers Act of 1940 rule 2. Rule 206(4)–3—Cash Payments for regulatory responsibilities for the amendments to exempt multi-state Client Solicitations approximately 23,350 investment investment advisers from the 3. Schedule I to Form ADV advisers that were registered with the prohibition on Commission registration 4. Transition Rule 203A–5 and Form Commission. 2 The Coordination Act and two alternative amendments to ADV–T became effective on July 8, 1997. revise the definition of the term D. General Request for Comment Under new section 203A(a) of the III. Cost-Benefit Analysis ‘‘investment adviser representative.’’ 3 IV. Paperwork Reduction Act Advisers Act, an investment adviser The Commission is proposing these V. Summary of Regulatory Flexibility that is regulated or required to be amendments to refine the rules Analysis regulated as an investment adviser in implementing the Investment Advisers VI. Statutory Authority the state in which it maintains its Supervision Coordination Act. Text of Proposed rule and Form principal office and place of business is DATES: Comments must be received on Amendments prohibited from registering with the or before January 20, 1998. Appendix A: Schedule I to Form ADV Commission unless the investment ADDRESSES: Comments should be Executive Summary adviser (i) has at least $25 million of assets under management, or (ii) is an submitted in triplicate to Jonathan G. Section 203A of the Advisers Act Katz, Secretary, Securities and Exchange investment adviser to an investment generally prohibits an investment company registered under the Commission, 450 Fifth Street, N.W., adviser from registering with the Stop 6–9, Washington, D.C. 20549. Investment Company Act of 1940 Commission unless it has more than $25 (‘‘Investment Company Act’’). 4 Section Comments also may be submitted million of assets under management or electronically at the following E-mail 203A(b) of the Advisers Act generally is an adviser to a registered investment preempts state law with respect to address: [email protected]. All company. Section 203A also preempts comment letters should refer to File No. Commission-registered investment most state regulatory requirements for 5 S7–28–97; this file number should be advisers. Commission-registered investment On May 15, 1997, the Commission included on the subject line if E-mail is advisers and their supervised persons adopted new rules and rule used. Comment letters will be available except for certain ‘‘investment adviser for public inspection and copying in the representatives.’’ The Commission is 1 Pub. L. No. 104–290, 110 Stat. 3416 (1996) Commission’s Public Reference Room, proposing an exemption from the (codified in scattered sections of the United States 450 Fifth Street, N.W., Washington, D.C. prohibition on Commission registration Code). 2 Other amendments made by the 1996 Act to the 20549. Electronically submitted for advisers required to register as an comment letters also will be posted on Advisers Act include revisions to (i) section 205 [15 investment adviser in 30 or more states. U.S.C. 80b–5] to create additional exceptions to the the Commission’s Internet web site The Commission also is proposing two Advisers Act’s limitations on performance fee (http://www.sec.gov). arrangements, (ii) section 222 [15 U.S.C. 80b–18a] alternative amendments to the to impose certain uniformity requirements on state FOR FURTHER INFORMATION CONTACT: definition of investment adviser investment adviser laws, (iii) section 203(e) [15 Carolyn-Gail Gilheany, Attorney, or representative. Under the current U.S.C. 80b–3(e)] to permit the Commission to deny Jennifer S. Choi, Special Counsel, at definition, supervised persons of or revoke the registration of any person convicted (202) 942–0716, Task Force on of any felony (or any person associated with such Commission-registered investment investment adviser), and (iv) section 203(b) [15 Investment Adviser Regulation, Division advisers will not be subject to state U.S.C. 80b–3(b)] to exempt from registration certain of Investment Management, Stop 10–6, qualification requirements if no more advisers to church employee pension plans. See Securities and Exchange Commission, than ten percent of their clients are sections 210, 304, 305(a), and 508(d) of the 1996 450 Fifth Street, N.W., Washington, D.C. Act. natural persons (‘‘ten percent 3 15 U.S.C. 80b–3a(a). 20549. allowance’’). The Commission is 4 The Commission has authority to deny SUPPLEMENTARY INFORMATION: The proposing either (1) to add a provision registration to any applicant that does not meet the Commission is requesting public that would permit supervised persons to criteria for Commission registration and to cancel the registration of any adviser that no longer meets comment on proposed amendments to have the greater of five natural person the registration criteria. Section 203(c) and (h) of rule 203A–2 [17 CFR 275.203A–2], rule clients or the number of natural person the Advisers Act [15 U.S.C. 80b–3(c) and (h)]. 203A–3 [17 CFR 275.203A–3], rule clients permitted under the ten percent 5 15 U.S.C. 80b–3a(b). In addition, state law is 206(4)–3 [17 CFR 275.206(4)–3] and allowance, or (2) to eliminate the ten preempted with respect to advisers that are excepted from the definition of investment adviser Schedule I to Form ADV [17 CFR 279.1] percent allowance and permit under section 202(a)(11) of the Advisers Act [15 under the Investment Advisers Act of supervised persons to have an unlimited U.S.C. 80b–2(a)(11)]. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61867

amendments to implement the order, from the prohibition on 203A(c) exemptive authority and, as a Coordination Act. 6 These implementing Commission registration if the result, would have a single, national rules included rules that exempt four prohibition would be ‘‘unfair, a burden regulator.15 types of investment advisers from the on interstate commerce, or otherwise Under the proposed rule statutory prohibition on Commission inconsistent with the purposes’’ of amendments, an adviser applying for registration and define certain terms section 203A. 11 registration relying on the exemption used in the Coordination Act. 7 In Pursuant to its authority, the would be required to submit a adopting these rules, the Commission Commission adopted rule 203A–2, representation that the investment anticipated that experience with the which permits Commission registration adviser has reviewed its obligations new regulatory scheme might reveal the for nationally recognized statistical under state law and concluded that it is need for additional rules or further rating organizations and certain pension required to register as an investment refinement of existing rules. Based on consultants, affiliated investment adviser with the securities authorities of its experience, the Commission is advisers, and newly formed investment at least 30 states.16 Once registered with proposing to exempt multi-state advisers with reasonable expectations the Commission, the investment adviser investment advisers from the that they would soon become eligible would continue to be eligible for the prohibition on Commission registration, for Commission registration.12 The exemption as long as it is annually able to amend the definition of investment Commission also, by order, has granted to provide a representation that the adviser representative, and to clarify exemptive relief to investment advisers investment adviser has determined that, certain other implementing rules. that do not have $25 million of assets but for the exemption, it would be obligated to register in at least 25 states, II. Discussion under management but have a national or multi-state practice and conduct five fewer states than when it initially A. Multi-State Investment Adviser advisory activities that require them to registered.17 The Commission is Exemption from Prohibition on register as investment advisers in 30 or proposing this five-state difference to Registration with the Commission more states.13 The Commission is prevent an investment adviser registered As discussed above, section 203A of proposing to amend rule 203A–2 to with the Commission from losing the the Advisers Act limits registration with codify the exemptions provided by exemption simply because, for example, individual orders to investment advisers it lost a few clients in a small number the Commission, in most cases, to 18 investment advisers with at least $25 required to be registered in multiple of states. Like other exemptions in rule 203A– million of assets under management and states. 2, the proposed multi-state exemption preempts state law with respect to these Under the proposed exemption, an investment advisers. 8 The $25 million investment adviser required to be 15 See Senate Report at 5 (Congress recognized threshold was designed to allocate registered as an investment adviser with that the ‘‘definition of ‘assets under management’ regulatory responsibility to the 30 or more state securities authorities ** * may, in some cases, exclude firms with a Commission for larger investment would be permitted to register with the national or multistate practice from being able to advisers whose activities are likely to Commission.14 The Commission register with the SEC’’). 16 Proposed paragraph (e)(2) of rule 203A–2. At affect national markets and to relieve believes that an investment adviser the time of its application for registration with the them of the burdens imposed by whose activities trigger registration Commission, the investment adviser would be multiple state regulation. 9 Congress requirements in 30 states is a national required to include on Schedule E to Form ADV an recognized, however, that there may be firm and that the multiple state undertaking to withdraw from registration with the Commission if it would no longer be required to investment advisers with less than $25 registration requirements for such a firm register in at least 25 states at the time of filing million of assets under management that would constitute a burden on interstate Schedule I. The exemption would require an have national businesses and for which commerce. For that reason, the investment adviser that indicates that it is no longer multiple state registration would be Commission believes that such an required to register in at least 25 states to withdraw 10 from Commission registration by filing Form ADV- burdensome. Therefore, the investment adviser would be the type of W within 90 days of filing Schedule I. Proposed Commission was given authority in firm for which Congress expected the paragraph (e)(3) of rule 203A–2. section 203A(c) of the Advisers Act to Commission to exercise its section 17 This representation must be attached to the exempt investment advisers, by rule or investment adviser’s annual amendment to Form ADV revising Schedule I. Proposed paragraph (e)(2) 11 Section 203A(c) [15 U.S.C. 80b–3a(c)]. of rule 203A–2. Under the proposed multi-state 6 12 Rules Implementing Amendments to the 17 CFR 275.203A–2. exemption, the investment adviser also would be Investment Advisers Act of 1940, Investment 13 See Arthur Andersen Financial Advisers, required to maintain a record of the states that the Advisers Act Release No. 1633 (May 15, 1997) [62 Investment Advisers Act Release Nos. 1637 (June adviser believes it would, but for the exemption, be FR 28112 (May 22, 1997)] (‘‘Adopting Release’’). 16, 1997), 62 FR 33689 (Notice of Application), required to register. Proposed paragraph (e)(4) of 7 Id. The Commission also amended several rules 1642 (July 8, 1997), 64 SEC Docket 2417 (Order); rule 203A–2. under the Advisers Act to reflect the changes made Ernst & Young Investment Advisers LLP, 18 This ‘‘five-state difference’’ is similar to the ‘‘$5 by the 1996 Act. Investment Advisers Act Release Nos. 1638 (June million window,’’ which makes Commission 8 Section 203A(a) and (b). Notwithstanding 16, 1997), 62 FR 33692 (Notice of Application), and registration optional for an adviser having between section 203A(b), states retain authority over 1641 (July 8, 1997), 64 SEC Docket 2416 (Order); $25 and $30 million of assets under management. Commission-registered advisers under state and KPMG Investment Advisors, Investment See rule 203A–1(a), (b) [17 CFR 275.203A–1(a), (b)]. investment adviser statutes to: (1) investigate and Advisers Act Release Nos. 1639 (June 17, 1997), 62 The Commission adopted the $5 million window to bring enforcement actions with respect to fraud or FR 33945 (Notice of Application), and 1643 (July 8, avoid transient registration problems that could deceit against an investment adviser or a person 1997), 64 SEC Docket 2418 (Order). occur because of a small decrease in the value of associated with an investment adviser; (2) require 14 In tallying the number of states in which an client assets (as a result of a market decline) or the filings, for notice purposes only, of documents filed adviser is required to register, the investment departure of one or a few clients. See Rules with the Commission; and (3) require payment of adviser would be required to exclude those states Implementing Amendments to the Investment state filing, registration, and licensing fees. in which it is not required to register because of Advisers Act of 1940, Investment Advisers Act Moreover, section 203A(b) specifically preserves applicable state laws or the national de minimis Release No. 1601 (Dec. 20, 1996) [61 FR 68480 (Dec. state law with respect to investment adviser standard of section 222(d) of the Advisers Act. [15 27, 1996)] (‘‘Proposing Release’’). Under the representatives of Commission-registered advisers U.S.C. 80b–18a] The Commission believes such an proposed five-state difference, an investment who have a place of business in the state. See infra exclusion is appropriate because it is the obligation adviser registered with the Commission in reliance section II.B of this Release. to register in a state, rather than the business upon the multi-state exemption would not be 9 See S. Rep. No. 293, 104th Cong., 2d Sess. 3– decision to register voluntarily, that demonstrates required to de-register and then re-register with the 5 (1996) [hereinafter Senate Report]. that the adviser is subject to the type of burden Commission frequently as a result of a change in 10 Id. at 5. contemplated by the exemption. registration obligation in one or a few states. 61868 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules could be used by a newly formed 1. Accommodation Clients supervised persons to have up to five investment adviser in conjunction with The ‘‘ten percent allowance’’ in the natural person clients. Supervised the ‘‘start-up adviser’’ exemption in persons could have under the first 19 definition of investment adviser paragraph (d) of the rule. A newly representative was designed to permit alternative the greater of five natural formed investment adviser not supervised persons who provide person clients or the number of natural registered in any state could register advisory services principally to clients person clients permitted under the ten with the Commission if it reasonably other than natural persons to continue percent allowance without being subject expected that it would be required to to accept so-called ‘‘accommodation to state qualification requirements. register in 30 or more states within 120 clients’’ without being subject to state The first alternative would allow days. After the 120-day period, the qualification requirements.24 In supervised persons with one or a few investment adviser would be required to adopting the ten percent allowance, the institutional or business clients to file an amendment to Form ADV Commission acknowledged that the accept at least five natural person revising Schedule I and attach a allowance may pose a problem for clients and would address the problem representation that, but for the proposed supervised persons with one or a few with the current rule. Moreover, this multi-state exemption, the investment institutional clients who would not be alternative would provide a simple, adviser would be required to register in bright-line test for supervised persons to at least 25 states.20 able to have any accommodation clients.25 To have one accommodation determine when they are subject to state Comment is requested whether the 30 qualification requirements. The state threshold should be increased or client, a supervised person would need to have at least ten clients that are not disadvantage of this alternative, decreased and whether the five-state however, is that the five clients may not difference is sufficient to prevent natural persons. Therefore, the Commission directed the staff to work necessarily be limited to those clients transient registration problems. Because who the supervised person advises on determining the obligations to register with investment advisers whose supervised persons would be affected by an accommodation basis; the proposed under state law requires a legal analysis, five natural person minimum could should the Commission require the definition to develop a workable method of addressing this concern and include natural persons who have no investment advisers to represent that relationship to an investment adviser’s counsel has reviewed the applicable indicated that it may propose revisions to the definition.26 The Commission institutional or business clients. state and federal laws and has Furthermore, the five natural person concluded that the investment adviser staff has consulted with members of the industry for their views and has minimum would permit supervised qualifies for the proposed multi-state persons who have only retail clients exemption? Should the Commission recommended proposals to the Commission to resolve this issue. (i.e., natural person clients) to avoid prohibit a newly formed investment state qualification requirements until adviser from using this exemption in The Commission is now proposing two alternative amendments to the they obtained their sixth client. The conjunction with the reasonable provision, however, likely would have a expectation exemption? definition of investment adviser representative to allow supervised small effect on the number of B. Definition of Investment Adviser persons who provide services to one or supervised persons who would not be Representative a few institutional or business client subject to state qualification requirements because many states do The Coordination Act preempts most accounts to continue to have not require supervised persons to state regulatory requirements for accommodation clients without being register in the state until they have more Commission-registered investment subject to state qualification than five clients in their respective advisers and their supervised persons,21 requirements. Under the first state.27 but permits states to continue to license, alternative, the Commission proposes to Under the second alternative, register, or otherwise qualify an retain the ten percent allowance and supervised persons who have natural ‘‘investment adviser representative’’ add a provision that would permit person clients would be excluded from who has a place of business in the the definition of investment adviser state.22 In rule 203A–3(a), the contract with the firm, or who the advisory firm representative if the natural person Commission defined investment adviser reasonably believes immediately prior to entering into the advisory contract have a net worth in clients either are ‘‘high net worth’’ representative as a supervised person excess of $1 million (collectively ‘‘high net worth clients or have a familial or business more than ten percent of whose clients individuals’’). Rule 203A–3(a)(3)(i) [17 CFR 275.203A–3(a)(3)(i)]. (The Commission is proposing relationship with the supervised person are natural persons other than excepted 28 23 changes to the criteria for determining high net or his business or institutional clients. persons. worth individuals. See infra section II.B.2 of this Release.) The Commission also excluded from the 27 See, e.g., Unif. Sec. Act section 201(c) (1997); 19 17 CFR 275.203A–2(d). term ‘‘investment adviser representative’’ those Burns Ind. Code Ann. section 23–2–1–8(c)(3) 20 These requirements would be the result of the supervised persons who do not on a regular basis (1997); Md. Code Ann. section 11–401(b)(3)(ii) conditions for the exemptions provided by rule solicit, meet with, or otherwise communicate with (1997); Utah Code Ann. section 61–1–3(3)(c) (1997). 203A–2(d) and proposed paragraph (e) of rule clients of the investment adviser or who provide The first alternative is narrower than these state 203A–2. only impersonal investment advice. Rule 203A– exemptions because it would permit supervised 21 The term supervised person is defined in the 3(a)(2) [17 CFR 275.203A–3(a)(2)]. persons to have a total of five natural person clients Advisers Act as any ‘‘partner, officer, director . . . 24 Adopting Release, supra note 6, at nn.113–117 nationwide, rather than five natural person clients or employee of an investment adviser, or other and accompanying text. per state as permitted by these states. person who provides investment advice on behalf 25 As originally proposed, the ten percent 28 The Investment Company Institute (‘‘ICI’’) of the investment adviser and is subject to the allowance would have been measured either by suggested that the Commission retain the ten supervision and control of the investment adviser.’’ reference to the assets under management percent allowance and exclude from the term Section 202(a)(25) of the Advisers Act [15 U.S.C. attributable to the supervised person or by reference natural persons certain clients who are ‘‘affiliated 80b–2(a)(25)]. to clients of the supervised person. The with non-natural person clients.’’ See Letter from 22 Section 203A(b). Commission adopted only the client test because Craig S. Tyle, Vice-President and Senior Counsel, 23 17 CFR 275.203A–3(a). The rule defines there did not appear to be any workable method of ICI, dated August 12, 1997 (available in File No. ‘‘excepted persons’’ as natural persons who have attributing client assets to supervised persons. See S7–28–97). Under the current rule, the ten percent $500,000 or more under management with the Adopting Release, supra note 6, at n.115 and allowance is designed as a proxy for representative’s investment advisory firm accompanying text. accommodation clients and assumes that a immediately after entering into the advisory 26 Id. supervised person who has a small number of Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61869

Under this alternative, the Commission approaches. Comment is requested on C. Other Amendments would eliminate the current ten percent whether additional approaches could be 1. Pension Consultants—Determining allowance, and a supervised person used to permit a supervised person with the Value of Assets of Plans could have an unrestricted number of one or a few institutional or business clients who are natural persons without clients to accept a small number of The Commission adopted rule 203A– being subject to state qualification natural person clients on an 2(b) to exempt certain pension consultants from the prohibition on requirements. These clients would be accommodation basis without being Commission registration. Under the limited, however, to either (i) high net subject to state qualification rule, pension consultants that provide worth clients (as currently permitted by requirements. Commenters suggesting the rule), or (ii) persons who are (A) investment advice to employee benefit an additional approach should address partners, officers, or directors of the plans with respect to assets having an whether the approach limits the scope investment adviser for whom the aggregate value of at least $50 million supervised person works or of a of the exception to its original purpose are required to register with the business or institutional client of the (i.e., to permit accommodation clients), Commission even if they do not investment adviser for whom the any additional complexity it adds to the otherwise meet the criteria for supervised person works, (B) relatives, rule, and the ease with which Commission registration.32 Rule 203A– spouses, or relatives of spouses of such supervised persons can determine 2(b)(3) requires investment advisers partners, officers or directors, or (C) whether they are subject to state relying on the exemption to value plan relatives or spouses, or relatives of qualification requirements. assets as of the date during the spouses of the supervised person. investment adviser’s most recent fiscal 2. ‘‘High Net Worth’’ Clients The advantage of this approach is that year that the investment adviser was last it extends the provision of the rule for Under the current rule, certain ‘‘high employed or retained by contract to accommodation clients to supervised net worth’’ individuals are excepted provide investment advice to the plan with respect to those assets.33 Because persons with one or a few clients while persons for purposes of the definition of of the fiscal year requirement, an more closely tying the accommodation investment adviser representative and client exception to the purpose for investment adviser could not rely on the are not counted towards the ten percent which it was adopted. Instead of pension consultant exemption when, in allowance. The criteria for determining presuming that the natural person fact, it provides investment advice to clients of a supervised person having high net worth individuals are based on over $50 million of assets of employee primarily business clients are the criteria in rule 205–3 under the benefit plans if the amount of assets accommodation clients, the rule would Advisers Act for determining those grew to more than $50 million after the (with the exception of high net worth clients with whom investment advisers end of the investment adviser’s fiscal clients) require there be the type of may enter into a performance fee year, but before it filed Schedule I.34 relationship between the supervised contract under that exemptive rule.29 The Commission, therefore, is proposing person and the client that customarily The Commission excluded these high to amend the rule to permit investment results in the client being considered an net worth individuals from the advisers to determine the aggregate accommodation client. This approach, definition of investment adviser value of plan assets during a 12-month however, could greatly increase or representative because the Commission period ending within 90 days before the decrease the number of natural person presumed that these individuals, who investment adviser files Schedule I.35 clients supervised persons are permitted are less dependent on the protections of 2. Rule 206(4)–3—Cash Payments for to have by the rule before they are the performance fee prohibition, do not Client Solicitations subject to state qualification need the protections of state The Coordination Act amended requirements. Moreover, it would make qualification requirements.30 the rule somewhat more complex and, section 203(e) of the Advisers Act by perhaps, the status of a supervised In a companion release, the adding new section 203(e)(3), which person as an investment adviser Commission is proposing to revise the provided the Commission with the representative less transparent to a state high net worth criteria in rule 205–3 to authority to deny or revoke the securities commissioner seeking to reflect, among other things, the effects of registration of any investment adviser if enforce state law. Comment is requested inflation since the standards were the investment adviser (or any person on the scope of the accommodation adopted in 1985.31 The criteria for client exception under this alternative. determining which individuals qualify 32 See rule 203A–2(b) [17 CFR 275.203A–2(b)]; as high net worth individuals in the Adopting Release, supra note 6, at nn. 58–61 and Are there additional relationships accompanying text. between the investment adviser, definition of investment adviser 33 17 CFR 275.203A–2(b)(3). supervised person, and client that representative would be revised to 34 Conversely, if the value of the assets of plans suggest the client is an accommodation reflect the changes being proposed in was above $50 million as of the adviser’s last fiscal client? the companion release. Therefore, the year, but decreased to below $50 million before Schedule I is filed, under the current rule, the Comment is requested on the threshold levels for high net worth adviser would be eligible to rely on the pension advantages and disadvantages of the two individuals would increase from consultant exemption. $500,000 under management and 35 An adviser seeking to rely on the pension natural person clients does so on the basis of an $1,000,000 net worth to $750,000 and consultant exemption would be required to accommodation to her institutional clients. The ICI aggregate: (i) the value of plan assets for which it proposal would permit the supervised person to $1,500,000, respectively. provided advisory services at the end of the 12- have a defined group of accommodation clients in month period, and (ii) the value of any other plan addition to a group of natural persons (up to ten 29 17 CFR 275.205–3. assets for which it provided advisory services at the percent of the supervised person’s clients) who are end of its employment or contract (if terminated 30 See Adopting Release, supra note 6, at nn. 110– unrelated to her institutional clients without being before the end of the 12-month period). subject to the state qualification requirements. The 112 and accompanying text. During the interim period before the proposed Commission is proposing a narrower version of the 31 See Investment Advisers Release No. 1682 rule is adopted, the Commission would not object ICI’s recommendation to limit the rule’s exception (November 13, 1997). In the companion release, the if pension consultants chose to value plan assets to clients who are or may reasonably be presumed Commission also is proposing to add a third under the method being proposed rather than under to be accommodation clients. alternative test of sophistication. the method provided by the current rule. 61870 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules associated with the investment adviser) III. Cost-Benefit Analysis adviser to adviser, the Commission is convicted of any felony, and As discussed above, the proposed assumes, for purposes of this analysis, redesignating section 203(e)(3) as multi-state investment adviser that it would cost each adviser $30,000 section 203(e)(4).36 The Commission exemption would permit investment to comply with state-law registration proposes to conform a cross-reference in advisers required to register with 30 or requirements.43 Based on that figure, the rule 206(4)–3(a)(1)(ii)(D) to the more states to register with the Commission estimates that the annual redesignated section.37 Commission even though they do not benefit from the proposed multi-state investment adviser exemption, in the 3. Schedule I to Form ADV otherwise meet the criteria for Commission registration.39 The form of the foregone costs of state Instructions to Schedule I provide Commission has limited data on the registration, would be approximately guidance on how an investment adviser number of investment advisers that $300,000 for all ten investment advisers should determine the amount of its would qualify for the proposed multi- expected to be eligible for the proposed assets under management for purposes state investment adviser exemption.40 multi-state investment adviser of section 203A of the Advisers Act. The Because investment advisers must be exemption. Comment is requested on Commission is proposing to amend required to register in a large number of the reasonableness of this cost estimate. Instruction 7 to Schedule I to clarify states to qualify for the proposed multi- Commenters are requested to provide that, in determining the total amount of state investment adviser exemption, the factual support or assumptions assets under management, investment Commission expects that only a few underlying any alternative cost estimate. advisers may include only those investment advisers would be eligible. The benefits also would include savings for investment advisers from the securities portfolios for which they For Paperwork Reduction Act purposes, cost of being examined by 30 different provide continuous and regular the Commission estimates that there state regulators. State regulators would supervisory or management services as may be ten investment advisers that 41 save the expense of examining these of the date of filing Schedule I. In would qualify each year. Comment is investment advisers.44 The Commission valuing these securities portfolios, requested on whether there may be does not have information to estimate however, investment advisers may use more than ten investment advisers the costs of state examinations for market values as determined within 90 eligible for this proposed multi-state investment adviser exemption annually. investment advisers because the days prior to the filing of Schedule I. Investment advisers that believe they Commission has no data on the The Commission also is proposing would qualify for this exemption are frequency with which these investment several other miscellaneous conforming 38 requested to notify the Commission. advisers would be examined by a amendments to Schedule I. The proposed multi-state investment particular state or the number of states 4. Transition Rule 203A–5 and Form adviser exemption would benefit that would examine these investment ADV–T investment advisers by permitting them advisers each year. The Commission to save costs they otherwise would requests comment on the state The Commission is proposing to incur if they were required to comply examination costs saved by investment withdraw transition rule 203A–5 and with 30 separate sets of state advisers that are regulated only by the Form ADV–T. The rule and form are regulations, especially where state Commission. Finally, the proposed unnecessary because the transition regulations may be duplicative or multi-state investment adviser under the Coordination Act is now conflicting. These benefits would exemption would produce certain complete. include cost savings for complying with unquantifiable regulatory benefits in state registration requirements, which allowing qualifying investment advisers D. General Request for Comment the Commission estimates may be as to be regulated by one entity rather than 42 Any interested persons wishing to much as $300,000 annually. Although 30 separate state regulators. submit written comments on the these annual costs may vary from The proposed multi-state investment proposed rule amendments and form adviser exemption would impose 39 changes that are the subject of this See supra section II.A of this Release. certain costs on investment advisers 40 Every investment adviser applying for relying on the proposed exemption. Release, to suggest additional changes registration with the Commission is required to file (including changes to the provisions of Form ADV with the Commission and to file an Under the proposed multi-state the rules that the Commission is not amended Form ADV when information on the form investment adviser exemption, an has changed. Form ADV requires information about investment adviser would be required to proposing to amend), or to submit the states in which an investment adviser is comments on other matters that might registered, but does not distinguish between states attach a representation to Schedule I have an effect on the proposals where the registration is mandatory and where 43 described above, are requested to do so. registration is voluntary. Moreover, the Commission In the Cost-Benefit Analysis of Rules no longer receives Form ADV information for state- Implementing Amendments to the Investment Commenters suggesting alternative registered advisers. Advisers Act of 1940, the Commission estimated approaches are encouraged to submit 41 According to information obtained from the that the cost for a mid-size adviser to comply with their proposed rule text. one-time form, Form ADV–T, there are state-law registration requirements could be as approximately 21 advisers that are registered with much as $20,000. See Cost-Benefit Memorandum 30 or more states and no longer registered with the (available in File No. S7–31–96) (‘‘Implementing 36 See section 305 of the 1996 Act. Commission. Although approximately 21 Amendments Cost-Benefit Analysis’’). The 37 Rule 206(4)–3 prohibits cash payments for investment advisers are registered in more than 30 Commission believes that, because advisers eligible client solicitation under certain circumstances. states, the Commission estimates that only about for the proposed multi-state exemption would 38 Instruction 5 would be revised to eliminate an half of these advisers are required to register in 30 typically be required to register in more states than unnecessary reference to July 8, 1997, amend the or more states. Therefore, the Commission estimates the average adviser registered with the Commission instruction with respect to the pension consultant that there may be ten investment advisers that (i.e., at least 30 states), the cost would be at least exemption consistent with the revision proposed in would qualify for the proposed multi-state $30,000 per adviser. These dollar estimates were this Release, and add an instruction with respect to exemption each year. based on discussions with law firms that provide the proposed multi-state adviser exemption. In 42 The Coordination Act expressly preserved the these kinds of services to investment advisers. addition, the Commission is proposing to delete authority of the states to require Commission- 44 The Commission requests comment from the Instruction 8 and the unnecessary reference to the registered investment advisers to pay state filing, states on the costs of investment adviser date of the valuation of the assets under registration, and licensing fees. Section 307(b) of examinations and the frequency of such management in Schedule I, Part II. the Coordination Act. examinations. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61871 initially, when registering, and Commission, however, does not have total savings because the Commission annually, when amending Form ADV, data on the number of representatives does not have data on the number of about the number of states in which the who may be affected by the proposed representatives who would be affected investment adviser would be required to amendments. The Commission, by this proposed amendment. Because register. The investment adviser also therefore, is unable to quantify the total the Coordination Act preserved the would be required to maintain a record benefits and costs that may result from authority of states to require the of the states in which it believes it these proposed amendments. The payment of state filing, registration, and would, but for the exemption, be Commission believes, nonetheless, that licensing fees, there would be no loss to required to register that was the basis of the proposed amendments could the states of fees collected. its representation included on the provide benefits to Commission- Costs associated with the first attachment to Schedule I. registered investment advisers and their proposed amendment include the The Commission estimates that the supervised persons because the foregone fees collected by the National total cost to each eligible investment proposed amendments would reduce Association of Securities Dealers adviser to comply with the requirements their regulatory burdens by permitting Regulation (‘‘NASDR’’) and the North of the proposed multi-state investment supervised persons who provide American Securities Administrators adviser exemption would be services to a few institutional clients to Association, Inc. (‘‘NASAA’’) for state approximately $24,000.45 Thus, the have a small number of natural persons examinations for investment adviser Commission estimates that the total cost as accommodation clients without being representatives.49 The Commission is for the ten investment advisers expected subject to state qualification unable to quantify the total costs to be eligible for the proposed multi- requirements. The Commission requests because the Commission does not have state investment adviser exemption comment on the percentage of all data on the number of representatives would be approximately $240,000. investment adviser representatives who who would be affected by this proposed There also may be incidental costs to would be exempt from state amendment. Comment is requested on the Commission of registering qualification requirements under each the effect this provision will have on the investment advisers that qualify for this of the alternatives being proposed. costs incurred or avoided by investment proposed multi-state investment adviser The first proposed alternative advisers and their supervised persons exemption and costs associated with amendment to the definition of and on the exam fees collected by the examining those investment advisers. investment adviser representative NASDR and NASAA. Overall, the Commission believes that would retain the present ten percent As detailed above, the second the proposed rule amendments would allowance and also permit a supervised alternative proposed amendment to the not impose significant additional costs person to have up to five natural person definition of investment adviser on investment advisers, but rather clients. The first alternative definition representative would replace the ten would result in a net savings when would benefit supervised persons who percent allowance and allow supervised compared with the costs of complying provide advice to five natural person persons to have accommodation clients with state registration requirements. clients because they would no longer be who have a familial or business Comment is requested concerning the subject to state qualification relationship with the supervised savings for complying with state requirements even if they are not able to persons or their institutional clients registration requirements and any take advantage of the ten percent without limitation on the number of benefit to multi-state advisers in having allowance. Under the current rule, a accommodation clients. This alternative one regulator. Comment is also supervised person would need to have proposal might have the effect of either requested concerning the costs ten institutional clients to have one increasing or decreasing the number of associated with the requirements of the accommodation client. The first supervised persons subject to state proposed multi-state investment adviser proposed alternative amendment would qualification requirements, and exemption. provide a bright line test that would comment is requested on which As discussed in more detail above, the allow supervised persons and their outcome is more likely. Commission is proposing two firms to determine easily when To the extent that the second alternative amendments to the supervised persons must register with alternative increases the number of definition of investment adviser the states. supervised persons who are no longer representative.46 Although the The first alternative would increase subject to state qualification Commission has never registered the number of supervised persons of requirements, affected supervised investment adviser representatives, the Commission-registered advisers who persons would save state examination Commission estimates that Commission- would no longer be subject to state and examination preparation fees.50 The registered advisers employ a total of qualification requirements. This costs associated with such an increase approximately 153,000 investment proposal would benefit affected would be the foregone fees collected by adviser representatives.47 The supervised persons by permitting them the NASDR and NASAA for the state to save the expense associated with examinations.51 45 The Commission estimated this figure by investment adviser representative If the second alternative decreases the multiplying the aggregate burden hours required to qualification examinations, such as the number of supervised persons who are attach a representation to Schedule I to Form ADV costs of monitoring state registration not subject to state qualification (240 hours) by an average hourly compensation rate requirements and preparing and requirements, the alternative would of $100. The estimation of the aggregate burden 48 hours for complying with the requirements of the registering for state exams. The proposed multi-state exemption is based on the Commission is unable to quantify the 49 In the Implementing Amendments Cost-Benefit Commission’s Paperwork Reduction Act Analysis, the Commission estimated that foregone Submission. See infra section IV of this Release. 48 In the Implementing Amendments Cost-Benefit revenue from the exam fees would $32 per exam. 46 See supra section II.B of this Release. Analysis, the Commission estimated the following Id. 47 This estimate of the number of investment costs: $96 to take an exam, $850 for exam 50 See supra note and accompanying text. adviser representatives employed by Commission- preparation, and $150 annually per investment 51 See supra note and accompanying text. The registered advisers was made for purposes of the adviser representative to monitor state registration Commission does not believe that there are any Implementing Amendments Cost-Benefit Analysis. requirements. See Cost-Benefit Memorandum, substantial costs to investor protection that would See Cost-Benefit Memorandum, supra note . supra note . be associated with this proposed amendment. 61872 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules produce unquantifiable benefits by tying contain currently approved collections that there would be 8,060 total the accommodation client exception of information under OMB control respondents to this collection of more closely to the purpose for which numbers 3235–0049 and 3235–0490, information on an annual basis. it was adopted. The second alternative respectively. The proposed rule The Commission estimates that each would permit supervised persons to amendments are necessary to clarify of the 7,300 investment advisers accept clients who have a relationship previously-adopted rules that registered with the Commission will with the supervised person or his implemented changes to the Advisers amend Form ADV, as required by rule institutional clients that would result in Act. An agency may not sponsor, 204–1, an average of 1.5 times annually. the individual client being considered conduct, or require response to an Of the 760 new advisers each year, 660 an accommodation client. The costs of information collection unless a will amend Form ADV an average of the second alternative, if it decreases the currently valid OMB control number is once annually. The estimated 100 number of supervised persons not displayed. newly-formed investment advisers that subject to state qualification will rely on rule 203A–2(d) will amend Form ADV requirements, would be the expense Form ADV an average of twice annually. associated with state investment adviser Form ADV is required by rule 203–1 Thus, the annual number of responses representative examinations.52 [17 CFR 275.203–1] to be filed by every for completing amended Form ADV is Comment is requested on the effect of adviser that applies for registration with estimated to be approximately 11,810. the second alternative amendment on the Commission as an investment The total number of annual responses the costs incurred or avoided by adviser. Rule 204–1 [17 CFR 275.204–1] for Form ADV (initial registration and investment advisers and their sets forth the circumstances requiring amendments) is estimated to be 760 supervised persons. the filing of an amendment to Form responses for new advisers (including The other proposed rule amendments ADV. Registrants must file an amended ten responses for new advisers relying would revise the time period for Form ADV when information on the on the proposed multi-state exemption) determining the value of assets of plans initial Form ADV has changed, either at and 11,810 responses for annual for pension consultants, clarify the the end of the fiscal year or promptly for amendments. The average burden hours instructions in Schedule I to Form ADV, certain material changes. In addition, for completing Form ADV for initial and provide an additional instruction in rule 204–1 also requires an investment registration is 9.0063 hours for each Schedule I to Form ADV. The benefits adviser to file the cover page of Form respondent (unchanged from previous of these proposed amendments would ADV (along with a Schedule I) annually estimate). The average burden hours for be to eliminate any confusion that the within 90 days after the end of the completing Form ADV as an annual language of the rules or instructions investment adviser’s fiscal year amendment is 1.0672 hours (unchanged may have created. The Commission regardless of whether other changes from previous estimate). The total believes that these amendments would have taken place during the year. burden hours imposed by Form ADV is not impose any additional costs to After 1997, the Commission estimates estimated to be 19,448.42. investment advisers. approximately 7,300 investment The collection of information required Comment is requested on this cost- advisers would be registered with the by Form ADV is mandatory, and benefit analysis. Commenters are Commission and required to amend responses are not kept confidential. Form ADV on an annual basis as requested to provide views and Schedule I empirical data relating to any costs and required by rule 204–1.54 The benefits associated with the proposed Commission previously estimated that Schedule I requires an investment rule amendments. there would be 750 new investment adviser to declare whether it is eligible For purposes of making advisers registering with the for Commission registration. Schedule I, determinations required by the Small Commission each year. The Commission as part of Form ADV, is required to be Business Regulatory Enforcement estimates that an additional ten filed with an investment adviser’s initial Fairness Act of 1996, the Commission is investment advisers each year would be application on Form ADV. The rules requesting information regarding the eligible for Commission registration imposing this collection of information potential effect of the proposed rule under the proposed multi-state are found at 17 CFR 275.203–1 and 17 amendments on the economy on an exemption. Thus, the annual number of CFR 279.1. Rule 204–1 [17 CFR annual basis. Commenters should responses for filing an application for 275.204–1] sets forth the circumstances provide data to support their views. investment adviser registration is requiring the filing of an amended Form estimated to be approximately 760. The ADV. Rule 204–1 requires an IV. Paperwork Reduction Act 760 new advisers each year also will be investment adviser registered with the Certain provisions of the proposed subject to the annual amendment Commission to file an amended rule amendments contain ‘‘collection of requirement. The Commission estimates Schedule I to Form ADV annually information’’ requirements within the within 90 days after the end of the meaning of the Paperwork Reduction 54 Under rule 203A–5 of the Advisers Act, all investment adviser’s fiscal year. Act of 1995,53 and the Commission has investment advisers registered with the The Commission estimates that 7,300 submitted them to the Office of Commission were required to file a completed Form investment advisers registered with the ADV–T with the Commission by July 8, 1997, Management and Budget (‘‘OMB’’) for indicating whether they remain eligible for Commission would respond to the review in accordance with 44 U.S.C. Commission registration. Of the 23,350 information collection requirements of 3507(d) and 5 CFR 1320.11. The title for Commission-registered investment advisers, Schedule I to Form ADV an average of the collections of information are ‘‘Form approximately 7,200 advisers indicated that they once a year. In addition, the remain eligible for Commission registration, 10,600 ADV’’ and ‘‘Schedule I to Form ADV,’’ advisers withdrew their registrations, and 5,800 Commission estimates that both under the Advisers Act. Form ADV advisers did not file their Form ADV–T. The approximately 760 new advisers each and Schedule I to Form ADV, which the Commission believes that most of the investment year will file Schedule I of Form ADV. Commission is proposing to amend, advisers that did not file Form ADV–T are either no Of the 760 advisers, 660 will file longer in the advisory business or no longer eligible to register with the Commission. The Commission Schedule I to Form ADV an average of 52 See supra note and accompanying text. expects to cancel the registrations of most of these once each year, and the remaining 100 53 44 U.S.C. 3501 et seq. investment advisers. that rely on the exemption provided by Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61873 rule 203A–2(d) will file Schedule I to ADV–Ts.56 The current total Form ADV ADV–T under the Advisers Act. The Form ADV an average of twice each burden is 18,127.88 hours. The new following summarizes the IRFA. year. It is estimated that the total total Form ADV burden would be As set forth in greater detail in the number of responses would be 8,160. 19,448.42 hours. The total change in IRFA, the Coordination Act, which For the 765 investment advisers that burden hours for Form ADV would be became effective on July 8, 1997, must calculate assets under 1,320.54 hours. The current total burden amended the Advisers Act by management for the purpose of for Schedule I is 6,418.94 hours. The reallocating federal and state completing Schedule I (9.5% of new total burden for Schedule I would responsibilities for regulation of respondents—excluding the ten be 9,480.313 hours. The total change in investment advisers. On May 15, 1997, investment advisers expected to rely on burden for Schedule I of Form ADV the Commission adopted new rules and the proposed multi-state exemption), would be 3,061.373 hours. rule amendments to implement the compliance with the requirement to file Pursuant to 44 U.S.C. 3506(c)(2)(B), Coordination Act.57 The Commission an amended Schedule I would impose the Commission solicits comments to (i) proposes to revise some of these a total annual burden for each evaluate whether the proposed implementing rules. The IRFA states investment adviser of approximately 2 collections of information are necessary that the proposed rule amendments hours (unchanged from previous for the proper performance of the would exempt multi-state investment estimate). For the 7,285 investment functions of the agency, including advisers from the prohibition on advisers that either do not need to whether the information will have Commission registration, amend the calculate assets under management to practical utility; (ii) evaluate the definition of investment adviser complete Schedule I or calculate assets accuracy of the agency’s estimate of the representative, and clarify certain other under management as part of their burden of the proposed collections of implementing rules. normal business operations (90.5% of information; (iii) enhance the quality, The IRFA sets forth the statutory respondents—excluding the ten utility, and clarity of the information to authority for the proposed rule investment advisers expected to rely on be collected; and (iv) minimize the amendments. The IRFA also discusses the proposed multi-state exemption) burden of the collections of information the effect of the proposed rule this burden would be 0.75 of an hour on those who are to respond, including amendments on small entities. For (unchanged from previous estimate). through the use of automated collection purposes of the Advisers Act and the Regulatory Flexibility Act, an The Commission estimates that an techniques or other forms of information investment adviser generally is a small additional ten investment advisers technology. entity (i) if it manages assets of $50 would be eligible for the proposed Persons desiring to submit comments million or less, in discretionary or multi-state exemption. For the ten on the collection of information nondiscretionary accounts, as of the end investment advisers that would rely on requirements should direct them to the of its most recent fiscal year or (ii) if it the proposed multi-state exemption, the Office of Management and Budget, renders other advisory services, has Commission estimates compliance with Attention: Desk Officer for the $50,000 or less in assets related to its the requirement to file an amended Securities and Exchange Commission, advisory business.58 Schedule I attaching a representation Office of Information and Regulatory The proposed multi-state exemption that the investment adviser is required Affairs, Washington, D.C. 20503, and for investment advisers would be to register as an investment adviser in should also send a copy of their available to any investment adviser that 30 or more states would impose a total comments to Jonathan G. Katz, is prohibited from registering with the annual burden for each investment Secretary, Securities and Exchange Commission and is required to register adviser of approximately 240 hours.55 Commission, 450 Fifth Street, N.W., Stop 6–9, Washington, D.C. 20549 with in 30 or more states. The Commission The total burden hours imposed by reference to File No. S7–28–97. OMB is estimates that there may be ten such Schedule I to Form ADV is estimated to required to make a decision concerning investment advisers that would be be 9,480.313. the collections of information between eligible for the proposed multi-state The collection of information required 30 and 60 days after publication, so that exemption each year.59 Therefore, the by Schedule I is mandatory, and a comment to OMB is best assured of Commission believes that there would responses are not kept confidential. having its full effect if OMB receives it be a few small entities that would be The Commission estimates that these within 30 days of publication. affected by the proposed rule. collections of Form ADV and Schedule The proposed rule amendments I together would impose a total hourly V. Summary of Regulatory Flexibility minimize regulatory burdens on small- burden of 28,928.73 hours. Analysis entity investment advisers that are The total burdens associated with The Commission has prepared an eligible for the proposed multi-state Form ADV and Schedule I to Form ADV Initial Regulatory Flexibility Analysis exemption by permitting the investment would change from the filing of the last (‘‘IRFA’’) in accordance with 5 U.S.C. adviser, once registered with the Paperwork Reduction Act Submission 603 regarding amendments to rules because of the proposed multi-state 203A–2, 203A–3, 206(4)–3 and 57 See Adopting Release, supra note 6. Schedule I to Form ADV, and the 58 Rule 275.0–7 [17 CFR 275.0–7]. In January exemption and the tabulation of Form 1997, the Commission proposed to revise this withdrawal of rule 203A–5 and Form definition of ‘‘small entity.’’ See Definitions of 55 Investment advisers also would be required to ‘‘Small Business’’ or ‘‘Small Organization’’ Under maintain a record of the states in which they 56 The total hourly burdens for Form ADV and the Investment Company Act of 1940, the believe they would, but for the exemption, be Schedule I would change because (1) the proposed Investment Advisers Act of 1940, the Securities required to register that was the basis of their multi-state exemption would permit a small Exchange Act of 1934, and the Securities Act of representation included on the attachment to number of additional advisers to register with the 1933, Release Nos. 33–7383, 34–38190, IC–22478, Schedule I. The Commission believes that the Commission, and (2) the tabulation of information and IA–1609 (Jan. 22, 1997) [62 FR 4106 (Jan. 28, requirement that the investment advisers maintain from the completed Forms ADV–T has provided the 1997)]. The Commission expects to adopt a revised a record would impose a nominal burden on Commission with a more accurate number of definition of small investment adviser for investment advisers because the information would advisers it regulates after the July 8, 1997 division Regulatory Flexibility Act purposes to reflect the have to be gathered for purposes of making the of regulatory responsibilities between the federal Coordination Act. representation. and state governments. 59 See supra note 41. 61874 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

Commission, to continue to be eligible Investment advisers relying on the As stated in the IRFA, after taking into for the proposed multi-state exemption proposed multi-state exemption would account the resources available to small until it is obligated to register in less be required at initial registration to entities and the potential burden that than 25 states. This five-state difference attach a representation to Schedule I could be placed on investment advisers prevents an investment adviser from that the investment adviser has that may no longer qualify for the being required to register and then de- determined that it must register in at proposed multi-state exemption because register frequently with the Commission least 30 states and a representation on of a change in the registration as a result of a change in its registration Schedule E to Form ADV that it will obligations in a few states, the obligation in one state or few states. withdraw from Commission registration Commission proposes to permit an The proposed amendments to the when it is no longer required to register investment adviser, once registered with definition of investment adviser in at least 25 states.61 Thereafter, in the the Commission, to continue to be representative would permit supervised annual amendment to Form ADV eligible for the proposed multi-state persons of Commission-registered revising Schedule I, the investment exemption as long as it would be investment advisers who only have a adviser would be required to submit a obligated to register in at least 25 states, few business or institutional clients to representation that it has concluded five fewer states than when it initially accept accommodation clients. The that, but for the proposed multi-state registered. Moreover, the burdens Commission does not have information exemption, it would be required to associated with complying with the from which to estimate the number of register in at least 25 states. If the requirements of the rule would affect Commission-registered investment amended Schedule I indicated that the only a very small number of investment advisers managing assets of $50 million investment adviser was no longer advisers each year. or less or having less than $50,000 in eligible for Commission registration, the With respect to the other proposed assets relating to its advisory business proposed amendment would require the rule amendments, the Commission whose supervised persons would be investment adviser to file a Form ADV– believes that the establishment of exempt from the definition of W within 90 days to withdraw its different compliance or reporting investment adviser representative under registration with the Commission. requirements for small entities is neither the proposed amendments. The Commission estimates that it will necessary nor practicable. The The other proposed rule amendments take approximately 240 hours, annually information required by Form ADV and affect only Commission-registered on average, to comply with these Schedule I is necessary for the investment advisers. For purposes of requirements. This burden on Commission to determine whether the these amendments, the Commission investment advisers that use this investment advisers are eligible for estimates that approximately 850 proposed rule would be outweighed by Commission registration. The proposed investment advisers are small entities.60 the cost savings and benefits to the rule amendments will not change These proposed amendments clarify the multi-state investment advisers relying significantly any compliance costs. implementing rules and do not impose on the proposed multi-state exemption. Further clarification, consolidation or any additional burden on investment The proposed withdrawal of Form simplification of the requirements for advisers. Therefore, the Commission ADV–T and rule 203A–5 would small entities does not seem feasible. believes that it is reasonable to estimate eliminate any incidental burden that The Commission believes that the rule that these clarifying amendments would may continue to be imposed by the amendments, as proposed, will not not have a significant economic effect transition rule. The proposed rule adversely affect small entities and, on small entities. Comment is requested amendments to rule 206(4)–3 and Form instead, include regulatory alternatives ADV would not impose any new on the number of small entities that that minimize the effect on small reporting, recordkeeping or other would be affected by these proposed entities. compliance requirements. The IRFA includes information amendments. The Commission believes that there The proposed withdrawal of rule concerning the solicitation of comments are no rules that duplicate, overlap, or 203A–5 and Form ADV–T would have with respect to the IRFA generally, and conflict with, the proposed rule no effect on small entities because no in particular, the number of small amendments. entities that would be affected by the investment advisers currently should be The IRFA discusses the various filing Form ADV–T. proposed rule amendments. A copy of alternatives considered by the the IRFA may be obtained by contacting The proposed rule amendments Commission in connection with the would impose certain new reporting Carolyn-Gail Gilheany, Securities and proposed rule amendments that might Exchange Commission, 450 5th Street, and recordkeeping requirements and minimize the effect on small entities, eliminate certain other requirements. N.W., Mail Stop 10–6, Washington, D.C. including (a) the establishment of 20549. differing compliance or reporting 60 This estimate of the number of small entities requirements or timetables that take into VI. Statutory Authority was made for purposes of the Final Regulatory Flexibility Analysis for the rules implementing the account resources available to small The Commission is proposing Coordination Act. See Adopting Release, supra note entities; (b) the clarification, amendments to rule 203A–2 pursuant to 6, at nn. 189–190 and accompanying text. Of the consolidation, or simplification of the authority set forth in section 203A(c) 23,350 Commission-registered investment advisers, compliance and reporting requirements 5,800 advisers have not filed their Form ADV–T, of the Investment Advisers Act of 1940 indicating their eligibility to remain registered with under the rule for small entities; (c) the [15 U.S.C. 80b–3a(c)]. the Commission. See supra note 54. The use of performance rather than design The Commission is proposing Commission also expects to adopt a revised standards; and (d) an exemption from amendments to rule 203A–3 pursuant to definition of small entity for purposes of the coverage of the rule, or any part thereof, Regulatory Flexibility Act. See supra note 58. the authority set forth in sections Therefore, the Commission plans to revise its for small entities. 202(a)(17) and 211(a) of the Investment estimate of the number of Commission-registered Advisers Act of 1940 [15 U.S.C. 80b– advisers that are small entities after the transition 61 The proposed multi-state investment adviser 2(a)(17), 80b–11(a)]. is complete so that the Commission would have exemption also would require investment advisers The Commission is proposing more accurate information to estimate the number to maintain a record of the states in which they of small entities under the new definition of that would, but for the exemption, be required to amendments to rule 206(4)–3 pursuant term. register. to the authority set forth in sections 204, Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61875

206, and 211 of the Investment Advisers Determine the aggregate value of assets (4) Maintains in an easily accessible Act of 1940 [15 U.S.C. 80b–4, 80b–6, by cumulating the value of assets of place a record of the States that the 80b–11]. plans with respect to which the investment adviser has determined it The Commission is proposing to investment adviser was last employed would, but for the exemption, be withdraw rule 203A–5 pursuant to the or retained by contract to provide required to register for a period of not authority set forth in sections 204 and investment advice during the 12-month less than five years from the filing of a 211(a) of the Investment Advisers Act of period ended within 90 days of filing Schedule I to Form ADV that includes 1940 [15 U.S.C. 80b–4, 80b–11(a)]. Schedule I to Form ADV (17 CFR 279.1). a representation that is based on such The Commission is proposing * * * * * record. amendments to Schedule I to Form ADV (e) Multi-State Investment Advisers. 3. In § 275.203A–3 the introductory pursuant to the authority set forth in An investment adviser that: text and paragraph (a) are revised to sections 203(c)(1) and 204 of the (1) Upon submission of its application read as follows: Investment Advisers Act of 1940 [15 for registration with the Commission, is Proposal I U.S.C. 80b–3(c)(1) and 80b–4]. required by the laws of 30 or more The Commission is proposing to States to register as an investment § 275.203A±3 Definitions. remove and reserve rule 279.3 and adviser with securities commissioners For purposes of section 203A of the proposing to remove Form ADV–T (or any agencies or officers performing Act (15 U.S.C. 80b–3a) and the rules pursuant to the authority set forth in like functions) in the respective States, thereunder: sections 204 and 211(a) of the and thereafter would, but for this (a)(1) Investment Adviser Investment Advisers Act of 1940 [15 section, be required by the laws of at Representative. Investment adviser U.S.C. 80b–4, 80b–11(a)]. least 25 States to register as an representative of an investment adviser List of Subjects in 17 CFR Parts 275 and investment adviser with securities means a supervised person of the 279 commissioners (or any agencies or investment adviser: officers performing like functions) in the (i) Who has more than five clients Reporting and recordkeeping respective States; who are natural persons other than requirements, Securities. (2) Attaches a representation to excepted persons described in Text of Proposed Rule and Form Schedule I to Form ADV (17 CFR 279.1) paragraph (a)(3)(i) of this section; or Amendments that the investment adviser has (ii) More than ten percent of whose For the reasons set out in the reviewed the applicable State and clients are natural persons other than preamble, Title 17, Chapter II of the federal laws and has concluded that, in excepted persons described in Code of Federal Regulations is proposed the case of an application for paragraph (a)(3)(i) of this section. to be amended as follows: registration with the Commission, it is (2) Notwithstanding paragraph (a)(1) required by the laws of 30 or more of this section, a supervised person is PART 275ÐRULES AND States to register as an investment not an investment adviser representative REGULATIONS, INVESTMENT adviser with the securities if the supervised person: ADVISERS ACT OF 1940 commissioners (or any agencies or (i) Does not on a regular basis solicit, officers performing like functions) in the meet with, or otherwise communicate 1. The authority citation for Part 275 respective States and, in the case of an with clients of the investment adviser; is revised to read as follows: amendment to Form ADV revising or Authority: 15 U.S.C. 80b–2(a)(17), 80b–3, Schedule I to Form ADV, it would be (ii) Provides only impersonal 80b–4, 80b–6(4), 80b–6a, 80b–11, unless required by the laws of at least 25 States investment advice. otherwise noted. to register with the securities (3) For purposes of this section: Section 275.203A–1 is also issued under 15 commissioners (or any agencies or (i) Excepted person means a natural U.S.C. 80b–3a. officers performing like functions) in the person who is a qualified client as Section 275.203A–2 is also issued under 15 respective States within 90 days prior to defined in § 275.205–3(d)(1). U.S.C. 80b–3a. (ii) Impersonal investment advice Section 275.204–2 is also issued under 15 the date of filing Schedule I; U.S.C. 80b–6. (3) Includes on Schedule E to its Form means investment advisory services Section 275.205–3 is also issued under 15 ADV (17 CFR 279.1), an undertaking to provided by means of written material U.S.C. 80b–5(e). withdraw from registration with the or oral statements that do not purport to meet the objectives or needs of specific 2. Section 275.203A–2 is amended by Commission if an amendment to Form individuals or accounts. revising the introductory text of ADV revising Schedule I to Form ADV (4) Supervised persons may rely on § 275.203A–2 and paragraph (b)(3) and indicates that the investment adviser the definition of client in adding paragraph (e) to read as follows: would be required by the laws of fewer than 25 States to register as an § 275.203(b)(3)–1 to identify clients for § 275.203A±2 Exemptions from prohibition investment adviser with the securities purposes of paragraph (a)(1) of this on Commission registration. commissioners (or any agencies or section, except that supervised persons The prohibition of section 203A(a) of officers performing like functions) in the need not count clients that are not the Act (15 U.S.C. 80b–3a(a)) shall not respective States, and, within 90 days residents of the United States. apply to: after filing Schedule I to Form ADV, Proposal II * * * * * files a completed Form ADV–W (17 CFR (b) * * * 279.2) whereby the investment adviser § 275.203A±3 Definitions. (3) In determining the aggregate value withdraws from registration with the For purposes of section 203A of the of assets of plans, include only that Commission if the amendment to Form Act (15 U.S.C. 80b–3a) and the rules portion of a plan’s assets for which the ADV revising Schedule I indicates that thereunder: investment adviser provided investment the investment adviser would be (a)(1) Investment Adviser advice (including any advice with prohibited by section 203A of the Act Representative. Investment adviser respect to the selection of an investment (15 U.S.C. 80b–3a) from registering with representative of an investment adviser adviser to manage such assets). the Commission; and means a supervised person of the 61876 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules investment adviser whose clients are (D) Relative, spouse or relative of b. Section 275.203A–2 (d)(2) and natural persons other than excepted spouse of the supervised person. (d)(3). persons described in paragraph (a)(3)(i) (ii) Impersonal investment advice of this section. means investment advisory services PART 279ÐFORMS PRESCRIBED (2) Notwithstanding paragraph (a)(1) provided by means of written material UNDER THE INVESTMENT ADVISERS of this section, a supervised person is or oral statements that do not purport to ACT OF 1940 meet the objectives or needs of specific not an investment adviser representative 7. The authority citation for Part 279 individuals or accounts. if the supervised person: continues to read as follows: (i) Does not on a regular basis solicit, (4) Supervised persons may rely on the definition of client in Authority: The Investment Advisers Act of meet with, or otherwise communicate 1940, 15 U.S.C. 80b–1, et seq. with clients of the investment adviser; § 275.203(b)(3)–1 to identify clients for or purposes of paragraph (a)(1) of this 8. By revising Schedule I to Form section, except that supervised persons (ii) Provides only impersonal ADV (referenced in § 279.1) to read as need not count clients that are not investment advice. follows: residents of the United States. (3) For purposes of this section: Note: The text of Schedule I to Form ADV (i) Excepted person means a natural § 275.203A±5 [Removed and Reserved] (§ 279.1) does not and the amendments will 4. Section 275.203A–5 is removed and not appear in the Code of Federal Regulation. person who is a: Schedule I is attached as Appendix A. (A) Qualified client as defined in reserved. § 279.3 [Removed and Reserved] § 275.205–3(d)(1); § 275.206(4)±3 [Amended] (B) Partner, officer, director, (or other 5. In § 275.206(4)–3, paragraph 9. Section 279.3 is removed and person occupying a similar status or (a)(1)(ii)(D) is amended by revising the reserved. performing similar functions), of the cite ‘‘203(e)(3)’’ to read ‘‘203(e)(4)’’. 10. Form ADV–T is removed. investment adviser for whom the Note: Form ADV–T does not appear in the supervised person works or of a client §§ 275.203A±1 and 275.203A±2 [Amended] Code of Federal Regulation. that is not a natural person of the 6. In 17 CFR part 275 remove ‘‘[15 Dated: November 13, 1997. investment adviser for whom the U.S.C. 80b–3A(a)]’’ and add, in its place, By the Commission. supervised person works; ‘‘(15 U.S.C. 80b–3a(a))’’ in the following Jonathan G. Katz, (C) Relative, spouse, or relative of places: spouse of such partner, officer or a. Section 275.203A–1 (b)(2), (c), and Secretary. director; or (d); and BILLING CODE 8010±01±P Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61877 61878 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61879

BILLING CODE 8010±01±C 61880 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

Schedule Instructions Commission, even if none of the criteria Commission registration. At the end of for SEC registration (e.g., $25 million of the 120-day period, the adviser is Instruction 1. General Instructions assets under management) is met. required to file an amended Schedule I. (a) SEC’s Collection of Information. Currently these States are Colorado, If the investment adviser indicates on An agency may not conduct or sponsor, Iowa, Ohio, and Wyoming. Applicants the amended Schedule I that it has not and a person is not required to respond that have their principal office and become eligible to register with the to, a collection of information unless it place of business in one of these States Commission, the adviser is required to displays a currently valid control should check the box in item (a)(ii) of file a Form ADV–W concurrently with number. Sections 203(c)(1) and 204 of Part I. the Schedule I, thereby withdrawing the Advisers Act authorize the An applicant whose principal office from registration with the Commission. Commission to collect the information and place of business is located in a An applicant registering with the on this Schedule from applicants. See country other than the United States Commission in reliance on this 15 U.S.C. §§ 80b–3(c)(1) and 80b–4. (i.e., not in the United States, the exemption must include on Schedule E Filing of this Schedule is mandatory. District of Columbia, Puerto Rico, the of Form ADV an undertaking to The principal purpose of this collection Virgin Islands, or any other possession withdraw from registration if, at the end of information is to enable the of the United States) also is required to of the 120-day period, the investment Commission to determine which register with the Commission. Such an adviser would be prohibited from investment advisers are eligible to applicant should check the box in item Commission registration. See rule maintain their registration with the (a)(iii) of Part I. 203A–2(d). Commission and to provide for the (d) Multi-State Advisers. An Instruction 4. Advisers to Investment withdrawal from Commission investment adviser may register with Companies registration for advisers that are no the Commission if it is required to longer eligible. The Commission will An applicant should not check item register as an investment adviser with maintain files of the information on this (a)(iv) of Part I unless applicant the securities authorities of 30 or more Schedule and will make the information currently provides advisory services states. To take advantage of this publicly available. Any member of the pursuant to an investment advisory exemption, an applicant must (i) attach public may direct to the Commission contract to an investment company to this Schedule a representation that it any comments concerning the accuracy registered under the Investment has reviewed the state and federal laws of the burden estimate on page one of Company Act of 1940. The investment and has concluded that it must register this Schedule, and any suggestions for company must be operational, i.e., have with the securities authorities of at least reducing this burden. This collection of assets and shareholders (other than just 30 states within 90 days prior to the information has been reviewed by the the organizing shareholders). date of filing this Schedule, and (ii) Office of Management and Budget in Instruction 5. Exemptions include on Schedule E to Form ADV an accordance with the clearance undertaking to withdraw from requirements of 44 U.S.C. § 3507. The (a) Pension Consultants. An applicant registration if it would no longer be applicable Privacy Act system of records that provides investment advice to required to register in at least 25 states is SEC–2, and the routine use of the employee benefit plans with respect to when it files its annual amendment to records are set forth at 40 Federal assets having an aggregate value of more Form ADV revising this Schedule. Each Register 39255 (Aug. 27, 1975) and 41 than $50 million during the 12-month year (and for so long as the investment FR 5318 (Feb. 5, 1976). period ended within 90 days of filing adviser continues to rely on the multi- (b) For Further Information: this Schedule may register with the state investment adviser exemption), Additional information about the rules Commission. An investment adviser when the adviser updates its Schedule referred to in this Schedule is found in seeking to rely on the pension I, it must attach a new representation the Commission’s adopting release, consultant exemption must aggregate: (i) that it has concluded that, but for the Rules Implementing Amendments to the the value of assets for which it provided exemption, it would be required to Investment Advisers Act of 1940, advisory services at the end of the 12- register with the securities authorities of Investment Advisers Act Rel. No. 1633 month period, and (ii) the value of any at least 25 states within 90 days prior to (May 15, 1997). other assets for which it provided the date of filing Schedule I. advisory services at the end of its Additionally, each time the adviser Instruction 2. Principal Place of employment or contract (if terminated makes such a representation, the adviser Business before the end of the 12-month period). must create and maintain a list of the Applicant’s principal place of See rule 203A–2(b). states that, but for the exemption, it business reported in Form ADV, Part I, (b) Affiliated Advisers. An applicant would be required to register. This list Item 2.A. is the applicant’s principal that controls, is controlled by, or is must be maintained in an easily office and place of business, i.e., the under common control with, an accessible place for a period of not less executive office from which the officers, investment adviser that is eligible to than five years from the date each partners, or managers of the applicant maintain its registration with the representation is filed as an attachment direct, control, and coordinate Commission (‘‘eligible adviser’’) is itself to this Schedule. See rule 203A–2(e). applicant’s activities. See rule 203A– eligible to maintain its registration with Instruction 6. Part I, Item (b) 3(c). the Commission if the principal office and place of business of the applicant is If item (b) of Part I is checked, Instruction 3. Advisers in Colorado, the same as that of the eligible adviser. registrant’s investment registration with Iowa, Ohio, or Wyoming; Foreign See rule 203A–2(c). the SEC must be withdrawn within 90 Advisors (c) Newly Formed Advisers. A newly days after the date this Schedule I was Under the Advisers Act, an applicant formed investment adviser may register required by rule 204–1(a) to have been whose principal office and place of with the Commission at the time of its filed with the Commission. Thus, business (see Instruction 2) is in a State formation if the adviser has a reasonable registrant’s registration must be that does not register investment expectation that within 120 days of withdrawn no later than 180 days after advisers is required to register with the registration it will become eligible for the end of its fiscal year. If registrant’s Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61881 registration is not withdrawn within General Criteria. An applicant (1) Accounts for which the applicant this time period, registrant will be provides continuous and regular allocates assets of a client among mutual subject to having its registration supervisory or management services funds (even if it does so without a grant cancelled pursuant to section 203(h) of with respect to a securities portfolio if of discretionary authority, but only if the Advisers Act. See rule 203A–1(c). the applicant either— the general criteria for non-discretionary (1) has discretionary authority over accounts is satisfied and the factors Instruction 7. Determining Assets Under and provides ongoing supervisory or suggest that the account receives Management management services with respect to the continuous and regular supervisory or Not all applicants are required to account; or management services); and provide the amount of their assets under (2) does not have discretionary (2) Accounts for which the applicant management. An applicant must report authority over the account, but has an allocates assets among other managers— its assets under management in Part II ongoing responsibility to select or make but only under a grant of discretionary only if item I(a)(i) is check yes ‘‘(x)’’ and recommendations, based upon the authority by which it may hire and fire the amount of assets applicant has needs of the client, as to specific managers and reallocate assets among under management is the sole basis for securities or other investments the them. applicant’s eligibility for SEC account may purchase or sell and, if Accounts that do not receive registration (i.e., applicant has not such recommendations are accepted by continuous and regular supervisory or checked any of items I(a)(ii) through the client, is responsible for arranging or management services: (x)). effecting the purchase or sale. (1) Accounts for which the applicant Factors. Applicants should consider In determining the assets applicant provides market timing the following factors in evaluating has under management, include the recommendations (to buy or sell) but whether continuous and regular ‘‘securities portfolios’’ (or portions has no ongoing management supervisory or management services are thereof) for which applicant provides responsibilities; ‘‘continuous and regular supervisory or being provided. (1) Terms of the advisory contract. A (2) Accounts for which the applicant management services’’ as of the date of provision in an advisory contract by provides only impersonal advice, e.g., filing this Schedule. which the applicant agrees to provide market newsletters; (a) Securities Portfolios. An account is ongoing management services suggests (3) Accounts for which the applicant a securities portfolio if at least 50% of that the account receives such services. provides an initial asset allocation, the total value of the account consists of Other provisions in the contract, or the without continuous and regular securities. For purpose of this 50% test, actual management of the applicant, monitoring and reallocation; and applicant may treat cash and cash however, may rebut such a suggestion. (4) Accounts for which the applicant equivalents (i.e., bank deposits, (2) Form of compensation. A form of provides advice only on an intermittent certificates of deposit, bankers compensation based on the average or periodic basis, upon the request of acceptances, and similar bank value of assets under management over the client, or in response to some market instruments) as securities. a specified period of time would suggest event, e.g., an account that is reviewed Applicants may include securities that the applicant provides continuous and adjusted on a quarterly basis. portfolios that are: (i) Family or and regular supervisory or management (d) Value of Assets Under proprietary accounts of the applicant services. On the other hand, a form of Management. Calculate the total amount (unless applicant is a sole proprietor, in compensation based upon time the of applicant’s assets under management which case the personal assets of the applicant spends with a client during a by including the value, as determined sole proprietor must be excluded); (ii) client visit would suggest otherwise. A within 90 days prior to the date of filing accounts for which applicant receives retainer based upon a percentage of this Schedule, of securities portfolios (or no compensation for its services; and assets covered by a financial plan would portions thereof) for which applicant (iii) accounts of clients who are not U.S. not suggest that the applicant provides provides continuous and regular residents. continuous and regular supervisory or supervisory or management services as (b) Value of Portfolio. Include the management services. of the date of filing this Schedule. entire value of each securities portfolio (3) The management practice of the Current market value should be (or portion thereof) for which applicant applicant. The extent to which the determined using the same method as provides ‘‘continuous and regular applicant is actively managing the assets that used to determine the account supervisory or management services.’’ If or providing advice bears on whether value reported to clients or fees for applicant provides continuous and the services are continuous and regular investment advisory services. regular supervisory or management supervisory or management services. (e) Example. To assist applicants, the services for only a portion of a securities However, infrequent trades (e.g., based Commission is providing an example of portfolio, include as assets under on a ‘‘buy and hold’’ strategy) should the method of determining whether a management only the portion of the not alone form the basis for a client account may be included as securities portfolio that receives such determination that the services are not ‘‘assets under management.’’ services. Exclude, for example, a portion provided on a continuous and regular Example of an account: basis. (1) under management by another Examples. To assist applicants, the A client’s portfolio consists of the person; or Commission is providing examples of following: (2) that consists of real estate or accounts that may receive continuous businesses the operations of which are and regular supervisory or management ‘‘managed’’ on behalf of a client but not services, based upon the criteria and as an investment. $6,000,000 stocks and bonds factors discussed above. These examples $1,000,000 cash and cash equivalents No deduction is required for are not exclusive. $3,000,000 non-securities (collectibles, securities purchased on margin. Accounts that may receive continuous commodities, real estate, (c) Continuous and Regular and regular supervisory or management etc.) Supervisory or Management Services. services: 61882 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

DATES: Comments must be received on eligibility to reflect the effects of or before January 20, 1998. inflation on the levels set in 1985 when $10,000,000 Total Assets ADDRESSES: Comments should be the rule was adopted and to add a third submitted in triplicate to Jonathan G. criterion for eligibility. Under the First, is the account a ‘‘securities Katz, Secretary, Securities and Exchange proposed amendments, eligible clients portfolio?’’ The account is a securities Commission, 450 Fifth Street, N.W., must have assets under management portfolio because securities as well as Stop 6–9, Washington, D.C. 20549. with the adviser of at least $750,000, net cash and cash equivalents (which the Comments also may be submitted worth of more than $1,500,000, or be applicant has chosen to include as electronically at the following E-mail ‘‘qualified purchasers’’ under section securities) address: [email protected]. All 2(a)(51)(A) of the Investment Company ($6,000,000+$1,000,000=$7,000,000) comment letters should refer to File No. Act of 1940 (‘‘Investment Company comprise at least 50% of the value of the S7–29–97; this file number should be Act’’).1 account (here, 70%). (See Instruction included on the subject line if E-mail is I. Background 7(a)) used. Comment letters will be available Section 205(a)(1) of the Advisers Act Second, does the account receive for public inspection and copying in the generally prohibits an investment ‘‘continuous and regular supervisory or Commission’s Public Reference Room, adviser from entering into, extending, management services?’’ The entire 450 Fifth Street, N.W., Washington, D.C. renewing, or performing any investment account is managed on a discretionary 20549. Electronically submitted advisory contract that provides for basis and is provided ongoing comment letters also will be posted on compensation to the adviser based on a supervisory and management services, the Commission’s Internet web site share of capital gains on, or capital and therefore receives continuous and (http://www.sec.gov). regular supervisory or management appreciation of, the funds or any portion FOR FURTHER INFORMATION CONTACT: of the funds of the client.2 Congress services. (See Instruction 7(c)) Kathy D. Ireland, Attorney, or Jennifer Third, what is the entire value of the enacted the prohibition against S. Choi, Special Counsel, at (202) 942– performance fees in 1940 to protect account? The entire value of the account 0716, Task Force on Investment Adviser ($10,000,000) is included in the advisory clients from compensation Regulation, Division of Investment arrangements that it believed might calculation of the investment adviser’s Management, Stop 10–6, Securities and total assets under management. encourage advisers to take undue risks Exchange Commission, 450 Fifth Street, with client funds to increase advisory [FR Doc. 97–30296 Filed 11–18–97; 8:45 am] N.W., Washington, D.C. 20549. fees.3 BILLING CODE 8010±01±P SUPPLEMENTARY INFORMATION: The In 1970, Congress provided an Commission is requesting public exception from the prohibition in comment on proposed amendments to section 205(a)(1) for advisory contracts SECURITIES AND EXCHANGE rule 205–3 [17 CFR 275.205–3] under relating to the investment of assets in COMMISSION the Investment Advisers Act of 1940 [15 excess of $1,000,000,4 so long as an U.S.C. 80b–1 et seq.] (‘‘Advisers Act’’). appropriate ‘‘fulcrum fee’’ is used.5 This 17 CFR Part 275 Table of Contents 1 15 U.S.C. 80a–2(a)(51)(A). [Release No. IA±1682, File No. S7±29±97] Executive Summary 2 15 U.S.C. 80b–5(a)(1). 3 H.R. Rep. No. 2639, 76th Cong., 3d Sess. 29 RIN 3235±AH25 I. Background II. Discussion (1940). Performance fees were characterized as ‘‘heads I win, tails you lose’’ arrangements in which Exemption To Allow Investment A. Elimination of Specific Contractual and Disclosure Requirements the adviser had everything to gain if successful and little, if anything, to lose if not. S. Rep. No. 1775, Advisers To Charge Fees Based Upon B. Qualified Clients a Share of Capital Gains Upon or 76th Cong., 3d Sess. 22 (1940). See also SEC, C. Identification of the Client Investment Trusts and Investment Companies, H.R. Capital Appreciation of a Client's D. Transition Rule Doc. No. 477, 76th Cong., 3d Sess. 30 (1939). Account E. General Request for Comment Congress, however, recognized that performance III. Cost-benefit Analysis fees may not be harmful in every context and AGENCY: Securities and Exchange IV. Summary of Regulatory Flexibility initially excluded from the prohibition contracts Commission. Analysis between investment advisers and investment V. Statutory Authority companies. Investment Advisers Act of 1940, ch. ACTION: Proposed rule. 686, § 205(1), 54 Stat. 847, 852 (1940) (amended Text of Proposed Rule Amendments 1970). SUMMARY: The Commission is proposing 4 Trusts, governmental plans, collective trust amendments to the rule under the Executive Summary funds, and separate accounts referred to in section Investment Advisers Act of 1940 that Rule 205–3 under the Advisers Act 3(c)(11) of the Investment Company Act [15 U.S.C. permits investment advisers to charge 80a–3(c)(11)] are not eligible for this exception from permits investment advisers to charge the performance fee prohibition under section certain clients performance or incentive performance fees to clients with at least 205(b)(2)(B) of the Advisers Act [15 U.S.C. 80b– fees. The amendments would modify $500,000 under the adviser’s 5(b)(2)(B)]. the rule’s criteria for clients eligible to management or with a net worth of 5 15 U.S.C. 80b–5(b). A fulcrum fee generally enter into a contract under which a involves averaging the adviser’s fee over a specified more than $1,000,000. The rule requires period and increasing and decreasing the fee performance fee is charged and certain terms to be included in contracts proportionately with the investment performance of eliminate provisions specifying required providing for performance fees and the company or fund in relation to the investment contract terms and disclosures. The specific disclosures to be made to record of an appropriate index of securities prices. amendments would provide investment See Adoption of Rule 205–2 Under the Investment clients entering into these contracts. The Advisers Act of 1940, as Amended, Defining advisers greater flexibility in structuring Commission is proposing to eliminate ‘‘Specified Period’’ Over Which the Asset Value of performance fee arrangements with the provisions of the rule that prescribe the Company or Fund Under Management is clients who are financially sophisticated contractual terms and require specific Averaged, Investment Advisers Act Release No. 347 or have the resources to obtain (Nov. 10, 1972) (37 FR 24895 (Nov. 23, 1972)); disclosures. In addition, the Adoption of Rule 205–1 Under the Investment sophisticated financial advice regarding Commission is proposing to revise the Advisers Act of 1940 Defining ‘‘Investment the terms of these arrangements. threshold levels for determining client Performance’’ of an Investment Company and Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61883

statutory exception was the only contracts with any person whom the calculated pursuant to two different provision under which advisers could Commission determined did not need methodologies specified in the rule, enter into performance fee contracts the protections of the prohibition.11 depending upon the nature of the with so-called ‘‘high net worth’’ clients Four years later, Congress included in securities under management.16 In until 1985 when the Commission the National Securities Markets addition, the performance fee must be adopted rule 205–3.6 Improvement Act of 1996 (‘‘1996 based on the gains less the losses in the Under rule 205–3, an adviser may Act’’) 12 two additional statutory client’s account for a period of not less charge performance fees to a client that exceptions from the performance fee than one year.17 Second, the investment has $500,000 under management with prohibition 13 and new section 205(e) of adviser must disclose to the client, or to the adviser or has a net worth of the Advisers Act, which authorizes the the client’s independent agent, prior to $1,000,000. Because of their wealth, Commission to exempt conditionally or entering into the contract, all material financial knowledge, and experience, unconditionally from the performance information concerning the proposed the Commission presumed that these fee prohibition advisory contracts with advisory arrangement, including: (1) the clients are less dependent on the persons that the Commission possibility that the arrangement may protections provided by the Advisers determines do not need its create an incentive for the adviser to Act’s restrictions on performance fee protections.14 make riskier or more speculative arrangements.7 The rule, however, II. Discussion investments; (2) the fact (if applicable) imposes a number of required that the adviser may receive increased provisions on performance fee contracts A. Elimination of Specific Contractual compensation based on unrealized and obligates the adviser to provide and Disclosure Requirements appreciation as well as realized gains; certain disclosures to clients. These As noted above, rule 205–3 contains (3) the periods that will be used to provisions were included as ‘‘alternative several conditions on advisers entering measure investment performance and safeguards to the statutory their significance in the computation of 8 into performance fee contracts in prohibition.’’ the fee; (4) the nature and significance In 1992, the Commission’s Division of addition to those related to the 15 of any index that will be used as a Investment Management issued a report eligibility of clients. First, the comparative measure of investment concluding that the existing exemptions compensation provided to the adviser performance, and why the index is from the performance fee prohibition under the contract must be based on the appropriate; and (5) if the fee is based should be expanded to permit certain performance of securities that is on unrealized appreciation of securities sophisticated clients of investment 11 for which market quotations are not advisers to enter into arrangements Id. at 245, 247–48. 12 Pub. L. No. 104–290, 110 Stat. 3416 (1996) readily available, how the securities will without the restrictions in the statutory (codified in scattered sections of the U.S. Code). 9 be valued and the extent to which the or administrative exemptions. The 13 Section 210 of the 1996 Act added to section value will be determined Division expressed the view that ‘‘where 205 of the Advisers Act exceptions for contracts independently.18 a client appreciates the risk of with companies excepted from the definition of Finally, the adviser performance fees and is in a position to investment company by section 3(c)(7) of the must reasonably believe that the Investment Company Act [15 U.S.C. 80a–3(c)(7)] protect itself from overreaching by the contract represents an arm’s-length and contracts with persons who are not residents arrangement and that the client, alone or adviser, the determination of whether of the United States. The definition of ‘‘person’’ such fees provide value is best left to the under section 202 of the Advisers Act includes together with an independent agent, client.’’ 10 The Division recommended companies, which in turn includes corporations, understands the proposed compensation partnerships, associations, joint-stock companies, arrangement and its risks.19 that Congress enact legislation trusts and organized groups of persons [15 U.S.C. specifically authorizing the Commission 80b–2(a)(5), (16)]; therefore, the exception for Whether these provisions are to provide exemptions from the foreign residents includes foreign investment necessary to protect sophisticated performance fee prohibition for advisory companies. clients of the type contemplated by rule 14 15 U.S.C. 80b–5(e). Section 205(e) provides that 205–3 was examined by the Division of the Commission may determine that persons may ‘‘Investment Record’’ of an Appropriate Index of not need the protections of section 205(a)(1) on the Investment Management in 1992. The Securities Prices, Investment Advisers Release No. basis of such factors as ‘‘financial sophistication, Commission agrees with the Division’s 327 (Aug. 8, 1972) (37 FR 17467 (Aug. 29, 1972)). net worth, knowledge of and experience in financial conclusion that if a client appreciates In 1980, Congress added an exception for matters, amount of assets under management, the risk of performance fees and is in a contracts involving business development relationship with a registered investment adviser, companies under conditions set forth in section and such other factors as the Commission position to protect itself from 205(b)(3) of the Advisers Act (15 U.S.C. 80b– determines are consistent with [section 205].’’ overreaching by the adviser, then the 5(b)(3)). 15 Before the enactment of the 1996 Act, rule 205– 6 terms of the arrangement are best left to Rule 205–3 was adopted under section 206A of 3 was available only to Commission-registered the Advisers Act (15 U.S.C. 80b–6a), which grants investment advisers. Title III of the 1996 Act, the 16 If market quotations for the securities involved the Commission general exemptive authority. In Coordination Act, which became effective on July providing this authority, Congress noted that the 8, 1997, generally limited Commission registration are readily available, then the formula must include Commission would be able to ‘‘exempt persons . .. to larger investment advisers but continued the realized capital losses and unrealized capital from the bar on performance-based advisory application of the prohibition of section 205(a)(1) of depreciation of the securities. If market quotations compensation’’ in appropriate cases. H.R. Rep. No. the Advisers Act to all advisers (other than those are not readily available, then the formula still must 1382, 91st Cong., 2d Sess. 42 (1970); S. Rep. No. exempt from registration pursuant to section 203(b) include realized capital losses, but need not include 184, 91st Cong., 1st Sess. 46 (1969). of the Act [15 U.S.C. 80b–3(b)]), regardless of unrealized capital depreciation unless it also 7 Exemption to Allow Registered Investment whether they are prohibited from registering with includes unrealized capital appreciation. Rule 205– Advisers to Charge Fees Based Upon a Share of the Commission pursuant to the Coordination Act. 3(c)(1), (2) [17 CFR 275.205–3(c)(1), (2)]. Capital Gains Upon or Capital Appreciation of a 1996 Act, supra note 12. In light of this provision, 17 Rule 205–3(c)(3) [17 CFR 275.205–3(c)(3)]. Client’s Account, Investment Advisers Act Release the Commission amended rule 205–3 earlier this 18 Rule 205–3(d) [17 CFR 275.205–3(d)]. No. 996 (Nov. 14, 1985) (50 FR 48556 (Nov. 26, year to permit all advisers to take advantage of the 19 Rule 205–3(e) [17 CFR 275.205–3(e)]. The rule 1985)). limited exemption in the rule. Rules Implementing also contains a number of definitions of terms 8 Id. at Section I.C. Amendments to the Investment Advisers Act of necessitated by these conditions, including 9 See Division of Investment Management, U.S. 1940, Investment Advisers Act Release No. 1633 ‘‘affiliated person,’’ ‘‘client’s independent agent,’’ Securities and Exchange Commission, Protecting (May 15, 1997) [62 FR 28112 (May 22, 1997)] ‘‘interested person,’’ ‘‘securities for which market Investors: A Half Century of Investment Company (‘‘Implementing Release’’). The proposed quotations are readily available,’’ and ‘‘securities for Regulation 237–49 (1992) (‘‘Protecting Investors’’). amendments herein also include conforming which market quotations are not readily available.’’ 10 Id. at 245. changes to the May 1997 rule amendments. Rule 205–3(g)(3)–(6) [17 CFR 275.205–3(g)(3)–(6)]. 61884 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules the client.20 While the conditions of rule Comment is requested on whether other things, to add new section 3(c)(7), 205–3 are intended to protect clients, rule 205–3 should be amended to which exempts from regulation under the Commission’s experience with the eliminate all of the contractual and the Investment Company Act certain rule suggests they also may inhibit disclosure requirements for investment pools whose interests are flexibility of advisers and their clients sophisticated clients. Should the not offered to the public and whose in establishing performance fee ‘‘arm’s-length contract’’ or any of the shareholders consist primarily of arrangements beneficial to both parties. other provisions be retained? Are ‘‘qualified purchasers,’’ including Moreover, in light of the other certain conditions on performance fee individuals with at least $5,000,000 of protections provided by the Advisers contracts necessary to protect even investments.27 Although, in most cases, Act, the Commission believes that these clients the Commission presumes are persons who would be qualified clients may not need the protections of able to protect themselves? Are there purchasers under section 2(a)(51)(A) the rule.21 Therefore, the Commission alternative conditions that should be would be eligible to enter into a believes that the conditions may not be considered? performance fee contract with advisers necessary to protect these types of B. Qualified Clients under rule 205–3, even as proposed to clients and proposes, pursuant to its be amended, in some cases, such exemptive authority under new section As noted above, in adopting rule 205– persons would not.28 Therefore, the 205(e) of the Advisers Act, to eliminate 3 in 1985, the Commission concluded Commission proposes to add ‘‘qualified all of the contractual and disclosure that clients having a net worth in excess purchasers’’ as eligible clients under the provisions in rule 205–3 other than the of $1,000,000, or assets under rule so that an investor who meets the client eligibility tests. management of at least $500,000, do not eligibility requirements of section Under the proposed rule need the full protections provided by 3(c)(7) also could enter into a amendments, performance fee contracts the Advisers Act’s restrictions on performance fee arrangement outside 24 would no longer be subject to the performance fee arrangements. The the context of a section 3(c)(7) prescribed contract terms and Commission believes that a similar company.29 disclosures. Thus, an adviser would be finding by the Commission would Under the proposed amendments, free to negotiate all of the terms of a support the proposed expansion of the clients who satisfy the new eligibility performance fee contract with a client. exemption under the new authority criteria contained in rule 205–3 would The Commission emphasizes, however, granted the Commission last year in be referred to as ‘‘qualified client[s].’’ 30 25 that an adviser charging a performance section 205(e) of the Advisers Act. Comment is requested on the revised fee would continue to be subject to the The Commission recognizes that, criteria for entering into a performance Advisers Act’s prohibitions against since 1985, the net worth and assets fee contract and whether the under management thresholds have fraud.22 As a result, an adviser could not Commission should consider alternative been affected by inflation: $1,000,000 in enter into a performance fee criteria for qualified clients. Are the 1985 dollars is now worth arrangement that was inconsistent with criteria sufficient for the Commission to approximately $1,521,000; and $500,000 the adviser’s fiduciary duties and could make the required finding under section in 1985 dollars is now worth not fail to disclose material information 205(e) that qualified clients do not need approximately $760,000. The about the performance fee to the the protections of the statutory Commission therefore proposes to client.23 prohibition on performance fee increase the amounts of the net worth arrangements? Rather than including the and assets under management tests from 20 See Protecting Investors, supra note 9, at 245. qualified purchaser as the third $1,000,000 and $500,000 to $1,500,000 21 Advisers are regarded as fiduciaries who are alternative criterion, should the and $750,000, respectively. This required to deal fairly with their clients and to Commission use the qualified purchaser make full and fair disclosure of, among other things, increase is not intended to reduce the their compensation agreements. See SEC v. Capital threshold in lieu of the other two tests? number or to alter the types of clients In addition to criteria such as Gains Research Bureau, 375 U.S. 180, 194 (1963). with which an adviser may enter into a In addition, advisers registered with the financial sophistication and knowledge Commission are required to provide their clients performance fee arrangement, but to and experience in financial matters, with a brochure describing their fee arrangements. reflect the effects of inflation on the section 205(e) permits the Commission See Part II of Form ADV. rule. 22 Section 206 of the Advisers Act [15 U.S.C. 80b- The Commission also is proposing to 27 15 U.S.C. 80a–3(c)(7). 6]. permit advisers to enter into 23 The proposed amendments also would 28 For example, in determining the amount of eliminate paragraph (h) of the current rule, which performance fee contracts with clients investments for purposes of the definition of states that ‘‘[a]n investment adviser entering into or who are ‘‘qualified purchaser[s]’’ under qualified purchaser, only outstanding indebtedness performing an investment advisory contract under section 2(a)(51)(A) of the Investment incurred to acquire or for the purpose of acquiring this rule is not relieved of any obligations under Company Act.26 The 1996 Act amended the investments must be deducted. Rule 2a51–1(e) section 206 of the Advisers Act or of any other of the Investment Company Act (17 CFR 270.2a51– applicable provisions of the federal securities the Investment Company Act, among 1(e)). See also Privately Offered Investment laws.’’ The Commission believes that the proposed Companies, Investment Company Act Release No. rule amendments by their terms provide an U.S.C. 1001–1461. The proposed amendments to 22597 (Apr. 3, 1997) (62 FR 17512 (Apr. 9, 1997)). exemption only from section 205(a)(1), and that rule 205–3 would not affect an adviser’s obligation Thus, a person with less than $750,000 in assets separate reference to section 206 and other to comply with ERISA. Issues involving under management could have over $5,000,000 of provisions of the federal securities laws is performance fee arrangements under ERISA are investments, but a net worth of less than $1,500,000 unnecessary. By proposing to eliminate this within the jurisdiction of the Department of Labor, because of other debt. Under the proposed rule reference, the Commission does not intend in any which is responsible for administering ERISA’s amendments, such a person would be eligible to way to suggest that compliance with the amended fiduciary provisions and has addressed enter into a performance fee contract under rule rule would relieve advisers of any obligations under performance fee arrangements in a number of 205–3. section 206 of the Advisers Act or of any other advisory opinions under ERISA. U.S. Department of 29 Under section 205(b)(4)] of the Advisers Act [15 applicable provisions of the federal securities laws. Labor Advisory Opinion No. 89–28A (Sept. 25, U.S.C. 80b–5(b)(4)], section 3(c)(7) companies may The Commission further notes that advisers 1989); U.S. Department of Labor Advisory Opinion enter into performance fee contracts without relying entering into performance fee arrangements with 86–21A (Aug. 29, 1986); U.S. Department of Labor on rule 205–3. Each investor in a section 3(c)(7) employee benefit plans covered by the Employee Advisory Opinion 86–20A (Aug. 29, 1986). company need not satisfy the eligibility criteria for Retirement Income Security Act of 1974 (‘‘ERISA’’) 24 See supra note 7 and accompanying text. an adviser to charge performance fees to the section are subject to the fiduciary responsibility and 25 See supra note 14 and accompanying text. 3(c)(7) company. See infra note 36. prohibited transaction provisions of ERISA. 29 26 See supra note 1. 30 Proposed rule 205–3(d)(1). Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61885 to consider whether a client may not clarify that any equity owners that are The proposed amendments would need the protections of the Advisers Act not charged a performance fee would benefit investment advisers and their by virtue of its relationship with the not be required to meet the qualified qualified clients by providing more adviser.31 Should the Commission client test.37 flexibility to enter into performance fee exempt advisers that have a pre-existing Comment is requested whether this arrangements. Specifically, investment relationship with clients that suggests ‘‘look through’’ provision should advisers and their qualified clients that the abuses Congress sought to continue to be included in rule 205–3. could enter into such arrangements prevent by prohibiting performance fee The Commission also requests comment without being subject to prescribed arrangements are unlikely to occur? If concerning whether the rule should compensation calculations and client so, what should be the nature of those specifically address the application of disclosures. Thus, the total number of relationships? 32 the ‘‘look through’’ provision to other performance fee arrangements may Should the Commission revise the entities. increase. On the other hand, the criteria to prevent the net worth and D. Transition Rule proposed increase in the thresholds for assets under management criteria from determining eligibility under the rule becoming less meaningful as a result of The proposed amendments would may cause the number of eligible clients inflation? Should the criteria be indexed add a transition rule permitting to decrease,39 and, as a result, reduce to prevent future effective lowering of investment advisers and their clients to the total number of performance fee maintain their existing performance fee 40 the amounts? Should the Commission arrangements. The Commission, arrangements notwithstanding the adopt more detailed criteria to assure however, does not have information clients’ failure to meet the eligibility the financial sophistication of qualified from which to analyze the precise effect criteria after the thresholds increase to clients if the objective thresholds are of the proposed amendments on the $750,000 and $1,500,000.38 Such effectively decreased as result of number of performance fee arrangements could continue under the inflation? arrangements. Comment is requested on transition rule if they were entered into whether the proposed amendments C. Identification of the Client 33 before the effective date of the would increase or decrease the number amendments to the rule and they Rule 205–3 provides that with respect of performance fee arrangements. satisfied the requirements of the rule as to certain clients entering into To the extent that the proposed rule in effect on the date that they were performance fee contracts with an amendments increase the number of entered into. A new party to an existing adviser—private investment performance fee arrangements, advisers arrangement, however, would be 41 companies,34 registered investment and clients may benefit overall. For required to satisfy the new qualified example, proponents of performance companies, and business development client test. companies—the adviser must ‘‘look fees have argued that these through’’ the legal entity to determine E. General Request for Comment arrangements may benefit both parties to the advisory contract because linking whether each equity owner of the Any interested persons wishing to company would be a qualified client.35 advisory compensation to performance submit written comments on the may result in a closer alignment of the The proposed amendments would retain proposed rule amendments that are the 42 the ‘‘look through’’ provision 36 and goals of the adviser and the client. If subject of this Release, to suggest the goals of both parties coincide, then additional changes (including changes 31 See supra note 14. to the provisions of the rule that the 39 32 In the context of the definition of investment According to data from the 1995 Survey of adviser representative, the Commission has Commission is not proposing to amend), Consumer Finances conducted by the Federal proposed that natural persons with certain business or to submit comments on other matters Reserve Board, approximately 1,100,000 households have net worth between $1,000,000 and or familial relationships with the supervised person that might have an effect on the $1,500,000. This figure, however, represents the net would not need the protection of state qualification proposals described above, are worth of households and not the individual persons requirements. Exemption for Investment Advisers requested to do so. Commenters who might be clients. Furthermore, the survey Operating in Multiple States; Revisions to Rules results do not address clients that are not natural Implementing Amendments to the Investment suggesting alternative approaches are persons. Advisers Act of 1940, Investment Advisers Act encouraged to submit their proposed 40 Release No. 1681 (Nov. 13, 1997). The Commission knows of no information rule text. concerning the incidence of performance fee 33 The following discussion of the identity of the III. Cost-benefit Analysis arrangements in the United States, and requests the ‘‘client’’ is relevant only for purposes of this rule submission of data concerning such incidence. and not for purposes of section 206 of the Advisers The Commission is sensitive to the Performance fee arrangements, however, appear to Act (15 U.S.C. 80b–6). be accepted practices in many other countries. See 34 costs and benefits imposed by its rules. The definition of ‘‘private investment International Survey of Investment Adviser company’’ included in paragraph (g)(1) of the The Commission notes that the Regulation 15 (Marcia L. MacHarg & Roberta R. W. current rule [17 CFR 275.205–3(g)(1)] would proposed rule amendments are pursuant Kameda eds., 1994) (noting that performance fees continue in the amended rule to refer solely to to new authority granted to it by generally are permitted in Australia, Brazil, Canada those companies excepted from the definition of Congress in the 1996 Act. (Ontario, with client’s written consent), France, investment company under section 3(c)(1) of the Germany, Italy, Japan, Spain, Switzerland (up to Investment Company Act [15 U.S.C. 80a–3(c)(1)]. 20% of net capital gain), the United Kingdom and Reference to section 3(c)(7) is unnecessary because, arrangement that is not a fulcrum fee.’’ See S. REP. Venezuela). as noted above, companies excepted from the NO. 293, 104th Cong., 2d Sess. 11 (1996). 41 The Commission’s Division of Investment definition of investment company under this 37 Proposed rule 205–3(b). See, e.g., Hellmold Management discussed the advantages and provision also are excepted from the performance Associates, Inc. (pub. avail. Dec. 18, 1992) (adviser disadvantages of performance fees in more detail in fee prohibition pursuant to section 205(b)(4) of the may receive performance fee from certain limited its 1992 study. Protecting Investors, supra note , at Advisers Act (15 U.S.C. 80b–5(b)(4)). partners when the fee would be based solely on a 239–40. 35 Rule 205–3(b)(2) [17 CFR 275.205–3(b)(2)]. limited partner’s capital account and not based on 42 Richard Grinold & Andrew Rudd, Incentive 36 Proposed rule 205–3(b). The Commission is not the overall performance of the partnership). See Fees: Who Wins? Who Loses?, 43 Fin. Analysts J. proposing to extend the ‘‘look through’’ provision also Compass Investors (pub. avail. Dec. 18, 1996). 27, 37 (Jan.–Feb. 1987); Harvey E. Bines, The Law of rule 205–3 to section 3(c)(7) companies. In the The proposed amendments would retain the of Investment Management ¶ 5.03[2][b], at 5–43 1996 Act, Congress explicitly excepted section provision in rule 205–3 that an equity owner who (1978 & Supp. 1986) (observing that the principal 3(c)(7) companies from the prohibition on is the investment adviser entering into the justification for performance fees is that they permit performance fees having concluded that ‘‘investors performance fee contract need not be a qualified the uncertainty in the quality of the product—the in a qualified purchaser pool are sophisticated client. management of the portfolio—to be shared between enough to be allowed to enter into a fee 38 Proposed rule 205–3(c). the adviser and the client). 61886 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules the benefits of performance fee improve performance.48 In addition, The proposed rule should reduce the arrangements would include fewer some detractors have expressed concern costs of establishing and monitoring conflicts of interest in advisory that performance fees might result in compliance with the current rule. relationships. Better alignment of the discrimination against clients that do Comment is requested on this cost- goals of the adviser and the client might not pay performance fees. One form of benefit analysis. Commentators are also result in more efficient investing such discrimination may be advisers requested to provide views and and allocation of capital. devoting more of their time and empirical data relating to any costs and Proponents also claim that resources to clients that pay such fees.49 benefits associated with the proposed performance fees may encourage better Such an argument relies on an rules and performance fees in general. performance by rewarding good assumption, which may not be For purposes of the Small Business performance rather than linking necessarily correct, that an adviser Regulatory Enforcement Fairness Act of compensation and assets under cannot increase the amount of its 1996, the Commission also is requesting management as in more traditional advisory resources. Nonetheless, this information regarding the potential arrangements.43 Thus, such argument notes the potential for an effect of the proposed rule amendments arrangements may produce more cost- increase in conflicts of interest on the on the economy on an annual basis. effective results than arrangements with part of advisers.50 Commentators should provide empirical more traditional fee structures. The arguments for and against data to support their views. In addition, advocates of the performance fee arrangements provide no definitive answers concerning their IV. Summary of Regulatory Flexibility increased use of performance fees assert Analysis that they may encourage the effect on advisers, clients and the establishment of new advisory firms.44 markets in general. The costs and The Commission has prepared an Performance fees could result in greater benefits of performance fee Initial Regulatory Flexibility Analysis competition and produce a wider array arrangements in general are difficult to (‘‘IRFA’’) in accordance with 5 U.S.C. of investment advisers and services and quantify because of their theoretical 603 regarding proposed amendments to lower overall advisory costs. Proponents nature. Comment is requested on rule 205–3 under the Advisers Act. The also state that performance fees provide whether the benefits and costs could be following summarizes the IRFA. an incentive for investment advisers to quantified. As set forth in greater detail in the The Commission has determined to service smaller accounts that otherwise IRFA, the 1996 Act added section 205(e) permit clients who are financially might be less attractive to the advisers.45 to the Advisers Act, which authorizes sophisticated or have the resources to Furthermore, supporters argue that the Commission to exempt obtain sophisticated financial advice to performance fees permit advisers to conditionally or unconditionally from weigh the costs and benefits of entering focus on a smaller number of clients the performance fee prohibition into such arrangements and to than they otherwise would under contained in section 205(a)(1) of the determine for themselves whether to Advisers Act advisory contracts with traditional compensation arrangements enter into such contracts. Although an by allowing them to generate sufficient persons that the Commission increase in the use of performance fees determines do not need the protections income without the necessity for a large may impose some overall costs, such asset base.46 Such results also could of the prohibition. The IRFA states that costs could result from the existing rule the proposed rule amendments would increase the variety of services provided 205–3 even if the Commission did not to a wider array of clients, and decrease liberalize rule 205–3, which permits adopt the proposed amendments. performance fees to be charged to advisory costs overall. With respect to the rule amendments The increased use of performance sophisticated clients by eliminating at issue, the Commission believes that required contract terms and disclosures, fees, however, also may produce some the proposed amendments would not costs to advisory clients and the update the current criteria for impose any additional costs on determining eligible clients to reflect the economy in general. Opponents of investment advisers or their clients. advisory fees have cited the potential for effects of inflation on the current assets Once the adviser determines that a under management and net worth tests, the adviser under a performance fee client is qualified, the rule does not arrangement to engage in excessive risk and add a new category of eligible prescribe detailed contractual clients based upon the definition of taking with respect to the client’s requirements or require specific account.47 Excessive risk taking may ‘‘qualified purchaser’’ in section disclosures to clients. The Commission 2(a)(51)(A) of the Investment Company result in unexpected losses to the has observed over the years that the clients, which may prompt investors to Act. detailed conditions of the current rule The IRFA sets forth the statutory withdraw from the market and 51 raise numerous interpretive issues. authority for the proposed rule discourage capital formation. Critics amendments. The IRFA also discusses also challenge whether there is any 48 Lofthouse, supra note 43, at 79 (citing the lack the effect of the proposed rule basis, theoretical or analytical, for of empirical data); Roher, supra note 44, at 128 amendments on small entities. For the believing that performance fees will (noting that incentives for good performance already exist because advisers are compensated on purposes of the Advisers Act and the the basis of account size and must perform well to Regulatory Flexibility Act, an 43 See, e.g., Stephen Lofthouse, A Fair Day’s retain their clients); Bines, supra note 42, at 5–36 investment adviser generally is a small Wages for a Fair Day’s Work, 4 Journal of Investing (indicating that there is no demonstrable 74, 76 (Winter 1995); Grinold & Rudd, supra note connection between performance fees and superior entity (i) if it manages assets of $50 42, at 37; Bines, supra note 42, at 5–36 to 5–37. performance). million or less, in discretionary or non- 44 Julie Roher, The Great Debate Over 49 See, e.g., Lofthouse, supra note 43, at 77. Performance Fees, 17 Institutional Investor 123, 124 50 See In re McKenzie Walker Investment performance fee based on performance of (Nov. 1983) (stating that new firms can begin Management, Inc., Investment Advisers Act Release partnership over a period of at least one year); generating profits before attracting a large asset No. 1571 (July 16, 1996) (investment adviser Securities Industry Association (pub. avail. Nov. 18, base). favoring its performance-fee clients in the allocation 1986) (use of rolling one-year periods after initial 45 See, e.g., id. of hot initial public offerings). one-year period); P.E. Becker, Inc. (pub. avail. July 46 See, e.g., id. 51 See, e.g., Valuemark Capital Management, Inc. 21, 1986) (individual limited partners may be 47 Lofthouse, supra note 43, at 77; Roher, supra (pub. avail. June 4, 1997) (limited partners considered the ‘‘client’’ for purposes of the ‘‘arm’s- note 44, at 127. purchasing or redeeming mid-year immaterial if length’’ negotiation requirement). Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules 61887 discretionary accounts, as of the end of minimize the effect on small entities, Section 275.203A–2 is also issued under 15 its most recent fiscal year or (ii) if it including (a) the establishment of U.S.C. 80b-3a. renders other advisory services, has differing compliance or reporting Section 275.204–2 is also issued under 15 $50,000 or less in assets related to its requirements or timetables that take into U.S.C. 80b-6. 52 Section 275.205–3 is also issued under 15 advisory business. The Commission account the resources of small entities; U.S.C. 80b-5(e). estimates that approximately 17,650 (b) the clarification, consolidation or investment advisers are small entities.53 simplification of compliance and 2. Section 275.205–3 is revised to read The Commission does not have reporting requirements under the rule as follows: information, however, from which to amendments for small entities; (c) the § 275.205±3 Exemption from the estimate either the number of clients of use of performance rather than design compensation prohibition of section small entities who would satisfy the standards; and (d) an exemption from 205(a)(1) for investment advisers. tests of sophistication or the number of coverage of the rule or any portion of (a) General. The provisions of section such clients who would enter into the rule, for small entities. As discussed 205(a)(1) of the Act (15 U.S.C. 80b- performance fee arrangements under the in more detail in the IRFA, the 5(a)(1)) will not be deemed to prohibit rule. The Commission, however, Commission believes that it would be any investment adviser from entering believes that it would be reasonable to inconsistent with the purposes of the into, performing, renewing or extending estimate that the overall effect of the Advisers Act to exempt small entities an investment advisory contract that proposed amendments to the rule would from the proposed rule amendments or provides for compensation to the be to increase the use of the exemption to use performance standards to specify investment adviser on the basis of a by small entities, and that the economic different requirements for small entities. share of the capital gains upon, or the effect on small entities may be Different compliance or reporting capital appreciation of, the funds, or any significant. requirements for small entities are not portion of the funds, of a client, The IRFA states that the proposed necessary because the proposed rule Provided, That the client entering into rule amendments would not impose any amendments do not establish any new the contract subject to this section is a new reporting, recordkeeping or reporting, recordkeeping or compliance qualified client, as defined in paragraph compliance requirements, and that the requirements. The Commission has (d)(1) of this section. Commission believes that no rules determined that it is not feasible to (b) Identification of the client. In the duplicate, overlap or conflict with the further clarify, consolidate or simplify case of a private investment company, proposed rule amendments. the proposed rule amendments for small as defined in paragraph (d)(3) of this The IRFA discusses the various entities. section, an investment company alternatives considered by the The IRFA includes information registered under the Investment Commission in connection with the concerning the solicitation of comments Company Act of 1940, or a business proposed rule amendments that might with respect to the IRFA generally, and development company, as defined in in particular, the number of small section 202(a)(22) of the Act (15 U.S.C. 52 Rule 275.0–7 [17 CFR 275.0–7]. In January entities that would be affected by the 80b-2(a)(22)), each equity owner of any 1997, the Commission proposed to revise this definition of ‘‘small entity.’’ See Definitions of proposed rule amendments. A copy of such company (except for the ‘‘Small Business’’ or ‘‘Small Organization’’ Under the IRFA may be obtained by contacting investment adviser entering into the the Investment Company Act of 1940, the Kathy D. Ireland, Securities and contract and any other equity owners Investment Advisers Act of 1940, the Securities Exchange Commission, 450 5th Street, not charged a fee on the basis of a share Exchange Act of 1934, and the Securities Act of 1933, Release Nos. 33–7383, 34–38190, IC–22478, N.W., Mail Stop 10–6, Washington, DC of capital gains or capital appreciation) and IA–1609 (Jan. 22, 1997) (62 FR 4106 (Jan. 28, 20549. will be considered a client for purposes 1997)). The Commission expects to adopt a revised of paragraph (a) of this section. V. Statutory Authority definition of small investment adviser for (c) Transition rule. An investment Regulatory Flexibility Act purposes to reflect the The Commission is proposing adviser that entered into a contract Coordination Act. amendments to rule 205–3 pursuant to 53 This estimate of the number of small entities before [insert the effective date of the was made for purposes of the Final Regulatory the authority set forth in section 205(e) final rule] and satisfied the conditions Flexibility Analysis for the rules implementing the of the Investment Advisers Act of 1940 of this section as in effect on the date Coordination Act. See Implementing Release, supra [15 U.S.C. 80b-5(e)]. that the contract was entered into will note 15, at nn.189–190 and accompanying text. be deemed to satisfy the conditions of Under rule 203A–5 of the Advisers Act, all List of Subjects in 17 CFR Part 275 investment advisers registered with the this section; Provided, however, that this Commission were required to file a completed Form Reporting and recordkeeping section will apply with respect to any ADV–T with the Commission by July 8, 1997, requirements, Securities. natural person or company who is not indicating whether they remain eligible for a party to the contract prior to and Commission registration. Of the 23,350 Text of Proposed Rule Amendments becomes a party to the contract after Commission-registered investment advisers, For the reasons set out in the approximately 7,200 advisers indicated that they [insert the effective date of the final remain eligible for Commission registration, 10,600 preamble, Title 17, Chapter II of the rule]. advisers withdrew their registrations, and 5,800 Code of Federal Regulations is proposed (d) Definitions. For the purposes of advisers did not file their Form ADV–T. The to be amended as follows: Commission believes that most of the investment this section: (1) The term qualified client means a advisers that did not file the Form ADV–T are either PART 275ÐRULES AND no longer in the advisory business or no longer natural person who or a company that: REGULATIONS, INVESTMENT eligible to register with the Commission. The (i) Immediately after entering into the Commission expects to cancel the registrations of ADVISERS ACT OF 1940 contract has at least $750,000 under the most of these investment advisers. The Commission also expects to adopt a revised definition of small 1. The authority citation for Part 275 management of the investment adviser; entity for purposes of the Regulatory Flexibility Act. is revised to read as follows: or See supra note 52. Therefore, the Commission plans (ii) The investment adviser entering Authority: 15 U.S.C. 80b-2(a)(17), 80b-3, to revise its estimate of the number of advisers that into the contract (and any person acting are small entities after the transition is complete so 80b-4, 80b-6(4), 80b-6a, 80b-11, unless that the Commission would have more accurate otherwise noted. on his behalf) reasonably believes, information to determine the number of small Section 275.203A–1 is also issued under 15 immediately prior to entering into the entities under the new definition of that term. U.S.C. 80b-3a. contract, either: 61888 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Proposed Rules

(A) Has a net worth (together, in the (2) The term company has the same Company Act of 1940 (15 U.S.C. 80a- case of a natural person, with assets meaning as in section 202(a)(5) of the 3(a)) but for the exception provided held jointly with a spouse) of more than Act (15 U.S.C. 80b-2(a)(5)), but does not from that definition by section 3(c)(1) of $1,500,000 at the time the contract is include a company that is required to be such Act (15 U.S.C. 80a-3(c)(1)). entered into; or registered under the Investment Dated: November 13, 1997. Company Act of 1940 but is not (B) Is a qualified purchaser as defined By the Commission. registered. in section 2(a)(51)(A) of the Investment (3) The term private investment Margaret H. McFarland, Company Act of 1940 (15 U.S.C. 80a- company means a company that would Deputy Secretary. 2(a)(51)(A)) at the time the contract is be defined as an investment company [FR Doc. 97–30295 Filed 11–18–97; 8:45 am] entered into. under section 3(a) of the Investment BILLING CODE 8010±01±P federal register November 19,1997 Wednesday Revocation ofRegistrations;Notice Termilind Limited;NoticeandOrderof Protection Agency Environmental Part IV 61889 61890 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

ENVIRONMENTAL PROTECTION M St., SW., Washington, DC 20460. registration by formulating its product with AGENCY Office location, telephone number, and an existing registered pesticide purchased e-mail address: Rm. 713, 1921 Jefferson from another producer. See 7 U.S.C. [OPP±68017; FRL±5755±7] 136a(c)(2)(D); 40 CFR 152.85 (Formulators’ Davis Hwy., Arlington, VA, 703-305- exemption).1 The premise behind the Termilind Limited; Notice and Order of 5446, e-mail:[email protected]. formulators’ exemption is that the purchase Revocation of Registrations SUPPLEMENTARY INFORMATION: Unit I. of price of the registered material compensates this document contains the Agency’s the original registrant for the cost of data AGENCY: Environmental Protection August 6, 1997 decision on the petition generation. See id. Agency (EPA). to revoke the registrations, and Unit II. In the case of certifying eligibility for the formulators’ exemption, good faith on the ACTION: Notice; Notice and Order of consists of the Agency’s existing stocks part of applicants is critical. When an Revocation of Registrations and Final determination. applicant certifies that it will formulate its Determination Governing Sale and Use I. Decision on Amvac’s Petition to product using a registered pesticide as the of Existing Stocks. active ingredient, it is excused from the Revoke Termilind Limited’s requirement of submitting data pertaining to SUMMARY: In March of 1996, EPA issued Registrations the safety of that ingredient. See id. Instead, registrations for two end use Petitioner Amvac Chemical Corporation the Agency bases its risk analysis of that napthalenaecetic acid (NAA) products, (Amvac) seeks immediate revocation of ingredient on the data received from the Alphaspra 200 (EPA Registration respondent Termilind Limited’s (Termilind) registrant of the original product. If the Number 67223-2) and Alphaspra 800 registrations for two end use applicant does not then use the registered (EPA Registration Number 67223-1) to naphthaleneacetic acid (NAA) registrations, product cited, the risk assessment performed by the Agency, and any safety finding Termilind Limited (Termilind). On Alphaspra 200 (EPA Registration No. 67223- 2) and Alphaspra 800 (EPA Registration No. premised upon it, are unreliable--they may August 2, 1996, Amvac Chemical not reflect the nature or contents of the new Corporation (Amvac) filed a petition to 67223-1). Amvac also seeks revocation of Termilind’s technical NAA registration, (EPA product. Thus the Agency’s ability to carry out its mandate of protecting human health cancel the Termilind registrations based Registration No. 67223-22). Amvac claims and the environment is undermined. upon assertedly false certifications that that the end use registrations were obtained Termilind would use Amvac-registered through willful misrepresentation of the Regulatory History material to formulate its products. source of technical NAA, and that the Termilind cited Amvac Chemical Corp. of Amvac filed a second petition in technical registration was obtained through Los Angeles California as the source of the October of 1996 asking EPA to deny the submission of data ‘‘stolen’’ or technical NAA active ingredient in Termilind’s application for a technical ‘‘misappropriated’’ from Amvac. Amvac asserts, as well, that the willful nature of NAA registration based upon an 1 7 U.S.C. 136a(c)(2)(D) reads as follows: assertion that Termilind Termilind’s acts authorizes summary revocation of the subject registrations Exemption--no applicant for registration who proposes to purchase a registered pesticide from misappropriated data to support the without resort to the procedural requirements application. EPA has determined that another producer in order to formulate such of section 6(b), the cancellation provision of purchased pesticide into the pesticide that is Termilind submitted misleading the Federal Insecticide, Fungicide, and subject of the application shall be required to -- materials in support of its applications Rodenticide Act (FIFRA). We grant the (i) submit or cite data pertaining to such for end-use registrations, and that the petition with respect to the two end use purchased product; or registrations would not have been registrations, and deny the petition with (ii) offer to pay reasonable compensation granted absent this misleading respect to the technical registration. otherwise required by paragraph (l)(D) of this subsection for the use of any such data. information. On August 6, 1997, EPA Legal Background 40 CFR 152.85 reads as follows: issued a Decision granting Amvac’s The sale, distribution and use of pesticides (a) FIFRA section 3(c)(2)(D) excuses an applicant petition in this regard and revoking the in the United States is regulated by the from the requirement to submit or cite data end-use registrations. In that same Federal Insecticide, Fungicide, and pertaining to the safety of any ingredient (or Decision, EPA denied Amvac’s petition Rodenticide Act. 7 U.S.C. 136-136y. Under mixture of ingredients) contained in his product that is derived solely from one or more EPA- to deny Termilind’s application for FIFRA, with certain limited exceptions, a registered products which the applicant purchases technical registration. The revocation pesticide may not be sold or distributed from another producer. Decision, and a subsequent unless it is registered. Id. 136a(a), (b) If the product contains one or more determination concerning the sale and 136j(a)(1)(A). In order for a pesticide to ingredients eligible for the formulators’ exemption, distribution of existing stocks of the qualify for registration, the Environmental the applicant need not comply with the Protection Agency (EPA) must determine that requirements of §§ 152.90 through 152.96 with revoked products, are published in this it will not cause unreasonable adverse effects respect to any data requirements pertaining to the Notice. on the environment when used in accordance safety of any such ingredient, provided that he DATES: The revocation Decision was with widespread and commonly recognized submits to the Agency a certification statement containing the following information . . . practice. Id. 136a(c)(5)(C)-(D). To make this effective as to Termilind on August 6, (1) Identification of the applicant, and of the 1997. The Decision and existing stocks finding, EPA reviews data on product product by EPA registration number or file symbol; determination are effective as to all chemistry, toxicology, and environmental (2) Identification of each ingredient in the other persons on November 19, 1997. fate, among other subjects. See 40 CFR part pesticide that is eligible for the formulators’ Any person interested in requesting an 158 (data requirements for registration). The exemption, and the EPA registration number of the data reviewed must be supplied by the product that is the source of that ingredient; informal hearing should submit such a registrant; it is not generated by the Agency. (3) A statement that the listed ingredients meet request by January 20, 1998. Id. Because the volume of data received and the requirements for the formulators’ exemption; ADDRESSES: Request for a formal hearing reviewed by the Agency is extremely large, (4) A statement that the applicant has submitted should be addressed to: Robert Perlis, EPA is unable to investigate each statement, (either previously or with the current application) study and item of data received for potential a complete, accurate and current Statement of Office of General Counsel (2333), Formula; and Environmental Protection Agency, 401 fraud or misrepresentation. Thus, to a great degree, the Agency must rely on the good (5) The name, title and signature of the applicant M St., SW., Washington, DC 20460. or his authorized representative and the date of faith and integrity of registrants if it is to FOR FURTHER INFORMATION CONTACT: By signature. fulfill its mandate of protecting human health (c) An applicant for amended registration is not mail: James J. Jones, Registration and the environment from unreasonable risk. required to submit a new formulators’ exemption Division, Office of Pesticide Programs, A registrant can fulfill its obligation to statement, if the current statement in Agency files Environmental Protection Agency, 401 submit much of the data required for is complete and accurate. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61891 applications for two end use NAA pursuant to which C-Tech/Inchema was (3) Jerry Fitzsimmons is the president of registrations submitted to EPA in September forbidden to disclose it to third parties for Termilind, Ltd. (Affidavit of Jerry 1995. Termilind also certified to EPA that it any purpose. It is this CBI which Amvac Fitzsimmons, November 6, 1996, at 1) was eligible for the formulators’ exemption. claims Termilind ‘‘misappropriated’’ and (4) J. R. Fisher is the principal of Fisher On the basis of that information, EPA granted submitted to EPA in support of a technical and Associates, a regulatory agent providing the two registrations in March of 1996. NAA registration. services to companies seeking registration of In July 1996, EPA Region X issued a Stop Amvac failed to serve copies of either products with EPA. (Affidavit of J. R. Fisher, Sale, Use, or Removal Order (SSURO) petition on Termilind, arguing in each that November 6, 1996, at 1) prohibiting the sale or distribution of the willful nature of Termilind’s conduct (5) J. R. Fisher has been a regulatory agent Termilind’s two end use NAA products. warranted summary revocation, without providing services to companies seeking Records obtained by EPA from an Oregon prior notice or an opportunity to be heard. registration of products with the EPA since Department of Agriculture investigation Amvac cited section 558 of the 1981. (Affidavit of J. R. Fisher, December 31, revealed that technical NAA product had Administrative Procedures Act (APA) as 1996, at 2) been shipped from Seoul, South Korea by authority for this proposition.2 (6) J. R. Fisher prepared and submitted the Inchema Company, to Oregon California EPA forwarded copies of the two petitions application materials for Termilind’s end use Chemicals Inc. (Or-Cal), a contractor for to Robert Fisher, Termilind’s regulatory registrations. (Affidavit of J. R. Fisher, Termilind. EPA issued the SSURO on the agent. A copy of the first petition was mailed December 31, 1996, at 4) grounds that the Agency believed that ‘‘the to Mr. Fisher on September 5, 1996; a copy (7) Shin Young C-Tech Co., Ltd. (C-Tech) supplier of [NAA] for the [end use products] of the second was sent on November 25. is a South Korean company. (Affidavit of Eric is different than what was listed in Termilind did not respond to either petition. Wintemute at 4) [Termilind’s] confidential statement of On December 6, EPA formally invited (8) Inchema, Inc. is the United States Agent formula [CSF] for these products’’ in Termilind to respond to the allegations for C-Tech. (Affidavit of Eric Wintemute at 5) violation of FIFRA section 12(a)(1)(C) contained in the two petitions and set a (9) In or about July 1995, J. R. Fisher and (unlawful to distribute or sell pesticide deadline of December 20 for receipt of a Jerry Fitzsimmons met with Hans Wessel and composition of which differs at time of response. Steve Shim of Inchema regarding the distribution from composition described in After receiving and reviewing Termilind’s purchase of technical NAA. (Affidavit of J. R. CSF). 7 U.S.C. 136j(a)(1)(C). The order response, EPA determined that further Fisher, December 31, 1996, at 2) remained in effect until September 23rd, development of both legal and factual issues (10) Inchema had manufactured technical when Termilind amended the CSFs of the was warranted prior to issuing a decision. NAA for Amvac. (Affidavit of Eric two products to reflect the use of its own EPA sent an identical set of questions to each Wintemute at 5) technical NAA, which was registered by EPA party and, again, invited them to respond. (11) Amvac rejected the last batch of NAA that same month. This matter was followed Via the same letter EPA established a series produced by Inchema/C Tech. (Affidavit of J. up with a Warning Letter, mailed to of procedures to govern communications R. Fisher, November 6, 1996, at 2) Termilind on December 16, 1996, in which between Agency personnel and (12) Termilind was aware that the Region X confirmed the Agency’s conclusion representatives of Amvac or Termilind technical NAA it purchased from Inchema/C- that a violation of FIFRA section 12(a)(1)(C) concerning the merits of the ongoing dispute. Tech had been rejected by Amvac. (Affidavit had occurred. Id. In addition to petitioning EPA to revoke of J. R. Fisher, November 6, 1996, at 2) On August 2, 1996, Amvac submitted its Termilind’s registrations, Amvac has also (13) Termilind cited Amvac Chemical first petition for revocation, which concerned initiated legal proceedings against Termilind Corp. of Los Angeles California as the source the two Termilind end use registrations. In in the United States District Court for the of the technical NAA active ingredient in its the petition, Amvac claimed that the District of Oregon, seeking, among other applications for two end use NAA registrations were issued based on ‘‘false things, a preliminary injunction to enjoin registrations, submitted to EPA in September certifications to EPA. . . that Termilind’s two Termilind from maintaining any registrations 1995. (Affidavit of J. R. Fisher, November 6, products would be formulated from Amvac’s for products containing NAA, and to prohibit 1996, at 2; Warning Letter issued to EPA-registered technical naphthalene acetic Termilind from selling, marketing or Termilind Ltd. by EPA Region 10, December acid (NAA) and thus qualify for the distributing any product containing NAA. By 16, 1996) These registrations were granted in formulators’ exemption.’’ Amvac stated that order dated January 17, 1997, Amvac’s March of 1996. (Alphaspra 800, EPA it was the only source of registered technical motion was denied. The issue of whether Registration No. 67223-1 granted March 15, NAA, and that although Termilind cited Termilind misappropriated CBI owned by 1996; Alphaspra 200, EPA Registration No. Amvac as its source of technical NAA in the Amvac and submitted such in support of its 67223-2 granted March 26, 1996) registration materials submitted for two end technical NAA registration is still before the (14) Termilind certified that it was eligible use products, neither Amvac nor any of its District Court. for the formulators’ exemption, 7 U.S.C. distributors had sold any technical NAA to Based on the materials submitted by both 136a(c)(2)(D); 40 CFR 152.85. (Formulators’ Termilind. Amvac claimed, as well, that parties in response to the questions posed by exemption statement submitted by neither it nor its distributors had discussed the Agency, EPA makes the following Termilind) sales of technical NAA with Termilind. findings of fact: (15) Termilind cited Amvac’s product In early October, shortly after the SSURO Findings of Fact labels and material safety data sheet in was lifted, Amvac submitted a second applications for end use NAA registrations petition for revocation, this one concerning (1) Respondent Termilind Ltd. is a person submitted to EPA in September 1995. the registration of Termilind’s technical NAA and a registrant as defined by FIFRA. (7 (Affidavit of J. R. Fisher, December 31, 1996, product. In that petition Amvac asserted that U.S.C. 136(s), (y)) at 3) ‘‘Termilind willfully misappropriated (2) Petitioner Amvac Chemical Corp. is a (16) Termilind had Inchema/C-Tech confidential business information (CBI) to person and a registrant as defined by FIFRA. formulate unregistered technical NAA into obtain the Technical Registration,’’ and (7 U.S.C. 136(s), (y)) end use product for import into the United requested that the registration be revoked on States. These products bore Termilind’s EPA that basis. 2 Section 558(c) of the APA reads in pertinent registration number for the end use NAA Amvac asserts that in 1994 it entered into part: product Alphaspra 800. (Affidavit of J. R. an arrangement with Shin Young C-Tech Co., Except in cases of willfulness or those in which Fisher, November 6, 1996, at 2; affidavit of Ltd. (C-Tech), a South Korean company, and public health, interest or safety requires otherwise, J. R. Fisher, December 31, 1996, at 4) its U.S. agent, Inchema, Inc., whereby C- the withdrawal, suspension, revocation, or (17) Termilind did not obtain samples of, annulment of a license is lawful only if, before the Tech/Inchema would manufacture technical institution of agency proceedings therefor, the or perform any tests upon, the technical NAA NAA for Amvac. In its second petition, licensee has been given-- product used to formulate the Alphaspra 800. Amvac stated that it supplied CBI to C-Tech/ (1) notice by the agency in writing of the facts or (Affidavit of J. R. Fisher, December 31, 1996, Inchema for the purposes of carrying out this conduct which may warrant the action; and at 3). business arrangement. The CBI was allegedly (2) opportunity to demonstrate or achieve (18) Under 19 CFR 12.112, ‘‘an importer the subject of a confidentiality agreement, compliance with all lawful requirements. desiring to import pesticide or devices into 61892 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices the United States shall submit to the Co. v. United States, 930 F.2d 1077, 1079 (4th section 18.09 at 606 (1958); Bookman v. Administrator a Notice of Arrival of Cir. 1991). Termilind has not claimed that United States, 453 F.2d 1263, 1265 (Ct. Cl. Pesticides and Devices . . . prior to the arrival the material it purchased bore an Amvac EPA 1972) (same); see also Trujillo v. General of the shipment in the United States.’’ approved label identifying it as a registered Electric Co., 621 F.2d 1084, 1086 (10th Cir (emphasis added). Termilind did not submit product. Termilind did not purchase the 1980) (Administrative agencies have inherent the required Notice of Arrival of Pesticides material from Amvac or an Amvac authority to reconsider their decisions since and Devices until 3 months after the distributor. Moreover, Termilind conceded power to decide carries with it power to shipment of NAA product had arrived in the that it was aware that the material had been reconsider) (quoting Albertson v. Federal United States from Korea. The Notice was rejected by Amvac. Nevertheless, Termilind Communications Comm’n., 182 F.2d 397, filed only after EPA Region X discovered identified Amvac’s registered technical NAA 399 (D.C. Cir. 1950)). Moreover, the Supreme NAA product shipped from Korea in the as its source of active ingredient. Court and other courts have recognized that possession of Or-Cal, a Termilind licensee. Furthermore, Termilind certified that it was administrative agencies have implied (Notice of Arrival submitted July 13, 1996) eligible for the formulators’ exemption. This authority to reconsider and correct errors, (19) Termilind sold pesticide products behavior constitutes willful even where the applicable statue and formulated with unregistered Inchema/C- misrepresentation. regulations do not explicitly grant such Tech NAA in the United States. (Stop Sale, Termilind cannot plausibly claim that its powers. Gun South Inc. v. Brady, 877 F.2d Use, Or Removal Order issued to Termilind conduct was innocent. Its regulatory agent, J. 858, 862 (11th Cir. 1989) (listing cases). Ltd. by EPA Region 10, July 3, 1996; Warning R. Fisher, had 15 years experience in Courts have relied on this implied power in Letter issued to Termilind Ltd. By EPA providing services to clients seeking holding that agencies have the authority to Region 10, December 16, 1996) registration of products with the EPA; he revoke licenses improperly granted. See, e.g. (20) Termilind never purchased or cannot credibly argue ignorance of the law in Kudla v. Mode, 537 F.Supp 87, 89-90 (E.D. attempted to purchase Amvac’s registered Termilind’s defense. Moreover, common Mich. 1982) (improperly granted license technical NAA from Amvac or any of its sense dictates that material purchased from revoked where licensee had failed to pass distributors. (Petition for revocation a party other than the registrant or its qualifying examination; procedural submitted to EPA by Amvac October 9, 1996 distributors, that is known to have been protections afforded by statute do not attach at 4) rejected by the registrant, is not that unless requirements for obtaining license registrant’s registered material. Termilind have been met). Decision does not claim that the material it purchased More specifically, courts have recognized that agencies have the inherent authority to I. bore Amvac’s label or EPA registration number. Under no view of the facts was it correct errors and reverse judgements In its second petition, dated October 9, reasonable for Termilind to represent the induced by fraud or misrepresentation. 1996, Amvac claims that Termilind’s product purchased from Inchema/C-Tech as Alberta Gas, 650 F.2d at 13 (‘‘It is a well technical registration was obtained through Amvac registered material. Nevertheless, established principle that an administrative the submission of data ‘‘stolen’’ or Termilind cited Amvac’s product labels and agency may reconsider its own decisions’. . ‘‘misappropriated’’ from Amvac. On that material safety data sheet in its applications . . It is hard to imagine a clearer case for basis, Amvac asserts that the Agency must for end use registrations. This conduct was exercising this inherent power than when a revoke the technical registration. We deny consistent with an intent to deceive the fraud has been perpetrated on the tribunal in this petition on jurisdictional grounds. Agency about the origin of its technical its initial proceeding’’) (citations omitted); EPA does not have the powers of a court material, as was Termilind’s failure to submit see also Hand v. Matchett, 957 F.2d 791, 794 of general jurisdiction. Beyond the limited a timely Notice of Arrival of Pesticides and (10th Cir. 1992) (self evident that university realm of data compensation, see 7 U.S.C. Devices when the NAA material arrived from has inherent authority to revoke improperly 136a(c)(1)(F); 40 CFR 152.99, the Agency has Korea. If the Notice had been filed in a timely awarded degree where fraud shown); neither the expertise nor the authority to fashion it might have drawn attention to the Colonial Penn Insurance Co. v. Coil, 887 F.2d adjudicate conflicts regarding ownership of fact that Termilind, though citing Amvac 1236, 1240 (revoking insurance settlement intellectual property. As noted above, this Chemical Corp. of Los Angeles, California as procured through fraud); In Re Berman, 97 very matter is currently before the Federal its source of registered technical material, S.E. 2d 232, 235 (N.C. 1957) (board has District Court for the District of Oregon. A was receiving shipments of NAA product inherent power, independent of statutory authority, to revoke license improperly court of general jurisdiction is a more from Korea. We conclude that Termilind’s 3 issued due to fraud or misrepresentation); appropriate forum for the resolution of misrepresentation was willful. Schireson v. Shafer, 47 A.2d 665, 667 (Pa disputes of this nature. Accordingly, Amvac’s We next address the Agency’s authority to 1946) (where license was procured by fraud second petition, seeking revocation of revoke a registration summarily, without licensing authority may revoke it regardless Termilind’s technical registration, is denied. resort to section 6 of FIFRA, where the registration was procured through willful of fact that fraud is not specified as ground II. misrepresentation.4 As a general rule, it is for revocation in statute); cf Hazel-Atlas well accepted that ‘‘every tribunal, judicial or Glass Co. V. Hartford-Empire Co., 322 U.S. Amvac also seeks immediate revocation of administrative, has some power to correct its 238, 246 (1943) (reversing judgment in patent Termilind’s two end use registrations, own errors or otherwise appropriately to infringement suit where both Patent Office claiming that they were obtained through modify its judgement, decree or error.’’ and Court of Appeals were influenced by willful misrepresentation of the source of the Alberta Gas Chemicals, Ltd. v. Celanese fraudulent misrepresentations --‘‘Public technical NAA used as the active ingredient Corp., 650 F.2d 9, 13 (2d Cir. 1981) (quoting welfare demands that the agencies of public in the products. But for the K. Davis, Administrative Law Treatise justice be not so impotent that they must misrepresentation, Amvac contends, the always be mute and helpless victims of registrations would not have been granted; 3 deception and fraud.’’) (overruled on other thus they are void ab initio. Amvac also As the above definition notes, ‘‘wi1ful’’ behavior encompasses conduct that is grossly negligent as grounds). In the instant case, this rule asserts that in light of Termilind’s willful well as conduct that is intentional. Thus, even if supports the proposition that EPA has behavior, the Agency has inherent power to Termilind did not act with intent to deceive the inherent authority to revoke Termilind’s end revoke these registrations without resort to Agency, but was merely grossly neglectful of its use registrations. Indeed, courts have section 6 of FIFRA. We agree. statutory duties, the outcome would be the same. recognized that administrative agencies, as As an initial matter, we must first address 4Petitioner claims pursuant to section 558(c) of guardians of the public interest, have a duty whether Termilind’s conduct was willful. the Administrative Procedure Act that in light of to make corrections where they have relied Willful misconduct had been defined as ‘‘an Termilind’s willful misrepresentation, the Agency on erroneous information. Green County intentional misdeed or such gross neglect of can revoke the registrations summarily without Planning Bd. v. Fed. Power Comm’n, 559 a known duty as to be the equivalent providing notice or opportunity for comment. As this decision documents, the Agency has given F.2d 1227, 1233 (2d Cir. 1976; Hudson River thereof.’’ Hutto Stockyard, Inc. v. USDA, 903 Termilind an opportunity to respond to Petitioner’s Fishermen’s Ass’n v Federal Power Comm’n, F.2d 299, 304 (4th Cir. 1990 (quoting Capitol allegations and to submit supplemental briefing. 498 F.2d 827, 833 (1974); Borlem S.A. Packing Co. v. United States, 350 F.2d 67, 78- Thus, the Agency has given Termilind more process Empreedimentos Indutriais v. U.S, 718 F. 79 (10th Cir. 1965)); see also Capital Produce than section 558(c) requires. Supp 41, 47 (CIT 1989). Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61893

Termilind claims that revocation is the data compensation disputes, the Agency has discretion when it denied application for equivalent of cancellation and can only be neither the expertise nor the jurisdictional new license to manufacturer and distributor accomplished through section 6 of FIFRA. In competence to adjudicate complicated issues of controlled substances where manufacturer essence, Termilind asserts that a registrant regarding ownership of intellectual property had not complied with recordkeeping that has submitted false or misleading rights. Nevertheless, the Agency does intend requirements, had shipped contaminated application materials, and thereby induced to go forward with a Notice of Intent to products, had his inventory seized and was the Agency to grant a registration Cancel Termilind’s technical registration, but closed for 6 months, and was under erroneously, has the same interest in the on alternative grounds. indictment); Dep’t Transp. Fed. Highway wrongly obtained registration, and is entitled Although there is no explicit fitness Admin. v. Interstate Commerce Comm’n, 733 to the same procedural protections, as a criterion among the requirements for F.2d 105, 113 (D.C. Cir. 1984) (I.C.C.’s order registrant that acted in good faith to meet the obtaining or holding a registration under granting certificate vacated where evidence requirements for registration. We find it FIFRA, as a general matter, determining the inadequate to establish applicant’s fitness). implausible that Congress intended ‘‘fitness’’ of an applicant to hold a license or The licensing body is in the best position to applicants who obtained registrations registration is recognized as a legitimate end make determinations regarding applicant through fraud to receive the procedural of licensing schemes. See Payne v. Fontenot, fitness, and its decisions are entitled to protections of section 6. 925 F. Supp. 414, 423 (M. D. La. 1995) deference. Ramanchar v. Sobol, 838 F. Supp. Likewise, we find Termilind’s argument (licensing body may require certain standards 100, 108 (S.D.N.Y. 1993) (licensing authority that the Agency does not have the authority of applicant; qualifications to hold license entitled to deference in assessing risks posed to revoke registrations obtained through must have rational connection to applicant’s by licensee). Furthermore, when making fraud or misrepresentation, because FIFRA fitness). Furthermore, prior to granting a licensing decisions ‘‘an Agency rationally does not specifically describe such a registration, the Agency is required to may conclude that past performance is the procedure, equally unpersuasive. As the legal determine that a pesticide will not ‘‘generally best predictor of future performance.’’ ALRA, analysis above establishes, Agencies have cause unreasonable adverse effects on the 54 F.3d at 452; Matsun Gyogyo Co., 2 O.R.W. inherent authority to redress fraud or environment’’ when used in accordance with 349 (NOAA 1980) (past violations should be misrepresentation. See also Chevron U.S.A. v. widespread and commonly recognized significant factor in determining whether to Natural Resources Defense Council, 467 U.S. practice. 7 U.S.C. 136a(c)(5). As a practical issue new permit); see also Dep’t Transp. 837, 843. 844 (1984) (‘‘Sometimes the matter, in making such a determination the Fed. Highway Admin., 733 F.2d at 112 legislative delegation to an agency on a Agency must rely on data and certified (statements of good intentions in future of particular question is implicit rather than statements submitted by the registrant. The limited value in assessing what applicant’s explicit. In such a case, a court may not Agency’s ability to make an accurate finding future conduct will be). substitute its own construction of a statutory is therefore directly related to the reliability FIFRA itself does not limit the criteria that the Agency may consider in making a safety provision for a reasonable interpretation of the material submitted. If the Agency calculus. Instead, as described above, the made by the administrator of an agency.’’). knows that a registrant has a history of statute dictates that the Agency must Moreover, this conclusion is consistent with willful misrepresentation, the reliability of affirmatively find that a product will not the Agency’s statutory duty under FIFRA to the materials submitted by that applicant is cause unreasonable adverse effects before a protect man and the environment from the subject to question. The Agency’s ability to unreasonable adverse effects of pesticide use. registration may be granted. Common sense make an accurate finding that the statutory dictates that the Agency must be permitted As noted above, Congress established a standard for registration has been met is scheme in FIFRA that requires registrants to to consider all relevant criteria when undermined under such circumstances. A performing its analysis. As the discussion supply the data necessary to establish and ‘‘fitness’’ or ‘‘reliability’’ criterion can maintain FIFRA registrations. The Agency, above illustrates, the integrity or reliability of therefore properly be implied as a component a registrant is highly germane to the Agency’s therefore, must be able to rely on applicants of the ‘‘unreasonable adverse effects’’ ability to make an accurate finding; if the to act with goodwill and integrity in standard. Cf. Cooley v. Fed. Energy Agency has reason to suspect that materials submitting the required data. In order to Regulatory Comm’n, 843 F.2d 1464, 1471 submitted by a registrant are untrustworthy, protect the integrity of the FIFRA process and (D.C. Cir. 1988) (‘‘Nothing in [Federal Power an affirmative safety finding cannot be made. the safety of pesticide users and the public, Act] explicitly requires a finding of fitness.’’ In this case the Agency has determined the Agency must have a swift and sure Commission is charged with considering all that Termilind has submitted misleading method of responding when the submission relevant public interest factors; fitness of materials in support of its applications for of fraudulent or misleading application licensee-applicant is public interest factor); registration. The Agency is therefore unable materials is discovered. If unscrupulous see also Delaware River Development Corp., to rely on the veracity of unsubstantiated applicants receive the same procedural 10 F.P.C. 540, 550 (1951) (‘‘ethical and moral materials submitted by Termilind. Under protections as honest ones, there is little fitness’’ considered in public interest these circumstances the Agency cannot incentive to be honest. Instead, the dishonest determination to grant permit); see generally affirmatively find that Termilind’s technical applicants who obtain speedy registration Chevron U.S.A. v. Natural Resources Defense product will not generally cause through fraud or misrepresentation are Council, 467 U.S. 837, 843. 844 (1984) unreasonable adverse effects on the rewarded for their deception. Such an (‘‘Sometimes the legislative delegation to an environment. Accordingly, it is the Agency’s interpretation of FIFRA is contrary to the agency on a particular question is implicit intention to undertake a section 6 EPA’s mandate to protect public health and rather than explicit. In such a case, a court cancellation of Termilind’s technical NAA the environment. may not substitute its own construction of a product in separate proceedings. We wish to emphasize that the quality of statutory provision for a reasonable the evidence available to the Agency in this interpretation made by the administrator of Order case was critical to the outcome. Sworn an agency.’’). For the reasons discussed above, EPA statements of the parties were included in the Denial of a license on fitness grounds is not hereby revokes Termilind’s registrations for record, and based on these, the Agency was uncommon. See, e.g. RKO General, Inc., v. Alphaspra 200 (EPA Registration No. 67233- able to make the factual findings necessary to Fed. Communication Comm’n, 670 F.2d 215, 2) and Alphaspra 800 (EPA Registration No. underpin a revocation action with 232 (D.C. Cir. 1981) (F.C.C. did not abuse its 67223-1). Existing stocks of these products confidence. The Agency is very unlikely to discretion in denying license renewal for lack must be used in a manner consistent with take similar actions in future cases unless of candor; ‘‘[T]he Commission must rely label directions. allegations of misrepresentation are heavily on the completeness and accuracy of Dated: August 6, 1997 supported by reliable and persuasive the submissions made to it, and its /s/ Lynn R. Goldman evidence. applicants, in turn have an affirmative duty Assistant Administrator for Prevention, Pesticides and Toxic Substances III. to inform the Commission of the facts it needs in order to fulfill its statutory II. Existing Stocks Determination As noted above, Amvac’s petition to revoke mandate.’’); see also ALRA Laboratories, Inc., Termilind’s technical registration is denied v. Drug Enforcement Agency, 54 F.3d 450, On August 6, 1997, in response to a on the basis that, beyond its role in resolving 452 (7th. Cir 1995) (DEA did not abuse its petition filed by Amvac Chemical 61894 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices

Corporation (‘‘Amvac’’), EPA revoked the existing stocks issues raised by the otherwise under section 6(a)(1) or has the registrations issued to Termilind Revocation Order. This Determination issued a regulation under section 3(a) of Limited (‘‘Termilind’’) for Alphaspra reflects the Agency’s resolution of these FIFRA, existing stocks of an 200 (EPA Registration No. 67223–2) and existing stocks issues. unregistered pesticide may be used by Alphaspra 800 (EPA Registration No. any person with impunity, without A. Legal Authority 67223–1) after determining that regard to any conditions that would Termilind had intentionally or willfully Under section 6(a)(1) of FIFRA, the have applied to the use while the misidentified in its application Administrator may permit the product was still registered.5 Sale and materials the source material from continued sale and use of existing distribution of an unregistered which it intended to formulate the two stocks of a pesticide whose registration pesticide, on the other hand, is unlawful products. In the Order attached to the is suspended or canceled under section under FIFRA unless the Agency allows Revocation Determination, the Agency 3, 4, or 6 of FIFRA, to such extent, such sale or distribution pursuant to allowed use of existing stocks of the under such conditions, and for such section 6(a)(1). Such a prohibition on revoked registrations, provided that uses as the Administrator determines is sale or distribution would also apply to such use is consistent with existing not inconsistent with the purposes of commercial ‘‘for-hire’’ applications of label directions. The Order was silent FIFRA. As noted above, EPA issued a the unregistered product.6 A on the question of whether existing Policy Statement in 1991 outlining the determination that a revocation is not a stocks could be sold or distributed. policies that would generally be cancellation under section 3 would EPA subsequently issued three followed in making such existing stocks leave the Agency essentially powerless clarifications addressing the existing determinations. The legal issue to effectively condition the use of stocks issue. On August 18, 1997, the presented is whether section 6(a)(1) and existing stocks (even if such conditions Acting Associate General Counsel for the Policy Statement apply to the were necessary to prevent unreasonable Pesticides and Toxic Substances (Kevin situation addressed in the Revocation adverse effects on the environment), and Lee) explained in a letter to counsel for Determination. would also leave the Agency powerless The Agency concluded in its Amvac that inasmuch as the Order to authorize the sale of existing stocks, Revocation Determination that it has the resulted in the termination of the even by third parties who had no inherent authority to correct an registration of the products and did not involvement in the activities giving rise erroneous registration decision induced authorize any sale or distribution of the to the revocation and even where there by fraud or willful misrepresentation, products, such further sale or use was are no health, safety, or environmental and that such authority is inherent in unlawful under section 3(a) of FIFRA reasons to disallow continued sales and the authority to issue registrations in the (which generally prohibits the sale and where a revocation may trigger the distribution of unregistered pesticides). first place. The Agency’s authority to issue pesticide registrations stems from otherwise unnecessary disposal of On August 20, 1997, the Agency issued existing stocks of the revoked product. a clarification to the Order which section 3 of FIFRA. It thus seems to follow that the inherent authority to The Agency is declining to interpret specifically provided that ‘‘no person FIFRA in a manner that would suggest may sell or distribute stocks of revoke a registration induced by fraud or misconduct also stems from section that Congress intended to give the Alphaspra 200 and Alphaspra 800.’’ Agency the authority to terminate This clarification was followed by a 3 of FIFRA. The question then becomes: Is the revocation a ‘‘cancellation under registrations without giving the Agency second clarification issued on August authority to deal with the existing 22, 1997, which stated that the section 3’’ for purposes of section 6(a)(1) stocks consequences of such revocations ‘‘shall be effective for of FIFRA? terminations. The Agency concludes dealers and distributors upon The Agency has concluded that there that a revocation of a registration based publication in the Federal Register.’’ is no meaningful distinction between a upon misconduct in the inception of the Under the terms of this last clarification, revocation and a cancellation, and that registration is a cancellation under the Agency would not consider sale or the revocation of Termilind’s FIFRA section 3, and provides the distribution of existing stocks by dealers registration was a cancellation under Agency authority under section 6(a)(1) and distributors to be unlawful until the section 3 giving the Agency authority to regulate the sale, distribution, and Revocation Determination was over the sale and use of existing stocks. use of existing stocks of a revoked published in the Federal Register. Whether the action is called a On August 18, 1997, Termilind filed revocation or cancellation, the defining product. a request for Reconsideration and Stay element of the action is the termination B. Provisions for Existing Stocks of the Revocation Order. As part of that of a license (or in this case, pesticide request, Termilind asserted that EPA registration) previously issued by the For the reasons stated above, the should permit sale and distribution of Agency. Cancellation is the term used in Agency concludes that it has the existing stocks of the revoked products FIFRA for the termination of a authority under FIFRA section 6(a)(1) to in a manner consistent with EPA’s registration; the word ‘‘revocation’’ does issue an order regulating the sale, Statement of Policy related to existing not appear in the statute in this context. distribution, and use of existing stocks stocks issued in the Federal Register of Moreover, in this particular case, the of revoked products. Under that section, June 26, 1991 (56 FR 29362). Amvac license issued by the Agency does not such sale or use may be permitted to the filed a brief response to Termilind’s just confer something of value to the extent, and under such conditions, as request on August 26, 1997, arguing, licensee (registrant); a pesticide 5 without responding to any of the registration allows a pesticide product Such use need not be consistent with the terms of the previously-approved labeling of the product. specific assertions made by Termilind, to enter the stream of commerce where Section 12(a)(2)(G) makes it a violation of FIFRA to that reconsideration would not be the interests of third parties come into use any registered pesticide in a manner appropriate. play. When a pesticide registration inconsistent with its labeling; there is no similar On August 29, 1997, EPA indicated in terminates, for whatever reason, the provision making it unlawful to use an unregistered pesticide in a manner inconsistent with its labeling. a letter to counsel for Amvac and termination can have immediate 6 FIFRA section 2(gg) exempts from the definition Termilind that the Agency intended to consequences for all these third parties. of sale or distribution only the commercial carefully consider and resolve finally Unless the Agency has determined application of registered pesticides. Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices 61895 will make the sale and use consistent cause unreasonable adverse effects on The only reason to disapprove the with the purposes of FIFRA. the environment. sale, distribution, or use of existing The Agency set forth in its Policy This particular concern with stock is to punish the misconduct that Statement on existing stocks the general Termilind’s registrations does not apply resulted in the registration of the policies it will apply when making with much, if any, force to the existing products in the first place, and to deter decisions under section 6(a)(1). In stocks issue presented here. While the future such misconduct. As noted particular, the Agency concluded that it source used by Termilind to earlier, this particular situation was not will focus on two issues in making manufacture its end-use products was addressed in the Policy Statement, and existing stocks determinations: whether not the source originally identified by the Agency has concluded that the the sale or use of existing stocks may Termilind in its applications, the Policy Statement does not provide pose unreasonable adverse effects on the identity of the source is not in dispute. significant guidance on how to deal environment, and whether the registrant The papers filed with the Agency by with misconduct similar to Termilind’s. (or conceivably some other party) has both sides provide the Agency with It is clear that prohibiting sale, failed to comply with an obligation of ample confidence that the existing distribution, and/or use of existing registration. As a general matter, the stocks were manufactured with NAA stocks may result in hardships on Agency concluded in the Policy source material supplied by Inchema. relatively ‘‘innocent’’ third parties. On Statement that existing stocks The question then becomes whether the the other hand, allowing continued sale, determinations where the Agency has Agency has confidence that the material distribution, or use of existing stocks significant risk concerns will be made supplied by Inchema was NAA of would be ‘‘unfair’’ to registrants of on a case-by-case basis, with sale and sufficient quality to allow the Agency to competing registered products (such as use generally allowed only if supported conclude that the existing stocks of Amvac in this case) that presumably are by a risk/benefit balancing. In situations revoked material can be used without complying with the provisions of where there are no significant risk causing unreasonable adverse effects on FIFRA, and would tend to minimize the concerns, the Policy would generally the environment. repercussions to Termilind in this case allow non-registrants to sell, distribute, The Agency has concluded, based on and serve as less of a disincentive for and use existing stocks until such stocks a number of factors, that there is others to include incorrect or false are exhausted (provided that all existing reasonable assurance that the Inchema information in their applications for label directions are met). The sale and material is of sufficient quality to registration. distribution of existing stocks by resolve any possible concerns associated After considering carefully these registrants under the Policy generally with the sale, distribution, or use of issues, the Agency has determined that hinges upon whether (and when) the existing stocks. Sampling performed of it is appropriate to prohibit all further registrant failed to comply with an Termilind material did not reveal any sale or distribution by any person of the obligation of registration. The Policy is problems with the product. While revoked products, except the silent on whether supplemental Amvac declined to accept the Inchema application of existing stocks by for-hire distributors (under 40 CFR 152.132) NAA provided to Termilind, the Agency applicators so long as the applicator should be treated like registrants or like is unaware of any allegations by Amvac does not deliver any unapplied other distributors of pesticide products.7 that Inchema NAA lacks sufficient pesticide to the person for whom the The first issue of concern under the quality to support a registration.8 There application is performed. The Agency Policy Statement is whether the Agency has been no material presented by reached this determination based has risk concerns with the existing Amvac to challenge Termilind’s primarily on the nature of the stocks of the revoked products. This is assertion that Amvac’s refusal to accept misconduct in this particular case and an issue that has been discussed by both the Inchema NAA was based upon its conclusion that the use by pesticide parties in various papers related to anything other than a dispute over registrants of source material different Amvac’s Petition. The Agency price. The Agency previously accepted than the source material identified in expressed a concern in its Revocation the quality of Inchema NAA as a source the statement of formula submitted to Order related to Termilind’s technical for Termilind’s products when it the Agency is a very serious matter. In registration that the Agency has approved amendments to Termilind’s general, where the Agency revokes a difficulty finding that a product will not registrations to correctly reflect the registration because of misconduct result in unreasonable adverse effects on source of NAA used in those products. involved in its inception, the Agency the environment if a registrant makes Based on all these factors, the Agency believes it inappropriate to allow the false statements to the Agency. In such has no reason to suspect that the NAA company involved in the misconduct to circumstances, the Agency cannot rely products made by Termilind differ derive any benefit from its actions. The on scientific data submitted by a meaningfully in quality from other NAA only way for the Agency to maximize registrant or on the registrant’s products on the market, and does not the likelihood that Termilind will not compliance with its obligations under believe that sale or use of existing stocks profit at all from its actions is to section 6(a)(2) to submit additional of such products would result in prohibit all sale and distribution of the adverse effects information to the unreasonable adverse effects on the revoked products. In addition, the Agency. Where the Agency is unable to environment.9 Agency believes it appropriate to send rely on material submitted by a the strongest possible message to any registrant, the Agency cannot make the 8Indeed, Amvac’s allegations that Inchema has company that may be considering the affirmative findings necessary to a misappropriated Amvac proprietary technology, as use of unregistered source material in its well as Amvac’s previous use of Inchema as a determination that a product will not source of its own NAA and the absence of any production of registered product submittals by Amvac under section 6(a)(2) of FIFRA notwithstanding the fact that the 7 It should also be noted that the Policy Statement discussing quality problems associated with does not address the issue of what existing stocks Inchema’s production of NAA, seem to suggest that existing stocks would require that the stocks be provisions are appropriate for situations such as the Amvac has no dispute with the quality of material disposed of. Legal or illegal disposal of existing one involving Termilind, where the Agency produced by Inchema. stocks could have financial and/or environmental concludes that a registration would not have been 9Indeed, the only difference between a risk/ consequences that tip the risk/benefit balance even issued in the first place in the absence of benefit balancing for NAA generally and a further towards allowance of the use of existing misconduct by the applicant for registration. balancing for the existing stocks is that a ban on stocks. 61896 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Notices registration is predicated on use of a unnecessary and unsupervised disposal requesting an informal hearing should registered source material. Put simply, of revoked products by users. submit such a request within 60 days, the Agency generally does not intend to The Agency recognizes that in data in writing, to Robert Perlis, Office of allow resale by any person of pesticide suspension cases under section General Counsel (2333), Environmental products that were not produced in 3(c)(2)(B) of FIFRA, adversely affected Protection Agency, 401 M St., SW., compliance with FIFRA. persons have a right to a hearing on Washington, DC 20460. Requests should The Agency does intend to allow existing stocks issue. While no such include the nature of the person’s continued use of the revoked products, right is provided for revocations such as objection to the determination, the including use by for-hire applicators, the one involved here, the Agency nature of the proposed changes to the provided that such use is consistent believes it appropriate in this particular determination, and the bases for the with the labeling of the products. The case, given the novelty of the issues and Agency does not believe that a the absence of any guidance for objections and changes. prohibition on further use would be revocations in the existing stocks Policy List of Subjects realistically enforceable in the absence Statement, to provide any person of the devotion of significant resources adversely affected by this existing stocks Environmental protection, Pesticides to such enforcement, and given the determination with an informal hearing and pests. conclusion reached on the likelihood of opportunity before the Agency if such Dated: October 31, 1997. no unreasonable adverse effects on the person wishes to seek reconsideration of Lynn R. Goldman, environment, the Agency does not this determination. If this opportunity Assistant Administrator for Prevention, believe this issue merits the expenditure for an informal hearing is pursued, the Pesticides and Toxic Substances. of such significant resources. The Agency will consider all issues raised Agency is also concerned that a relevant to the existing stocks [FR Doc. 97–30140 Filed 11-18-97; 8:45 am] prohibition on use could lead to determination. Any person interested in BILLING CODE 6560±50±F i

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CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

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 E-mail [email protected] the revision date of each title. 3 CFR Proposed Rules: Laws 94...... 61036 For additional information 523±5227 Proclamations: 304...... 59304 7046...... 59559 Presidential Documents 308...... 59304 7047...... 59773 310...... 59304, 59305 Executive orders and proclamations 523±5227 7048...... 60153 320...... 59304 The United States Government Manual 523±5227 7049...... 60637 327...... 59304 7050...... 60761 381...... 59304, 59305 Executive Orders: Other Services 416...... 59304 12938 (See notice of 417...... 59304 Electronic and on-line services (voice) 523±4534 November 12, Privacy Act Compilation 523±3187 1997) ...... 60993 10 CFR TDD for the hearing impaired 523±5229 13067...... 59989 13...... 59275 Administrative Orders: 32...... 59275 50...... 59275 ELECTRONIC BULLETIN BOARD Notice of November 12, 1997 ...... 60993 51...... 59275 Free Electronic Bulletin Board service for Public Law numbers, Memorandums: 55...... 59275 Federal Register finding aids, and list of documents on public November 4, 1997...... 60995 60...... 59275 inspection. 202±275±0920. 72...... 59275 5 CFR 110...... 59275 FAX-ON-DEMAND 1201...... 59991 431...... 59978 You may access our Fax-On-Demand service with a fax machine. 1209...... 59992 Proposed Rules: There is no charge for the service except for long distance 2411...... 60997 2...... 60789 telephone charges the user may incur. The list of documents on Proposed Rules: 11 CFR public inspection and the daily Federal Register’s table of 532...... 59300 contents are available. The document numbers are 7050-Public 630...... 59301 Proposed Rules: Inspection list and 7051-Table of Contents list. The public 2411...... 61035 100...... 60047 inspection list is updated immediately for documents filed on an emergency basis. 7 CFR 12 CFR 1...... 61207 204...... 59775, 61620 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 225...... 60639 FILE. Documents on public inspection may be viewed and copied 3...... 60451 29...... 60155 271...... 61217 in our office located at 800 North Capitol Street, NW., Suite 700. 325...... 60161 The Fax-On-Demand telephone number is: 301±713±6905 46...... 60998 301 ...... 60763, 61210, 61213 614...... 59779 650...... 61215 619...... 59779 FEDERAL REGISTER PAGES AND DATES, NOVEMBER 920...... 60156 Proposed Rules: 922...... 60158 3...... 59944 59275±59558...... 3 923...... 60158 204...... 60671 59599±59772...... 4 924...... 60158 208...... 59944 59773±59990...... 5 927...... 60999 225...... 59944 59991±60154...... 6 989...... 60764 325...... 59944 60155±60450...... 7 567...... 59944 60451±60636...... 10 8 CFR 792...... 60799 60637±60762...... 12 204...... 60769 14 CFR 60763±60994...... 13 213a...... 60122 60995±61206...... 14 214...... 60122 25...... 59561, 60640 39 ...... 59277, 59280, 59565, 61207±61432...... 17 299...... 60122 59566, 59780, 59781, 59993, 61433±61618...... 18 9 CFR 60161, 60451, 60642, 60643, 61619±61896...... 19 78...... 60639 60644, 60645, 60772, 60773, 92...... 60161 60775, 60777, 61010, 61222, 93...... 60161 61223, 61434, 61436, 61438, 94 ...... 60161, 61002, 61433 61704, 61706 95...... 60161 71 ...... 59783, 60455, 60647, 96...... 60161 60778, 60779, 61426, 61708, 97...... 60161 61709, 61622, 61623 98...... 60161 73...... 60456 130...... 60161, 61005 97 ...... 60647, 60651, 60653 310...... 61007 255...... 59784 318...... 61619 Proposed Rules: 331...... 61009 39 ...... 59310, 59826, 59827, 381...... 61007, 61009 59829, 59830, 60047, 60049, 417...... 61007 ii Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Reader Aids

60189, 60191, 60193, 60807, 45...... 61616 3...... 59640 586...... 61648 60808, 60810, 60813, 61703, 84...... 61616 Proposed Rules: 61704, 61706 85...... 61616 38 CFR 10...... 60122, 61585 71 ...... 60051, 60315, 60460, 203...... 60124 17...... 60783 15...... 60122 60461, 60462, 60814, 61448, 206...... 60124 21...... 59579 27...... 60939 61708, 61709 Proposed Rules: 73...... 60463 25 CFR 21...... 60464 47 CFR 255...... 59313, 60195 Proposed Rules: 11...... 61057 39 CFR 1 ...... 59822, 60025, 61447 15 CFR 5...... 60664, 111...... 60180, 61014 Proposed Rules: 26 CFR 21...... 60025, 60664 Proposed Rules: 22...... 60664 303...... 59829 1...... 60165 232...... 61481 960...... 59317 23...... 60664 Proposed Rules: 40 CFR 24...... 60664 16 CFR 1...... 60196 25...... 59293, 61448 52 ...... 59284, 59995, 59996, 26...... 60664 403...... 61225 27 CFR 60784, 61016, 61236, 61237, 27...... 60664 1615...... 60163 47...... 61232 61241, 61633 42...... 59583 1616...... 60163 58...... 59813 61...... 59583 28 CFR 62...... 60785 64...... 60034 17 CFR 69...... 61204 50...... 61628 68...... 61649 15...... 61226 80...... 59998, 60132 73 ...... 59605, 60664, 61692 Proposed Rules: 29 CFR 81 ...... 60001, 61237, 61241 74...... 60025, 60664 3...... 59624 123...... 61170 2200...... 61011 76...... 61016, 61034 32...... 59624 180 ...... 60660, 61441, 61635, 2204...... 59568 78...... 60664 33...... 59624 61639, 61645 4001...... 60426 80...... 60664 275...... 61866, 61882 185...... 61645 4006...... 60426 87...... 60664 279...... 61866 233...... 61173 4022...... 60426 90...... 60664 247...... 60962 95...... 60664 18 CFR 4041...... 60426 260...... 59287 4044...... 61012 97...... 60664, 61447 4...... 59802 271...... 61175 101...... 60664 4050...... 60426 721...... 59579 11...... 61228 Proposed Rules: Proposed Rules: 375...... 59802 30 CFR 1...... 60750 9...... 61482 20...... 60199 Proposed Rules: 47...... 60984 52 ...... 59331, 60052, 60318, 21...... 60199, 60750 284...... 61459 870...... 60138 61483 73 ...... 61719, 61719, 61720, 914...... 59569 19 CFR 58...... 59840 61721 938...... 60169 60...... 61065, 61483 74...... 60199, 60750 101...... 60164 946...... 60658 61...... 61483 76...... 61065 122...... 60164 Proposed Rules: 62...... 60817 133...... 61231 90...... 60199 50...... 60673 63 ...... 60566, 60674, 61065, 36...... 59842 Proposed Rules: 707...... 59639 61483 123...... 61251 870...... 61585 79...... 60675 201...... 61252 874...... 59639 80...... 60052 48 CFR 918...... 61712 86...... 61482 1515...... 60664 20 CFR 89...... 61482 1552...... 60664 416...... 59812 31 CFR 141...... 59388, 59486 Proposed Rules: 645...... 61587 1...... 60781 142...... 59388, 59486 225...... 59641 Proposed Rules: 260...... 59332 252...... 59641 404...... 60672 32 CFR 268...... 60465 300 ...... 60058, 60199, 61715 285...... 61013 49 CFR 21 CFR 311...... 59578 41 CFR 191...... 61692 16...... 60614 Proposed Rules: 192...... 61692, 61695 173...... 59281 105±60...... 60014 199...... 61058 195...... 61692, 61695 510 ...... 60781, 61624, 61626 42 CFR 199...... 59297 520 ...... 60656, 61624, 61626 33 CFR 424...... 59818 385...... 60035 522...... 61624 100 ...... 60177, 60178, 61629 524...... 61624 Proposed Rules: 165...... 60178, 61630 350...... 60817 558 ...... 60657, 60781, 61011, 43 CFR Proposed Rules: 701...... 61070 61624, 61627 11...... 60457 100...... 60197 900...... 60614 1860...... 59820 50 CFR Proposed Rules: 34 CFR 3710...... 59821 101...... 61476 Proposed Rules: 17...... 59605 701...... 61428 201...... 61041 4700...... 60467 622...... 61700 333...... 61710 36 CFR 660...... 60788, 61700 347...... 61710 44 CFR 679 ...... 59298, 59623, 60182, 348...... 61710 4...... 61631 64...... 59290, 60662 60667, 61457 514...... 59830 Proposed Rules: 65...... 61247 Proposed Rules: 600...... 59386 7...... 60815 67...... 61248 17...... 59334, 60676 606...... 59386 Proposed Rules: 216...... 61077 37 CFR 67...... 61259 222...... 59335 24 CFR 1...... 61235 600...... 59386 5...... 61616 Proposed Rules: 46 CFR 648...... 60676 44...... 61616 2...... 59640 383...... 61647 679 ...... 59844, 60060, 60677 Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Reader Aids iii

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published New York; published 10-20- BLIND OR SEVERELY areas: 10-20-97 97 DISABLED, COMMITTEE Severn River, MD; Naval ENVIRONMENTAL TRANSPORTATION FOR PURCHASE FROM Station Annapolis small PROTECTION AGENCY DEPARTMENT PEOPLE WHO ARE boat basin; comments due Air programs: Federal Aviation Committee for Purchase by 11-24-97; published Fuels and fuel additivesÐ Administration From People Who Are Blind 10-24-97 Airworthiness directives: Reformulated and or Severely Disabled ENVIRONMENTAL Raytheon; published 10-15- conventional gasoline; Javits-Wagner-O'Day program; PROTECTION AGENCY phase II opt out 97 miscellaneous amendments; procedures; published Class E airspace; published Air pollution control; new comments due by 11-25-97; motor vehicles and engines: 10-20-97 10-20-97 published 9-26-97 Nonroad diesel engines; Pesticides; tolerances in food, TREASURY DEPARTMENT COMMERCE DEPARTMENT animal feeds, and raw Fiscal Service emission standards; Economic Analysis Bureau comments due by 11-24- agricultural commodities: Book-entry Treasury bonds, International services surveys: 97; published 9-24-97 Fomesafen; published 11- notes, and bills: 19-97 Securities in book-entry form Foreign direct investments Air quality implementation Hydroprene; published 11- held through financial in U.S.Ð plans; approval and 19-97 intermediaries ≥TRADES≥ BE-12; benchmark survey- promulgation; various States: Methyl salicylate; published regulations; published 11- 1997; reporting 11-19-97 19-97 requirements; comments Connecticut; comments due due by 11-24-97; by 11-24-97; published FEDERAL published 10-8-97 10-24-97 COMMUNICATIONS COMMENTS DUE NEXT COMMISSION WEEK COMMERCE DEPARTMENT Minnesota; comments due National Oceanic and by 11-24-97; published Radio stations; table of 10-23-97 assignments: AGRICULTURE Atmospheric Administration New Hampshire; comments Tennessee; published 11- DEPARTMENT Fishery conservation and due by 11-26-97; 19-97 Agricultural Marketing management: Service Caribbean Fishery published 10-27-97 FEDERAL RESERVE Management Council; Air quality implementation SYSTEM Agricultural commodities; laboratory testing service hearings; comments due plans; √A√approval and Freedom of Information Act; fees; comments due by 11- by 11-25-97; published promulgation; various implementation; published 28-97; published 10-28-97 10-14-97 States; air quality planning 10-20-97 Irish potatoes grown inÐ Caribbean, Gulf, and South purposes; designation of HEALTH AND HUMAN Colorado; comments due by Atlantic fisheriesÐ areas: SERVICES DEPARTMENT 11-25-97; published 9-26- Gulf of Mexico reef fish; Kentucky et al.; comments Food and Drug 97 comments due by 11- due by 11-24-97; Administration AGRICULTURE 25-97; published 9-26- published 10-23-97 Animal drugs, feeds, and DEPARTMENT 97 Hazardous waste: related products: Animal and Plant Health West Coast States and Land disposal restrictionsÐ Amprollum plus ethopabate Inspection Service Western Pacific Metal wastes and mineral with bacitracin zinc; Livestock and poultry disease fisheriesÐ processing wastes published 11-19-97 control: Chinook salmon; treatment standards, New drug applicationsÐ Tuberculosis-exposed comments due by 11- etc. (Phase IV); data Chlortetracycline; animals; transportation 28-97; published 11-13- availability; comments published 11-19-97 and disposal expenses; 97 due by 11-25-97; Orbifloxacin tablets; comments due by 11-24- Marine mammals: published 11-10-97 published 11-19-97 97; published 9-23-97 Incidental takingÐ Pesticides; tolerances in food, Sponsor name and address AGRICULTURE BP Exploration (Alaska); animal feeds, and raw changesÐ DEPARTMENT on-ice seismic activity; agricultural commodities: Schering-Plough Animal Commodity Credit ringed seals; comments Maneb; comments due by Health Corp.; published Corporation due by 11-26-97; 11-24-97; published 9-24- 11-19-97 Loan and purchase programs: published 10-27-97 97 iv Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Reader Aids

Superfund program: Columbia River treaty FAR provisions and comments due by 11- National oil and hazardous fishing access sites; use; clauses in subcontracts; 24-97; published 9-23- substances contingency comments due by 11-28- comments due by 11-24- 97 planÐ 97; published 9-29-97 97; published 9-23-97 TRANSPORTATION National priorities list INTERIOR DEPARTMENT Pay-as-go pension costs; DEPARTMENT update; comments due Fish and Wildlife Service comments due by 11-24- Privacy Act; implementation; 97; published 9-23-97 by 11-24-97; published Endangered and threatened comments due by 11-24-97; Taxes associated with 9-25-97 species: published 10-24-97 divested segments; FARM CREDIT Virginia sneezeweed; TRANSPORTATION ADMINISTRATION comments due by 11-24- DEPARTMENT comments due by 11-28- 97; published 9-23-97 Farm credit system: 97; published 9-29-97 Federal Aviation NATIONAL CREDIT UNION Administration Capital adequacy and INTERIOR DEPARTMENT ADMINISTRATION related regulations; Airworthiness directives: Surface Mining Reclamation miscellaneous Credit unions: American Champion Aircraft and Enforcement Office amendments; comments Central liquidity facility; first Corp.; comments due by due by 11-24-97; Abandoned mine land priority security interest in 11-28-97; published 9-26- published 9-23-97 reclamation; enhancement; specific assets; comments 97 comments due by 11-24-97; due by 11-24-97; Boeing; comments due by FEDERAL published 10-24-97 published 9-25-97 COMMUNICATIONS 11-26-97; published 10- Organization and COMMISSION JUSTICE DEPARTMENT 27-97 operationsÐ Dornier; comments due by Radio stations; table of Prisons Bureau Overlaps in fields of 11-28-97; published 10- assignments: Inmate control, custody, care, etc.: membership and 29-97 California; comments due by community chartering Fokker; comments due by Good conduct time; credit 11-24-97; published 10- policy; interpretive ruling 11-28-97; published 10- awarded for satisfactory 17-97 and policy statement; 17-97 Missouri; comments due by progress toward earning comment request; general educational General Electric Co.; 11-24-97; published 10- comments due by 11- comments due by 11-24- 17-97 development (GED) 28-97; published 10-29- credential; comments due 97; published 9-24-97 Wisconsin; comments due 97 by 11-25-97; published 9- Saab; comments due by 11- by 11-24-97; published 26-97 NUCLEAR REGULATORY 28-97; published 10-29-97 10-17-97 COMMISSION Literacy program (GED Class E airspace; comments Television broadcasting: Production and utilization standard); satisfactory due by 11-24-97; published facilities; domestic licensing: Video programming; progress definition; 10-23-97 blocking based on comments due by 11-25- Nuclear power plantsÐ TRANSPORTATION program ratings; technical 97; published 9-26-97 Decommissioning; DEPARTMENT requirements; comments financial assurance LABOR DEPARTMENT Federal Highway due by 11-24-97; requirements; comments Administration Mine Safety and Health published 10-9-97 due by 11-25-97; Motor carrier safety standards: Administration GENERAL SERVICES published 9-10-97 Financial responsibility; self- ADMINISTRATION Coal mine safety and health: SECURITIES AND insurance requirements Federal Acquisition Regulation Underground coal minesÐ EXCHANGE COMMISSION and application processing (FAR): Self-rescue devices; use Securities: fees; comments due by Commercial items and and location Shareholder proposals; 11-24-97; published 9-23- commercial components; requirements; comments comments due by 11-25- 97 FAR provisions and due by 11-25-97; 97; published 9-26-97 TRANSPORTATION published 9-26-97 clauses in subcontracts; SOCIAL SECURITY DEPARTMENT comments due by 11-24- LABOR DEPARTMENT ADMINISTRATION Federal Railroad 97; published 9-23-97 Pension and Welfare Social security benefits and Administration Pay-as-you-go pension Benefits Administration supplemental security Railroad safety; passenger costs; comments due by Employee Retirement Income income: equipment safety standards; 11-24-97; published 9-23- Security Act: Federal old age, survivors comments due by 11-24-97; 97 published 9-23-97 Health care continuation and disability insurance, Taxes associated with coverage; information and aged, blind, and TRANSPORTATION divested segments; request; comments due disabledÐ DEPARTMENT comments due by 11-24- by 11-24-97; published 9- Administrative review National Highway Traffic 97; published 9-23-97 23-97 process; identification Safety Administration Motor vehicle safety HEALTH AND HUMAN LIBRARY OF CONGRESS and referral of cases for SERVICES DEPARTMENT quality review under standards: Copyright Office, Library of Appeals Council's Lamps, reflective devices, Food and Drug Congress Administration authority; comments and associated Freedom of Information Act; due by 11-24-97; Human drugs: equipmentÐ implementation; comments published 9-25-97 Auxiliary signal lamps and Labeling of drug products due by 11-28-97; published Medical opinion evidence safety lighting (OTC)Ð 10-28-97 evaluation; comments inventions; comments Diphenhydramine; NATIONAL AERONAUTICS due by 11-24-97; due by 11-26-97; comments due by 11- AND SPACE published 9-25-97 published 10-27-97 28-97; published 8-29- ADMINISTRATION Social security benefits: TRANSPORTATION 97 Federal Acquisition Regulation Federal old age, survivors DEPARTMENT INTERIOR DEPARTMENT (FAR): and disability insuranceÐ Research and Special Indian Affairs Bureau Commercial items and Medical-vocational Programs Administration Fish and wildlife: commercial components; guidelines; clarification; Hazardous materials: Federal Register / Vol. 62, No. 223 / Wednesday, November 19, 1997 / Reader Aids v

Hazardous materials transportationÐ Miscellaneous amendments; comments due by 11-24-97; published 9-24-97