Pages 62189±62318 Vol. 60 12±5±95 No. 233 federal register December 5,1995 Tuesday inside coverofthisissue. Beach, CA,andSeattle,WA,seeannouncementonthe For informationonbriefingsinWashington,DC,Long Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995

SUBSCRIPTIONS AND COPIES

PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by General online information 202–512–1530 the Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Single copies/back copies: Act (49 Stat. 500, as amended; 44 U.S.C. Ch. 15) and the Paper or fiche 512–1800 regulations of the Administrative Committee of the Federal Register Assistance with public single copies 512–1803 (1 CFR Ch. I). Distribution is made only by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC FEDERAL AGENCIES 20402. Subscriptions: The Federal Register provides a uniform system for making Paper or fiche 523–5243 available to the public regulations and legal notices issued by Assistance with Federal agency subscriptions 523–5243 Federal agencies. These include Presidential proclamations and For other telephone numbers, see the Reader Aids section Executive Orders and Federal agency documents having general applicability and legal effect, documents required to be published at the end of this issue. by act of Congress and other Federal agency documents of public interest. Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless THE FEDERAL REGISTER earlier filing is requested by the issuing agency. The seal of the National Archives and Records Administration WHAT IT IS AND HOW TO USE IT authenticates this issue of the Federal Register as the official serial publication established under the Federal Register Act. 44 U.S.C. FOR: Any person who uses the Federal Register and Code of Federal 1507 provides that the contents of the Federal Register shall be Regulations. judicially noticed. WHO: Sponsored by the Office of the Federal Register. The Federal Register is published in paper, 24x microfiche and as WHAT: Free public briefings (approximately 3 hours) to present: an online database through GPO Access, a service of the U.S. 1. The regulatory process, with a focus on the Federal Register Government Printing Office. The online database is updated by 6 system and the public’s role in the development of a.m. each day the Federal Register is published. The database regulations. includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. Free public access is available on a 2. The relationship between the Federal Register and Code of Wide Area Information Server (WAIS) through the Internet and via Federal Regulations. asynchronous dial-in. Internet users can access the database by 3. The important elements of typical Federal Register using the World Wide Web; the Superintendent of Documents documents. l home page address is http://www.access.gpo.gov/su docs/, by 4. An introduction to the finding aids of the FR/CFR system. using local WAIS client software, or by telnet to swais.access.gpo.gov, then login as guest, (no password required). WHY: To provide the public with access to information necessary to Dial-in users should use communications software and modem to research Federal agency regulations which directly affect them. call (202) 512–1661; type swais, then login as guest (no password There will be no discussion of specific agency regulations. required). For general information about GPO Access, contact the GPO Access User Support Team by sending Internet e-mail to [email protected] gpo.gov; by faxing to (202) 512–1262; or by calling (202) 512–1530 between 7 a.m. and 5 p.m. Eastern time, WASHINGTON, DC Monday–Friday, except for Federal holidays. [Two Sessions] The annual subscription price for the Federal Register paper edition is $494, or $544 for a combined Federal Register, Federal WHEN: January 9, 1996 at 9:00 am and Register Index and List of CFR Sections Affected (LSA) January 23, 1996 at 9:00 am subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $433. Six month WHERE: Office of the Federal Register Conference subscriptions are available for one-half the annual rate. The charge Room, 800 North Capitol Street, NW., for individual copies in paper form is $8.00 for each issue, or $8.00 Washington, DC (3 blocks north of Union for each group of pages as actually bound; or $1.50 for each issue Station Metro) in microfiche form. All prices include regular domestic postage and handling. International customers please add 25% for foreign RESERVATIONS: 202–523–4538 handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA or MasterCard. Mail to: New Orders, LONG BEACH, CA Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. WHEN: December 12, 1995 at 9:00 am WHERE: Glenn M. Anderson Federal Building, There are no restrictions on the republication of material appearing in the Federal Register. Conference Room—Room 3470, 501 West Ocean Boulevard, Long Beach, CA 90802 How To Cite This Publication: Use the volume number and the page number. Example: 60 FR 12345. RESERVATIONS: 310–980–3447

SEATTLE, WA [Two Sessions] WHEN: December 13, 1995 at 9:00 am and 1:00 pm WHERE: National Archives—Pacific Northwest Region, Conference Room, 6125 Sand Point Way, NE., Seattle, WA 98115 RESERVATIONS: 206–526–6507

2 III

Contents Federal Register Vol. 60, No. 233

Tuesday, December 5, 1995

Agricultural Marketing Service PROPOSED RULES PROPOSED RULES Federal regulatory review Sheep and wool promotion, research, education, and Electric and hybrid vehicle and methane transportation information order, 62298–62314 research, 62318 Spearmint oil produced in Far West, 62229 NOTICES Environmental statements; availability, etc.: Agriculture Department Hanford Site, WA— See Agricultural Marketing Service Plutonium finishing plant stabilization, 62244–62245 See Federal Crop Insurance Corporation Energy Research Office See Food and Consumer Service NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Import quotas and fees: National user facilities; development of new capabilities Sugar, raw cane, 62243 and upgrade of existing capabilities, 62246–62247

Antitrust Division Environmental Protection Agency NOTICES PROPOSED RULES National cooperative research notifications: Air quality planning purposes; designation of areas: CommerceNet Consortium, 62259 Pennsylvania, 62236–62237 Corporation for Open Systems International, 62259 NOTICES Fieldbus Foundation, 62259–62260 Meetings: Financial Services Technology Consortium, Inc., 62260 Grand Canyon Visibility Transport Commission, 62247– Hart Communication Foundation, 62260 62248 Minnesota Mining & Manufacturing Co., 62260 Petroleum Environmental Research Forum, 62260–62261 Federal Aviation Administration PowerOpen Association, Inc., 62261 RULES Sawtek, Inc., et al., 62261 Airworthiness directives: Semiconductor Research Corp., 62261–62262 Boeing, 62192–62194 Southwest Research Institute, 62262 Class E airspace, 62194–62195 United Technologies Corp. et al., 62262 NOTICES Airport noise compatibility program: Assassination Records Review Board Southwest Florida International Airport, FL, 62285– NOTICES 62287 Meetings; Sunshine Act, 62293–62294 Exemption petitions; summary and disposition, 62287– 62288 Centers for Disease Control and Prevention Meetings: NOTICES Research, Engineering, and Development Advisory Agency information collection activities under OMB Committee, 62288 review, 62250–62251 Passenger facility charges; applications, etc.: Agency information collection activities under OMB Ogdensburg International Airport, NY, 62288–62289 review: Federal Communications Commission Proposed agency information collection activities; comment request, 62251–62253 RULES Radio stations; table of assignments: Passenger cruise ships; sanitation inspections; fees; Arkansas et al., 62218–62219 correction, 62295 Missouri, 62219–62221 Pennsylvania, 62220 Commerce Department Television stations; table of assignments: See International Trade Administration Tennessee et al., 62220 See National Oceanic and Atmospheric Administration Federal Crop Insurance Corporation Drug Enforcement Administration RULES NOTICES Crop insurance regulations: Applications, hearings, determinations, etc.: Florida citrus endorsement, 62189–62190 Roth, Michael J., M.D., 62262–62267 Federal Emergency Management Agency Energy Department RULES See Energy Research Office Flood insurance program: See Federal Energy Regulatory Commission Buildings or mobile homes located in special flood RULES hazard area; contested determination, 62213–62218 Federal regulatory review NOTICES Electric and hybrid vehicle and methane transportation Disaster and emergency areas: research; CFR parts removed, 62316–62317 Florida, 62248 IV Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Contents

Federal Energy Regulatory Commission Interior Department NOTICES See Land Management Bureau Applications, hearings, determinations, etc.: See National Park Service Texas Gas Transmission Corp., 62245–62246 See Surface Mining Reclamation and Enforcement Office Transcontinental Gas Pipe Line Corp., 62246 West Allegheny Biomass Energy Corp., 62246 Internal Revenue Service RULES Federal Reserve System Excise taxes: NOTICES Charitable organizations; political expenditures, 62209– Meetings; Sunshine Act, 62294 62213 Applications, hearings, determinations, etc.: PROPOSED RULES CCB Financial Corp., 62248 Income taxes: First Bank System, Inc.; correction, 62248–62249 Consolidated groups— James River Bankshares, Inc., 62249 Intercompany temporary transactions and related rules; SouthTrust Corp. et al., 62249 hearing, 62229 Thorne, Ruth Cain, 62249

Federal Trade Commission International Trade Administration RULES NOTICES Trade regulation rules: Antidumping: Used motor vehicle; Regulatory Flexibility Act review, Bicycles from— 62195–62206 China; correction, 62295

Food and Consumer Service Interstate Commerce Commission PROPOSED RULES NOTICES Child nutrition programs: Rail carriers: Child and adult care food program; overclaim authority, Non-coal proceedings; rate guidelines, 62256–62257 62227–62229 Railroad services abandonment: Illinois Central Railroad Co., 62257 Food and Drug Administration Southern Pacific Transportation Co., 62257 RULES Food additives: Justice Department Paper and paperboard components— See Antitrust Division Silver chloride-coated titanium dioxide, 62207–62208 See Drug Enforcement Administration GRAS or prior-sanctioned ingredients: See Parole Commission Japan wax, 62208–62209 NOTICES NOTICES Pollution control; consent judgments: Biological product licenses: Colorado Refining Co., 62258 Establishment license for manufacture of biological Illinois Public Interest Research Group et al., 62258 products (Form 2830) and product listing (8/95) Louisiana-Pacific, Inc., et al., 62258–62259 revision; availability, 62253–62254 Committees; establishment, renewal, termination, etc.: Science Board, 62254 Labor Department NOTICES Health and Human Services Agency information collection activities under OMB See Health Resources and Services Administration review, 62267–62268

Health and Human Services Department Land Management Bureau See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Alaska Native claims selection: See Health Care Financing Administration Chugach Alaska Corp., 62255 See Health Resources and Services Administration Coalbed methane ownership; affected States; list, 62255 Meetings: Health Care Financing Administration Southeastern Oregon Resource Advisory Council, 62255– PROPOSED RULES 62256 Medicare: Skilled nursing facilities and home health agencies; Legal Services Corporation uniform electronic cost reporting requirements, 62237–62241 NOTICES Grant and cooperative agreement awards: Health Resources and Services Administration Legal Services of the Virgin Islands, Inc., et al., 62268– NOTICES 62269 Committees; establishment, renewal, termination, etc.: Rural Health National Advisory Committee, 62254–62255 National Highway Traffic Safety Administration RULES Inter-American Foundation Rulemaking procedures: NOTICES Petitions for reconsideration and extension of comment Meetings; Sunshine Act, 62294 period, 62221–62224 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Contents V

National Oceanic and Atmospheric Administration NOTICES RULES Disaster loan areas: Fishery conservation and management: Alaska, 62284–62285 American lobster, 62224–62226 Atlantic surf clam and ocean quahog, 62226 Surface Mining Reclamation and Enforcement Office PROPOSED RULES PROPOSED RULES Fishery management councils; hearings: Permanent program and abandoned mine land reclamation Gulf of Mexico— plan submissions: King and Spanish mackerel, cobia and dolphin, 62241– Illinois, 62229–62233 62242 NOTICES Transportation Department Marine mammals: See Federal Aviation Administration Incidental taking; authorization letters, etc.— See National Highway Traffic Safety Administration Murphy Exploration & Production Co., 62243–62244 NOTICES Meetings: Aviation proceedings: Modernization Transition Committee, 62244 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, National Park Service 62285 PROPOSED RULES National Park System: Treasury Department Alaska; protection of wildlife and other values and See Internal Revenue Service purposes on all navigable waters within park boundaries, regardless of ownership of submerged United States Sentencing Commission lands, 62233–62236 NOTICES NOTICES Sentencing guidelines and policy statements for Federal National Register of Historic Places: courts, 62289–62292 Pending nominations, 62256

Nuclear Regulatory Commission NOTICES Separate Parts In This Issue Meetings; Sunshine Act, 62293 Applications, hearings, determinations, etc.: Part II Advacare Management Services, Inc., 62269–62270 Department of Agriculture, Agricultural Marketing Service, Duke Power Co. et al.; correction, 62270 62298–62314 PECO Energy Co., 62270–62272 Wisconsin Electric Power Co., 62272–62273 Part III Department of Energy, 62316–62318 Parole Commission NOTICES Meetings; Sunshine Act, 62293 Reader Aids Prospective Payment Assessment Commission Additional information, including a list of public laws, NOTICES telephone numbers, and finding aids, appears in the Reader Meetings, 62273 Aids section at the end of this issue.

Public Health Service See Centers for Disease Control and Prevention New Feature in the Reader Aids! See Food and Drug Administration Beginning with the issue of December 4, 1995, a new listing See Health Resources and Services Administration will appear each day in the Reader Aids section of the Federal Register called ‘‘Reminders’’. The Reminders will Securities and Exchange Commission have two sections: ‘‘Rules Going Into Effect Today’’ and RULES ‘‘Comments Due Next Week’’. Rules Going Into Effect Practice and procedure: Today will remind readers about Rules documents Administrative proceedings; evidentiary hearings before published in the past which go into effect ‘‘today’’. administrative law judges, etc. Comments Due Next Week will remind readers about Correction, 62295 impending closing dates for comments on Proposed Rules NOTICES documents published in past issues. Only those documents Self-regulatory organizations; proposed rule changes: published in the Rules and Proposed Rules sections of the Chicago Board Options Exchange, Inc., 62273–62274 Federal Register will be eligible for inclusion in the Municipal Securities Rulemaking Board, 62275–62284 Reminders. Applications, hearings, determinations, etc.: The Reminders feature is intended as a reader aid only. San Diego Gas & Electric Co., 62284 Neither inclusion nor exclusion in the listing has any legal Sentencing Commission, United States significance. See United States Sentencing Commission The Office of the Federal Register has been compiling data for the Reminders since the issue of November 1, 1995. No Small Business Administration documents published prior to November 1, 1995 will be RULES listed in Reminders. Federal claims collection, 62190–62192 VI Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Contents

Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of documents on public inspection is available on 202–275– 1538 or 275–0920. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 401...... 62189 Proposed Rules: 226...... 62227 985...... 62229 1280...... 62298 10 CFR 475...... 62316 476...... 62316 478...... 62316 Proposed Rules: 475...... 62318 476...... 62318 478...... 62318 13 CFR 140...... 62190 14 CFR 39...... 62192 71...... 62194 16 CFR 455...... 62195 17 CFR 200...... 62295 21 CFR 176...... 62207 182...... 62208 186...... 62208 26 CFR 1...... 62209 53...... 62209 301...... 62209 Proposed Rules: 1...... 62229 30 CFR Proposed Rules: 913...... 62229 36 CFR Proposed Rules: 1...... 62233 13...... 62233 40 CFR Proposed Rules: 81...... 62236 42 CFR Proposed Rules: 413...... 62237 44 CFR 65...... 62213 47 CFR 73 (6 documents) ...... 62218, 62219, 62220 49 CFR 553...... 62221 50 CFR 649...... 62224 650...... 62224 651...... 62224 652...... 62226 Proposed Rules: 642...... 62241 62189

Rules and Regulations Federal Register Vol. 60, No. 233

Tuesday, December 5, 1995

This section of the FEDERAL REGISTER previously approved by OMB pursuant must be exhausted before judicial action contains regulatory documents having general to the Paperwork Reduction Act of 1995 may be brought. applicability and legal effect, most of which (44 U.S.C. chapter 35) under OMB This action is not expected to have are keyed to and codified in the Code of control numbers 0563–0003, 0563–0014, any significant impact on the quality of Federal Regulations, which is published under and 0563–0016. The amendments set the human environment, health, and 50 titles pursuant to 44 U.S.C. 1510. forth in this rule do not revise the safety. Therefore, neither an The Code of Federal Regulations is sold by content or alter the frequency of Environmental Assessment nor an the Superintendent of Documents. Prices of reporting for any of the forms cleared Environmental Impact Statement is new books are listed in the first FEDERAL under the above mentioned dockets. needed. REGISTER issue of each week. The public reporting burden for the Background collection of information is estimated to range from 10 to 90 minutes per On Tuesday, June 6, 1995, FCIC DEPARTMENT OF AGRICULTURE response, including the time for published an interim rule in the Federal reviewing instructions, searching Register at 60 FR 29749, to amend the Federal Crop Insurance Corporation existing data sources, gathering and Florida Citrus Endorsement by revising the Catastrophic Risk Protection (CAT) 7 CFR Part 401 maintaining the data needed, and completing and reviewing the collection loss adjustment provisions contained in RIN 0563±AB29 of information. section 9 of the endorsement. Following publication of the interim It has been determined under section General Crop Insurance Regulations; rule, the public was afforded 60 days to 6(a) of Executive Order 12612, Florida Citrus Endorsement submit written comments, data, and Federalism, that this rule does not have opinions. The comments received and sufficient federalism implication to AGENCY: Federal Crop Insurance FCIC responses are as follows: Corporation. warrant the preparation of a Federalism Comment: One comment received ACTION: Final rule. Assessment. The policies and from an insurance company maintains procedures contained in this rule will that the rule is incomplete because it SUMMARY: The Federal Crop Insurance not have a substantial direct effect on only addresses the loss adjustment Corporation (‘‘FCIC’’) hereby amends states or their political subdivisions, or deductible aspect of the program and the Florida Citrus Endorsement that on the distribution of power and does not address the dollar amount of supplements the General Crop responsibilities among the various insurance. Insurance Policy. The intended effect of levels of government. Response: FCIC revised Section 9 this rule is to require that the insured This regulation will not have a (Claim for Indemnity) because the crop unit suffer at least a fifty percent significant impact on a substantial language did not conform with the (50%) average percent of damage before number of small entities. This action requirements of Section 508(b) of the an indemnity would be due for any neither increases nor decreases the Federal Crop Insurance Reform Act catastrophic risk protection policy. paperwork burden on the insured and (Act) of 1994 which states that CAT EFFECTIVE DATE: December 5, 1995. the reinsured company. Therefore, this shall offer a producer coverage for a 50 FOR FURTHER INFORMATION CONTACT: action is determined to be exempt from percent loss of yield. Under the Florida Diana Moslak, Regulatory and the provisions of the Regulatory Citrus Endorsement, loss payments Procedural Development Staff, Federal Flexibility Act (5 U.S.C. 605) and no began once the damage exceeded 10 Crop Insurance Corporation, U.S. Regulatory Flexibility Analysis was percent. FCIC added language to bring Department of Agriculture, Washington, prepared. Section 9 in compliance with the Act. D.C. 20250. Telephone (202) 254–8314. This program is listed in the Catalog This language only addresses the 50 SUPPLEMENTARY INFORMATION: This of Federal Domestic Assistance under percent deductible. The dollar amount action has been reviewed under United No. 10.450. of insurance for CAT coverage, as States Department of Agriculture This program is not subject to the determined by FCIC, is stipulated in the (‘‘USDA’’) procedures established by provisions of Executive Order 12372 actuarial table. Therefore, FCIC has Executive Order 12866 and which require intergovernmental addressed the dollar amount of Departmental Regulation 1512–1. This consultation with state and local insurance for CAT coverage and the action constitutes a review as to the officials. See the Notice related to 7 CFR formula used to determine CAT need, currency, clarity, and part 3015, subpart V, published at 48 FR coverage indemnities will not be effectiveness of these regulations under 29115, June 24, 1983. changed. those procedures. The sunset review The Office of the General Counsel has Comment: One comment received date established for these regulations is determined that these regulations meet from an insurance company stated that May 1, 2000. the applicable standards provided in the rule was not necessary because the This rule has been determined to be subsections (2)(a) and 2(b)(2) of same result could be achieved by ‘‘exempt’’ for the purposes of Executive Executive Order 12778. The provisions multiplying the maximum value FCIC Order 12866 and, therefore, has not of this rule will preempt state and local assigns to a given variety of citrus by been reviewed by the Office of laws to the extent such state and local 50%, then multiplying this product by Management and Budget (‘‘OMB’’). laws are inconsistent herewith. The 60%. The information collection administrative appeal provisions Response: FCIC disagrees with the requirements contained in these promulgated by the National Appeals comment. The determination of an regulations (7 CFR part 401) were Division under Pub. L. No. 103–354 appropriate CAT dollar amount of 62190 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations insurance is a separate issue from Comment: One comment received Done in Washington, DC, on November 29, establishing the amount of loss that from an insurance company suggested 1995. must be sustained before an indemnity that the rule will spread confusion and Kenneth D. Ackerman, is due. bad will among their growers and Manager, Federal Crop Insurance Comment: One comment received creates additional work for companies Corporation. from an insurance company suggested and agents who are already [FR Doc. 95–29570 Filed 12–4–95; 8:45 am] that the Act specifically addresses CAT ‘‘undercompensated’’ for CAT. BILLING CODE 3410±FA±P coverage for production based programs but leaves discretion as to how to apply Response: The Act mandates guidelines for implementing CAT CAT to dollar amount of insurance SMALL BUSINESS ADMINISTRATION crops. coverage and FCIC does not have the Response: The Act stipulates that liberty to deviate from the guidelines. 13 CFR Part 140 CAT coverage shall offer a producer Therefore, Florida citrus producers with coverage for a 50 percent loss in yield CAT policies will be treated the same as Debt Collection Through Offset on an individual basis, indemnified at CAT policyholders of other crops. AGENCY: Small Business Administration. 60 percent of the expected market price, Comment: One comment received ACTION: Final rule. or comparable coverage (as determined from an insurance company stated that by the Corporation). For dollar amount while they believed the rule change was SUMMARY: In response to President of insurance crops like Florida Citrus, required to bring the program in Clinton’s regulatory review directive, the CAT dollar amount of insurance is compliance with legislation, the change the Small Business Administration has stated in the actuarial table. The 50% was made well after the April 15, 1995 completed a page-by-page and line-by- loss threshold for CAT is not contract change date, and thus it was line review of its regulations. As a discretionary and applies to dollar inappropriate to implement it for the result, SBA is proposing to clarify and amount of insurance crops. 1996 crop year. streamline its regulations, revising or Comment: One comment received Response: FCIC’s position is that CAT eliminating any duplicative, outdated, from an insurance company suggested inconsistent, or confusing provisions. was implemented when the interim that changing the loss calculation for This rule reorganizes all of Part 140 rules, Catastrophic Risk Protection CAT represents a material change in the covering agency debt collection, Endorsement and Subpart T-Regulations program and essentially creates a clarifying it and making it easier to use for Implementation, were published in second Florida Citrus program. through the use of ‘‘plain language.’’ It the Federal Register on January 6, 1995. Response: Changing the Florida Citrus also amends the Part by removing CAT loss calculation did not create The Florida Citrus interim rule was a redundant provisions and applying, another program. CAT coverage was a continuation of implementing CAT. where permitted by applicable statute, new insurance coverage level that was Implementing legislation (the Act) takes uniform procedural rights to all debt required to be implemented by the Act. precedence over a crop policy’s contract collection procedures. The name of the The change explains how CAT losses change date. regulation has been changed from will be calculated. Comment: One comment received simply Debt Collection to Debt Comment: One comment received from an insurance company stated that Collection Through Offset. There are no from an insurance company stated their the only changes allowable after the substantive changes. belief that CAT payment values are far April 15, 1995 contract change date short of 60% of the market value called EFFECTIVE DATE: This rule is effective would be a liberalization which would for in the Act. Consequently, loss January 4, 1996. benefit the policyholders, as described guidelines which result in a CAT FOR FURTHER INFORMATION CONTACT: producer being indemnified once they in section 11 of the General Provisions Cheri Wolff, Chief Counsel for General have sustained a loss greater than 10% of the MPCI Policy. Furthermore a 500% Litigation, Office of General Counsel, at helped to compensate for the increase in the CAT policy deductible (202) 205–6643. insufficient CAT dollar amount of does not qualify as a liberalization. SUPPLEMENTARY INFORMATION: 13 CFR coverage. Response: Implementing legislation Part 140 establishes procedures for the Response: FCIC believes that it would takes precedence over a crop policy’s collection of debts owed to SBA. This be inappropriate to compensate for a contract change date. CAT insureds who rule reorganizes the entire Part, perceived insufficient dollar amount of sustain a complete loss of their Florida clarifying it and making it easier to use. coverage by manipulating loss citrus can realize 100% of their CAT Where permitted by relevant statute, it calculations, since it would violate crop coverage, while under the previous loss also amends Part 140 to give all debtors loss guidelines established in the Act. calculation, based on 10% deductible, similar procedural rights. Comment: One comment received they would have received only 90% of Currently, Part 140 does not give all from an insurance company suggested their CAT coverage. debtors the same procedural rights. that the rule change would not reduce Where a salary deduction or paperwork nor simplify the program List of Subjects in 7 CFR Part 401 administrative offset procedure is used, and could cost more money to debtors have thirty days to present administer since agents would have two Crop insurance, Florida citrus. evidence in response to SBA’s notice of quoting systems. Final Rule intent to collect a debt. On the other Response: FCIC disagrees with this hand, where the deduction from income comment. The rule change is not Accordingly, pursuant to the tax refund procedure is used, debtors expected to either increase or decrease authority contained in the Federal Crop are given sixty days to present evidence paperwork. The change does not create Insurance Act, as amended (7 U.S.C. in response to SBA’s notice. The rule two quoting systems, it only informs the 1501 et seq.) the Federal Crop Insurance eliminates this distinction and provides CAT policyholder how a claim for Corporation hereby adopts as a final all debtors with the same procedural indemnity is calculated for this new rule, the interim rule as published at 60 rights. All debtors will be given sixty coverage level. FR 29749 on June 6, 1995. days to present their relevant evidence. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62191

Section-by-Section Analysis accordance with the standards set forth deduct payments owed to SBA or The authority citations are amended in Section 2 of that Order. another federal agency from the debtor’s paycheck. This procedure is a ‘‘salary by specifying the statutory authority for List of Subjects in 13 CFR Part 140 each of the three debt collection offset’’ and is authorized by 5 U.S.C. Claims; Government employees; 5514. procedures. Income taxes; Wages. The following is a section by section (i) Any amount deducted from salary analysis of each provision of this Rule For the reasons set forth above, SBA in any one pay period will not exceed affected by these changes: revises Part 140 of Title 13 of the Code 15 percent of a debtor’s disposable pay, 140.1: Revises section 140.1 by of Federal Regulations to read as unless the debtor agrees in writing to a inserting clear language as to coverage follows: greater percentage. (ii) SBA also may collect against of the regulation. PART 140ÐDEBT COLLECTION travel advances, training expenses, 140.2: Deletes, in most respects, THROUGH OFFSET section 140.2 (the definition section). disallowed payments, retirement The definitions of administrative offset Sec. benefits, or any other amount due the and salary offset are now included in § 140.1 What does this part cover? employee, including lump-sum proposed section 140.2 (‘‘What is a debt § 140.2 What is a debt and how can the SBA payments. and how can the SBA collect it through collect it through offset? (iii) If an employee has terminated offset?’’). Several other definitions are § 140.3 What rights do you have when SBA employment after salary offset has been tries to collect a debt from you through retained for clarity, but are defined as offset? initiated, there are no limitations on the amount that can be withheld or offset. the terms appear in the text. Section Authority: 31 U.S.C. 3711, Collection and 140.2 also clarifies the three debt compromise; 31 U.S.C. 3720A, Reduction of (3) IRS tax refund offset. SBA may collection procedures. tax refund by amount of debt; 5 U.S.C. 5514, request that IRS reduce a debtor’s tax 140.3: Current sections 140.3 Installment deduction for indebtedness to the refund by the amount of the debt, as (‘‘Information disclosure’’), 140.4 United States; 31 U.S.C. 3716, Administrative authorized by 31 U.S.C. 3720A. Where (‘‘Salary offset’’), 140.5 (‘‘Administrative offset; 15 U.S.C. 634(b)(6), Small Business available, administrative and salary offset’’), and 140.6 (‘‘Income tax refund Act. offsets must be used before collection is offset’’) are deleted and replaced with § 140.1 What does this part cover? attempted through income tax offset. new Section 140.3 (‘‘What rights do you SBA may refer a debt to the IRS for a This part establishes procedures have when SBA tries to collect a debt tax refund offset and take additional which SBA may use in the collection, from you through offset?’’). Section action against the debtor to collect the through offset, of past-due debts owed 140.3 specifies, in clear language, debt at the same time or in sequence. to the Government. SBA’s failure to debtors’ rights. These rights apply to all When SBA makes simultaneous or comply with any provision of the persons affected by SBA debt collection sequential referrals (within six months regulations in this part is not available offset procedures. of the initial notice), only one review to any debtor as a defense against pursuant to the rules in this part and the Compliance With Executive Orders collection of the debt through judicial statutes authorizing them is required. 12612, 12778, and 12866, the process. Regulatory Flexibility Act (5 U.S.C. 601, § 140.3 What rights do you have when § 140.2 What is a debt and how can the et seq.), and the Paperwork Reduction SBA tries to collect a debt from you through SBA collect it through offset? Act (44 U.S.C. Ch. 35) offset? (a) A debt means an amount owed to SBA certifies that this rule involves the United States from loans made or (a) SBA must write to you and tell you internal administrative procedures and guaranteed by the United States, and that it proposes to collect the debt by would not be considered a significant from fees, leases, rents, royalties, reducing your federal paycheck, rule within the meaning of Executive services, sales of real or personal withholding money the Government Order 12866 and would not have a property, overpayments, fines, owes you, and/or reducing your tax significant economic impact on a penalties, damages, interest, forfeitures, refund. substantial number of small entities or any other source. You are a debtor if (b) In its written notice to you, SBA within the meaning of the Regulatory you owe an amount to the United States must tell you the nature and amount of Flexibility Act, 5 U.S.C. 601, et seq. It from any of these sources. the debt; that SBA will begin procedures is not likely to have an annual economic (b) SBA may collect past-due debts to collect the debt through reduction of effect of $100 million or more, result in through offset by using any of three your federal paycheck, administrative a major increase in costs or prices, or procedures: administrative offset, salary offset, or reduction of your tax refund; have a significant adverse effect on offset, or IRS tax refund offset. A past- that you have an opportunity to inspect competition or the United States due debt is one which has been reduced and copy Government records relating economy. to judgment, has been accelerated, or to the debt at your expense; and that, For purposes of the Paperwork has been due for at least 90 days. before collection begins, you have an Reduction Act, 44 U.S.C. Ch. 35, SBA (1) Administrative offset. SBA may opportunity to agree with SBA on a certifies that this rule contains no new withhold money it owes to the debtor in schedule for repayment of your debt. reporting or recordkeeping order to satisfy the debt. This procedure (c) SBA also must tell you that unless requirements. is an ‘‘administrative offset’’ and is you respond within 60 days from the For purposes of Executive Order authorized by 31 U.S.C. 3716. date of the notice, it will disclose to 12612, SBA certifies that this rule (2) Salary offset. If the debtor is a consumer reporting agencies (also would not have any federalism federal employee (a civilian employee known as credit bureaus or credit implications warranting the preparation as defined by 5 U.S.C. 2105, an agencies) that you are responsible for of a Federalism Assessment. employee of the U.S. Postal Service or the debt and the specific information it For purposes of Executive Order Postal Rate Commission, or a member of intends to disclose in order to establish 12778, SBA certifies that this rule is the Uniformed Services or Reserve of your identity. The amount, status, drafted, to the extent practicable, in the Uniformed Services), SBA may history of the debt, and agency program 62192 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations under which it arose also will be SBA, SBA will notify the IRS of these ACTION: Final rule; request for disclosed. payments and your new balance within comments. (d) If you respond to SBA within 60 10 business days of receiving your days from the date of the notice, SBA payment. SUMMARY: This amendment revises an will not disclose the information to (j) When the debt of a federal existing airworthiness directive (AD), consumer reporting agencies until it employee is reduced to court judgment, applicable to certain Boeing Model 737– considers your response and determines the employee is not entitled to further 200 and –300 series airplanes, that that you owe a past-due, legally review by SBA, but is only entitled to currently requires inspections to detect enforceable debt. notice of a proposed salary offset cracking in the radii on the support (e) Within 60 days of the notice you resulting from the judgment. The angles on the lower jamb (latch lug may present evidence that all or part of amount deducted may not exceed 15% fittings) of the main deck cargo door, the debt is not past due or not legally of disposable pay, except when the and replacement of cracked parts. That enforceable. deduction of a greater amount is amendment was prompted by reports of (1) Where a salary offset or necessary to completely collect the debt premature fatigue cracking on the administrative offset is proposed, you within the employee’s remaining period support angles on the lower jamb of the will have the opportunity to present of employment. main deck cargo door. The actions your evidence to SBA’s Office of (k) When another federal agency asks specified in that AD are intended to Hearings and Appeals (‘‘OHA’’). The SBA to offset a debt for it, SBA will not prevent in-flight separation of the main rules in part 134 of this title govern the initiate the requested offset until it has deck cargo door from the airplane due procedural rights to which you are received from the creditor agency a to fatigue cracking on the support angles entitled. In order to have a hearing written certification that the debtor on the lower door jamb. This before OHA, you must request a hearing owes a debt, its amount, and that the amendment requires a change in the within 15 days of receipt of the written provisions of all applicable statutes and cognizant aircraft certification office for notice described in this section. An regulations have been complied with requesting approvals of alternative OHA judge will issue a decision within fully. methods of compliance with the 60 days of the date you filed your (l) SBA may make an offset prior to provisions of this AD. petition/request for a review or hearing completion of the procedures described DATES: Effective December 20, 1995. with OHA, unless you were granted in this part, if: The incorporation by reference of additional time within which to file (1) Failure to make an offset would certain publications listed in the your request for review. substantially prejudice the government’s regulations was approved previously by (2) Where an income tax refund offset ability to collect the debt; and the Director of the Federal Register as of is proposed, you will have the (2) The time before the payment January 24, 1995 (60 FR 2323, January opportunity to request a review and would otherwise be made to you does 9, 1995). present your evidence to the appropriate not reasonably permit the completion of Comments for inclusion in the Rules SBA Commercial Loan Servicing Center the procedures. Docket must be received on or before at the address provided in the notice. February 5, 1996. (f) SBA must consider any evidence (3) Such prior offset then must be you present and must first decide that followed by the completion of the ADDRESSES: Submit comments in a debt is past due and legally procedures described in this part. triplicate to the Federal Aviation enforceable. A debt is legally (m) Where an IRS tax refund offset is Administration (FAA), Transport enforceable if there is any forum, sought, SBA must follow the Airplane Directorate, ANM–103, including a State or Federal Court or Department of the Treasury’s Attention: Rules Docket No. 94–NM– administrative agency, in which SBA’s regulations governing offset of a past- 247–AD, 1601 Lind Avenue, SW., claim would not be barred on the date due, legally enforceable debt against tax Renton, Washington 98055–4056. of offset. Non-judgment debts are overpayment. The service information referenced in enforceable for ten years; judgment Dated: November 22, 1995. this AD may be obtained from Pemco debts are enforceable beyond ten years. Philip Lader, Aeroplex, Inc., P.O. Box 2287, Birmingham, Alabama 35201–2287. You will be notified of SBA’s decision Administrator. at least 30 days before any offset This information may be examined at [FR Doc. 95–29564 Filed 12–4–95; 8:45 am] the FAA, Small Airplane Directorate, deduction is made. You also will be BILLING CODE 8025±01±P notified of the amount, frequency, Atlanta Aircraft Certification Office, proposed beginning date, and duration Campus Building, 1701 Columbia Avenue, Suite 2–160, College Park, of the deductions, as well as any DEPARTMENT OF TRANSPORTATION obligation to pay interest, penalties, and Georgia; or at the FAA, Transport Airplane Directorate, 1601 Lind administrative costs. Federal Aviation Administration (g) If there is any substantial change Avenue, SW., Renton, Washington; or at in the status or amount of your debt, 14 CFR Part 39 the Office of the Federal Register, 800 SBA will promptly report that change to North Capitol Street, NW., suite 700, [Docket No. 94±NM±247±AD; Amendment Washington, DC. each consumer reporting agency it 39±9449; AD 95±01±06 R1] originally contacted. FOR FURTHER INFORMATION CONTACT: (h) SBA will obtain satisfactory Airworthiness Directives; Boeing Curtis Jackson, Aerospace Engineer, assurances from each consumer Model 737±200 and ±300 Series Airframe Branch, ACE–120A; FAA, reporting agency that the consumer Airplanes Equipped With Cargo Doors Small Airplane Directorate, Atlanta reporting agency has complied with all Installed in Accordance With Aircraft Certification Office, Campus federal laws relating to provision of Supplemental Type Certificate (STC) Building, 1701 Columbia Avenue, Suite consumer credit information. SA2969SO 2–160, College Park, Georgia 30337– (i) If your debt is being repaid by 2748; telephone (404) 305–7358; fax reduction of your income tax refund and AGENCY: Federal Aviation (404) 305–7348; or Della Swartz, you make any additional payments to Administration, DOT. Aerospace Engineer, Airframe Branch, Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62193

ANM–120S, FAA, Transport Airplane of an AMOC from the Seattle ACO to the accordance with Executive Order 12612, Directorate, Seattle Aircraft Certification Atlanta ACO. it is determined that this final rule does Office, 1601 Lind Avenue, SW., Renton, This AD merely changes, for those not have sufficient federalism Washington 98055–4056; telephone operators requesting approval of an implications to warrant the preparation (206) 227–2785; fax (206) 227–1181. AMOC, the cognizant office from the of a Federalism Assessment. Seattle ACO to the Atlanta ACO. In light For reasons discussed above, I certify SUPPLEMENTARY INFORMATION: On of this, the FAA has determined that that this action (1) is not a ‘‘significant December 29, 1994, the FAA issued AD this AD has no adverse economic regulatory action’’ under Executive 95–01–06, amendment 39–9117 (60 FR impact and imposes no additional Order 12866; (2) is not a ‘‘significant 2323, January 9, 1995), applicable to burden on any person. Therefore, notice rule’’ under DOT Regulatory Policies certain Boeing Model 737–200 and –300 and opportunity for prior public and Procedures (44 FR 11034, February series airplanes, to require repetitive comment hereon are unnecessary, and 26, 1979); and (3) will not have a visual inspections to detect cracking in the amendment may be made effective significant economic impact, positive or the radii on the support angles on the in less than 30 days after publication in negative, on a substantial number of lower jamb of the main deck cargo door, the Federal Register. small entities under the criteria of the and replacement of cracked parts with Regulatory Flexibility Act. A final new parts. For those operators Comments Invited evaluation has been prepared for this requesting approval of alternative Although this action is in the form of action and it is contained in the Rules methods of compliance (AMOC) with a final rule that involves requirements Docket. A copy of it may be obtained the requirements of that AD, that AD affecting flight safety and, thus, was not from the Rules Docket at the location requires that those requests be preceded by notice and an opportunity provided under the caption ADDRESSES. submitted to the Seattle Aircraft for public comment, comments are Certification Office (ACO). invited on this rule. Interested persons List of Subjects in 14 CFR Part 39 That AD was prompted by reports of are invited to comment on this rule by Air transportation, Aircraft, Aviation premature fatigue cracking on the submitting such written data, views, or safety, Safety. support angles on the lower jamb of the arguments as they may desire. Adoption of the Amendment main deck cargo door. The actions Communications shall identify the required by that AD are intended to Rules Docket number and be submitted Accordingly, pursuant to the prevent in-flight separation of the main in triplicate to the address specified authority delegated to me by the deck cargo door from the airplane due under the caption ADDRESSES. All Administrator, the Federal Aviation to fatigue cracking on the support angles communications received on or before Administration amends part 39 of the on the lower door jamb. the closing date for comments will be Federal Aviation Regulations (14 CFR considered, and this rule may be Since the issuance of that AD, the part 39) as follows: amended in light of the comments FAA has reviewed the requirement for received. Factual information that PART 39ÐAIRWORTHINESS operators requesting approval of an supports the commenter’s ideas and DIRECTIVES AMOC to submit those requests to the suggestions is extremely helpful in Seattle ACO. The FAA considered the 1. The authority citation for part 39 evaluating the effectiveness of the AD physical proximity of the supplemental continues to read as follows: action and determining whether type certificate (STC) holder, Pemco, additional rulemaking action would be Authority: 49 USC 106(g), 40101, 40113, which is located in Birmingham, needed. 44701. Alabama, to the Atlanta ACO, which is Comments are specifically invited on located in College Park, Georgia. The § 39.13 [Amended] the overall regulatory, economic, 2. Section 39.13 is amended by FAA has determined that the Atlanta environmental, and energy aspects of ACO would be more readily accessible removing amendment 39–9117 (60 FR the rule that might suggest a need to 2323, January 9, 1995), and by adding a to Pemco than the Seattle ACO, which modify the rule. All comments is located in Renton, Washington. new airworthiness directive (AD), submitted will be available, both before amendment 39–9449, to read as follows: Consequently, the FAA finds that and after the closing date for comments, revising this AD to change the cognizant in the Rules Docket for examination by 95–01–06 R1 Boeing: Amendment 39–9449. ACO for requesting approval of an interested persons. A report that Docket 94–NM–247–AD. Revises AD 95– 01–06, Amendment 39–9117. AMOC, from the Seattle ACO to the summarizes each FAA-public contact Atlanta ACO, would allow the FAA to concerned with the substance of this AD Applicability: Model 737–200 and –300 series airplanes equipped with main deck be more responsive to the needs of its will be filed in the Rules Docket. customers. Therefore, the FAA has cargo doors installed in accordance with Commenters wishing the FAA to supplemental type certificate (STC) determined that it is appropriate to take acknowledge receipt of their comments action to revise paragraph (b) of that AD SA2969SO, certificated in any category. submitted in response to this rule must Note 1: This AD applies to each airplane to change the cognizant ACO from submit a self-addressed, stamped Seattle to Atlanta. identified in the preceding applicability postcard on which the following provision, regardless of whether it has been Since unsafe condition has been statement is made: ‘‘Comments to modified, altered, or repaired in the area identified that is likely to exist or Docket Number 94–NM–247–AD.’’ The subject to the requirements of this AD. For develop on other airplanes of this same postcard will be date stamped and airplanes that have been modified, altered, or type design, this AD revises AD 95–01– returned to the commenter. repaired so that the performance of the 06 to continue to require repetitive The regulations adopted herein will requirements of this AD is affected, the visual inspections to detect cracking in not have substantial direct effects on the owner/operator must use the authority provided in paragraph (b) of this AD to the radii on the support angles on the States, on the relationship between the request approval from the FAA. This lower jamb of the main deck cargo door national government and the States, or approval may address either no action, if the and replacement of cracked parts with on the distribution of power and current configuration eliminates the unsafe new parts. This AD changes the responsibilities among the various condition; or different actions necessary to cognizant ACO for requesting approval levels of government. Therefore, in address the unsafe condition described in 62194 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations this AD. Such a request should include an Building, 1701 Columbia Avenue, Suite 2– 71.1. Class E airspace designations assessment of the effect of the changed 160, College Park, Georgia 30337–2748; or at listed in this document will be configuration on the unsafe condition the Office of the Federal Register, 800 North published subsequently in this Order. addressed by this AD. In no case does the Capitol Street, NW., suite 700, Washington, presence of any modification, alteration, or DC. The Rule repair remove any airplane from the (e) This amendment becomes effective on This amendment to part 71 of the applicability of this AD. December 20, 1995. Federal Aviation Regulations (14 CFR Compliance: Required as indicated, unless Issued in Renton, Washington, on part 71) establishes a Class E airspace accomplished previously. November 28, 1995. To prevent in-flight separation of the main area at Byron, CA. The development of deck cargo door from the airplane, Darrell M. Pederson, a GPS SIAP at Byron Airport has made accomplish the following: Acting Manager, Transport Airplane this action necessary. The intended Note 2: This AD references Pemco Alert Directorate, Aircraft Certification Service. effect of this action is to provide Service Letter 737–53–0003, Revision 3, [FR Doc. 95–29480 Filed 12–4–95; 8:45 am] adequate Class E airspace for aircraft dated December 22, 1994, for information BILLING CODE 4910±13±U executing the GPS RWY 30 SIAP at concerning inspection and replacement Byron Airport, Byron, CA. procedures. In addition, this AD specifies The FAA has determined that this replacement requirements different from 14 CFR Part 71 regulation only involves an established those included in the service letter. Where body of technical regulations for which there are differences between the AD and the [Airspace Docket No. 95±AWP±15] service letter, the AD prevails. frequent and routine amendments are necessary to keep them operationally (a) Within 50 flight after January 24, 1995 Establishment of Class E Airspace; (the effective date of AD 95–01–06, Byron, CA current. Therefore, this regulation—(1) amendment 39–9117), or within 50 flight is not a ‘‘significant regulatory action’’ cycles after installation of STC SA2969SO, AGENCY: Federal Aviation under Executive Order 12866; (2) is not whichever occurs later, perform a visual Administration (FAA), DOT. a ‘‘significant rule’’ under DOT inspection to detect cracking in the radii on ACTION: Final rule. Regulatory Policies and Procedures (44 the support angles on the lower jamb of the FR 10034; February 26, 1979); and (3) main deck cargo door, in accordance with SUMMARY: This action establishes a Class does not warrant preparation of a Pemco Alert Service Letter 737–53–0003, E airspace area at Byron, CA. The Regulatory Evaluation as the anticipated Revision 3, dated December 22, 1994. development of a Global Positioning impact is so minimal. Since this is a (1) If no cracking is detected, repeat the System (GPS) Standard Instrument visual inspection thereafter at intervals not to routine matter that will only affect air exceed 450 flight cycles. Approach Procedure (SIAP) to Runway traffic procedures and air navigation, it (2) If any cracking is detected, prior to (RWY) 30 has made this action is certified that this rule will not have further flight, replace the cracked part with necessary. The intended effect of this a significant economic impact on a a new part in accordance with the service action is to provide adequate controlled substantial number of small entities letter. Repeat the visual inspection thereafter airspace for Instrument Flight Rules under the criteria of the Regulatory at intervals not to exceed 450 flight cycles. (IFR) operations at Byron Airport, Flexibility Act. (b) An alternative method of compliance or Byron, CA. adjustment of the compliance time that List of Subjects in 14 CFR Part 71 EFFECTIVE DATE: 0901 UTC, February 29, provides an acceptable level of safety may be Airspace, Incorporation by reference, used if approved by the Manager, FAA, Small 1996. Airplane Directorate, Atlanta Aircraft FOR FURTHER INFORMATION CONTACT: Navigation (air). Certification Office (ACO). Operators shall Scott Speer, Airspace Specialist, System Adoption of the Amendment submit their requests through an appropriate Management Branch, AWP–530, Air In consideration of the foregoing, the FAA Principal Maintenance Inspector, who Traffic Division, Western-Pacific Federal Aviation Administration may add comments and then send it to the Region, Federal Aviation Manager, Atlanta ACO. amends 14 CFR part 71 as follows: Administration, 15000 Aviation Note 3: Information concerning the Boulevard, Lawndale, California, 90261, existence of approved alternative methods of PART 71Ð[AMENDED] telephone (310) 725–6533. compliance with this AD, if any, may be 1. The authority citation for 14 CFR obtained from the Atlanta ACO. SUPPLEMENTARY INFORMATION: part 71 continues to read as follows: (c) Special flight permits may be issued in Authority: 49 U.S.C. 106(g), 40103, 40113, accordance with sections 21.197 and 21.199 History 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– of the Federal Aviation Regulations (14 CFR On October 10, 1995, the FAA 1963 Comp., p. 389; 14 CFR 11.69. 21.197 and 21.199) to operate the airplane to proposed to amend part 71 of the a location where the requirements of this AD Federal Aviation Regulations (14 CFR § 71.1 [Amended] can be accomplished. part 71) by establishing a Class E (d) The inspection and replacement 2. The incorporation by reference in procedures shall be done in accordance with airspace area at Byron, CA (60 FR 14 CFR 71.1 of the Federal Aviation Pemco Alert Service Letter 737–53–0003, 52638). The development of a GPS SIAP Administration Order 7400.9C, Airspace Revision 3, dated December 22, 1994. This at Byron Airport has made this action Designations and Reporting Points, incorporation by reference was approved necessary. dated August 17, 1995, and effective previously by the Director of the Federal Interested parties were invited to September 16, 1995, is amended as Register in accordance with 5 U.S.C. 552(a) participate in this rulemaking follows: and 1 CFR part 51 as of January 24, 1995 (60 proceeding by submitting written FR 2323, January 9, 1995). Copies may be Paragraph 6005 Class E airspace areas comments on the proposal to the FAA. extending upward from 700 feet or more obtained from Pemco Aeroplex, Inc., P.O. No comments to the proposal were Box 2287, Birmingham, Alabama 35201– above the surface of the earth. received. Class E airspace designations 2287. Copies may be inspected at the FAA, * * * * * Transport Airplane Directorate, 1601 Lind are published in paragraph 6005 of FAA Avenue, SW., Renton, Washington; or at the Order 7400.9C, dated August 17, 1995, AWP CA E5 Byron, CA [New] FAA, Small Airplane Directorate, Atlanta and effective September 16, 1995, which Byron Airport, CA Aircraft Certification Office, Campus is incorporated by reference in 14 CFR (Lat. 37°49′40′′ N, long. 121°37′27′′ W) Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62195

That airspace extending upward from 700 SUPPLEMENTARY INFORMATION: one CPA firm that represents used car feet above the surface within a 4.9-mile dealers; 11 and one consumer.12 radius of Byron Airport. I. Introduction II. The Regulation * * * * * On May 6, 1994, the Commission, in Issued in Los Angeles, California, on accordance with the RFA’s The Commission promulgated the November 21, 1995. requirements, and its own program to Used Car Rule under the authority of the James H. Snow, Federal Trade Commission Act, 15 review all its rules and guidelines U.S.C. 41 et seq. (‘‘FTC Act’’), and the Acting Manager, Air Traffic Division, periodically, published a Notice in the Western-Pacific Region. Magnuson Moss Warranty Act, 15 Federal Register soliciting comments on [FR Doc. 95–29350 Filed 12–4–95; 8:45 am] U.S.C. 2309, on November 19, 1984. 49 the Rule.1 The Notice solicited BILLING CODE 4910±13±M FR 45692 (1984). The Rule became comments about the impact of the Rule effective on May 9, 1985.13 A violation generally, and whether it had had a of the Rule constitutes an unfair or significant economic impact on small deceptive act or practice under the FTC FEDERAL TRADE COMMISSION entities,2 and, if so, whether the Rule Act, and one who violates the Rule is should be amended to minimize any 16 CFR Part 455 subject to civil penalties of up to such impact. The Notice also sought $10,000 per violation. Regulatory Flexibility Act and Periodic comment on certain proposed changes The Used Car Rule is primarily Review of Used Motor Vehicle Trade to the Rule. intended to prevent and to discourage Regulation Rule The Commission received 26 oral misrepresentations and unfair comments in response to the Notice.3 omissions of material facts by used car AGENCY: Federal Trade Commission. These comments came from eight used dealers concerning warranty coverage. ACTION: Final rule. car dealers; 4 four Attorneys General; 5 The Rule provides a uniform method for 6 written disclosure of warranty SUMMARY: The Commission announces four consumer protection groups; three trade associations; 7 one state information on a window sticker called that its review of the Used Car Rule (the the ‘‘Buyers Guide.’’ The Rule requires government; 8 one radio station; 9 one ‘‘Rule’’), which was conducted pursuant sellers to disclose on the Buyers Guide national distributor of Buyers Guides; 10 to the Regulatory Flexibility Act the basic terms and conditions of any (‘‘RFA’’), and the Commission’s review warranty offered in connection with the 1 program, has been completed. Having 59 FR 23647 (May 6, 1994) (‘‘the Notice’’). sale of a used car, including the 2 considered all of the issues raised For the purpose of the RFA review, a ‘‘small duration of coverage, the percentage of during the comment period, the entity’’ is a used motor vehicle dealer with less than $11.5 million in annual sales, as defined by the total repair costs to be paid by the Commission is now issuing non- Small Business Size Standards, 13 CFR 121.601. dealer, and the exact systems covered by substantive amendments to the Rule. 3 The comments were placed on the public record the warranty. The Commission is making several under category 23 (Regulatory Flexibility Act The Rule also requires certain other minor grammatical changes to the Review Comments) of Public Record Docket No. disclosures, including: a suggestion that Spanish language version of the Buyers P944202. References to the comments are made by means of the author and number of the comment consumers ask the dealer if a pre- Guide. Further, the Commission is and, when appropriate, the page of the comment. purchase inspection is permitted; a amending the Rule to permit dealers to Two of the comments were consumer complaints warning against reliance on spoken post Buyers Guides anywhere on a used that were inadvertently classified as comments. promises that are not confirmed in vehicle, instead of requiring that they be Although some comments were submitted shortly writing; and a list of fourteen major posted on a side window, provided the after the closing date of July 6, 1994, the Commission has included them in its analysis. systems of an automobile and the major Buyers Guide is conspicuously and 4 Chuck Gould, J.O.A. Motors Ltd., B–03; problems that may occur in these prominently displayed and both sides Anonymous South Carolina dealer, B–04; Karl systems. The Rule also provides that the can be easily read. Finally, the Kroeger, K&K Auto Sales, Inc., B–05; F. Whalen, B– Buyers Guide disclosures are Commission is amending the Rule to 06; Kenny Loveless, Northside Auto Sales, B–09; incorporated by reference into the sales allow dealers the option of obtaining a Mike Zibura, B–10; Lee S. Maas, Sun-West Audi, B– 18; Duane H. Wallace, Town & Country Chevrolet contract and govern in the event of an consumer’s signature on the Buyers Oldsmobile Inc., B–26. inconsistency between the Buyers Guide, if accompanied by a disclosure 5 Alaska Attorney General, Bruce M. Botelho, B– Guides and the sales contract. that the buyer is acknowledging receipt 01; Illinois Attorney General, Roland W. Burris, B– The public comments on the of the Buyers Guide at the close of the 08; Iowa Attorney General, William L. Brauch, questions asked in the Notice and the sale. Assistant Attorney General, B–15; Washington Attorney General, Christine O. Gregoire, B–17. additional information gathered during DATES: The effective date of these non- 6 National Coalition for Consumer Education the reviews are discussed below. substantive amendments will be January (‘‘NCCE’’), Carol Glade, Executive Director, B–12; III. Non-Substantive Amendments to 4, 1996. Office of Consumer Credit Commissioner, Richard R. Woodward, Examiner, B–16; National Consumer Spanish Language Version of the ADDRESSES: Requests for copies of the Law Center (‘‘NCLC’’), B–23; National Association Buyers Guide regulations and the notice of final, non- of Consumer Agency Administrators (‘‘NACAA’’), substantive amendments should be sent Lawrence A. Breeden, President, B–25. In the Notice, the Commission to Public Reference Branch, Room 130, 7 The National Independent Automobile Dealers proposed two non-substantive Federal Trade Commission, 6th and Association (‘‘NIADA’’), B–07; the Texas amendments to the Rule involving the Pennsylvania Ave., NW, Washington Automobile Dealers Association (‘‘TADA’’), B–11; the National Automobile Dealers Association 11 Hundman & Woodward, Carl Woodward, D.C. 20580. (‘‘NADA’’), B–19. C.P.A., B–21. FOR FURTHER INFORMATION CONTACT: 8 Michigan Department of State, Jeff Villaire, 12 Jay R. Drick, Esq., B–25. As indicated earlier, George Brent Mickum IV, Attorney, Director, Dealer Division, Bureau of Automotive two of the comments were consumer complaints Federal Trade Commission, Division of Regulation, B–14. that were misclassified as comments. Warren and 9 WBBM Newsradio 78, Naomi Hood, Director, B– Irma Muncey, B–02; Sam A. Amato, B–22. Enforcement, Bureau of Consumer 13. 13 Two states, Wisconsin and Maine, subsequently Protection, Washington, D.C. 20580, 10 Reynolds & Reynolds, Joe Hurr, Director, petitioned the Commission and received (202) 326–3132. Automotive Forms Marketing, B–20. exemptions pursuant to section 455.6 of the Rule. 62196 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

Spanish language version of the Buyers associated with the Rule seem to be these organizations suggested amending Guide, Section 455.5 of the Rule. The reasonable.18 the Rule in ways they contend would Commission received three comments NCCE noted that because young provide even more protection to favoring the changes and none in people and consumers with limited consumers. opposition.14 The Commission has thus resources are the major purchasers of No evidence was adduced during this determined to adopt the proposed used cars, objective, reliable, point-of- review that contravenes the amendments.15 The first change is sale information is essential to an Commission’s 1984 findings, and no grammatical: the ‘‘As Is’’ (‘‘Como Esta- effective consumer decision. The persuasive reasons were advanced in Sin Garantia’’) section of the Buyers comment stated that the FTC Used Car the comments that would suggest that Guide reads ‘‘El vendedor no asume Rule provides information to consumers reconsideration is appropriate. The ninguna responsabilidad por cualquier that assists them in making a wise and dealer comments favoring repeal of the las reparaciones ** *’’ (emphasis well informed decision, stimulates Rule because it is burdensome are added). This language is amended to comparison shopping, and stimulates conclusory and contradicted by other read: ‘‘El vendedor no asume ninguna the competitive spirit of our free comments. For example, Reynolds & responsabilidad por cualquier enterprise system.19 Michigan’s Reynolds, a publisher of Buyers Guides, reparacion * * *’’ The second change Department of State noted that the noted that the average cost of a Buyers appears in the ‘‘Warranty’’ (‘‘Garantia’’) longer the Rule is in place, the more the Guide is 7.6 cents. It also noted that section of the Buyers Guide. The word public becomes aware of issues because the compliance costs are so ‘‘vendedo’’ in the second full sentence regarding warranty coverage and small they are usually absorbed and is amended to ‘‘vendedor.’’ extended service agreements.20 NCLC rarely passed on to the purchaser.26 Consequently, the sentence is also and NACAA noted that the Rule allows Accordingly, because the Rule is amended to read ‘‘Pida al vendedor una consumers an opportunity to see what achieving its objectives and is cost copia del documento * * *.’’ warranty protection is available and to effective, the Commission is retaining compare warranty coverage among the Rule. IV. Responses to the Federal Register vehicles and dealers.21 The Iowa Question Two Notice Attorney General noted that because Question One motor vehicle designs are growing What changes, if any, should be made increasingly complex and repairs more to the Rule to increase the benefits of Is there a continuing need for the expensive, warranty coverage is of the Rule to purchasers? Rule? increasing importance to motor vehicle a. How would these changes affect the a. What benefits has the Rule purchasers.22 Consequently, the Rule costs the Rule imposes on firms subject provided to purchasers of the products provides the consumer with valuable to its requirements? or services affected by the Rule? information. The comments responding to this question are discussed category-by- b. Has the Rule imposed costs on ii. Discussion. In the original category below. purchasers? rulemaking, the Commission found that i. Summary of Comments. The ‘‘many used car dealers mislead A. Disclosing Defects consumers into believing that they have comments from the eight dealers and i. Summary of Comments. Many broad post-purchase warranty coverage the CPA firm (its clients are dealers) all comments suggested general changes to when in fact consumers receive limited favored rescinding the Rule. They stated the Rule to increase its effectiveness for or no warranty protection * * *. In that the Rule places an enormous consumers. Six comments many cases dealers make verbal burden on small businesses. Generally, recommended that the Rule require promises to repair defects after sale that these dealer comments 16 and the CPA dealers to make written disclosure of are contradicted by final written firm 17 contended that the consumer 27 23 known defects in all ‘‘As-Is’’ sales. benefit derived from the Rule was not contract terms * * *.’’ The Commission concluded that the Texas’s Consumer Credit Commissioner justified by the cost of displaying the suggested amending the Rule to inform form, and that consumers pay no ‘‘practices are pervasive and among the chief sources of complaints received by consumers that ‘‘As-Is’’ does not mean attention to the Buyers Guide. None of dealers can sell vehicles with material various consumer protection these comments provided any specific defects.28 organizations around the country.’’ 24 information in support of their ii. Discussion. In the original Although the trade associations contentions. rulemaking, after carefully considering asserted that some of the the issue, the Commission decided not All of the other comments, including aforementioned problems have abated, to require disclosure of known defects those from dealer trade associations, other comments suggested that some of because it ‘‘concluded that the known stated that the Rule is beneficial and these problems continue to occur. Used that there is a continuing need for the car complaints continue to be among the numerous consumer complaints. In surveys of Rule. Both NADA and NIADA reported most frequent type of complaints that the Rule has helped avoid NACAA members conducted in 1992 and 1993, received by consumer protection groups auto sales were in the top five complaint categories. confusion regarding warranty coverage, across the country,25 and the majority of A report issued by the Council of Better Business and that the Buyers Guide is beneficial Bureaus revealed that in 1993 auto sales problems were the fifth most frequent complaint made to to both customers and dealers. Both 18 See, e.g., NIADA Comment, B–7 at 2. BBBs nationwide. NAAG has also released 1993 NADA and NIADA stated that the costs 19 B–12 at 1. The comment indicates that the statistics which list automobiles (including sales Commission’s objectives in promulgating the Rule and service) as the third largest category of 14 NIADA, B–7 at 1; TADA, B–11 at 3; NACAA, have, in large part, been achieved. complaints.’’ B–24 at 1. 20 B–24 at 3. B–14 at 1. 26 B–20 at 1. 21 15 Dealers may use up existing stocks of the NCLC, B–23 at 1; NACAA, B–24 at 1–2. 27 Alaska AG, B–01 at 1–2; Illinois AG, B–08 at current version of the Spanish Buyers Guide. 22 B–15 at 2. 1; WBBM Newsradio, B–13 at 1; Michigan 16 B–05 at 1; B–06 at 1; B–09 at 1; B–18 at 1; B– 23 SBP, 49 FR 45692, 45702 (Nov. 19, 1984). Department of State, B–14 at 1; Office of Consumer 26 at 1. 24 Id. Credit Commissioner, B–16 at 1; NACAA, B–24 at 17 B–21. Henceforward, all references to the dealer 25 For example, NACAA’s comment notes that 2–3. comments will include this comment. ‘‘[a]uto sales consistently rank among the most 28 B–16 at 1. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62197 defects disclosure requirement will not contended that enforcement of the Rule no benefit unless dealers also are provide used car buyers with a reliable would be easier because the absence of required to keep signed copies, any source of information concerning a car’s a signed Buyers Guide in the dealer’s omissions thereby demonstrating mechanical condition and that the records would create the inference that noncompliance. However, the provision would be exceedingly no Buyers Guide was provided. Further, Commission does not believe the difficult to enforce.’’ 29 The Commission the dealer copy would be evidence of benefits of a mandatory signing determined that the warranty and ‘‘As- the warranty disclosures that were requirement along with a recordkeeping Is’’ disclosures—along with the made. On the other hand, NCLC provision are likely to justify the costs warnings about spoken promises and suggested that some dealers already those requirements would impose.36 the pre-purchase inspection notice—are have consumers sign the back of the Dealers, however, may want to obtain effective remedies for the deceptive Buyers Guide at the close of the deal in signatures and maintain copies of the practices occurring in the used car an attempt to cover themselves for Buyers Guide in their files. The industry.30 No new information was failing to post Buyers Guides in vehicles Commission staff’s enforcement advice provided in this review on whether earlier as required by the Rule.34 NCLC permits this, but such advice is not provisions requiring disclosure of stated that such a requirement could necessarily widely known. The known defects provide substantial undermine the intent of the Rule Commission, therefore, is amending the information benefits in practice, nor did because signing a piece of paper, Rule to allow an optional signature line the Commission staff’s independent perhaps as part of signing a stack of on the back of the Buyers Guide. To review of available information papers at closing, does not prove that ensure that the customer’s signature is contradict this determination.31 The the Buyers Guide was posted on the not misused, and to put dealers on only pertinent evidence regarding this vehicle, that the Buyers Guide was notice that obtaining a signature does issue relates to Wisconsin’s experience given to the consumer at an appropriate not satisfy all of the Rule’s with its statute. time, or that the buyer was apprised of requirements, the optional signature The SBP indicates that during the the warranty terms. line is permitted only when original rulemaking the Commission ii. Discussion. In initially approving accompanied by language in immediate examined Wisconsin’s experience with the form of the Buyers Guide, the proximity to the line stating: ‘‘I hereby its used car rule, which requires dealers Commission determined that ‘‘a uniform acknowledge receipt of the Buyers to inspect their cars and to disclose the method of disclosure will alleviate Guide at the closing of this sale.’’ 37 confusion and possible deception which results of the inspection. This C. Scope of the Rule examination revealed that 51% of might result from inconsistent versions Wisconsin consumers still ultimately of the Buyers Guide.’’ SBP at 45709. 1. Private Sales experienced repair problems not Consequently, the Rule does not allow NIADA suggested that the FTC require identified at the time of purchase.32 dealers to modify the format of the that everyone display a Buyers Guide in The Commission was aware of this Buyers Guide. In response to dealer any used motor vehicle that is information when it promulgated the requests, however, staff has informed advertised for sale.38 This issue was Rule. There is no new evidence dealers, through informal staff opinion thoroughly considered during the indicating that reliable information letters, that staff was not likely to original rulemaking. As noted in the would be disclosed if such a provision recommend enforcement actions against SBP, private parties generally do not were required or that efficient a dealer asking for a consumer’s offer warranties, and therefore, at least enforcement would be feasible. Based signature on the back of the Buyers as to this issue, it is unlikely that there on the foregoing, the Commission has Guide. would be any misunderstandings. Also, determined that changing its original Allowing a signature to be obtained on the back of the Buyers Guide was position on defect disclosures is 36 The issue of requiring dealers to maintain unnecessary. permitted to assist dealers who wanted copies of the Buyers Guide was considered in the protection against consumer claims that original proceeding. In an effort to minimize the B. Requiring Dealers To Keep Copies of they had failed to provide Buyers Rule’s recordkeeping requirements, the Commission 35 decided not to require dealers to maintain copies. the Buyers Guide and Requiring a Guides, as required by law. From the The primary thrust of the Rule was to provide pre- Signature Line dealers’ perspective, one effective way sale information about warranty coverage and to to document that a Buyers Guide was ensure that a copy of the Buyers Guide was given i. Summary of Comments. Both to the purchaser. The Commission concluded the NACAA and the Iowa Attorney General received by a consumer is to obtain the Rule would achieve these results without a suggested amending the Rule to require consumer’s signature and keep a copy of recordkeeping requirement. Dealers, of course, are dealers to obtain a consumer signature the signed Buyers Guide in their files. free to maintain whatever records they believe are Thus, there is now considerable appropriate, and many in fact do keep copies. on the Buyers Guide to ensure receipt of Further, recent legislation amending the Paperwork the document, and to retain copies of incentive for dealers to obtain Reduction Act requires agencies to attempt to the signed Buyers Guide.33 Both signatures. Requiring a signature to be reduce the paperwork burden associated with their obtained appears unnecessarily regulations. Adding a recordkeeping requirement would constitute a new paperwork burden. 29 Id. at 45712. burdensome. 37 Dealers are advised that the customer’s 30 The Commission also notes that the Id. signature will be viewed merely as an 31 For example, a literature search for economic presence or absence of a signature on a acknowledgement that the customer has received research on ‘‘defects disclosures’’ turned up two Buyers Guide, by itself, does little to the Buyers Guide, which is only one of a dealer’s titles, one an FTC working paper, the other a ensure that the Buyers Guide will be duties under the Rule. The dealer is still dissertation from a student at the University of posted as required by the Rule. There is responsible for ensuring that posting occurs when Wisconsin. The two studies both use data from the a vehicle is offered for sale. Further, the dealer has 1970’s (pre-Used Car Rule SBP) and neither finds the responsibility to ensure that any warranty terms a beneficial effect of the disclosures on the used car 34 B–23 at 8–9. that the dealer and the buyer negotiate are reflected market. 35 Although some dealers only give consumers the on the Buyers Guide, as required by section 455.3(a) 32 During the rulemaking, the Commission Buyers Guide at closing and do not post, of the Rule. This is a non-substantive amendment considered the results of a study conducted in Commission investigations reveal that some that does not require Magnuson-Moss rulemaking Wisconsin, involving surveys of both dealers and consumers claim that they were not provided with procedures, as specified in section 18 of the FTC consumers. See, e.g., SBP at 45712. a copy of the Buyers Guide, when, in fact, they Act, 15 U.S.C. 57a. 33 B–24 at 3; B–15 at 3–4. were. 38 B–7 at 3. 62198 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations enforcing the Rule in private sales Further, the rulemaking record a vehicle has been rebuilt from salvaged would not be cost effective. NIADA reflected that used cars sold as vehicles. These individuals obtain offered no data that would contradict demonstrators were subject to dealer salvaged vehicles, restore them, and the findings in the SBP. Thus, the oral misrepresentations. Thus, there was then transport them to a state that does Commission has determined that a substantial justification on the record not require the title to show that a proceeding to amend the Rule to for including demonstrators within the vehicle has been salvaged. There, a include private sales under the Rule is scope of the Rule.46 Consequently, the clean title with no reference to the fact unnecessary. Commission defined a ‘‘used vehicle’’ as that a vehicle has been salvaged is ‘‘any vehicle driven more than the 2. Demonstrators obtained. The vehicle may then be taken limited use necessary in moving or road to any state, even a state that requires i. Summary of Comments. NADA testing a new vehicle prior to delivery. a salvage disclosure, and be retitled and suggested that Buyers Guides not be * * *’’ 47 In adopting this definition, sold as a used vehicle without required on ‘‘demonstrator’’ vehicles, the Commission was aware that the term disclosing that it was a salvaged vehicle. because such vehicles also are required would cover demonstrators, and that the The Used Car Rule, however, only to have a new car Monroney Label that definition was broader than the addresses warranty coverage, not the cannot be removed until after the definition employed in some states, source of car parts, which is the vehicle is sold at retail.39 The purpose which rely on titling to determine underlying issue with vehicles rebuilt of the Monroney label is to provide whether a vehicle is used. Because of from salvaged parts. Even if the Rule consumers with the manufacturers’ the Commission’s prior consideration of were amended to require Buyers Guides suggested retail price for the vehicle, this issue and the fact that the for such vehicles, consumers still would and a list of the optional equipment that Monroney Label does not serve the not have information about the vehicle’s comes with the vehicle. NADA believes purposes the Buyers Guide was history. Further, because the vehicle that the Buyers Guide, when combined designed to address, the Commission could be sold ‘‘As-Is’’ or with a limited with the Monroney Label, confuses has determined that amending the warranty of short duration, a Buyers customers without providing additional Rule’s coverage of demonstrators is Guide is unlikely to provide the desired useful information. It stated that all unnecessary. protection for individuals purchasing demonstrators are covered by factory 3. Salvage Vehicles vehicles rebuilt from salvaged parts. new vehicle warranties, and This problem is best addressed by the manufacturers require dealers to review Iowa’s Attorney General suggested states or by federal legislation,51 and not the warranty coverage of new vehicles that the Commission amend the Rule to by an amendment to the Rule. To the with the customer at the time of cover sales of vehicles on salvage or extent that consumers want or need to 40 48 delivery. equivalent certificates of title. The know that the vehicle they are ii. Discussion. ‘‘Demonstrator’’ Rule excludes from the definition of a purchasing is constructed from a vehicles are considered ‘‘used’’ under ‘‘used vehicle’’ ‘‘any vehicle sold only salvaged vehicle or vehicles, the more the Rule because they have been driven for scrap or parts (title documents appropriate and effective remedy would for purposes other than test driving or surrendered to the State and a salvage be uniform laws regarding the way moving.41 However, for purposes of the 49 certificate issued).’’ Addressing this salvage vehicles are required to be Monroney Act they are ‘‘new’’ because issue in the SBP, the Commission titled. For these reasons, the they have not been titled.42 In stated: Commission has determined that it is promulgating the Used Car Rule, the Insofar as a vehicle is sold for its parts and unnecessary to amend the Buyers Guide Commission expressly rejected defining not as an operating vehicle, there appears to to indicate that a vehicle has been whether a vehicle is new by virtue of be no need to provide consumers with the salvaged. titling laws.43 The Commission kind of information customarily used to determined that the definition of a used evaluate an automobile as a means of 4. Leased Vehicles personal transportation. Accordingly, the vehicle should be consistent with the NCLC suggested that the Rule be Commission’s decision in Peacock definition of ‘‘used vehicle’’ specifically 50 amended to cover leased used Buick, Inc.44 The Peacock order excludes those cars sold only for salvage. vehicles.52 The comment, however, did prohibits the defendants from Although the Iowa AG’s comment not provide information indicating the ‘‘[r]epresenting * * * that any vehicle is does not discuss the reasons why the leasing of used vehicles is particularly new when it has been used in any Rule should be extended to include pervasive or fraught with the same types manner, other than the limited use salvaged vehicles, the Commission is of problems the Commission found were necessary in moving or road testing a aware that the sale of salvaged vehicles associated with the sale of used cars. vehicle prior to delivery of such vehicle is viewed as a problem in some parts of Other than NCLC’s suggestion, there is to the customer.’’ 45 the country. This occurs because no evidence on the record to suggest a unscrupulous individuals take need for the Commission to initiate a 39 Under the Monroney Act, 15 U.S.C. 1231–33, advantage of state laws that do not proceeding to amend the Rule. The new vehicles must display a document (called the require titling documents to show that Monroney Label) that contains the manufacturer’s Consumer Leasing Act, among other price, all optional equipment on the vehicle, the things, requires lessors to disclose in location of the dealer to whom the vehicle was 46 See SBP at 45707. Demonstrators include shipped, and the Vehicle Identification Number of dealer-licensed vehicles that can have thousands of writing who is responsible for repairs the car. miles on them. These vehicles have only the period and maintenance on the vehicle and 40 B–19 at 2. of new car warranty coverage that remains on the 41 See 16 CFR 455.1(d)(2). vehicle at the time of purchase, not the full 51 The Final Report of the Motor Vehicle Title, 42 15 U.S.C. 1231(d). manufacturer warranty that comes with the Registration, and Salvage Advisory Committee, 43 In adopting the Rule, the Commission stated purchase of a new car. Thus, consumers may wish submitted by a Presidential Task Force on February that ‘‘many states, for the purpose of titling laws, to negotiate with the dealer for additional warranty 10, 1994, proposes federalizing the definition of a identify as ‘new’ vehicles for which title has not coverage. salvage vehicle to prevent the practice of allowing passed to a purchaser despite extensive use of the 47 16 CFR 455.1(d)(2). salvage vehicles to be retitled in states that do not vehicle as a demonstrator model.’’ SBP at 45707. 48 B–15 at 3. require disclosure on the title certificate that a 44 86 F.T.C. 1532 (1975). 49 16 CFR 455.1(d)(2)(emphasis added). vehicle is a salvaged vehicle. 45 86 F.T.C. at 1566. 50 SBP at 45707. 52 B–23 at 3. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62199 whether warranties or service contracts contain any extra protections set forth in the ‘‘As-Is No Warranty’’ notice on the are available.53 Pursuant to that Act, if the contract. In fact, the Rule places an Buyers Guide could conflict with UCC a warranty is offered the complete terms affirmative duty on dealers to ensure protections and mislead consumers into must be set forth in writing. The that the Buyers Guide reflects the actual believing that any express oral warranty Commission’s research into the market terms negotiated. Section 455.3(b) of the is voided when the dealer provides an for used leased vehicles indicates that Rule states that the ‘‘information on the ‘‘As-Is No Warranty’’ Buyers Guide.62 most used vehicles that are leased come final version of the window form is Moreover, NCLC contends that a dealer with warranties. Thus, lessors are incorporated into the contract * * *’’ might make oral warranties which are required to provide the same type of (emphasis added),57 and section 455.4 recognized by state law, but later use the information required by the Used Car states that ‘‘[A]ny final warranty terms ‘‘As-Is No Warranty’’ language on the Rule (although not via a window sticker agreed upon * * * must be identified in Buyers Guide as evidence that no oral format). Accordingly, the Commission the sales contract and summarized on warranties had been offered. has determined that the suggested the copy of the Buyers Guide given to NACAA similarly stated that: change is unnecessary. the buyer.’’ 58 Accordingly, there will be no conflict where the dealer complies In many jurisdictions, oral or written D. Amend Language That the Buyers representations (other than [those found on] with the Rule. Where the dealer does the ‘‘Buyers Guide’’) are enforceable. To Guide Controls in the Event of a not, and the Buyers Guide contains the Discrepancy remedy this conflict, the [R]ule should be ‘‘As-Is’’ statement, there usually will be changed to say that while dealers may not i. Summary of Comments. NCLC ample evidence that this was not a make any statements or take any actions that suggested changing the language in ‘‘final’’ Buyers Guide reflecting the would be contrary to the disclosures required Section 455.3(b) of the Rule, which terms negotiated.59 in §§ 455.2 and 455.3, the ‘‘Buyers Guide’’ incorporates the Buyers Guide into the For these reasons, the Commission may not be used to disclaim any rights that written contract by reference and has determined that action to amend the consumers may be able to assert under state 63 provides that the Buyers Guide controls Rule in this regard is unnecessary. or local law* * *. in the event of any discrepancy. NCLC E. ‘‘AS-IS’’ Version of the Buyers Guide In addition, NCLC stated that the stated that the requirement that the May Be Depriving Consumers of Oral or warranty section of the Buyers Guide Buyers Guide overrides any contrary Implied Warranty Rights Under UCC or should be changed. The comment provisions is too broad and might in State Law pointed out that a warranty, as defined some cases have the Buyers Guide i. Summary of Comments. NCLC in § 455.1(d)(5), is an undertaking in override greater protections in the recommended that the Commission writing to refund, repair, replace, contract.54 NCLC preferred language clarify use of the word ‘‘warranty,’’ as maintain, or take other action with saying that if there are contrary used on the Buyers Guide. The respect to the vehicle.64 NCLC noted, provisions in the contract, the provision comment notes that, under the UCC, however, that the form language written that offers the greatest warranty oral express warranties may be given in on the Guide speaks only in terms of protection to the consumer is an individual transaction, repair. It does not appear to allow any applicable.55 notwithstanding that written warranties option of refund, replacement, ii. Discussion. The purpose of the are not provided.60 Consequently, NCLC maintenance, or other action. NCLC disclosure in Section 455.3(b) is to believed that the term ‘‘As-Is No suggested that the Buyers Guide be provide consumers with protection by Warranty’’ on the Buyers Guide is changed to reflect that these as well as allowing information to be considered confusing, because, pursuant to the other remedies are options.65 that might otherwise not be considered Rule’s definition, the term ‘‘No under contract law. Specifically, Warranty’’ only means no written As a corollary to the foregoing warranty.61 Therefore, NCLC contended discussion, several comments By integrating the Buyers Guide within the contended that the most frequently used ‘‘four corners’’ of the used car sales contract, 57 Section 455.3(a) states that the dealer must version of the Buyers Guide—having the Commission intends that the Buyers only ‘‘AS-IS-NO WARRANTY’’ and Guide become part of the written agreement provide the buyer with a Buyers Guide containing between buyer and seller, so that, in the all of the disclosures required by the Rule, ‘‘and ‘‘WARRANTY’’ designations— reflecting the warranty coverage agreed upon.’’ event of disputes between buyers and sellers, encourages dealers to sell cars without 58 SBP at 45711 (emphasis added). the information on the Buyers Guide would warranties. This version of the Buyers 59 Other documents generated in used car sales fall outside the exclusions of the parol transactions also would be pertinent to a decision Guide provides dealers with two evidence rule of contract law.56 whether a Buyers Guide reflects the ‘‘final version’’ choices, either to give an express The NCLC comment envisions a of the deal negotiated between the buyer and the written warranty or to sell the car ‘‘As- dealer. For example, the Warranty Disclosure Rule Is’’ (with no express or implied situation where, for example, a written requires that consumers be given written contract offers a warranty but the Buyers information regarding warranty terms and coverage. warranties). An alternate ‘‘Implied Guide is marked ‘‘As-Is’’ and then It also provides that written warranty terms become Warranties Only’’ Buyers Guide is incorporated into the contract, negating ‘‘part of the basis of the bargain between the provided for in § 455.2(b)(ii) for use in supplier and the buyer . . .’’ 16 CFR section those states that prohibit ‘‘As-Is’’ sales. or overriding the warranty described in 701.1(c)(2) Thus, if warranty documents are the contract. Because the Rule states considered part of the contract, and a Buyers Guide that the Buyers Guide controls, the indicates that a vehicle was sold ‘‘As-Is,’’ the that appears in the Magnuson-Moss Warranty Act, consumer could, theoretically, be warranty documents would appear to be evidence 15 U.S.C. 2301(6)(B). See SBP at 45709 (‘‘These that the Buyers Guide did not reflect the final deal, subsections define the terms ‘warranty,’ ‘implied without recourse. However, the and the language in section 455.3(b) of the Rule warranty,’ and ‘service contract’ in a manner which Commission has never encountered this would not be controlling. conforms to the definitions of those terms in the problem, most likely because the Buyers 60 B–23 at 2. Magnuson-Moss Warranty Act’’). Guide, if conforming to the Rule, should 61 Under the Rule, ‘‘warranty’’ means ‘‘any 62 According to NCLC, the UCC allows dealers to undertaking in writing, in connection with the sale disclaim implied warranties (i.e., sell a vehicle ‘‘As- by a dealer of a used vehicle, to refund, repair, 53 Is’’ and still make statements about the car that 15 U.S.C. 1667 et seq.; see also 12 CFR 213. replace, maintain or take other action with respect 54 create oral express warranties). B–23 at 2. B–23 at 2. to such used vehicle and provided at no extra 55 Id. charge beyond the price of the used vehicle.’’ NCLC 63 B–24 at 2. 56 SBP at 45710. noted that the definition is very similar to the one 64 B–23 at 8–9. 65 Id. 62200 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

To remedy the problem, NCLC disclose preconditions to a valid that dealers must provide pursuant to suggested that the Buyers Guide be disclaimer of implied warranties rule 701. The Buyers Guide refers to revised to include an ‘‘Implied peculiar to Washington State Law.69 these documents in the ‘‘Warranty’’ box Warranties Only’’ section on the ‘‘As-Is’’ ii. Discussion. The Buyers Guide on the Buyers Guide: ‘‘ASK THE version of the Buyers Guide.66 If this focuses on written warranties because DEALER FOR A COPY OF THE revision were adopted, the Buyers during the rulemaking the Commission WARRANTY DOCUMENT FOR A FULL Guide would give dealers the option of found that oral promises made during EXPLANATION OF WARRANTY checking one of three boxes: ‘‘As-Is No used car sales were frequently COVERAGE, EXCLUSIONS, AND THE Warranty,’’ ‘‘Implied Warranties Only,’’ contradicted by the written documents, DEALER’S REPAIR OBLIGATIONS.’’ and ‘‘Warranty.’’ The comments and that the parol evidence rule NCLC also suggested reformatting the contended that most consumers do not operated to exclude the admissibility of Buyers Guide to include ‘‘As-Is,’’ know that implied warranties are oral promises contradicted by a written ‘‘Implied Warranties Only,’’ and available as a form of legal redress.67 If contract.70 In the SBP, the Commission ‘‘Warranty’’ sections on the same Buyers all versions of the Buyers Guide recognized that ‘‘As-Is’’ purchases could Guide. The purpose would be to contained an ‘‘Implied Warranties operate to exclude other contractual increase consumer awareness of implied Only’’ provision, or at least alerted rights. The Commission stated that: warranty rights and the likelihood that consumers that implied rights exist, consumers purchasing ‘‘as-is’’ but relying on implied warranty rights could be consumers would be on notice that they contradictory oral promises are stripped of negotiated. There is no evidence that may be forsaking possible legal redress the protection afforded by either express or suggests, however, that including to which they would otherwise be implied warranties and, at the same time, ‘‘Implied Warranties Only’’ as a third entitled but for the dealer’s decision to have no legal recourse against the dealer option on the Buyers Guide would sell the vehicle ‘‘As-Is.’’ Consumers then because prior or contemporaneous oral encourage consumers to negotiate for might attempt to negotiate a better statements that contradict final written warranty coverage more than they contract terms are generally not legally warranty agreement with the dealer than binding.71 presently do, as NCLC suggests. Nor is an ‘‘As-Is’’ deal. Also, some dealers there any evidence that supports the might even choose to offer implied To address this problem, the assertion that dealers would choose this warranties rather than use ‘‘As-Is’’ sales Commission sought to put consumers option over the ‘‘As-Is’’ option if it were if they were given an easy choice and on notice that they should be wary of displayed on the Buyers Guide. did not have to use a special form or oral promises. Immediately under the Comments such as the Washington make a substitution on the form. If their words ‘‘Buyers Guide,’’ on both forms of Attorney General’s indicated a desire to only choice is ‘‘As-Is’’ or an express the Buyers Guide, is the following alert consumers that implied warranties warranty, NCLC contends, dealers language: ‘‘IMPORTANT: SPOKEN exist. Others suggested adding language nearly always choose to sell vehicles PROMISES ARE DIFFICULT TO that categorically states that implied ‘‘As-Is.’’ 68 ENFORCE. ASK THE DEALER TO PUT warranties are unavailable in ‘‘As-Is’’ Washington’s Attorney General ALL PROMISES IN WRITING. KEEP sales.72 The ‘‘Warranty’’ section of the asserted that the Rule should only allow THIS FORM.’’ In addition, the ‘‘As-Is’’ Buyers Guide contains the following use of the ‘‘Implied Warranties Only’’ box contains the following statement: language: ‘‘UNDER STATE LAW, version of the Buyers Guide, because, ‘‘YOU WILL PAY ALL COSTS FOR ‘IMPLIED WARRANTIES’ MAY GIVE given the choice to sell with a warranty ANY REPAIRS. The dealer assumes no YOU EVEN MORE RIGHTS.’’ The or ‘‘As-Is,’’ dealers opt simply to check responsibility for any repairs regardless existing language alerts consumers that off the ‘‘As-Is’’ provision. The of any oral statements about the the other option to an ‘‘As-Is’’ sale is Washington State Attorney General vehicle.’’ The warnings on the Buyers one with a warranty, and that, along stated that the ‘‘As-Is’’ provision may Guide and its admonition to put all with an express warranty, the buyer provide an unintended shield for some promises in writing help consumers by may receive even more rights (implied unscrupulous dealerships that fail to giving them information they can use to warranties) under state law. Similarly, use required procedures for disclaiming ensure they have enforceable rights. amending the ‘‘As-Is’’ portion of the implied warranties under Washington Thus, the changes suggested by NCLC Buyers Guide to state that implied contract law. The comment stated that (e.g., to revise the ‘‘As-Is No Warranty’’ warranties are never available in an Washington consumers are not generally title to ‘‘As-Is No Written Warranty’’) are ‘‘As-Is’’ transaction would likely create aware that, under Washington law, their not necessary. Such changes could lead confusion in states such as Washington, waiver of the implied warranty of to more uncertainty and disputes about where implied warranties must be merchantability must be knowing and warranty coverage. The Commission knowingly waived.73 Further, such voluntary. Warranty terms or the continues to advise that consumers get language would misstate the law when absence of implied warranties must be any promises in writing, rather than a service contract is sold with a the subject of explicit negotiations trying to prove later that a dealer orally vehicle.74 between the parties (written disclaimers promised to make repairs. Although some consumers are not are not enough). The Rule does not NCLC also suggested that the Buyers aware that implied warranties are Guide be revised to reflect that options available under state laws, many states 66 NCLC also suggested amending the ‘‘As-Is’’ box other than repair are available. permit ‘‘As-Is’’ sales and do not require on the Buyers Guide to include language that made However, repair is the most common disclosures or preconditions to such clear that an ‘‘As-Is’’ sale precludes implied remedy offered by dealers. Dealers, of sales. The problem presented by the warranties. B–23 at 5. course, are free to offer other options on 67 An implied warranty of fitness indicates that a the Buyers Guide, if they choose. car ‘‘is reasonably fit for and adapted to the 72 NCLC, B–27 at 5. purposes for which it was purchased, i.e., a vehicle Further, the Buyers Guide does not take 73 See also discussion relating to Part IV, Question that will carry a driver and passenger with the place of the warranty documents 5, infra. reasonable safety, efficiency and comfort.’’ Berg v. 74 The Buyers Guide states: ‘‘IF YOU BUY A Stromme, 79 Wn.2d 184, 195, 484 P.2d 380 (1971). 69 B–17 at 2. SERVICE CONTRACT WITHIN 90 DAYS OF THE The Berg court uses the word fitness 70 See UCC 2–202. TIME OF SALE, STATE LAW ‘IMPLIED interchangeably with merchantability. WARRANTIES’ MAY GIVE YOU ADDITIONAL 68 B–23 at 8. 71 SBP at 45698 (footnote omitted). RIGHTS.’’ Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62201

Washington Attorney General is that there is no private remedy under a. How would these changes affect the somewhat unique insofar as it pertains the FTC Act.79 benefits of the Rule? to implied warranties, and might be For the foregoing reasons, the b. Would such changes adversely addressed more effectively under state Commission is taking no action on the affect the competitive position of larger law. For the foregoing reasons, the recommendation. firms? Commission has determined to take no Questions Three, Four, Seven, Eight, Question Eleven action on the suggested change. Nine, and Eleven How many used car dealers have F. Private Right of Action Questions 3, 4, 7, 8, and 9 all deal under $11.5 million in annual sales? generally with the costs and burdens i. Summary of Comments. No i. Summary of Comments. NCLC and that may be associated with the Rule. comment furnished any information Jay Drick suggested that the Commission Consequently, they are addressed about how many dealers have sales create a private right of action for together to avoid repetition. Question 11 under $11.5 million, which is how a 75 violation of the Rule. NCLC noted that is also included in this section because small used motor vehicle dealer is currently, a consumer has a cause of it deals with the number of small firms defined by the Small Business action for violations of the Magnuson- that are affected by the Rule. Administration. Based on the Moss Warranty Act, but no equivalent Commission’s experience in conducting Question Three cause of action for violations of the inspections and investigations, the Rule.76 These comments suggested that What significant burdens or costs, Commission believes that the the Rule state that a violation of the including costs of compliance, has the overwhelming majority of independent Rule is a violation of the Magnuson- Rule imposed on firms subject to its used car dealers have annual sales Moss Act, which affords a private legal requirements? under $11.5 million, and thus are small remedy in both state and federal courts. a. Has the Rule provided benefits to entities for purposes of the RFA NCLC stated that, if necessary, the such firms? analysis. Franchised dealers that sell language of the Magnuson-Moss Question Four used cars, in contrast, are likely to have Warranty Act could be amended to annual sales in excess of $11.5 million, make this clear. According to these What changes, if any, should be made but their sales figures would include comments, a private right of action for to the Rule to reduce the burdens or new car as well as used car sales. violation of the Rule would increase costs imposed on firms subject to its Only a few comments addressed dealers’ accountability for violating the requirements? whether changes to the Rule—short of Rule.77 a. How would these changes affect the rescinding the Rule altogether 80—would benefits provided by the Rule? ii. Discussion. The actual value of a reduce the costs imposed on small and private cause of action for buyers Question Seven large firms. TADA contended that requiring a Spanish Buyers Guide to be against dealers for violating the Used What significant burdens or costs, posted on every used vehicle in Car Rule is unclear. It would be difficult including costs of compliance, has the addition to the English Buyers Guide, for consumers to prove and quantify the Rule imposed on small firms subject to where sales are conducted in Spanish, injury or damages sustained as a its requirements? is burdensome to dealers, and it consequence of a Rule violation for a. How do these burdens or costs therefore recommended that dealers be failing to post a Buyers Guide or for differ from those imposed on larger 78 permitted to provide a Spanish Buyers some other violation of the Rule. In firms subject to the Rule’s requirements? enforcing compliance with the Rule, the Guide to the consumer only when the 81 Commission has relied on injunctions Question Eight transaction is being consummated. and civil penalties to stop violations To what extent are the burdens or NIADA suggested that the burdens and provide deterrence. costs that the Rule imposes on small related to compliance are greater for firms similar to those that small firms small dealerships because larger Even if a private right of action would dealerships have more personnel to be useful, the Commission has no would incur under standard and prudent business practices? assist in the preparation and processing apparent authority to create one. There of paperwork related to car sales.82 is no private right of action for violation Question Nine of any FTC rule promulgated under the 80 What changes, if any, should be made For example, two comments from independent Magnuson-Moss Act. In addition, dealers contended that the Rule and the posting to the Rule to reduce the burdens or federal courts consistently have held requirement place an unnecessary burden on costs imposed on small firms? dealers. They stated the Rule creates extra, and unneeded, steps in processing a vehicle sale 75 B–23 at 1–2, B–25 at 1 (a consumer and 79 The Circuit Court for the District of Columbia, transaction. No quantification for the assertion was attorney). in Holloway v. Bristol-Myers Corp., 485 F.2d 986, provided, however. B–03 at 1, B–26 at 1. One of the 76 B–23 at 1. 988–89 (D.C. Cir. 1973), and other federal courts dealers also noted that virtually every car in his 77 B–23 at 1–2, B–25 at 1. Mr. Drick contends the have held there is no implied private right of action area is sold ‘‘As-Is’’ and that most consumers in the rule should allow for enforcement by private under the FTC’s franchise disclosure rules. In area are aware of the practice. Instead of posting attorneys in state courts. B–25 at 1. Freedman v. Meldy’s Inc., 587 F. Supp. 658, 662 Buyers Guides, he suggested posting one large sign 78 Consumers who have disputes with dealers (E.D. Pa. 1984)., the court reached its decision on the lot stating: ‘‘Unless a specific warranty is about warranties generally already have recourse to despite the FTC’s contention that the courts should provided in writing, all used vehicles for sale at this the courts to resolve their disputes, and such recognize private rights of action under the dealership are sold As-Is; the buyer will pay all disputes normally will involve resolving who Franchise Rule. Citing Justice Rehnquist’s opinion costs for any repairs.’’ B–03 at 2. should be responsible for making repairs. For in Cannon v. University of Chicago, 441 U.S. 677, 81 B–11 at 2. TADA asserted that in cities with example, section 110(d) of the Warranty Act allows 718 (1978), the Freedman court stated: ‘‘Congress large Spanish-speaking populations where dealers consumers to bring suits on their own behalf for a may, if it wishes, give effect to the apparent desire conduct a large percentage of sales in Spanish, the warrantor’s failure to honor warranties or service of the FTC that private rights of action be afforded Rule requires each vehicle to have two Buyers contracts, or to comply with any other obligation litigants under 16 CFR §§ 436.1–438.10. The FTC Guides, one in English and another in Spanish. under the Act. Under the law, actions generally will may express, as it has, its opinion that private rights 82 B–7 at 2. NIADA noted that filling out the be brought in state courts. If a complaint alleges at of action should be provided, but the Commission’s Buyers Guide and attaching it to the car is just least $50,000 in damages the action may be filed in opinion cannot supplement or supply the requisite another part of the logging-in procedure. With federal court. Congressional intent.’’ 587 F. Supp. at 662. Continued 62202 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

NADA stated that the Rule is meeting competition regarding warranty Commission has decided to take no the objectives of the law and is not a coverage.91 The comments generally action. substantial burden on small dealers.83 suggested that the Rule also has Question Five Iowa’s Attorney General noted that the eliminated many disputes regarding oral costs associated with Rule compliance representations made by dealers Does the Rule overlap or conflict with are minimal and are passed on to the concerning warranty coverage.92 For other federal, state, or local laws or consumer.84 However, Iowa’s comment example, Reynolds & Reynolds noted regulations? also stated that larger firms are better that the Rule removes the question as to i. Summary of Comments. In terms of able to absorb the costs of compliance. whether or not a specific vehicle has a ‘‘overlap,’’ NCLC stated: There really is Reynolds & Reynolds noted that the warranty.93 Compliance with the Rule no overlap with state consumer costs of compliance include the costs of virtually assures that consumers are protection laws (unfair and deceptive the form and the time required to fill aware of available warranty coverage, acts and practices statutes) because not them out properly. These costs differ and therefore consumers are all states’ laws cover all violations of the from small firms to large firms because significantly protected against dealer Used Car Rule. The Used Car Rule itself a larger firm most likely can take misrepresentations.94 merely effectuates a claim under a advantage of volume purchases and deceptive practices act in some states, ii. Discussion. Based on the afford a computer to print out the form, by declaring certain conduct to be unfair while a smaller dealer would be more information obtained in response to the or deceptive, which may then be likely to purchase Buyers Guides in Notice, the Commission has concluded prohibited by the state law.96 smaller quantities and fill them out by that the costs and burdens associated NIADA stated, however, that there hand.85 with Rule compliance are not may be possible overlap with Texas’s The majority of the comments that substantial. Although the costs or Deceptive Trade Practices Act.97 Iowa’s responded to these questions, however, burdens of complying with the Rule Attorney General noted that the Rule contended that the burdens or costs may be marginally greater on smaller overlaps with the Iowa Consumer Fraud associated with compliance are dealers that have fewer employees than Act, Iowa Code 714.16, to the extent that minimal.86 For example, Reynolds & larger dealerships, the costs associated the Consumer Fraud Act requires that Reynolds reported that used car dealers with compliance are still quite small. sellers of merchandise not fail to can purchase Buyers Guides for an The cost for Buyers Guides averages 7.6 disclose material facts with the intent average cost of 7.6 cents.87 While cents per form, and other costs that others rely on the omission.98 Reynolds & Reynolds believes the costs associated with the Rule (i.e., filling out Although the two overlap, Iowa are so minimal that they are not passed the Buyers Guide and posting them), believed it presents no problem to either along to the consumer, NIADA stated although not quantified, were the Commission or the State of Iowa in that they are.88 represented as minimal and reasonable. the enforcement of the Rule or the Iowa Two comments from Attorneys At the same time, the comments Consumer Fraud Act.99 General addressed whether the burdens contended that there are benefits from Alaska’s Attorney General believed and costs of the Rule would be similar Rule compliance. Accordingly, the there is a ‘‘gap’’ in the Rule that has to those incurred under ordinary and Commission has determined that no been addressed in state court prudent business practice. The Iowa changes are needed to reduce the costs decisions.100 TADA noted that the Attorney General noted that the Used of the Rule on small businesses. Rule’s definition of a ‘‘used vehicle’’ Car Rule imposes no costs other than Further, although compliance with and the State of Texas’s definition cause those a prudent dealer would incur the Rule may be more burdensome and problems because the Commission’s regardless of the Rule.89 The costly to dealers who frequently definition of ‘‘used vehicle’’ is much Washington Attorney General stated broader than that of some states, conduct sales transactions in Spanish, 101 that the burdens or costs should be TADA’s proposed solution (elimination including Texas. According to TADA similar to those that would be incurred of the requirement to post Spanish this causes confusion and by prudent businesses.90 misunderstanding as to when a vehicle Buyers Guides) contravenes the 102 In terms of benefits, Iowa’s Attorney Commission’s rationale for the posting is required to display a Buyers Guide. NACAA stated that the Rule conflicts General noted that the Rule has requirement.95 Providing a Buyers with some state laws by providing that undoubtedly benefited both the Guide at the time of sale is insufficient the language in the Buyers Guide manufacturers and dealers by fostering to protect against the unfair and overrides contrary provisions in the deceptive practices the Rule was contract of sale.103 The Washington regard to the differing costs between large and small designed to deter. By requiring posting, firms, the trade association noted that both size firms need to fill out a certain number of forms for the Rule affords buyers an opportunity 96 B–23 at 5. each vehicle they sell. The larger dealers have more to comparison shop. Accordingly, the 97 B–07 at 5. employees to do the job. 98 Warranty coverage on a motor vehicle is 83 B–19 at 1. 91 B–15 at 4. considered to be a material fact under Iowa law. 84 B–15 at 6. 92 See NIADA Comment, B–7 at 4–5. 99 B–15 at 5. 85 B–20 at 2. 93 B–20 at 1. 100 The ‘‘gap’’ relates to the Rule’s failure to 86 See, e.g., B–20 at 1. 94 B–15 at 4. require dealers to disclose known defects. The AG 87 B–20 at 1. See also NIADA, B–07 at 2. Buyers 95 The Commission originally considered asserts that the common law of most states requires Guides may be purchased in packets of 250 for requiring Buyers Guides to be translated into disclosure. See, e.g., Patton v. McHone, 822 S.W.2d $21.00. several dozen languages. However, ‘‘[t]he evidence 608 (Tenn. App. 1991). B–01 at 1. 88 Id. NIADA also noted that labor costs are in the [rulemaking] record indicates that, besides 101 See also discussion at Part IV, Question 2, B, associated with compliance, but did not quantify English, Spanish is the language most frequently 2–3, supra, regarding the difference between the those costs. used during used car sales transaction.’’ SBP at Rule’s definition of a ‘‘used vehicle,’’ and the state 89 B–15 at 6. 45711 (footnote omitted). Thus, the Rule requires law definitions. 90 B–17 at 4. But stricter compliance with the window form and the content disclosures to be 102 B–11 at 2. Washington law on the disclaimer of implied in Spanish, if the sale is conducted in Spanish. 103 B–24 at 2, citing section 455.3(b) of the Rule. warranties could increase the costs of repair or Dealers who conduct transactions in both English NACAA also contended that the provision may be recision to dealers who market unmerchantable and Spanish may post both versions of the Buyers used by dealers to disclaim promises of greater vehicles. Guide. warranty protection in oral or written form. This Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62203

State Attorney General’s Office also Franchised dealers report that the At the same time, the comments noted noted that the Commission’s ‘‘As-Is’’ biggest part of both their profit and their that technological changes have made it version of the Buyers Guide does not volume is coming from their used, not easier for dealers to comply with the accurately reflect Washington contract new, vehicle sales. ‘‘New car dealers Rule. law on valid disclaimer of implied sold more used vehicles than new for Question Twelve warranties, thus creating a conflict.104 the first time in 1989, and since then ii. Discussion. The comments relative used-car volume has grown Should the Rule’s requirement that indicated that to the extent there is any steadily.’’ 108 the Buyers Guide be posted in a side overlap between the Rule and state law, NIADA noted that economic window of a used vehicle, as set forth it is generally not a significant problem. conditions within the industry have in Section 455.2(a)(1) of the Rule, be The ‘‘conflict’’ noted by the Washington improved, but was unable to quantify modified to allow posting in a different Attorney General has been addressed by whether the changed conditions have location (for example, in the rear the Commission staff in correspondence had an impact on the Rule. Other window of a pickup truck or other with the Attorney General. As was comments noted changes in the relevant vehicle without side rear windows), as explained in the staff’s letter, the technology and/or economic conditions long as the Buyers Guide is conspicuous purpose of the posted Buyers Guide is that may have affected the Rule. For and both sides may be readily viewed? to show consumers what warranty example, NCLC noted a significant i. Summary of Comments. The coverage a dealer is offering. The Rule increase in the leasing of new and used comments generally supported also requires the dealer to provide the cars in support of its recommendation modifying the Rule as suggested. NADA buyer with a copy of the Buyers Guide that Buyers Guides be posted on leased recommended that the Rule afford some showing the final warranty coverage vehicles. NCLC also pointed to the flexibility in the placement of the guide, agreed to. If, under Washington State proliferation of computers and copying allowing it to be placed elsewhere than law, an ‘‘As-Is’’ sale has not been machines within the industry, in a side window. NCCE suggested that properly consummated, the final concluding this should make it easier enforcement focus on the availability version of the Buyers Guide should note for dealers to comply with the Rule.109 and accessibility of the information that the car is being sold with implied Reynolds & Reynolds noted that many ‘‘and not on the trivial aspects of the warranties.105 Because the Used Car computer systems have the ability to regulation such as location of the Rule does not conflict with state print the form for a dealer, thereby information.’’ 115 consumer protection statutes in any reducing time/energy demands upon One consumer protection group noted significant way, there is no need for dealers to fill out the Buyers Guide.110 that if there are no side rear windows, Commission action. Another comment noted that car the Buyers Guide should be placed in manufacturers have done a better job of the front window.116 One Attorney Questions Six and Ten conveying warranty information and General supported the modification, Since the Rule was issued, what covered systems to dealers.111 noting that the Rule should allow for effects, if any, have changes in relevant The Iowa Attorney General noted that dealers to post the Buyers Guides in the technology or economic conditions had since vehicles are more complex than rear windows of pick-up trucks and on the Rule? ever, repair costs have increased. The other vehicles lacking side rear How many used vehicles (as defined Washington Attorney General noted that windows to offer the dealers some by Section 455.1(d)(2) of the Rule) are both the demand for and price of used flexibility.117 The Michigan Secretary of sold annually in the United States? vehicles have been driven up because State supported the amendment i. Summary of Comments. The new cars are becoming increasingly permitting the posting of Buyers Guides number of used cars sold annually is expensive.112 Thus, warranty coverage is in other than the side window as long much larger now than when the Rule more important to consumers than ever as the guide is prominently displayed was promulgated.106 Based on before, and the need for the Rule is and both sides can be readily viewed by 118 information NADA submitted, greater than in the past.113 Similarly, a purchaser. Other comments also franchised dealerships accounted for most of the comments said there was a supported the proposed modification of 119 nearly 10 million used car sales in 1993 continuing need for the Rule because of the Rule. (9,836,800) and NIADA reported the size of the industry. ii. Discussion. The Commission is another 16 million sales were made by ii. Discussion. The economic changes amending the Rule to delete the side 120 independent dealers. NIADA’s in the industry—the growth in used car window posting requirement. Dealers information indicated that 25.9 million sales, the increased prices of used instead will be required to post Buyers 114 used vehicles were sold by independent cars, and the rising cost of repairs— Guides prominently and in plain sight and franchised dealers in 1992.107 make warranty coverage an important anywhere on the vehicle as long as both consideration in a sales transaction. The sides are accessible. This amendment issue was addressed in the discussion at Part IV, changes addressed in the comments affords dealers greater flexibility in Question 2, E, supra . demonstrate that the reasons for posting Buyers Guides on all vehicles, 104 B–17 at 3. See also discussion at Part IV, promulgating the Rule continue to exist. not just pickup trucks or vehicles Question 2, E, supra. without side windows. For example, 105 See staff Opinion Letter to Robert F. Manifold, 7, p. 3, CNW Marketing Research, Bandon, Oregon, Division Chief, October 12, 1989. 1994. 115 B–12 at 2. 106 In the original rulemaking, the Commission 108 Id. 116 noted that in 1979, ‘‘two of every three cars sold B–23 at 6–7. 109 B–23 at 5. 117 in the United States were used. Consumers in that B–15 at 5. 110 year spent $66.7 billion, including the value of B–20 at 2. 118 B–14 at 1. trade-ins in purchasing 18.5 million used cars from 111 Id. 119 B–17 at 5, B–19 at 2, B–20 at 2. all sources.’’ SBP at 45695. 112 B–17 at 3. 120 Because this amendment does not change the 107 B–7, see attachment to comment entitled 113 B–15 at 5. substantive rights afforded by the Rule or ‘‘Used Car Sales.’’ Other sources indicate that the 114 According to CNW Marketing Research, the significantly affect the obligations of dealers, the dollar amount of used car sales covered by the Rule average sales price for a used car sold by a Commission has concluded that section 18, 15 reached $281.5 billion in 1993 and $289.2 billion franchised dealer was $11,820, and $6,835 for an U.S.C. 57a, rulemaking proceedings are unnecessary in 1994. See Used Gold Reference Guide, Chapter independent dealer, in 1994. to issue this amendment. 62204 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations dealers could hang Buyers Guides from the present Buyers Guide contains much copy testing was done on prior versions the rear view mirror or place them empty space ‘‘that could be eliminated of the Buyers Guide, which differed under the windshield wipers or hang without destroying the eye catching from the Buyers Guide now in use, them from exterior side view mirrors. qualities it now has.’’ 125 NIADA also those comprehension tests were relevant These options allow consumers to view suggested putting the dealer’s name and to the design of the revised format the the Buyers Guide easily. Putting Buyers address on the front of the Buyers Guide Commission adopted in 1984. Based on Guides in glove boxes or on the floor or so that the entire form could be easily those tests, certain changes to the in the trunk will not satisfy the filled in using an office computer Buyers Guide were implemented which requirement that the Buyers Guide be in printer. In addition it suggested that the carried through to the current plain sight and conspicuous. language ‘‘RECEIPT OF ORIGINAL version.129 COPY ACKNOWLEDGED’’ and a Further, the size of the Buyers Guide Question Thirteen signature line be placed on the front of was the subject of comments filed in What changes to the format of the the Buyers Guide. response to the Commission’s July 31, Buyers Guide should be considered in NCLC, along with Iowa Attorney 1984 Federal Register Notice soliciting order to reduce compliance costs or General,126 opposed changing the format comment on a Baseline Study of the burdens? Would such changes have any of the Buyers Guide, stating: Rule and the Commission’s tentative decision to adopt a revised rule. For detrimental effect on the benefits It is important to keep the Buyers Guide at provided by the Rule? Is there any its current size and not to make it smaller. example, NADA requested that the size empirical or other evidence to support It must be prominent in order to be noticed of the form be reduced from 12 inches opinions that such changes would or by consumers so that the buyer can negotiate high by 71⁄4 inches wide to 6 x 8 inches. would not have a detrimental effect on with the dealer over the terms on the Buyers Following its review, the Commission benefits? Guide and know exactly what is provided in concluded that the format and type size i. Summary of Comments. Some terms of warranties. Some of the type on the required by the Rule would easily fit back of the Buyers Guide, indicating systems comments recommended that the onto a 71⁄4 x 11 sheet. Therefore, to to check, is already very small.127 Buyers Guide should be maintained in avoid unnecessary costs, the its present form.121 Others stated that ii. Discussion. The Commission has Commission revised the Rule to require the format of the Buyers Guide should decided not to modify the present size a form no smaller than 11 inches high be changed, but none provided or format of the Buyers Guide. The only by 71⁄4 inches wide. The Commission empirical evidence in support of their argument for reducing the size of the rejected NADA’s proposal to reduce the assertions. For example, Reynolds & Buyers Guide is that the current size of form to the 6 x 8 size because the type Reynolds suggested allowing the Buyers the Buyers Guide may present a safety sizes required by the Rule would have Guide to be merged with other required hazard during test drives. It is difficult to be reduced to fit on the smaller sheet, forms. It stated that the Buyers Guide to imagine that dealers would forego the making the Buyers Guide difficult to could be combined with the state lemon option of temporarily removing Guides read. The final Rule the Commission laws and refund rights acts forms. The during test drives, if a true safety hazard published required a Buyers Guide no result would be a form with larger existed. However, if such a hazard smaller than 11 inches high by 71⁄4 dimensions. While the combined form existed, it seems unlikely that reducing wide.130 would be higher priced, the overall cost the dimensions of the Buyers Guide to Under these circumstances, the ′′ ′′ of complying with the multiple laws 5 x 7 would significantly lessen the Commission has determined not to would be lowered.122 hazard. The Commission’s amendment change the format of the Buyers Guide Both NADA and NIADA to allow conspicuous posting anywhere without copy testing or other reliable recommended that the Rule allow some in the vehicle is likely to better address information showing that a reduced or flexibility in the format requirements of this issue than reducing the size of the revised Buyers Guide would be as easy the Buyers Guide.123 Specifically, Buyers Guide. to read and comprehend as the current NIADA suggested that reducing the size The Commission requested empirical Buyers Guide. For example, taking out requirement of the Buyers Guide to 7′′ evidence to support any proposed the white space, as NIADA suggests, x 5′′ would be useful because it would modifications to the size or format could reduce the effectiveness of the minimize the window blockage in because, during the original rulemaking Buyers Guides. The empty space on the compact cars and pickup trucks, and proceeding, considerable effort was Buyers Guide was planned to make thus reduce what it termed a driving expended to design a form that information stand out and to avoid safety hazard.124 NIADA contended that communicates information effectively to making the form a jumble of consumers. To evaluate the information. For the same reasons, the 121 Iowa Attorney General, B–15 at 7. effectiveness of the Buyers Guide during Commission is also rejecting the 122 B–20 at 1. Reynolds & Reynolds suggested that the rulemaking, a series of copy suggestion that the format of the Buyers additional information could be printed on the form comprehension tests were conducted. Guide be modified to incorporate other (i.e., standard warranty coverage) in order to save According to the SBP for the Rule, the required forms.131 dealers from having to fill out a new form for each vehicle. There is, however, no prohibition against results of the copy testing were pre-printing information on the Buyers Guide. incorporated into the final design of the the condition of major mechanical and safety 123 The Rule requires that the Buyers Guide Buyers Guide that the Commission systems of the car, which the Commission decided conform to the exact wording, type style, type size, adopted in May 1981.128 Although the to omit in 1984. and format specified by the Rule. See Section 129 For example, based on the testing, the 455.2(a)(2) of the Rule. Among other things, the Commission increased the type size of the warning Rule specifies that the form must be printed on some commenters claim that removing Buyers against relying on spoken promises, and prefaced it Guides for test drives and re-posting them white stock no less than 11 inches high by 71⁄4 with the bold-face heading, ‘‘Important.’’ inches wide. NADA stated that while the Buyers afterwards is burdensome. 130 16 CFR 455.2(a)(2). 125 Guide does an adequate job of communicating Id. 131 Recent Commission research also suggests that information to consumers, ‘‘[t]here needs to be more 126 B–15 at 7. the consolidation of labels may result in flexibility regarding the size, typeface, additions, 127 B–23 at 4. information overload. See Report to Congress by the etc. to the form.’’ 128 SBP at 45709. The Commission announced the Federal Trade Commission, Study of a Uniform 124 B–7 at 3. The Rule provides that Buyers earlier version of the rule in 46 FR 41328 (1981). National Label for Devices that Dispense Fuel to Guides may be removed during test drives. But, The 1981 Buyers Guide included information about Consumers, pp. 27–30 (Oct. 1993). Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62205

Further, the Commission is rejecting Reynolds suggested that a customer Text of Amendments the suggestion to modify the Buyers signature box be added to the form’s For the reasons set forth in this Guide to include dealer information and back to ensure that the purchaser has document, pertinent sections of the a signature line on the front of the received warranty information (or the Used Car Rule, 16 CFR Part 455, are Buyers Guide. NIADA noted that lack thereof) and has acknowledged amended as follows: computer pre-printing of the Buyers it.136 Guide requires turning the page over in ii. Discussion. The Commission has PART 455Ð[AMENDED] order to print the information. The concluded that adding additional The authority citation for part 455 actual burden of having to turn over the information to the Buyers Guide, such continues to read as follows: Buyers Guide to pre-print the as a warning that the Cooling-Off Rule information is quite small. Further, does not apply, is unnecessary.137 The Authority: 88 Stat. 2189, 5 U.S.C. 2309; 38 dealers may use an ink stamp to put this format of the present Buyers Guide Stat. 717 as amended; 15 U.S.C. 41 et seq. information on the back side. Both of achieves the Rule’s objectives, and thus, 2. Section 455.2(a)(1) is revised to these methods—ink stamp or turning for the reasons previously discussed read as follows: the Buyers Guide over and pre-printing throughout this notice, the Commission the information—are inexpensive ways is leaving the format of the Buyers § 455.2 Consumer salesÐwindow form. of complying with the Rule.132 Guide essentially unchanged.138 (a) * * * Question Fourteen (1) The Buyers Guide shall be V. Regulatory Flexibility Act Review What changes to the format of the displayed prominently and Buyers Guide should be considered in Based on its review of the record, the conspicuously in any location on a order to increase its benefits? What Commission has concluded that the vehicle and in such a fashion that both effect would such changes have on the Rule has not had ‘‘a significant sides are readily readable. You may costs or burdens imposed by the Rule? economic impact on a substantial remove the form temporarily from the Is there any empirical or other evidence number of small entities’’ affected by vehicle during any test drive, but you to support opinions that such changes the Rule.139 As previously discussed, must return it as soon as the test drive would or would not increase costs or the comments indicate that the costs is over. burdens? associated with Rule compliance are * * * * * i. Summary of Comments. One minimal. The record also suggests that 3. Further, § 455.2 is amended by consumer suggested that the these costs generally would be borne by adding paragraph (f) to read as follows: information be on one side only, and a reasonably prudent business anyway. § 455.2 Consumer salesÐwindow form. that a signature line be included so that the customer has a chance to read it and VI. Conclusion * * * * * 133 (f) Optional Signature Line. In the know he is entitled to a copy. This The comments and the Commission’s consumer also suggested that the Buyers space provided for the name of the experience indicate that the Rule is individual to be contacted in the event Guide be modified to have check boxes working and achieving its objectives, for the selling dealer to disclose whether of complaints after sale, you may while imposing only minimal costs on include a signature line for a buyer’s or not the dealer has attempted to repair used car dealers. For the reasons any item on the vehicle in any way, and signature. If you opt to include a discussed above, however, the a section for the dealer to list signature line, you must include a Commission is amending the Spanish specifically what components or disclosure in immediate proximity to Buyers Guide and amending the Rule to systems were found by the inspection to the signature line stating: ‘‘I hereby permit dealers to post Buyers Guides be in need of repair and yet were not acknowledge receipt of the Buyers prominently and in plain view in all repaired by the dealer, plus their Guide at the closing of this sale.’’ You used vehicles being offered for sale anticipated costs.134 NACAA noted that may pre-print this language on the form (rather than on a side window). The the Buyers Guide should be revamped if you choose. Commission also is amending the Rule to provide a checklist of symptoms and to permit dealers to put a signature line * * * * * causes for auto problems, and state more on the back of the Buyers Guide, if 4. Further, the first page of the sample strongly that consumers should have accompanied by a specific disclosure. Spanish language Buyers Guide (‘‘GUIA those items independently checked DEL COMPRADOR’’) appearing at the before committing themselves to a used List of Subjects in 16 CFR Part 455 end of section 455.5 is revised to read car purchase.135 Washington’s Attorney as follows: General suggested that the Buyers Guide Motor vehicles, Trade practices. § 455.5 Spanish language sales. note that the Cooling-Off Rule does not Authority: The Regulatory Flexibility Act, apply to used car sales. Reynolds & 5 U.S.C. 601 et seq. (1980). * * * * * BILLING CODE 6750±01±P

132 The issue of obtaining consumer signatures 137 16 CFR 429. The Cooling-Off Rule does not 139 5 U.S.C. 603–605. The Commission received was addressed earlier in this notice. See Part IV, apply to the sale of vehicles, nor any other goods no information regarding the number of dealerships Question 2, B, supra. and services, offered at a seller’s place of business. with annual sales of $11.5 million or less. But, the 133 Jay Drick, B–25 at 1–2. It also does not apply to sales of vehicles at auctions Commission’s experience is that most independent 134 B–25 at 1. provided that the seller has a permanent place of used car dealers have annual sales less than $11.5 135 B–24 at 3. business. million and therefore are small entities for purposes 136 B–20 at 2. 138 See discussion at Part IV, Question 2, B, supra. of the RFA. 62206 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 95–27553 Filed 12–4–95; 8:45 am] BILLING CODE 6750±01±C Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62207

DEPARTMENT OF HEALTH AND latex emulsions used in the coating of objection. Each numbered objection for HUMAN SERVICES food-contact paper and paperboard. which a hearing is requested shall FDA has evaluated data in the include a detailed description and Food and Drug Administration petition and other relevant material. The analysis of the specific factual agency concludes that the proposed use information intended to be presented in 21 CFR Part 176 of the additive in paper and paperboard support of the objection in the event [Docket No. 95F±0016] products in contact with food is safe that a hearing is held. Failure to include and that the regulations in § 176.170 such a description and analysis for any Indirect Food Additives: Paper and should be amended as set forth below. particular objection shall constitute a Paperboard Components In accordance with § 171.1(h) (21 CFR waiver of the right to a hearing on the 171.1(h)), the petition and the objection. Three copies of all documents AGENCY: Food and Drug Administration, documents that FDA considered and HHS. shall be submitted and shall be relied upon in reaching its decision to identified with the docket number ACTION: Final rule. approve the petition are available for found in brackets in the heading of this SUMMARY: The Food and Drug inspection at the Center for Food Safety document. Any objections received in Administration (FDA) is amending the and Applied Nutrition by appointment response to the regulation may be seen food additive regulations to provide for with the information contact person in the Dockets Management Branch the safe use of silver chloride-coated listed above. As provided in 21 CFR between 9 a.m. and 4 p.m., Monday titanium dioxide as a preservative in 171.1(h), the agency will delete from the through Friday. documents any materials that are not polymer latex emulsions used in the List of Subjects in 21 CFR Part 176 coating of food-contact paper and available for public disclosure before paperboard. This action is in response making the documents available for Food additives, Food packaging. inspection. to a petition filed by Johnson Matthey Therefore, under the Federal Food, The agency has carefully considered Chemicals. Drug, and Cosmetic Act and under the potential environmental effects of DATES: authority delegated to the Commissioner Effective December 5, 1995; this action. FDA has concluded that the of Food and Drugs and redelegated to written objections and requests for a action will not have a significant impact the Director, Center for Food Safety and hearing by January 4, 1996. on the human environment, and that an Applied Nutrition, 21 CFR part 176 is ADDRESSES: Submit written objections to environmental impact statement is not amended as follows: the Dockets Management Branch (HFA– required. The agency’s finding of no 305), Food and Drug Administration, significant impact and the evidence PART 176ÐINDIRECT FOOD 12420 Parklawn Dr., rm. 1–23, supporting that finding, contained in an Rockville, MD 20857. ADDITIVES: PAPER AND environmental assessment, may be seen PAPERBOARD COMPONENTS FOR FURTHER INFORMATION CONTACT: Vir in the Dockets Management Branch D. Anand, Center for Food Safety and (address above) between 9 a.m. and 4 1. The authority citation for 21 CFR Applied Nutrition (HFS–216), Food and p.m., Monday through Friday. part 176 continues to read as follows: Drug Administration, 200 C St. SW., Any person who will be adversely Washington, DC 20204, 202–418–3081. Authority: Secs. 201, 402, 406, 409, 721 of affected by this regulation may at any the Federal Food, Drug, and Cosmetic Act (21 SUPPLEMENTARY INFORMATION: In a notice time on or before January 4, 1996, file U.S.C. 321, 342, 346, 348, 379e). published in the Federal Register of with the Dockets Management Branch February 13, 1995 (60 FR 8243), FDA (address above) written objections 2. Section 176.170 is amended in the announced that a food additive petition thereto. Each objection shall be table in paragraph (a)(5) by (FAP 5B4442) had been filed by Johnson separately numbered, and each alphabetically adding a new entry under Matthey Chemicals, c/o 1000 Potomac numbered objection shall specify with the headings ‘‘List of Substances’’ and St. NW., Washington, DC 20007. The particularity the provisions of the ‘‘Limitations’’ to read as follows: petition proposed to amend the food regulation to which objection is made § 176.170 Components of paper and additive regulations in § 176.170 and the grounds for the objection. Each paperboard in contact with aqueous and Components of paper and paperboard numbered objection on which a hearing fatty foods. in contact with aqueous and fatty foods is requested shall specifically so state. (21 CFR 176.170) to provide for the safe Failure to request a hearing for any * * * * * use of silver chloride-coated titanium particular objection shall constitute a (a) * * * dioxide as a preservative in polymer waiver of the right to a hearing on that (5) * * *

List of Substances Limitations

******* Silver chloride-coated titanium dioxide ...... For use only as a preservative in polymer latex emulsions at a level not to exceed 2.2 parts per million (based on silver ion concentra- tion) in the dry coating. ******* 62208 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

* * * * * proposal. The agency is, therefore, 21 CFR Part 186 Dated: November 24, 1995. adopting the proposal without any Food ingredients, Food packaging. changes. Fred R. Shank, Therefore, under the Federal Food, Director, Center for Food Safety and Applied Environmental Impact Drug, and Cosmetic Act and under Nutrition. authority delegated to the Commissioner [FR Doc. 95–29476 Filed 12–04–95; 8:45 am] The agency has previously considered of Food and Drugs and redelegated to the environmental effects of this rule as BILLING CODE 4160±01±F the Director, Center for Food Safety and announced in the proposed rule that Applied Nutrition, 21 CFR parts 182 published in the Federal Register of and 186 are amended to read as follows: 21 CFR Parts 182 and 186 June 1, 1995 (60 FR 28555). No new information or comments have been PART 182ÐSUBSTANCES [Docket No. 80N±0196] received that would affect the agency’s GENERALLY RECOGNIZED AS SAFE determination that there is no Japan Wax; Affirmation of GRAS significant impact on the human 1. The authority citation for 21 CFR Status as an Indirect Human Food environment, and that neither an part 182 continues to read as follows: Ingredient environmental assessment nor an Authority: Secs. 201, 402, 409, 701 of the AGENCY: Food and Drug Administration, environmental impact statement is Federal Food, Drug, and Cosmetic Act (21 HHS. required. U.S.C. 321, 342, 348, 371). ACTION: Final rule. Analysis of Impacts § 182.70 [Amended] 2. Section 182.70 Substances SUMMARY: The Food and Drug FDA has examined the impacts of the migrating from cotton and cotton fabrics Administration (FDA) is amending its final rule under Executive Order 12866 used in dry food packaging is amended regulations to affirm Japan wax as and the Regulatory Flexibility Act (Pub. by removing the entry for ‘‘Japan wax.’’ generally recognized as safe (GRAS) as L. 96–354). Executive Order 12866 an indirect food ingredient for use as a directs agencies to assess all costs and PART 186ÐINDIRECT FOOD constituent of cotton and cotton fabrics benefits of available regulatory SUBSTANCES AFFIRMED AS used in dry food packaging. The safety alternatives and, when regulation is GENERALLY RECOGNIZED AS SAFE of this indirect food use of Japan wax necessary, to select regulatory has been evaluated under the approaches that maximize net benefits 3. The authority citation for 21 CFR comprehensive safety review conducted (including potential economic, part 186 continues to read as follows: by the agency. environmental, public health and safety, Authority: Secs. 201, 402, 409, 701 of the DATES: Effective December 5, 1995. and other advantages; distributive Federal Food, Drug, and Cosmetic Act (21 FOR FURTHER INFORMATION CONTACT: impacts; and equity). The Regulatory U.S.C. 321, 342, 348, 371). Martha D. Peiperl, Center for Food Flexibility Act requires analyzing 4. New § 186.1555 is added to subpart Safety and Applied Nutrition (HFS– options for regulatory relief for small B to read as follows: 217), Food and Drug Administration, businesses. 200 C St. SW., Washington, DC The agency finds that this rule is not § 186.1555 Japan wax. 20204, 202–418–3077. a significant regulatory action as defined (a) Japan wax (CAS Reg. No. 8001–39– SUPPLEMENTARY INFORMATION: by Executive Order 12866. Furthermore, 6), also known as Japan tallow or sumac In the Federal Register of June 1, 1995 in accordance with the Regulatory wax, is a pale yellow vegetable tallow, (60 FR 28555), FDA published a Flexibility Act, the agency previously containing glycerides of the C19–C23 proposal to affirm the GRAS status of considered the potential effects that this dibasic acids and a high content of the use of Japan wax as an indirect rule would have on small entities, tripalmitin. It is prepared from the human food ingredient migrating to including small businesses, and mesocarp by hot pressing of immature food from cotton and cotton fabrics used determined that this rule will have no fruits of the oriental sumac, Rhus in dry food packaging. The proposal was significant adverse impact on a succedanea (Japan, Taiwan, and Indo- published in accordance with the substantial number of small businesses. China), R. vernicifera (Japan), and R. announced FDA review of the safety of FDA has received no new information trichocarpa (China, Indo-China, India, GRAS and prior-sanctioned food or comments that would alter its and Japan). Japan wax is soluble in hot ingredients. previous determination. alcohol, benzene, and naphtha, and In accordance with § 170.35 (21 CFR insoluble in water and in cold alcohol. 170.35), copies of the scientific Effective Date (b) In accordance with paragraph literature review and the report of the As this rule recognizes an exemption (b)(1) of this section, the ingredient is Select Committee on GRAS Substances from the food additive definition in the used as an indirect human food (the Select Committee) on Japan wax, as Federal Food, Drug, and Cosmetic Act, ingredient with no limitation other than well as documents in the possession of and from the approval requirements current good manufacturing practice. FDA and further evidence of the safety applicable to food additives, no delay in The affirmation of this ingredient as of Japan wax obtained by FDA since effective date is required by the generally recognized as safe (GRAS) as publication of the Select Committee’s Administrative Procedure Act (5 U.S.C. an indirect human food ingredient is report, have been made available for 553(d)). The rule will therefore be based on the following current good public review in the Dockets effective December 5, 1995 (5 U.S.C. manufacturing practice conditions of Management Branch (HFA–305), Food 553(d)(1)). use: and Drug Administration, 12420 (1) The ingredient is used as a Parklawn Dr., rm. 1–23, Rockville, MD List of Subjects constituent of cotton and cotton fabrics 20857. 21 CFR Part 182 used for dry food packaging. The proposal gave interested parties (2) The ingredient is used at levels not an opportunity to submit comments. Food ingredients, Food packaging, to exceed current good manufacturing FDA received no comments on its Spices and flavorings. practice. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62209

(c) Prior sanctions for this ingredient the Treasury Department have circumstances under which conduct different from the uses established in considered the public comments on the would result in the imposition of a tax this section do not exist or have been proposed regulations, and the under section 4955 but not in revocation waived. regulations are adopted as revised by of exemption under section 501(c)(3). Dated: November 24, 1995. this Treasury decision. According to the statutory language and the legislative history of section 4955, Fred R. Shank, Explanation of Provisions the addition of that section to the Director, Center for Food Safety and Applied The regulations provide guidance Internal Revenue Code did not affect the Nutrition. with respect to sections 4955, 6852 and substantive standards for tax exemption [FR Doc. 95–29478 Filed 12–04–95; 8:45 am] 7409. The sanctions in these sections under section 501(c)(3). To be exempt BILLING CODE 4160±01±F apply to all organizations described in from income tax as an organization section 501(c)(3). Before sections 4955, described in section 501(c)(3), an 6852 and 7409 were enacted in 1987, organization may not intervene in any DEPARTMENT OF THE TREASURY revocation of recognition of exemption political campaign on behalf of any was the sole sanction available against candidate for public office. Consistent Internal Revenue Service political intervention by public with this requirement, section 4955 charities. Section 4955 was modeled on 26 CFR Parts 1, 53 and 301 does not permit a de minimis amount of the section 4945 excise tax on political political intervention. Therefore, the [TD 8628] expenditures (taxable expenditures) by final regulations have not been revised. private foundations, while sections 6852 RIN 1545±A077 However, there may be individual cases and 7409 provide new sanctions against where, based on the facts and Political Expenditures by Section flagrant political expenditures and circumstances such as the nature of the 501(c)(3) Organizations flagrant political intervention, political intervention and the measures respectively. that have been taken by the organization AGENCY: Internal Revenue Service (IRS), One comment on the proposed to prevent a recurrence, the IRS may Treasury. regulations requested that the exercise its discretion to impose a tax ACTION: Final regulations. regulations define in additional detail under section 4955 but not to seek the term political expenditure and revocation of the organization’s tax- SUMMARY: This document contains final provide specific examples of activities exempt status. regulations regarding excise taxes, that constitute intervention or One comment raised questions about accelerated tax assessments, and participation in a political campaign for the interpretation of section 4955(d)(2), injunctions imposed for certain political or against a candidate. Section 53.4955– which relates to organizations formed expenditures made by organizations that 1(c)(1) of the proposed regulations primarily to promote the candidacy of a (without regard to any political provides that any expenditure that particular individual. The comment expenditure) would be described in would cause an organization that makes requested clarification of the standard section 501(c)(3) and exempt from the expenditure to be classified as an for determining whether an organization taxation under section 501(a). These action organization in accordance with ‘‘is formed primarily for purposes of regulations reflect changes to the law § 1.501(c)(3)–1(c)(3)(iii) is a political promoting the candidacy (or prospective that were enacted as part of the Revenue expenditure within the meaning of candidacy) of an individual for public Act of 1987. section 4955(d)(1). By referring to the office’’ under section 4955(d)(2). The EFFECTIVE DATE: These regulations are long standing action organization comment also requested clarification of effective December 5, 1995. regulations, § 53.4955–1(c)(1) of the the meaning of the phrase ‘‘availed of’’ proposed regulations ties the definition FOR FURTHER INFORMATION CONTACT: in the section 4955(d)(2) reference to of political expenditure in section 4955 organizations availed of primarily to Cynthia Morton or Paul Accettura, (202) to existing IRS and judicial 622–6070 (not a toll-free number). promote an individual’s candidacy for interpretations of when an organization public office. The comment further SUPPLEMENTARY INFORMATION: participates or intervenes in a political requested examples of expenses which campaign on behalf of or in opposition Background have the primary effect of promoting to any candidate for public office in public recognition or otherwise On December 14, 1994, proposed violation of the requirements of section primarily accruing to the benefit of a regulations §§ 53.4955–1, 301.6852–1, 501(c)(3). The IRS and the Treasury candidate or a prospective candidate. and 301.7409–1 under sections 4955, Department believe this direct The legislative history of section 4955 6852 and 7409 were published in the connection between section 4955 and provides that the determination of Federal Register (59 FR 64359). In section 501(c)(3) correctly implements whether an organization’s primary addition, amendments were made to the intent of Congress as expressed in purpose is the promotion of the regulations under other sections in the statute and the legislative history. candidacy or prospective candidacy of order to reflect the effects of sections To the extent that further guidance is an individual for public office is based 4955, 6852, and 7409. Proposed needed on the interpretation of the on all relevant facts and circumstances. regulation amendments in §§ 1.6091–2, terms political expenditure under The proposed regulations follow the 53.4963–1, 53.6011–1, 53.6071- 1, section 4955 and intervening in political legislative history. The IRS and the 53.6091–1, 301.6211–1, 301.6212–1, campaigns under section 501(c)(3), the Treasury Department believe that, if 301.6213–1, 301.6861–1, 301.6863–1, IRS and the Treasury Department more detailed guidance is necessary, it 301.6863–2, 301.7422–1, and 301.7611– believe such guidance should be given would be more appropriate to provide it 1 were also published in the Federal in connection with the requirements for in a form that allows for the Register (59 FR 64359). No public tax exemption under section 501(c)(3). consideration of a fuller range of facts hearing was requested or held. The IRS Therefore, the final regulations have not and circumstances. Therefore, the final received two comments on the proposed revised § 53.4955–1(c)(1). regulations have not been revised. regulations, only one of which offered Another comment suggested that the The comment also asked whether substantive suggestions. The IRS and regulations specify whether there were section 4955(d)(2) adds anything to the 62210 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations range of activities that would already be takes into account in determining what List of Subjects deemed political expenditures under action to take in an individual case. 26 CFR Part 1 section 4955(d)(1). The plain language Section 53.4955–1 (d) and (e) of the of the statute makes it clear that the final regulations are also relevant where Income taxes, Reporting and expenditures described in section an organization has corrected a political recordkeeping requirements. 4955(d)(2) are included within the expenditure that was not willful and 26 CFR Part 53 general category of political flagrant. expenditures that is described in section One comment requested that the Excise taxes, Foundations, 4955(d)(1). Furthermore, the legislative regulations provide more detail on the Investments, Lobbying, Reporting and history states that section 4955(d)(2) type of behavior that would be recordkeeping requirements. ‘‘enumerates certain expenditures as considered flagrant under sections 6852 26 CFR Part 301 political expenditures for purposes of and 7409. Since a determination of the excise tax * * *.’’ The IRS and the when a specific act or acts by an Employment taxes, Estate taxes, Treasury Department believe that organization is flagrant depends on the Excise taxes, Gift taxes, Income taxes, organizations described in section facts and circumstances in individual Penalties, Reporting and recordkeeping 4955(d)(2) are subject to the same cases, the IRS and the Treasury requirements. restrictions on political expenditures as Department believe that, to the extent Amendments to the Regulations all other section 501(c)(3) organizations. guidance is necessary on this issue, it is Therefore, the final regulations have not better rendered in a form other than Accordingly, 26 CFR parts 1, 53, and been revised. through regulations. Therefore, the final 301 are amended as follows: One comment concluded that regulations do not expand on the § 53.4955–1(b) of the proposed definition of flagrant. PART 1ÐINCOME TAXES regulations, affecting organization One comment suggested that Paragraph 1. The authority citation managers under section 4955, imposed § 301.7409–1 of the proposed for part 1 continues to read in part as tax on a larger group of employees and regulations should be modified to allow follows: officers than are subject to tax under the IRS, where appropriate, to provide chapter 42 because the section did not an organization with less than the 10 Authority: 26 U.S.C. 7805 * * * include language contained in days notice required under the proposed Par. 2. In § 1.6091–2, paragraph (g) is § 53.4946–1(f)(1)(ii) and in § 53.4946– regulations before the Commissioner added to read as follows: 1(f)(2). The IRS and the Treasury would recommend that a petition for Department agree that the definition of injunctive relief be filed. In light of the § 1.6091±2 Place for filing income tax returns. foundation manager under section important considerations involved 4946(b) should be incorporated into the when contemplating an injunction of * * * * * definition of organization manager this sort, the IRS and the Treasury (g) Returns of persons subject to a when applying section 4955(f)(2). Department believe that an organization termination assessment. Therefore, we have clarified the final should be allowed a reasonable amount Notwithstanding paragraph (c) of this regulations to make them consistent of time to respond before the IRS takes section, income tax returns of persons with the interpretation in § 53.4946– action. Therefore, the final regulations with respect to whom an income tax 1(f)(1)(ii) and in § 53.4946–1(f)(2) by retain the 10 day notice period. assessment was made under section adding a sentence at the end of 6852(a) with respect to the taxable year Special Analysis § 53.4955–1(b)(2)(ii)(B) and at the end of must be filed with the district director § 53.4955–1(b)(2)(iii). It has been determined that this as provided in paragraphs (a) and (b) of One comment noted that § 53.4955– Treasury Decision is not a significant this section. 1(b)(7) of the proposed regulations regulatory action as defined in EO provides that, in certain circumstances, 12866. Therefore, a regulatory PART 53ÐFOUNDATION AND SIMILAR if an organization manager relies on a assessment is not required. It has also EXCISE TAXES reasoned legal opinion from legal been determined that section 553(b) of Par. 3. The authority citation for part counsel, the act of the organization the Administrative Procedure Act (5 53 continues to read as follows: manager will not be considered U.S.C. chapter 5) and the Regulatory knowing or willful and will be Flexibility Act (5 U.S.C. chapter 6) do Authority: 26 U.S.C. 7805. considered due to reasonable cause for not apply to these regulations, and, Par. 4. Section 53.4955–1 is added to purposes of section 4955(a)(2). The therefore, a Regulatory Flexibility Subpart K to read as follows: commentator requested consideration of Analysis is not required. Pursuant to whether the same reasoned legal section 7805(f) of the Internal Revenue § 53.4955±1 Tax on political expenditures. opinion would protect the organization Code, the notice of proposed rulemaking (a) Relationship between section 4955 from tax under section 4955(a)(1). preceding these regulations was excise taxes and substantive standards Section 53.4955–1(b)(7) interprets submitted to the Chief Counsel for for exemption under section 501(c)(3). whether an act is not willful and is due Advocacy of the Small Business The excise taxes imposed by section to reasonable cause for purposes of Administration for comment on its 4955 do not affect the substantive section 4955(a)(2). Unlike section impact on small business. standards for tax exemption under 4955(a)(2), section 4955(a)(1) taxes an section 501(c)(3), under which an organization without regard to whether Drafting Information organization is described in section its act of making a political expenditure The principal author of these 501(c)(3) only if it does not participate was willful or due to reasonable cause. regulations is Cynthia D. Morton, Office or intervene in any political campaign Therefore, the final regulations have not of Associate Chief Counsel (Employee on behalf of any candidate for public been revised. A reasoned legal opinion Benefits and Exempt Organizations). office. from legal counsel received by the However, other personnel from the IRS (b) Imposition of initial taxes on organization prior to making a political and Treasury Department participated organization managers—(1) In general. expenditure may be a factor that the IRS in their development. The excise tax under section 4955(a)(2) Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62211 on the agreement of any organization of the expenditure by the organization. political expenditure under section manager to the making of a political The manifestation of approval need not 4955 (or that expenditures conforming expenditure by a section 501(c)(3) be the final or decisive approval on to certain guidelines are not political organization is imposed only in cases behalf of the organization. expenditures). For this purpose, a where— (4) Knowing—(i) General rule. For written legal opinion is considered (i) A tax is imposed by section purposes of section 4955, an reasoned even if it reaches a conclusion 4955(a)(1); organization manager is considered to which is subsequently determined to be (ii) The organization manager knows have agreed to an expenditure knowing incorrect, so long as the opinion that the expenditure to which the that it is a political expenditure only addresses itself to the facts and manager agrees is a political if— applicable law. A written legal opinion expenditure; and (A) The manager has actual is not considered reasoned if it does (iii) The agreement is willful and is knowledge of sufficient facts so that, nothing more than recite the facts and not due to reasonable cause. based solely upon these facts, the express a conclusion. However, the (2) Type of organization managers expenditure would be a political absence of advice of counsel with covered—(i) In general. The tax under expenditure; respect to an expenditure does not, by section 4955(a)(2) is imposed only on (B) The manager is aware that such an itself, give rise to any inference that an those organization managers who are expenditure under these circumstances organization manager agreed to the authorized to approve, or to exercise may violate the provisions of federal tax making of the expenditure knowingly, discretion in recommending approval law governing political expenditures; willfully, or without reasonable cause. of, the making of the expenditure by the and (8) Cross reference. For provisions organization and on those organization (C) The manager negligently fails to relating to the burden of proof in cases managers who are members of a group make reasonable attempts to ascertain involving the issue of whether an (such as the organization’s board of whether the expenditure is a political organization manager has knowingly directors or trustees) which is so expenditure, or the manager is aware agreed to the making of a political authorized. that it is a political expenditure. expenditure, see section 7454(b). (ii) Officer. For purposes of section (ii) Amplification of general rule. For (c) Amplification of political 4955(f)(2)(A), a person is an officer of an purposes of section 4955, knowing does expenditure definition—(1) General organization if— not mean having reason to know. rule. Any expenditure that would cause (A) That person is specifically so However, evidence tending to show that an organization that makes the designated under the certificate of an organization manager has reason to expenditure to be classified as an action incorporation, bylaws, or other know of a particular fact or particular organization by reason of § 1.501(c)(3)– constitutive documents of the rule is relevant in determining whether 1(c)(3)(iii) of this chapter is a political foundation; or the manager had actual knowledge of expenditure within the meaning of (B) That person regularly exercises the fact or rule. Thus, for example, section 4955(d)(1). general authority to make administrative evidence tending to show that an (2) Other political expenditures—(i) or policy decisions on behalf of the organization manager has reason to For purposes of section 4955(d)(2), an organization. Independent contractors, know of sufficient facts so that, based organization is effectively controlled by acting in a capacity as attorneys, solely upon those facts, an expenditure a candidate or prospective candidate accountants, and investment managers would be a political expenditure is only if the individual has a continuing, and advisors, are not officers. With relevant in determining whether the substantial involvement in the day-to- respect to any expenditure, any person manager has actual knowledge of the day operations or management of the described in this paragraph (b)(2)(ii)(B) facts. organization. An organization is not who has authority merely to recommend (5) Willful. An organization manager’s effectively controlled by a candidate or particular administrative or policy agreement to a political expenditure is a prospective candidate merely because decisions, but not to implement them willful if it is voluntary, conscious, and it is affiliated with the candidate, or without approval of a superior, is not an intentional. No motive to avoid the merely because the candidate knows the officer. restrictions of the law or the incurrence directors, officers, or employees of the (iii) Employee. For purposes of of any tax is necessary to make an organization. The effectively controlled section 4955(f)(2)(B), an individual agreement willful. However, an test is not met merely because the rendering services to an organization is organization manager’s agreement to a organization carries on its research, an employee of the organization only if political expenditure is not willful if the study, or other educational activities that individual is an employee within manager does not know that it is a with respect to subject matter or issues the meaning of section 3121(d)(2). With political expenditure. in which the individual is interested or respect to any expenditure, an employee (6) Due to reasonable cause. An with which the individual is associated. (other than an officer, director, or organization manager’s actions are due (ii) For purposes of section 4955(d)(2), trustee of the organization) is described to reasonable cause if the manager has a determination of whether the primary in section 4955(f)(2)(B) only if he or she exercised his or her responsibility on purpose of an organization is promoting has final authority or responsibility behalf of the organization with ordinary the candidacy or prospective candidacy (either officially or effectively) with business care and prudence. of an individual for public office is respect to such expenditure. (7) Advice of counsel. An organization made on the basis of all the facts and (3) Type of agreement required. An manager’s agreement to an expenditure circumstances. The factors to be organization manager agrees to the is ordinarily not considered knowing or considered include whether the surveys, making of a political expenditure if the willful and is ordinarily considered due studies, materials, etc. prepared by the manager manifests approval of the to reasonable cause if the manager, after organization are made available only to expenditure which is sufficient to full disclosure of the factual situation to the candidate or are made available to constitute an exercise of the legal counsel (including house counsel), the general public; and whether the organization manager’s authority to relies on the advice of counsel organization pays for speeches and approve, or to exercise discretion in expressed in a reasoned written legal travel expenses for only one individual, recommending approval of, the making opinion that an expenditure is not a or for speeches or travel expenses of 62212 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations several persons. The fact that a 1. In the first sentence, the language § 301.6213±1 [Amended] candidate or prospective candidate ‘‘or 4945(a),’’ is removed and ‘‘, 4945(a) Par. 12. Section 301.6213–1 is utilizes studies, papers, materials, etc., or 4955(a),’’ is added in its place. amended as follows: prepared by the organization (such as in 2. In the last sentence, the language 1. Paragraph (a)(2), first sentence, is a speech by the candidate) is not to be ‘‘or 4955(a)’’ is added immediately amended by adding ‘‘, 6852,’’ considered as a factor indicating that the following the language ‘‘section immediately after ‘‘section 6851’’. organization has a purpose of promoting 4945(a)’’. 2. Paragraph (e), first sentence, is the candidacy or prospective candidacy Par. 7. In § 53.6071–1, paragraph (e) is amended by adding ‘‘4955,’’ of that individual where such studies, added to read as follows: immediately after ‘‘4952,’’. papers, materials, etc. are not made Par. 13. Section 301.6852–1 is added § 53.6071±1 Time for filing returns. available only to that individual. to read as follows: * * * * * (iii) Expenditures for voter § 301.6852±1 Termination assessments of registration, voter turnout, or voter (e) Taxes related to political expenditures of organizations described tax in the case of flagrant political education constitute other expenses, expenditures of section 501(c)(3) treated as political expenditures by in section 501(c)(3) of the Internal organizations. Revenue Code. A Form 4720 required to reason of section 4955(d)(2)(E), only if (a) Authority for making. Any be filed by § 53.6011–1(b) for an the expenditures violate the prohibition assessment under section 6852 as a organization liable for tax imposed by on political activity provided in section result of a flagrant violation by a section section 4955(a) must be filed by the 501(c)(3). 501(c)(3) organization of the prohibition unextended due date for filing its (d) Abatement, refund, or no against making political expenditures annual information return under section assessment of initial tax. No initial must be authorized by the District (first-tier) tax will be imposed under 6033 or, if the organization is exempt Director. section 4955(a), or the initial tax will be from filing, the date the organization (b) Determination of income tax. An abated or refunded, if the organization would be required to file an annual organization shall be subject to an or an organization manager establishes information return if it was not exempt assessment of income tax under section to the satisfaction of the IRS that— from filing. The Form 4720 of a person 6852 only if the flagrant violation of the (1) The political expenditure was not whose taxable year ends on a date other prohibition against making political willful and flagrant; and than that on which the taxable year of expenditures results in revocation of the (2) The political expenditure was the organization described in section organization’s tax exemption under corrected. 501(c)(3) ends must be filed on or before section 501(a) because it is not (e) Correction—(1) Recovery of the 15th day of the fifth month described in section 501(c)(3). An Expenditure. For purposes of section following the close of the person’s organization subject to such an 4955(f)(3) and this section, correction of taxable year. assessment is not liable for income taxes a political expenditure is accomplished Par. 8. In § 53.6091–1, the section for any period prior to the effective date by recovering part or all of the heading is revised and paragraph (d) is of the revocation of the organization’s expenditure to the extent recovery is added to read as follows: tax exemption. possible, and, where full recovery § 53.6091±1 Place for filing chapter 42 tax (c) Payment. Where a District Director cannot be accomplished, by any returns. has made a determination of income tax additional corrective action which the under paragraph (b) of this section or of * * * * * Commissioner may prescribe. The (d) Returns of persons subject to a section 4955 excise tax, notwithstanding any other provision of law, any tax will organization making the political termination assessment. expenditure is not under any obligation Notwithstanding paragraph (c) of this become immediately due and payable. to attempt to recover the expenditure by section, income tax returns of persons The taxpayer is required to pay the legal action if the action would in all with respect to whom a chapter 42 tax amount of the assessment within 10 probability not result in the satisfaction assessment was made under section days after the District Director sends the of execution on a judgment. 6852(a) with respect to the taxable year notice and demand for immediate (2) Establishing safeguards. must be filed with the district director payment regardless of the filing of an Correction of a political expenditure as provided in paragraphs (a) and (b) of administrative appeal or of a court must also involve the establishment of this section. petition. Regardless of filing an sufficient safeguards to prevent future administrative appeal or of petitioning a political expenditures by the PART 301ÐPROCEDURE AND court, enforced collection action may organization. The determination of ADMINISTRATION proceed after the 10-day payment period whether safeguards are sufficient to unless the taxpayer posts the bond prevent future political expenditures by Par. 9. The authority citation for part described in section 6863. For purposes the organization is made by the District 301 continues to read in part as follows: of collection procedures such as section Director. Authority: 26 U.S.C. 7805 * * * 6331 (regarding levy), assessments (f) Effective date. This section is under the authority of paragraph (a) of effective December 5, 1995. § 301.6211±1 [Amended] this section do not constitute situations Par. 10. In § 301.6211–1, the last in which the collection of such tax is in § 53.4963±1 [Amended] sentence of paragraph (b) is amended by jeopardy and, therefore, do not suspend Par. 5. In § 53.4963–1, paragraphs (a), adding ‘‘or 6852’’ immediately after normal collection procedures. (b), and (c) are amended by adding the ‘‘section 6851’’. (d) Effective date. This section is reference ‘‘4955,’’ immediately after the effective December 5, 1995. reference ‘‘4952,’’ in each place it § 301.6212±1 [Amended] appears. Par. 11. In § 301.6212–1, the second § 301.6861±1 [Amended] sentence of paragraph (c) is amended by Par. 14. In § 301.6861–1, paragraph (g) § 53.6011±1 [Amended] adding ‘‘termination assessments in is amended by: Par. 6. In § 53.6011–1, paragraph (b) section 6851 or 6852,’’ immediately 1. Adding the language ‘‘4955(a),’’ is amended as follows: after ‘‘section 6213(b)(1),’’. immediately after ‘‘4952(a),’’. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62213

2. Adding the language ‘‘4955(b),’’ within 10 calendar days to the letter FEDERAL EMERGENCY immediately after ‘‘4952(b),’’. under paragraph (a) of this section in a MANAGEMENT AGENCY manner sufficient to dissuade the § 301.6863±1 [Amended] Assistant Commissioner (Employee 44 CFR Part 65 Par. 15. Section 301.6863–1 is Plans and Exempt Organizations) of the RIN 3067±AC38 amended as follows: need for an injunction, the file will be 1. Paragraph (a)(1) is amended by forwarded to the Commissioner of Review of Determinations for Required adding the language ‘‘, or under section Internal Revenue. The Commissioner of Purchase of Flood Insurance 6852 (referred to as a political Internal Revenue will personally assessment for purposes of this AGENCY: Federal Emergency section)’’ immediately after ‘‘for determine whether to forward to the Management Agency (FEMA). Department of Justice a purposes of this section)’’. ACTION: Final rule. 2. Paragraphs (a)(3) first sentence, recommendation that it immediately (a)(4) last sentence, and (b) first bring an action to enjoin the SUMMARY: This final rule establishes the sentence are amended by adding the organization from making further procedures for FEMA’s review of language ‘‘or political assessment’’ political expenditures. The determinations whether a building or immediately after ‘‘jeopardy Commissioner may also recommend manufactured home is located in an assessment’’ in each place it appears. that the court action include any other identified Special Flood Hazard Area. 3. Paragraph (b) is amended by adding action that is appropriate in ensuring The determination review process will the language ‘‘(or political assessment)’’ that the assets of the section 501(c)(3) provide an opportunity for borrowers immediately after ‘‘jeopardy’’ in the last organization are preserved for section and lenders of loans secured by sentence. 501(c)(3) purposes. The authority of the improved real estate to resolve disputes Commissioner to make the regarding contested determinations. § 301.6863±2 [Amended] determinations described in this EFFECTIVE DATE: January 2, 1996. Par. 16. In § 301.6863–2, paragraph (a) paragraph may not be delegated to any FOR FURTHER INFORMATION CONTACT: introductory text, the first sentence is other persons. Michael K. Buckley, P.E., Chief, Hazard amended by adding the language Identification Branch, Mitigation ‘‘6852,’’ immediately after ‘‘section (c) Flagrant political intervention. For purposes of this section, flagrant Directorate, 500 C Street SW., 6851,’’. Washington, DC 20472, (202) 646–2756, political intervention is defined as Par. 17. Section 301.7409–1 is added or by facsimile (202) 646–4596 (not toll- participation in, or intervention in under the undesignated centerheading free calls). ‘‘Civil Actions by the United States’’ to (including the publication and SUPPLEMENTARY INFORMATION: As part of read as follows: distribution of statements), any political its implementation of the National campaign by a section 501(c)(3) Flood Insurance Reform Act of 1994 § 301.7409±1 Action to enjoin flagrant organization on behalf of (or in political expenditures of section 501(c)(3) (NFIRA), FEMA published a proposed opposition to) any candidate for public organizations. rule (60 FR 31442, June 15, 1995) to office in violation of the prohibition on (a) Letter to organization. When the establish the procedures for its review of such participation or intervention in Assistant Commissioner (Employee determinations whether a building or section 501(c)(3) and the regulations Plans and Exempt Organizations) mobile home is located in an identified concludes that a section 501(c)(3) thereunder if the participation or Special Flood Hazard Area. The organization has engaged in flagrant intervention is flagrant. comment period ended on August 14, political intervention and is likely to (d) Effective date. This section is 1995. The proposed rule used the term continue to engage in political effective December 5, 1995. ‘‘mobile home’’ for consistency with the intervention that involves political statute. However, the term expenditures, the Assistant § 301.7422±1 [Amended] ‘‘manufactured home’’ is preferred in Commissioner (Employee Plans and Par. 18. In § 301.7422–1, paragraphs the industry, and is specifically defined Exempt Organizations) shall send a (a) introductory text, (c) introductory in both the National Flood Insurance letter to the organization providing it text and (d) are amended by adding the Program (NFIP) regulations at 44 CFR with the facts based on which the language ‘‘4955,’’ immediately after part 59, and in the standard flood insurance policy. Therefore, the term Service believes that the organization ‘‘4952,’’. has been engaging in flagrant political ‘‘manufactured home’’ will be used in intervention and is likely to continue to § 301.7611±1 [Amended] this final rule. engage in political intervention that This final rule addresses FEMA’s Par. 19. In § 301.7611–1, A–6, the first involves political expenditures. The requirement under 42 U.S.C. 4012a(e)(3) organization will have 10 calendar days sentence is amended by adding the to review a determination whether a after the letter is sent to respond by language ‘‘or 6852,’’ immediately after building or manufactured home is establishing that it will immediately ‘‘section 6851’’. located in an identified Special Flood cease engaging in political intervention, Margaret Milner Richardson, Hazard Area (SFHA) if jointly requested or by providing the Service with Commissioner of Internal Revenue. by the borrower and lender for a loan sufficient information to refute the secured by improved real estate or a Service’s evidence that it has been Approved: October 26, 1995. manufactured home. FEMA will begin engaged in flagrant political Leslie Samuels, accepting requests for determination intervention. The Internal Revenue Assistant Secretary of the Treasury. reviews under this regulation on Service will not proceed to seek an [FR Doc. 95–29094 Filed 12–4–95; 8:45 am] January 2, 1996. Requests should be injunction under section 7409 until after BILLING CODE 4830±01±U mailed to the following locations: the close of this 10-day response period. For Minnesota and locations east of the (b) Determination by Commissioner. If Mississippi River: Determination the organization does not respond Review Coordinator, c/o Dewberry & 62214 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

Davis, P.O. Box 2020, Merrifield VA zip code other than the one having Notification. One commenter 22116–2020. SFHAs, a determination of ‘‘Not in indicated that FEMA should not rely on For Louisiana and locations west of the SFHA’’ can be made quickly. This the Federal Register for notification of Mississippi River: Determination determination takes only minutes and the initial fee or subsequent increases or Review Coordinator, c/o Michael costs are minimal. Only when a request decreases in the amount, and suggested Baker Jr., Inc., 3601 Eisenhower for a determination is for a property that all interested parties be notified Avenue, Alexandria VA 22304–6439. with the zip code containing SFHAs is directly regarding fee changes. We received comments from 25 more effort required. Most of these Response. Publication in the Federal organizations and individuals, as determinations are for structures well Register is a legally acceptable method follows: 12 lenders, 9 associations, 3 away from the boundary of the SFHA to notify the public of rule changes. third party determinators, and 1 and are clearly shown in or out of the Notifying individual parties is not consultant. The greatest number of SFHA. FEMA’s role, and cannot be provided comments related to who pays the Determinations where a structure is within the constraints of FEMA’s budget requested fee (12 comments). Others located near the edge of a mapped and staff. We expect that organizations commented on whether FEMA will SFHA are the most complex because and trade associations that serve the accept individual requests (9 additional review is often required to banking industry will provide such comments), whether and when locate the structure accurately on the notification to their constituents. borrowers are required to purchase NFIP map. While these latter Payment Method. The proposed rule flood insurance (6 comments). We also determinations cost the determinator included an option of payment by credit received 6 comments stating that FEMA more, the inexpensive determinations card. On further investigation this should not require copies of NFIP maps comprise the vast majority of option will not be available because of to be submitted because it should determinations made. We expect that the expense that would be incurred by already have them on file. Summarized FEMA’s determination reviews will cost FEMA to process credit card payments. below are the comments we received more because we anticipate receiving Payment for requests for review must be and our responses to them. primarily requests for structures near made by check or by money order, in the boundary of mapped flood hazards, U.S. funds, payable to the National Fees where a review of the technical data Flood Insurance Program. The $60.00 fee for FEMA’s review of used in making the determination and Insurance Purchase Requirements determinations, contained in the comparing it to the printed map will be proposed rule, has been increased to required in order to issue a response. Forced placement. Five responders $80.00, based on FEMA’s anticipated Multiple structures. One commenter questioned how the request for review costs to process reviews of asked how the fee would apply to of lender determinations impacts the 45- determinations. The $80.00 fee does not multiple structures. day clock for forced placement of flood completely cover FEMA’s costs, and Response. One fee will apply to each insurance. One responder asked contains some subsidy to the requestor. Standard Flood Hazard Determination whether a lender could force place The costs for this service will be Form (SFHDF) submitted. Generally, an insurance during the 90-day window monitored and revised at the beginning SFHDF is prepared for a single structure (45 days to submit, 45 days to review) of FY 1997, if necessary. used as loan collateral. If a request for without liability or penalty, and Determination of fee. Two responders a determination review includes whether new extensions of credit asked how the fee was determined. multiple buildings, the fee will be based should be postponed pending FEMA’s Response. The amount of time on the number of SFHDFs included in Response. required to handle, record, document, the request. Response. Section 524 of the NFIRA and respond to these requests was Authority. Two responders requested states that if the request is made in estimated based on our experience with that FEMA cite the specific authority for connection with the origination of a high volumes of similar types of imposing a fee. loan and if FEMA fails to respond before requests. Using current $40 per hour fee Response. The authority for FEMA to the later of the expiration of the 45-day rates for the existing Letter of Map charge a fee is at 31 U.S.C. 9701, which period after receiving the request or Revision (LOMR) review process, we allows Federal agencies to recover costs closing of the loan, then flood insurance estimated the $80 fee based on the associated with providing something of is not required until such a letter is anticipated steps and time required to value to a customer. provided. Thus, section 524 only review a determination and process the Responsibility and Disclosure. Almost temporarily delays the flood insurance request. half of the responders asked who would purchase requirement. If the closing of Fee is excessive. Five responders felt pay the fee. Two responders asked how the loan occurs prior to 45 days after that the fee is excessive and more than the fee for a determination review FEMA receives a request, then the flood commercial third party determinators related to the Real Estate Settlement insurance purchase requirement is not charge for the same service. Procedures Act, if this fee was waived under section 524 because Response. The vast majority of flood considered a finance charge, and if the FEMA has not failed to respond within determinations made by third party fee needed to be disclosed. the 45-day period. If loan closing occurs determinators are for structures well Response. These issues were sent to after FEMA’s 45-day response period, away from the SFHA. These the Federal Financial Institutions then the mandatory flood insurance determinations can be done very Examination Council for the Council’s purchase requirement is waived only if quickly using automated processes at review and advice. We understand that FEMA’s response is not issued by loan very low cost. For example, a third party they will be considered by the Council closing. We plan to respond to requests determinator may determine that the during the comment period (October within 45 days. only area of a community having SFHAs 18–December 18, 1995) following the However, if we do not respond within has a specific zip code. Any time that publication of the proposed rule for 45 days and the mandatory purchase a third party determinator gets a request loans in areas having special flood requirement is delayed until we do for a determination in that community hazards (60 FR 53962, October 18, respond, it is nevertheless a prudent it first checks the zip code. If it is any 1995). business practice to require the Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62215 purchase of flood insurance to protect been incorrectly included in the SFHA, request for determination review is the collateral. The lender always retains or if conditions have changed since the missed. the prerogative to require flood NFIP map was issued. Response. In this case, flood insurance even when its purchase is not Signatures. One responder asked insurance should be purchased if Federally mandated. Flood insurance whether all borrowers had to sign the required. The procedures for a LOMA or premiums can be refunded if it is request. LOMR are available to individuals if a determined by FEMA that the structure Response. The request for a structure has been inadvertently is not located in the SFHA and the determination review must be signed by included in the SFHA or if conditions lender waives the flood insurance at least one of the borrowers, or the have changed since the NFIP map was purchase requirement. borrowers’ legal representative for the issued. Mandatory purchase. We received loan. Likewise, the lender must also Resubmittals. Two commenters asked comments noting that the proposed rule sign the request. To ensure the about the charge for resubmissions. Two did not address when borrowers are or involvement of all appropriate parties as others asked what effect a request are not required to purchase flood intended by the legislation, and to returned for insufficient data would insurance. Another commenter asked ensure an objective process, FEMA will have on the 45-day clock. whether the lender could waive the not accept the signature of a third party Response. Requests returned because flood insurance purchase requirement determinator as a representative for the the 45-day deadline was missed cannot while the determination is under borrower or the lender. be resubmitted. Requests returned for review. Others noted that FEMA’s Responsibility. Several requestors also insufficiency of information will have review of lender determinations should asked who is responsible for the the fee returned with the package. not delay flood insurance purchase preparation of the joint submittal and FEMA will return the entire package to requirements. whether others may join in on requests the borrower with the fee and a letter Response. As stated above, section or submit on behalf of the borrower and explaining what information is needed 524 temporarily delays the flood lender. for the review to be accomplished. The insurance purchase requirement only Response. The responsibility for the borrower will have 14 days from date of when FEMA fails to respond within its preparation of the request for review of FEMA’s letter or 45 days from the date allotted 45-day period. At all other a determination is held jointly, by both of lender notification, whichever is times, the mandatory purchase of flood the borrower and the lender. The data later, to send the request back to FEMA. insurance for structures located in package may be prepared by others, but A fee must be provided with any SFHAs remains in effect. the request itself must be an original resubmission; there is no second charge. (not photocopied), and signed by the Requirement for Joint Request The date of postmark from the sender borrower and lender, as discussed will determine the timeliness of the Individual requests. Seven responders above. resubmission. indicated that individual requests for Time Frames Start of 45 days for FEMA review and determination reviews should be response. Two responders asked when accepted, and that joint requests would Submittal. We received many the 45-day FEMA review clock would be too time consuming. comments on the requirement to submit begin and what effect, if any, an Response. The NFIRA states that the the request for a determination review uncollected fee would have on the borrower and lender of a loan secured within 45 days of the lender’s clock. by improved real estate or a notification to the borrower that flood Response. The 45-day timeframe for manufactured home may jointly request insurance is required. Two commenters FEMA to complete the review will begin the Director to review a determination questioned FEMA’s authority for on the day that FEMA receives a whether the building or manufactured limiting the time frame and five complete request supported by technical home is located in an area having commented that the time allotted was information at the proper location special flood hazards. FEMA interprets too short or should be eliminated. Other (addresses given above). Uncollected the statute to require a joint request comments indicated that the combined fees may be turned over to the Treasury from both the borrower and the lender submission and processing time was too Department for handling and such for this review. If an individual submits long or that the lender and borrower action will not have an impact on the a request for a determination review, should be allowed to submit at any processing of the review. FEMA will make a reasonable attempt to time, and that FEMA should expedite its Definitions. One responder asked for obtain the needed signature. However, if review. clarification of the word ‘‘submitted’’ as it is not possible to obtain both parties’ Response. We limited the time frame in ‘‘submitted within 45 days of the signatures for the request, FEMA will for submittal to permit us to provide lender’s notification’’. not review the request under 44 CFR reviews in a timely manner. The 45-day Response. Submitted means 65.17, and will return the request period is also within the time period in postmarked. This is defined in 44 CFR promptly in its entirety. FEMA will which loans are generally closed. This 65.17 (b) (3). notify the requestor that the data time frame avoids a protracted period of Timing of LOMAs and Determination submitted with the request do not meet time before a final determination is Reviews. One responder asked how the the requirements of 44 CFR 65.17; made whether the property is or is not 45-day time limit is impacted if a LOMA therefore, the lender’s obligation to located in a SFHA. Processing times or LOMR is requested before the request require the purchase of flood insurance may be minimized if a request for for a determination review. remains in effect. Further, we shall review is submitted immediately after Response. The determination review notify the requestor that other the lender notifies the borrower that procedures provide a mechanism for procedures are available to individuals flood insurance is required, and if a FEMA to review a lender’s or its agent’s under 44 CFR parts 70 and 65, complete data package is submitted to determination of whether a structure is commonly known as the Letter of Map FEMA. within a mapped SFHA. LOMA and Amendment (LOMA) and the Letter of Available options. One responder LOMR procedures allow the submittal Map Revision (LOMR) processes, if the asked what options are available if the of more detailed, site-specific requestor believes that a structure has 45-day window for the submittal of a information than was available when 62216 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations the maps were initially prepared. After of the SFHDF by lenders also begins on Distribution of correspondence. One reviewing this information, and if January 2, 1996. responder suggested that copies of the warranted, FEMA can revise the Technical data requirements. Five correspondence be provided to the mapped SFHAs by LOMA or LOMR. If responders expressed the need for borrower and the lender. the question is whether the NFIP map FEMA to define the technical data Response. Copies of the Letter of was read correctly, the determination requirements and provide examples. Determination Review will be sent to review procedure is appropriate. If the Response. FEMA needs the same the lender and the borrower, as well as question is whether the SFHA should be technical data that were used by the to the third party determinator, if changed, LOMA or LOMR procedures lender or third party determinator to known. Packages returned for are appropriate. In most instances, only make the determination. Items that insufficiency will be sent to the one procedure is applicable. However, typically complete this requirement borrower with notice of return to the should both procedures be underway include, but are not limited to, a copy lender. simultaneously, most likely they will be of the tax assessor’s map showing the Review of Accuracy of NFIP Map. One addressed separately. While FEMA has property, a map showing the location of responder asked whether FEMA’s 45 days to respond to a request for the structure on the property, a copy of review would include verification of the determination review, FEMA has 60 or the plat for the subdivision/tract or accuracy of the NFIP map. 90 days, respectively, to respond to similar document, and information Response. No. The purpose of the LOMA and LOMR requests because a showing the relationship of the NFIP review is to determine whether or not more detailed review is necessary. Any map and the location of the structure on the security property has been determination made through the the property. Structures located in rural accurately located on the effective NFIP determination review procedure will areas or areas where the NFIP map map. If the accuracy of the NFIP map is consider only effective LOMAs or contains few physical features may need in question, procedures under 44 CFR LOMRs, and the submittal and response additional data so that the structure can parts 70 and 65 must be used to request timeframes for the determination review be definitively located on the property a LOMA or LOMR. Review for Letters of Map Change. process will not change as a result of and the property located relative to One responder asked whether FEMA any ongoing LOMA or LOMR reviews. reference features. Multiple-unit would review for LOMAs and LOMRs, structures would need data for the Providing a Copy of the NFIP Map how it would perform this task, and entire building. Properties with multiple what LOMA/LOMR information would Seven responders questioned why a buildings must show data for all be provided back to the borrower and copy of the NFIP map must be structures. If a building has a porch or lender. submitted with the request when FEMA deck, this should be indicated in detail. Response. When reviewing a lender’s already has the maps on file. Incomplete submittals. One responder or its agent’s determination, FEMA will Response. The purpose of FEMA’s asked what happens to incomplete check its Community Information review is to judge whether the submissions and three asked when the System database for LOMAs and LOMRs determination presented by the lender is fee is returned. that would affect the determination. If appropriate. If the location of the Response. Incomplete submissions are the original determination overlooked a structure on the NFIP map used in that returned in their entirety, with the fee, LOMA or LOMR, FEMA’s final response determination is not provided with the to the borrower. Requests received with will so state and will provide the date submitted data, FEMA would have to a postmark more than 45 days after the of the letter. LOMAs and LOMRs are make an independent determination, date the lender notified the borrower available through the community’s map which was not the intent of the NFIRA. that flood insurance is required will also repository. In addition, FEMA publishes Further, if a copy of the NFIP map used be returned to the borrower with the fee. a compendium of all map changes semi- to make the determination is not The only data retained by FEMA are the annually in the Federal Register. provided, it would be unclear whether database record of the receipt and Initiation of LOMA/LOMR process. the current NFIP map panel was used to disposition of the request. There are no Two responders promoted the automatic make the determination. A full copy of circumstances when the fee can be initiation of the LOMA/LOMR process. the map panel is not required. The title reimbursed to the lender or borrower. Response. There will not be an block, including map date, scale bar, Format for requests. Five responders automatic initiation of the LOMA/ and north arrow, and the portion of the requested that FEMA provide a form or LOMR procedures from the 44 CFR map including the property location a format for requesting the reviews. 65.17 submission. Elevation data are not (with the property location noted) are Response. FEMA will provide considered in the determination review the only portions of the NFIP map that guidance on how to request a review, process, but are frequently required for need to be provided. but does not plan to develop an official the LOMA/LOMR process. The § 65.17 FEMA Processing form to be used when requesting procedure has been designed for fast determination reviews. This issue has response and the review of extra data Effective date. Four responders had been discussed with the lending will not be performed at this time. concerns about the effective date for the industry trade associations and they are FEMA’s response to a request for use of the Standard Flood Hazard willing to develop a recommended determination review that includes Determination Form (SFHDF) and the format that can be used. elevation data will include information commencement of FEMA’s reviews Publication of Letters of regarding other procedures that are under 44 CFR 65.17, and two Determination Review. One responder available to consider the elevation data. responders suggested that any form be asked whether FEMA will publish Format of FEMA’s Response. One admissible before January 1996. public notices of determination reviews responder asked whether FEMA’s Response. FEMA is currently similar to LOMAs and LOMRs. review would result in a Standard Flood developing a system to handle requests Response. No publication by FEMA is Hazard Determination Form prepared by for determination reviews and will contemplated because the determination FEMA. begin accepting requests under § 65.17 review does not change the effective Response. No. The intent of these on January 2, 1996. The mandatory use map. procedures is to provide a review of a Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62217 lender’s or its agent’s determination. upon request if the request meets the Response. This may have been a poor Section 524 of the NFIRA states that stipulated criteria. choice of words in the proposed rule. If FEMA shall provide to the borrower and Applicability of Process. One the lender or third party determinator the lender a letter stating whether or not responder asked if the procedure would uses prudent and reasonable judgment the building or manufactured home is in apply to existing loans as well as loan in their evaluations, disputes should not an area having special flood hazards. originations. arise that would require a determination Status inquiries. One responder Response. The process is available review by FEMA. wanted to know how to obtain the status within 45 days after the lender advises Use of term ‘‘mobile home.’’ One of the request after submission. the borrower that flood insurance is Response. Due to the anticipated required as a condition for the loan. responder stated that 44 CFR 65.17 volume of requests, such inquiries will Therefore, this procedure applies to all should use the term ‘‘manufactured not be accommodated. We plan to loans. home’’ instead of ‘‘mobile home’’ to be acknowledge receipt of the request Guarantee. One responder asked consistent with the NFIP regulations. within five days and to issue the final whether FEMA would guarantee its Response. Section 65.17 has been response within 45 days. determination. changed to use the term ‘‘manufactured Elevation data. A responder asked Response. No. A guarantee is only home.’’ that the final rule explicitly state that required if a third party completes the FEMA will not consider elevation data Standard Flood Hazard Determination National Environmental Policy Act for this review. The same responder Form for a lender. FEMA is not This final rule is categorically advocated that the determination review authorized to guarantee these excluded from the requirements of 44 process not result in the initiation of the determinations. However, FEMA will CFR part 10, Environmental LOMA/LOMR process. review the available data and ensure Consideration. No environmental Response. This is stated in the final that the determinations are as accurate impact assessment has been prepared. rule under 44 CFR 65.17(a). as possible. Initial Determinations. One responder Regulatory Flexibility Act Miscellaneous Comments suggested that FEMA should provide Definition of ‘‘in SFHA’’ and initial flood hazard determinations. The Associate Director for Mitigation ‘‘partially in SFHA’’. One responder Response. Although the NFIRA does certifies that this rule would not have a asked that ‘‘in the SFHA’’ be defined not prohibit FEMA from providing significant economic impact on a and another responder asked how we initial flood hazard determinations, we substantial number of small entities in would deal with reviews of ‘‘part in, interpret section 524 as providing a accordance with the Regulatory part out’’. mechanism for FEMA to review and Flexibility Act, 5 U.S.C. 601 et seq., Response. The SFHA is delineated on resolve appeals on others’ because it would not be expected (1) to the NFIP map for the community. For determinations. As indicated in the have significant secondary or incidental purposes of this procedure, if any part NFIRA, FEMA’s determination shall be effects on a substantial number of small of the structure is indicated to be in the final. As stated earlier, FEMA’s review entities, nor (2) to create any additional SFHA on the NFIP map, the structure is of a determination is based on the data burden on small entities. Moreover, considered to be in the SFHA and flood provided by others that allowed the establishing a procedure for FEMA’s insurance is required. The flood original determination to be made. review of determinations is required by insurance purchase requirement applies FEMA’s review of the determination the National Flood Insurance Reform to insurable structures. If a portion of will correct an error, if one was made Act of 1994, 42 U.S.C. 4012a. A the land lies in the SFHA, the purchase in locating a structure relative to a regulatory flexibility analysis has not of flood insurance is not Federally mapped SFHA, but does not change the been prepared. mandated unless the structure itself is map, the location of the property on the Regulatory Planning and Review indicated to be in or partially in the map, or the findings of a third party SFHA. determinator or lender if they correctly This final rule would not be a Determinations ‘‘Pursuant to a used the available data. Other significant regulatory action under Revision.’’ Several responders asked us procedures with additional data Executive Order 12866 of September 30, to clarify whether these determination requirements are available through 1994, Regulatory Planning and Review, review procedures were available in the FEMA’s LOMA and LOMR processes. 58 FR 51735. To the extent possible this case of a FEMA remapping. Upholding original determinations rule adheres to the principles of Response. These procedures are due to insufficient information. One regulation as set forth in Executive available for the review of lender responder asked for clarification on why Order 12866. This rule has not been determinations when requested within the original determination would be reviewed by the Office of Management 45 days after the borrower was notified ‘‘upheld’’ instead of ‘‘withheld’’ if and Budget under the provisions of that flood insurance is required, insufficient information was submitted Executive Order 12866. regardless of the impetus of the request. to review the determination. However, the intent of the Response. FEMA will presume the Paperwork Reduction Act determination review procedures is to lender or lender’s agent has made the allow a mechanism for FEMA to review correct determination and predicts that This final rule does not involve any a lender’s or its agent’s determination most determinations will not be collection of information for the when specifically requested. FEMA will submitted to FEMA for review. purposes of the Paperwork Reduction return requests at the outset if the Therefore, the lender’s determination is Act. submitted Standard Flood Hazard considered valid until found to be in Executive Order 12612, Federalism Determination Form is based on an error. We have revised the language in outdated map panel. After the lender 44 CFR 65.17(c)(2) to clarify this issue. This final rule involves no policies conducts or obtains a determination Unusual cases. A responder asked for that have federalism implications under using the current map panel in effect, clarification of the term ‘‘unusual Executive Order 12612, Federalism, FEMA will review the determination cases.’’ dated October 26, 1987. 62218 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

Executive Order 12778, Civil Justice must be postmarked within 45 days of FEDERAL COMMUNICATIONS Reform borrower notification); COMMISSION This rule meets the applicable (4) A completed Standard Flood 47 CFR Part 73 standards of section 2(b)(2) of Executive Hazard Determination Form for the Order 12778. building or manufactured home, Radio Broadcasting Services; Various List of Subjects in 44 CFR Part 65 together with a legible hard copy of all Locations technical data used in making the Flood insurance, Reporting and determination; and AGENCY: Federal Communications recordkeeping requirements. Commission. Accordingly, 44 CFR part 65 is (5) A copy of the effective NFIP map ACTION: Final rule. amended as follows: (Flood Hazard Boundary Map (FHBM) or Flood Insurance Rate Map (FIRM)) SUMMARY: The Commission, on its own PART 65ÐIDENTIFICATION AND panel for the community in which the motion, editorially amends the Table of MAPPING OF SPECIAL HAZARD building or manufactured home is FM Allotments to specify the actual AREAS located, with the building or classes of channels allotted to various manufactured home location indicated. communities. The changes in channel 1. The authority citation for part 65 is classifications have been authorized in revised to read as follows: Portions of the map panel may be submitted but shall include the area of response to applications filed by Authority: 42 U.S.C. 4001 et seq., the building or manufactured home in licensees and permittees operating on Reorganization Plan No. 3 of 1978, 43 FR these channels. This action is taken question together with the map panel 41943, 3 CFR, 1978 Comp., p. 329; E.O. pursuant to Revision of Section title block, including effective date, bar 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 73.3573(a)(1) of the Commission’s Rules 1979 Comp., p. 376. scale, and north arrow. Concerning the Lower Classification of 2. Section 65.17 is added to read as (c) Review and response by FEMA. an FM Allotment, 4 FCC Rcd 2413 follows: Within 45 days after receipt of a request (1989), and the Amendment of the to review a determination, FEMA will Commission’s Rules to Permit FM § 65.17 Review of determinations. notify the applicants in writing of one Channel and Class Modifications This section describes the procedures of the following: [Updates] by Applications, 8 FCC Rcd that shall be followed and the types of 4735 (1993). information required by FEMA to (1) Request submitted more than 45 days after borrower notification; no EFFECTIVE DATE: December 5, 1995. review a determination of whether a FOR FURTHER INFORMATION CONTACT: building or manufactured home is review will be performed and all materials are being returned; Kathleen Scheuerle, Mass Media located within an identified Special Bureau, (202) 414–2180. Flood Hazard Area (SFHA). (2) Insufficient information was SUPPLEMENTARY INFORMATION: This is a (a) General conditions. The borrower received to review the determination; and lender of a loan secured by summary of the Commission’s Report therefore, the determination stands until and Order, adopted November 8, 1995, improved real estate or a manufactured a complete submittal is received; or home may jointly request that FEMA and released November 24, 1995. The review a determination that the building (3) The results of FEMA’s review of full text of this Commission decision is available for inspection and copying or manufactured home is located in an the determination, which shall include during normal business hours in the identified SFHA. Such a request must the following: Commission’s Reference Center (Room be submitted within 45 days of the (i) The name of the NFIP community 239), 1919 M Street, NW., Washington, lender’s notification to the borrower that in which the building or manufactured DC. The complete text of this decision the building or manufactured home is in home is located; may also be purchased from the the SFHA and that flood insurance is (ii) The property address or other Commission’s copy contractors, required. Such a request must be identification of the building or International Transcription Services, submitted jointly by the lender and the manufactured home to which the Inc., 2100 M Street, NW., Suite 140, borrower and shall include the required determination applies; Washington, DC 20037, (202) 857–3800. fee and technical information related to the building or manufactured home. (iii) The NFIP map panel number and List of Subjects in 47 CFR Part 73 effective date upon which the Elevation data will not be considered Radio broadcasting. under the procedures described in this determination is based; Part 73 of title 47 of the Code of section. (iv) A statement indicating whether (b) Data and other requirements. Federal Regulations is amended as the building or manufactured home is follows: Items required for FEMA’s review of a within the Special Flood Hazard Area; determination shall include the PART 73Ð[AMENDED] following: (v) The time frame during which the (1) Payment of the required fee by determination is effective. 1. The authority citation for part 73 check or money order, in U.S. funds, Dated: November 22, 1995. continues to read as follows: payable to the National Flood Insurance Robert H. Volland, Authority: Secs. 303, 48 Stat., as amended, Program; 1082; 47 U.S.C. 154, as amended. (2) A request for FEMA’s review of the Acting Deputy Associate Director for determination, signed by both the Mitigation. § 73.202 [Amended] borrower and the lender; [FR Doc. 95–29561 Filed 12–4–95; 8:45 am] 2. Section 73.202(b), the Table of FM (3) A copy of the lender’s notification BILLING CODE 6718±04±P Allotments under Arkansas, is amended to the borrower that the building or by removing Channel 232C3 and adding manufactured home is in an SFHA and Channel 232C2 at Rogers. that flood insurance is required (the 3. Section 73.202(b), the Table of FM request for review of the determination Allotments under Hawaii, is amended Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62219 by removing Channel 224C3 and adding community’s first local FM service, at 47 CFR Part 73 Channel 224C2 at Hilo, and by removing the request of Laurie L. Ankarlo. See 55 [MM Docket No. 92±214; RM±8062; RM± Channel 299C1 and adding Channel FR 10791, March 23, 1990. Channel 8144; RM±8145; RM±8146; RM±8147] 299C3 at Volcano. 271A can be allotted to Brookline in 4. Section 73.202(b), the Table of FM compliance with the Commission’s Radio Broadcasting Services; Allotments under Minnesota, is minimum distance separation Columbia, Bourbon, Leasburg, Gerald, amended by removing Channel 294A requirements with a site restriction of Dixon, and Cuba, MO and adding Channel 294C2 at Babbitt. 11.9 kilometers (7.4 miles) northeast 5. Section 73.202(b), the Table of FM AGENCY: Federal Communications (37–15–26 and 93–21–19). With this Allotments under Mississippi, is Commission. action, this proceeding is terminated. amended by removing Channel 269C3 ACTION: Final rule. and adding Channel 269C2 at DATES: Effective January 12, 1996. The Gluckstadt. window period for filing applications SUMMARY: This document substitutes 6. Section 73.202(b), the Table of FM will open on January 12, 1996, and close Channel 244C1 for Channel 244C3 at Allotments under Montana, is amended on February 12, 1996. Columbia, Missouri, and modifies the by removing Channel 281C1 and adding construction permit for Station Channel 281C3 at East Helena. FOR FURTHER INFORMATION CONTACT: KCMQ(FM) to specify operation on the 7. Section 73.202(b), the Table of FM Arthur D. Scrutchins, Mass Media higher class channel in response to a Allotments under New Mexico, is Bureau, (202) 776–1660. petition filed by The Greenfield Group. amended by removing Channel 275C See 57 FR 44547, September 28, 1992. SUPPLEMENTARY INFORMATION: This is a and adding Channel 275C1 at Hobbs. The coordinates for Channel 244C1 at synopsis of the Commission’s Report 8. Section 73.202(b), the Table of FM Columbia are 38–37–40 and 92–07–00. and Order, MM Docket No. 90–195, Allotments under North Dakota, is To accommodate the Columbia upgrade, amended by removing Channel 244A adopted November 3, 1995, and released we shall substitute Channel 231A for and adding Channel 244C2 at Devils November 28, 1995. The full text of this Channel 244A at Bourbon, Missouri, at Lake. Commission decision is available for coordinates 38–05–00 and 91–15–00. In 9. Section 73.202(b), the Table of FM inspection and copying during normal response to a counterproposal filed by Allotments under Ohio, is amended by business hours in the FCC Reference Central Missouri Broadcasting, Inc., we removing Channel 282B1 and adding Center (Room 239), 1919 M Street, NW., shall allot Channel 221A to Dixon, Channel 282A at Richwood. Washington, DC. The complete text of Missouri, at coordinates 37–58–30 and 10. Section 73.202(b), the Table of FM this decision may also be purchased 92–10–10. Lake Broadcasting Allotments under South Dakota, is from the Commission’s copy counterproposed the substitution of amended by removing Channel 257A contractors, International Transcription Channel 297C3 for Channel 271A at and adding Channel 258C2 at Sisseton. Service, Inc., (202) 857–3800, 2100 M Cuba, Missouri, and modification of its 11. Section 73.202(b), the Table of FM Street, NW., Suite 140, Washington, DC construction permit accordingly. Allotments under Texas, is amended by 20037. However, since another party filed removing Channel 290A and adding comments indicating it would file an Channel 290C3 at San Diego. List of Subjects in 47 CFR Part 73 application for Channel 297C3 and no 12. Section 73.202(b), the Table of FM Radio broadcasting. other channels are available, we shall Allotments under Utah, is amended by allot Channel 297C3 to Cuba and open removing Channel 233C1 and adding Part 73 of title 47 of the Code of a filing window. The coordinates for Channel 233C at Logan. Channel 297C3 are 38–03–54 and 91– 13. Section 73.202(b), the Table of FM Federal Regulations is amended as 24–12. Jeff Weinhaus withdrew his Allotments under Washington, is follows: counterproposal for Leasburg, Missouri, amended by removing Channel 265A PART 73Ð[AMENDED] and Tony Knipp withdrew his and adding Channel 265C3 at counterproposal for Leasburg, Missouri, Grandview and by removing Channel 1. The authority citation for part 73 in accordance with Section 1.420(j) of 226C2 and adding Channel 224C2 at continues to read as follows: the Commission’s Rules. With this Omak. Authority: Secs. 303, 48 Stat., as amended, action, this proceeding is terminated. Federal Communications Commission. 1082; 47 U.S.C. 154, as amended. DATES: Effective January 9, 1996. The John A. Karousos, window period for filing applications Chief, Allocations Branch, Policy and Rules § 73.202 [Amended] will open on January 9, 1996, and close Division, Mass Media Bureau. 2. Section 73.202(b), the Table of FM on February 9, 1996. [FR Doc. 95–29481 Filed 12–4–95; 8:45 am] Allotments under Missouri, is amended FOR FURTHER INFORMATION CONTACT: BILLING CODE 6712±01±F by adding Brookline, Channel 271A. Kathleen Scheuerle, Mass Media Bureau, (202) 418–2180. Federal Communications Commission. 47 CFR Part 73 SUPPLEMENTARY INFORMATION: This is a John A. Karousos, summary of the Commission’s Report [MM Docket No. 90±195; RM±7152] Chief, Allocations Branch, Policy and Rules and Order, MM Docket No. 92–214, Division, Mass Media Bureau. adopted October 27, 1995, and released Radio Broadcasting Services; [FR Doc. 95–29482 Filed 12–4–95; 8:45 am] November 24, 1995. The full text of this Brookline, MO BILLING CODE 6712±01±F Commission decision is available for AGENCY: Federal Communications inspection and copying during normal Commission. business hours in the Commission’s ACTION: Final rule. Reference Center (Room 239), 1919 M Street, NW., Washington, DC. The SUMMARY: This document allots Channel complete text of this decision may also 271A to Brookline, Missouri, as that be purchased from the Commission’s 62220 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations copy contractors, International FOR FURTHER INFORMATION CONTACT: the offset designations for vacant Transcription Services, Inc., 2100 M Leslie K. Shapiro, Mass Media Bureau, Channel 48 at Greenwood, South Street, NW., Suite 140, Washington, DC (202) 418–2180. Carolina, and vacant Channel 48 at 20037, (202) 857–3800. SUPPLEMENTARY INFORMATION: This is a Columbus, Georgia. The coordinates for Channel 48+ at Tazewell are 36–27–32 List of Subjects in 47 CFR Part 73 synopsis of the Commission’s Report and Order, MM Docket No. 91–253, and 83–35–07. With this action, this Radio broadcasting. adopted November 3, 1995, and released proceeding is terminated. Part 73 of title 47 of the Code of November 24, 1995. The full text of this EFFECTIVE DATE: January 12, 1996. Federal Regulations is amended as Commission decision is available for FOR FURTHER INFORMATION CONTACT: Pam follows: inspection and copying during normal Blumenthal, Mass Media Bureau, (202) business hours in the FCC Reference 418–2180. PART 73Ð[AMENDED] Center (Room 239), 1919 M Street, NW., SUPPLEMENTARY INFORMATION: This is a 1. The authority citation for part 73 Washington, DC. The complete text of synopsis of the Commission’s Report continues to read as follows: this decision may also be purchased and Order, MM Docket No. 95–97, from the Commission’s copy contractor, Authority: Secs. 303, 48 Stat., as amended, adopted November 9, 1995, and released 1082; 47 U.S.C. 154, as amended. International Transcription Service, November 28, 1995. The full text of this Inc., (202) 857–3800, 2100 M Street, Commission decision is available for § 73.202 [Amended] NW., Suite 140, Washington, DC 20037. inspection and copying during normal 2. Section 73.202(b), the Table of FM List of Subjects in 47 CFR Part 73 business hours in the FCC Reference Allotments under Missouri, is amended Center (Room 239), 1919 M Street, NW., Radio broadcasting. by removing Channel 244C3 and adding Washington, DC. The complete text of Channel 244C1 at Columbia, by Part 73 of title 47 of the Code of this decision may also be purchased removing Channel 244A and adding Federal Regulations is amended as from the Commission’s copy contractor, Channel 231A at Bourbon, by adding follows: ITS, Inc., (202) 857–3800, 2100 M Cuba, Channel 297C3, and by adding Street, NW., Suite 140, Washington, DC Dixon, Channel 221A. PART 73Ð[AMENDED] 20037. Federal Communications Commission. 1. The authority citation for part 73 List of Subjects in 47 CFR Part 73 John A. Karousos, continues to read as follows: Television broadcasting. Chief, Allocations Branch, Policy and Rules Authority: Secs. 303, 48 Stat., as amended, Division, Mass Media Bureau. 1082; 47 U.S.C. 154, as amended. Part 73 of title 47 of the Code of [FR Doc. 95–29483 Filed 12–4–95; 8:45 am] Federal Regulations is amended as BILLING CODE 6712±01±F § 73.202 [Amended] follows: 2. Section 73.202(b), the Table of FM PART 73Ð[AMENDED] Allotments under Pennsylvania, is 47 CFR Part 73 amended by removing Channel 234A 1. The authority citation for part 73 [MM Docket No. 91±253; RM±6882] and adding Channel 234B1 at Tioga. continues to read as follows: Radio Broadcasting Services; Tioga, Federal Communications Commission. Authority: Secs. 303, 48 Stat., as amended, PA John A. Karousos, 1082; 47 U.S.C. 154, as amended. Chief, Allocations Branch, Policy and Rules § 73.606 [Amended] AGENCY: Federal Communications Division, Mass Media Bureau. 2. Section 73.606(b), the Table of TV Commission. [FR Doc. 95–29484 Filed 12–4–95; 8:45 am] ACTION: Final rule. Allotments under Tennessee, is BILLING CODE 6712±01±F amended by adding Tazewell, Channel SUMMARY: The Commission, at the 48+. request of Europa Communications, 47 CFR Part 73 Federal Communications Commission. Inc., substitutes Channel 234B1 for John A. Karousos, Channel 234A at Tioga, Pennsylvania, [MM Docket No. 95±97; RM±8651] Chief, Allocations Branch, Policy and Rules and modifies the license of Station Division, Mass Media Bureau. WPHD to specify the higher class Television Broadcasting Services; [FR Doc. 95–29485 Filed 12–4–95; 8:45 am] channel. See 56 FR 42967, September 6, Tazewell, TN BILLING CODE 6712±01±F 1991. Channel 234B1 can be allotted to AGENCY: Federal Communications Tioga in compliance with the Commission. Commission’s minimum distance ACTION: Final rule. 47 CFR Part 73 separation requirements with a site restriction of 10.3 kilometers (6.4 miles) SUMMARY: The Commission, at the [MM Docket No. 91±352; RM±7866] southwest, at coordinates 41–51–00 NL; request of James F. Stair, II, allots Radio Broadcasting Services; Ava, 77–13–49 WL, to avoid short-spacings to Channel 48 to Tazewell, Tennessee, as Branson and Mountain Grove, MO Stations WLVY, Channel 232A, Elmira, the community’s first local commercial NY, WYYY, Channel 233B, Syracuse, television service. See 60 FR 35372, July AGENCY: Federal Communications NY, and WIYN, Channel 234A, Deposit, 7, 1995. Channel 48 can be allotted to Commission. NY. Canadian concurrence in the Tazewell with a plus offset in ACTION: Final rule. allotment has been received since Tioga compliance with the Commission’s is located within 320 kilometers (200 minimum distance separation SUMMARY: This document substitutes miles) of the U.S.-Canadian border. requirements with a site restriction of Channel 292C2 for Channel 292C3 at With this action, this proceeding is 1.9 kilometers (1.2 miles) west. In order Branson, Missouri, and modifies the terminated. to accommodate the new TV station at construction permit for Station EFFECTIVE DATE: January 2, 1996. Tazewell, the Commission also changes KRZK(FM) to specify operation on the Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62221 higher class channel in response to a DEPARTMENT OF TRANSPORTATION Act. The amendments change the petition filed by Turtle Broadcasting Co. requirements concerning the deadlines of Branson. See 56 FR 65206, December National Highway Traffic Safety for petitions for extension of comments 16, 1991. In accordance with Section Administration period and for petitions for 1.420(g) of the Commission’s Rules we reconsideration. 49 CFR Part 553 shall modify the construction permit for Petitions for Extension of Comment Station KRZK(FM) to specify operation RIN 2127±AG04 Period on Channel 292C2. The coordinates for Channel 292C2 are 36–43–00 and 93– Rulemaking Procedures; Petitions for Section 553.19 specifies procedures 05–00. To accommodate the upgrade at Reconsideration; Petitions for for petitions for extension of the period Branson, we substituted Channel 221A Extension of Comment Period for submitting written comments on a for Channel 222A at Ava, Missouri, at notice such as a notice of proposed coordinates 36–55–48 and 92–39–19 AGENCY: National Highway Traffic rulemaking. For some time, the and modified the license for Station Safety Administration (NHTSA), DOT. procedures prescribed that petitions for KKOZ-FM and substituted Channel ACTION: Final Rule. extension must be received by NHTSA 223A for Channel 293A at Mountain not later than 10 days before the Grove, Missouri, at coordinates 37–08– SUMMARY: This rule makes two comment closing date stated in the 07 and 92–14–59 and modified the amendments to NHTSA’s procedural notice. license for Station KCMG-FM. With this rules. The first amendment requires In this final rule, NHTSA amends the action, this proceeding is terminated. petitions for extension of the period for procedures so that petitions for submitting written comments on a extension of the time period must be EFFECTIVE DATE: January 12, 1996. notice such as a notice of proposed received by NHTSA not later than 15 FOR FURTHER INFORMATION CONTACT: rulemaking to be submitted at least 15 days before the comment closing date. Kathleen Scheuerle, Mass Media days before the closing date for the This amendment is necessary to provide Bureau, (202) 418–2180. comment period. Previously, petitions NHTSA additional time to process such SUPPLEMENTARY INFORMATION: This is a could be submitted up to 10 days before petitions. As stated in section 553.19, summary of the Commission’s Report the closing date. This change will give the filing of the petition does not and Order, MM Docket No. 91–352, NHTSA additional time to process these automatically extend the time deadline adopted November 3, 1995, and released petitions and thus ensure that, when a for petitioner’s comments. With the November 28, 1995. The full text of this petition is granted, the notice extending additional time, NHTSA will be able to Commission decision is available for the comment period can be published more effectively consider and process inspection and copying during normal well before the original closing date. the petitions. business hours in the FCC Dockets The second amendment provides that The longer interval between the Branch (Room 230), 1919 M Street, NW., the agency will accept petitions for petition deadline and the comment Washington, DC. The complete text of reconsideration of a final rule if they are closing date will make it easier for the this decision may also be purchased received not more than 45 days after the agency to publish a Federal Register from the Commission’s copy publication of the final rule. Previously, document informing the public of the contractors, International Transcription petitions for reconsideration had to be extension well before the closing date. Services, Inc., 2100 M Street, NW., received not more than 30 days As has sometimes occurred under the Washington, DC 20037, (202) 857–3800. following publication of a final rule. previous 10-day deadline, the notice of List of Subjects in 47 CFR Part 73 NHTSA believes that the extension is extension of the comment period is warranted by the complexity of many of published only a day or two before the Radio broadcasting. its final rules. The additional time will initial scheduled closing date. The Part 73 of title 47 of the Code of allow interested parties to review the lateness of the publication reduces the Federal Regulations is amended as rules more effectively and better prepare value of the extension for many follows: their petitions for reconsideration. commenters. By two days before the DATES: initial comment closing date, most PART 73Ð[AMENDED] The amendments made in this rule are effective January 4, 1996. commenters will already have prepared comments. For these reasons, NHTSA 1. The authority citation for part 73 FOR FURTHER INFORMATION CONTACT: amends the time period for accepting continues to read as follows: Mary L. Versailles, Office of the Chief petitions for extension of time to Counsel, NCC–20, National Highway Authority: Secs. 303, 48 Stat., as amended, comment on rulemakings. 1082; 47 U.S.C. 154, as amended. Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC Petitions for Reconsideration § 73.202 [Amended] 20590. Telephone: (202) 366–2992. 2. Section 73.202(b), the Table of FM Section 553.35 establishes procedures SUPPLEMENTARY INFORMATION: Allotments under Missouri, is amended This for petitions of reconsideration of a final by removing Channel 222A and adding notice makes two amendments to Part rule. The procedures require that Channel 221A at Ava, by removing 553, Rulemaking Procedures, Title 49 of petitions for extension must be received Channel 292C3 and adding Channel the Code of Federal Regulations (CFR). by NHTSA not later than 30 days after 292C2 at Branson, and by removing Part 553 prescribes rulemaking publication of the rule in the Federal Channel 293A and adding Channel procedures that apply to the issuing, Register. Petitions received after that 223A at Mountain Grove. amending, and revoking of motor deadline are treated as petitions for vehicle safety, damageability, domestic rulemaking. Federal Communications Commission. content labeling, fuel economy, and In this final rule, NHTSA amends the John A. Karousos, theft rules pursuant to the authorizing procedures to provide 45 days for the Chief, Allocations Branch, Policy and Rules legislation formerly known as the receipt of petitions for reconsideration. Division, Mass Media Bureau. National Traffic and Motor Vehicle NHTSA believes that, by providing the [FR Doc. 95–29486 Filed 12–4–95; 8:45 am] Safety Act of 1966 and the Motor public additional time to review final BILLING CODE 6712±01±F Vehicle Information and Cost Savings rules, particularly complicated ones, the 62222 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations amendment will enable them to identify Regulatory Flexibility Act. For the Subpart BÐProcedures for Adoption of potential issues more thoroughly and reasons discussed above, I hereby certify Rules thus petition for reconsideration more that this rule will not have a significant 553.11 Initiation of rulemaking. effectively. economic impact on a substantial 553.13 Notice of proposed rulemaking. number of small entities. 553.15 Contents of notices of proposed Effective Date rulemaking. The amendments made in this final Paperwork Reduction Act 553.17 Participation of interested persons. rule are effective 30 days after 553.19 Petitions for extension of time to In accordance with the Paperwork publication in the Federal Register. If comment. Reduction Act of 1980 (P.L. 96–511), there is a document with an open 553.21 Contents of written comments. there are no requirements for 553.23 Consideration of comments comment period on that date of information collection associated with received. publication, and there are 15 or more this final rule. 553.25 Additional rulemaking proceedings. days remaining in the comment period, 553.27 Hearings. the deadline for filing a petition for National Environmental Policy Act 553.29 Adoption of final rules. extending the comment period is the 553.31–553.33 [Reserved] 15th day before the end of that comment NHTSA has also analyzed this final 553.35 Petitions for reconsideration. period. If there are less than 15 days rule under the National Environmental 553.37 Proceedings on petitions for remaining, the deadline for such a Policy Act and determined that it will reconsideration. petition is the 10th day before the end not have a significant impact on the 553.39 Effect of petition for reconsideration of the comment period. For any final human environment. on time for seeking judicial review. rule published less than 30 days before Executive Order 12612 (Federalism) Appendix to Part 553—Statement of Policy: date of publication, the deadline for Action on Petitions for Reconsideration submitting petitions for reconsideration NHTSA has analyzed this rule in Authority: 49 U.S.C. 322, 1657, 30101, et will be extended 15 days. accordance with the principles and seq., 30301, et seq., 30501, et seq., 32101, et seq., 32301, et seq., 32501, et seq., 32701, et Other Amendments criteria contained in E.O. 12612, and has determined that this rule will not seq., 32901, et seq., and 33101, et seq.; The agency is republishing the have significant federalism implications delegation of authority at 49 CFR 1.50. entirety of Part 553 to consolidate the to warrant the preparation of a Subpart AÐGeneral authority citations in one area. No other Federalism Assessment. substantive amendments have been § 553.1 Applicability. made to Part 553. Civil Justice Reform NHTSA is not soliciting public This part prescribes rulemaking comment on this amendment to part This final rule does not have any procedures that apply to the issuance, 553, since it is a rule of agency retroactive effect. Under 49 U.S.C. amendment, and revocation of rules procedure, and an opportunity for 30103, whenever a Federal motor pursuant to Title 49, Subtitle VI of the public comment is therefore not vehicle safety standard is in effect, a United States Code (49 U.S.C. 30101, et required under the Administrative State may not adopt or maintain a safety seq.). Procedure Act. standard applicable to the same aspect § 553.3 Definitions. of performance which is not identical to Rulemaking Analyses and Notices the Federal standard, except to the Administrator means the extent that the State requirement Administrator of the National Highway Executive Order 12866 and DOT Traffic Safety Administration or a Regulatory Policies and Procedures imposes a higher level of performance and applies only to vehicles procured person to whom he has delegated final NHTSA has considered the impact of for the State’s use. 49 U.S.C. 30161 sets authority in the matter concerned. this rulemaking action under the Rule includes any order, regulation, forth a procedure for judicial review of Department of Transportation’s or Federal motor vehicle safety standard final rules establishing, amending or regulatory policies and procedures. This issued under Title 49. revoking Federal motor vehicle safety rulemaking document was not reviewed Title 49 means 49 U.S.C. 30101, et standards. That section does not require under E.O. 12866, ‘‘Regulatory Planning seq. and Review.’’ This action has been submission of a petition for determined to be not ‘‘significant’’ reconsideration or other administrative § 553.5 Regulatory docket. under the Department of proceedings before parties may file suit (a) Information and data deemed Transportation’s regulatory policies and in court. relevant by the Administrator relating to procedures. This final rule merely List of Subjects in 49 CFR Part 553 rulemaking actions, including notices of makes a procedural change, by proposed rulemaking; comments amending the deadlines by which a Administrative practice and received in response to notices; petition for extension of comment procedure. petitions for rulemaking and reconsideration; denials of petitions for period and a petition for reconsideration In consideration of the foregoing, 49 rulemaking and reconsideration; records must be received by NHTSA. The final CFR Part 553 is revised to read as of additional rulemaking proceedings rule will have no effect on the follows: substantive rights of any public under § 553.25; and final rules are commenters or other interested parties. PART 553ÐRULEMAKING maintained in the Docket Room, For these reasons, NHTSA has PROCEDURES National Highway Traffic Safety determined that the effects of this rule Administration, 400 Seventh Street SW., are so minimal that a full regulatory Subpart AÐGeneral Washington, DC 20590. evaluation is not required. Sec. (b) Any person may examine any docketed material at the Docket Room at Regulatory Flexibility Act 553.1 Applicability. 553.3 Definitions. any time during regular business hours NHTSA has also considered the 553.5 Regulatory docket. after the docket is established, except impacts of this final rule under the 553.7 Records. material ordered withheld from the Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62223 public under applicable provisions of containing information, views or officials designated by the Title 49 and section 552(b) of title 5 of arguments. Administrator, at which a transcript or the U.S.C., and may obtain a copy of it (b) In his discretion, the minutes are kept, or participate in any upon payment of a fee. Administrator may invite any interested other proceeding to assure informed person to participate in the rulemaking administrative action and to protect the § 553.7 Records. procedures described in § 553.25. public interest. Records of the National Highway Traffic Safety Administration relating to § 553.19 Petitions for extension of time to § 553.27 Hearings. comment. rulemaking proceedings are available for (a) Sections 556 and 557 of title 5, inspection as provided in section 552(b) A petition for extension of the time to United States Code, do not apply to of title 5 of the U.S.C. and Part 7 of the submit comments must be received not hearings held under this part. Unless regulations of the Secretary of later than 15 days before expiration of otherwise specified, hearings held Transportation (Part 7 of this title). the time stated in the notice. The under this part are informal, petitions must be submitted to: nonadversary, fact-finding proceedings, Subpart BÐProcedures for Adoption Administrator, National Highway at which there are no formal pleadings of Rules Traffic Safety Administration, U.S. or adverse parties. Any rule issued in a Department of Transportation, 400 § 553.11 Initiation of rulemaking. case in which an informal hearing is Seventh Street SW, Washington, DC, held is not necessarily based exclusively 20590. It is requested, but not required, The Administrator may initiate on the record of the hearing. that 10 copies be submitted. The filing rulemaking either on his own motion or (b) The Administrator designates a of the petition does not automatically on petition by any interested person representative to conduct any hearing extend the time for petitioner’s after a determination in accordance with held under this part. The Chief Counsel comments. Such a petition is granted Part 552 of this title that grant of the designates a member of his staff to serve only if the petitioner shows good cause petition is advisable. The Administrator as legal officer at the hearing. may, in his discretion, also consider the for the extension, and if the extension recommendations of other agencies of is consistent with the public interest. If § 553.29 Adoption of final rules. the United States. an extension is granted, it is granted to Final rules are prepared by all persons, and it is published in the § 553.13 Notice of proposed rulemaking. representatives of the office concerned Federal Register. and the Office of the Chief Counsel. The Unless the Administrator, for good § 553.21 Contents of written comments. rule is then submitted to the cause, finds that notice is impracticable, All written comments shall be in Administrator for its consideration. If unnecessary, or contrary to the public the Administrator adopts the rule, it is interest, and incorporates that finding English. Unless otherwise specified in a notice requesting comments, comments published in the Federal Register, and a brief statement of the reasons for unless all persons subject to it are it in the rule, a notice of proposed may not exceed 15 pages in length, but necessary attachments may be appended named and are personally served with a rulemaking is issued and interested copy of it. persons are invited to participate in the to the submission without regard to the rulemaking proceedings under 15-page limit. Any interested person § 553.31±553.33 [Reserved] applicable provisions of Title 49. shall submit as a part of his written comments all material that he considers § 553.35 Petitions for reconsideration. § 553.15 Contents of notices of proposed relevant to any statement of fact made (a) Any interested person may rulemaking. by him. Incorporation by reference petition the Administrator for (a) Each notice of proposed should be avoided. However, if reconsideration of any rule issued under rulemaking is published in the Federal incorporation by reference is necessary, this part. The petition shall be Register, unless all persons subject to it the incorporated material shall be submitted to: Administrator, National are named and are personally served identified with respect to document and Highway Traffic Safety Administration, with a copy of it. page. It is requested, but not required, 400 Seventh Street, SW, Washington, (b) Each notice, whether published in that 10 copies and attachments, if any, DC, 20590. It is requested, but not the Federal Register or personally be submitted. required, that 10 copies be submitted. served, includes § 553.23 Consideration of comments The petition must be received not later (1) A statement of the time, place, and received. than 45 days after publication of the nature of the proposed rulemaking All timely comments are considered rule in the Federal Register. Petitions proceeding; before final action is taken on a filed after that time will be considered (2) A reference to the authority under rulemaking proposal. Late filed as petitions filed under Part 552 of this which it is issued; comments may be considered as far as chapter. The petition must contain a (3) A description of the subjects and practicable. brief statement of the complaint and an issues involved or the substance and explanation as to why compliance with terms of the proposed rule; § 553.25 Additional rulemaking the rule is not practicable, is (4) A statement of the time within proceedings. unreasonable, or is not in the public which written comments must be The Administrator may initiate any interest. Unless otherwise specified in submitted; and further rulemaking proceedings that he the final rule, the statement and (5) A statement of how and to what finds necessary or desirable. For explanation together may not exceed 15 extent interested persons may example, interested persons may be pages in length, but necessary participate in the proceedings. invited to make oral arguments, to attachments may be appended to the participate in conferences between the submission without regard to the 15- § 3.17 Participation of interested persons. Administrator or his representative and page limit. (a) Any interested person may interested persons at which minutes of (b) If the petitioner requests the participate in rulemaking proceeding by the conference are kept, to appear at consideration of additional facts, he submitting comments in writing informal hearings presided over by must state the reason they were not 62224 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations presented to the Administrator within DEPARTMENT OF COMMERCE England Fishery Management Council the prescribed time. (Council), to the FMPs for the Atlantic National Oceanic and Atmospheric (c) The Administrator does not sea scallop, northeast multispecies and Administration consider repetitious petitions. the American lobster fisheries. These amendments, which were intended to (d) Unless the Administrator 50 CFR Parts 649, 650, and 651 address overfishing in these fisheries, otherwise provides, the filing of a [Docket No. 950824215±5275±03; I.D. implemented measures that limited petition under this section does not stay 050295B] access to these fisheries based upon the effectiveness of the rule. historical participation. The Council did RIN 0648±AH37 not, however, intend to force vessel § 553.37 Proceedings on petitions for owners to remain active in currently reconsideration. American Lobster Fishery; Atlantic Sea Scallop Fishery; Northeast overfished fisheries in order to retain The Administrator may grant or deny, Multispecies Fishery; Vessel fishing rights for the future. To address in whole or in part, any petition for Ownership Requirements this problem, the Council requested reconsideration without further NMFS to implement this action, which proceedings. In the event he determines AGENCY: National Marine Fisheries will allow an applicant who has owned to reconsider any rule, he may issue a Service (NMFS), National Oceanic and a vessel that meets the various limited final decision on reconsideration Atmospheric Administration (NOAA), access permit qualification criteria, but without further proceedings, or he may Commerce. who does not own a vessel at the time provide such opportunity to submit ACTION: Final rule. of application, to preserve his/her right comment or information and data as he to qualify for a Federal limited access deems appropriate. Whenever the SUMMARY: NMFS issues this final rule to permit for a replacement vessel in Administrator determines that a petition implement measures contained in subsequent years in the Atlantic sea should be granted or denied, he Framework Adjustment 1 to the scallop and northeast multispecies prepares a notice of the grant or denial American Lobster Fishery Management fisheries, and in the American lobster Plan (FMP), Framework Adjustment 3 to of a petition for reconsideration, for fishery. Qualified applicants will be the Atlantic Sea Scallop FMP, and issuance to the petitioner, and issues it allowed to apply for a Confirmation of Framework Adjustment 7 to the Permit History and will need to apply to the petitioner. The Administrator Northeast Multispecies FMP. This rule for such annually to preserve the permit may consolidate petitions relating to the implements framework adjustments that and fishing history of the qualifying same rule. revise a provision in each of the FMPs vessel. See the proposed rule, which § 553.39 Effect of petition for that requires all permit applicants to was published in the Federal Register reconsideration on time for seeking judicial own a fishing vessel at the time they on September 1, 1995 (60 FR 45690), for review. apply for or renew a limited access further background and rationale for permit. The intent of this rule is to this action. The filing of a timely petition for allow certain applicants who have Comments and Responses reconsideration of any rule issued under owned vessels that meet the various this part postpones the expiration of the limited access permit qualification The Council had discussed and heard 60-day period in which to seek judicial criteria, but who do not currently own public comment on this issue at the review of that rule, as to every person a vessel, to preserve their eligibility to September 21–22, 1994, Council adversely affected by the rule. Such a apply for a Federal limited access meeting, at which time the Council person may file a petition for judicial permit for a replacement vessel in initiated this framework action. The review at any time from the issuance of subsequent years by obtaining a public was notified of this Council the rule in question until 60 days after Confirmation of Permit History. meeting, and of the final Council publication in the Federal Register of EFFECTIVE DATE: December 4, 1995. meeting held on October 28–29, 1994, at the Administrator’s disposition of any which time this action was further ADDRESSES: Copies of the Framework timely petitions for reconsideration. discussed. No public comments were Adjustments, Amendment 5 to the received. The proposed rule, however, American Lobster FMP, Amendment 4 Appendix to Part 553—Statement of which was published in the Federal to the Atlantic Sea Scallop FMP, and Policy: Action on Petitions for Register on September 1, 1995 (60 FR Amendment 5 to the Northeast Reconsideration 45690), provided the public with 15 Multispecies FMP, including regulatory additional days to comment. No It is the policy of the National Highway impact reviews, initial regulatory additional comments were received by Traffic Safety Administration to issue notice flexibility analyses, and final the September 15, 1995, closing date. of the action taken on a petition for supplemental environmental impact reconsideration within 90 days after the statements are available upon request Classification closing date for receipt of such petitions, from Douglas Marshall, Executive unless it is found impracticable to take action This final rule has been determined to Director, New England Fishery within that time. In cases where it is so found be not significant for purposes of E.O. Management Council, 5 Broadway, and the delay beyond that period is expected 12866. Saugus, MA 01906–1097; telephone to be substantial, notice of that fact, and the The Assistant General Counsel for date by which it is expected that action will 617–231–0422. Legislation and Regulation of the be taken, will be published in the Federal FOR FURTHER INFORMATION CONTACT: E. Department of Commerce certified to Register. Martin Jaffe, Fishery Policy Analyst, the Chief Counsel for Advocacy of the Issued on: November 28, 1995. 508–281–9272. Small Business Administration when SUPPLEMENTARY INFORMATION: this rule was proposed that it would not Ricardo Martinez, have a significant economic impact on Administrator. Background a substantial number of small entities. [FR Doc. 95–29394 Filed 12–4–95; 8:45 am] In 1994, NMFS implemented major As a result, a regulatory flexibility BILLING CODE 4910±59±P amendments, developed by the New analysis was not prepared. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62225

Under 5 U.S.C. 553(d)(1), because this if the fishing and permit history of such Atlantic sea scallops in quantities rule relieves a restriction on the vessel has been retained lawfully by the greater than 40 lb (18.14 kg) shucked industry, it is not subject to a 30-day applicant. To be eligible to obtain a scallops or 5 bushels (176.2 l) in-shell, delay in effective date. Confirmation of Permit History, the except vessels that fish exclusively in Notwithstanding any other provision applicant must show that the qualifying state waters for sea scallops, must have of law, no person is required to respond vessel meets the eligibility been issued and carry on board a valid to, nor shall a person be subject to a requirements, as applicable, in this part. limited access scallop permit or a valid penalty for failure to comply with a Issuance of a valid and current general scallop permit, issued under collection-of-information subject to the Confirmation of Permit History this section. requirements of the Paperwork preserves the eligibility of the applicant (a) * * * Reduction Act (PRA) unless that to apply for or renew a limited access (10) Confirmation of Permit History. collection-of-information displays a permit for a replacement vessel based Notwithstanding any other provisions of currently valid Office of Management on the qualifying vessel’s fishing and this part, a person who does not and Budget (OMB) Control Number. permit history at a subsequent time, currently own a fishing vessel, but who This rule contains a collection-of- subject to the replacement provisions has owned a qualifying vessel that has information requirement subject to the specified at § 649.4. A Confirmation of sunk, been destroyed, or transferred to PRA that has been approved by OMB Permit History must be applied for and another person, may apply for and under OMB Control Number 0648–0202. received on an annual basis in order for receive a Confirmation of Permit History The public reporting burden for the applicant to preserve the fishing if the fishing and permit history of such completing an application for a rights and limited access eligibility of vessel has been retained lawfully by the Confirmation of Permit History is the qualifying vessel. If fishing applicant. To be eligible to obtain a estimated at 0.5 hours per response. privileges have been assigned or Confirmation of Permit History, the This estimate includes the time for allocated previously under this part applicant must show that the qualifying reviewing instructions, searching based on the qualifying vessel’s fishing vessel meets the eligibility existing data sources, gathering and and permit history, the Confirmation of requirements, as applicable, in this part. maintaining the data needed, and Permit History also preserves such Issuance of a valid and current completing and reviewing the collection fishing privileges. Any decision Confirmation of Permit History of information. regarding the issuance of a Confirmation preserves the eligibility of the applicant of Permit History for a qualifying vessel to apply for or renew a limited access List of Subjects that has applied for or been issued permit for a replacement vessel based 50 CFR Part 649 previously a limited access permit on the qualifying vessel’s fishing and under this part is a final agency action permit history at a subsequent time, Fisheries. subject to judicial review under 5 U.S.C. subject to the replacement provisions 50 CFR Part 650 704. Applications for a Confirmation of specified at § 650.4. A Confirmation of Permit History shall be accepted by the Permit History must be applied for and Fisheries, Reporting and Regional Director on or before December received on an annual basis in order for recordkeeping requirements. 31, 1995. For subsequent years, the applicant to preserve the fishing 50 CFR Part 651 applications must be received by the rights and limited access eligibility of the qualifying vessel. If fishing Fisheries, Fishing, Reporting and end of the calendar year in which the privileges have been assigned or recordkeeping requirements. Confirmation of Permit History expires. Information requirements for the allocated previously under this part Dated: November 28, 1995. Confirmation of Permit History based on the qualifying vessel’s fishing Gary Matlock, application shall be the same as those and permit history, the Confirmation of Program Management Officer, National for a limited access permit with any Permit History also preserves such Marine Fisheries Service. request for information about the vessel fishing privileges. Any decision For the reasons set out in the being applicable to the qualifying vessel regarding the issuance of a Confirmation preamble, 50 CFR parts 649, 650, and that has been sunk, destroyed, or of Permit History for a qualifying vessel 651 are amended as follows: transferred. Vessel permit applicants that has applied for or been issued who hold a Confirmation of Permit previously a limited access permit PART 649ÐAMERICAN LOBSTER History and who wish to obtain a vessel under this part is a final agency action FISHERY permit for a replacement vessel based subject to judicial review under 5 U.S.C. 704. Applications for a Confirmation of 1. The authority citation for part 649 upon the previous vessel history may do Permit History shall be accepted by the continues to read as follows: so pursuant to paragraph (b) of this section. Regional Director on or before December Authority: 16 U.S.C. 1801 et seq. * * * * * 31, 1995. For subsequent years, such 2. In § 649.4, paragraph (b)(6) is added applications must be received by the to read as follows: PART 650ÐATLANTIC SEA SCALLOP end of the calendar year in which the FISHERY Confirmation of Permit History expires. § 649.4 Vessel permits. Information requirements for the * * * * * 3. The authority citation for part 650 Confirmation of Permit History (b) * * * continues to read as follows: application shall be the same as those (6) Confirmation of Permit History. Authority: 16 U.S.C. 1801 et seq. for a limited access permit with any Notwithstanding any other provisions of 4. In § 650.4, the introductory text is request for information about the vessel this part, a person who does not revised and paragraph (a)(10) is added being applicable to the qualifying vessel currently own a fishing vessel, but who to read as follows: that has been sunk, destroyed or has owned a qualifying vessel that has transferred. Vessel permit applicants sunk, been destroyed, or transferred to § 650.4 Vessel permits. who hold a Confirmation of Permit another person, may apply for and Any vessel of the United States that History and who wish to obtain a vessel receive a Confirmation of Permit History fishes for, possesses, or lands per trip permit for a replacement vessel based 62226 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations upon the previous history may do so the applicant to preserve the fishing larger than maximum-yield-per-recruit pursuant to paragraph (a) of this section. rights and limited access eligibility of size. * * * * * the qualifying vessel. If fishing EFFECTIVE DATE: January 1, 1996, privileges have been assigned or through December 31, 1996. PART 651ÐNORTHEAST allocated previously under this part FOR FURTHER INFORMATION CONTACT: MULTISPECIES FISHERY based on the qualifying vessel’s fishing Myles Raizin, Resource Policy Analyst, and permit history, the Confirmation of 5. The authority citation for part 651 508-281-9104. Permit History also preserves such continues to read as follows: fishing privileges. Any decision SUPPLEMENTARY INFORMATION: Authority: 16 U.S.C. 1801 et seq. regarding the issuance of a Confirmation A final rule implementing 6. In § 651.4, paragraph (a) of Permit History for a qualifying vessel Amendment 8 to the Fishery introductory text is revised and that has applied for or been issued Management Plan for the Atlantic Surf paragraph (a)(10) is added to read as previously a limited access permit Clam and Ocean Quahog Fishery was follows: under this part is a final agency action published on June 14, 1990 (55 FR subject to judicial review under 5 U.S.C. 24184). Section 652.22(a)(1) allows the § 651.4 Vessel permits. 704. Applications for a Confirmation of Regional Director to suspend, annually, * * * * * Permit History shall be accepted by the by publication of a document in the (a) Limited access multispecies Regional Director on or before December Federal Register, the minimum size permits. Beginning on May 1, 1994, any 31, 1995. For subsequent years, such limit for Atlantic surf clams. This action vessel of the United States that applications must be received by the may be taken unless discard, catch, and possesses or lands more than the end of the calendar year before the year survey data indicate that as much as 30 possession limit of regulated species for which the Confirmation of Permit percent of the Atlantic surf clam specified under § 651.27(a), except History expires. Information resource is smaller than 4.75 inches vessels fishing with fewer than 4,500 requirements for the Confirmation of (12.065 cm), and the overall reduced hooks that have been issued a hook- Permit History application shall be the size is not attributable to beds where gear-only permit as specified in same as those for a limited access growth of the individual clams has been paragraph (b) of this section, vessels permit with any request for information reduced because of density-dependent fishing for regulated species exclusively about the vessel being applicable to the factors. in state waters, and recreational fishing qualifying vessel that has been sunk, At its August 1995 meeting, the Mid- vessels, must have been issued and destroyed or transferred. Vessel permit Atlantic Fishery Management Council carry on board a valid Federal limited applicants who hold a Confirmation of (Council) accepted the access multispecies permit, or an Permit History and who wish to obtain recommendations of its Statistical and authorizing letter issued under a vessel permit for a replacement vessel Scientific Committee and Surf Clam/ paragraph (a)(8)(v) of this section. To based upon the previous vessel history Ocean Quahog Committee and voted to qualify for a limited access multispecies may do so pursuant to paragraph (a) of recommend that the Director, Northeast permit, a vessel must meet the following this section. Region, NMFS (Regional Director), criteria, as applicable: * * * * * suspend the minimum size limit for surf * * * * * clams in 1996. NMFS port agents [FR Doc. 95–29518 Filed 12–4–95; 8:45 am] (10) Confirmation of Permit History. conducted a random sample of surf Notwithstanding any other provisions of BILLING CODE 3510±22±F clams landed in 1995. Results indicate this part, a person who does not that only 10.67 percent of the sample currently own a fishing vessel, but who 50 CFR Part 652 was composed of clams that were less has owned a qualifying vessel that has than 4.75 inches (12.065 cm). Based on sunk, been destroyed, or transferred to [Docket No. 900124±0127; I.D. 110795D] the sampling results, the Regional another person, may apply for and Director adopts the Council’s receive a Confirmation of Permit History Atlantic Surf Clam and Ocean Quahog recommendation and publishes this if the fishing and permit history of such Fishery; Suspension of Minimum Size document to suspend the minimum size vessel has been retained lawfully by the Limit for Surf Clams in 1996 limit for Atlantic surf clams for the applicant. To be eligible to obtain a period January 1, 1996, through Confirmation of Permit History, the AGENCY: National Marine Fisheries December 31, 1996. applicant must show that the qualifying Service (NMFS), National Oceanic and vessel meets the eligibility Atmospheric Administration (NOAA), Classification requirements, as applicable, in this part. Commerce. This action is authorized by 50 CFR Issuance of a valid and current ACTION: Suspension of surf clam part 652 and is exempt from review Confirmation of Permit History minimum size limit. under E.O. 12866. preserves the eligibility of the applicant Authority: 16 U.S.C. 1801 et seq. to apply for or renew a limited access SUMMARY: NMFS informs the public that permit for a replacement vessel based the minimum size limit of 4.75 inches Dated: November 16, 1995. on the qualifying vessel’s fishing and (12.065 cm) for Atlantic surf clams is Richard W. Surdi, permit history at a subsequent time, suspended for the 1996 fishing year. Acting Director, Office of Fisheries subject to the replacement provisions The intended effect is to reduce a Conservation and Management, National specified at § 651.4. A Confirmation of regulatory burden while still Marine Fisheries Service. Permit History must be applied for and safeguarding the resource by assuring [FR Doc. 95–29517 Filed 12–4–95; 8:45 am] received on an annual basis in order for that the vast majority of surf clams are BILLING CODE 3510±22±F 62227

Proposed Rules Federal Register Vol. 60, No. 233

Tuesday, December 5, 1995

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: forth under the following regulations: contains notices to the public of the proposed Executive Order 12866 (1) Institution appeal procedures in 7 issuance of rules and regulations. The CFR § 226.6(k); and (2) Disputes purpose of these notices is to give interested This proposed rule has been involving procurement by State agencies persons an opportunity to participate in the determined to be not significant for and institutions must follow rule making prior to the adoption of the final purposes of Executive Order 12866, and, rules. administrative appeal procedures to the therefore, has not been reviewed by the extent required by 7 CFR § 226.22 and Office of Management and Budget. 7 CFR Part 3015. DEPARTMENT OF AGRICULTURE Regulatory Flexibility Act Background This action has been reviewed with Food and Consumer Service The Child and Adult Care Food regard to the requirements of the Program (CACFP) is authorized by 7 CFR Part 226 Regulatory Flexibility Act (5 U.S.C. section 17 of the National School Lunch 601–612). The Administrator of the Act, as amended (42 U.S.C. 1766). Food and Consumer Service has RIN 0584±AB19 Section 17(n) of that Act stipulates that certified that this action will not have a ‘‘States and institutions participating in significant economic impact on a Child and Adult Care Food Program: the program shall keep accounts and substantial number of small entities. Overclaim Authority records as may be necessary to enable There will be no significant impact the Secretary to determine whether because this rule represents only a AGENCY: Food and Consumer Service, there has been compliance with the clarification of current procedures. USDA. requirements of this section.’’ Executive Order 12372 Furthermore, the CACFP regulations ACTION: Proposed rule. This Program is listed in the Catalog include a number of requirements of Federal Domestic Assistance under relating to recordkeeping: Section SUMMARY: This rule proposes an 226.7(m) requires State agencies to amendment to the Child and Adult Care No. 10.558 and is subject to the provisions of Executive Order 12372, establish standards for institutional Food Program (CACFP) regulations recordkeeping; Section 226.15(e) which would explicitly authorize the which requires intergovernmental consultation with State and local prescribes the minimum recordkeeping Department and State agencies to assess officials (7 CFR Part 3015, Subpart V, requirements for institutions in the overclaims against institutions that fail and final rule related notice published CACFP; Section 226.10(c) requires to abide by CACFP recordkeeping in 48 FR 29114, June 24, 1983). institutions to certify that records are requirements. This authority has been available to support reimbursement successfully challenged in several Information Collection claims; and Section 226.10(d) judicial rulings on the grounds that such This proposed rule contains no new establishes a timeframe for record authority was not specifically information collection requirements. In retention. Moreover, Section 226.6(f)(1) established in program regulations. This accordance with the Paperwork requires that the Program agreement rule serves to affirm the Department’s Reduction Act of 1980 (44 U.S.C. 3507), between the State agency and each authority to assess overclaims for current reporting and recordkeeping institution stipulate that each recordkeeping infractions and to clarify requirements for Part 226 were participating institution must agree to any regulatory ambiguities or approved by the Office of Management comply with all regulatory requirements inconsistencies regarding overclaims and Budget under Control Number including these recordkeeping authority. 0584–0055. requirements. Finally, the importance with which the Department views an DATES: To be assured of consideration, Executive Order 12778 institution’s recordkeeping comments must be postmarked no later This proposed rule has been reviewed responsibilities is found in Section than February 5, 1996. under Executive Order 12778, Civil 226.6(c)(4), where failure to maintain ADDRESSES: Comments should be Justice Reform. This rule is intended to adequate records is specifically listed as addressed to Mr. Robert M. Eadie, Chief, have preemptive effect with respect to a serious deficiency for which Policy and Program Development any State or local laws, regulations or termination of an institution’s Branch, Child Nutrition Division, Food policies which conflict with its participation may be appropriate. and Consumer Service, Department of provisions or which would otherwise On numerous occasions, the Agriculture, 3101 Park Center Drive, impede its full implementation. This Department and State agencies have Room 1007, Alexandria, Virginia 22302. rule is not intended to have retroactive used the authority in the regulatory Comments in response to this rule may effect unless so specified in the provisions cited above to recover funds be inspected at the address above during ‘‘Effective Date’’ section of the preamble paid to institutions which did not have normal business hours, 8:30 a.m. to 5:00 of the final rule. All available records necessary to support claims for p.m., Monday through Friday. administrative procedures must be reimbursement. However, this authority exhausted prior to any judicial has been successfully challenged in FOR FURTHER INFORMATION CONTACT: Mr. challenge to the provisions of this rule court cases in Arkansas and California. Robert M. Eadie or Mr. Edward or the application of its provisions. In In both cases, assessment of overclaims Morawetz at the above address or by the Child and Adult Care Food Program, against institutions which were based telephone at 703–305–2620. the administrative procedures are set on inadequate or missing records were 62228 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules overturned by the courts on the grounds § 226.14 Claims against institutions. accordance with § 226.12(a). Failure to that the CACFP regulations do not (a) * * * State agencies may consider maintain such records shall be grounds specifically authorize overclaims for claims for reimbursement not properly for the denial of reimbursement for the those reasons. payable if an institution does not costs associated with those records In recognition of the fact that State comply with the recordkeeping during the period covered by the agencies may review an institution’s requirements contained in this records in question. performance under the CACFP as part. * * * * * * * * infrequently as once every four years, * * * * * 5. In § 226.17, a new paragraph (c) is effective administration depends on 3. In § 226.15: added to read as follows: access to complete documentation of a. The introductory text of paragraph program activities for an entire review (e) is revised; § 226.17 Child care center provisions. period. Such documentation is b. Paragraphs (e)(10), (e)(11) and * * * * * necessary for the Department and State (e)(12) are redesignated as paragraphs (c) Each child care center shall agencies to maintain a check on possible (e)(11), (e)(13) and (e)(14); comply with the recordkeeping fraud, abuse and mismanagement in the c. New paragraphs (e)(10) and (e)(12) requirements established in §§ 226.10(d) Program. Without proper records are added; and 226.15(e), and the recordkeeping concerning the content and number of d. Newly redesignated paragraph requirements contained in this section. meals served, and documentation of (e)(11) is amended by removing the Failure to maintain such records shall participants’ income category, there is word ‘‘and’’ at the end of the paragraph; be grounds for the denial of no evidence that such participants were e. Newly redesignated paragraph reimbursement for meals served during fed in accordance with basic program (e)(13) is amended by adding the word the period covered by the records in requirements, and no assurance that ‘‘and’’ after the semicolon at the end of question and for the denial of program funds were spent as mandated the paragraph; and reimbursement for costs associated with in the law and in the regulations. f. Newly redesignated paragraph such records. Accordingly, the Department is (e)(14) is amended by removing the first 6. In § 226.18, a new paragraph (g) is proposing to amend Sections 226.14(a), word ‘‘Maintain’’ from the paragraph. added to read as follows: 226.15(e) and 226.16(e), and to add new The additions and revisions specified § 226.18 Day care home provisions. Sections 226.17(c), 226.18(g), 226.19(c), above read as follows: and 226.19a(c) to the CACFP regulations * * * * * to clarify that failure to adhere to § 226.15 Institution provisions. (g) Each day care home shall comply CACFP recordkeeping requirements * * * * * with the recordkeeping requirements may be used as a basis for State agencies (e) Recordkeeping. Each institution established in §§ 226.10(d) and to assess overclaims against sponsors. shall establish procedures to collect and 226.15(e), and the recordkeeping This rulemaking also contains a maintain all necessary program records. requirements contained in this section. technical change to the CACFP Failure to maintain such records shall Failure to maintain such records shall regulations which would transfer two be grounds for denial of reimbursement be grounds for the denial of recordkeeping responsibilities for meals served during the period reimbursement for meals served during established for sponsoring organizations covered by the records in question and the period covered by the records in from Section 226.16(e) to Section for the denial of reimbursement for costs question. 226.15(e). associated with such records. At a 7. In § 226.19, a new paragraph (c) is Accordingly, the Department minimum, the following records shall added to read as follows: be collected and maintained: proposes to amend Sections 226.15(e) § 226.19 Outside-school-hours care center and 226.16(e) by moving Section * * * * * provisions. 226.16(e) (1)–(2) to Section 226.15(e) (10) Information concerning the dates * * * * * under redesignated paragraphs (10) and and amounts of disbursement to each (c) Each outside-school-hours care (12). child care facility or adult day care center shall comply with the facility with which it has a program List of Subjects in 7 CFR Part 226 recordkeeping requirements established agreement; in §§ 226.10(d) and 226.15(e), and the Day care, Food assistance programs, * * * * * recordkeeping requirements contained Grant programs-health, infants and (12) Information concerning the in this section. Failure to maintain such children, Records, Reporting and location and dates of each child care or records shall be grounds for the denial recordkeeping requirements, Surplus adult day care facility review, any of reimbursement for meals served agricultural commodities. problems noted, and the corrective during the period covered by the Accordingly, 7 CFR Part 226 is action prescribed and effected; records in question and for the denial of proposed to be amended as follows: * * * * * reimbursement for costs associated with 4. In § 226.16, paragraph (e) is revised such records. PART 226ÐCHILD AND ADULT CARE to read as follows: 8. In § 226.19a, a new paragraph (c) is FOOD PROGRAM added to read as follows: § 226.16 Sponsoring organization 1. The authority citation for Part 226 provisions. § 226.19a Adult day care center continues to read as follows: * * * * * provisions. Authority: Secs. 9, 11, 14, 16, and 17, (e) Each sponsoring organization shall * * * * * National School Lunch Act, as amended (42 comply with the recordkeeping (c) Each adult day care center shall U.S.C. 1758, 1759a, 1762a, 1765 and 1766). requirements established in §§ 226.10(d) comply with the recordkeeping 2. In § 226.14, the introductory text of and 226.15(e) and any recordkeeping requirements established in §§ 226.10(d) paragraph (a) is amended by adding a requirements established by the State and 226.15(e), and the recordkeeping new sentence after the first sentence to agency in order to justify the requirements contained in this section. read as follows: administrative payments made in Failure to maintain such records shall Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62229 be grounds for the denial of SUPPLEMENTARY INFORMATION: A public 1111 Constitution Avenue NW. reimbursement for meals served during hearing was held November 14, 1995, in Washington, DC. Submit requests to the period covered by the records in Spokane, Washington to receive speak and outlines of oral comments to question and for the denial of evidence on whether the marketing CC:DOM:CORP:R [CO–24–95], room reimbursement for costs associated with order regulating the handling of 5228, Internal Revenue Service, P.O. such records. spearmint oil produced in the Far West Box 7604, Ben Franklin Station, Dated: November 27, 1995. should be amended to exclude from the Washington, DC 20044. William E. Ludwig, area of regulation portions of the States FOR FURTHER INFORMATION CONTACT: of California and Montana. Administrator. Christina Vasquez of the Regulations Pursuant to the applicable rules of [FR Doc. 95–29569 Filed 12–4–95; 8:45 am] Unit, Assistant Chief Counsel practice and procedure governing the (Corporate), (202) 622–6803 (not a toll- BILLING CODE 3410±30±U formulation of marketing agreements free number). and orders (7 CFR part 900), the SUPPLEMENTARY INFORMATION: A notice Administrative Law Judge assigned to Agricultural Marketing Service of proposed rulemaking and notice of conduct the proceeding established public hearing appearing in the Federal 7 CFR Part 985 December 22, 1995, as the date by Register for Tuesday, July 18, 1995 (60 which proposed findings and FR 36755), announced that the Service [Docket No. AO±79±2; FV95±985±4] conclusions and written arguments or would hold a public hearing on briefs must be filed. Any proposed proposed regulations that provide rules Spearmint Oil Produced in the Far findings and conclusions and written for disallowing loss and excluding gain West; Proposed Amendment of arguments or briefs must be based upon for certain dispositions and other Marketing Order No. 985 the evidence received at the hearing. transactions involving stock of the Factual material other than that common parent of a consolidated group AGENCY: Agricultural Marketing Service, adduced at the hearing or subject to USDA. on Thursday, November 16, 1995, official notice shall not be alluded to, beginning at 10:00 a.m. in the IRS ACTION: Notice of order filed on and will not be considered in Auditorium. proposed rulemaking. determining whether the marketing The date and time of the public order should be amended. SUMMARY: The purpose of this document hearing has changed. The hearing is is to inform all interested parties that an Authority: 7 U.S.C. 607–674. scheduled for Monday, December 11, order was filed by the presiding Dated: November 30, 1995. 1995, beginning at 1:00 p.m. The Administrative Law Judge in this matter Sharon Bomer Lauritsen, requests to speak and outlines of oral stating that briefs, proposed findings, Deputy Director, Fruit and Vegetable Division. comments were due October 26, 1995. and conclusions may be filed no later [FR Doc. 95–29571 Filed 12–4–95; 8:45 am] Because of controlled access restrictions, attenders are not admitted than December 22, 1995. A hearing to BILLING CODE 3410±02±P consider amendments to the Federal beyond the lobby of the Internal marketing order covering the handling Revenue Building until 12:45 p.m. The service will prepare an agenda of spearmint oil grown in the Far West DEPARTMENT OF THE TREASURY and to receive evidence on whether showing the scheduling of the speakers portions of the States of California and Internal Revenue Service and make copies available free of charge Montana should continue to be at the hearing. regulated under the order, was held on 26 CFR Part 1 Cynthia E. Grigsby, November 14, 1995, in Spokane, [CO±24±95] Chief, Regulations Unit, Assistant Chief Washington. Counsel (Corporate). DATES: Proposed findings and RIN 1545±AT51 [FR Doc. 95–29510 Filed 12–4–95; 8:45 am] BILLING CODE 4830±01±P conclusions and written arguments or Consolidated GroupsÐIntercompany briefs must be filed by December 22, Transactions and Related Rules; 1995. Hearing ADDRESSES: Proposed findings and DEPARTMENT OF THE INTERIOR conclusions and written arguments or AGENCY: Internal Revenue Service, briefs should be sent to the office of the Treasury. Office of Surface Mining Reclamation and Enforcement hearing clerk, U.S. Department of ACTION: Change of date and time for Agriculture, Room 1079–South public hearing on proposed regulations. 30 CFR Part 913 Building, Washington, DC 20250–9200. SUMMARY: FOR FURTHER INFORMATION CONTACT: This document changes the [SPATS No. IL±089±FOR] date and time of the public hearing on (1) Caroline C. Thorpe, Marketing Illinois Regulatory Program Order Administration Branch, Fruit and proposed regulations that provide rules for disallowing loss and excluding gain Vegetable Division, Room 2523–S, AMS, AGENCY: Office of Surface Mining for certain dispositions and other USDA, PO Box 96456, Washington, DC Reclamation and Enforcement (OSM), transactions involving stock of the 20090–6456; telephone number (202) Interior. common parent of a consolidated group. 720–5127. ACTION: Proposed rule; reopening and DATES: The public hearing has changed (2) Robert Curry, Northwest Marketing extension of public comment period on to Monday, December 11, 1995, Field Office, Marketing Order proposed amendment. Administration Branch, Fruit and beginning at 1:00 p.m. Vegetable Division, AMS, USDA, 1220 ADDRESSES: The public hearing will be SUMMARY: OSM is announcing receipt of SW. Third Avenue, Room 369, Portland, held in the Internal Revenue Service revisions and additional explanatory Oregon, 97204; telephone: (503) 326– Auditorium, Seventh floor, 7400 information pertaining to a previously 2725. Corridor, Internal Revenue Building, proposed amendment to the Illinois 62230 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules regulatory program (hereinafter referred SUPPLEMENTARY INFORMATION: hearing; and 62 IAC 1850, Training, to as the ‘‘Illinois program’’) under the I. Background on the Illinois Program examination and certification of Surface Mining Control and blasters. Reclamation Act of 1977 (SMCRA). The On June 1, 1982, the Secretary of the OSM announced receipt of the revisions and additional explanatory Interior conditionally approved the proposed amendment in the February Illinois program. Background information for Illinois’ proposed 27, 1995, Federal Register (60 FR information on the Illinois program, regulations pertain to termination of 10522) and invited public comment on including the Secretary’s findings, the its adequacy. The public comment jurisdiction, permit fees, definitions, disposition of comments, and the coal exploration, permitting, period ended March 29, 1995. conditions of approval can be found in During its review of the amendment, environmental resources, reclamation the June 1, 1982, Federal Register (47 OSM identified concerns relating to 62 plans, special categories of mining, FR 23883). Subsequent actions IAC 1701. Appendix A, definition of small operator assistance, bonding, concerning the conditions of approval wetlands; 62 IAC 1773.20, general performance standards, inspection, and program amendments can be found procedures for improvidently issued enforcement, civil penalties, at 30 CFR 913.15, 913.16, 913.17. permits; 62 IAC 1773.23, review of administrative and judicial review, and ownership or control and violation certification of blasters. The amendment II. Discussion of the Proposed Amendment information; 62 IAC 1773.24, is intended to revise the Illinois procedures for challenging ownership or program to be consistent with the By letter dated February 3, 1995 control shown in the Applicant Violator corresponding Federal regulations, (Administrative Record No. IL–1615), System; 62 IAC 1785.17, prime incorporate the additional flexibility Illinois submitted a proposed farmlands; 62 IAC 1816/1817.13 and afforded by recently revised Federal amendment to its program pursuant to 1816/1817.15, casing and sealing of regulations, provide additional SMCRA. Illinois submitted the proposed drilled holes; 62 IAC 1816/ safeguards, clarify ambiguities, and amendment in response to an August 5, 1817.116(a)(3)(F) and 62 IAC improve operational efficiency. 1993, letter (Administrative Record No. 1816.116(a)(4)(A)(ii), revegetation IL–1400) that OSM sent to Illinois in standards for small isolated areas; 62 DATES: Written comments must be accordance with 30 CFR 732.17(c), in IAC 1816.116(a)(4)(D), revegetation received by 4:00 p.m., e.s.t., January 4, response to the required program standards for hay production; 62 IAC 1996. If requested, a public hearing on amendments at 30 CFR 913.16(s), (t), 1816/1817.116(a)(5), wetlands the proposed amendment will be held and (u), and at its won initiative. The revegetation; 62 IAC 1816/1817.116(c), on January 2, 1996. Requests to speak at provisions of Title 62 of the Illinois revegetation reference areas; and 62 IAC the hearing must be received by 4:00 Administrative Code (IAC) that Illinois 1816.Appendix A, permit specifics yield p.m., e.s.t., on December 20, 1995. proposes to amend are 62 IAC 1700, standards. OSM notified Illinois of the General; 62 IAC 1701.Appendix A, concerns by letters dated April 28 and ADDRESSES: Written comments and Definitions; 62 IAC 1761.11, Areas requests to speak at the hearing should August 3, 1995 (Administrative Record where mining is prohibited or limited, Nos. IL–1649 and IL–1660, be mailed or hand delivered to Roger W. 62 IAC 1772, Requirements for coal respectively). Illinois responded in a Calhoun, Director, Indianapolis Field exploration; 62 IAC 1773, Requirements letter dated November 1, 1995 Office at the address listed below. for permits and permit processing; 62 (Administrative Record No. IL–1663), by Copies of the Illinois program, the IAC 1774.13, Permit revisions; 62 IAC submitting a revised amendment and proposed amendment, a listing of any 1778.15, Right of entry information; 62 additional explanatory information. scheduled public hearings, and all IAC 1779, Surface mining permit Throughout the revised amendment, written comments received in response applications—minimum requirements Illinois proposes to change its references to this document will be available for for information on environmental of the ‘‘Illinois Department of Mines and public review at the addresses listed resources; 62 IAC 1780.23, Reclamation Minerals’’ to the ‘‘Illinois Department of below during normal business hours, plan: per-mining and post-mining Natural Resources, Office of Mines and Monday through Friday, excluding information; 62 IAC 1783, Underground Minerals’’ in order to reflect a holidays. Each requester may receive mining permit applications—minimum reorganization change which was one free copy of the proposed requirements for information on effective July 1, 1995, and to change its amendment by contacting OSM’s environmental resources; 62 IAC references of the ‘‘Soil Conservation Indianapolis Field Office. 1784.15, Reclamation plan: pre-mining Service’’ and ‘‘S.C.S.’’ to the ‘‘Natural and post-mining information; 62 IAC Resources Conservation Service.’’ Roger W. Calhoun, Director Indianapolis 1785, Requirements for permits for Illinois, also, corrected typographical Field Office, Office of Surface Mining special categories of mining; 62 IAC errors, revised cross-references, and Reclamation and Enforcement, 1795, Small operator assistance; 62 IAC revised paragraph notations to reflect Minton-Capehart Federal Building, 1800, Bonding and insurance organizational changes within the 575 North Pennsylvania Street, Room requirements for surface coal mining amended regulations. In addition, 301, Indianapolis, Indiana, 46204, and reclamation operations; 62 IAC Illinois proposes revisions to and/or Telephone: (317) 226–6700. 1816, Permanent program performance additional explanatory information for Illinois Department of Natural standards—surface mining activities; 62 the following specific regulations. Resources, Office of Mines and IAC 1817, Permanent program performance standards—underground A. 62 IAC 1701.Appendix A Definition Minerals, 524 South Second Street, of Wetlands Springfield, Illinois, 62701–1787, mining activities; 62 IAC 1825.14, High Telephone: (217) 782–4970. capability lands: soil replacement; 62 In its letter dated April 28, 1995 IAC 1840, Department inspections; 62 (Administrative Record No. 1649), OSM FOR FURTHER INFORMATION CONTACT: IAC 1843, State enforcement; 62 IAC requested Illinois to provide a statement Roger W. Calhoun, Director Indianapolis 1845.12, When penalty will be assessed; which explains the meaning of the last Field Office, Telephone: (317) 226– 62 IAC 1847, Administrative and sentence of the ‘‘wetlands’’ definition 6700. judicial review; 62 IAC 1845.5, Notice of [Areas which are restored or created as Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62231 the result of mitigation or planned AVS or the status of federal violations the appeal, unless temporary relief is construction projects and which with procedures for those persons granted in accordance with 62 Ill. Adm. function as a wetland are included eligible under subsection (a)(3) to Code 1847.3(k). within this definition even when all challenge the status of state violations. E. 62 IAC 1785.17 Prime Farmlands three wetland parameters are not The revised regulations read as follows: present]. At the May 31, 1995, meeting (b) Any applicant or other person who At 62 IAC 1785.17(d)(1), Illinois (Administrative Record No. 1654), wishes to challenge an ownership or proposes to reinstate the sentence ‘‘The Illinois stated that it was using the control link shown in AVS or the status State recognizes that the permit cannot definition of wetlands contained in the of a state violation, and who is eligible be issued without the required Illinois Interagency Wetland Policy Act to do so under the provisions of consultation with USDA.’’ of 1989 (20 ILCS 830/1–6). Illinois subsection (a)(3) above, shall submit a F. 62 IAC 1816 (Surface Mining explained that the definition applies to written explanation of the basis for the Activities) and 1817 (Underground created wetlands which are functioning challenge, along with any relevant Mining Activities) Permanent Program as a wetland ‘‘* * * even when all three evidentiary materials and supporting Performance Standards wetland parameters are not present.’’ documents. Illinois further explained that generally (c) The Department shall review any Since most of the surface mining and the ‘‘hydric’’ soil profile may not be information submitted under subsection underground mining regulations in fully developed in an artificial wetland. (b) above and shall make a written these parts are identical, the revisions Illinois submitted a copy of the decision whether or not the ownership are being combined for discussion ‘‘Interagency Wetlands Policy Act of or control link has been shown to be purposes, unless otherwise noted. 1989’’ to OSM (Administrative Record erroneous or has been rebutted and/or 1. 62 IAC 1816.13 and 1816.15 Casing No. 1650A). whether the violation covered by the notice remains outstanding, has been and Sealing of Drilled Holes and 62 IAC B. 62 IAC 1773.20 Improvidently corrected, is in the process of being 1817.13 and 1817.15 Casing and Sealing Issued Permits: General Procedures corrected, or is the subject of a good or Exposed Underground Openings At 62 IAC 1773.20(c)(4), Illinois faith appeal within the meaning of Illinois proposes to withdraw its proposes to change the word ‘‘rescind’’ Section 1773.15(b)(1). originally proposed requirements that in the sentence ‘‘If the Department (d) Notice to applicant. exposed underground openings be (1) If, as a result of the decision decides to rescind the permit, it shall backfilled. give at least 30 days written notice to reached under subsection (c) above, the the permittee’’ to the word ‘‘suspend.’’ Department determines that the 2. IAC 1816.116(a)(2)(F)/ ownership or control link has been 1817.116(a)(2)(F) Revegetation C. 62 IAC 1773.23 Review of shown to be erroneous or has been Standards for Success: Augmentation Ownership or Control and Violation rebutted and/or that the violation a. At 62 IAC 1816/1817.116(a)(2)(F)(i), Information covered by the notice has been Illinois proposes to reinstate the existing corrected, is in the process of being At 62 IAC 1773.23(a), Illinois language from 62 IAC 1816/ corrected, or is the subject of a good proposes to change its regulation 1817.116(a)(2)(F)(ii) and add some faith appeal, the Department shall so reference from ‘‘1773.22(b)’’ to clarification language. This revised notify the applicant or other person and, ‘‘1773.22.’’ provision reads as follows: At 62 IAC 1773.23(b)(2)(B), Illinois if an application is pending, OSM, and proposes to change its regulation shall correct the information in AVS. The five (5) year period of responsibility reference from ‘‘1773.15(b)’’ to (2) If, as a result of the decision shall not recommence after deep tillage on areas where the operator has met the ‘‘1773.15(b)(1).’’ reached under subsection (c) above, the Department determines that the revegetation success standards of subsection (a)(3)(E) below. D. 62 IAC 1773.24 Procedures for ownership or control link has not been Challenging Ownership or Control Links shown to be erroneous and has not been b. Originally proposed 62 IAC 1816/ Shown in the Applicant Violator System rebutted and that the violation covered 1817.116(a)(2)(F) is redesignated 62 IAC At 62 IAC 1773.34(a)(1), Illinois by the notice remains outstanding, the 1816/1817.116(a)(2)(F)(ii), and Illinois proposes to change the regulation Department shall so notify the applicant proposes to add the follow exception to reference from ‘‘subsections (b) through or other person and, if an application is its provision that considers the (d) below and Section 1773,25’’ to ‘‘30 pending, OSM, and shall update the application of chemical treatments or CFR 773.24(b) through (d) and 30 CFR information is AVS, if necessary. fertilizers to wetland areas as 773.25.’’ (3) The Department shall serve a copy augmentation. At 62 IAC 1773.24(a)(2), Illinois of the decision on the applicant or other Except that wetlands managed as wildlife proposes to change the regulation person by certified mail, or by any food plot areas using agricultural techniques reference from ‘‘subsections (b) through means consistent with the rules shall not be considered augmented when (d)’’ to ‘‘30 CFR 773.24 (b) through (d).’’ governing service of a summons and normal husbandry practices, such as routine At 62 IAC 1773.24(a)(3), Illinois complaint under Rule 4 of the Federal liming and fertilization, are used. proposes to replace the language ‘‘the Rules of Civil Procedure. Service shall 3. 62 IAC 1816.116(a)(3)(F)/ State program for the State that issued be complete upon tender of the notice 1817.116(a)(3)(F) Revegetation the violation notice’’ with subsections or of the mail and shall not be deemed Standards for Success: Non-contiguous (b) through (d) below and Section 1 incomplete because of a refusal to Areas 773.25.’’ accept. At 62 IAC 1773.24 (b) through (d), (4) The applicant or other person may If response to issues raised in OSM’s Illinois proposes to replace the appeal the Department’s decision within letters dated April 28 and August 3, originally proposed procedures for those 30 days of service of the decision in 1995 (Administrative Record Nos. IL– persons eligible under subsections (a)(1) accordance with 62 Ill. Adm. Code 1649 and IL–1660, respectively), Illinois or (a)(2) to challenge the status of an 1847.3. The Department’s decision shall proposes to revise 62 IAC 1816/ ownership or control link shown in the remain in effect during the pendency of 1817.116(a)(3)(F) to read as follows. 62232 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules

Non-contiguous areas less than or equal to 6. 62 IAC 1816.116(a)(5)/1817.116(a)(5) 8. 62 IAC 1816.Appendix A four acres which were disturbed from Wetland Revegetation Agricultural Land Productivity Formula activities such as, but not limited to, signs, boreholes, power poles, stockpiles and In its letter dated April 28, 1995 a. Under the heading ‘‘Permit substations shall be considered successfully (Administrative Record No. 1649), OSM Specifics—Yield Standard’’, Illinois revegetated if the operator can demonstrate requested Illinois to provide a statement proposes to modify sections (a) and (b) that the soil disturbance was minor, i.e., the and technical support for 62 IAC 1816/ to clarify that target yields are majority of the subsoil remains in place, the 1817.116(a)(5) which justifies why a calculated by ‘‘pit’’ rather than soil has been returned to its original ‘‘permit.’’ Therefore, Illinois proposes to capability and the area is supporting its minimum areal coverage of 30 percent for wetlands will be consistent with the change the words ‘‘permit,’’ ‘‘mine approved post-mining land use at the end of permit area,’’ and ‘‘permit area’’ to the responsibility period. revegetation standards for ground cover for areas to be developed for fish and ‘‘pit.’’ Illinois, also, submitted examples for Also, Illinois’ amendment transmittal wildlife habitat at 30 CFR 816/ the justification of consolidating yield letter dated November 1, 1995, contains 817.116(a)(3)(iii). a justification statement with an targets by pit rather than permit in its At the May 31, 1995, meeting November 1, 1995, submittal attached map (Administrative Record (Administrative Record No. 1654), No. IL–1663). The map, which is (Administrative Record No. IL–1663). # Illinois described a U.S. Fish and Exhibit #1 is a composite map marked as Exhibit 4, shows an example Wildlife Service, Biological Services of several small substations which identifying 18 pits which are included Program, publication on the qualitative in ten permits whose reclamation plans served an underground mine and which values of wetlands with various degrees had minor disturbances and which were are developed on a pit basis to balance of emergent vegetation at the 20 to 70 prime farmland, and high capability returned to cropland use. In its percent levels. The study ranked 70 # statement, Illinois references In Re: land liability. Exhibit 2 is a printout of percent cover as having the lowest the base yield targets from a mine with Permanent Surface Mining Regulation value, 50 percent as having the highest Litigation (Civil Action No. 79–1144, a pit which was originally contained value, and 30 percent as having a under three separate contiguous May 16, 1980) as justification for the middle value. Illinois stated its belief proposed regulation. Illinois also permits. Later, all three permits were that attainment of the 30 percent level repermitted under one large permit. As attached a memorandum dated of areal vegetation cover is adequate to September 1, 1995, from the Illinois a result, the yield targets were establish a valuable wetland which is consolidated due to the repermitting. Department of Agriculture which likely to improve with time, justifying concurred with the four acre threshold The yield differences between permits its use as a revegetation success and the mean varied approximately 5 relative to the testing of small isolated standard. # areas for revegetation success. percent. Exhibit 3 is a printout of the Illinois submitted the publication, base yield targets from a mine with a pit 4. 26 IAC 1816.116(a)(4)(A)(ii) which was entitled ‘‘Classification of which was originally contained under Revegetation Standards for Success: Wetlands and Deepwater Habitats of the two separate contiguous permits. These Proof of Productivity for Non- United States,’’ U.S. Department of the permits were not consolidated under Contiguous Areas Interior, Fish and Wildlife Service, one permit; however, as the small Biological Services Program, FWS/OBS– acreage permit represented just the last Illinois proposes to revise its 79/31, December 1979, to OSM on June few years of mining and included the proposed provision at 62 IAC 8, 1995 (Administrative Record No. final cut impoundment, some of the 1816.116(a)(4)(A)(ii) which would allow 1653). Illinois, also, submitted two cropland liability was located into the the productivity results of a larger field additional reference documents in older permit. In other words, the actual to represent small isolated areas to read support of its wetlands revegetation soils and liability accrued were moving as follows. standards: (1) Vol. II of ‘‘Wetland across permit lines. A composite yield The Department may approve a field to Creation and Restoration—The Status of target based on a pit concept reflects the represent non-contiguous areas less than or the Science,’’ U.S. Environmental actual way the soil was handled. equal to four acres of the same capability if Protection Agency, Environmental b. Illinois proposes to change it determines that the field is representative previously proposed section (e) to (c) of reclamation of such areas. These areas Research Laboratory, EPA 600/3–89/ shall be managed and vegetated in the same 038b, October 1989, (Administrative and proposes to revise the language as manner as the representative field. Record No. IL–1650) and (2) Journal of follows: Wildlife Management, 1981, University After mining operations have ceased, the In its letter dated November 1, 1995 of Michigan Study, Dabbling Duck and Department shall recalculate the yield (Administrative Record No. IL–1663), Aquatic Macroinvertebrate Responses to standards for the pit based solely on the soils Illinois stated that ‘‘* * * These areas Manipulated Wetland Habitat, J. Wildl. which were disturbed. Recalculated targets will be vegetated and managed in the Manage.45(1):1981 (Administrative shall be applicable to all areas tested for same manner as their associated larger Record No. IL–1650B). productivity subsequent to the recalculation. field under approved and proper Approved significant revisions after permanent cessation of mining shall cause management practices.’’ 7. 62 IAC 1816.116(c) and 1817.116(c) Use of Reference Areas for Determining the targets to be recalculated and applied to 5. 62 IAC 1816.116(a)(4)(D) Revegetation productivity fields tested after the Revegetation Standards for Hay recalculation. Production Illinois proposes to withdraw its c. Illinois proposes to withdraw proposed regulations at 62 IAC previously proposed sections (c), (d), At 62 IAC 1816.116(a)(4)(D), Illinois 1816.116(c) and 1817.116(c) concerning and (f). proposes to withdraw the following the use of a reference area in lieu of the previously proposed language. Agricultural Lands Productivity G. 62 IAC 1848.5 Notice of Hearing Prior successful hay production shall not Formula Target Yields to determine the At 62 IAC 1848.5(f), Illinois proposes be affected by deep tillage for crop success of revegetation for cropland and to withdraw the following previously production. hayland. proposed sentence. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62233

Any deviations from the requirements of Public Meeting Paperwork Reduction Act (44 U.S.C. this subsection attributable to the publishing 3507 et seq.). newspaper shall not be grounds for If only one person requests an postponement or continuance of the hearing, opportunity to speak at a hearing, a Regulatory Flexibility Act public meeting, rather than a public nor will such errors necessitate that the The Department of the Interior has notice be republished. hearing, may be held. Persons wishing determined that this rule will not have to meet with OSM representatives to III. Public Comment Procedures a significant economic impact on a discuss the proposed amendment may substantial number of small entities OSM is reopening the comment request a meeting by contacting the under the Regulatory Flexibility Act (5 period on the proposed Illinois program person listed under FOR FURTHER U.S.C. 601 et seq.). The State submittal amendment to provide the public an INFORMATION CONTACT. All such meetings which is the subject of this rule is based opportunity to reconsider the adequacy will be open to the public and, if upon counterpart Federal regulations for of the proposed amendment in light of possible, notices of meetings will be which an economic analysis was the additional materials submitted. In posted at the locations listed under prepared and certification made that accordance with the provisions of 30 ADDRESSES. A written summary of each such regulations would not have a CFR 732.17(h), OSM is seeking meeting will be made a part of the significant economic effect upon a comments on whether the proposed Administrative Record. amendment satisfies the applicable substantial number of small entities. program approval criteria of 30 CFR IV. Procedural Determinations Accordingly, this rule will ensure that existing requirements previously 732.15. If the amendment is deemed Executive Order 12866 adequate, it will become part of the promulgated by OSM will be Illinois program. This proposed rule is exempted from implemented by the State. In making the review by the Office of Management and determination as to whether this rule Written Comments Budget (OMB) under Executive Order would have a significant economic Written comments should be specific, 12866 (Regulatory Planning and impact, the Department relied upon the pertain only to the issues proposed in Review). data and assumptions for the this rulemaking, and include Executive Order 12778 counterpart Federal regulations. explanations in support of the List of Subjects in 30 CFR Part 913 commenter’s recommendations. The Department of the Interior has Comments received after the time conducted the reviews required by Intergovernmental relations, Surface indicated under ‘‘DATES’’ or at section 2 of Executive Order 12778 mining, Underground mining. locations other than the Indianapolis (Civil Justice Reform) and has Dated: November 20, 1995. determined that, to the extent allowed Field Office will not necessarily be Brent Wahlquist, considered in the final rulemaking or by law, this rule meets the applicable standards of subsections (a) and (b) of Regional Director, Mid-Continent Regional included in the Administrative Record. Coordinating Center. that section. However, these standards Public Hearing are not applicable to the actual language [FR Doc. 95–29509 Filed 12–4–95; 8:45 am] Persons wishing to speak at the public of State regulatory programs and BILLING CODE 4310±05±M hearing should contact the person listed program amendments since each such under FOR FURTHER INFORMATION program is drafted and promulgated by National Park Service CONTACT by 4:00 p.m., e.s.t., on a specific State, not by OSM. Under December 20, 1995. The location and sections 503 and 505 of SMCRA (30 36 CFR Parts 1 and 13 time of the hearing will be arranged U.S.C. 1253 and 1255) and 30 CFR with those persons requesting the 730.11, 732.15, and 732.17(h)(10), RIN 1024±AC21 hearing. If no one requests an decisions on proposed State regulatory General Regulations for Areas opportunity to speak at the public programs and program amendments Administered by the National Park hearing, the hearing will not be held. submitted by the States must be based Filing of a written statement at the Service and National Park System solely on a determination of whether the Units in Alaska time of the hearing is requested as it submittal is consistent with SMCRA and will greatly assist the transcriber. its implementing Federal regulations AGENCY: National Park Service, Interior. Submission of written statements in and whether the other requirements of ACTION: Proposed rule. advance of the hearing will allow OSM 30 CFR Parts 730, 731, and 732 have officials to prepare adequate responses been met. SUMMARY: The National Park Service and appropriate questions. (NPS) is proposing to revise portions of The public hearing will continue on National Environmental Policy Act its general regulations for areas the specified date until all persons No environmental impact statement is administered by the National Park scheduled to speak have been heard. required for this rule since section Service which define the primary scope Persons in the audience who have not 702(d) of SMCRA (30 U.S.C. 1292(d)) and applicability and contain been scheduled to speak, and who wish provides that agency decisions on definitions for terms used in the text of to do so, will be heard following those proposed State regulatory program the regulations. NPS is also modifying who have been scheduled. The hearing provisions do not constitute major regulations which relate to National will end after all persons scheduled to Federal actions within the meaning of Park System units in Alaska. This speak and persons present in the section 102(2)(C) of the National revision clarifies the applicability of audience who wish to speak have been Environmental Policy Act (42 U.S.C. those NPS regulations that apply in all heard. 4332(2)(C)). National Park System areas to navigable Any disabled individual who has waters located within park boundaries. need for a special accommodation to Paperwork Reduction Act In order to protect wildlife and the attend a public hearing should contact This rule does not contain other values and purposes of the the individual listed under FOR FURTHER information collection requirements that National Park System, the NPS INFORMATION CONTACT. require approval by OMB under the developed general regulations intended 62234 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules to be applicable on navigable waters and administration of [NPS] areas shall be United States holds title to the located within park boundaries conducted in light of the high public value submerged lands under navigable irrespective of ownership of submerged and integrity of the National Park System and waters. In other park areas, the United lands. However, a recent court case shall not be exercised in derogation of the States does not hold title to the concerning a seal shot in the navigable values and purposes for which these various submerged lands beneath navigable areas have been established, except as may waters of a national park revealed that have been or shall be directly and waters within the boundaries of the a 1987 editorial correction to 36 CFR specifically provided by Congress. 16 U.S.C. park; Federal authority to regulate 1.2(b), aimed at clarifying a separate and 1a–1. within the ordinary reach of these distinct application of the regulations, waters is based on the commerce clause, In addition to general regulatory had the unforeseen and unintended not ownership. Like the United States authority delegated in 16 U.S.C. 3, the effect of arguably linking federal title to Coast Guard, the NPS exercises NPS has been authorized to submerged lands with the exercise of authority over navigable waters ‘‘[p]romulgate and enforce regulations management authority over activities irrespective of ownership of submerged occurring on navigable waters. Rather concerning boating and other activities lands. 16 U.S.C. 1a–2(h). 36 CFR than litigate this issue, this rulemaking on or relating to waters located within 1.2(a)(2) reflects the congressional intent will clarify the regulations thereby areas of the National Park System, that NPS regulations will also apply in ensuring the continued protection of including waters subject to the these waters. wildlife and other National Park System jurisdiction of the United The 1983 regulations also provided values and purposes on all navigable States * * *.’’ 16 U.S.C. 1a–2(h). that—except in park areas under the waters within parks, regardless of ‘‘Waters subject to the jurisdiction of the legislative jurisdiction of the United ownership of submerged lands. United States’’ include navigable States, where 10 specifically Accordingly, the revision clarifies that waters. See, H. Rep. No. 1569, 94th enumerated provisions were intended to NPS regulations continue to apply on Cong., 2nd Sess., 4292 (1976). Under apply regardless of ownership—the navigable waters, as they have for years. these authorities the NPS has managed regulations were ‘‘not applicable on Two definitions, ‘‘park area’’ and and regulated activities occurring on privately owned lands and waters ‘‘boundary,’’ would be modified as a and in the waters of the National Park ** *.’’ (48 FR 30252); 36 CFR 1.2(b). part of this revision. The proposed rule System. While 36 CFR 1.2(b) was specific as to clarifies and interprets existing NPS Prior to 1966, NPS regulations for the applicability of the 10 enumerated regulatory intent, practices and policies, boating, sanitation and other regulations provisions on privately owned lands, it and generally would not place new or affecting waters were scattered was silent as to the applicability of additional regulatory controls on the throughout 36 CFR Parts 1 and 2. In those 10 regulations on lands and public. 1966, consolidated boating regulations waters owned by a state or other were published as 36 CFR Part 3. The DATES: Written comments will be government entity. In 1987, in response accepted until February 5, 1996. regulations provided for the to questions concerning this issue, and enforcement of U.S. Coast Guard ADDRESSES: Comments should be in order to clarify the original NPS regulations by the NPS ‘‘on navigable intent (i.e., that the 10 specifically addressed to: Associate Director, waters of the United States’’ located Operations, National Park Service, enumerated provisions were meant to within park boundaries (31 FR 16650). Department of the Interior, 18th and C apply on all lands and waters regardless In 1983, water-use activity regulations Streets, NW., Washington, D.C. 20240. of land ownership) the term ‘‘privately were moved from Part 2 to Part 3 (48 FR owned lands and waters’’ was replaced FOR FURTHER INFORMATION CONTACT: 30290). In addition to regulations with the term ‘‘non-federally owned Dennis Burnett, Ranger Activities generally applicable in all national park lands and waters’’. (52 FR 35238; see Division, National Park Service, P.O. areas, special park-specific regulations also, 52 FR 12037). The 1987 Box 37127, Washington, D.C. 20013– have also been promulgated for, and rulemaking emphasized that it was only 7127, Telephone (202) 208–4874. enforced on and in navigable waters an editorial change and not a SUPPLEMENTARY INFORMATION: within the boundaries of National Park substantive change, the sole purpose of System units. See, e.g., 36 CFR 7.45 (f)– Background which was to clarify the originally (h) (Everglades National Park, fishing intended reach of the 10 enumerated The NPS Organic Act of 1916 directs and boating); 36 CFR 7.83(a)(Ozark provisions; there was no change the Secretary of the Interior and the NPS National Scenic Riverways, boating); 36 intended concerning state lands. to manage national parks and CFR 13.65(b) (Glacier Bay National Park, However, in its effort to ensure that monuments to ‘‘conserve the scenery Vessel Management/whale protection). (in areas of legislative jurisdiction) the and the natural and historic objects and 10 enumerated regulations clearly apply Applicability and Scope Provision the wildlife therein and to provide for on all ‘‘non-federally owned lands and the enjoyment of same in such manner In 1982–83 the NPS undertook a waters’’ within the boundaries of park and by such means as will leave them comprehensive review of general areas, the 1987 revision to Section 1.2(b) unimpaired for the enjoyment of future regulations that apply in virtually all inadvertently incorporated language generations.’’ 16 U.S.C. 1. The Organic NPS administered areas (47 FR 11598). that seems ambiguous and could Act also grants the Secretary the The applicability and scope provisions preclude park regulation of ‘‘non- authority to implement ‘‘rules and adopted pursuant to the 1983 federally owned * * * waters.’’ See, 52 regulations as he may deem necessary or rulemaking included navigable waters. FR 35238, September 18, 1987. The NPS proper for the use and management of In that rulemaking, 36 CFR 1.2(a) recognizes that regulations must provide the parks, monuments and reservations provided that the regulations contained an ordinary person a reasonable under the jurisdiction of the National in 36 CFR chapter 1 would apply: (1) on opportunity to know what is prohibited. Park Service.’’ 16 U.S.C. 3. In addition, federally owned waters, and (2) on Accordingly, this rulemaking is the Organic Act was amended in 1978 waters ‘‘controlled, * * * administered proposed to clarify that NPS regulations to provide: or otherwise subject to the jurisdiction otherwise applicable within the The authorization of activities shall be of the National Park Service * * *.’’ (48 boundaries of a National Park System construed and the protection, management FR 30252). In some park areas, the unit apply on and within waters subject Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62235 to the jurisdiction of the United States agreement with the owner, party of authority on Indian lands located within located within that unit, including interest, or the person, corporation, National Park System units is limited to navigable waters and areas within their company, organization, state or political federal laws and implementing ordinary reach (up to the mean high subdivision holding an interest in, or regulations made applicable at the water line in places subject to the ebb title to, such land. An agreement could express direction of Congress. and flow of the tide, or up to the be in the form of a lease, public use Proposed paragraph (d) would extend ordinary high water mark in other easement, memorandum (of agreement), existing administrative exceptions to places that are navigable), irrespective or some other written form. Lands and include Part 13 regulations. of ownership of submerged lands, waters administered under this Section 1.4 proposes a revision to the tidelands or lowlands. subparagraph would usually be subject definition of the terms ‘‘boundary’’ and This rulemaking also proposes to to the same general regulations as ‘‘park area.’’ ‘‘Boundary,’’ as revised, revise the definition of ‘‘boundary.’’ federally owned lands (Parts 1 through would afford comprehensive coverage to ‘‘Boundary,’’ as revised, would better 5, and Parts 7 and 13 as applicable). An the many and diverse sites that have cover the many and diverse sites that owner or party of interest who wishes been placed under the care and have been placed under the care and to retain certain rights or uses could do administration of the NPS, particularly administration of the NPS. The revision so as part of the written agreement, those sites located in the District of would afford comprehensive protection otherwise NPS general regulations will Columbia. The term ‘‘park area’’ would to persons and property at NPS sites apply equally to the owner or party of be revised to mean the same as the term such as maintenance facilities and interest as they would to third parties. ‘‘National Park System.’’ The proposed warehouses, administrative sites, ranger Without such an agreement, NPS definition for ‘‘National Park System’’ stations, visitor information centers and regulations would not apply on non- repeats the statutory definition from 16 associated parking lots, which, though federally owned lands within park U.S.C. 1c. located outside a park proper, are boundaries, the exception being Section 13.2 proposed paragraph (c) managed and administered by the NPS particular regulations containing a has been revised to clarify that as components of the National Park provision that makes them specifically subsistence regulations for Alaska apply System. The definition is also tailored to applicable to such lands. See, e.g., 36 only ‘‘on the public lands within’’ those cover the various NPS-administered CFR 2.2(g) (regulation applicable to parks where subsistence is authorized. sites in the District of Columbia. The lands and waters under legislative Paragraph (e) has been revised to clarify term ‘‘park area’’ would be revised to jurisdiction within a park); See also, 36 that NPS general regulations (e.g., Part mean the same as the term ‘‘National CFR Part 6 (59 FR 65948). Two other 2), as modified by Part 13, apply to Park System.’’ The proposed definition provisions that are contained in existing waters subject to federal jurisdiction, for ‘‘National Park System’’ repeats the subparagraph (a)(2) are, in this including navigable waters, located statutory definition from 16 U.S.C. 1c. rulemaking, proposed separately as within the boundaries of park areas in The proposed revision to Section 13.2 subparagraphs (a)(3) and (a)(4). serves three purposes: (1) Paragraph (c) Proposed subparagraph (a)(3) more Alaska. is revised to clarify that Alaska National clearly defines and includes waters Drafting Information Interest Lands Conservation Act subject to federal jurisdiction that are (ANILCA) Title VIII subsistence located within National Park System The primary authors of this revision regulations apply ‘‘on the public lands boundaries, including navigable waters, are Michael Tiernan, Division of within’’ those parks where subsistence within the scope of NPS regulations. Conservation and Wildlife, Office of the is authorized; (2) paragraph (e) is Subparagraph (a)(4) contains a provision Solicitor, Department of the Interior, revised to clarify that, pursuant to for the NPS to administer lands and Washington, D.C., and Steve Shackelton proposed § 1.2(a)(3), NPS general waters in the District of Columbia and Russel J. Wilson of the Alaska Field regulations are specifically applicable (pursuant to the Act of March 17, 1948 Area, National Park Service. Richard G. within the reach of navigable waters (62 Stat. 81)), that was added to the Robbins, Division of Conservation and located within the boundaries of park existing subparagraph (2) in 1986 (51 FR Wildlife, Office of the Solicitor, areas in Alaska; and (3) paragraph (e) is 37010). The less-than-fee interests Department of the Interior, Washington, revised to clarify that the Part 13 provision, currently subparagraph (a)(3), D.C., also contributed. modifications (that generally are has been revised, renumbered and Paperwork Reduction Act relaxations of prohibitions contained in proposed as subparagraph (a)(5). This the general regulations) also apply on provision encompasses scenic This rule does not contain collections the navigable waters of national parks in easements (sometimes referred to as of information requiring approval by the Alaska (e.g., ANILCA § 1110(a) special negative easements) and other federal Office of Management and Budget under authorization for motorboat travel to interests where NPS administration of 44 U.S.C. 3501 et seq. villages). the site is shared or limited. Compliance With Other Laws Proposed paragraph (b) continues to Section-by-Section Analysis limit the applicability of NPS general This rule was not subject to Office of Section 1.2 paragraph (a) is proposed regulations to federally owned lands in Management and Budget review under as it currently exists. This paragraph the absence of an agreement or a Executive Order 12866. The Department limits the applicability of NPS superseding provision. Similarly, in of the Interior has determined that this regulations to within park boundaries order for NPS general regulations to document will not have a significant and interests. apply on Indian tribal trust lands economic effect on a substantial number Proposed subparagraphs (a)(1) and located within National Park System of small entities under the Regulatory (a)(2) provide that the regulations apply, boundaries, the NPS must enter into an Flexibility Act (5 USC 601 et seq.). The respectively, on lands and waters agreement with the benefiting Indian economic effects of this rulemaking are located within park system boundaries nation, tribe, band or pueblo (pursuant local in nature and negligible in scope. that are federally owned, or to proposed subparagraph (a)(2)). The NPS has determined that this administered as park lands by the NPS Without such an agreement, and proposed rulemaking will not have a (in whole or in part) through an regardless of jurisdictional status, NPS significant effect on the quality of the 62236 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules human environment, health and safety (4) Lands and waters in the environs PART 13ÐNATIONAL PARK SYSTEM because it is not expected to: of the District of Columbia, policed with UNITS IN ALASKA the approval or concurrence of the head (a) Increase public use to the extent of 4. The authority citation for part 13 compromising the nature and character of the of the agency having jurisdiction or area or causing physical damage to it; control over such reservations, pursuant continues to read as follows: (b) Introduce incompatible uses that may to the provisions of the Act of March 17, Authority: 16 U.S.C. 1, 3, 462(k), 3101 et compromise the nature and characteristics of 1948 (62 Stat. 81); or seq.; subpart D also issued under 16 U.S.C. the area, or cause physical damage to it; 20, 3197; § 13.65(b) also issued under 16 (c) Conflict with adjacent ownerships or (5) Other lands and waters over which U.S.C. 1361, 1531. the United States holds a less-than-fee land uses; or 5. Section 13.2 is amended by (d) Cause a nuisance to adjacent owners or interest, to the extent necessary to fulfill occupants. the purpose of the National Park Service republishing the first sentence of administered interest and compatible paragraph (c) and revising the second Based on this determination, this with the nonfederal interest. sentence of paragraph (c), and by proposed rulemaking is categorically revising paragraph (e) to read as follows: excluded from the procedural (b) The regulations contained in Parts requirements of the National 1 through 5 and Part 7 and Part 13 of § 13.2 Applicability and Scope. Environmental Policy Act (NEPA) by this chapter do not apply on non- * * * * * Departmental guidelines in 516 DM 6, federally owned lands and waters or on (c) Subpart B of this part 13 contains (49 FR 21438). As such, neither an Indian tribal trust lands located within regulations applicable to subsistence Environmental Assessment (EA) nor an National Park System boundaries, activities. Such regulations apply on Environmental Impact Statement (EIS) except as provided in paragraph (a) of public lands within park areas except has been prepared. this section or in regulations specifically Kenai Fjords National Park, Katmai written to be applicable on such lands National Park, Glacier Bay National List of Subjects and waters. Park, Klondike Gold Rush National 36 CFR Part 1 * * * * * Historical Park and parts of Denali National parks, Reporting and (d) The regulations contained in parts National Park.* ** recordkeeping requirements. 2 through 5 and parts 7 and 13 of this * * * * * chapter shall not be construed to (e) For purposes of this chapter, 36 CFR Part 13 prohibit administrative activities ‘‘federally owned lands’’ does not Alaska, National parks, Reporting and conducted by the National Park Service, include those land interests: recordkeeping requirements. or its agents, in accordance with (1) Tentatively approved to the State In consideration of the foregoing, it is approved general management and of Alaska; or proposed to amend 36 CFR Chapter I, resources management plans, or in (2) Interim conveyed to a Native Parts 1 and 13, as follows: emergency operations involving threats Corporation. to life, property or park resources. Dated: October 20, 1995. PART 1ÐGENERAL PROVISIONS * * * * * George T. Frampton, Jr., 1. The authority citation for Part 1 3. Section 1.4 is amended in Assistant Secretary for Fish and Wildlife and continues to read as follows: paragraph (a) by revising the definition Parks. of Boundary, by adding a definition for [FR Doc. 95–29565 Filed 12–4–95; 8:45 am] Authority: 16 U.S.C. 1, 3, 9a, 460 l–6a(e), 462(k); D.C. Code 8–137, 40–721 (1981). National Park System, and by revising BILLING CODE 4310±70±P the definition of Park area to read as 2. Section 1.2 is amended by revising follows: paragraphs (a), (b) and (d) to read as ENVIRONMENTAL PROTECTION follows: § 1.4 Definitions. AGENCY § 1.2 Applicability and scope. (a) * * * 40 CFR Part 81 (a) The regulations contained in this Boundary means the limits of lands or chapter apply to all persons entering, waters administered by the National [AD±FRL±5341±1] using, visiting or otherwise within: Park Service as specified by Congress, or Clean Air Act Reclassification; (1) The boundaries of federally owned denoted by Presidential Proclamation, PennsylvaniaÐLiberty Borough lands and waters administered by the or recorded in the records of a state or Nonattainment Area; PM±10; National Park Service; or political subdivision in accordance with Reopening of Comment Period (2) The boundaries of lands and applicable law, or published pursuant to waters administered by the National law, or otherwise published or posted AGENCY: Environmental Protection Park Service for public use purposes by the National Park Service. Agency (EPA). pursuant to the terms of a written * * * * * ACTION: Proposed rule; reopening of the instrument; or National Park System (Park area) comment period. (3) Waters subject to the jurisdiction means any area of land and water now of the United States located within the or hereafter administered by the SUMMARY: EPA is reopening the boundaries of the National Park System, Secretary of the Interior through the comment period for a proposed rule including navigable waters and areas National Park Service for park, published on September 19, 1995 (60 FR within their ordinary reach (up to the monument, historic, parkway, 48439). In the September 19 notice, EPA mean high water line in places subject recreational, or other purposes. proposed to find that the Liberty to the ebb and flow of the tide and up Borough, Pennsylvania nonattainment * * * * * to the ordinary high water mark in other area for particulate matter of nominal places) and without regard to the Park area. See the definition for aerodynamic diameter smaller than 10 ownership of submerged lands, National Park System in this section. micrometers (PM–10) did not attain tidelands or lowlands; or * * * * * national ambient air quality standards Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62237 for that pollutant by the statutory address, as provided below, no later financial records and statistical data for attainment date. At the request of the than 5 p.m. on February 5, 1996. proper determination of costs payable Allegheny Health Department, EPA is ADDRESSES: Mail written comments (one under the program. In addition, reopening the comment period through original and three copies) to the providers must use standardized December 20, 1995. (The comment following address: Health Care definitions and follow accounting, period had been previously extended Financing Administration, Department statistical, and reporting practices that through November 20, 1995 (60 FR of Health and Human Services, are widely accepted in the health care 53729).) All comments received on or Attention: BPD–788–P, P.O. Box 7517, industry and related fields. Under before December 20, including those Baltimore, MD 21207–0517. §§ 413.20(b) and 413.24(f), providers are received between the close of the If you prefer, you may deliver your required to submit cost reports comment period on November 20 and written comments (one original and annually, with the reporting period the publication of this document, will three copies) to one of the following based on the provider’s accounting year. be entered into the public record and addresses: Additionally, under § 412.52, all considered by EPA before taking final Room 309–G, Hubert H. Humphrey hospitals participating in the action on the proposed rule. Building, 200 Independence Avenue, prospective payment system must meet DATES: Comments must be received on SW, Washington, DC 20201, or cost reporting requirements set forth at or before December 20, 1995. Room C5–11–17, 7500 Security §§ 413.20 and 413.24. Boulevard, Baltimore, MD 21244– Section 1886(f)(1)(B)(I) of the Act ADDRESSES: Comments may be mailed to required the Secretary to place into Marcia L. Spink, Associate Director, Air 1850. Because of staffing and resource effect a standardized electronic cost Programs, Mailcode 3AT00, U.S. reporting system for all hospitals Environmental Protection Agency, limitations, we cannot accept comments by facsimile (FAX) transmission. In participating in the Medicare program. Region III, 841 Chestnut Building, This provision was effective for hospital Philadelphia, Pennsylvania 19107. commenting, please refer to file code BPD–788–P. Comments received timely cost reporting periods beginning on or FOR FURTHER INFORMATION CONTACT: will be available for public inspection as after October 1, 1989. On May 25, 1994, Thomas A. Casey, U.S. EPA Region III, they are received, generally beginning we published a final rule with comment (215) 597–2746. approximately 3 weeks after publication period implementing the electronic cost Dated: December 1, 1995. of a document, in Room 309–G of the reporting requirement for hospitals (59 William Wisniewski, Department’s offices at 200 FR 26960). On June 27, 1995, we Acting Regional Administrator, Region III. Independence Avenue, SW, published a final rule that responded to comments on the May 25, 1994 final [FR Doc. 95–29713 Filed 12–4–95; 8:45 am] Washington, DC, on Monday through rule with comment period (60 FR BILLING CODE 6560±50±P Friday of each week from 8:30 a.m. to 5 p.m. (phone: (202) 690–7890). 33123). For comments that relate to II. Provisions of the Proposed DEPARTMENT OF HEALTH AND information collection requirements, Regulations HUMAN SERVICES mail a copy of comments to: Office of Currently, § 413.24(f)(4) provides that Information and Regulatory Affairs, for cost reporting periods beginning on Health Care Financing Administration Office of Management and Budget, or after October 1, 1989, all hospitals Room 10235, New Executive Office must submit cost reports in a 42 CFR Part 413 Building, Washington, DC 20503, Attn: standardized electronic format. While [BPD±788±P] Allison Herron Eydt, HCFA Desk the existing regulations do not require Officer. RIN 0938±AH12 any other provider types to file their FOR FURTHER INFORMATION CONTACT: Tom cost reports electronically, more than 75 Medicare Program; Uniform Electronic Talbott, (410) 786–4592. percent of SNFs and HHAs currently Cost Reporting for Skilled Nursing SUPPLEMENTARY INFORMATION: submit a hard copy of an electronically Facilities and Home Health Agencies prepared cost report rather than a I. Background manually prepared cost report. HCFA’s AGENCY: Health Care Financing Generally, under the Medicare fiscal intermediaries then review the Administration (HCFA), HHS. program, skilled nursing facilities information from these cost reports for ACTION: Proposed rule. (SNFs) and home health agencies completeness and manually enter the (HHAs) are paid for the reasonable costs data into their automated data reporting SUMMARY: This proposed rule would add of the covered items and services they systems. This process takes the requirement that, for cost reporting furnish to Medicare beneficiaries. substantially longer than processing cost periods beginning on or after October 1, Sections 1815(a) and 1833(e) of the reports submitted in a standardized 1995, all skilled nursing facilities and Social Security Act (the Act) provide electronic format that allows data to be home health agencies must submit cost that no payments will be made to a automatically entered into the reports currently required under the provider unless it has furnished the intermediary’s system. Medicare regulations in a standardized information, requested by the Secretary, This proposed rule would revise electronic format. This proposed rule needed to determine the amount of existing § 413.24(f)(4) to require SNFs would also allow a delay or waiver of payments due the provider. In general, and HHAs to submit cost reports in a this requirement where implementation providers submit this information standardized electronic format for cost would result in financial hardship for a through cost reports that cover a 12- reporting periods beginning on or after provider. The proposed provisions month period. Rules governing the October 1, 1995. We note that the would allow for more accurate submission of cost reports are set forth electronic cost reports would not be due preparation and more efficient at 42 CFR 413.20 and 42 CFR 413.24. until 5 months after the end of the processing of cost reports. Under § 413.20(a), all providers provider’s cost reporting period. Thus, DATES: Comments will be considered if participating in the Medicare program for a provider with a 12-month cost we receive them at the appropriate are required to maintain sufficient reporting period beginning October 1, 62238 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules

1995, the first electronic cost report standardized output file in American provider’s size is necessarily a reliable would be due February 28, 1997. Standard Code for Information indicator that electronic cost reporting The use of electronically prepared Interchange (ASCII) format. All would impose a financial hardship, cost reports would be beneficial for intermediaries have the ability to read since even the smallest SNFs and HHAs SNFs and HHAs because the cost this standardized file and produce an are quite likely to already be using reporting software for these reports accurate cost report. SNFs and HHAs computer equipment. We welcome would virtually eliminate would be required to use HCFA- comments on the process for obtaining computational errors and substantially approved software to submit cost a waiver, whether set criteria for reduce preparation time. Preparation reports to the intermediary. HCFA’s obtaining a waiver would be beneficial, time would be decreased because approval process requires each vendor as well as on the number of providers providers would no longer have to to submit for review a hard copy cost that may request a waiver. perform mathematical computations to report produced from their software. We note that the electronic cost complete the cost report. Instead, the The purpose of this review process is to reporting provision would only apply to provider would only need to enter the establish that the commercial vendor’s those providers that are required to file correct costs and statistics, and the software can produce a completed cost a full Medicare cost report. Those software would determine the report in accordance with the Medicare providers that are not required to file a appropriate amount of Medicare rules and instructions. full cost report (for example, a SNF that payment due the provider based on There are approximately 17 furnishes fewer than 1500 Medicare these figures. We note that the costs and commercial software vendors servicing covered days in a cost reporting period) statistics that would be entered into the HHAs and SNFs that have developed would not be subject to the electronic electronic software are the same as those HCFA-approved software programs cost reporting requirement, and that are currently required for Medicare capable of producing an electronic cost therefore would not have to request a cost reports. This proposed rule would report. In addition, HCFA has waiver. not require the reporting of any developed a software package that will If a SNF or HHA (not granted a additional information. enable SNFs and HHAs to file an hardship exemption) does not submit its The use of cost reporting software electronic data set to the fiscal cost report electronically, Medicare would also save time when the provider intermediary in order to generate an payments to that provider may be discovers that it needs to change electronic cost report. Providers would suspended under the provisions of individual entries in the cost report. be able to use either these existing sections 1815(a) and 1833(e) of the Act. Rather than recalculating the entire cost commercial software packages or These sections of the Act provide that report, the provider would merely enter HCFA’s free software to comply with no Medicare payments will be made to the new figures, and the software would the requirements in this proposed rule. a provider unless it has furnished the generate a new cost report that would To receive the free software, providers information, requested by the Secretary, reflect all necessary recalculations. The may contact their intermediaries or send that is needed to determine the amount use of cost reporting software would a written request to the following of payments due the provider under the also eliminate the need for several address: Health Care Financing Medicare program. Section 405.371(d) administrative tasks associated with Administration, Division of Cost provides for suspension of Medicare filing a cost report. Specifically, the Principles and Reporting, Room C5–02– payments to a provider by the provider would no longer be required to 23, Central Building, 7500 Security intermediary if the provider fails to photocopy, collate, and mail a hard Blvd., Baltimore, Maryland 21244–1850. submit information requested by the copy of the cost report, which is a We also propose that if a SNF or HHA intermediary that is needed to relatively large, cumbersome document. believes that implementation of the determine the amount due the provider Instead, the completed cost report electronic submission requirement under the Medicare program. would be electronically filed with the would cause a financial hardship, it The general procedures that are fiscal intermediary. That is, the provider may submit a written request for a followed when Medicare payment to a would submit a disk containing the waiver or a delay of these requirements. provider is suspended for failure to required cost report data to the fiscal This request, including supporting submit information needed by the intermediary. documentation, would have to be intermediary to determine Medicare In all, we estimate that the use of submitted to a provider’s intermediary payment are located in section 2231 of electronically prepared cost reports at least 120 days before the end of the the Medicare Intermediary Manual would result in an average of 4 to 5 provider’s cost reporting period. The (HCFA Pub. 13). Those procedures hours less preparation time for an HHA intermediary would review the request include timeframes for ‘‘demand letters’’ and 8 to 10 hours less time for an SNF. and forward it, with a recommendation to providers. Demand letters remind We recognize that, initially, the for approval or denial, to the HCFA providers to file timely and complete preparation time saved may not be as central office within 30 days of such cost reports and explain possible great as we have estimated for providers request. HCFA central office would adjustments of Medicare payments to a that need time to become familiar with either approve or deny the request by provider and the right to request a 30- the cost reporting software. However, response to the intermediary within 60 day extension of the due date. we believe that once providers days of receipt of the request. Each Under this proposed rule, we overcome this small ‘‘learning curve,’’ delay or waiver would be considered on essentially would apply the current the accuracy of cost reports would a case-by-case basis. hospital reporting requirements to SNFs increase and the preparation time would We considered proposing set criteria and HHAs. In our final rule with decrease in line with this estimate. We (possibly based on a provider’s bed size comment period published May 25, welcome comments on our estimate of or capacity, for example) under which a 1994, we required that, in accordance time savings as well as on other SNF or HHA could be exempted with section 1886(f)(1)(B)(I) of the Act, advantages or disadvantages of automatically from the electronic cost all hospitals must submit cost reports in electronic cost reporting. reporting requirement. However, we a uniform electronic format for cost We propose that the provider’s have not done so because we do not reporting periods beginning on or after software must be able to produce a believe that a characteristic such as a October 1, 1989 (59 FR 26960). All Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62239 hospital cost reports must be • Revise redesignated paragraph addition to the 75 percent of providers electronically transmitted to the (f)(4)(ii) to state that SNFs and HHAs that currently use electronic cost intermediary in ASCII format. In must submit cost reports in a reporting, this rule would not affect addition to the electronic file, existing standardized electronic format for cost those providers that do not file a full § 413.24(f)(4)(iii) requires hospitals to reporting periods beginning on or after cost report and, as stated above, would submit a hard copy of a settlement October 1, 1995; and not be required to submit cost reports summary, a statement of certain • In redesignated paragraphs (f)(4)(iii) electronically. worksheet totals found in the electronic through (f)(4)(v), replace the word This proposed rule may have an file, and a statement signed by the ‘‘hospital’’ wherever it appears with the impact on those providers who do not hospital’s administrator or chief word ‘‘provider.’’ prepare electronic cost reports, some of whom may have to purchase computer financial officer certifying the accuracy III. Impact Statement of the electronic file. equipment, obtain the necessary Further, to preserve the integrity of We generally prepare a regulatory software, and train staff to use the the electronic file, we implemented flexibility analysis that is consistent software. However, as discussed below, provisions regarding the processing of with the Regulatory Flexibility Act we believe that the potential impact of the electronic cost report once (RFA) (5 U.S.C. 601 through 612) unless this proposed rule on those providers we certify that a proposed rule such as submitted to the intermediary. who do not prepare electronic cost this would not have a significant Specifically, existing § 413.24(f)(4)(ii) reports would be insignificant. economic impact on a substantial provides that the intermediary may not First, a small number of providers that number of small entities. For purposes alter the cost report once it has been do not submit electronic cost reports of the RFA, all providers and small filed by the provider. That is, the may have to purchase computer businesses that distribute cost-report intermediary must maintain an equipment to comply with the software to providers are considered unaltered copy of the provider’s provisions of this proposed rule. small entities. HCFA’s intermediaries electronic cost report. This provision is However, even among the 25 percent of are not considered small entities for not intended to prohibit the SNFs and HHAs that do not submit purposes of the RFA. intermediary from making audit electronically prepared cost reports, we In addition, section 1102(b) of the believe that most providers already have adjustments to the provider’s cost Social Security Act requires us to access to computer equipment, which report. Additionally, this section prepare a regulatory impact analysis for they are now using for internal provides that the intermediary must any proposed rule that may have a recordkeeping purposes, as well as for reject a cost report that does not pass all significant impact on the operation of a submitting electronically generated bills specified edits. Finally, the provider’s substantial number of small rural to their fiscal intermediaries, for electronic program must be able to hospitals. Such an analysis must example. Thus, we do not believe that disclose that changes have been made to conform to the provisions of section 604 obtaining computer equipment would the provider’s filed cost report. Again, of the RFA. For purposes of section be a major obstacle to electronic cost we would apply these same provisions 1102(b) of the Act, we define a small reporting for most providers. For those to SNFs and HHAs. rural hospital as a hospital that is providers that would have to purchase As stated above, the electronic cost located outside of a Metropolitan computer equipment, we note that, in reporting requirement for hospitals has Statistical Area and has fewer than 50 accordance with current regulations been a statutory requirement for over 5 beds. We are not preparing a rural governing payment of provider costs, years. Our experience with the process impact statement since we have Medicare would pay for the cost of the of hospitals submitting cost reports to determined, and certify, that this equipment as an overhead cost. the intermediary in ASCII format has proposed rule would not have a We recognize that a potential cost for been uniformly positive. These cost significant impact on the operations of providers that do not submit electronic reports are processed more a substantial number of small rural cost reports would be that of training expeditiously and efficiently than hospitals. staff to use the software. Since most manually prepared cost reports or hard As stated above, under §§ 413.20(b) SNFs and HHAs currently use copies of electronically prepared cost and 413.24(f), providers are required to computers, we do not believe that reports. In fact, based on comments submit cost reports annually, with training staff to use the new software from hospitals, we amended reporting periods based on the would impose a large burden on § 413.24(f)(4) in our June 27, 1995 final provider’s accounting year. This providers. An additional cost would be rule to eliminate the requirement that proposed rule would require SNFs and the cost of the software offered by hospitals submit a hard copy of the cost HHAs, like hospitals, to submit their commercial vendors. However, report in addition to the electronic file Medicare cost reports in a standardized providers could eliminate this cost by (60 FR 33123). In conclusion, based on electronic format. We anticipate that obtaining the free software from HCFA. our experience with the submission of this requirement would take effect for The requirement that hospitals submit electronic cost reports by hospitals, we cost reporting periods beginning on or cost reports in a standardized electronic believe that electronic filing would after October 1, 1995, meaning that the format has been in place since October, reduce the administrative burden on first electronic cost reports would be 1989. Since that time, the accuracy of most SNFs and HHAs, with a waiver due February 28, 1997. cost reports has increased and we have available in financial hardship cases. Currently, approximately 75 percent received very few requests for waivers. Therefore, we propose to amend of all SNFs and HHAs submit a hard Additionally, we have not received any § 413.24 accordingly: copy of an electronically prepared cost comments from the hospital industry • Add a new paragraph (f)(4)(i) to report to the intermediary. We believe indicating that the use of electronic cost define the word ‘‘provider’’ as a that the provisions of this proposed rule reporting is overly burdensome. We hospital, SNF, or HHA; would have little or no effect on these believe that electronic cost reporting • Redesignate existing paragraphs providers, except to reduce the time would be equally effective for SNFs and (f)(4)(i) through (f)(4)(iv) as (f)(4)(ii) involved in copying and collating a hard HHAs, with the benefits (such as through (f)(4)(v); copy of the report for intermediaries. In increased accuracy and decreased 62240 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules preparation time) outweighing the costs affected public, including automated comments we receive by the date and of implementation for most providers. collection techniques. time specified in the ‘‘DATES’’ section In conclusion, we have determined Therefore, we are soliciting public of this preamble, and, if we proceed that this proposed rule would not have comment on each of these issues for the with a subsequent document, we will a significant effect on SNF and HHA information collection requirements respond to the comments in the costs because these providers would not discussed below. preamble to that document. be required to collect any additional As discussed in detail above, this data beyond that which the regulations proposed rule would require that SNFs List of Subjects in 42 CFR Part 413 currently specify; cost reporting and HHAs submit cost reports in a Health facilities, Kidney diseases, software is available at no cost from standardized electronic format for cost Medicare, Puerto Rico, Reporting and HCFA to any provider that requests it; reporting periods beginning on or after recordkeeping requirements. most SNFs and HHAs have some type October 1, 1995. That is, providers 42 CFR part 413 is amended as set of computer equipment through which would be required to file a diskette forth below: they currently prepare electronic cost containing the required cost report data reports; and a waiver of the electronic in a standardized electronic format. We PART 413ÐPRINCIPLES OF cost reporting requirement would be believe that this requirement would REASONABLE COST available to providers for whom the reduce the paperwork and information REIMBURSEMENT; PAYMENT FOR requirement would impose a financial collection burden for those SNFs and END-STAGE RENAL DISEASE hardship. SNFs and HHAs would only HHAs that currently do not submit SERVICES be affected to the extent that, absent a electronically prepared cost reports. Specifically, we estimate that the 1. The authority citation for part 413 waiver, all would be required to submit continues to read as follows: cost reports in a standardized electronic number of hours each provider would format to their intermediary. A provider save by submitting an electronically Authority: Secs. 1102, 1861(v)(1)(A), and that does not comply with the prepared cost report instead of manually 1871 of the Social Security Act (42 U.S.C. 1302, 1395x(v)(1)(A), and 1395hh). provisions of this rule, as specified in preparing, and photocopying, the cost the preamble, would be subject to report would be an average of 9 hours 2. Section 413.24 is amended by sections 1815(a) and 1833(e) of the Act, for each affected SNF and 4.5 hours for redesignating existing paragraphs which provide that no payments will be each affected HHA. Assuming that (f)(4)(i) through (f)(4)(iv) as paragraphs made to a provider unless it has approximately 25 percent of all SNFs (f)(4)(ii) through (f)(4)(v); adding a new furnished the information requested by and HHAs would be affected, that is paragraph (f)(4)(i); and revising the Secretary that is needed to roughly 3,000 SNFs and 2,000 HHAs, redesignated paragraphs (f)(4)(ii) determine the amount of payments due we estimate that SNFs would save through (f)(4)(v) to read as follows: the provider under Medicare. approximately 27,000 hours per year completing cost reports, and HHAs § 413.24 Adequate cost data and cost We welcome comments on the effect finding. of the electronic cost reporting would save about 9,000 hours per year. requirement, its benefits or We note that the overall information * * * * * disadvantages, the proposed collection and recordkeeping burden (f) Cost reports. *** (4) Electronic submission of cost implementation date, and issues related associated with filing SNF costs reports reports. (i) As used in this paragraph, to the waiver process. has been approved by OMB through In accordance with the provisions of January 1998 (OMB approval number provider means a hospital, skilled Executive Order 12866, this regulation 0938–0463). Additionally, OMB has nursing facility, or home health agency. (ii) Effective for cost reporting periods was reviewed by the Office of approved the information collection beginning on or after October 1, 1989, Management and Budget (OMB). burden for HHA cost reports through October 1997 (approval number 0938– for hospitals and cost reporting periods IV. Collection of Information 0022). We would not require SNFs and beginning on or after October 1, 1995, Requirements HHAs to report any information on the for skilled nursing facilities and home Under the Paperwork Reduction Act electronic cost report that is not already health agencies, a provider is required of 1995, agencies are required to provide required in the Medicare cost reports to submit cost reports in a standardized 60-day notice in the Federal Register currently submitted by these providers. electronic format. The provider’s and solicit public comment before a The information collection and electronic program must be capable of collection of information requirement is recordkeeping requirements contained producing the HCFA standardized submitted to the Office of Management in § 413.24 are not effective until they output file in a form that can be read by and Budget (OMB) for review and have been approved by OMB. A notice the fiscal intermediary’s automated approval. In order to fairly evaluate will be published in the Federal system. This electronic file, which must whether an information collection Register when approval is obtained. contain the input data required to should be approved by OMB, section Organizations and individuals that wish complete the cost report and the data 3506(c)(2)(A) of the Paperwork to submit comments on the information required to pass specified edits, is Reduction Act of 1995 requires that we and recordkeeping requirements set forwarded to the fiscal intermediary for solicit comment on the following issues: forth in § 413.24 should direct them to processing through its system. • Whether the information collection the OMB official whose name appears in (iii) The fiscal intermediary stores the is necessary and useful to carry out the the ADDRESSES section of this preamble. provider’s as-filed electronic cost report and may not alter that file for any proper functions of the agency; V. Response to Comments • The accuracy of the agency’s reason. The fiscal intermediary makes a estimate of the information collection Because of the large number of items ‘‘working copy’’ of the as-filed burden; of correspondence we normally receive electronic cost report to be used, as • The quality, utility, and clarity of on Federal Register documents necessary, throughout the settlement the information to be collected; and published for comment, we are not able process (that is, desk review, processing • Recommendations to minimize the to acknowledge or respond to them audit adjustments, final settlement, etc). information collection burden on the individually. We will consider all The provider’s electronic program must Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62241 be able to disclose if any changes have (Catalog of Federal Domestic Assistance Spanish mackerel, cobia and dolphin been made to the as-filed electronic cost Program No. 93.773, Medicare—Hospital (fish). Amendment 8 proposes some report after acceptance by the Insurance; and Program No. 93.774, measures that (1) apply only to the intermediary. If the as-filed electronic Medicare—Supplementary Medical South Atlantic Council’s jurisdiction, Insurance Program) cost report does not pass all specified (2) apply only to the Gulf Council’s edits, the fiscal intermediary rejects the Dated: June 21, 1995. jurisdiction, or (3) apply to both cost report and returns it to the provider Bruce C. Vladeck, Councils’ jurisdictions. Proposed for correction. For purposes of the Administrator, Health Care Financing actions that would affect only the stocks requirements in paragraph (f)(2) of this Administration. and area under the jurisdiction of the section concerning due dates, an [FR Doc. 95–29542 Filed 12–4–95; 8:45 am] Gulf of Mexico Council are as follows: electronic cost report is not considered BILLING CODE 4120±01±P Allow Gulf group king mackerel that to be filed until it is accepted by the can be taken only by hook-and-line intermediary. (including longline) and run-around gill (iv) Effective for cost reporting DEPARTMENT OF COMMERCE nets to be possessed on vessels with periods ending on or after September other gear aboard; require commercial 30, 1994, for hospitals and cost National Oceanic and Atmospheric dealer permits to buy and sell coastal reporting periods beginning on or after Administration pelagic fish managed under the FMP October 1, 1995, for skilled nursing and require that dealers keep and make 50 CFR Part 642 facilities and home health agencies, a available records of purchase by vessel; provider must submit a hard copy of a [I.D. 110795H] establish a 5-year moratorium, settlement summary, a statement of beginning on October 16, 1995, on the certain worksheet totals found within Gulf of Mexico Fishery Management issuance of both commercial vessel the electronic file, and a statement Council; Public Hearings permits with a king mackerel signed by its administrator or chief endorsement and charter vessel permits; AGENCY: National Marine Fisheries financial officer certifying the accuracy provide for transfer of vessel permits to Service (NMFS), National Oceanic and of the electronic file or the manually other vessels; require that anyone Atmospheric Administration (NOAA), prepared cost report. The following applying for a commercial vessel permit Commerce. statement must immediately precede the demonstrate that 25 percent of annual dated signature of the provider’s ACTION: Public hearings; requests for income, or $5,000, be from commercial administrator or chief financial officer: comments. fishing; and require, that, as a condition for a Federal commercial or charter I hereby certify that I have read the above SUMMARY: The Gulf of Mexico Fishery vessel permit, the applicant agrees to certification statement and that I have Management Council (Gulf Council) comply with the more restrictive of state examined the accompanying electronically will convene nine public hearings on or Federal rules when fishing in state filed or manually submitted cost report and Draft Amendment 8 to the Fishery the Balance Sheet Statement of Revenue and waters. Amendment 8 also includes the Expenses prepared by llllllllll Management Plan for Coastal Migratory following measures that apply to both (Provider Name(s) and Number(s)) for the Pelagic Resources of the Gulf of Mexico Councils’ jurisdictions: Recreational bag cost reporting period beginning and South Atlantic (FMP) and its draft and commercial trip limit alternatives llllllll and ending supplemental environmental impact for cobia and dolphin (fish); retention of llllllll and that to the best of my statement (draft SEIS). king mackerel damaged by barracuda knowledge and belief, this report and DATES: Written comments will be bites by vessels under commercial trip statement are true, correct, complete and accepted until January 5, 1996. The limits; alternatives for Atlantic king prepared from the books and records of the mackerel commercial trip limits off provider in accordance with applicable hearings will be held from December 11 instructions, except as noted. I further certify to December 14, 1995. See Monroe County, FL of either 50 fish or that I am familiar with the laws and SUPPLEMENTARY INFORMATION for specific 125 fish; changes to the procedure used regulations regarding the provision of health dates and times. to set total allowable catch; and changes care services, and that the services identified ADDRESSES: Written comments should to definitions of overfishing and in this cost report were provided in be sent to and copies of the draft optimum yield. Proposed measures in compliance with such laws and regulations. amendment are available from Mr. Amendment 8 applying only to the area (v) A provider may request a delay or Wayne E. Swingle, Executive Director, and stocks under the jurisdiction of the waiver of the electronic submission Gulf of Mexico Council, 5401 West South Atlantic Council will be requirement in paragraph (f)(4)(ii) of Kennedy Boulevard, Tampa, FL 33609. summarized in news releases for public this section if this requirement would The hearings will be held in AL, FL, hearings to be held in the South Atlantic cause a financial hardship. The provider LA, MS and TX. See SUPPLEMENTARY area during January 1996. The hearings are scheduled from 7 must submit a written request for delay INFORMATION for locations of the hearings and special accommodations. p.m. to 10 p.m. as follows: or waiver with necessary supporting 1. Monday, December 11, 1995, documentation to its intermediary at FOR FURTHER INFORMATION CONTACT: Larose—Larose Regional Park, 2001 East least 120 days prior to the end of its cost Wayne E. Swingle, 813–228–2815; Fax: 5th Street, Larose, LA 70373 reporting period. The intermediary 813–225–7015. 2. Monday, December 11, 1995, Port reviews the request and forwards it with SUPPLEMENTARY INFORMATION: Aransas—Visitor’s Center Auditorium, a recommendation for approval or Background University of Texas, 750 Channel View denial, to HCFA central office within 30 Drive, Port Aransas, TX 78373 days of receipt of the request. HCFA The Gulf and South Atlantic Fishery 3. Monday, December 11, 1995, Key central office either approves or denies Management Councils will be holding West—Lions Club, 2405 North the request and notifies the public hearings on Draft Amendment 8 Roosevelt Boulevard, Key West, FL intermediary within 60 days of receipt to the FMP and its draft SEIS. 33040 of the request. Amendment 8 proposes management 4. Tuesday, December 12, 1995, * * * * * measures for the fisheries for king and Biloxi—J.L. Scott Marine Education 62242 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules

Center and Aquarium, 115 East Beach Laboratory, 3500 Delwood Beach Road, interpretation or other auxiliary aids Boulevard, Biloxi, MS 39530 Panama City, FL 32408 should be directed to Anne Alford at the 5. Tuesday, December 12, 1995, 8. Wednesday, December 13, 1995, Council office (see ADDRESSES) by Galveston—Best Western Beachfront Cameron—Police Jury Annex, December 4, 1995. Courthouse Square, Cameron, LA 70631 Inn, 5914 Seawall Boulevard, Galveston, Authority: 16 U.S.C. 1801 et seq. TX 77551 9. Thursday, December 14, 1995, Madeira Beach—City Hall Auditorium, Dated: November 28, 1995. 6. Wednesday, December 13, 1995, 3001 Municipal Drive, Madeira Beach, Richard W. Surdi, Gulf Shores—Quality Inn Beachside, FL 33708 931 West Gulf Shores Boulevard, Gulf Acting Director, Office of Fisheries Shores, AL 36547 Special Accommodations Conservation and Management, National Marine Fisheries Service. 7. Wednesday, December 13, 1995, These hearings are physically Panama City—National Marine accessible to people with disabilities. [FR Doc. 95–29516 Filed 12–4–95; 8:45 am] Fisheries Service, Panama City Requests for sign language BILLING CODE 3510±22±F 62243

Notices Federal Register Vol. 60, No. 233

Tuesday, December 5, 1995

This section of the FEDERAL REGISTER the Secretary of Agriculture (hereinafter consumption during the period from contains documents other than rules or referred to as ‘‘the Secretary’’).’’ On October 1, 1995 through September 30, proposed rules that are applicable to the August 3, 1995, the Secretary 1996. public. Notices of hearings and investigations, established the aggregate quantity of This modified quota amount will be committee meetings, agency decisions and 1,117,195 metric tons, raw value, of raw allocated among supplying countries rulings, delegations of authority, filing of petitions and applications and agency cane sugar that may be entered under and areas by the United States Trade statements of organization and functions are subheading 1701.11.10 of the HTS and Representative. examples of documents appearing in this the aggregate quantity of 22,000 metric Signed at Washington, DC on November section. tons (raw value basis) for certain sugars, 28, 1995. syrups and molasses that may be Daniel Glickman, entered under subheadings 1701.12.10, Secretary of Agriculture. DEPARTMENT OF AGRICULTURE 1701.91.10, 1701.99.10, 1702.90.10, and [FR Doc. 95–29526 Filed 12–4–95; 8:45 am] 2106.90.44 of the HTS during FY 96. (60 Office of the Secretary FR 42142) BILLING CODE 3410±10±M Paragraph (a)(i) of additional U.S. Modification of Total Amount of Tariff- note 5 to chapter 17 of the HTS provides Rate Quota for Imported Raw Cane that ‘‘[w]henever the Secretary believes DEPARTMENT OF COMMERCE Sugar that domestic supplies of sugars may be National Oceanic and Atmospheric AGENCY: Office of the Secretary, USDA. inadequate to meet domestic demand at Administration ACTION: Notice. reasonable prices, the Secretary may modify any quantitative limitations [I.D. 112095B] SUMMARY: This notice modifies the which have previously been established aggregate quantity of raw cane sugar that ** *.’’ The U.S. sugar production Incidental Take of Marine Mammals; may be entered under subheading forecast for FY ’96 released on Bottlenose Dolphins and Spotted 1701.11.10 of the Harmonized Tariff November 9, 1995 in the World Dolphins Schedule of the United States (HTS) Agricultural Supply and Demand AGENCY: during fiscal year 1996 (FY 96). As National Marine Fisheries Estimates (WASDE) was reduced by Service (NMFS), National Oceanic and modified, such aggregate quantity is 80,000 short tons raw value (STRV) to 1,417,195 metric tons, raw value. Atmospheric Administration (NOAA), 7.6 million STRV from the WASDE Commerce. EFFECTIVE DATE: November 9, 1995. production forecast released on July 12, ACTION: Notice of issuance of letter of ADDRESSES: Inquiries may be mailed or 1995. During this period, the U.S. FY authorization. delivered to the Sugar Team Leader, ’96 forecast of beginning stocks for sugar Import Policy and Programs Division, was reduced to nearly 1.2 million STRV, SUMMARY: In accordance with the Foreign Agricultural Service, Room a decline of 90,000 STRV from the Marine Mammal Protection Act 5531, South Building, U.S. Department earlier forecast. The domestic wholesale (MMPA) as amended, and implementing of Agriculture, Washington, DC 20250– refined sugar prices in the midwest regulations, notification is hereby given 1000. market have been increasing since the that a letter of authorization to take FOR FURTHER INFORMATION CONTACT: tariff-rate quota amount was announced bottlenose and spotted dolphins Stephen Hammond (Sugar Team by the Secretary. During the last week incidental to oil and gas structure Leader); telephone: 202–720–1061. of July 1995 the refined sugar price was removal activities was issued on SUPPLEMENTARY INFORMATION: Paragraph 24.50 cents per pound. The refined November 27, 1995 to the Murphy (a)(i) of additional U.S. note 5 to chapter sugar price during the first week of Exploration & Production Company, 131 17 of the HTS provides that ‘‘the November 1995 was 26.50 cents per South Robertson St., P.O. Box 61780, aggregate quantity of raw cane sugar pound, which represents a 2 cent per New Orleans, LA 70161. entered, or withdrawn from warehouse pound increase. EFFECTIVE DATE: The letter of for consumption, under subheading Paragraph (b)(i) of U.S. additional authorization is effective from 1701.11.10, during any fiscal year, shall note 5 provides that ‘‘the quota amounts November 27, 1995 until November 27, not exceed in the aggregate an amount established [by the Secretary] may be 1996. (expressed in terms of raw value), not allocated among supplying countries ADDRESSES: The application and letter less than, 1,117,195 metric tons, as shall and areas by the United States Trade are available for review in the following be established by the Secretary of Representative.’’ Agriculture (hereinafter referred to as offices: Office of Protected Resources, ‘‘the Secretary’’), and the aggregate Notice NMFS, 1315 East-West Highway, Silver quantity of sugars, syrups and molasses Notice is hereby given that I have Spring, MD 20910 and the Southeast entered, or withdrawn from warehouse determined, in accordance with Region, NMFS, 9721 Executive Center for consumption, under subheadings paragraph (a)(ii) of additional U.S. note Drive N, St. Petersburg, FL 33702. 1701.12.10, 1701.91.10, 1701.99.10, 5 to chapter 17 of the HTS, that an FOR FURTHER INFORMATION CONTACT: 1702.90.10 and 2106.90.44, during any aggregate quantity of up to 1,417,195 Kenneth R. Hollingshead, Office of fiscal year, shall not exceed in the metric tons, raw value, of raw cane Protected Resources, NMFS, (301) 713– aggregate an amount (expressed in terms sugar described in subheading 2055 or Charles Oravetz, Southeast of raw value), not less than 22,000 1701.11.10 of the HTS may be entered Region (813) 570–5312. metric tons, as shall be established by or withdrawn from warehouse for SUPPLEMENTARY INFORMATION: 62244 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Section 101(a)(5)(A) of the MMPA (16 TIME AND DATE: December 14, 1995 from DATES: DOE invites comments on the U.S.C. 1361 et seq.) directs NMFS to 8:00 a.m. to 5:00 p.m. Draft PFP Stabilization EIS from all allow, on request, the incidental, but not PLACE: This meeting will take place at interested parties. Written comments or intentional, taking of small numbers of the Double Tree Hotel, 1750 Rockville suggestions regarding the adequacy, marine mammals by U.S. citizens who Pike, Rockville, MD, 20852. accuracy, and completeness of the Draft engage in a specified activity (other than STATUS: The meeting will be open to the EIS will be considered in preparing the commercial fishing) within a specified public. There will be a public comment Final EIS and should be submitted geographical region, if certain findings period from 1:30-2:30 p.m. Seating is (postmarked) by January 16, 1996. are made, and regulations are issued. available for approximately 50 people. Written comments received after that date will be considered to the degree Under the MMPA, the term ‘‘taking’’ MATTERS TO BE CONSIDERED: This means to harass, hunt, capture or kill or meeting will cover: Consultation on the practicable. DOE will also hold one public hearing to attempt to harass, hunt, capture or FY 1997 National Implementation Plan at which agencies, organizations, and kill marine mammals. (NIP) and proposed Consolidation the general public will be invited to Permission may be granted for periods Certifications for WSOs Helena, MT; up to 5 years if the Secretary of present oral comments or suggestions on Havre, MT; Detroit, MI; Kansas City, the Draft EIS. Location, date, and time Commerce finds, after notification and MO; Concordia, KS; Worcester, MA; opportunity for public comment, that for the public hearing is provided in the Providence, RI; New York City, NY; section of this notice entitled ‘‘PUBLIC the taking will have a negligible impact Waco, TX; West Palm Beach, FL; on the species or stock(s) of marine HEARING.’’ Written and oral comments Daytona Beach, FL; Knoxville, TX; and will be given equal weight and will be mammals and will not have an Beaumont/Port Arthur, TX. unmitigable adverse impact on the considered in preparing the Final EIS. CONTACT PERSON FOR MORE INFORMATION: availability of the species or stock(s) for Requests for copies of the Draft EIS or Mr. Nicholas Scheller, National Weather subsistence uses. In addition, NMFS questions concerning the project should Service, Modernization Staff, 1325 East- must prescribe regulations that include be sent to Mr. Ben F. Burton, DOE, at West Highway, SSMC2, Silver Spring, permissible methods of taking and other the address listed in the section of this Maryland 20910. Telephone: (301) 713– means effecting the least practicable notice entitled ADDRESSES. 0454. adverse impact on the species and its ADDRESSES: Written comments on the habitat, and on the availability of the Dated: November 29, 1995. Draft EIS should be submitted species for subsistence uses, paying Nicholas R. Scheller, (postmarked) by January 16, 1996, for particular attention to rookeries, mating Manager, National Implementation Staff. incorporation into the public hearing grounds and areas of similar [FR Doc. 95–29488 Filed 12–4–95; 8:45 am] record. Oral comments will be accepted significance. The regulations must BILLING CODE 3510±12±M at the public hearing. Written include requirements pertaining to the comments, requests to speak at the monitoring and reporting of such taking. hearing, or questions concerning the Regulations governing the taking of DEPARTMENT OF ENERGY PFP EIS should be directed to: Mr. Ben bottlenose and spotted dolphins F. Burton, U.S. Department of Energy, incidental to oil and gas structure Draft Environmental Impact Statement Richland Operations Office, Attn: PFP removal activities in the Gulf of Mexico for the Plutonium Finishing Plant Stabilization EIS, P.O. Box 550, MSIN were published on October 12, 1995 (60 Stabilization, Hanford Site, Richland, B1–42, Richland, Washington 99352, FR 53139) and remain in effect until Benton County, WA, Notice of (509) 946–3609, 1–800–249–8181. November 13, 2000. Availability and Announcement of FOR FURTHER INFORMATION CONTACT: For Public Hearing Summary of Request general information on DOE’s EIS process and other matters related to AGENCY: Department of Energy. NMFS received a request for a letter NEPA, please contact: Ms. Carol ACTION: of authorization on November 8, 1995, Notice of Availability. Borgstrom, Director, Office of NEPA from the Murphy Exploration and SUMMARY: The Department of Energy Policy and Assistance (EH–42), U.S. Production Company. This letter (DOE) announces the availability of the Department of Energy, 1000 requests a take by harassment of a small Plutonium Finishing Plant Stabilization Independence Avenue SW., number of bottlenose and spotted Draft Environmental Impact Statement Washington, DC 20585, (202) 586–4600 dolphins incidental to the above (DOE/EIS–0244–D). The Draft or (800) 472–2756. mentioned activity. Issuance of the Environmental Impact Statement (EIS) letter of authorization is based on a SUPPLEMENTARY INFORMATION: was prepared pursuant to the National finding that the total takings will have Environmental Policy Act (NEPA) of Background, Purpose and Need for a negligible impact on the bottlenose 1969, and its implementing regulations. Agency Action and spotted dolphin stocks of the Gulf The continued presence of relatively In the late 1980s, a sudden halt in the of Mexico. large quantities of chemically reactive production of weapons-grade plutonium Dated: November 27, 1995 materials in their present form and froze the existing PFP Facility William W. Fox, Jr., location within the Plutonium Finishing manufacturing pipeline in a state that Director, Office of Protected Resources, Plant (PFP) Facility poses an was unsuited for long-term storage. On National Marine Fisheries Service. unacceptable long-term risk to workers, January 24, 1994, the Secretary of [FR Doc. 95–29515 Filed 12–4–95; 8:45 am] the public, and the environment. DOE Energy commissioned a comprehensive BILLING CODE 3510±22±F has identified the need to expeditiously assessment to identify and prioritize the and safely reduce radiation exposure to environmental, safety, and health workers and the risk to the public; vulnerabilities that arise from the Modernization Transition Committee reduce future resources to safely manage storage of plutonium in DOE facilities (MTC) the Facility; and remove, stabilize, store, and determine which are the most and manage plutonium, pending DOE’s dangerous and urgent. The DOE-wide ACTION: Notice of Public Meeting. future use and disposition decisions. assessment, commonly referred to as Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62245

The Plutonium Vulnerability Study, Comment Procedures the time they are scheduled to speak at identified 15 environmental, safety, and the registration desk the day of the Availability of Draft EIS health vulnerabilities at the PFP hearing. Persons who have not Facility. These included storage of Copies of the Draft PFP Stabilization registered in advance may register to unstable forms of plutonium, a potential EIS are being distributed to federal, speak when they arrive at the hearing to for criticality accidents, and seismic state, tribal and local officials and the extent that time is available. To weaknesses. DOE has determined that a agencies, as well as organizations and ensure that as many persons as possible feasible alternative for resolution of the individuals known to be interested in or have the opportunity to present safety issues is removal of readily affected by the proposed project. comments, five minutes will be allotted retrievable plutonium-bearing material Additional copies may be obtained by to each speaker. Persons presenting in hold-up at the PFP Facility and contacting Mr. Burton as provided in comments at the hearing are requested stabilization of these and other the section of this notice entitled to provide DOE with written copies of plutonium-bearing materials at the PFP ADDRESSES. Copies of the Draft PFP their comments at the hearing, if Facility through the following four Stabilization EIS, including appendices possible. Written comments sent by treatment processes: (1) Ion exchange, and reference material will be available mail to the office listed in the vertical calcination and thermal for public review at the locations listed ADDRESSES section above, must be stabilization of plutonium-bearing below. submitted (postmarked) no later than solutions; (2) thermal stabilization of (1) U.S. Department of Energy, January 16, 1996. oxides, fluorides, and process residues Headquarters, Freedom of Hearing Schedule and Location in a continuous furnace; (3) repackaging Information Reading Room, Forrestal Building, 1000 A public hearing will be held at the of metals and alloys; and (4) pyrolysis following location, date and time: of polycubes and combustibles. Independence Avenue, S.W., Washington D.C. 20585, (202) 586– Red Lion Inn—Pasco, 2525 N. 20th, Environmental Impact Statement 3142 Pasco, Washington 99301, (509) 547– Preparation (2) U.S. DOE Public Reading Room, 100 0701 Sprout Road, Room 130 West, Thursday, January 11, 1996, 6:00 p.m.– The Draft EIS has been prepared in Richland, WA 99352, (509) 376– 9:00 p.m. accordance with Section 102(2)(C) of the 8583 Conduct of Hearing NEPA, as implemented in regulations (3) Government Publications, University DOE’s rules and procedures for the promulgated by the Council on of Washington Library, Box 352900, orderly conduct of the hearing will be Environmental Quality (40 Code of Seattle, WA 98185–2900, (206) 543– announced by the presiding officer at Federal Regulations [CFR] Parts 1500– 1937 the start of the hearing. The hearing will 1508) and by DOE’s Implementing (4) Gonzaga University, Foley Center, not be of an adjudicatory or evidentiary Procedures (10 CFR Part 1021). The East 502 Boone Avenue, Spokane, nature. Speakers will not be cross- Draft EIS has been prepared to assess WA 99258, (509) 328–4220 examined, although the presiding officer the potential impacts of both the (5) Portland State University, Branford and the DOE hearing panel members proposed action, and reasonable Price Millar Library, SW Harrison will respond to comments and questions alternatives to the proposed action, on and Park, Portland, OR 97207, (503) from the public. In addition, DOE the human and natural environment. 725–3690 representatives will be available to A Notice of Intent (Notice) to prepare You may also receive a copy of the discuss the project in informal the PFP EIS and hold public scoping Draft EIS by calling the PFP conversations. A transcript of the meetings in Spokane, Richland, and Stabilization EIS toll-free line at 1–800– hearing will be prepared, and the entire Bellevue, Washington, and Hood River 249–8181. record of the hearing, including the and Portland, Oregon, was published by Written Comment transcript, will be placed on file by DOE DOE in the Federal Register on October for inspection at the public locations 27, 1994. A subsequent Notice was Interested parties are invited to given above in the ‘‘COMMENT published by DOE in the Federal provide comments to DOE on the PROCEDURES’’ section. Register on November 23, 1994, content of the Draft EIS as indicated in announcing additional meetings in the section of this notice entitled Signed in Richland, WA this 21st day of November 1995, for the United States Portland, Oregon and Seattle, ADDRESSES. Comments submitted Department of Energy. Washington. The Notice invited oral (postmarked) after January 16, 1996, and written comments and suggestions will be considered to the extent John D. Wagoner, on the proposed scope of the EIS, practicable. Manager, U.S. Department of Energy, Richland Operations Office. including environmental issues and Public Hearing alternatives, and invited public [FR Doc. 95–29578 Filed 12–4–95; 8:45 am] participation in the NEPA process. Procedures BILLING CODE 6450±01±P Overall, scoping comments were The public is invited to provide oral received that assisted in identifying comments to DOE on the Draft EIS at the Federal Energy Regulatory major issues for subsequent in-depth scheduled public hearing. Advance Commission analysis in the Draft EIS. As a result of registration for the presentation of oral the scoping process, an Implementation comments at the hearing will be [Docket No. CP96±79±000] Plan for the PFP Stabilization EIS was accepted up to the day prior to the Texas Gas Transmission Corporation; developed to define the scope and scheduled meeting by calling 1–800– provide further guidance for preparing Notice of Request Under Blanket 249–8181 (prior to 3:00 p.m. Pacific Authorization the Draft EIS. Time). Requests to speak at a specific The Draft EIS considers the proposed time will be honored, if possible. November 29, 1995. action, other reasonable alternatives, Registrants are only allowed to register Take notice that on November 20, and the no action alternative. themselves to speak and must confirm 1995, Texas Gas Transmission 62246 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Corporation (Texas Gas), P.O. Box filed within the time allowed therefor, Applicant, a Pennsylvania 20008, Owensboro, Kentucky 42304, the proposed activity shall be deemed to corporation, states that it intends to own filed in Docket No. CP96–79–000, a be authorized effective the day after the and operate a generating facility request pursuant to Section 157.205 and time allowed for filing a protest. If a (Facility), to be located in Butler 157.211 of the Commission’s protest is filed and not withdrawn County, Pennsylvania, that will consist Regulations under the Natural Gas Act within 30 days after the time allowed of a 12 mw biomass-fueled combustion (18 CFR 157.205 and 157.211) for for filing a protest, the instant request turbine and related interconnection authorization to construct and operate a shall be treated as an application for facilities. The facility will be located in delivery point for Gibbs Die Casting authorization pursuant to Section 7 of a new industrial park being developed Corporation (Gibbs) in Henderson the Natural Gas Act. in Allegheny Township, Pennsylvania. County, Kentucky. Texas Gas makes Lois D. Cashell, Any person desiring to be heard such request, under its blanket Secretary. concerning this application for exempt certificate issued in Docket No. CP82– [FR Doc. 95–29522 Filed 12–4–95; 8:45 am] wholesale generator status should file a 407–000 pursuant to Section 7 of the motion to intervene or comments with Natural Gas Act, all as more fully set BILLING CODE 6717±01±M the Federal Energy Regulatory forth in the request on file with the Commission, 888 First Street, NE., Commission and open to public [Docket Nos. RP95±197±000 and RP95±197± Washington, DC 20426 in accordance inspection. 001] with Sections 385.211 and 385.214 of Texas Gas indicates that Gibbs’ the Commission’s Rules of Practice and natural gas requirements for its plant in Transcontinental Gas Pipe Line Procedure. The Commission will limit Henderson County, Kentucky, are Corporation; Notice of Informal its consideration of comments to those presently supplied on an interruptible Settlement Conference that concern the adequacy or accuracy sales basis by the Henderson Municipal of the application. All such motions and Gas Department (City of Henderson, November 29, 1995. comments should be filed on or before Kentucky), a municipal customer of Take notice that an informal December 11, 1995 and must be served Texas Gas. It is stated that Gibbs has settlement conference will be convened on the Applicant. Any person wishing requested that Texas Gas construct a in this proceeding on Monday, to become a party must file a motion to new delivery point in Henderson December 11, 1995, at 11:00 a.m., for the intervene. Copies of this filing are on County to enable Gibbs to receive purpose of exploring the possible file with the Commission and are natural gas transportation service settlement of the above-referenced available for public inspection. directly from Texas Gas. The proposed proceeding. The conference will be held Lois D. Cashell, at the offices of the Federal Energy new delivery point for Gibbs will be Secretary. known as the Gibbs-Henderson Meter Regulatory Commission, 888 First Station. The estimated cost to construct Street, NE., Washington, DC. [FR Doc. 95–29524 Filed 12–4–95; 8:45 am] said facilities is $66,850, and it is stated Any party, as defined by 18 CFR BILLING CODE 6717±01±M that Gibbs will reimburse Texas Gas in 385.102(c), or any participant, as full for the cost of the facilities to be defined by 18 CFR 385.102(b), is invited Office of Energy Research installed by Texas Gas. to attend. Persons wishing to become a It is stated that Gibbs is requesting up party must move to intervene and Energy Research Financial Assistance to 2,300 MMBtu of natural gas per day receive intervenor status pursuant to the Program Notice 96±02; Enhanced to be supplied by a combination of firm Commission’s Regulations. See 18 CFR Research Capabilities at DOE User transportation, interruptible 385.214. Facilities transportation and released capacity for For additional information, please plant usage at its Henderson plants. It is contact Warren C. Wood at (202) 208– AGENCY: Department of Energy (DOE). further stated that this service will be 2091 or Donald A. Heydt at (202) 208– ACTION: Notice inviting grant provided by Texas Gas pursuant to the 0740. applications. authority of its blanket certificate issued Lois D. Cashell, SUMMARY: The Office of Basic Energy in Docket No. CP88–686–000 and Secretary. Sections 248.223 of the Commission’s Sciences (BES) of the Office of Energy [FR Doc. 95–29523 Filed 12–4–95; 8:45 am] Regulations. The rate schedules Research (ER), U.S. Department of applicable to the proposed service will BILLING CODE 6717±01±M Energy, hereby announces its interest in be Texas Gas’ FT and IT Rate Schedules, receiving grant applications for new capabilities or for upgrading existing as contained in First Revised Volume [Docket No. EG96±16±000] No. 1 of Texas Gas’ FERC Gas Tariff. research capabilities for innovative It is indicated that because of the West Allegheny Biomass Energy fundamental research at DOE-supported relatively small amount of firm natural Corp.; Notice of Application for synchrotron light sources and neutron gas service involved, that this proposal Determination of Exempt Wholesale sources, and the Combustion Research will have no significant impact on Texas Generator Status Facility. Such instrumentation should Gas’ peak day and annual deliveries. employ state-of-the-art technology so Any person or the Commission’s staff November 29, 1995. that the photon and neutron beams are may, within 45 days after issuance of On November 16, 1995, West utilized more effectively. Applications the instant notice by the Commission, Allegheny Biomass Energy Corp. for the development of new capabilities, file pursuant to Rule 214 of the (Applicant), of 327 Winding Way, King as well as upgrading of existing Commission’s Procedural Rules (18 CFR of Prussia, Pennsylvania 19406, filed capabilities are encouraged. 385.214) a motion to intervene or notice with the Federal Energy Regulatory DATES: Potential applicants are strongly of intervention and pursuant to Section Commission an application for a encouraged to submit a brief 157.205 of the Regulations under the determination of exempt wholesale preapplication. All preapplications, Natural Gas Act (18 CFR 157.205) a generator status pursuant to 18 CFR Part referencing Program Notice 96–02, protest to the request. If no protest is 365 of the Commission’s Regulations. should be received by DOE by 4:30 p.m. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62247

E.S.T., December 29, 1995. A response Isotope Reactor (HFIR), Intense Pulsed instrumentation or capabilities at these discussing the potential program Neutron Source (IPNS), Stanford user facilities, contingent upon the relevance of a formal application Synchrotron Radiation Laboratory availability of appropriated funds. The generally will be communicated to the (SSRL), Advanced Light Source (ALS), number of awards and the range of applicant within 30 days of receipt. The Advanced Photon Source (APS), and funding will depend on the number of deadline for receipt of formal Los Alamos Neutron Scattering Center applications received and selected for applications is 4:30 p.m., E.S.T., (LANSCE). These facilities have the award. Information about the February 8, 1996, in order to be capabilities of extreme flux, or development, submission, and the accepted for merit review and to permit brightness, to make certain experiments selection process, and other policies and timely consideration for award in fiscal possible which would otherwise be procedures may be found in 10 CFR Part year 1996. impossible. The interest is in exploiting 605, and in the Application Guide for ADDRESSES: All preapplications, these capabilities to the maximum the Office of Energy Research Financial referencing Program Notice 96–02, extent possible. Assistance Program. The Application should be sent to Dr. William T. The Department’s intention for this Guide is available from the U.S. Oosterhuis, Office of Basic Energy program is to support fundamental Department of Energy, Materials Sciences, Division of Materials research which will include the upgrade Sciences Division, Office of Energy Sciences, ER–13, U.S. Department of and/or development of new Research, ER–13, 19901 Germantown Energy, 19901 Germantown Road, instrumentation to optimize the use of Road, Germantown, Maryland 20874– Germantown, Maryland 20874–1290. these National User Facilities operated 1290. Telephone requests may be made After receiving notification from DOE by the Department. The ability to by calling (301) 903–3426. Electronic concerning successful preapplications, conduct innovative fundamental access to ER’s Financial Assistance applicants may prepare formal research should be emphasized in each Guide is possible via the Internet using applications and send them to: U.S. application. Applicants are encouraged the following E-mail address: http:// Department of Energy, Office of Energy to collaborate with industry and to www.er.doe.gov/. incorporate cost sharing and consortia Research, Grants and Contracts The Catalog of Federal Domestic Division, ER–64, 19901 Germantown wherever feasible. The extent of the collaboration and cost sharing will be Assistance Number for this program is Road, Germantown, Maryland 20874– 81.049, and the solicitation control number is 1290, Attn: Program Notice 96–02. The factors, along with the principal ERFAP 10 CFR Part 605. criterion of the scientific merit of the above address for formal applications Issued in Washington, DC on November 16, also must be used when submitting application, in the selection process by 1995. the Department. formal applications by U.S. Postal D.D. Mayhew, Service Express Mail, any commercial Grant applications are encouraged from all disciplines (including solid Associate Director, Office of Resource mail delivery service, or when Management, Office of Energy Research. handcarried by the applicant. state physics, materials chemistry, metals and ceramics, chemical sciences, [FR Doc. 95–29577 Filed 12–4–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: Dr. structural biology, geosciences, and BILLING CODE 6450±01±P William T. Oosterhuis, Office of Basic environmental sciences) for energy- Energy Sciences, Division of Materials relevant research which make use of the Sciences, ER–13, U.S. Department of DOE-supported user facilities. ENVIRONMENTAL PROTECTION Energy, 19901 Germantown Road, Instrumentation appropriate for AGENCY Germantown, Maryland 20874–1290. consideration would include, but not be [FRL±5338±4] Telephone: (301) 903–3426. limited to, the following: beamline SUPPLEMENTARY INFORMATION: As part of optics and transport guides, Technical Forum on the Grand Canyon the President’s Science Facilities monochromators of much greater Visibility Transport Commission Utilization Enhancement to make more resolution, more efficient detectors to efficient use of the National User reduce the background noise, AGENCY: Environmental Protection Facilities listed below, the electronics and data processing Agency. instrumentation (such as optics, equipment to enable investigators to ACTION: Notice of meeting. detectors, and data collection carry out new or more difficult electronics) needed to increase the experiments and/or more experiments FOR FURTHER INFORMATION CONTACT: Mr. experimental throughput at these in the same amount of time. John T. Leary, Project Manager for the powerful sources has to be at the state- The brief preapplication, in Grand Canyon Visibility Transport of-the-art. At some user facilities, there accordance with 10 CFR 600.10(d)(2), Commission, Western Governor’s is a distinct need to upgrade the should consist of two to three pages of Association, 600 17th Street, Suite 1705, instrumentation to increase the narrative describing the research South Tower, Denver, Colorado 80202; resolution, to detect more photons or objectives and methods of telephone number (303) 623–9378; neutrons per unit time, and increase the accomplishment. The preapplications facsimile machine number (303) 534– quality of the data so that more and will be reviewed relative to the scope 7309. better experiments can be carried out. and research needs of the DOE’s SUMMARY: The United States At other user facilities, there is a need fundamental research programs at these Environmental Protection Agency (U.S. to put more beamlines on the facilities. Telephone and FAX numbers EPA) is announcing a public forum to experimental floor to make more are required parts of the preapplication, address technical issues relating to the experiments possible while the facility and electronic mail addresses are assessment of emissions management is operating. The National User desirable. scenarios being performed by the Grand Facilities supported by the Office of It is anticipated that approximately Canyon Visibility Transport Basic Energy Sciences are the National $5,000,000 will be available for grant Commission (Commission). Synchrotron Light Source (NSLS), High awards during FY 1996 which will The Forum will convene at Desert Flux Beam Reactor (HFBR), Combustion enable innovative fundamental research Research Institute, 755 East Flamingo Research Facility (CRF), High Flux through major enhancements in Road, Las Vegas, Nevada Las Vegas on 62248 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

December 13 through 15, 1995 to (Catalog of Federal Domestic Assistance No. novo through its subsidiary, CCB address technical issues that feed into 83.516, Disaster Assistance.) Financial Corporation, Durham, North the Commission’s assessment process William C. Tidball, Carolina, in making, acquiring, or and thus form a part of the basis for its Associate Director, Response and Recovery servicing loans or other extensions of recommendations to the U. S. Directorate. credit, pursuant to § 225.25(b)(1) of the Environmental Protection Agency. In [FR Doc. 95–29562 Filed 12–4–95; 8:45 am] Board’s Regulation Y. addition, the Commission’s Technical BILLING CODE 6718±02±P Board of Governors of the Federal Reserve Committee wishes to afford interested System, November 29, 1995. persons an opportunity for an exchange Jennifer J. Johnson, of ideas with its members regarding FEDERAL RESERVE SYSTEM Deputy Secretary of the Board. databases and analytical tools and the [FR Doc. 95–29547 Filed 12–4–95; 8:45 am] application thereof that the CCB Financial Corporation; Notice of BILLING CODE 6210±01±F Commission’s Alternatives Assessment Proposal to Engage de novo in Committee will use in carrying out its Permissible Nonbanking Activities integrated assessment. The company listed in this notice has First Bank System, Inc.; Change in Interested persons are asked to submit Bank Control Notices; Acquisitions of comments and additional technical given notice under § 225.23(a)(1) of the Board’s Regulation Y (12 CFR Shares of Banks or Bank Holding issues to be considered at the meeting Companies; Correction to the Technical Committee. 225.23(a)(1)) for the Board’s approval Submissions should be made on forms under section 4(c)(8) of the Bank This notice corrects a notice (FR Doc. which can be obtained from the Grand Holding Company Act (12 U.S.C. 95-28825) published on pages 58363 Canyon Visibility Transport 1843(c)(8)) and § 225.21(a) of Regulation and 58364 of the issue for Monday, Commission, c/o Western Governors’ Y (12 CFR 225.21(a)) to commence or to November 27, 1995. Association, 600 17th Street, Suite 1705 engage de novo, either directly or Under the Federal Reserve Bank of S. Tower, Denver, CO 80202. Issues through a subsidiary, in a nonbanking Minneapolis heading, the entry for First must be submitted by November 17, activity that is listed in § 225.25 of Bank System, Inc., is revised to read as 1995 to be considered. Regulation Y as closely related to follows: The Commission was established by banking and permissible for bank 1. First Bank System, Inc., the EPA on November 13, 1991 (see 56 holding companies. Unless otherwise Minneapolis, Minnesota; to acquire, FR 57522, November 12, 1991). All noted, such activities will be conducted through its wholly owned subsidiary, meetings are open to the public. These throughout the United States. Eleven Acquisition Corp., Minneapolis, meetings are not subject to provisions of The notice is available for immediate Minnesota, 100 percent of the voting the Federal Advisory Committee Act, inspection at the Federal Reserve Bank shares of First Interstate Bancorp, Los Public Law 92–463, as amended. indicated. Once the notice has been Angeles, California, and thereby accepted for processing, it will also be indirectly acquire First Interstate Bank Dated: November 21, 1995. available for inspection at the offices of of California, Los Angeles, California, Felicia Marcus, the Board of Governors. Interested First Interstate Bank of Montana, Regional Administrator, U.S. Environmental persons may express their views in National Association, Kalispell, Protection Agency, Region 9. writing on the question whether Montana, First Interstate Bank, Ltd., Los [FR Doc. 95–29556 Filed 12–4–95; 8:45 am] commencement of the activity can Angeles, California, First Interstate Bank BILLING CODE 6560±50±P ‘‘reasonably be expected to produce of Englewood, National Association, benefits to the public, such as greater Englewood, Colorado, First Interstate convenience, increased competition, or Bank of Alaska, National Association, FEDERAL EMERGENCY gains in efficiency, that outweigh Anchorage, Alaska, First Interstate Bank MANAGEMENT AGENCY possible adverse effects, such as undue of Arizona, National Association, [FEMA±1069±DR] concentration of resources, decreased or Phoenix, Arizona, First Interstate Bank unfair competition, conflicts of of Denver, National Association, Florida; Amendment to Notice of a interests, or unsound banking Denver, Colorado, First Interstate Bank Major Disaster Declaration practices.’’ Any request for a hearing on of Idaho, National Association, Boise, this question must be accompanied by Idaho, First Interstate Bank of New AGENCY: Federal Emergency a statement of the reasons a written Mexico, National Association, Santa Fe, Management Agency (FEMA). presentation would not suffice in lieu of New Mexico, First Interstate Bank of ACTION: Notice. a hearing, identifying specifically any Nevada, National Association, Las questions of fact that are in dispute, Vegas, Nevada, First Interstate Bank of SUMMARY: This notice amends the notice summarizing the evidence that would Oregon, National Association, Portland, of a major disaster for the State of Oregon, First Interstate Bank of Texas, Florida (FEMA–1069–DR), dated be presented at a hearing, and indicating how the party commenting would be National Association, Houston, Texas, October 4, 1995, and related First Interstate Bank of Utah, National determinations. aggrieved by approval of the proposal. Comments regarding the application Association, Salt Lake City, Utah, First EFFECTIVE DATE: November 14, 1995. must be received at the Reserve Bank Interstate Bank of Washington, National FOR FURTHER INFORMATION CONTACT: indicated or the offices of the Board of Association, Seattle, Washington, First Pauline C. Campbell, Response and Governors not later than December 19, Interstate Bank of Wyoming, National Recovery Directorate, Federal 1995. Association, Casper, Wyoming, and Emergency Management Agency, A. Federal Reserve Bank of First Interstate Central Bank, Calabasas, Washington, DC 20472, (202) 646–3606. Richmond (Lloyd W. Bostian, Jr., Senior California. SUPPLEMENTARY INFORMATION: Notice is Vice President) 701 East Byrd Street, In connection with this application, hereby given that the incident period for Richmond, Virginia 23261: First Bank System, Inc., also has applied Lee and Collier Counties is closed 1. CCB Financial Corporation, to acquire First Interstate Resource effective October 31, 1995. Durham, North Carolina; to engage de Finance Associates, Newport Beach, Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62249

California, a venture capital firm, and 1. James River Bankshares, Inc., acquire Bankers First Corporation, and thereby engage in making, acquiring, or Suffolk, Virginia; to acquire 100 percent its subsidiary, Bankers First Savings servicing loans or other extensions of of the voting shares of Bank of Isle of Bank, both of Augusta, Georgia, and credit (including issuing letters of credit Wight, Smithfield, Virginia. thereby engage in operating a savings and accepting drafts) for the company’s Board of Governors of the Federal Reserve association, pursuant to § 225.25(b)(9) account or for the account of others, System, November 29, 1995. of the Board’s Regulation Y. At pursuant to § 225.25(b)(1) of the Board’s Jennifer J. Johnson, consummation, Bankers First Regulation Y, and to acquire First Deputy Secretary of the Board. Corporation will merge into SouthTrust Interstate Bancorp’s voting interest in [FR Doc. 95–29549 Filed 12–4–95; 8:45 am] of Georgia, Inc., and Bankers First Star System, Inc., a California nonprofit BILLING CODE 6210±01±F Savings Bank, FSB, will merge into mutual benefit corporation, and thereby SouthTrust of Georgia’s bank subsidiary, provide data transmission services SouthTrust Bank of Georgia, N.A., through an electronic funds transfer SouthTrust Corporation; Acquisition of Atlanta, Georgia. network, pursuant to § 225.25(b)(7) of Company Engaged in Permissible Board of Governors of the Federal Reserve the Board’s Regulation Y. Nonbanking Activities First Bank System also has applied to System, November 29, 1995. exercise an option to acquire up to 19.9 The organization listed in this notice Jennifer J. Johnson, percent of the voting shares of First has given notice under § 225.23(a)(2) or Deputy Secretary of the Board. Interstate Bancorp. (e) of the Board’s Regulation Y (12 CFR [FR Doc. 95–29550 Filed 12–4–95; 8:45 am] Comments on this application must 225.23(a)(2) or (e)) for the Board’s BILLING CODE 6210±01±F be received by December 21, 1995. approval under section 4(c)(8) of the Board of Governors of the Federal Reserve Bank Holding Company Act (12 U.S.C. System, November 29, 1995. 1843(c)(8)) and § 225.21(a) of Regulation Ruth Cain Thorne; Change in Bank Jennifer J. Johnson, Y (12 CFR 225.21(a)) to acquire or Control Notice; Acquisition of Shares Deputy Secretary of the Board. control voting securities or assets of a of Banks or Bank Holding Companies [FR Doc. 95–29548 Filed 12–4–95; 8:45 am] company engaged in a nonbanking activity that is listed in § 225.25 of BILLING CODE 6210±01±F The notificant listed below has Regulation Y as closely related to applied under the Change in Bank banking and permissible for bank Control Act (12 U.S.C. 1817(j)) and § James River Bankshares, Inc.; holding companies. Unless otherwise 225.41 of the Board’s Regulation Y (12 Formation of, Acquisition by, or noted, such activities will be conducted CFR 225.41) to acquire a bank or bank Merger of Bank Holding Companies throughout the United States. holding company. The factors that are The notice is available for immediate considered in acting on notices are set The company listed in this notice has inspection at the Federal Reserve Bank forth in paragraph 7 of the Act (12 applied for the Board’s approval under indicated. Once the notice has been U.S.C. 1817(j)(7)). section 3 of the Bank Holding Company accepted for processing, it will also be Act (12 U.S.C. 1842) and § 225.14 of the available for inspection at the offices of The notice is available for immediate Board’s Regulation Y (12 CFR 225.14) to the Board of Governors. Interested inspection at the Federal Reserve Bank become a bank holding company or to persons may express their views in indicated. Once the notice has been acquire a bank or bank holding writing on the question whether accepted for processing, it will also be company. The factors that are consummation of the proposal can available for inspection at the offices of considered in acting on the applications ‘‘reasonably be expected to produce the Board of Governors. Interested are set forth in section 3(c) of the Act benefits to the public, such as greater persons may express their views in (12 U.S.C. 1842(c)). convenience, increased competition, or writing to the Reserve Bank indicated The application is available for gains in efficiency, that outweigh for the notice or to the offices of the immediate inspection at the Federal possible adverse effects, such as undue Board of Governors. Comments must be Reserve Bank indicated. Once the concentration of resources, decreased or received not later than December 19, application has been accepted for unfair competition, conflicts of 1995. processing, it will also be available for interests, or unsound banking A. Federal Reserve Bank of Atlanta inspection at the offices of the Board of practices.’’ Any request for a hearing on (Zane R. Kelley, Vice President) 104 Governors. Interested persons may this question must be accompanied by Marietta Street, N.W., Atlanta, Georgia express their views in writing to the a statement of the reasons a written 30303: Reserve Bank indicated for that presentation would not suffice in lieu of application or to the offices of the Board a hearing, identifying specifically any 1. Ruth Cain Thorne, Belmont, of Governors. Any comment on an questions of fact that are in dispute, Mississippi; as Trustee of The application that requests a hearing must summarizing the evidence that would Weatherford Foundation of Red Bay, include a statement of why a written be presented at a hearing, and indicating Alabama, Inc., Red Bay, Alabama, to presentation would not suffice in lieu of how the party commenting would be retain a total of 60.90 percent of the a hearing, identifying specifically any aggrieved by approval of the proposal. voting shares of Independent questions of fact that are in dispute and Comments regarding this application Bancshares, Inc., Red Bay, Alabama, and summarizing the evidence that would must be received not later than thereby indirectly retain shares of Bank be presented at a hearing. December 19, 1995. of Red Bay, Red Bay, Alabama. Comments regarding this application A. Federal Reserve Bank of Atlanta Board of Governors of the Federal Reserve must be received not later than (Zane R. Kelley, Vice President) 104 System, November 29, 1995. December 29, 1995. Marietta Street, N.W., Atlanta, Georgia Jennifer J. Johnson, A. Federal Reserve Bank of 30303: Richmond (Lloyd W. Bostian, Jr., Senior 1. SouthTrust Corporation, Deputy Secretary of the Board. Vice President) 701 East Byrd Street, Birmingham, Alabama, and SouthTrust [FR Doc. 95–29551 Filed 12–4–95; 8:45 am] Richmond, Virginia 23261: of Georgia, Inc., Atlanta, Georgia; to BILLING CODE 6210±01±F 62250 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

DEPARTMENT OF HEALTH AND The National Home and Hospice Care associated with such care. Data from HUMAN SERVICES Survey (NHHCS) was conducted in earlier NHHCS collections have used by 1992, 1993, and 1994. It is part of the the Congressional Budget Office, the Centers for Disease Control and Long- Term Care Survey. Section 306 of Bureau of Health Professionals, the Prevention the Public Health Service Act States that Maryland Health Resources Planning [30DAY±02] the National Center for Health Statistics Commission, the National Association ‘‘shall collect statistics on health for Home Care, and by several Agency Forms Undergoing Paperwork resources * * * [and] utilization of newspapers and journals. Additional Reduction Act Review health care, including utilization of uses are expected to be similar to the ** * services of hospitals, extended The Centers for Disease Control and uses of the National Nursing Home care facilities, home health agencies, Prevention (CDC) publishes a list of Study. NHHCS data cover: Baseline data information collection requests under and other institutions.’’ NHHCS data are on the characteristics of hospices and review, in compliance with the used to examine this most rapidly home health agencies in relation to their Paperwork Reduction Act (44 U.S.C. expanding sector of the health care patients and staff, Medicare and Chapter 35). To request a copy of these industry. Data from the NHHCS are Medicaid certification, costs to patients, requests, call the CDC Reports Clearance widely used by the health care industry sources of payment, patient’s functional and policy makers for such diverse Office on (404) 639–3453. status and diagnoses, and categories of analyses as the need for various medical The following requests have been staff employees. Data collection is supplies; minority access to health care; submitted for review since the last planned for the period July- October, and planning for the health care needs publication date on November 29, 1995. 1996. Survey design is in process now. of the elderly. The NHHCS also reveals Proposed Projects detailed information on utilization Sample selection and preparation of 1. National Home and Hospice Care patterns, as needed to make accurate layout forms will precede the data Survey—(0920–0298)—Reinstatement— assessments of the need for and costs collection by several months.

No. of re- Avg. bur- No. of re- sponses/ den/re- Respondents spond- respond- sponse (in ents ent hrs.)

Facility ...... 1200 1 0.333 Current Patient ...... 8400 1 0.19 Discharged Patient ...... 8400 1 0.214

The total annual burden is 3,792. non-surgical procedures, and the updates for numerous tables in the Send comments to Allison Eydt; Human patterns of use of care in hospitals in Congressionally-mandated NCHS report, Resources and Housing Branch, New various regions of the country. It is the Health, United States. Data from the Executive Office Building, Room 10235; benchmark against which special NHDS are collected annually on Washington, DC 20503. programmatic data sources are approximately 250,000 discharges from 2. National Hospital Discharge compared. Data collected through the a nationally representative sample of Survey—(0920–0212)—Extension—The NHDS are essential for evaluating health Federal hospitals. The data items National Hospital Discharge Survey status of the population, for the collected are the basic core of variables (NHDS), which has been conducted planning of programs and policy to contained in the Uniform Hospital continuously by the National Center for elevate the health status of the Nation, Discharge Data Set (UHDDS). Data for Health Statistics, CDC, since 1965, is the for studying morbidity trends, and for approximately half of the responding principal source of data on inpatient research activities in the health field. hospitals are abstracted from medical utilization of short-stay, non-Federal NHDS data have been used extensively records while the remainder of the hospitals and is the only annual source in the production of goals for the Year hospital supply data through of nationally representative estimates on 2000 Health Objectives and the commercial abstract service the characteristics of discharges, the subsequent monitoring of these goals. In organizations, state data systems, in- lengths of stay, diagnoses, surgical and addition, NHDS data provide annual house tapes of printouts.

No. of re- Avg. bur- No. of re- sponses/ den/re- Respondents spond- respond- sponse (in ents ent hrs.)

Primary Procedure Hospitals ...... 77 251 0.083 Alternate Procedure Hospitals ...... 136 250 0.016 Update (Abstract Service Hospitals) ...... 150 2 0.033 Quality Control Forms (Hospitals) ...... 50 40 0.016 Induction Forms (Hospitals) ...... 40 1 2

The total annual burden is 2,269. Executive Office Building, Room 10235; hospital for treatment of a firearm injury Send comments to Allison Eydt; Human Washington, DC 20503. will be followed in order to: (1) Examine Resources and Housing Branch, New 3. Functional Outcome and Use of the nature and extent of functional Services Following Firearm Injuries— limitations and disability following a New—Patients admitted to an urban Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62251 firearm injury, (2) examine the factors The following data will be collected: (1) discharge, and (2) the medical record that influence patient recovery, and (3) Patients will be interviewed in person will also be abstracted. document the use of post-acute services prior to discharge and by phone at three and barriers to receiving those services. months and nine months after

No. of re- Avg. bur- No. of re- sponses/ den/re- Respondents spond- respond- sponse (in ents ent hrs.)

Patients with firearms injuries ...... 320 3 0.60

The total annual burden is 576. Send proposed collection of information; (c) instructions, and a stamped, self- comments to Allison Eydt, Human ways to enhance the quality, utility, and addressed envelope. The remaining 60 Resources and Housing Branch, New clarity of the information to be percent will receive a telephone call to Executive Office Building, Room 10235, collected; and (d) ways to minimize the review their record. Washington, DC 20503. burden of the collection of information The Centers for Disease Control and Dated: November 29, 1995. on respondents, including through the Prevention (CDC) National AIDS Wilma G. Johnson, use of automated collection techniques Clearinghouse (NAC), is a critical for other forms of information Acting Associate Director for Policy Planning member of the network of government And Evaluation, Centers for Disease Control technology. Send comments to Wilma agencies, community organizations, and Prevention (CDC). Johnson, CDC Reports Clearance Officer, businesses, health professionals, [FR Doc. 95–29559 Filed 12–4–95; 8:45 am] 1600 Clifton Road, MS–D24, Atlanta, educators, and human services GA 30333. Written comments should be BILLING CODE 4163±18±P providers that educate the American received within 60 days of this notice. public about Acquired immunodeficiency syndrome (AIDS) Proposed Projects [INFO±95±07] and provide services for persons 1. Resources and Services Database of infected with human immunodeficiency Proposed Data Collections Submitted the CDC National AIDS Clearinghouse virus (HIV). NAC’s Resources and for Public Comment and (NAC)—(0920–0255)—Extension—This Services Database contains records of Recommendations is a request to extend this project for approximately 18,000 organizations and In compliance with the requirement three years. NAC will mail the Resource is the most comprehensive listing of of Section 3506(c)(2)(A) of the Organization Questionnaire along with a AIDS resources and services available Paperwork Reduction Act of 1995 for cover letter once an organization is throughout the country. opportunity for public comment on identified as providing AIDS-related NAC’s reference staff rely on the proposed data collection projects, the services. Each organization will also Resources and Services Database to Centers for Disease Control and receive a stamped, self-addressed respond to more than 100,000 requests Prevention (CDC) will publish periodic envelope for the return of the for information or referral each year. summaries of proposed projects. To questionnaire. If there is no response a The Database is also the main request more information on the follow-up letter will be sent along with information source for the CDC National proposed projects or to obtain a copy of another questionnaire and return AIDS Hotline which refers the data collection plans and envelope. A telephone call will be made approximately 1.8 million callers from instruments, call the CDC Reports to those organizations who respond but the general public each year to Clearance Officer on (404) 639–3453. whose responses need clarification. appropriate organizations for Comments are invited on: (a) Whether Approximately one third of the entire information, services, and treatment. the proposed collection of information Resources and Services Database is In its continuing efforts to maintain is necessary for the proper performance verified each year. As part of this an up-to-date, comprehensive database, of the functions of the agency, including process, 40 percent of these NAC is seeking renewal of approval of whether the information shall have organizations will receive a copy of the survey instrument and proposed practical utility; (b) the accuracy of the their current database entry by mail, methods. The total cost to respondents agency’s estimate of the burden of the including a cover letter, a list of is estimated at $94,466.00.

Avg. No. of No. of bur- Total re- re- den/re- burden Respondents spond- sponses/ sponse (in ents respond- (in hrs.) ent hrs.)

Questionnaire ...... 2,400 1 0.33 800 Clarification follow-up ...... 360 1 0.17 60 Verification ...... 10,636 1 0.33 3545 Verif. follow-up ...... 993 1 0.17 166 Total ...... 3771

2. Evaluation of a Training Control—New—The Hematologic curricula for hemophilia health care Curriculum for Hemophilia Nurses Who Disorders Branch at CDC has plans to providers to improve their knowledge Teach Home Infusion and Infection develop, pilot, and evaluate training and skills in teaching home infusion of 62252 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Factors VII and IX (coagulating agents content that should be covered when (n=50). Nurses in the experimental which reduce the bleeding resulting teaching HI/IC techniques, and (2) to condition will be asked to use the from a deciciency of natural clotting assist nurses in determining how they manual, while those in the control agents in the blood of people with can best teach HI/IC to patients and condition will continue their current hemophilia) and infection control their families. The purpose of the practices and engage in any naturally- related to the infusion. CDC has proposed data collection is to assess the occuring learning experiences related to initiated the development of a self- efficacy of the manual in achieving HI/IC. Baseline and follow-up surveys learning manual for nurses with those goals. administered to both groups will yield responsibility of teaching hemophilia An experimental design will be data that will be used to determined the patients and their families about home employed in this study in which 100 difference in knowledge, attitudes, and infusion and infection control (HI/IC). randomly sampled nurses will be skills that can be attributed to use of the The goals of the manual are (1) to assigned to either an experimental self-learning guide. facilitate nurses’ understanding of condition (n=50) or to a control group

Avg. No. of No. of bur- Total re- re- den/re- burden Respondents spond- sponses/ sponse (in ents respond- (in hrs.) ent hrs.)

Nurses in experimental condition ...... 50 2 0.50 50 Nurses in control condition ...... 50 2 0.50 50 Total ...... 100

3. Complications Associated with frequency of and assess risk factors for as well as information about previous Home Infusion Therapy: The Nature and percutaneous, mucous membrane, or blood contacts. HCWs will then Frequency of Blood Contacts Among cutaneous blood contacts sustained by complete an exposure questionnaire Health Care Workers—NEW— HCWS during the delivery of home after each home visit for a two-four Occupational blood contact and the infusion therapy and the performance of week data collection period. This potential for transmission of bloodborne related procedures, such as phlebotomy questionnaire will include information pathogens is a serious concern for and blood culture collection; (2) about the reason for the visit, the types health care workers (HCWs) who describe and evaluate the effectiveness of procedures performed, the length of provide care to patients. There are no of infection control precautions and the visit, the number and types of blood data on the frequency of occupational safety devices to prevent blood contacts; contacts sustained, and the use of percutaneous injuries and and (3) evaluate the impact of HCWs’ infection control precautions and any mucocutaneous blood contact among knowledge of universal precautions on HCWs who provide home infusion the use of protective equipment, safety safety devices. At the end of their therapy. devices, and the frequency of blood individual data collection period, each The Hospital Infections Program, contacts. HCW will complete an infection control National Center for Infectious Diseases, The population under surveillance questionnaire to assess knowledge and will conduct prospective, active will be nurses and phlebotomists from attitudes related to blood contacts and surveillance of HCWs who provide three home health care agencies. Before the use of universal precautions. The home infusion therapy. The objectives beginning data collection, HCWs will total cost to respondents is estimated at of the surveillance project are to (1) complete a background questionnaire to $24,633. estimate the procedure-specific provide basic demographic information

No. of Avg. No. of bur- re- den/re- Total Respondents (HCWs) re- sponses/ spond- respond- sponse burden ents (in ent hrs.)

Background questionnaire ...... 1337 1 .083 111 Exposure questionnaire ...... 1337 41 .0167 915 Infection control questionnaire ...... 1337 1 .083 111 Total ...... 1137

4. Surveillance and Epidemiology time to determine if they are in the request that may be used, Study Core Questionnaire and experiencing elevated occurrence of depending on the organ system targeted Supplement Modules—(0923–0010)— diseases. In addition to demographic or the type of respondent (renal, liver, Revision—ATSDR is revising and information, additional core information occupational, respiratory, etc). The total renewing the project which follows is collected on behavioral characteristics cost to respondents is estimated at populations exposed to specific and health conditions. The $53,153.64. hazardous substances over a period of supplemental modules are also included Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62253

No. of Avg. No. of re- burden/ Total Respondents Re- sponses/ re- burden spond- respond- sponses (in ents ent (in hrs.) hrs.)

Households ...... 2667 7 .369 4908

Dated: November 29, 1995. Registration and Product Listing (8/95) human immunodeficiency virus (HIV) Wilma G. Johnson, may also be obtained by calling the and hepatitis B surface antigen (HBsAg) Acting Associate Director for Policy Planning CBER FAX Information System (FAX— proficiency test program name. And Evaluation, Centers for Disease Control ON—DEMAND) at 301–594–1939 from In accordance with § 607.20, owners and Prevention (CDC). a touch tone phone. Submit written or operators of all establishments that [FR Doc. 95–29558 Filed 12–4–95; 8:45 am] comments on the revised FDA Form engage in the manufacture of blood BILLING CODE 4163±18±P 2830 Blood Establishment Registration products are required to register and to and Product Listing (8/95) to the submit a list of every blood product in Dockets Management Branch (HFA– commercial distribution, whether or not Food and Drug Administration 305), Food and Drug Administration, the output of such blood product [Docket No. 95N±0358] rm. 1–23, 12420 Parklawn Dr., establishment or any particular blood Rockville, MD 20857. Two copies of any product so listed enters interstate Revised FDA Form 2830 Blood comments are to be submitted, except commerce. Establishment Registration and that individuals may submit one copy. Owners or operators of establishments Product Listing (8/95); Availability Requests and comments should be that engage in the manufacturing of identified with the docket number blood products that are currently AGENCY: Food and Drug Administration, found in brackets in the heading of this registered with FDA need not request HHS. document. The revised FDA Form 2830 the revised form. In accordance with ACTION: Notice. Blood Establishment Registration and § 607.22, FDA Form 2830 will be Product Listing (8/95) and received distributed by FDA before November 15 SUMMARY: The Food and Drug comments are available for public of each year to establishments whose Administration (FDA) is announcing the examination in the Dockets product registration for that year was availability of the revised FDA Form Management Branch between 9 a.m. and validated, pursuant to § 607.35. In 2830 Blood Establishment Registration 4 p.m., Monday through Friday. addition, these establishments are and Product Listing (8/95). This form SUPPLEMENTARY INFORMATION: FDA is required to update their blood product replaces the previous edition of FDA making available revised FDA Form listing information every June and Form 2830 (7/93). FDA Form 2830 is 2830 Blood Establishment Registration December. New owners or operators of used for blood establishment and Product Listing (8/95), used in establishments that engage in the registration and product listing, in accordance with part 607 (21 CFR part manufacturing of blood products may accordance with the agency’s 607), by owners or operators of request the revised form as instructed regulations. FDA has made minor establishments that engage in the under the ADDRESSES caption (see changes to the blood establishment manufacturing of blood products. Minor above). registration and product listing which revisions have been made to the format Owners or operators of establishments are intended to update the form, of the form and the information that engage in the manufacturing of simplify processing, provide for solicited which include, but are not blood products that are preparing to efficient and effective use of the data limited to, the following: (1) Revised submit applications for blood base, and decrease expenditure of FDA Form 2830 was reformatted into a establishment registration and product resources for both FDA and industry. single copy form, which replaces the listing should now utilize the revised DATES: FDA will continue to accept previous four-copy form; (2) item 15, FDA Form 2830 (8/95). FDA will submissions using the previous FDA products, was revised by: (a) Adding continue to accept submissions using Form 2830 (7/93) until June 5, 1996. Red Blood Cells Rejuvenated Frozen the previous FDA Form 2830 (7/93) FOR FURTHER INFORMATION CONTACT: and Red Blood Cells Rejuvenated until June 5, 1996. Valerie A. Windsor, Center for Biologics Deglycerolized and (b) adding a column Under the Paperwork Reduction Act Evaluation and Research (HFM–630), to identify irradiated blood products; (3) of 1995 (Pub. L. 104–13), all forms Food and Drug Administration, 1401 item 13, type establishment, was revised requesting a collection of information Rockville Pike, Rockville, MD 20852– by adding product testing laboratory, on identical items from 10 or more 1448, 301–594–3074. with the subheadings: Independent and public respondents must be approved ADDRESSES: Submit written requests for associated with community or hospital by the Office of Management and single copies of the revised FDA Form blood bank; and (4) instructions for Budget (OMB) and must display a valid 2830 Blood Establishment Registration completing blood registration FDA Form OMB control number and expiration and Product Listing (8/95) to the 2830, were revised and included on a date. OMB approval for FDA Form 2830 Congressional and Consumer Affairs separate page. was obtained on February 9, 1993, and Branch (HFM–12), Food and Drug In addition, the revised form given OMB approval number 0910– Administration, 1401 Rockville Pike, continues to solicit the following 0052; expiration date February 28, 1996, Rockville, MD 20852–1448, or call information: (1) Registration number; (2) however, the expiration date has been FDA’s automated information system at legal name and location; (3) reporting extended by OMB to May 31, 1996. 800–835–4709. Send two self-addressed official; (4) type of ownership; (5) type Since these minor revisions to FDA adhesive labels to assist that office in establishment; (6) listing of products Form 2830 did not increase burden to processing your requests. The revised collected, processed, prepared, tested, the public, OMB approval was not FDA Form 2830 Blood Establishment and stored for distribution; and (7) required. 62254 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Dated: November 28, 1995. serve on the board for two vacancies membership on the board. Nominations William B. Schultz, occurring December 31, 1995, and four shall state that the nominee is aware of Deputy Commissioner for Policy. vacancies occurring December 31, 1996. the nomination, is willing to serve as a member of the board, and appears to [FR Doc. 95–29479 Filed 12–4–95; 8:45 am] Function BILLING CODE 4160±01±F have no conflict of interest that would The function of the board is to preclude board membership. Potential provide advice primarily to the agency’s candidates will be asked by FDA to Request for Nominations for Members Senior Science Advisor and, as needed, provide detailed information concerning on Public Advisory Committees; to the Commissioner of Food and Drugs such matters as financial holdings, Science Board to the Food and Drug and other appropriate officials on consultancies, and research grants or Administration specific complex and technical issues as contracts in order to permit evaluation well as emerging issues within the of possible sources of conflict of AGENCY: Food and Drug Administration, scientific community in academia and interest. HHS. industry. Additionally, the board This notice is issued under the ACTION: Notice. provides advice to the agency on Federal Advisory Committee Act (5 keeping pace with technical and U.S.C. app. 2) and 21 CFR part 14, SUMMARY: The Food and Drug scientific evolutions in the field of relating to advisory committees. Administration (FDA) is requesting regulatory science, on formulating an Dated: November 27, 1995. nominations for members to serve on appropriate research agenda and on the Science Board to the Food and Drug upgrading its scientific and research Michael A. Friedman, Administration (the board). facilities to keep pace with these Deputy Commissioner for Operations. Nominations will be accepted for changes. The board also provides the [FR Doc. 95–29572 Filed 12–4–95; 8:45 am] current vacancies and vacancies that means for critical review of agency- BILLING CODE 4160±01±F will or may occur on the board during sponsored intramural and extramural the next 24 months. scientific research programs. FDA has a special interest in ensuring Health Resources and Services that women, minority groups, and Criteria for Members Administration individuals with disabilities are Persons nominated for membership adequately represented on advisory from academia, industry, and Request for Nominations to the committees, and therefore, extends government representatives shall be National Advisory Committee on Rural particular encouragement to knowledgeable in the fields of Health nominations for appropriately qualified chemistry, pharmacology, toxicology, AGENCY: Health Resources and Services female, minority, or physically disabled clinical research, and other scientific Administration, HHS. candidates. Final selections from among disciplines. The term of office is up to ACTION: Notice. qualified candidates for each vacancy 4 years, depending on the appointment will be determined by the expertise date. SUMMARY: The Health Resources and required to meet specific agency needs Services Administration (HRSA) is and in a manner to ensure appropriate General Public Representatives (Consumer-nominated Members) requesting nominations to fill five balance of membership. vacancies on the Secretary’s National DATES: Nominations should be received FDA currently attempts to place Advisory Committee on Rural Health. by January 15, 1996. members on advisory committees who DATES: Nominations must be received ADDRESSES: All nominations and are nominated by consumer by close-of-business on Friday, January curricula vitae from academia, industry, organizations. These members are 5, 1996. recommended by a consortium of 12 and government representatives, except ADDRESSES: Nominations and the for general public representatives consumer organizations that has the responsibility for screening, curricula vitae of nominees should be (consumer-nominated members), should sent to Dena S. Puskin, Sc.D., Executive be sent to Zelma S. Rein (address interviewing, and recommending consumer-nominated candidates with Secretary to the National Advisory below). All nominations for general Committee on Rural Health, Room 9–05, public representatives (consumer- appropriate scientific credentials. Candidates are sought who are aware of 5600 Fishers Lane, Rockville, Maryland nominated members) should be sent to 20857. Annette J. Funn (address below). the consumer impact of committee issues, but who also possess enough FOR FURTHER INFORMATION CONTACT: Lisa FOR FURTHER INFORMATION CONTACT: technical background to understand and Shelton at the above address, or phone Regarding all nominations for contribute to the committee’s work. The (301) 443–0835 for further information. membership, except for general agency notes, however, that for some SUPPLEMENTARY INFORMATION: The HRSA public representatives: Zelma S. advisory committees, it may require is requesting nominations under the Rein, Office of Science (HF–33), such nominees to meet the same authorities that established the National Food and Drug Administration, technical qualifications and specialized Advisory Committee on Rural Health: 5600 Fishers Lane, Rockville, MD training required of other expert the Federal Advisory Committee Act of 20857, 301–827–3340. members of the committee. The term of October 6, 1972 (Pub. L. 92–473) and Regarding all nominations for general office for these members is up to 4 Section 22 of the Public Health Service public representatives: Annette years, depending on the appointment Act. Funn, Office of Consumer Affairs, date. Nominations are invited for The National Advisory Committee on (HFE–50), Food and Drug consideration for membership as Rural Health is an 18-member citizens’ Administration, 5600 Fishers Lane, openings become available. panel appointed by the U.S. Secretary of Rockville, MD 20857, 301–443– Health and Human Services to provide 5006. Nomination Procedures advice on rural health needs. Drawing SUPPLEMENTARY INFORMATION: FDA is Any interested person may nominate from committee members’ diverse requesting nominations for members to one or more qualified person for experience with rural health care issues, Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62255 the committee annually reports to the DEPARTMENT OF THE INTERIOR where coalbed methane development Secretary on the rural impact of the has been impeded by disputes or Department’s policies and regulations. It Bureau of Land Management uncertainty over ownership of coalbed also offers recommendations for [AK±962±1410±00±P; AA±50379±27] methane gas. As required by the Act, the strategies that could improve the Department of the Interior, with the provision and financing of health care Notice for Publication; Alaska Native participation of the Department of services in rural areas. Claims Selection Energy, developed a List of Affected States to which this program would Each appointee serves a four-year In accordance with Departmental apply (58 FR 21589, April 22, 1993). term and is a voting member of the regulation 43 CFR 2650.7(d), notice is The List of Affected States is currently committee. Appointees to the five seats hereby given that a decision to issue comprised of the States of Illinois, becoming vacant will serve July 1, 1996 conveyance under the provisions of Indiana, Kentucky, and Tennessee. through June 30, 2000. Section 14(e) of the Alaska Native The legislative body of the State of This year the Department is Claims Settlement Act of December 18, Indiana, in the form of a resolution requesting nominations for five 1971, 43 U.S.C. 1601, 1613(e), will be passed on March 6, 1995, petitioned the members whose expertise would issued to Chugach Alaska Corporation Secretary of the Interior for removal include experience in one or more of the for 3,182.31 acres. The lands involved from the List of Affected States. The following: (1) The development and are in the vicinity of Cordova, Alaska. resolution stated that the General delivery of health services in rural areas; Copper River Meridian, Alaska Assembly of the State of Indiana petitions the Secretary of the interior to (2) state government and state-wide T. 13 S., R. 5 W.; development of rural health programs; T. 14 S., R. 5 W. delete Indiana from the List of Affected (3) rural mental health/substance abuse; States for the purposes of section 1339 A notice of the decision will be (4) health economics and health care of the Energy Policy Act of 1992. published once a week, for four (4) financing; (5) rural health professions Section 1339 of the Act provides three consecutive weeks, in the Anchorage education; and (6) rural health research. mechanisms by which a state may be Daily News. Copies of the decision may removed from the List of Affected Nomination Procedure be obtained by contacting the Alaska States: State Office of the Bureau of Land 1. A state may pass a law or resolution Any interested person may nominate Management, 222 West Seventh requesting removal; for consideration one or more qualified Avenue, #13, Anchorage, Alaska 99513– 2. The governor of a state may petition individuals for membership on the 7599 ((907) 271–5960). for removal, but only after giving the committee. Nominators shall note that Any party claiming a property interest legislature 6-months notice, during a the nominee is willing to serve as a which is adversely affected by the legislative session, of his intention to member of the committee for the full, decision, an agency of the Federal submit the petition; or four-year term, and that such person government or regional corporation, 3. The state legislature implements a appears to have no conflict of interest shall have until January 4, 1996, to file law or regulation permitting and that would preclude this service. For an appeal. However, parties receiving encouraging the development of coalbed each nominee, nominations must service by certified mail shall have 30 methane. include a complete curriculum vitae, a days from the date of receipt to file an Since the State of Indiana has met the current business address, and a daytime appeal. Appeals must be filed in the condition for removal from the List of telephone number. Nominators are Bureau of Land Management at the Affected States by passing a resolution invited to state why they believe a address identified above, where the requesting removal, the State of Indiana nominee to be particularly well- requirements for filing an appeal may be is officially removed from the List of qualified. Please note that due to time obtained. Parties who do not file an Affected States. constraints, incomplete nominations appeal in accordance with the FOR FURTHER INFORMATION CONTACT: (such as those without a curriculum requirements of 43 CFR Part 4, Subpart David R. Stewart, Chief, Branch of vitae) will not be considered. E, shall be deemed to have waived their Resources Planning and Protection, The Department has a special interest rights. Bureau of Land Management, Eastern in assuring that appropriately qualified Chris Sitbon, States, 7450 Boston Boulevard, citizens who are women, members of a Land Law Examiner, Branch of Gulf Rim Springfield, Virginia 22153, or minority, or who have a physical Adjudication. telephone (703) 440–1728; or Charles W. disability are adequately represented on [FR Doc. 95–29560 Filed 12–4–95; 8:45 am] Byrer, U.S. Department of Energy, 3610 advisory bodies. It therefore encourages BILLING CODE 4310±JA±P Collins Ferry Road, Morgantown, West the nomination of such candidates to Virginia 26507, or telephone (304) 291– 4547. the National Advisory Committee on [ES±930±06±1320±020241A] Rural Health. The Department will also Dated: November 27, 1995. give close consideration to an equitable Amendment to the List of Affected Gary D. Bauer, geographic representation. States Under Federal Coalbed Methane Acting State Director. Appointments shall be made without Recovery Regulations [FR Doc. 95–29543 Filed 12–4–95; 8:45 am] discrimination on the basis of age, race, AGENCY: Bureau of Land Management. BILLING CODE 4310±GJ±M sex, culture, religion, or socioeconomic ACTION: Removal of Indiana from the status. List of Affected States. [OR±030±06±1220±00; GP6±0030] Dated: November 30, 1995. SUMMARY: The Energy Policy Act of 1992 Ciro V. Sumaya, Notice of Meeting of Southeastern (the Act) (P.L. 102–486) requires that the Oregon Resource Advisory Council Administrator. Secretary of the Interior (Secretary) [FR Doc. 95–29531 Filed 12–4–95; 8:45 am] administer a Federal program to regulate AGENCY: Vale District, Bureau of Land BILLING CODE 4160±15±P coalbed methane development in states Management, Interior. 62256 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

ACTION: Notice of meeting. Shelton, Lynn, American Legion Post No. 27, TENNESSEE 28 S. College Ave., Fayette County SUMMARY: Notice is given that a meeting Fayetteville, 95001480 Marathon Motor Works, of the Southeastern Oregon Resource COLORADO Advisory Council will be held January 1200–1310 and 1305 Clinton St., Nashville, 95001482 8, 1996 from 1:00 p.m. to 9:00 p.m. and Denver County January 9, 1996 from 8:00 a.m. to 12:00 Romeo Block, WISCONSIN 2944 Zuni St., p.m. at the Harney County Museum Oneida County Club Room, 18 West ‘‘D’’ Street, Burns, Denver, 95001485 Lake Tomahawk Site, Oregon. LOUISIANA Address Restricted, At an appropriate time, the Council Orleans Parish Lake Tomahawk vicinity, 95001496 will recess for approximately one hour for lunch and one and one-half hours for Arabella Station, Richland County 5600 Magazine St., Tippesaukee Farm Rural Historic District dinner. Public comments will be New Orleans, 95001484 received from 6:00 p.m. to 7:00 p.m., (Boundary Increase), January 8. Topics to be discussed are MARYLAND Jct. of WI Trunk Hwy. 60 and Co. Trunk Hwy. X, Town of Richwood, administrative activities of the Council, Worcester County Port Andrew, 95001491 the Southeastern Oregon Resource Friendship United Methodist Church, Old, In order to assist in the preservation Management Plan, and standards and Meadow Bridge Rd., guidelines for livestock grazing on West Post Office vicinity, 95001490 of the following property, the public lands. commenting period is being waived: MISSOURI DATES: The meeting will begin at 1:00 MASSACHUSETTS Cape Girardeau County p.m. to 9:00 p.m. January 8, 1996 and Suffolk County 8:00 a.m. to 12:00 p.m. January 9, 1996. Miller–Seabaugh House and Dr. Seabaugh Office Building, Riviera, The ADDRESSES: The meeting will take place 341 Market St., 270 Huntington Ave. in the Harney County Museum Club Millersville, 95001494 Boston, 95001450 Room 18 West ‘‘D’’ Street, Burns, [FR Doc. 95–29553 Filed 12–4–95; 8:45 am] Oregon. Newton County BILLING CODE 4310±70±P FOR FURTHER INFORMATION CONTACT: Second Baptist Church, Jonne Hower, Bureau of Land 430 W. Grant St., Neosho, 95001495 Management, Value District, 100 Oregon INTERSTATE COMMERCE Sullivan County Street, Vale, OR 97918, (telephone 503 COMMISSION 473–3144). Milan Railroad Depot, Lynn Findley, Jct. of E. Third St. and Short St., [Ex Parte No. 347 (Sub-No. 2)] Milan, 95001493 Assistant District Manager, Operations. Rate GuidelinesÐNon-Coal [FR Doc. 95–29508 Filed 12–4–95; 8:45 am] NEBRASKA Proceedings BILLING CODE 4310±33±M Saline County AGENCY: Interstate Commerce Rad Saline Center cis. 389 Z. C. B. J., Commission. Off NE 15, about 9 mi. N of Western, National Park Service Western vicinity, 95001483 ACTION: Notice of proposed guidelines. National Register of Historic Places; NEW YORK SUMMARY: The Commission seeks Notification of Pending Nominations St. Lawrence County comments on simplified decisional guidelines that can be used to resolve Nominations for the following Russell Town Hall, rail rate reasonableness cases in properties being considered for listing Jct. of Main and Mill Sts., NW corner, Russell, 95001492 proceedings where the Constrained in the National Register were received Market Pricing (CMP) method is by the National Park Service before Suffolk County unsuitable. The Commission finds that November 25, 1995. Pursuant to section Sherrill, Stephen, House, the Simplified Stand-Alone Cost Model 60.13 of 36 CFR Part 60 written 4 Fireplace Rd., proposed by the Association of comments concerning the significance East Hampton, 95001486 American Railroads, as currently of these properties under the National NORTH DAKOTA formulated, does not appear to be an Register criteria for evaluation may be acceptable tool for determining forwarded to the National Register, Traill County maximum reasonable rail rates, and National Park Service, P.O. Box 37127, Plummer, Amos and Lillie, House, that, unless it is modified, it would not Washington, D.C. 20013–7127. Written 306 W. Caledonia Ave., be appropriate for use in future rate Hillsboro, 95001488 comments should be submitted by cases. Comments are requested on two December 20, 1995. OHIO proposals that would jointly apply a Carol D. Shull, Tuscarawas County ‘‘revenue shortfall allocation method’’ Keeper of the National Register. (RSAM) test, an ‘‘average revenue-to- Cooper, Katherine, House, ARKANSAS variable cost percentage above 180%’’ 118 W. 7th St., >180 Dover, 95001487 (R/VC ) test, and a ‘‘revenue-to- Crawford County variable cost comparison’’ (R/VCCOMP) No. 12 School, SOUTH CAROLINA test as a guide in determining the E of Co. Rd. 402, approximately 6 mi. W of Richland County reasonableness of the rates charged Chester, captive shippers in those cases that are Chester vicinity, 95001481 South Carolina Penitentiary, 1511 Williams St., too small for use of our CMP guidelines. Washington County Columbia, 95001489 Comments are also invited on whether Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62257 to define in this proceeding those cases segment of rail line known as the Little [Docket No. AB±12 (Sub-No. 152X)] that would qualify for processing under J line, between milepost LN–0.2 and simplified procedures or whether it is milepost LN–6.0 (together with 2.14 Southern Pacific Transportation more desirable to have that miles of side track, for a total of 7.94 CompanyÐAbandonment ExemptionÐ determination made on a case-by-case track-miles), within the City of Jackson, in Orange County, CA basis. Hinds County, MS, subject to standard AGENCY: Interstate Commerce DATES: Comments must be filed by employee protective conditions. Commission. February 5, 1996. Replies must be filed A certificate will be issued by March 4, 1996. authorizing abandonment unless, within ACTION: Notice of exemption. ADDRESSES: An original and 20 copies of 15 days after publication of this Notice, all documents must refer to Ex Parte No. the Commission also finds that: (1) A SUMMARY: The Commission, pursuant to 347 (Sub-No. 2) and be sent to the Office financially responsible person has 49 U.S.C. 10505, exempts from the prior of the Secretary, Case Control Branch, offered financial assistance, through approval requirements of 49 U.S.C. Attn: Ex Parte No. 347 (Sub-No. 2), subsidy or purchase, to enable the rail 10903–04 the abandonment by Southern Interstate Commerce Commission, 1201 service to be continued; and (2) it is Pacific Transportation Company of 1.64 Constitution Ave., N.W., Washington, likely that the assistance would fully miles of railroad in Orange County, CA, DC 20423. Parties are encouraged also to compensate the railroad. subject to standard labor protective submit all pleadings and attachments on conditions and a public use condition. a 3.5-inch diskette in WordPerfect 5.1 Any offers of financial assistance format. must be filed with the Commission and DATES: Provided no formal expression of intent to file a financial assistance offer FOR FURTHER INFORMATION CONTACT: IC no later than 10 days from has been received, this exemption will Ellen D. Hanson or Thomas J. Stilling, publication of this Notice. The offer, (202) 927–7312. [TDD for the hearing referring to Docket No. AB–43 (Sub-No. be effective on January 4, 1996. Formal impaired: (202) 927–5721.] 162), must be addressed to: (1) Office of expressions of intent to file financial assistance offers 1 under 49 CFR SUPPLEMENTARY INFORMATION: the Secretary, Case Control Branch, Interstate Commerce Commission, 1201 1152.27(c)(2) must be filed by December Additional information is contained in 15, 1995. Petitions to stay must be filed the Commission’s decision. To purchase Constitution Avenue, N.W., by December 20, 1995. Petitions to a copy of the full decision, write to, call, Washington, D.C. 20423; and (2) Myles reopen must be filed by January 2, 1996. or pick up in person from: DC News & L. Tobin, Illinois Central Railroad Data, Inc., Room 2229, Interstate Company, 455 North Cityfront Plaza ADDRESSES: Send pleadings referring to Commerce Commission Building, 1201 Drive, Chicago, IL 60611–5504. The Docket No. AB–12 (Sub-No. 152X) to: Constitution Ave., N.W., Washington, following notation must be typed in (1) Office of the Secretary, Case Control DC 20423. Telephone: (202) 289–4357/ bold face on the lower left-hand corner Branch, Interstate Commerce 4359. [Assistance for the hearing of the envelope containing the offer: Commission, 1201 Constitution Avenue, impaired is available through TDD ‘‘Office of Proceedings, AB–OFA.’’ Any N.W., Washington, DC 20423; and (2) services at (202) 927–5721.] offer previously made must be remade Petitioner’s representative: Gary A. The Commission tentatively within this 10-day period. Laakso, Southern Pacific Building, One concludes that the proposed action, Information and procedures regarding Market Plaza, San Francisco, CA 94105. which seeks to develop standards for small rate cases, will not have a financial assistance for continued rail FOR FURTHER INFORMATION CONTACT: substantial impact upon a significant service are contained in 49 U.S.C. 10905 Joseph H. Dettmar, (202) 927–5660. number of small entities, and that any and 49 CFR 1152.27. Additional [TDD for the hearing impaired: (202) impact it might have on such entities information is contained in the 927–5721.] Commission’s Decision. To purchase a will be favorable. SUPPLEMENTARY INFORMATION: copy of the full Decision, write to, call, This action will not significantly Additional information is contained in or pick up in person from: DC NEWS & affect either the quality of the human the Commission’s decision. To obtain a DATA, INC., Interstate Commerce environment or the conservation of copy of the full decision, write to, call, energy resources. Commission Building, 1201 or pick up in person from: DC NEWS & Decided: November 22, 1995. Constitution Avenue, N.W., Room 2229, DATA, INC., Interstate Commerce By the Commission, Chairman Morgan, Washington, D.C. 20423. Telephone: Commission Building, 1201 Vice Chairman Owen and Commissioner (202) 289–4357/4359. [Assistance for Constitution Avenue, N.W., Room 2229, Simmons. the hearing impaired is available Washington, DC 20423. Telephone: Vernon A. Williams, through TDD services at (202) 927– (202) 289–4357. [Assistance for the Secretary. 5721.] hearing impaired is available through [FR Doc. 95–29546 Filed 12–04–95; 8:45 am] Decided: November 22, 1995. TDD services (202) 927–5721.] BILLING CODE 7035±01±P By the Commission, Chairman Morgan, Decided: November 22, 1995. Vice Chairman Owen, and Commissioner By the Commission, Chairman Morgan, [Docket No. AB±43 (Sub-No. 162)] Simmons. Vice Chairman Owen, and Commissioner Vernon A. Williams, Simmons. Illinois Central Railroad CompanyÐ Secretary. Vernon A. Williams, AbandonmentÐin Jackson, Hinds [FR Doc. 95–29545 Filed 12–4–95; 8:45 am] Secretary. County, MS BILLING CODE 7035±01±P [FR Doc. 95–29544 Filed 12–4–95; 8:45 am] The Commission has found that the BILLING CODE 7035±01±P public convenience and neccesity permit Illinois Central Railroad 1 See Exempt. of Rail Abandonment—Offers of Company (IC) to abandon a 5.8-mile Finan. Assist., 4 I.C.C.2d 164 (1987). 62258 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

DEPARTMENT OF JUSTICE 0892. A copy of the proposed consent Street, N.W., 4th Floor, Washington, decree may be obtained in person or by D.C. 20005, (202) 624–0892. A copy of Notice of Lodging of Consent Decree mail from the Consent Decree Library, the proposed consent decree may be Pursuant to the Clean Air Act 1120 G Street, N.W., 4th Floor, obtained in person or by mail from the Washington, D.C. 20005. In requesting a Consent Decree Library, 1120 G Street, In accordance with Departmental copy, please refer to the referenced case N.W., 4th Floor, Washington, D.C. policy, 28 CFR 50.7, notice is hereby and enclose a check in the amount of 20005. In requesting a copy please refer given that a proposed consent decree in $4.75 (25 cents per page reproduction to the referenced case and enclose a United States v. Colorado Refining costs), payable to the Consent Decree check in the amount of $18.75 (25 cents Company, Civil Action No. 95–WY– Library. per page reproduction costs), payable to 2608 (D. Colo.), was lodged on October the Consent Decree Library. 13, 1995, with the United States District Joel M. Gross, Court for the District of Colorado. Acting Chief, Environment and Natural Joel M. Gross, The settlement concerns the Resources Division, Environmental Acting Chief, Environmental Enforcement petroleum refinery owned and operated Enforcement Section. Section, Environment and Natural Resources by Colorado Refining Company (‘‘CRC’’) [FR Doc. 95–29491 Filed 12–4–95; 8:45 am] Division. in Commerce City, Colorado. CRC’s BILLING CODE 4410±01±M [FR Doc. 95–29492 Filed 12–4–95; 8:45 am] refinery is subject to a Clean Air Act BILLING CODE 4410±01±M ‘‘Prevention of Significant Notice of Lodging of Consent Decree Deterioration’’ or ‘‘PSD’’ permit which Pursuant to 28 CFR 50.7 Notice of Lodging of First Amendment limits sulfur dioxide emissions from a to Consent Decree in United States v. ‘‘Claus Plant,’’ and also requires CRC to Notice is hereby given that a proposed Louisiana-Pacific, Inc. and Kirby maintain a continuous emission consent decree in Illinois Public Interest Forest Industries, Inc. monitoring (‘‘CEM’’) system to measure Research Group, et al., and United SO2 emissions from the Claus Plant. The States of America v. 115th Street In accordance with Departmental settlement resolves civil claims that Corporation, Civil Action No. 92–C– policy, 28 CFR 50.7, (38 FR 19029, CRC violated the permit limit on sulfur 5564, was lodged on November 9, 1995 March 29, 1984), notice is hereby given dioxide emissions from the Claus Plant with the United States District Court for that a proposed First Amendment to numerous times between July 1990 and the Northern District of Illinois, Eastern Consent Decree in United States v. March, 1994, and that CRC failed to Division. The proposed consent decree Louisiana-Pacific, Inc. and Kirby Forest operate at all times a continuous resolves the plaintiffs’ claims against Industries, Inc., Civil Action No. 93– emissions monitoring (‘‘CEM’’) device to 115th Street Corporation for violations 0869, was lodged with the United States measure SO2 in the gases discharged to of pretreatment standards enforceable District Court for the Western District of the atmosphere. under the Clean Water Act at its organic Louisiana on October 6, 1995. The settlement includes a civil chemicals manufacturing facility The original Consent Decree in this penalty of $320,000. In addition, CRC is located in Chicago, Illinois. action, lodged on May 24, 1993 and required to obtain a report from a In the proposed settlement 115th entered by the Court on September 30, nationally recognized expert in the field Street Corporation agrees to: Achieve 1993, required the installation of of sulfur recovery technology regarding full compliance with the pretreatment improved pollution control devices at modifications and/or upgrades of the requirements of the Act by not later than fourteen Louisiana-Pacific, and Kirby existing Claus Plant to make it August 19, 1996; pay a civil penalty of Forest Industries’ plants located in effectively operate given the existing $1,645,000; and refrain from chemical eleven states. The Decree also required and anticipated sulfur ‘‘flowthrough’’ at synthesis of pigments at its Chicago Defendants to conduct an the refinery, and, subject to EPA’s facility until three years after environmental audit of all of their approval, implement the termination of the decree unless it facilities and management and to recommendations of such expert report. satisfies the specific technical employ corporate and plant The Department of Justice will requirements contained in the proposed environmental managers responsible for receive, for a period of thirty (30) days decree. compliance with environmental statutes from the date of this publication, The Department of Justice will at their wood panel plants. comments relating to the proposed receive, for a period of thirty (30) days The First Amendment to Consent consent decree. Comments should be from the date of this publication, Decree reflects changes resulting from addressed to the Assistant Attorney comments relating to the proposed additional experience with and analysis General for the Environment and consent decree. Comments should be of the Regenerative Thermal Oxidation Natural Resources Division, Department addressed to the Assistant Attorney (‘‘RTO’’) pollution control devices of Justice, Washington, D.C. 20530, and General for the Environment and required by the Decree, from testing should refer to United States v. Natural Resources Division, Department which determined that additional Colorado Refining Company, Civil of Justice, Washington, D.C. 20530, and Louisiana-Pacific facilities were major Action No. 95–WY–2608 (D. Colo.), DOJ should refer to Illinois Public Interest emitting facilities under the Clean Air Ref. #90–5–2–1–1356A. The proposed Research Group, et al., and United Act, thus requiring the installation of consent decree may be examined at the States of America v. 115th Street RTOs, and from permitting, Office of the United States Attorney, Corporation, DOJ Ref #90–5–1–1–5004. construction scheduling and other 1961 Stout Street, Suite 1200, Federal The proposed consent decree may be developments since entry of the original Building, Denver, Colorado 80294; the examined at the office of the United Decree. Region VIII Office of the Environmental States Attorney, 219 South Dearborn The Department of Justice will Protection Agency, 999 18th Street, Street, Chicago, Illinois 60604; the receive, for thirty (30) days from the Suite 700 South, Denver, Colorado Region 5 Office of the Environmental date of publication of this notice, 80202; and at the Consent Decree Protection Agency, 77 West Jackson written comments relating to the Library, 1120 G Street, N.W., 4th Floor, Boulevard, Chicago, Illinois 60604; and proposed First Amendment to Consent Washington, D.C. 20005, (202) 624– at the Consent Decree Library, 1120 G Decree. Comments should be addressed Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62259 to the Assistant Attorney General, Sunnyvale, CA; Personal Library effective June 30, 1995. Sharp Environment and Natural Resources Software, Inc., Rockville, MD; Cable & Corporation, Osaka, JAPAN, became an Division, U.S. Department of Justice, Wireless Innovations, Inc., Menlo Park, associate of the Digital Video Home Washington, D.C. 20530 and should CA; and Mitsubishi International, Palo Terminal (DVHT) Executive Interest refer to United States v. Louisiana- Alto, CA. The following organizations Group effective August 3, 1995. The Pacific, Inc. and Kirby Forest Industries, have joined as international associate Cooperative Router Executive Interest Inc., D.O.J. Ref. No. 90–5–2–1–1823. members: CSIRO Division of Group was discontinued effective May The proposed First Amendment to Information, Anu, AUSTRALIA; 18, 1995. Consent Decree may be examined at the European Union Bank, Antigua, WEST No other changes have been made in office of the United States Attorney, 705 INDIES; Fujitsu Limited, Tokyo, JAPAN; either the membership or planned Jefferson Street, Room 305, Lafayette, Industry Canada, Ottawa, Ontario, activities of COS. Membership in COS Louisiana, 70501; the Region VI Office CANADA; and Kokusai Denshin Denwa remains open, and COS intends to file of the Environmental Protection Co., Ltd. (KDD), Tokyo, JAPAN. The additional written notification Agency, 1445 Ross Avenue, 12th Floor, following organization was formally a disclosing all changes in membership or Suite 1200, Dallas, Texas 75202; and at sponsor but is now an associate: planned activities. the Consent Decree Library, 1120 G Mastercard International. Spry, Inc. was On May 14, 1986, COS filed its Street, N.W., 4th Floor, Washington, formally an associate but has been original notification pursuant to Section D.C. 20005, (202) 624–0892. A copy of acquired by a sponsor, CompuServe, 6(a) of the Act. The Department of the proposed First Amendment to and the two memberships have been Justice published a notice in the Federal Consent Decree may be obtained in consolidated into one membership. Register pursuant to Section 6(b) of the person or by mail from the Consent Santa Cruz Operations, Inc. is no longer Act on June 11, 1986 (51 FR 21260). Decree Library, 1120 G Street, N.W., 4th a member. The last notification was filed with Floor, Washington, D.C. 20005. In No other changes have been made in the Department on June 22, 1995. This requesting a copy please refer to the either the membership or planned notice has not yet been published in the referenced case and enclose a check in activities of the Consortium. Federal Register. the amount of $4.25 (25 cents per page Membership remains open, and the Constance K. Robinson, reproduction costs), payable to the Consortium intends to file additional Director of Operations, Antitrust Division. Consent Decree Library. written notifications disclosing all [FR Doc. 95–29499 Filed 12–4–95; 8:45 am] Joel Gross, changes in membership. BILLING CODE 4410±01±M On June 13, 1994, the Consortium Acting Chief, Environmental Enforcement Section. filed its original notification pursuant to Section 6(b) of the Act. The Department [FR Doc. 95–29493 Filed 12–4–95; 8:45 am] Notice Pursuant to the National of Justice published a notice in the BILLING CODE 4410±01±M Cooperative Research and Production Federal Register pursuant to Section Act of 1993ÐFieldbus Foundation 6(b) of the Act on August 31, 1994 (59 Notice is hereby given that, on June Antitrust Division FR 45012). The last notification was filed with 26, 1995, pursuant to Section 6(a) of the Notice Pursuant to the National the Department on January 18, 1995. A National Cooperative Research and Cooperative Research and Production notice was published in the Federal Production Act of 1993, 15 U.S.C. 4301 Act of 1993ÐCommerceNet Register pursuant to Section 6(b) of the et seq. (‘‘the Act’’), the Fieldbus Consortium Act on June 27, 1995 (60 FR 33232). Foundation (‘‘Fieldbus’’) has filed Constance K. Robinson, written notifications simultaneously Notice is hereby given that, on June 9, Director of Operations, Antitrust Division. with the Attorney General and the 1995, pursuant to Section 6(a) of the Federal Trade Commission disclosing [FR Doc. 95–29501 Filed 12–4–95; 8:45 am] National Cooperative Research and changes in its membership. The Production Act of 1993, 15 U.S.C. BILLING CODE 4410±01±M notifications were filed for the purpose § 4301 et seq. (‘‘the Act’’), CommerceNet of extending the Act’s provisions Consortium, (the ‘‘Consortium’’) has Notice Pursuant to the National limiting the recovery of antitrust filed written notifications Cooperative Research and Production plaintiffs to actual damages under simultaneously with the Attorney Act of 1993ÐCorporation for Open specified circumstances. Specifically, General and the Federal Trade Systems International the identities of the new members are as Commission disclosing certain changes follows: Bently Nevada Corporation, in its membership. The notifications Notice is hereby given that, on August Minden, NV; Masoneilan-Dresser were filed for the purpose of extending 7, 1995, pursuant to Section 6(a) of the Industries, Avon, MA; Relcom, Inc., the Act’s provisions limiting the National Cooperative Research and Forest Grove, OR; Ronan Engineering recovery of antitrust plaintiffs to actual Production Act of 1993, 15 U.S.C. 4301 Company, Woodland Hills, CA; Groupe damages under specified circumstances. et seq. (‘‘the Act’’), the Corporation for Schneider, Rueil-Malmaison, FRANCE; Specifically, the identities of the Open Systems International (‘‘COS’’) and Yamaha Corporation, Toyooka- additional members at the sponsor level has filed written notifications mura, Iwata-gun, JAPAN. are: Anderson Consulting LP, San simultaneously with the Attorney No other changes have been made in Francisco, CA; BellSouth, Atlanta, GA; General and the Federal Trade either the membership or planned Spyglass, Inc., Naperville, IL; and Loral Commission disclosing changes in COS activity of the group research project. Space & Range Systems, Sunnyvale, CA. and its membership. The notifications Membership in this group research The following organizations have were filed for the purpose of extending project remains open, and Fieldbus joined the Consortium as associate the Act’s provisions limiting the intends to file additional written members: IEEE Computer Society, recovery of antitrust plaintiffs to actual notifications disclosing all changes in Washington, DC; Knight Ridder damages under specified circumstances. membership. Information, Inc., Mountain View, CA; Specifically, Pacific Gas & Electric On May 7, 1993, Fieldbus filed its Pangea Network Technologies, Company ceased its membership in COS original notification pursuant to Section 62260 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

6(a) of the Act. The Department of Register pursuant to Section 6(b) of the pursuant to Section 6(b) of the Act on Justice published a notice in the Federal Act on June 28, 1995 (60 FR 33432). May 24, 1995 (60 FR 27558). Register pursuant to Section 6(b) of the Constance K. Robinson, Constance K. Robinson, Act on September 23, 1993 (58 FR Director of Operations, Antitrust Division. Director of Operations, Antitrust Division. 49529). [FR Doc. 95–29503 Filed 12–4–95; 8:45 am] [FR Doc. 95–29506 Filed 12–4–95; 8:45 am] The last notification was filed with BILLING CODE 4410±01±M the Department on April 6, 1995. A BILLING CODE 4410±01±M notice was published in the Federal Register pursuant to Section 6(b) of the Notice Pursuant to the National Notice Pursuant to the National Act on June 9, 1995 (60 FR 30591, Cooperative Research and Production Cooperative Research and Production 30592). Act of 1993ÐMinnesota Mining and Act of 1993ÐHart Communication Manufacturing Company, Seagate Constance K. Robinson, Foundation Director of Operations, Antitrust Division. Tape Technology, Inc., and Advanced Research Corporation [FR Doc. 95–29498 Filed 12–4–95; 8:45 am] Notice is hereby given that, on June BILLING CODE 4410±01±M 26, 1995, pursuant to Section 6(a) of the Notice is hereby given that, on National Cooperative Research and October 19, 1995, pursuant to Section Production Act of 1993, 15 U.S.C. 4301 6(a) of the National Research and Notice Pursuant to the National et seq. (‘‘the Act’’), Hart Communication Production Act of 1993, 15 U.S.C. Cooperative Research and Production Foundation (‘‘HCF’’) has filed written § 4301 et seq. (‘‘the Act’’), Minnesota Act of 1993ÐFinancial Services notifications simultaneously with the Mining and Manufacturing Company Technology Consortium, Inc. Attorney General and the Federal Trade (‘‘3M’’) filed notifications Notice is hereby given that, on June Commission disclosing changes in simultaneously with the Attorney General and the Federal Trade 15, 1995, pursuant to Section 6(a) of the membership. The notifications were Commission disclosing (1) the identities National Cooperative Research and filed for the purpose of extending the of the parties to a research and Production Act of 1993, 15 U.S.C. 4301 Act’s provisions limiting the recovery of development venture and (2) the nature et seq. (‘‘the Act’’), Financial Services antitrust plaintiffs to actual damages and objective of the venture. The Technology Consortium, Inc. (the under specified circumstances. notifications were filed for the purpose ‘‘Consortium’’) has filed written Specifically, the identities of the new of invoking the Act’s provisions limiting notifications simultaneously with the members are: Anderson Instrument Co., the recovery of antitrust plaintiffs to Attorney General and the Federal Trade Inc., Fultonville, NY; Honeywell, Inc., actual damages under specified Commission disclosing changes in its Fort Washington, PA; Instrumenfirman circumstances. Pursuant to Section 6(b) membership. The notifications were INOR AB, Malmo, SWEDEN; Lars Jakob of the Act, the identities of the parties filed for the purpose of extending the Neilsen, Aabyhoj, DENMARK; Saab to the joint venture are Minnesota Act’s provisions limiting the recovery of Tank Control, Gothenburg, SWEDEN; Mining and Manufacturing Company, antitrust plaintiffs to actual damages and Wireless Scientific, Inc., Amelia St. Paul, MN; Seagate Tape Technology, under specified circumstances. The Island, FL. Inc., Santa Clara, CA; and Advanced following parties were admitted as The following have changed their Research Corporation, Minneapolis, Associate Members of the Consortium: addresses: Arcom Control Systems is MN. The general area of planned Beneficial Technology Corp., Peapack, now located at 13510 South Oakley activity is to develop technologies for a NJ; Deluxe Corp., Shoreview, NM; Street, Kansas City, MO, and Rosemount small, reliable, low cost, high Premenos Corporation, Concord, CA; Analytical Inc. is now located at 2400 bandwidth, high capacity, fast access Broadway & Seymour, Charlotte, NC; Barranca Parkway, Irvine, CA. tape recorder and cartridge media. NEC Planning Research, Ltd., Tokyo JAPAN; and Telequip Corp., Nashua, The companies formerly known as Constance K. Robinson, NH. The following parties were Fischer & Porter and Elsag-Bailey Director of Operations, Antitrust Division. admitted as Advisory Members of the Controls are now known as Bailey- [FR Doc. 95–29507 Filed 12–4–95; 8:45 am] Consortium: Copyright Clearance Fischer & Porter. BILLING CODE 4410±01±M Center, Inc., Danvers, MA; and National The following are no longer members Automated Clearing House Association, of HCF: Fairchild Industrial Products; Herndon, VA. Notice Pursuant to the National Ohkura Electric Co., Ltd.; and Termiflex Cooperative Research and Production No other changes have been made in Corporation. either the membership or planned Act of 1993 Petroleum Environmental activity of the Consortium. Membership No other changes have been made in Research Forum Project 94±12 the membership, nature and objectives remains open, and the consortium Notice is hereby given that, on of the consortium. Membership in HCF intends to file additional written September 14, 1995, pursuant to Section remains open, and HCF intends to file notifications disclosing all changes in 6(a) of the National Cooperative written notifications disclosing all membership. Research and Production Act of 1993, changes in membership. On October 21, 1993, the Consortium 15 U.S.C. § 4301 et seq. (‘‘the Act’’), filed its original notification pursuant to On March 17, 1994, HCF filed its Petroleum Environmental Research Section 6(b) of the Act. The Department original notification pursuant to Section Forum (‘‘PERF’’) Project 94–12, titled of Justice published a notice in the 6(a) of the Act. The Department of ‘‘Sewer Inspection and Repair Federal Register pursuant to Section Justice published a notice in the Federal Technologies for Application to 6(b) of the Act on December 14, 1993 Register Pursuant to Section 6(b) of the Refineries and Chemical Plants’’ has (58 FR 65399). Act on May 5, 1994 (59 FR 23234). The filed written notifications The last notification was filed with last notification was filed with the simultaneously with the Attorney the Department on April 20, 1995. A Department on March 16, 1995. A notice General and the Federal Trade notice was published in the Federal was published in the Federal Register Commission disclosing (1) the identifies Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62261 of the parties and (2) the nature and On October 18, 1994, PERF Project Notice Pursuant to the National objectives of the project. The No. 93–11 filed it original notification Cooperative Research and Production notifications were filed for the purpose pursuant to Section 6(a) of the Act. The Act of 1993ÐIntelligent Modular Array of invoking the Act’s provisions limiting Department of Justice published a notice System the recovery of antitrust plaintiffs to in the Federal Register pursuant to actual damages under specified Notice is hereby given that, on Section 6(b) of the Act on December 1, October 11, 1995, pursuant to Section circumstances. Pursuant to Section 6(b) 1994 (59 FR 61638). of the Act, the identities of the parties 6(a) of the National Cooperative Constance K. Robinson, are Exxon Research and Engineering Research and Production Act of 1993, Company, Florham Park, NJ; Hess Oil Director of Operations, Antitrust Division. 15 U.S.C. 4301 et seq. (‘‘the Act’’), Virgin Islands, St. Croix, U.S. Virgin [FR Doc. 95–29494 Filed 12–4–95; 8:45 am] Sawtek, Inc. filed notifications Islands; Marathon Oil Company, BILLING CODE 4410±01±M simultaneously with the Attorney Findlay, OH; and Chevron Research and General and the Federal Trade Technology Company, Richmond CA. Commission disclosing (1) the identities The nature and objective of the project Notice Pursuant to the National of the parties to and (2) the nature and is to provide identification and field Cooperative Research and Production objectives of the venture. The testing of technologies for inspection of Act of 1993ÐPowerOpen Association, notifications were filed for the purpose sewers in refinery and chemical plant Inc. of invoking the Act’s provisions limiting operations and matrices of potential the recovery of antitrust plaintiffs to sewer inspection and repair Notice is hereby given that, on actual damages under specified technologies with their advantages and December 28, 1994, pursuant to Section circumstances. Pursuant to Section 6(b) disadvantages. 6(a) of the National Cooperative of the Act, the identities of the parties Participation in this project will Research and Production Act of 1993, are Sawtek, Inc., Apopka, FL; and remain open until issuance of the final 15 U.S.C. 4301 et seq. (‘‘the Act’’), General Atomics, San Diego, CA. The project report anticipated approximately PowerOpen Association, Inc. nature and objectives of the venture are to engage in cooperative research 27 months after the project commences. (‘‘PowerOpen’’), has filed written toward the development of an The participants intend to file notifications simultaneously with the additional written notifications Intelligent Modular-Array System Attorney General and the Federal Trade disclosing all changes in its (IMAS) for Monitoring of Volatile membership. Information about Commission disclosing changes in Organic Compounds (VOCs) to address participating in Project 94–12 may be membership. The notifications were the detection, differentiation and obtained by contacting Mr. William filed for the purpose of extending the quantification of VOCs at the class level. Hacker, Exxon Research and Act’s provisions limiting the recovery of Constance K. Robinson, Engineering Company, P.O. Box 101, antitrust plaintiffs to actual damages Director of Operations, Antitrust Division. under specified circumstances. Florham Park, NJ 07932. [FR Doc. 95–29495 Filed 12–4–95; 8:45 am] Specifically, the identities of the new Constance K. Robinson, BILLING CODE 4410±01±M Director of Operations, Antitrust Division. members of PowerOpen are: Aspect [FR Doc. 94–29505 Filed 12–04–95; 8:45 am] Communications, Inc., San Jose, CA; BILLING CODE 4410±01±M Bolt Bernack and Newman, Inc., Notice Pursuant to the National Cambridge, MA; CelsiusTech Systems Cooperative Research and Production AB, Jarfalla, SWEDEN: and Gradient Act of 1993ÐSemiconductor Research Notice Pursuant to the National Technologies, Inc., Marlboro, MA. Corporation Cooperative Research and Production No other changes have been made in Notice is hereby given that, on March Act of 1993ÐPetroleum Environmental either the membership or planned Research Forum 10, 1995, pursuant to Section 6(a) of the activity of the project. Membership National Cooperative Research and Notice is hereby given that on remains open and PowerOpen intends Production Act of 1993, 15 U.S.C. 4301 September 18, 1995, pursuant to Section to file additional written notification et seq. (‘‘the Act’’), Semiconductor 6(a) of the National Cooperative disclosing all changes in membership. Research Corporation has filed written Research and Production Act of 1993, On April 21, 1993, PowerOpen filed notifications simultaneously with the 15 U.S.C. 4301, et seq. (‘‘the Act’’), its original notification pursuant to Attorney General and the Federal Trade Petroleum Environmental Research Section 6(a) of the Act. The Department Commission disclosing changes in its Forum (‘‘PERF’’) Project No. 93–11 filed of Justice published a notice in the membership status. The notifications written notifications simultaneously Federal Register pursuant to Section were filed for the purpose of extending with the Attorney General and with the 6(b) of the Act on June 22, 1993 (58 Fed. the Act’s provisions limiting the Federal Trade Commission disclosing recovery of antitrust plaintiffs to actual Reg. 33954). changes in the membership of PERF damages under specified circumstances. Project No. 93–11. The notifications The last notification was filed with Specifically, the following companies were filed for the purpose of extending the Department on September 30, 1994. have joined membership with the the Act’s provisions limiting the A notice for this filing has yet been consortium: IntelliSense Corporation, recovery of antitrust plaintiffs to actual published in the Federal Register. Wilmington, MA as an affiliate member damages under specified circumstances. Constance K. Robinson, and Ford Motor Company, Dearborn, MI Specifically, the following additional Director of Operations, Antitrust Division. as a science area member. Praxair, Inc.; party has become a participant in PERF [FR Doc. 95–29502 Filed 12–4–95; 8:45 am] M/A–COM, Inc. and Matrix Integrated Project 93–11: Exxon Production Systems, Inc. have withdrawn their Research Company, Houston, TX. BILLING CODE 4410±01±M membership with the joint venture. No other changes have been made in No other changes have been made in either the membership or planned either the membership or planned activity of PERF. activity of the group research project. 62262 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Membership in this group research level and schematic map of the major Drug Enforcement Administration project remains open, and highways and road segments where the [Docket No. 94±10] Semiconductor Research Corporation TransGuide System is active in Bexar intends to file additional written County. Michael J. Roth, M.D.; Continuation of notification disclosing all changes in Membership in the program remains Registration membership. On January 7, 1985, Semiconductor open, and SwRI intends to file On October 27, 1994, the Deputy Research Corporation filed its original additional written notifications Assistant Administrator (formerly notification pursuant to Section 6(a) of disclosing all changes in the Director), Office of Diversion Control, the Act. The Department of Justice membership or planned activities. Drug Enforcement Administration published a notice in the Federal Constance K. Robinson, (DEA), issued an Order to Show Cause Register pursuant to Section 6(b) of the Director of Operations, Antitrust Division. to Michael J. Roth, M.D. (Respondent), Act on January 30, 1985 (50 FR 4281). [FR Doc. 95–29504 Filed 12–4–95; 8:45 am] of Santa Monica, California, notifying The last notification was filed with him of an opportunity to show cause as BILLING CODE 4410±01±M the Department on March 22, 1994. A to why DEA should not revoke his DEA notice was published in the Federal Certificate of Registration, AR8354425, Register pursuant to Section 6(b) of the Notice Pursuant to the National under 21 U.S.C. 824(a)(4) and deny any Act on April 20, 1994 (59 FR 18830). Cooperative Research and Production pending applications under 823(f), as Constance K. Robinson, Act of 1993ÐAffordable High being inconsistent with the public Director of Operations, Antitrust Division. Performance Computing Cooperative interest. Specifically, the Order to Show [FR Doc. 95–29496 Filed 12–4–95; 8:45 am] Cause alleged that: Arrangement (1) During the period March 1988 BILLING CODE 4410±01±M through December 1989, the Respondent Notice is hereby given that, on June prescribed, administered, and dispensed 29, 1995, pursuant to Section 6(a) of the Notice Pursuant to the National excessive amounts of controlled National Cooperative Research and substances to a single patient, including Cooperative Research and Production Production Act of 1993, 15 U.S.C. 4301 Act of 1993ÐTransguide System Media Demerol, Dilaudid, Xanax, Ativan, et seq. (‘‘the Act’’), the Pratt & Whitney Services Software Project Percordan, Tylenol with Codeine, Division of United Technologies Valium, Percocet, Methodone, and Notice is hereby given that, on August Corporation has filed written Doriden, without a legitimate medical 23, 1995, pursuant to Section 6(a) of the notifications simultaneously with the purpose and while not acting in the National Cooperative Research and Attorney General and the Federal Trade usual course of professional practice; Production Act of 1993, 15 U.S.C. 4301 Commission disclosing (1) the identities (2) During the same time period, the et seq. (‘‘the Act’’), Southwest Research of the parties and (2) the nature and Respondent further prescribed narcotic Institute (‘‘SwRI’’) has filed written objectives of a cooperative arrangement drugs to the same narcotic dependent notifications simultaneously with the known as the ‘‘Coordinated Research patient for the purpose of maintenance Attorney General and the Federal Trade Agreement for Development of treatment, and engaged in detoxification Commission disclosing (1) the identities Affordable High-Performance treatment of that patient without of the parties and (2) the nature and Computing’’ (the ‘‘AHPC’’). The holding a separate DEA registration to objectives of the venture. The notifications were filed for the purpose conduct a narcotic treatment program; notifications were filed for the purpose of invoking the Act’s provisions limiting and of invoking the Act’s provisions limiting the recovery of antitrust plaintiffs to (3) During the period January 1991 the recovery of antitrust plaintiffs to actual damages under specified through February 1993, the Respondent actual damages under specified circumstances. Pursuant to Section 6(b) prescribed excessive amounts of circumstances. Pursuant to Section 6(b) controlled substances to two patients, of the Act, the identities of the parties of the Act, the identities of the parties including Chloral Hydrate, Ativan, are: United Technologies Corporation, are: Harte-Hanks Television KENS- Dalmane, Tylenol with Codeine, and Hartford, CT; The Massachusetts Channel 5, San Antonio, TX; KISS Fiorinal, without a legitimate medical Radio of San Antonio, Ltd., San Institute of Technology, Cambridge, purpose and while not acting in the Antonio, TX; KMOL-Channel 4, San MA; CFD Research Company, usual course of professional practice. Antonio, TX; KSAT-TV12, San Antonio, Huntsville, AL; Platform Computing On November 19, 1993, the TX; KSMG, San Antonio, TX; KTFM, Company, Newbury, MA; The Research Respondent, through counsel, filed a San Antonio, TX; KTSA, San Antonio, Foundation of the State University of timely request for a hearing. On TX; San Antonio, TX; San Antonio New York, Amherst, NY; and The February 23, 1994, the case was Express News, San Antonio, TX; MacNeal-Schwendler Corporation, Los consolidated for hearing with Michael S. Southwest Research Institute, San Angeles, CA. Gottlieb, M.D., Docket No. 93–53, and Antonio, TX; and State of Texas, acting The purpose of the AHPC is to pursue William J. Skinner, M.D., Docket No. 93– by and through the Texas Department of a coordinated research and development 39. Following prehearing procedures, a Transportation, San Antonio, TX. effort leading to development of hearing was held in Los Angeles, The purpose of the venture is to affordable distributed computing California, on March 29–30 and May facilitate the transmission of software for use in design of advanced 10–12, 1994, before Administrative Law information for the Texas Department of aircraft engine components, while Judge Paul A. Tenney. At the hearing Transportation Operational Control providing technology for commercial both the Government and the Center of the TransGuide System to and military uses. Respondent called witnesses to testify media outlets through the development and introduced documentary evidence, of personal computer based software Constance K. Robinson, and after the hearing, counsel for both which will list current traffic incident Director of Operations, Antitrust Division. sides submitted proposed findings of scenarios, list current scheduled lane [FR Doc. 95–29497 Filed 12–4–95; 8:45 am] fact, conclusions of law and argument. closures and provide a display of a high BILLING CODE 4410±01±M On October 17, 1994, Judge Tenney Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62263 issued his Findings of Fact, Conclusions During the period of March 26, 1988, sciatica (resolved) and osteoporosis with of Law, and Recommended Ruling, through October 13, 1988, the high risk of possible spontaneous hip finding that the Respondent’s Respondent prescribed Schedule II fracture. On October 31, 1988, Patient A registration was not inconsistent with controlled substances to Patient A on 13 was admitted to the Betty Ford Clinic the public interest, and recommending occasions, and Schedules III through V with an initial diagnosis of opiate, that no action be taken with respect to controlled substances to Patient A on 23 alcohol, sedative, and amphetamine the Certificate of Registration of occasions. The Respondent testified that dependent (continuous), and she was Respondent, Dr. Roth. The Government when Patient A was in acute pain, he discharged on December 10, 1988. filed exceptions to his decision, and the would prescribe Percodan, but that he As Judge Tenney noted, ‘‘[t]here is a Respondent filed responses to the would then try to taper her off that ‘debate’ or difference of opinion Government’s exceptions. On December substance once the acute pain between those specialized in addiction 12, 1994, Judge Tenney transmitted the diminished. In July 1988, Patient A medicine and those in pain management record of these proceedings to the suffered a fall and injured her back. Dr. regarding the use of narcotics for the Deputy Administrator. Gottlieb admitted the patient to the treatment of severe pain.’’ He also noted The Deputy Administrator has hospital on July 25, 1988, with a that Dr. Smith and Dr. Ling, the considered the record in its entirety and diagnosis of severe degenerative disc Government expert witnesses, were the filings of the parties, and pursuant disease with marked fact hypertrophy primarily experts in addiction medicine, to 21 CFR 1316.67, hereby issues his from L3 to S1, a history of sciatica and and Dr. Margoles and Dr. Brechner, the final order based upon findings of fact foot drop, premature atrial contractions, Respondent’s expert witnesses, were and conclusions of law as hereinafter set and degenerative disc disease of the primarily experts in pain management. forth. The Deputy Administrator adopts, cervical spine. Dr. Gottlieb noted on the Dr. Smith and Dr. Margoles agreed that in full, the opinion of Judge Tenney, patient’s history that she was currently there exists a difference of opinion and his adoption is in no manner using Percodan, Ativan, and Xanaz. within the medical community as to the diminished by any recitation of facts, Percodan, a Schedule II controlled appropriate level of prescribing of issues and conclusions herein, or of any substance, contains oxycodone and controlled substances for the treatment failure to mention a matter of fact or aspirin; Ativan, a Schedule IV of chronic pain patients. Also law. controlled substance, contains significant is the fact that the opinions The Deputy Administrator finds that lorazepam; and Xanaz, a Schedule IV of Dr. Brechner, Dr. Dodge, Dr. Horacek, the Respondent is licensed to practice as controlled substance, contains and Dr. Woods were supported by either a physician and surgeon in the State of alprazolam. Upon admission to the their personal examination, treatment, California. The DEA’s allegations hospital, Dr. Gottlieb ordered, and or both, of Patient A, during the relevant concern the Respondent’s treatment of Patient A was given, 150 milligrams time period, whereas the opinions of Dr. two patients, ‘‘Patient A’’ and ‘‘Patient (mg.) of Demerol and 1 mg. of Ativan. Smith and Dr. Ling were based upon B.’’ Patient A had a number of Demerol is a brand name for meperidine their review of Patient A’s treatment significant physical conditions which hydrochloride and is a Schedule II records and relevant prescription caused severe pain, including pressure controlled substance. documentation. on the nerves from cervical degenerative On July 26, 1988, following a CAT On March 3, 1990, Dr. Smith wrote in joint disease; degenerative osteoarthritis scan, Dr. Joyce issued a report, writing a report for the District Attorney: ‘‘[the] of the lumbar vertebrae above a previous that Patient A had a mild compression spectrum of medications [prescribed to area where fusion surgery had been fracture at L1, mild stenosis at L2–3, Patient A] was not justified by the performed; spinal stenosis which occurs moderate stenosis at L3–4, and a post- medical pathology and, in fact, the when the spinal canal narrows, in some posterior bony fusion from L4 to the medications caused the patient far more cases putting pressure on a nerve; severe sacrum. Patient A was discharged on harm than benefit. The dosage of temporal mandibular joint degenerative August 18, 1988, and the Respondent medication was clearly excessive and disease; compression fracture of the ordered administration of 100 mg. of the duration over the several month patient’s spine at L–1 and L–2; and Demerol, and then issued a prescription period as outlined in the medical trochanteric bursitis of the hip. 70 Percodan. On August 25, 1988, the records was both excessive and not During the time period of March Respondent prescribed 20 Percodan and justified by the medical pathology.’’ He through October 1988, the government 5 Dilaudid. Dilaudid is a brand name of concluded that ‘‘[a]s a result of this contended that the Respondent hydromorphone hydrochloride and is a analysis it is my opinion then, that Dr. prescribed controlled substances to Schedule II controlled substance. Skinner and his colleagues were not Patient A for other than a legitimate During the period from September 1, prescribing a narcotic medication medical purpose. During this period, Dr. 1988, to October 13, 1988, the primarily for the management of pain Skinner was the primary treating Respondent prescribed to Patient A 210 but, in fact, were maintaining her physician for Patient A. The Respondent Percodan and 300 mg. of Demerol. On addiction.’’ During the hearing before and Dr. Michael Gottlieb were partners September 29, 1988, Patient A was Judge Tenney, Dr. Smith testified, after in a medical practice in Los Angeles, admitted to the hospital by Dr. Skinner, reviewing the quantities of controlled and Dr. Gottlieb would care for Patient and she was discharged on October 4, substances prescribed on selected dates, A when Dr. Skinner was not available, 1988, with a diagnosis of a compression that those quantities were excessive in and the Respondent cared for Patient A fracture, osteoporosis, and congenital light of the standard therapeutic dosage. when neither Dr. Skinner nor Dr. scoliosis. On October 17, 1988, Patient He then adopted the conclusion reached Gottlieb was available. Respondent A was again admitted with a complaint in his 1990 letter to the District testified that he did not keep of severe left leg pain, and on October Attorney. independent medical records of the 23, 1988, she was discharged with the Dr. Ling, a medical expert in the areas patient while he was in partnership diagnosis of acute back pain secondary of neurology, psychiatry, addiction, and with Dr. Gottlieb, but when he issued compression fracture of L1, acute pain medicine, opined that, based upon prescriptions to Patient A, he followed lumbosacral spinal sprain and strain his review of Patient A’s treatment the medical regimen established by Dr. secondary to severe osteoarthritis at L2– record and pharmacy records, the Gottlieb and Dr. Skinner. 3 with neuroforaminal narrowing, Respondent’s prescribing practices 62264 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices during 1988 did not meet the standard tapering was within the usual course of A’s back pain. In the course of of care of the average practitioner. He professional practice. Dr. Smith agreed performing that procedure, he stated, ‘‘If this was the only records with Dr. Margoles concerning the administered narcotic analgesics, there [were], then I don’t think it meets propriety of tapering Patient A, under observing that Patient A had ‘‘an the standard of care.’’ He also testified the circumstances. Further, Dr. Margoles extraordinary tolerance to narcotics, that, in 1988, the standard of care was testified that the Respondent ‘‘acted in even when potentiated with the not to prescribe a large amount of good faith and prescribed medication tranquilizers.’’ Dr. Brechner also noted narcotics, for such practice could result that was adequate for a given diagnosis that Patient A suffered from severe in the patient’s developing a tolerance and following good faith examination.’’ chronic pain and from periods of acute, to a controlled substance: ‘‘You’d be Finally, Dr. Margoles noted that in the intractable pain. Dr. Brechner treating the tolerance. You’d be treating 1980’s, guidelines were established in concluded that Patient A had received addiction, you’re no longer treating the prescribing controlled substances for narcotics prescribed in amounts that [diagnosed medical condition].’’ chronic conditions. These guidelines were ‘‘extraordinary compared to the Further, Dr. Ling recommended that a were endorsed by various medical and average patient,’’ because of her extreme physician treating a patient with a legal groups, to include the California tolerance for narcotics, and that she potential drug dependency problem Board of Medical Quality Assurance and needed the narcotics in the amounts should consult with a specialist in drug the California Bureau of Narcotic prescribed in order to control her pain. addiction. Both Dr. Smith and Dr. Ling Enforcement. Dr. Margoles testified that He testified that prescribing the concluded that Patient A was an addict the Respondent’s prescribing to Patient narcotics in lower doses was not who was opiate dependent and A met these standards. Thus, he effective, and thus, she was not ‘‘over- benzodiazipine dependent. concluded that the Respondent dosed.’’ The Respondent presented evidence prescribed controlled substance in the Also, Dr. Brechner testified that from consulting physicians, who had appropriate course of his professional alternative means of treatment were concluded that Patient A was not an conduct, and not for the purpose of tried to control Patient A’s pain, but that addict, but that she was dependent maintaining Patient A’s condition as an he did not believe such treatment was upon controlled substances to treat her addict. effective alone in treating the pain chronic and sometimes acute pain. Also, the Respondent produced an resulting from her acute pain-inducing Specifically, after having reviewed affidavit from Dr. Dodge, a consulting incidents, such as the automobile Patient A’s medical history and having neurosurgeon involved with the accident or the fall down the stairway. interviewed her twice, Dr. Margoles, a treatment of Patient A from 1986 Finally, Dr. Brechner testified that the medical expert in pain management, through 1988, who wrote: doctors treating Patient A prescribed testified, that throughout the years 1986 In my opinion, although the amounts of narcotics for a legitimate medical to 1988, Patient A had experienced drugs were large compared to the average purpose, to treat her pain, and not to intractable pain as a result of numerous patient, they were necessary in order to treat maintain her condition as an addict. medical problems and degenerative the patient’s pain. Although the patient Further, Dr. Skinner, the Medical changes. He concluded that Patient A clearly had a drug dependence problem, I do Director of St. John’s Chemical was a chronic pain patient, as opposed not believe the pain was controllable by other Dependency Center from 1981 to 1990, to an opioid abuser, and that she sought means besides narcotics. The amounts of and a medical expert in chemical and was given medications to control narcotics tended to increase at the time of the dependency, testified that he had begun acute events . . . Dr. Skinner and the other treating Patient A at the Respondent’s her pain, not for euphoria. He found physicians responsible for her care always that, although Patient A received an attempted to minimize the amounts of drugs request in 1983. Dr. Skinner testified increase in amounts of opioids that she took and sought to detoxify her from extensively about the acute pain prescribed for her use, such an increase those drugs when the acute phase of pain and incidents experienced by Patient A resulted from the severity of her pain, muscle spasm from the injuries passed. through 1988, the consulting not addiction. ‘‘It was obvious that the In my opinion, Dr. Skinner and the other physicians’ diagnoses resulting from medication was being used to keep her physicians responsible for her care did not these incidents, and the various narcotic going in her professional career.’’ Also, violate the standard of practice in prescribing and non-narcotic treatment regimen narcotic analgesics to this patient. he noted that there was no evidence in implemented to control her pain. He the patient’s records that she sought Further, in an affidavit, Dr. Woods, a also stated that there was no evidence drugs in order to obtain euphoria, no neurologist who treated Patient A from that drug intoxication caused any of evidence of abstinent syndrome, nor January 1987 to January 1988, made Patient A’s acute events, and that he had clinical or laboratory evidence of similar observations as Dr. Dodge, and made an extra effort to insure her lack toxicity. Dr. Margoles testified that the concluded: ‘‘In my opinion, Dr. Skinner of toxicity throughout his treatment of lack of toxicity evidence meant that the and the other physicians responsible for her. Further, Dr. Skinner testified that ‘‘patient obviously tolerated the her care did not violate the standard of all narcotics were either administered in medication that she had, that was used practice in prescribing narcotic the hospital or under the supervision of in her case, and evidently benefitted her analgesics to this patient, in that the a private duty nurse selected by him and [that] she had no toxic side effects drugs were prescribed to control the from the nursing staff of the Chemical ** * no slurred speech, inability to patient’s pain not to maintain her Dependency Center at Saint John’s have cognitive speech, straight addiction.’’ Hospital, and that the nurses were speaking.’’ As to the legitimacy of the quantities familiar with Patient A’s case, her As to the Respondent’s specific of the controlled substances prescribed, tolerances, and with treating patients involvement in 1988, Dr. Mangoles also Dr. Brechner, a medical expert in the who had Patient A’s type of problems. opined that the 13 prescriptions Dr. field of pain management and As a result of his treatment of Patient A, Roth wrote during a seven month period anesthesiology, testified that in 1988 he Dr. Skinner concluded that she was not were needed to control the patient’s was consulted concerning an aspect of an addict: ‘‘She did not demonstrate pain problems. He also noted that the Patient A’s treatment, for he had typical findings of addiction behavior. Respondent appeared ‘‘to be tapering performed a facet block procedure to aid ** * never did she evidence toxicity, her down all the time,’’ and that such in the diagnosis of the source of Patient never did she evidence any abstinence Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62265 withdrawal syndrome, and never did obtain some sleep, not to obtain a state for Patient A. Finally, there was no she evidence, while under my care at of euphoria. expert witness testimony to establish home or in the hospitals, any evidence Dr. Margoles agreed with the that the Respondent’s recordkeeping of street-like drug seeking behavior.’’ Respondent, testifying that Patient A practices, under the circumstances, The Respondent also testified before needed the medications prescribed failed to meet the usual medical Judge Tenney, stating that Patient A was during this time period to control her standard. ‘‘opiate dependent’’ or ‘‘opiate reliant,’’ pain and to help her sleep, given the As to Patient B, the Government’s but not addicted. ‘‘I don’t feel she was pain she was experiencing. Dr. Smith, attorney stated on the record that ‘‘the addicted to the medication from the however, testified generally about government will really not submit any point of view that she needed the sedative-hypnotic dependence, and, argument to the issue of . . . whether medication every so many hours as an after reviewing the prescriptions issued Patient B had legitimate medical addict would for maintenance of the use during 1992 through 1993, he conditions that were being treated,’’ but of the drug. But she relied on the concluded that the Respondent’s noted that the Respondent’s medication to take away her pain. In prescriptions to Patient A were beyond recordkeeping practices as to Patient B that sense, I’m saying she was reliant on therapeutic use and were issued for the were deficient. Patient B’s medical chart the medication. But she could go days purpose of sustaining her addiction. was of record, and in it the Respondent without having medication, even weeks, However, undisputed in the record was had listed several diagnoses, including when her pain wasn’t bad. Then the the Respondent’s testimony that Patient ‘‘migraine v. cluster’’ headaches and pain would get bad and she was reliant, A’s medical records reflecting his insomnia. The Respondent also testified again, on the medication to take away treatment of her during this time period that a cluster headache could the pain.’’ He concluded by stating that, had been stolen from the Respondent’s incapacitate someone and could cause although he was not the primary office. Acknowledging the lack of insomnia. Three times in June, twice in treating physician during 1988, he medical records, Dr. Smith admitted July, and once in September 1992, the issued prescriptions in good faith and as that if he had been able to review the Respondent prescribed Fiorinal, a part of the regimen established by her medical records ‘‘[he] could have a barbiturate containing butalbital, a primary treatment physicians. Further, better understanding of what was going Schedule III controlled substance, for he affirmed that he did not issue any on in the physician’s mind and whether Patient B’s headaches. For Patient B’s prescriptions for the purpose of it was appropriate prescribing.’’ insomnia condition, the Respondent enabling Patient A to reach a state of However, the Respondent submitted prescribed Prosom, a euphoria. letters written between September 1990 triazolobensodiazepine derivative, As to his prescribing practices during and February 1993, reflecting his which is a Schedule IV controlled 1991 through 1993, the Respondent referral of Patient A to other physicians substance. The Respondent also testified testified that Patient A complained that for consultation. Dr. Ling, after that Patient B’s medical problems were her pain was causing her insomnia. He reviewing the consulting physician’s documented in his medical record, and first referred Patient A to the sleep opinions, conceded that the letters that given the small amount of clinic at Cedars Sinai Hospital, but she supported the Respondent’s opinion medication prescribed for Patient B, he did not follow up on that referral. Next, that Patient A suffered intractable pain felt it was not relevant to go into a long, the Respondent consulted with the during this time period. Dr. Ling also lengthy work-up for this patient. director of that clinic and used the testified that he did not see any overall Dr. Margoles testified that Fiorinal treatment regimen he suggested to try to strategy for the treatment of Patient A, was a medication that was used to provide Patient A relief from both her but he conceded that, lacking the control cluster headaches, and that the insomnia and her pain. The medical treatment record, he could not Respondent prescribed this medication recommended regimen involved trying render an opinion as to whether the to Patient B in appropriate dosages. He to rotate insomnia medications to Respondent’s medical practices were also testified that the Prosom was determine what medication would consistent with the skill and knowledge prescribed to Patient B in appropriate provide Patient A relief. He prescribed of the average practitioner. dosages to help him sleep, and that benzodiazepines, to include Restoril, Also in dispute was the adequacy of there was no evidence in the medical Prosom, Chloral Hydrate, and Dalmane. the medical treatment records for records that Patient B sought either of The Respondent testified that he would Patient A during the 1988 time period. these medications for the purpose of give Patient A three prescriptions at one The Respondent testified that, since he euphoria. Therefore, he concluded that time for small dosages of different shared a practice with Dr. Gottlieb, he the medications were prescribed for a substances, stating ‘‘the reason that we had not kept a separate medical record, legitimate medical purpose and in the gave her the three medications at one but rather he had followed the treatment appropriate course of normal medical time was to give her the alternative to regimen of Dr. Gottlieb and Dr. Skinner. practice. try one and if one didn’t work to try a Dr. Smith testified that Dr. Gottlieb’s Pursuant to 21 U.S.C. 823(f) and second.’’ The Respondent testified that treatment records did not meet the usual 824(a)(4), the Deputy Administrator may he cautioned Patient A about the medical standard of practice regarding revoke a DEA Certificate of Registration addictive nature of these substances, prescription of controlled substances. if he determines that the continued and Patient A affirmed that she was just Yet Dr. Brechner also reviewed Patient registration would be inconsistent with trying to get some sleep so she could A’s treatment records provided by Dr. the public interest. Section 823(f) work. The Respondent affirmed that it Skinner and Dr. Gottlieb, as well as the requires that the following factors be was never his intention that Patient A hospital records, and he testified that considered in determining the public would take all three prescribed the acute and chronic medical interest: medications at the same time, and that conditions were well documented in the (1) The recommendation of the ‘‘[Patient A] knew absolutely that that medical records. Also, Dr. Margoles appropriate State licensing board or wasn’t the indication.’’ Finally, the testified that the records sufficiently professional disciplinary authority. Respondent testified that he was supported the Respondent’s prescribing (2) The applicant’s experience in prescribing these substances in good practices, for Dr. Gottlieb’s records dispensing, or conducting research with faith to assist Patient A in trying to included diagnoses and a treatment plan respect to controlled substances. 62266 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

(3) The applicant’s conviction record had a compulsion to use drugs, had lost Lonergan, 219 Cal.App.3d 82, 90 (1990) under Federal or State laws relating to control over the drugs, or that she (acting in ‘‘good faith,’’ as defined by the manufacture, distribution, or continued to use the drugs in spite of California Health and Safety Code dispensing of controlled substances. adverse consequences. Also, medical 11210, exempts a physician from (4) Compliance with applicable State, testimony was presented to establish criminal liability under the provision of Federal, or local laws relating to that, although considered, there was no 11153). In response to the Government’s controlled substances. evidence of abstinent syndrome, slurred exceptions relevant to the standard (5) Such other conduct which may speech, inability to have cognitive applicable in this administrative threaten the public health or safety. speech, nor clinical or laboratory proceeding, the Deputy Administrator These factors are to be considered in the evidence of toxicity. However, there was also finds that the preponderance of the disjunctive; the Deputy Administrator expert testimony to establish that use of evidence establishes that the may rely on any one or a combination the controlled substances helped Patient Respondent prescribed controlled of factors and may give each factor the A to function and participate in her substances to Patient A for a legitimate weight he deems appropriate in professional activities in spite of medical purpose while acting in the determining whether a registration chronic pain. Although the Respondent usual course of his professional should be revoked or an application for did not deny that Patient A had a practice, and thus, he did not violate the registration denied. See Henry J. chemical dependency, he testified that cited State law. Schwarz, Jr., M.D., Docket No. 88–42, 54 he was not prescribing controlled Next, the Government asserted that FR 16422 (1989). substances to Patient A to maintain an the Respondent performed In this case, factors two, four, and five addiction, for she did not present any detoxification or maintenance treatment are relevant in determining whether the addictive behavior to him. Therefore, of a narcotic drug-dependent patient Respondent’s continued registration the Deputy Administrator concurs with without obtaining a registration for that would be inconsistent with the public Judge Tenney’s finding that Patient A is purpose in violation of Federal law. interest. As to factor two, the a chronic pain patient being maintained Pursuant to 21 U.S.C. 802(30), Respondent’s ‘‘experience in dispensing on opioids for treatment of pain, and ‘‘detoxification treatment’’ is that she is not an ‘‘addict.’’ ** * controlled substances,’’ and The dispensing for a period not in excess The Government also asserted that the factor four, the Respondent’s of one hundred and eighty days of a narcotic Respondent’s practices violated drug in decreasing doses to an individual in compliance with ‘‘Federal, State, or California Health and Safety Code local law,’’ the Government contends order to alleviate adverse physiological or Sections 11153 and 11154. Pursuant to psychological effects incident to withdrawal that during the periods March through Section 11153(a), a ‘‘prescription for a from the continuous or sustained use of a October 1988, and 1991 through 1993, controlled substance shall only be narcotic drug and as a method of bringing the the Respondent prescribed controlled issued for a legitimate medical purpose individual to a narcotic drug-free state within substances in the treatment of Patient A by an individual practitioner acting in such period. (Emphasis added). not for a legitimate medical purpose and the usual course of his or her Further, the statute defines not in the usual course of his professional practice,’’ and a ‘‘maintenance treatment’’ as the professional practice, in violation of prescription issued ‘‘for an addict or dispensing, ‘‘for a period in excess of State and Federal law. Specifically, the habitual user of controlled substances, twenty-one days, of a narcotic drug in Government argues that controlled which is issued not in the course of the treatment of an individual for substances were prescribed to Patient A professional treatment * * * but for the dependence upon heroin or other during these periods to maintain her purpose of providing the user with morphine-like drugs.’’ 21 U.S.C. 802(29) addiction, and that the amount of controlled substances, sufficient to keep (emphasis added). However, the narcotics prescribed far exceeded what him or her comfortable by maintaining applicable implementing regulation Patient A needed for pain relief. customary use’’ would not be a legal states in pertinent part: An ‘‘addict’’ is defined in 21 U.S.C. prescription pursuant to this section. 802(1) as ‘‘any individual who This section is not intended to impose any Section 11154 provides in relevant part limitations on a physician * * * to habitually uses any narcotic drug so as that ‘‘[e]xcept in the regular practice of administer or dispense narcotic drugs in a to endanger the public morals, health, his or her profession, no person shall hospital to maintain or detoxify a person as safety, or welfare, or who is so far knowingly prescribe, administer, an incidental adjunct to medical or surgical addicted to the use of narcotic drugs as dispense, or furnish a controlled treatment of conditions other than addiction, to have lost the power of self-control substance to or for any person * ** or * * * to persons with intractable pain in with reference to [one’s] addiction.’’ which is not under his or her treatment which no relief or cure is possible or none There was no dispute that very high for a pathology or condition other than has been found after reasonable efforts. doses of narcotic analgesics were addiction to a controlled substance. 21 C.F.R. 1306.07(c). administered to Patient A, but the * * *’’ The preponderance of the evidence evidence also demonstrated that she had The Respondent asserted that supports a finding that the Respondent a high tolerance to the controlled prescribing in good faith was an was tapering the drugs prescribed to substances and required this dosage to absolute defense to an allegation of Patient A after acute pain resolved. Dr. effectively treat her pain. Patient A’s violation of these provisions. Dr. Ling Ling, as well as others, testified that medical records and the statements and testified that he accepted that the such tapering would be appropriate testimony of medical experts establish Respondent believed Patient A was in under such circumstances. Further, the that Patient A had several injuries and pain, and that he was treating her in record does not establish that Patient A was plausibly experiencing severe and good faith. Dr. Margoles also testified to experienced ‘‘adverse physiological or chronic pain. Further, the evidence did the Respondent’s good faith treatment of psychological effects incident to not adequately establish that Patient A Patient A. withdrawal’’ nor that, in fact, Patient A was an ‘‘addict.’’ No evidence was The Deputy Administrator agrees with exhibited behavior consistent with the presented to show that Patient A had the conclusion of Judge Tenney, that the finding that she was an ‘‘addict.’’ acted to ‘‘endanger the public morals, Respondent did not violate these State Therefore, the Deputy Administrator health, safety, or welfare,’’ or that she code provisions. See People v. agrees with Judge Tenney that the Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62267

‘‘Respondent made a reasonable effort to the Respondent’s pattern of prescribing Michael J. Roth, M.D., be, and it hereby manage the patient’s intractable pain to Patient A caused a threat to the is, continued, and that any pending and limit the use of controlled public health and safety. As Judge applications, be, and they hereby are, substances in terms of treatment of Tenney noted, this is an unusual case granted. This order is effective January [Patient A’s] other medical conditions, for it involved the Respondent’s 4, 1996. and did not prescribe controlled prescribing practices for a single patient, Dated: November 24, 1995. substances primarily to wean the patient and no evidence was provided to show Stephen H. Greene, from dependence on narcotic a pattern of excessive prescribing to any analgesics.’’ Thus, the Respondent was other patients. Further, as to that single Deputy Administrator. not maintaining Patient A’s addiction patient, the Deputy Administrator [FR Doc. 95–29487 Filed 12–4–95; 8:45 am] nor detoxifying Patient A without a concurs with Judge Tenney’s finding BILLING CODE 4410±09±M proper registration. that the ‘‘overriding purpose of [the] Next, the Government asserts that the Respondent’s prescribing practices was Respondent violated 21 C.F.R. 1306.04 the treatment of Patient A’s pain,’’ a and California Health and Safety Code legitimate medical purpose. Also, a DEPARTMENT OF LABOR 11168, 11190, and 11191, by failing to relevant factor in determining the keep adequate medical records in the public’s interest is the nature of the Office of the Secretary course of his treatment of Patient A Respondent’s current practice, for the Agency Recordkeeping/Reporting during 1988, and 1991 through 1993. Respondent testified that the majority of Requirements Under Review by the The primary treatment records during his patients in 1994 were living with Office of Management and Budget 1988 were the records of Dr. Skinner AIDS and in many cases in need of (OMB) and Dr. Gottlieb, and there was no controlled substances to relieve their dispute that Dr. Roth did not maintain incurable pain. In the balance, the November 29, 1995. separate treatment records recording his Deputy Administrator finds that it is in The Department of Labor has treatment of Patient A during this time the public interest for the Respondent to submitted the following public period. Although Dr. Smith testified that retain his DEA Certificate of Dr. Gottlieb’s records were inadequate, Registration. information collection requests (ICRs) to Dr. Margoles and Dr. Brechner testified Yet the Deputy Administrator notes the Office of Management and Budget that the records sufficiently supported with concern the large quantities of (OMB) for review and clearance under the Respondent’s prescribing practices, controlled substances prescribed to the Paperwork Reduction Act of 1995 for Dr. Gottlieb’s records included Patient A over an extended period of (P.L. 104–13, 44 U.S.C. Chapter 35). diagnoses and a treatment plan for time. However, the conflicting expert Copies of these individual ICRs, with Patient A. Further, the Respondent opinion evidence presented leads to the applicable supporting documentation, testified that he merely followed the conclusion that the medical community may be obtained by calling the treatment regimen of Dr. Gottlieb and has not reached a consensus as to the Department of Labor Acting Dr. Skinner when he ‘‘covered’’ for them appropriate level of prescribing of Departmental Clearance Officer, Theresa in treating Patient A. No expert witness controlled substances in the treatment M. O’Malley ((202) 219–5095). testimony was presented to discredit the of chronic pain patients. Given this Comments and questions about the ICRs Respondent’s professional practice of dispute, the Deputy Administrator is listed below should be directed to Ms. recordkeeping under these reluctant to conclude that the O’Malley, Office of Information circumstances. Respondent’s prescribing of controlled Resources Management Policy, U.S. As to the records from 1991 through substances to Patient A lacked a Department of Labor, 200 Constitution 1993, the Respondent testified, and no legitimate medical purpose or was Avenue, NW., Room N–1301, evidence was presented to the contrary, outside the usual course of professional Washington, DC 20210 within 30 days that Patient A’s treatment records practice. It remains the role of the from the date of this publication in the covering his treatment of her during this treating physician to make medical Federal Register. Comments should also time period were stolen from his office. treatment decisions consistent with a be sent to the Office of Information and Further, the Deputy Administrator medical standard of care and the Regulatory Affairs, Attn: OMB Desk concurs with Judge Tenney’s finding dictates of Federal and State law. Here, Officer for (BLS/DM/ESA/ETA/OAW/ that the Respondent’s explanation for the preponderance of the evidence MSHA/OSHA/PWBA/VETS), Office of the missing records was credible. Given established that the Respondent so Management and Budget, Room 10325, the loss of these medical records, the acted. Washington, DC 20503 ((202) 395– hearing record is devoid of evidence Therefore, the Deputy Administrator 7316). Individuals who use a sufficient to establish the inadequacy of finds that the public interest is best telecommunications device for the deaf the Respondent’s contemporaneous served by taking no action with respect (TTY/TDD) may call (202) 219–4720 recordkeeping practices. Thus, the to the continued registration of the between 1:00 p.m. and 4:00 p.m. Eastern Deputy Administrator agrees with Judge Respondent. Accordingly, the Deputy time, Monday through Friday. Tenney’s conclusion that the Administrator of the Drug Enforcement Agency: Bureau of Labor Statistics. inadequacies of the medical records Administration, pursuant to the were not clearly supported. authority vested in him by 21 U.S.C. 823 Title: Application for BLS As to factor five, ‘‘such other conduct and 824, and 21 C.F.R. 0.100(b) and Occupational Safety and Health which may threaten the public health 0.104, hereby orders DEA Certificate of Statistics Cooperative Agreements. and safety,’’ the Government argued that Registration AR8354425, issued to OMB Number: 1220–0149. 62268 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Average Form Respond- Frequency time per ents response

BLS±OSHA1 ...... 57 Annually ...... 2 hours. BLS±OSHA2 ...... 57 Quarterly ...... 1 hour.

Affected Public: States. Agency: Employment Standards LEGAL SERVICES CORPORATION Total Burden Hours: 342. Administration. Description: The BLS enters into Title: Black Lung Provider Enrollment Grant Awards to Applicants for Funds cooperative agreements with States and Form. To Provide Civil Legal Services to Eligible Low-Income Clients Effective political subdivisions thereof, to assist OMB Number: 1215–0137. them in developing and administering as Early as January 1, 1996, or as Soon Agency Number: CM–1168. programs dealing with occupational Thereafter as Feasible, Consistent safety and health statistics and to Frequency: On occasion. With Pending Congressional arrange through these agreements for Affected Public: Business or other for- Appropriations profit. research to further the objectives of the AGENCY: Legal Services Corporation. Occupational Safety and Health Act. Number of Respondents: 6,500. ACTION: Announcement of Grant Agency: Bureau of Labor Statistics. Estimated Time Per Respondent: 3 to Awards. Title: Comp200 Test. 7 minutes. Frequency: One-time. Total Burden Hours: 525. SUMMARY: The Legal Services Affected Public: Within Albuquerque, Total Estimated Costs for Operation Corporation (LSC/Corporation) hereby NM, and Allentown, PA, metropolitan and Maintenance: $2,080. announces its intention to award grants areas; Business or other for-profit; Not- Description: 20 CFR 725.705 sets forth and contracts to provide economical for-profit institutions; State, Local or specific requirements for the Federal and effective delivery of high quality Tribal Government. Black Lung Program to provide medical civil legal services to eligible low- Number of Respondents: 574. services to black lung beneficiaries and income clients effective as early as Estimated Time Per Respondent: 2 stipulates that these medical services January 1, 1996, or as soon thereafter as hours. will be performed by authorized feasible consistent with pending Total Burden Hours: 1,148. medical providers. the CM–1168 is Congressional appropriations. Description: This collection is a test of designed to facilitate the collection of DATES: All comments and a new method of identifying and information about medical providers recommendations must be received on classifying occupations within an and the payment of bills for the medical or before the close of business on establishment. If successful the new services they perform for the program. January 4, 1996. method could ultimately allow for joint ADDRESSES: Office of Program Services, collection of three separate surveys of Agency: Employment and Training Legal Services Corporation, 750 First wage and benefit data—the Administration. Street, N.E., 11th Floor, Washington, Occupational Compensation Survey Title: Worker Profiling and D.C. 20002–4250. Program, the Employment Cost Index, Reemployment Service Systems FOR FURTHER INFORMATION CONTACT: and the Employee Benefit Survey. In Administrator Survey. Patricia M. Hanrahan, Office of Program addition to evaluating the results of the Frequency: One-time. Services, 202/336–8846. test for use in future surveys, the BLS Affected Public: State, Local or Tribal SUPPLEMENTARY INFORMATION: Pursuant will also publish a bulletin for each area Government. to the Corporation’s announcement of containing the occupational earnings Number of Respondents: 126. funding availability on September 21, data collected. Estimated Time Per Respondent: 10– 1995 (60 FR 48951), the LSC will award Agency: Employment Standards 50 minutes. funds to one or more of the following Administration. Total Burden Hours: 49. organizations to provide civil legal Title: Application for Continuation of services in the indicated service areas. Death Benefit for Student. Description: The Department of Labor OMB Number: 1215–0073. is conducting a comprehensive Name of Organization—Service areas Agency Number: LS–266. evaluation of the operation and identified in LSC RFP (Oct. 1995) Frequency: On occasion. effectiveness of State Worker Profiling Lgl Svcs of the Virgin Islands Inc—VI– Affected Public: Individuals or and Reemployment Service (WPRS) 1 households; Business or other for-profit. systems, as mandated by P.L. 103–152. Puerto Rico Lgl Svcs Inc.—PR–1, PR–2, Number of Respondents: 43. The survey information will be used to MPR Estimated Time Per Respondent: 30 describe how States have designed and These grants and contracts will be minutes. implemented WPRS systems, and to awarded under the authority conferred Total Burden Hours: 22. identify distinct groupings or modes of on LSC by the Legal Services Description: The Office of Workers’ State operational approaches. Corporation Act, as amended (42 U.S.C. Compensation Programs, Division of Respondents are State Unemployment 2996e(a)(1)). Awards will be made so Longshore and Harbor Workers’ Insurance, Employment Service and that each service area indicated is Compensation, provides for Economic Dislocated and Worker served by one of the organizations listed continuation of death benefit for a child Adjustment Act administrators. above, although each of the listed or certain other surviving dependents if Theresa M. O’Malley, organizations is not necessarily the dependent qualifies as a student. Acting Departmental Clearance Officer. guaranteed an award or contract. This This form is used as an application for [FR Doc. 95–29554 Filed 12–4–95; 8:45 am] public notice is issued pursuant to the these benefits. BILLING CODE 4510±24±M LSC Act (42 U.S.C. 2996f(f)), with a Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62269 request for comments and staff has determined, as set forth in the investigation by the NRC Office of recommendations concerning the Appendix to this Order, that the Investigations. Advacare Management potential grantees within a period of violations occurred as stated and that Services, Inc. (Licensee) responded to the thirty (30) days from the date of the penalty proposed for the violations Notice on September 21, 1995. The Licensee admitted the Violations, but requested publication of this notice. Grants will designated in the Notice should be mitigation of the civil penalty. The NRC’s become effective as early as January 1, imposed. evaluation and conclusion regarding the 1996, and funds will be distributed as IV licensee’s requests are as follows: soon thereafter as possible, consistent with pending Congressional In view of the foregoing and pursuant 1. Summary of Licensee’s Request for Mitigation appropriations. to Section 234 of the Atomic Energy Act In its responses, the Licensee contends that Merceria L. Ludgood, of 1954, as amended (Act), 42 U.S.C. mitigating circumstances were not fully Director, Office of Program Services. 2282, and 10 CFR 2.205, It is hereby ordered that: considered by the NRC. In support of its [FR Doc. 95–29574 Filed 12–4–95; 8:45 am] The Licensee pay a civil penalty in contention, the Licensee noted the following: BILLING CODE 7050±01±P the amount of $2,500 within 30 days of a. A prior inspection at the Bala Cynwyd facility identified few items of non- the date of this Order, by check, draft, compliance and thus provided a level of money order, or electronic transfer, NUCLEAR REGULATORY managerial assurance that the radiation payable to the Treasurer of the United protection/compliance program was COMMISSION States and mailed to Mr. James acceptable. [Docket No. 030±30947; License No. 37± Lieberman, Director, Office of b. The term ‘‘promptly’’, as used on page 28331±01 EA 94±089] Enforcement, U.S. Nuclear Regulatory 3 of Mr. Martin’s letter dated August 30, Commission, Washington, D.C. 20555. 1995, is clearly a subjective word. The Advacare Management Services, Inc., Licensee stated that its audit reports were Bala Cynwyd, Pennsylvania; Order V received in January 1994 and the NRC Imposing Civil Monetary Penalty The Licensee may request a hearing inspection was on April 26–28, 1994. The Licensee stated that it was in the process of within 30 days of the date of this Order. I correcting the multiple minor areas of non- A request for a hearing should be clearly compliance identified in the audits and Advacare Management Services, Inc. marked as a ‘‘Request for an although some of the corrections were not (Licensee) is the holder of Materials Enforcement Hearing’’ and shall be completed by April 1, 1994, the majority License No. 37–28331–01 issued by the addressed to the Director, Office of were corrected by the enforcement Nuclear Regulatory Commission (NRC Enforcement, U.S. Nuclear Regulatory conference and by subsequent spot check or Commission), issued April 4, 1989, Commission, Washington, D.C. 20555, inspections by Region I inspectors between renewed most recently on May 9, 1994. with a copy to the Commission’s the June 1994 enforcement conference and The license authorizes the Licensee to Document Control Desk, Washington, the time of the Licensee’s responses. The possess and use byproduct material for Licensee contends that its response was, in D.C. 20555. Copies also shall be sent to fact, reasonably prompt. diagnostic nuclear medicine studies in the Assistant General Counsel for Therefore, the licensee requests that the accordance with the conditions Hearings and Enforcement at the same combination of these factors should result in specified therein. address and to the Regional a modification of the proposed civil penalty Administrator, NRC Region I, 475 from $2,500 to $1,250. II Allendale Road, King of Prussia, The Licensee further noted that it An inspection of the Licensee’s Pennsylvania 19406. recognized and self-identified material activities was conducted on April 26– If a hearing is requested, the weaknesses in its radiation safety program 28, 1994. Subsequently, an investigation Commission will issue an Order and contracted a consultant medical was conducted by the NRC Office of designating the time and place of the radiation physicist to assist the RSO in Investigations. The results of the correcting those weaknesses and that the hearing. If the Licensee fails to request correction process was in place at the time inspection and investigation indicated a hearing within 30 days of the date of of the inspection. that the Licensee had not conducted its this Order, the provisions of this Order activities in full compliance with NRC shall be effective without further 2. NRC Evaluation of Licensee’s Request for requirements. A written Notice of proceedings. If payment has not been Mitigation Violation and Proposed Imposition of made by that time, the matter may be The fact that an inspection was conducted Civil Penalty (Notice) was served upon referred to the Attorney General for at the Bala Cynwyd facility, one of several the Licensee by letter dated August 30, collection. Licensee facilities, and in which only a few 1995. The Notice states the nature of the In the event the Licensee requests a items of noncompliance were noted, three years prior to the inspection conducted on violations, the provisions of the NRC’s hearing as provided above, the issues to April 26–28, 1994, does not alleviate the requirements that the Licensee had be considered at such hearing shall be: need for aggressive managerial oversight of violated, and the amount of the civil Whether on the basis of the violations the radiation safety program. In order to penalty proposed for the violations. admitted by the Licensee, this Order assure continued acceptable performance in The Licensee responded to the Notice should be sustained. the area of radiation safety, the Licensee is required to not only perform periodic audits in two letters, dated September 21, Dated at Rockville, Maryland, this 28th day of its radiation safety program in accordance 1995. In its responses, the Licensee of November 1995. with its commitments under the ALARA admits the violations as stated in the For the Nuclear Regulatory Commission. Notice, but requests mitigation of the program, but in accordance with 10 CFR James Lieberman, civil penalty. 35.23, through its Radiation Safety Officer Director, Office of Enforcement. (RSO) identify radiation safety problems, as III well as initiate corrective actions and verify Appendix—Evaluations and Conclusion the implementation of those corrective After consideration of the Licensee’s On August 30, 1995 a Notice of Violation actions. response and the statements of fact, and Proposed Imposition of Civil Penalty Although the Licensee had corrected some explanation, and argument for (Notice) was issued for violations identified of the individual violations identified by the mitigation contained therein, the NRC during an NRC inspection and subsequent NRC, it had not corrected the majority of 62270 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices them by the Enforcement Conference. The [Docket Nos. 50±277 and 50±278] confirmed to ensure no previously evaluated day prior to that Conference, the Licensee accident has been adversely affected. The submitted a lengthy letter addressing the Peco Energy Company; Notice of proposed lower test pressure for the HPCI violations and the status of corrective Consideration of Issuance of [high pressure coolant injection] and RCIC actions. The information in this letter was Amendments to Facility Operating [reactor core isolation cooling] system flow not completely accurate and at the License, Proposed no Significant testing is consistent with the minimum EHC Conference several corrections were Hazards Consideration Determination, [electro-hydraulic control] pressure setpoint requested. These corrections were later and Opportunity for a Hearing at which reactor power can be increased submitted by the Licensee. In addition, the without the need to adjust the EHC pressure NRC staff had questioned the RSO’s ability to The U.S. Nuclear Regulatory setpoint during operation in MODE 1. meet his responsibilities for the numerous Increasing the lower test pressure from 920 facilities and Licensee management had Commission (the Commission) is psig to 940 psig does not impact when the indicated that it intended to request a considering issuance of an amendment performance of the test is required. The separate license for a New Jersey facility in to Facility Operating License Nos. DPR– proposed upper test pressure for the HPCI order to relieve the RSO of some 44 and DPR–56 issued to the PECO and RCIC system flow testing is consistent responsibilities, but it had not yet done so. Energy Company (the licensee) for with the Reactor Steam Dome Pressure Limit In addition, the Licensee did not consider the operation of the Peach Bottom Atomic in Specification 3.4.10. Additionally, the need to apply similar corrective actions at the Power Station, Units 2 and 3, located in HPCI and RCIC systems are both designed to other facilities covered by the license. provide adequate core cooling at reactor Although the Licensee had recognized that York County, Pennsylvania. The proposed amendments would pressures from 150 psig to 1150 psig. SR it had weaknesses in its program and had [surveillance requirement] 3.5.1.8 and SR engaged a consultant to assist the RSO, and revise surveillance requirements for the 3.5.3.3 still will require verifying HPCI and these actions led to eventual good high pressure coolant injection and RCIC pumps can develop the required flow comprehensive corrective action, they were reactor core isolation cooling systems rates against system head corresponding to not sufficiently prompt and comprehensive and would make an administrative reactor pressure. Therefore, the proposed as of the time of the Enforcement Conference change to Section 5.5.7 of the technical changes provide adequate assurance that the to provide a basis for mitigating the civil HPCI and RCIC systems will be maintained penalty. specifications to eliminate reference to a section which was previously operable. In addition, these proposed 3. NRC Conclusion eliminated. changes eliminate the need to adjust reactor pressure from normally stable plant The NRC has concluded that the violations Before issuance of the proposed conditions to perform the test. As such, the occurred as stated and an adequate basis for license amendments, the Commission probability of plant transients is expected to mitigation of the civil penalty was not will have made findings required by the be reduced. Therefore, the proposed changes provided by the licensee. Consequently, the Atomic Energy Act of 1954, as amended will not involve a significant increase in the proposed civil penalty in the amount of (the Act) and the Commission’s $2,500 should be imposed. probability or consequences of an accident regulations. previously evaluated. [FR Doc. 95–29539 Filed 12–4–95; 8:45 am] The Commission has made a (2) The proposed changes do not create the BILLING CODE 7590±01±P proposed determination that the possibility of a new or different kind of amendment request involves no accident from any accident previously significant hazards consideration. Under evaluated because the proposed changes do [Docket Nos. 50±413 and 50±414] the Commission’s regulations in 10 CFR not alter the plant configuration (no new or different type of equipment will be installed Duke Power Company, et al., Catawba 50.92, this means that operation of the or removed) and will not alter the method Nuclear Station, Units 1 and 2; facility in accordance with the proposed used by any system to perform its design Correction to Notice of Consideration amendment would not (1) involve a function. The proposed changes do not allow of Issuance of Amendments to Facility significant increase in the probability or plant operation in any mode that is not Operating Licenses, Proposed No consequences of an accident previously already evaluated in the SAR [safety analysis Significant Hazards Consideration evaluated; or (2) create the possibility of report]. Therefore, these changes will not a new or different kind of accident from create the possibility of a new or different Determination, and Opportunity for a kind of accident from any accident Hearing any accident previously evaluated; or (3) involve a significant reduction in a previously evaluated. (3) The proposed changes do not involve The U.S. Nuclear Regulatory margin of safety. As required by 10 CFR Commission published a Notice of a significant reduction in a margin of safety. 50.91(a), the licensee has provided its The proposed change to the VFTP Consideration of Issuance of analysis of the issue of no significant [ventilation filter test program] in Section Amendments in the Federal Register hazards consideration, which is 5.5.7 is administrative in nature and does not (60 FR 58109 dated November 24, 1995), presented below: involve any technical changes. This proposed to Duke Power Company, et al., for the (1) The proposed changes do not involve change will not reduce a margin of safety Catawba Nuclear Station, Units 1 and 2. a significant increase in the probability or because it has no impact on any safety Correction is being made on page 58110, consequences of an accident previously analysis assumptions. Because this change is third column, last paragraph, first evaluated because the changes will not alter administrative in nature, no question of sentence; the 30-day notice period assumptions relative to initiation and safety is involved. The proposed changes also ending date should read ‘‘By December mitigation of analyzed events. These changes revise the upper and lower test pressure for will not alter the operation of process the HPCI and RCIC system high pressure flow 26, 1995, * * *’’ instead of ‘‘By tests. These changes do not impact safety December 18, 1995, * * *’’ variables, or SSC [system, structure or component] as described in the safety analysis assumptions or the ability of the Dated at Rockville, Maryland, this 28th day analysis. These changes do not involve any HPCI and RCIC systems to perform their of November 1995. physical changes to plant SSC or the manner design functions. The HPCI and RCIC For the Nuclear Regulatory Commission. in which these SSC are operated, maintained, systems are designed to provide adequate Robert E. Martin, modified or inspected. Routine testing is not core cooling at reactor pressures from 150 assumed to be an initiator of any analyzed psig to 1150 psig. SR 3.5.1.8 and SR 3.5.3.3 Senior Project Manager, Project Directorate event. The proposed changes will not alter still will require verifying HPCI and RCIC II–2, Division of Reactor Projects—I/II, Office the operation of equipment assumed to be pumps can develop the required flow rates of Nuclear Reactor Regulation. available for the mitigation of accidents or against system head corresponding to reactor [FR Doc. 95–29536 Filed 12–4–95; 8:45 am] transients by the plant safety analysis or pressure. The proposed lower test pressure BILLING CODE 7590±01±M licensing basis. These changes have been for the HPCI and RCIC system flow testing is Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62271 consistent with the minimum EHC pressure Federal workdays. Copies of written petition without requesting leave of the setpoint that provides adequate steam flow at comments received may be examined at Board up to 15 days prior to the first which reactor power can be increased the NRC Public Document Room, the prehearing conference scheduled in the without the need to adjust the EHC pressure Gelman Building, 2120 L Street, NW., proceeding, but such an amended setpoint during operation in MODE 1. Washington, DC 20555. Increasing the lower test pressure from 920 petition must satisfy the specificity psig to 940 psig does not impact when the The filing of requests for hearing and requirements described above. performance of the test is required. The petitions for leave to intervene is Not later than 15 days prior to the first proposed upper test pressure for the HPCI discussed below. prehearing conference scheduled in the and RCIC system flow testing is consistent By January 3, 1996, the licensee may proceeding, a petitioner shall file a with the initial condition for the reactor file a request for a hearing with respect supplement to the petition to intervene vessel overpressure protection analysis. In to issuance of the amendment to the which must include a list of the addition, the proposed changes provide the subject facility operating license and contentions which are sought to be benefit of eliminating the need to adjust any person whose interest may be litigated in the matter. Each contention reactor pressure from normally stable plant affected by this proceeding and who conditions to perform the test, thereby must consist of a specific statement of wishes to participate as a party in the the issue of law or fact to be raised or reducing the potential for a plant transient. proceeding must file a written request Therefore, these changes will not involve a controverted. In addition, the petitioner significant reduction in a margin of safety. for a hearing and a petition for leave to shall provide a brief explanation of the intervene. Requests for a hearing and a bases of the contention and a concise The NRC staff has reviewed the petition for leave to intervene shall be licensee’s analysis and, based on this statement of the alleged facts or expert filed in accordance with the opinion which support the contention review, it appears that the three Commission’s ‘‘Rules of Practice for standards of 10 CFR 50.92(c) are and on which the petitioner intends to Domestic Licensing Proceedings’’ in 10 rely in proving the contention at the satisfied. Therefore, the NRC staff CFR Part 2. Interested persons should proposes to determine that the hearing. The petitioner must also consult a current copy of 10 CFR 2.714 provide references to those specific amendment request involves no which is available at the Commission’s significant hazards consideration. sources and documents of which the Public Document Room, the Gelman petitioner is aware and on which the The Commission is seeking public Building, 2120 L Street, NW., comments on this proposed petitioner intends to rely to establish Washington, DC, and at the local public those facts or expert opinion. Petitioner determination. Any comments received document room located at the must provide sufficient information to within 30 days after the date of Government Publications Section, State show that a genuine dispute exists with publication of this notice will be Library of Pennsylvania, (Regional the applicant on a material issue of law considered in making any final Depository) Education Building, Walnut or fact. Contentions shall be limited to determination. Street and Commonwealth Avenue, Box matters within the scope of the Normally, the Commission will not 1601, Harrisburg, Pennsylvania 17105. If amendment under consideration. The issue the amendment until the a request for a hearing or petition for contention must be one which, if expiration of the 30-day notice period. leave to intervene is filed by the above proven, would entitle the petitioner to However, should circumstances change date, the Commission or an Atomic relief. A petitioner who fails to file such during the notice period such that Safety and Licensing Board, designated failure to act in a timely way would by the Commission or by the Chairman a supplement which satisfies these result, for example, in derating or of the Atomic Safety and Licensing requirements with respect to at least one shutdown of the facility, the Board Panel, will rule on the request contention will not be permitted to Commission may issue the license and/or petition; and the Secretary or the participate as a party. amendment before the expiration of the designated Atomic Safety and Licensing Those permitted to intervene become 30-day notice period, provided that its Board will issue a notice of hearing or parties to the proceeding, subject to any final determination is that the an appropriate order. limitations in the order granting leave to amendment involves no significant As required by 10 CFR 2.714, a intervene, and have the opportunity to hazards consideration. The final petition for leave to intervene shall set participate fully in the conduct of the determination will consider all public forth with particularity the interest of hearing, including the opportunity to and State comments received. Should the petitioner in the proceeding, and present evidence and cross-examine the Commission take this action, it will how that interest may be affected by the witnesses. publish in the Federal Register a notice results of the proceeding. The petition If a hearing is requested, the of issuance and provide for opportunity should specifically explain the reasons Commission will make a final for a hearing after issuance. The why intervention should be permitted determination on the issue of no Commission expects that the need to with particular reference to the significant hazards consideration. The take this action will occur very following factors: (1) the nature of the final determination will serve to decide infrequently. petitioner’s right under the Act to be when the hearing is held. Written comments may be submitted made party to the proceeding; (2) the If the final determination is that the by mail to the Rules Review and nature and extent of the petitioner’s amendment request involves no Directives Branch, Division of Freedom property, financial, or other interest in significant hazards consideration, the of Information and Publications the proceeding; and (3) the possible Commission may issue the amendment Services, Office of Administration, U.S. effect of any order which may be and make it immediately effective, Nuclear Regulatory Commission, entered in the proceeding on the notwithstanding the request for a Washington, DC 20555, and should cite petitioner’s interest. The petition should hearing. Any hearing held would take the publication date and page number of also identify the specific aspect(s) of the place after issuance of the amendment. this Federal Register notice. Written subject matter of the proceeding as to If the final determination is that the comments may also be delivered to which petitioner wishes to intervene. amendment request involves a Room 6D22, Two White Flint North, Any person who has filed a petition for significant hazards consideration, any 11545 Rockville Pike, Rockville, leave to intervene or who has been hearing held would take place before Maryland, from 7:30 a.m. to 4:15 p.m. admitted as a party may amend the the issuance of any amendment. 62272 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

A request for a hearing or a petition [Docket Nos. 50±266 and 50±301] area of emergency preparedness, (2) for leave to intervene must be filed with their conduct, earlier in the year, of a the Secretary of the Commission, U.S. Wisconsin Electric Power Company; comprehensive drill involving major Nuclear Regulatory Commission, (Point Beach Nuclear Plant, Units 1 elements of the emergency plan, and (3) Washington, DC 20555, Attention: and 2); Exemption the potential for the 1995 exercise to Docketing and Services Branch, or may I have a negative impact on dry cask fuel be delivered to the Commission’s Public storage activities. Document Room, the Gelman Building, Wisconsin Electric Power Company The Point Beach Nuclear Plant, in 2120 L Street, NW., Washington, DC, by (WEPCo, the licensee) is the holder of conjunction with the State of the above date. Where petitions are filed Facility Operating License Nos. DPR–24 Wisconsin, and Manitowoc and during the last 10 days of the notice and DPR–27 which authorize operation Kewaunee counties, conducted a full period, it is requested that the petitioner of the Point Beach Nuclear Plant participation emergency preparedness promptly so inform the Commission by (PBNP), Unit Nos. 1 and 2. The units are exercise on December 6, 1994. Offsite a toll-free telephone call to Western pressurized water reactors (PWR) emergency response activities were Union at 1–(800) 248–5100 (in Missouri located in Manitowoc County, evaluated by the Federal Emergency 1–(800) 342–6700). The Western Union Wisconsin. The licenses provide, among Management Agency (FEMA) and the operator should be given Datagram other things, that the facilities are onsite emergency response activities Identification Number N1023 and the subject to all rules, regulations, and were evaluated by the NRC. The NRC’s following message addressed to John F. orders of the Nuclear Regulatory evaluation is documented in NRC Stolz, Director, Project Directorate I–2: Commission (the Commission) now or Inspection Report Nos. 50–266/94023 petitioner’s name and telephone hereafter in effect. and 50–301/94023, dated December 16, number, date petition was mailed, plant II 1994. The report states that no name, and publication date and page violations or deviations were identified Section 50.54(q) of 10 CFR Part 50 and overall performance during the number of this Federal Register notice. requires a licensee authorized to operate A copy of the petition should also be exercise was good. The licensee has a nuclear power reactor to follow and implemented actions to correct the one sent to the Office of the General maintain in effect Emergency Plans that Counsel, U.S. Nuclear Regulatory exercise weakness, concerning offsite meet the standards of 10 CFR 50.47(b) monitoring team vehicle readiness, Commission, Washington, DC 20555, and the requirements of Appendix E to and to J.W. Durham, Sr., Esquire, Sr. identified during the December 6, 1994, 10 CFR Part 50. Section IV.F.2.b of exercise. The licensee has received an V.P. and General Counsel, PECO Energy Appendix E requires that each licensee Company, 2301 Market Street, ‘‘excellent’’ rating on the last two annually exercise its Emergency Plan. Systematic Assessment of Licensee Philadelphia, Pennsylvania 19101, The NRC may grant exemptions from attorney for the licensee. Performance reports in the area of the requirements of the regulations emergency preparedness (Inspection Nontimely filings of petitions for which, pursuant to 10 CFR 50.12, are (1) Report Nos: 266/93001; 301/93001, leave to intervene, amended petitions, authorized by law, will not present an dated July 16, 1993, and 266/94001; supplemental petitions and/or requests undue risk to the public health and 301/94001 dated October 21, 1994). for hearing will not be entertained safety, and are consistent with the The licensee performed an emergency absent a determination by the common defense and security; and (2) drill on August 29, 1995, involving Commission, the presiding officer or the present special circumstances. Special major elements of the Point Beach presiding Atomic Safety and Licensing circumstances exist when the Emergency Plan. All emergency Board that the petition and/or request application of the regulation in the response facilities were activated for the should be granted based upon a particular circumstances would not drill and communications were made to balancing of the factors specified in 10 serve the underlying purpose of the rule the State. The licensee performed a CFR 2.714(a)(1)(i)–(v) and 2.714(d). or is not necessary to achieve the thorough critique of the drill to identify For further details with respect to this underlying purpose of the rule [10 CFR strengths, deficiencies, weaknesses, and action, see the application for 50.12(a)(2)(ii)]. The underlying purpose areas for improvement. No deficiencies, amendment dated November 21, 1995, of 10 CFR Part 50, Appendix E Section three weaknesses, and several areas for which is available for public inspection IV.F.2.b is to demonstrate that the state improvement were identified during the at the Commission’s Public Document of emergency preparedness provides drill. The licensee has a program for Room, the Gelman Building, 2120 L reasonable assurance that adequate correcting the weaknesses and for Street, NW., Washington, DC, and at the protective measures can and will be implementing actions to address the local public document room located at taken in the event of a radiological areas for improvement. The licensee the Government Publications Section, emergency. plans to correct weaknesses identified during the drill prior to the 1996 full- State Library of Pennsylvania, III (REGIONAL DEPOSITORY) Education participation exercise. Building, Walnut Street and By letters dated October 6, 1995 and Appendix E to Part 50 requires that Commonwealth Avenue, Box 1601, November 3, 1995, the licensee licensees shall enable any State or local Harrisburg, Pennsylvania 17105. requested a one-time exemption from government located within the plume the requirements of 10 CFR 50.47 and exposure pathway emergency planning Dated at Rockville, Maryland, this 29th day Appendix E to conduct an annual zone (EPZ) to participate in annual of November 1995. exercise of the Point Beach Emergency exercises when requested by such State For the Nuclear Regulatory Commission. Plan in 1995. The Point Beach utility- or local government. The licensee has Joseph W. Shea, only annual emergency exercise is discussed the request for exemption Project Manager, Project Directorate I–2, currently scheduled for December 13, from the 1995 annual emergency Division of Reactor Projects–I/II, Office of 1995. The licensee requested an preparedness exercise with the State Nuclear Reactor Regulation. exemption from the annual exercise and local governments within the EPZ. [FR Doc. 95–29537 Filed 12–4–95; 8:45 am] requirement for 1995 based on: (1) their The State and local governments within BILLING CODE 7590±01±P continued excellent performance in the the EPZ have informed the licensee that Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62273 they do not regard the exemption as a present an undue risk to the public SECURITIES AND EXCHANGE missed opportunity for them to exercise health and safety, and is consistent with COMMISSION their emergency plan. The State and the common defense and security. local governments within the Point [Release No. 34±36513; File No. SR±CBOE± Furthermore, the Commission has 95±59] Beach EPZ participated in the October determined that special circumstances 11, 1995, exercise at the nearby as provided in 10 CFR 50.12(a)(2)(ii) are Self-Regulatory Organizations; Notice Kewaunee Nuclear Power Plant. The present in that application of the of Filing and Immediate Effectiveness licensee’s next emergency preparedness regulation in the particular of Proposed Rule Change and exercise is scheduled for August 1996 circumstances is not necessary to Amendment No. 1 to Proposed Rule and will include the participation of achieve the underlying purpose of the Change by the Chicago Board Options State and local government emergency rule. Exchange, Inc. Relating to the response organizations. Requirement to Make Prior The Commission hereby grants a one- The licensee states that the 1995 Arrangements or Obtain Other exercise, as planned, is anticipated to time exemption from the requirements Assurances Before Engaging in Short have a negative impact on the licensee’s of 10 CFR Part 50, Appendix E, Section Sales oversight of the storage of spent fuel in IV.F.2.b, for annually exercising the an independent spent fuel storage onsite Emergency Plan at the Point November 27, 1995. installation at the Point Beach Nuclear Beach Nuclear Plant in the year 1995. Pursuant to Section 19(b)(1) of the Plant. The licensee had hoped to load Pursuant to 10 CFR 51.32, the Securities Exchange Act of 1934 their first dry storage container prior to (‘‘Act’’), 15 U.S.C. § 78s(b)(1), notice is Commission has determined that the mid-September. However, due to hereby given that on October 19, 1995, granting of this exemption will have no various reasons, they are now planning the Chicago Board Options Exchange, significant impact on the quality of the to load the first container in early Inc. (‘‘CBOE’’ or ‘‘Exchange’’) filed with December following the Point Beach human environment (60 FR 58685). the Securities and Exchange Unit 2 refueling outage which is This exemption is effective upon Commission (‘‘Commission’’) the scheduled to be completed by the end issuance. proposed rule change as described in of November. The licensee states that it For the Nuclear Regulatory Commission. Items I, II and III below, which Items is prudent to load a dry storage have been prepared by the self- Jack W. Roe, container as soon as possible in order to regulatory organization. On October 31, minimize the time that Point Beach will Director, Division of Reactor Projects III/IV, 1995, the Exchange submitted not have the capacity for a full-core Office of Nuclear Reactor Regulation. Amendment No. 1 (‘‘Amendment No. offload. In addition, the licensee states [FR Doc. 95–29538 Filed 12–4–95; 8:45 am] 1’’) to the proposal to reduce the that emergency response personnel who BILLING CODE 7590±01±P number of days in which a customer would be involved in the emergency must assure delivery of the subject exercise will be involved in oversight of securities from five days to three days.1 the process for loading the storage The Commission is publishing this containers. PROSPECTIVE PAYMENT notice to solicit comments on the IV. ASSESSMENT COMMISSION proposed rule change and Amendment No. 1 from interested persons. Based upon a review of the licensee’s Meetings request for an exemption for the I. Self-Regulatory Organization’s requirement to conduct an exercise of Notice is hereby given of the meetings Statement of the Terms of Substance of the Point Beach Nuclear Plant of the Prospective Payment Assessment the Proposed Rule Change Emergency Plan in 1995, the NRC staff Commission on Tuesday and The CBOE proposes to make certain finds that performance of the 1995 Wednesday, December 12 and 13, 1995 changes to its rules relating to the utility-only annual exercise is not at the Madison Hotel, 15th & M Streets, requirement to make prior arrangements needed to achieve the underlying NW, Washington, DC, 202/862–1600. to borrow stock or to obtain other purpose of the regulation, that is, to The Full Commission will convene at assurances that delivery can be made on demonstrate that the state of emergency settlement date before a member or 9:00 a.m. on December 12, 1995, and preparedness provides reasonable person associated with a member may adjourn at approximately 5:15 p.m. On assurance that adequate protective sell short. The text of the proposed rule Wednesday, December 13, 1995, the measures can and will be taken in the change is available at the Office of the event of a radiological emergency. The meeting will convene at 8:30 a.m. and Secretary, CBOE and at the Commission. licensee has demonstrated excellent adjourn at approximately 3:30 p.m. The performance in the emergency meetings will be held in Executive II. Self-Regulatory Organization’s preparedness area. The integrated Chambers 1, 2, and 3 each day. Statement of the Purpose of, and Statutory Basis for, the Proposed Rule emergency preparedness drill in August All meetings are open to the public. of 1995 provided a good test of the Change Donald A. Young, emergency preparedness program. The In its filing with the Commission, the licensee performed a thorough critique Executive Director. CBOE included statements concerning of the drill and no deficiencies were [FR Doc. 95–29489 Filed 12–4–95; 8:45 am] the purpose of and basis for the identified during the drill. The licensee BILLING CODE 6820±BW±M proposed rule change and discussed any plans to correct weaknesses which were comments it received on the proposed identified during the drill prior to the rule change. The text of these statements 1996 full-participation exercise. may be examined at the places specified The Commission has determined, in Item IV below. The CBOE has pursuant to 10 CFR Part 50.12, that this exemption as described in Section II 1 Letter from Timothy Thompson, CBOE, to above is authorized by law, will not Michael Walinskas, SEC, dated October 31, 1995. 62274 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices prepared summaries, set forth in affirmative determination must record become operative for 30 days from Sections A, B, and C below, of the most the present location of the securities in October 31, 1995, the rule change significant aspects of such statements. question, whether they are in good proposal has become effective pursuant deliverable form and the customer’s A. Self-Regulatory Organization’s to Section 19 (b)(3)(A) of the Act and ability to deliver them to the member Rule 19b–4(e)(6) thereunder. In Statement of the Purpose of, and 3 Statutory Basis for, the Proposed Rule within three business days. If the particular, the Commission believes the Change member or person associated with a proposal qualifies as a member locates the stock, the ‘‘noncontroversial filing’’ in that the The purpose of this rule proposal is affirmative determination must record to establish procedures and rules proposed amendments do not the identity of the individual and firm significantly affect the protection of regarding the need to make prior contacted who offer assurance that the arrangements to borrow stock, warrants, investors or the public interest and do shares would be delivered or that were not impose any significant burden on or other securities that trade subject to available for borrowing by settlement competition. At any time within 60 days Chapter 30 of the Exchange’s rules, or to date and the number of shares needed of the filing of the proposed rule change, otherwise ensure availability of the to cover the short sale. The requirement subject securities before engaging in to keep a written record of each the Commission may summarily short sales. The change involves the affirmative determination serves two abrogate such rule change if it appears adoption of Interpretation .04 to Rule purposes: first, the written record allows to the Commission that such action is 30.20, ‘‘Long’’ and ‘‘Short’’ Sales. the Exchange to audit compliance with necessary or appropriate in the public Interpretation .04 is similar to rules of the Rule, and second, the written record interest, for the protection of investors, other securities exchanges 2 and would provides the member firm with or otherwise in furtherance of the require that member organizations who evidence to pursue its own resolution in purposes of the Act. effect short sales for their own account the event of a default. IV. Solicitation of Comments or for the accounts of customers to make By ensuring that securities are an affirmative determination that available for borrowing and for delivery, Interested persons are invited to delivery of the subject securities can be the Exchange believes the rule proposal submit written data, views and made on settlement date. The purpose will help to prevent situations where arguments concerning the foregoing. for this rule proposal is to ensure that there is a shortage of deliverable stock Persons making written submissions borrowings and short sales do not as well as failures to deliver. By should file six copies thereof with the outpace the supply of deliverable stock, facilitating short sales and decreasing thus, leading to potential systematic Secretary, Securities and Exchange the likelihood of a fail, the Exchange Commission, 450 Fifth Street, N.W., problems. In the case of the short selling believes the rule proposal is consistent of members’ proprietary positions, the Washington, D.C. 20549. Copies of the with Section 6(b) of the Act in general submission, all subsequent proposal is intended to address and Section 6(b)(5) in particular by amendments, all written statements unnecessary speculation in connection providing rules that facilitate with respect to the proposed rule with the short selling of broker-dealers’ transactions in securities, remove change that are filed with the proprietary positions caused by the impediments to a free and open market members’ ability to go short without and protect investors and the public Commission, and all written securities to cover the short position. interest. communications relating to the The proposed amendment, as with the proposed rule change between the rules of the other securities exchanges, B. Self-Regulatory Organization’s Commission and any person, other than would not apply to bona fide market Statement on Burden on Competition those that may be withheld from the making transactions by a member in The Exchange does not believe the public in accordance with the securities in which it is a registered proposed rule change will impose any provisions of 5 U.S.C. § 552, will be market-maker. This market-maker inappropriate burden on competition. available for inspection and copying at exemption recognizes that many short the Commission’s Public Reference C. Self-Regulatory Organization’s selling transactions are engaged in by Section, 450 Fifth Street, N.W., Statement on Comments on the market-makers to enhance market Washington, D.C. 20549. Copies of such liquidity, which is beneficial to the Proposed Rule Change Received from Members, Participants or Others filing will also be available for market and thus should not be unduly inspection and copying at the principal restricted. The Exchange has neither solicited office of the CBOE. All submissions Interpretation .04 also describes the nor received written comments on the should refer to File No. SR–CBOE–95– type of ‘‘affirmative determinations’’ proposed rule change. 59 and should be submitted by that must be obtained by the member or person associated with the member to III. Date of Effectiveness of the December 26, 1995. ensure that the securities will be Proposed Rule Change and Timing for For the Commission, by the Division of available. The member or person Commission Action Market Regulation, pursuant to delegated associated with the member is obligated Because the foregoing proposed rule authority.4 to keep a written record of each change: (1) does not significantly affect Margaret H. McFarland, ‘‘affirmative determination.’’ If a the protection of investors or the public Deputy Secretary. customer assures delivery, the written interest; (2) does not impose any [FR Doc. 95–29511 Filed 12–4–95; 8:45 am] significant burden on competition; (3) BILLING CODE 8010±01±M 2 See e.g., New York Stock Exchange (‘‘NYSE’’) was provided to the Commission for its Rule 440C (and NYSE Information Memo 91–10, review at least five business days prior Deliveries Against Short Sales, (Oct. 18, 1991)) and Interpretation of the Board of Governors of the to the filing date; and (4) does not National Association of Securities Dealers, Inc. (‘‘NASD’’), Prompt Receipt and Delivery of 3 See Amendment No. 1. This reduction from five Securities, under Article III, Section 1 of the NASD days to three days complies with the normal Rules of Fair Practice. settlement schedule for equity securities. 4 17 CFR 200.30–3(a)(12) (1994). Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62275

[Release No. 34±36522; File No. SR±MSRB± (D) a listing of the issuers with which Rule G–37. Political Contributions and 95±15] the broker, dealer or municipal Prohibitions on Municipal Securities securities dealer has engaged in Business Self-Regulatory Organizations; Notice municipal securities business, along of Filing of Proposed Rule Change by * * * * * with the type of municipal securities the Municipal Securities Rulemaking (e)(i) Each broker, dealer or municipal Board Relating to Consultants business engaged in, during the current securities dealer shall submit to the year and separate listings for each of the Board, by certified or registered mail, or November 28, 1995. previous two calendar years[. Where some other equally prompt means that Pursuant to Section 19(b)(1) of the applicable, a listing of the name, provides a record of sending, and the Securities Exchange Act of 1934 company, role and compensation Board shall make public, reports on (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is arrangement of any person employed by contributions to officials of issuers and hereby given that on September 28, the broker, dealer or municipal on payments to political parties of states 1995,1 the Municipal Securities securities dealer to obtain or detain and political subdivisions that are Rulemaking Board (MSRB’’ or ‘‘Board’’) municipal securities business with such required to be recorded pursuant to rule filed with the Securities and Exchange issuers also shall be made]; * ** G–8(a)(xvi). Such reports shall include Commission (‘‘Commission’’) the (xvii) Records Concerning Consultants information concerning the amount of proposed rule change as described in Pursuant to Rule G–38. Each broker, contributions to officials of issuers and Items I, II and III below, which Items dealer and municipal securities dealer payments to political parties of states have been prepared by the MSRB. The shall maintain: (i) A listing of the name, and political subdivisions and an Board has requested that the company, role and compensation indication of the contributor category of Commission delay the effective date of arrangement of each consultant; (ii) a each contribution or payment made by: the proposed rule change until sixty (60) copy of each Consultant Agreement *** days after the Commission’s approval referred to in rule G–38(b); (iii) a listing Such reports also shall include thereof. The Commission is publishing of the compensation paid in connection information on municipal securities this notice to solicit comments on the with each such Consultant Agreement; business engaged in and certain other proposed rule change from interested (iv) where applicable, a listing of the information specified in this section (e), persons. municipal securities business obtained as well as other identifying information I. Self-Regulatory Organization’s or retained through the activities of each as may be determined by the Board from Statement of the Terms of Substance of consultant; (v) a listing of issuers and a time to time [in accordance with Board the Proposed Rule Change record of disclosures made to such rule G–37 filing procedures]. (ii) Two copies of the [R]reports The Board proposes to amend rules issuers, pursuant to rule G–38(c), concerning each consultant used by the referred to in paragraph (i) of this G–8 2 and G–9,3 on recordkeeping and section (e) must be submitted to the record retention, rule G–27,4 on broker, dealer or municipal securities dealer to obtain or retain municipal Board on Form G–37/G–38 [in political contributions and prohibitions accordance with Board rule G–37 filing securities business with each such on municipal securities business, and procedures, quarterly with due dates issuer; and (vi) the date of termination add a new rule G–38 regarding determined by the Board,] within thirty of any consultant arrangement consultants. The Board also proposes to (30) calendar days after the end of each amend its Form G–37, and redesignate * * * * * calendar quarter (these dates it as Form G–37/G–38. (f) Compliance with Rule 17a–3. correspond to January 31, April 30, July Below is the text of the proposed rule Brokers, dealers and municipal 31 and October 31), and must include, change. Proposed new language is securities dealers other than bank in the prescribed format, by state, the italicized; proposed deletions are in dealers which are in compliance with following information on contributions brackets. rule 17a–3 of the Commission will be to each official of an issuer and Rule G–8. Books and Records To Be deemed to be in compliance with the payments to each political party of a Made by Brokers, Dealers and requirements of this rule, provided that state or political subdivision made and Municipal Securities Dealers the information required by municipal securities business engaged in during the reporting period: (A) name (a) Description of Books and Records subparagraph (a)(iv)(D) of this rule as it and title (including any city/county/ Required to be Made. relates to uncompleted transactions involving customers; paragraph (a)(viii); state or political subdivision) of each * * * * * paragraph (a)(xi); paragraph (a)(xii); official of an issuer and political party (xvi) Records Concerning Political paragraph (a)(xiii); paragraph (a)(xiv); receiving contributions or payments; (B) Contributions and Prohibitions on paragraph (a)(xv); paragraph (a)(xvi); [total number and dollar amount of Municipal Securities Business Pursuant [and] paragraph (a)(xvii); and paragraph contributions or payments made by] to Rule G–37, Records reflecting: * ** (a)(xviii) shall in any event be contribution or payment amount made and the contributor category of the 1 On November 15, 1995, the MSRB filed maintained. persons and entities described in Amendment No. 1 with the Commission. Rule G–9. Preservation of Records Amendment No. 1 was a minor technical paragraph (i) of this section (e); and (C) amendment, the text of which may be examined in (a) Records to be Preserved for Six such other identifying information the Commission’s Public Reference Room, See required by Form G–37/G–38. Such Letter from Jill C. Finder, Assistant General Years. Every broker, dealer and Counsel, MSRB, to Ethan D. Corey, Senior Counsel, municipal securities dealer shall reports also must include a list of Division of Market Regulation, Commission, dated preserve the following records for a issuers with which the broker, dealer or November 15, 1995. period of not less than six years. * ** municipal securities dealer has engaged 2 MSRB Manual, General Rules, G–8 (CCH) in municipal securities business, along ¶ 3536. (x) the records required to be with the type of municipal securities 3 MSRB Manual, General Rules, G–9 (CCH) maintained pursuant to rule G– business [and the name, company, role ¶ 3541. 8(a)(xviii). 4 MSRB Manual, General Rules, G–37 (CCH) and compensation arrangement of any ¶ 3681. * * * * * person, other than a municipal finance 62276 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices professional, employed by the broker, setting forth, at a minimum, the name, proposed rule change and discussed any dealer or municipal securities dealer to company, role and compensation comments it received on the proposed obtain or retain municipal securities arrangement of each such consultant rule change. The text of these statements business with such issuers]. (‘‘Consultant Agreement’’). Such may be examined at the places specified (f) The Board will accept additional Consultant Agreement must be entered in Item IV below. The Board has information related to contributions into before the consultant engages in prepared summaries, set forth in made to officials of issuers and any direct or indirect communication Sections (A), (B), and (C) below, of the payments to political parties of states with an issuer on behalf of the broker, most significant aspects of such and political subdivisions voluntarily dealer or municipal securities dealer. statements. submitted by brokers, dealers, or (c) Disclosure to Issuers. Each broker, municipal securities dealers or others dealer or municipal securities dealer A. Self-Regulatory Organization’s provided that such information is shall submit in writing to each issuer Statement of the Purpose of, and submitted in accordance with [Board with which the broker, dealer or Statutory Basis for, the Proposed Rule rule G–37 filing procedures] section (e) municipal securities dealer is engaging Change of this rule. or is seeking to engage in municipal Over the last few years, the Board has * * * * * securities business, information on been concerned about abuses associated [Rule G–37 Filing Procedures. Each consulting arrangements relating to with the awarding of municipal dealer is required to file two copies of such issuer, which information shall securities business. Rule G–37, which Form G–37. Each dealer is required to include the name, company, role and became effective in April 1994, file Form G–37 within thirty (30) compensation arrangement of any prohibits a dealer from engaging in calendar days after the end of each consultant used, directly or indirectly, municipal securities business with an calendar quarter. (These dates by the broker, dealer or municipal issuer within two years after any correspond to January 31, April 30, July securities dealer to attempt to obtain or contribution to an official of such issuer 31, and October 31).] retain municipal securities business made by the dealer, any municipal with each such issuer. Such information finance professional associated with the Rule G–38. Consultants shall be submitted to the issuer prior to dealer, or any political action committee (a) Definitions. the selection of any broker, dealer or controlled by the dealer or any (i) The term ‘‘consultant’’ means any municipal securities dealer in municipal finance professional.5 The person used by a broker, dealer or connection with such municipal rule also prohibits a dealer from doing municipal securities dealer to obtain or securities business. anything indirectly which would result retain municipal securities business (d) Disclosure to Board. Each broker, in a violation of the rule if done directly through direct or indirect dealer or municipal securities dealer by the dealer. For example, a violation communication by such person with an shall submit to the Board by certified or would result if a dealer engages in issuer on behalf of such broker, dealer registered mail, or some other equally municipal securities business with an or municipal securities dealer where the prompt means that provides a record of issuer after directing third parties (such communication is undertaken by such sending, and the Board shall make as consultants) to make contributions to person in exchange for, or with the public, reports of all consultants used that issuer. In addition to recording and understanding of receiving, payment by the broker, dealer or municipal disclosing political contributions, rule from the broker, dealer or municipal securities dealer during each calendar G–37 currently requires dealers to securities dealer or any other person; quarter. Two copies of the reports must record and disclose on Form G–37 those provided, however, that the following be submitted to the Board on Form G– issuers with which the dealer has persons shall not be considered 37/G–38 within thirty (30) calendar days engaged in municipal securities consultants for purposes of this rule: (A) after the end of each calendar quarter business and, where applicable, the a municipal finance professional of the (these dates correspond to January 31, name, company, role and compensation broker, dealer or municipal securities April 30, July 31, and October 31). Such arrangement of any person employed by dealer; and (B) any person whose sole reports shall include, for each the dealer to obtain or retain business basis of compensation from the broker, consultant, in the prescribed format, the with such issuers. dealer or municipal securities dealer is consultant’s name, company, role and Rule G–20, on gifts and gratuities, the actual provision of legal, accounting compensation arrangement. In addition, prohibits dealers from, directly or or engineering advice, services or such reports shall indicate the dollar indirectly, giving or permitting to be assistance in connection with the amount of payments made to each given any thing or service of value in municipal securities business that the consultant during the report period and, excess of $100 per year to any person, broker, dealer or municipal securities if any such payments are related to the other than an employee or partner of the dealer is seeking to obtain or retain. consultant’s efforts on behalf of the dealer, in relation to the municipal (ii) The term ‘‘issuer’’ shall have the broker, dealer or municipal securities securities activities of the person’s same meaning as in rule G–37(g)(ii). dealer which resulted in particular employer. All gifts given by the dealer (iii) The term ‘‘municipal finance municipal securities business, then that and its associated persons, or by professional’’ shall have the same business and the related dollar amount consultants at the direction of the meaning as in rule G–37(g)(iv). of the payment must be separately dealer, are used to compute the $100 (iv) The term ‘‘municipal securities identified. limitation and this limitation applies to business’’ shall have the same meaning * * * * * gifts and gratuities to customers, as in rule G–37(g)(vii). individuals associated with issuers, and (v) The term ‘‘payment’’ shall have II. Self-Regulatory Organization’s employees of other dealers.6 the same meaning as in rule G– Statement of the Purpose of, and 37(g)(viii). Statutory Basis for, the Proposed Rule 5 Rule G–37(b) contains de minimis exception for (b) Written Agreement. Each broker, Change certain contributions made by municipal finance professionals. dealer or municipal securities dealer In its filing with the Commission, the 6 Rule G–20(b) exempts ‘‘normal business that uses a consultant shall evidence the Board included statements concerning dealings’’ from the $100 annual limit. These consulting arrangement by a writing the purpose of and basis for the payments are defined as occasional gifts of meals Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62277

The Board believes that rules G–37 bringing municipal securities issues to such changes, the Board believes that and G–20, along with rule G–17, on fair market. The Board believes that the proposed rule effectively addresses dealing,7 set appropriate standards for disclosure of consulting arrangements concerns raised by the commenters dealer conduct in the municipal (even those that would not result in any without sacrificing the Board’s goal of securities industry. However, the Board rule violations) is necessary. making information about consultants is concerned about dealers’ increasing Furthermore, the Board believes that available to issuers and the public. use of consultants to obtain or retain disclosure requirements regarding Summary of Proposed Rule G–38 municipal securities business. While the consultants should be embodied in a Board believes that in many instances separate rule in order to highlight the Definition of Consultant the use of consultants is appropriate, it importance of this information and to Proposed rule G–38 defines also believes that, in a number of facilitate its disclosure to, and consultant as any person used by a instances, the use of consultants may be accessibility by, the municipal dealer to obtain or retain municipal in response to limitations placed on securities market and the public. securities business through direct or dealer activities by rule G–37 and rule Accordingly, the Board is proposing indirect communication by such person 8 G–20. While both of these rules new rule G–38, on consultants. At this with an issuer on the dealer’s behalf prohibit dealers from doing indirectly time, the board is not proposing any where the communication is undertaken what they are precluded from doing substantive restrictions on arrangements by such person in exchange for, or with directly, indirect activities often are between dealers and consultants. If, at a the understanding of receiving, payment difficult to prove. The Board recognizes later date, the Board learns of specific from the dealer or any other person.11 that vigorous enforcement of its rules, as dealer practices regarding the use of The definition specifically excludes well as the antifraud provisions of the consultants that it believes should be ‘‘municipal finance professionals,’’ as federal securities laws, will be effective addressed, then the Board may proceed that term is defined in rule G–37(g)(iv), in uncovering improper conduct, as with additional rulemaking in this area. because such individuals are covered by well as deterring further violations, in Background the requirements of rule G–37. The connection with municipal securities definition also excludes any person business. Notwithstanding such efforts, In April 1995, the Board published for whose sold basis of compensation from or the current rule G–37 requirement comment draft rule G–38 (‘‘April 1995 the dealer is the actual provision of legal that dealers disclose certain information Draft Rule’’).9 The April 1995 Draft Rule advice, accounting or engineering about consultant arrangements, the would have required dealers to have assistance in connection with the Board believes that additional written agreements with consultants municipal securities business that the information about such arrangements and to disclose such arrangements to dealer is seeking to obtain or retain. The should be made available to issuers and issuers and to the public through exclusion would apply, for example, to the public. Currently, the limited disclosure to the Board. It defined the a lawyer retained to conduct a legal amount of information regarding term ‘‘consultant’’ very broadly, and analysis on a particular transaction consulting arrangements and the role of included, among others, persons that contemplated by the dealer, or to review consultants in helping dealers obtain or acted as ‘‘finders’’ for municipal local regulations; an accountant retained retain municipal securities business securities business or that lobbied state to conduct a tax analysis or to scrutinize makes it difficult to determine the and local government officials. The term financial reports; or an engineer extent to which payments to consultants also included persons who engaged in retained to perform a technical review influence the issuer’s selection process legal, accounting or financial advisory or feasibility study. The exemption is in connection with municipal securities services if such persons were engaged, intended to ensure that professionals business, as well as the extent to which even in part, because they could assist who are engaged by the dealer solely to such payments increase the cost of a dealer in efforts to obtain or retain perform substantive work in connection municipal securities business with an with municipal securities business are or tickets to theatrical, sporting, and other issuer, and included persons engaged by not brought within the definition of entertainments, as well as the sponsoring of legitimate business functions that are recognized by a dealer at the request or direction of the consultant as long as their the IRS as deductible business expenses, and gifts issuer (e.g., underwriter’s counsel). compensation is in consideration of of reminder advertising. However, the rule also While most of the commenters only those professional services actually provides that such gifts can not be so frequent or responding to the April 1995 Draft Rule so expensive as to raise a suggestion of unethical conduct. supported the Board’s goal of making 11 ‘‘Person’’ is defined in Section 3(a)(9) of the 7 Rule G–17 provides that, in the conduct of its additional information on consultants Securities Exchange Act of 1934 as ‘‘a natural municipal securities business, each broker, dealer, available to the market, many expressed person, company, government, or political subdivision, agency, or instrumentality of a and municipal securities dealer shall deal fairly concern that the definition of consultant with all persons and shall not engage in any government.’’ deceptive, dishonest, or unfair practice. was too broad and included a number ‘‘Municipal securities business’’ has the same 8 For example, the Commission has charged that of categories of persons who did not meaning as in rule G–37(g)(vii), i.e., (A) the kickbacks and conflicts of interest have occurred in perform ‘‘traditional’’ consulting roles purchase of a primary offering (as defined in rule A–13(d)) of municipal securities from the issuer on connection with municipal securities offerings. In or services.10 The Board carefully one instance, the Commission alleged that dealer other than a competitive bid basis (i.e., negotiated personnel paid a large kickback to the issuer’s considered these and other concerns underwriting); (B) the offer or sale of a primary financial advisor and inflated the underwriters’ and suggestions expressed by the offering of municipal securities on behalf of any discount to fund the kickback. See SEC Litigation commenters, and adopted the proposed issuer (i.e., private placement); (C) the provision of Release No. 14421 (February 23, 1995) regarding financial advisory or consultant services to or on SEC v. Nicholas A. Rudi, Joseph C. Salema, Public rule change. Proposed rule G–38 differs behalf of an issuer with respect to a primary Capital Advisors, Inc. (formerly known as in certain respects from the April 1995 offering of municipal securities on other than a Consolidated Financial Management, Inc.), George Draft Rule, particularly with regard to competitive basis; or (D) the provision of L. Tuttle, Jr. and Alexander S. Williams. In another the definition of consultant. By making remarketing agent services to or on behalf of an instance, the SEC alleged that dealer personnel issuer with respect to a primary offering of provided loans and direct payments to an employee municipal securities on other than a competitive of an issuer that had an important role in selecting 9 MSRB Reports, Vol. 15, No. 1 (April 1995) at 3– bid basis. the underwriter. See SEC Litigation Release No. 10. ‘‘Payment’’ has the same meaning as in rule G– 14397 (January 23, 1995) regarding SEC v. Terry D. 10 A summary of these comments is discussed 37(g)(viii), i.e., any gift, subscription, loan, advance, Busbee and Preston C. Bynum. infra Section II.C. or deposit of money or anything of value. 62278 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices provided in connection with such separately identify that business and the and compensation arrangement of each municipal securities business. However, dollar amount of the payment. In consultant; (ii) a copy of each any attorney or other professional used addition, as long as the dealer continues Consultant Agreement; (iii) a listing of by the dealer as a ‘‘finder’’ for municipal to use the consultant to obtain or retain the compensation paid in connection securities business would be considered municipal securities business (i.e., has a with each Consultant Agreement; (iv) a consultant under the proposed rule. continuing arrangement with the where applicable, a listing of the consultant), the dealer must report Written Agreement municipal securities business obtained information concerning such consultant or retained through the activities of each Proposed rule G–38 requires dealers every quarter, whether or not consultant; (v) a listing of the issuers who use consultants to evidence the compensation is paid to the consultant and a record of disclosures made to consulting arrangement in writing during the reporting period. The Board such issuers concerning each consultant (referred to as a ‘‘Consultant believes that the reporting of these used by the dealer to obtain or retain Agreement’’), and that, at a minimum, continuing consulting arrangements municipal securities business with each the writing must include the name, each quarter will assist enforcement such issuer; and (vi) the date of company, role and compensation agencies and the public in their review termination of any consultant arrangement of each consultant used by of such arrangements. arrangement. The amendment to rule G– the dealer. Such written agreements For ease of compliance and reporting, 9 requires dealers to maintain these must be entered into before the the Board has determined to delete the records for a six-year period. consultant engages in any direct or current reporting requirements The Board believes the proposed rule indirect communication with an issuer regarding consultants from rule G–37. It change is consistent with Section on the dealer’s behalf. also has determined to merge the 15B(b)(2)(C) of the Act, which provides Disclosure to Issuers reporting requirements for both rules that the Board’s rules shall: into a single form—Form G–37/G–38. Proposed rule G–38 requires each Be designed to prevent fraudulent and Dealers must submit two copies of such manipulative acts and practices, to promote dealer to disclose to an issuer with reports on proposed Form G–37/G–38.12 which it is engaging or seeking to just and equitable principles of trade, to The quarterly due dates are the same as foster cooperation and coordination with engage in municipal securities business, the due dates currently required under persons engaged in regulating, clearing, in writing, information on consulting the rule G–37 (i.e., within 30 calendar setting, processing information with respect arrangements relating to that issuer. The days after the end of each calendar to, and facilitating transactions in municipal written disclosure must include, at a quarter, which corresponds to each securities, to remove impediments to and minimum, the name, company, role and January 31, April 30, July 31, and perfect the mechanism of a free and open market in municipal securities, and, in compensation arrangements with the October 31). Finally, consistent with consultant or consultants. Dealers are general, to protect investors and the public current rule G–37, dealers are required interest. required to make such written to submit these reports to the Board by disclosures prior to the issuer’s certified or registered mail, or some The proposed rule change serves a selection of any dealer in connection other equally prompt means that number of the Board’s enumerated with the municipal securities business provides a record of sending.13 The purposes, including promoting just and sought, regardless of whether the dealer Board will then make these documents equitable principles of trade, by making the disclosure ultimately is the available to the public for inspection ensuring that dealers compete for, and one to obtain or retain that business. and photocopying at its Public Access are awarded, municipal securities Thus, while dealers have an obligation Facility in Alexandria, Virginia, and for business on the basis of merit, and not to disclose their consulting review by agencies charged with political or financial influence. Such arrangements to all issuers from which enforcement of Board rules. healthy competition will act to lower they are seeking municipal securities artificial barriers to those dealers not business, they have more leeway in the Recordkeeping Requirements willing or able to hire consultants to timing of their disclosures as long as the To facilitate compliance with, and obtain or retain municipal securities disclosure is made before the issuer enforcement of, proposed rule G–38, the business, thereby maintaining the selects a dealer for the municipal Board also proposes to amend existing integrity of the municipal securities securities business sought. rules G–8 and G–9, concerning market, as well as the public trust and confidence that is essential to the long- Disclosure to the Board recordkeeping and record retention, respectively. The proposed amendments term health and liquidity of the market. Proposed rule G–38 requires dealers to rule G–8 require dealers to maintain: B. Self-Regulatory Organization’s to submit to the Board, on a quarterly (i) A listing of the name, company, role basis, reports of all consultants used by Statement on Burden on Competition the dealer. For each consultant, dealers 12 Proposed Form G–37/G–38 is included in The Board does not believe that the must report, in the prescribed format, Exhibit 3 to the proposed rule change, along with proposed rule change will impose any the consultant’s name, company, role instructions for filing the Form. In addition to the burden on competition not necessary or and compensation arrangement, as well new rule G–38 consultant reporting requirements, appropriate in furtherance of the Form G–37/G–38 includes revisions to the rule G– as the dollar amount of any payment 37 political contribution reporting requirements. purposes of the Act since the proposed made to the consultant during the Such revisions include, for each contribution, a rule change would apply equally to all quarterly reporting period. If any required notation of the category of the contributor brokers, dealers and municipal payment made during the reporting (e.g., municipal finance professional or executive securities dealers. The Board believes officer) and the amount of the contribution, as well period is related to the consultant’s as a separate section for the reporting of that the proposed rule change will efforts on the dealer’s behalf which ‘‘payments’’ to political parties distinct from improve competition in the awarding of resulted in particular municipal ‘‘contributions’’ to issuer officials. municipal securities business by securities business, whether the 13 For ease of compliance, the Board has included ensuring that dealers compete for, and the Rule G–37 Filing Procedures within the municipal securities business was language of rule G–37, and has included the Rule are awarded, such business on the basis completed during that or a prior G–38 Filing Procedures within the language of new of merit, not political or financial reporting period, then the dealer must rule G–38. influence. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62279

C. Self-Regulatory Organization’s increasing compliance costs without any deterring improper conduct in the Statement on Comments on the corresponding benefit, it will erode overall municipal securities industry. Proposed Rule Change Received from market support for the more important efforts One commenter believes that the Members, Participants, or Others to reform and improve the municipal April 1995 Draft Rule will create securities markets * * *. Changes are confusion with existing disclosure The Board received 17 comment occurring rapidly in the regulation of requirements under rule G–37, and that letters in response to its April 1995 municipal securities, and there may be any required disclosures relating to Draft Rule from the following considerable merit in allowing the market to consultant activity should be embodied commenters.14 respond to Rule G–37, the [SEC’s] 1994 Interpretive Release and similar efforts to see in the same rule.25 Thus, this A.G. Edwards & Sons, Inc. if they are effective in limiting influence commenter suggests amending rule G– American Government Financial peddling in the industry before additional 37 or, in the alternative, removing the Services Company rules are adopted.18 consultant disclosure requirements American Institute of Certified Public currently under rule G–37 and Accounts Another commenter believes that in attempting to address concerns about incorporating them into a modified Artemis Capital Group version of the April 1995 Draft Rule. Broward County, FL Finance and the possible circumvention of rules G– Administrative Services Dept. 37 and G–20, the April 1995 Draft Rule Board Response ‘‘is overly broad, mandating disclosure Chapman and Cutler In response to commenters’ concerns, Chemical Securities, Inc. about a host of professionals whose activities and terms of engagement raise the Board has modified the April 1995 Gilmore & Bell Draft Rule, particularly with regard to Goldman Sachs & Co. no legitimate specter of ‘pay-to-play’ abuses and often constitute proprietary the definition of consultant, as more Government Finance Officers fully discussed below. In addition, the and confidential business Association Board is proposing to delete from rule JP Morgan Securities Inc. arrangements.’’ 19 One commenter ‘‘strongly believes G–37 the current disclosure Morgan Stanley & Co., Inc. requirements regarding consultants and National Association of Bond Lawyers that proposed rule G–38 is not necessary’’ and argues that the rule to include all such requirements under Public Securities Association new rule G–38. The Board also is Seattle-Northwest Securities ‘‘would seriously impair and discourage proposing to replace Form G–37 with a Corporation the traditional business relationships new Form G–37/G–38, to consolidate Smith Barney Inc. among professionals in the industry dealers’ reporting requirements under Willkie Farr & Gallagher which have made the municipal securities market uniquely efficient in both rules G–37 and G–38. The Board Summary and Discussion of Comments raising capital for states and believes that, by modifying the The April 1995 Draft Rule would have localities.’’ 20 This commenter believes definition of consultant and including required dealers (1) to have written that ‘‘[i]n lieu of an additional and all disclosure requirements within a agreements with persons who are used duplicative regulatory reporting regime’’ single rule, the proposed rule effectively by a dealer for the purpose of seeking the Board should amend rule G–37 to addresses concerns raised by the to obtain or retain municipal securities ‘‘target those consulting relationships commenters, including those relating to business, and (2) to disclose such that are used for the exclusive purpose the need for a new rule, without arrangements with consultants directly of retaining or obtaining municipal sacrificing the Board’s goal of making to issuers and to the public through securities business.’’ 21 In this regard, information about consultants available disclosure to the Board. the commenter recommends that the to issuers and the public in order to Board provide a focused definition of ensure the integrity of the municipal Necessity of a New Rule consultant, as more fully discussed securities market. Certain commenters believe that the below. Definition of ‘‘Consultant’’ April 1995 Draft Rule is unnecessary One of the commenters states that, The April 1995 Draft Rule defined and should not be adopted.15 The pursuant to the requirements of rule G– ‘‘consultant’’ as any person, other than majority of commenters believe that the 37, basic information is filed with the an employee or partner of a dealer, who Board’s goals in proposing the rule can MSRB about consultants with whom a is used by a dealer for the purpose of more readily be accomplished by dealer has a business relationship.22 seeking to obtain or retain municipal amending existing rule G–37, on Thus, this commenter questions the securities business, including any political contributions and prohibitions need for the April 1995 Draft Rule, person performing services for such on municipal securities business.16 One ‘‘which will impose significant new dealer at the request or direction of an commenter states that ‘‘duplicative compliance burdens that will increase issuer. Fifteen of the 17 commenters regulation should be avoided’’ noting issuer borrower costs.’’ 23 The expressed concern over this that rules G–37 and G–20 already commenter suggests that the Board definition.26 In general, the commenters address the use of consultants by review rule G–37 and Form G–37 ‘‘to are opposed to extending the definition dealers for impermissible purposes.17 determine whether they might be to the following: This commenter states that: modified to capture additional To the extent the market sees Rule G–38 as information.’’ 24 Instead of a new rule, Professional service providers who are not a rule without a needed purpose and as the commenter favors vigorous actively engaged in assisting the underwriter enforcement of existing Board rules for to obtain or retain municipal securities 14 MSRB Reports, Vol. 15, No. 1 (April 1995) at business (e.g., an accounting firm retained to 3–10. Copies of the Notice Requesting Comment conduct a tax analysis; a certified public 18 and the comment letters received are included in Id. 19 Goldman Sachs. Exhibit 2. 25 A.G. Edwards. 15 20 PSA. Gilmore & Bell; Goldman Sachs. 26 A.G. Edwards; AICPA; Artemis; Broward 21 16 A.G. Edwards; Artemis; Broward County; Id. County; Chapman & Cutler; Chemical; GFOA; Chemical; GFOA; Gilmore & Bell; JP Morgan; PSA; 22 GFOA. Gilmore & Bell; Goldman Sachs; JP Morgan; Morgan and Smith Barney. 23 Id. Stanley; NABL; PSA; Seattle-Northwest; and Smith 17 Gilmore & Bell. 24 Id. Barney. 62280 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

accountant retained to provide audit and Lobbyists who are not acting to obtain or With respect to the definition proposed attestation services; and a law firm retained retain business (e.g., a lobbyist employed to in the April 1995 Draft Rule, this to conduct a legal analysis on a particular keep the dealer apprised of legislation that commenter argues that that definition transaction contemplated).27 could impact the dealer or its issuer Professionals designated by an issuer to clients).31 inappropriately applies to three groups provide services to the dealer (e.g., PSA recommends the following of professionals: (1) Professionals underwriter’s counsel).28 definition of consultant: designated by an issuer to provide Professional from whom a dealer seeks Any person, other than a municipal services to the dealer; (2) professionals substantive or technical advice in connection finance professional, who is employed by the from whom a dealer seeks substantive or with an issuer presentation with no intention broker, dealer or municipal securities dealer technical advice in connection with an of seeking their intercession with the issuer on an exclusive basis with respect to either issuer presentation with no intention of (e.g., engineers who perform technical an issuer or a particular transaction to obtain reviews or feasibility studies; lawyers who seeking their intercession with the or retain municipal securities business, issuer; and (3) ‘‘professionals who may review local regulations; and accountants provided that such employment (A) includes 29 who scrutinize financial reports). any direct or indirect communication with in fact recommend a broker-dealer to an Any individual retained as a consultant but the issuer by such person which is made on issuer—on the basis of substantive treated by a dealer as a municipal finance behalf of the broker, dealer or municipal professional familiarity and respect and professional (e.g., a limited partner or other securities dealer to obtain or retain such not on the expectation or promise of retired employee of the dealer).30 municipal securities business, and (B) is quid pro quo recompense.’’ Morgan undertaken with the understanding of Stanley is concerned that the Board’s 27 A.G. Edwards; PSA. PSA does not believe that receiving compensation from such broker, ‘‘persons or firms which offer other professional dealer or municipal securities dealer. definition could ‘‘cause disruptions in services commonly employed in a municipal an industry currently undergoing securities transaction should be treated as Another commenter is concerned contraction * * * [and] may lead consultants merely because a . . . dealer engages in about the Board’s definition of larger firms, with other sources of conversations or discussions with such persons or consultant because ‘‘any third party firms about concepts or ideas which might be revenue, finally to conclude that the offered to an issuer to achieve or encourage a with whom a dealer discusses any issue burden of ensuring municipal market particular financing.’’ PSA argues that the which might bear on the firm’s decision compliance outweights the benefit of definition ‘‘is so broad as to interfere with to seek business could qualify as a what, frankly, is currently a marginal traditional and appropriate methods of developing consultant. After all, since firms are in new business opportunities.’’ business for many of them.’’ Morgan 28 business to do business, they have little Artemis; GFOA; Gilmore & Bell; JP Morgan; Stanley believes the definition of Morgan Stanley; and NABL. NABL believes that the reason to talk to anyone unless it is to rule ‘‘should make clear that providers of help get business.’’ 32 This commenter consultant ‘‘should be restored to its substantive professional advice and services are not endorses PSA’s definition of consultant, common-sense meaning in the context ‘consultants’ . . . and that a law firm which is and believes that at least two factors are of the municipal securities selected as counsel to the underwriter, even if business. * * * [and] should ‘designated’ as such by the issuer, does not become relevant to the creation of a consulting a ‘consultant’ to the underwriter. . . .’’ The GFOA relationship: (1) The person will reflect * * * the two essential states that ‘‘there are many instances where issuers actively promote the underwriter—and elements of disclosable consulting make designations using merit-based criteria and it relationships in the municipal securities would not be appropriate to assume that such only that underwriter—to an issuer; and ‘designated’ persons should be treated as if they (2) the person will be compensated in business: compensation and the were used by a dealer to obtain or retain some way by the underwriter. Two proposed intercession with an issuer by business . . .’’ and that the April 1995 Draft Rule other commenters also endorse PSA’s the consultant in exchange for such should distinguish between ‘‘merit-based and 36 nonmerit-based designations.’’ Broward County proposed definition of consultant, and compensation.’’ The commenter notes shares this position. Gilmore & Bell is ‘‘not believe that it should be incorporated that its proposed definition incorporates comfortable with the entire concept of calling into rule G-37.33 Another commenter, ‘‘not only direct but also indirect issuer-designated persons ‘consultants’ to the consultant use and issuer intercession dealer. . . .’’ They believe that the ‘‘whole concept without criticizing the commenter’s of a consultant under the Rule is someone who proposed definition, recommends a and * * * [alludes] to the possibility assists the dealer in obtaining or retaining modified version thereof.34 On the other of compensation from persons other municipal securities business. In no sense is an hand, Morgan Stanley is critical of than the dealer.’’ Thus, Morgan Stanley issuer-designated representative of the dealer a 35 person who helped the dealer get the business; certain elements of PSA’s definition. recommends the following definition of rather, that issuer-designated person or firm is consultant: imposed on the dealer as a condition to contributions and gifts and gratuities, as required by Any person or entity used, directly or participating in the offering.’’ Morgan Stanley does those rules. indirectly, by a broker, dealer or municipal not believe that issuer-designated professionals 31 Seattle-Northwest. securities dealer to obtain or retain municipal should be defined as consultants. ‘‘Far from helping dealers to solicit or win business, issuer-designated 32 Smith Barney. securities business through direct or indirect professionals are all too often imposed on dealers 33 Chemical Securities; JP Morgan. intercession by such person or entity with ** *.’’ Morgan Stanley supports the disclosure of 34 Artemis recommends a version that would not the relevant municipal issuer on behalf of such relationships, and suggests removing such include the elements of exclusivity or indirect such broker, dealer or municipal securities persons from the scope of the definition and adding communication with the issuer. a disclosure requirement to a separate section of the dealer where such intercession is undertaken 35 Morgan Stanley opposes PSA’s requirement for draft rule. JP Morgan also supports the disclosure by such person or entity in exchange for, or ‘‘exclusivity’’ which ‘‘is intended to disqualify a of such relationships ‘‘once an underwriting has relationship under the definition if a putative with the understanding of receiving, payment been won, * * * but that in no way should these consultant has also been retained to solicit the same (as defined in rule G–37) from such broker, ** * professionals be deemed to be ‘consultants’ business on behalf of another firm.’’ Morgan Stanley to the dealer.’’ A.G. Edwards, on the other hand, dealer or municipal securities dealer or any does not understand ‘‘why exclusivity makes any believes that even those persons who may be other person. difference. * * * [and is concerned that] the engaged by the dealer as a ‘‘precondition’’ to phrase could be read to disqualify a consultant who obtaining an issuer’s business (e.g., underwriter’s is soliciting business from more than one issuer and consultants who are hired not with respect to counsel designated by the issuer), ‘‘are the type of a consultant hired by two dealers to solicit the same particular issuers and transactions but according to ‘consultants’ to which the disclosure rule should piece of business on their joint behalf.’’ Morgan other organizing principles: by type of transaction apply.’’ Stanley also is concerned that PSA’s proposal, (e.g., student loan deals), by type of issuer, by 29 Morgan Stanley; PSA; and Smith Barney. which would limit the definition of consultant to geographic area * * *.’’ 30 Goldman Sachs. Presumably the dealer has persons hired ‘‘with respect to either an issuer or 36 Morgan Stanley further suggests defining deemed the person to be subject to rules G–37 and a particular transaction,’’ will ‘‘inappropriately ‘‘compensation’’ to mirror the definition of G–20, and is recording information on political limit the number of consultants required to be ‘‘payment’’ under rule G–37. disclosed * * * [for example,] by excluding Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62281

Several other commenters share dealer to obtain or retain municipal Draft Rule would have provided that the Morgan Stanley’s view that securities business through direct or ‘‘Consultant Agreement’’ must indicate compensation is a relevant factor in indirect communication by such person the role to be performed by the determining the existence of a with an issuer on the dealer’s behalf consultant and the compensation consulting relationship. For example, where the communication is undertaken arrangement. One of the commenters one of the commenters does not believe by such person in exchange for, or with opposes the requirement of a written the draft rule should apply to ‘‘persons the understanding of receiving, payment agreement, arguing that it could ‘‘hinder who are merely engaged by a dealer in from the dealer or any other person. The the effective and timely rendering of connection with municipal securities definition specifically excludes legal services due to the proposed rule’s business * * * [but rather] should ‘‘municipal finance professionals,’’ as prohibition of services until the apply only to persons engaged by a that term is defined in rule G–37(g)(iv), execution of a contract. The prospect of dealer with the expectation of receiving because such individuals are covered by depriving a client of substantive legal the requirements of rule G–37. The compensation for seeking to obtain or advice for any reason, and even for a 37 definition also excludes any person retain municipal securities business.’’ modest timeframe, is by itself Another commenter believes that ‘‘a whose sole basis of compensation from troubling.’’ 42 Another commenter also dealer may ‘use’ a person in a broad the dealer is the actual provision of legal opposes this requirement, arguing that sense (and in a perfectly permissible advice, accounting or engineering whether or not a consultant and a dealer sense) without that person being a assistance in connection with the enter into a written agreement ‘‘is a consultant to the dealer in any common municipal securities business that the 38 dealer is seeking to obtain or retain. The business decision best left to the sense meaning of the word.’’ But if a 43 dealer compensates a person for services exclusion would apply, for example, to interested parties.’’ One commenter, in obtaining or retaining municipal a lawyer retained to conduct a legal while not opposed to memorializing securities business, ‘‘then obviously analysis on a particular transaction traditional consultant agreements, such person is working for the dealer contemplated by the dealer, or to review believes that the content of such and a ‘consulting’ relationship local regulations; an accountant retained agreements ‘‘is best left to private exists. * * *’’ 39 In this regard, the to conduct a tax analysis or to scrutinize negotiation between the parties, and not commenter argues that, at a minimum, financial reports; or an engineer subject to any specific regulatory the definition of consultant should retained to perform a technical review strictures.’’ 44 Another commenter include any person who is paid or or feasibility study. The exemption is shares this view.45 compensated (rather than ‘‘used’’) by a intended to ensure that professionals A number of commenters are dealer for the purpose of seeking to who are engaged by the dealer solely to concerned about the timing of the obtain or retain municipal securities perform substantive work in connection requirement of a written agreement. One business. Another commenter notes that with municipal securities business are commenter ‘‘strongly objects’’ to the such compensation ‘‘can take various not brought within the definition of requirement that a written agreement be forms, such as payment of a finder’s fee, consultant as long as their in place before using the services of a percentage of revenues or fees earned compensation is in consideration of professional service providers, such as only those professional services actually on the transaction, a fee for services in lawyers, accountants, and printers, and provided in connection with such excess of the industry standard for such believes that such a requirement ‘‘will municipal securities business. However, services, and political contributions.’’ 40 disrupt traditional and legitimate One of the commenters believes the any attorney or other professional used by the dealer as a ‘‘finder’’ for municipal business relationships and impede the definition should extend to private ability of dealers to respond to issuer’s entities that construct or develop securities business would be considered a consultant under the proposed rule. needs, particularly in the case of ad-hoc facilities from the proceeds of municipal inquiries from issuers in response to financings, including nursing home and Also, in response to certain commenters’ concerns, the Board has which dealers routinely make use of retirement center projects, housing professional providers such as lawyers issues, and land-based development eliminated ‘‘issuer-designated’’ or accountants.’’ 46 Another commenter financings.41 This commenter believes professionals from the definition of states that ‘‘it would be a legal and that ‘‘it is quite common for such consultant. The Board agrees with these logistical nightmare if every firm was private parties, after making large commenters that persons who are required to enter into a contract with the political contributions, to bring their engaged by a dealer at the request or entire universe of persons and entities own finance teams, including direction of the issuer (e.g., who provide information to underwriters, onto the scene and to underwriter’s counsel) are not, in fact, pressure issuers to use those consultants because they do not assist underwriters in the normal course of the dealer in obtaining or retaining teams. * * * [t]hus, the private parties business. It would be much less municipal securities business. However, can be viewed as acting on behalf of the burdensome—though still in our view the Board continues to believe that the underwriters. * * * ’’ an unnecessary intrusion into business subject of issuer involvement in the relationships—to limit the requirement Board Response underwriting process merits review, and of a written agreement to those In response to the commenters’ will address this subject, including the situations in which the firm is retaining concerns over the definition of question of requiring disclosure of a third party to promote the firm to an consultant in the April 1995 Draft Rule, issuer-designated persons, at a future issuer for a fee or other the proposed rule now defines time. compensation.’’ 47 consultant as any person used by a Requirement of a Written Agreement 42 Goldman Sachs. 37 A.G. Edwards. The April 1995 Draft Rule would have 43 PSA. 38 Gilmore & Bell. required dealers to have written 44 A.G. Edwards. 39 Id. agreements with their consultants before 45 Chemical Securities. 40 Artemis. the consultants could provide any 46 A.G. Edwards. 41 American Government Financial Services. services on their behalf. The April 1995 47 Smith Barney. 62282 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

Other commenters support the Agreement in connection with an effort be performed by the consultant.57 requirement of a written agreement.48 to obtain or retain municipal securities Furthermore, the commenter believes One of these commenters believes such business with that issuer, along with the that certain information, such as the a requirement represents a way of basic terms of the Consultant details of the compensation discouraging the hiring of consultants Agreement. The April 1995 Draft Rule arrangement, should remain solely for their personal or political required dealers to make such confidential. influence with issuers.49 However, this disclosures when they become involved Another commenter believes that commenter conditions its support on in the issuer’s process for selecting a disclosure to the public is of greater the Board limiting the definition of dealer for municipal securities business, importance than disclosure to issuers; consultant.50 whether or not the issuer requests such ‘‘[i]ssuers are aware of the activities of information in a Request for Proposal. consultants; the public often is not. The Board Response Most commenters agree that most powerful tool for preserving the The requirement of a written disclosure to issuers of consulting integrity of the market is the public agreement embodied in proposed rule arrangements is appropriate. However, disclosure by the MSRB of the G–38 is similar to the April 1995 Draft one of these commenters believes that consulting relationships reported to Rule, and requires dealers who use the timing of the disclosure requires it.’’ 58 However, the commenter believes consultants to evidence the consulting clarification.51 This commenter notes that consultants hired on the dealer’s arrangement in writing (referred to as a that financing ideas frequently are initiative should be disclosed to an ‘‘Consultant Agreement’’). At a discussed informally prior to the issuer and the Board ‘‘only when (i) the minimum, the writing must include the beginning of ‘‘the issuer’s selection issuer is engaged in a formal process of name, company, role and compensation process,’’ and that it would be either reviewing its underwriting arrangement of each consultant used by ‘‘imprudent to stifle’’ such discussion.52 relationships or placing a specific piece the dealer. Such written agreements Similarly, another commenter supports of debt and (ii) the dealer is actually must be entered into before the disclosure to issuers, but is concerned selected for the program or the specific consultant engages in any direct or that the timing of such disclosures ‘‘is underwriting.’’ 59 The commenter states indirect communication with an issuer too vague.’’ 53 This commenter believes that ‘‘this two-part test will result in on the dealer’s behalf. Although certain that ‘‘it is sufficient to require that the meaningful information regarding the commenters were opposed to the disclosure be made at least prior to a actual involvement of consultants in requirement of a written agreement, the dealer’s acceptance of business from an completed municipal finance Board believes that this requirement is issuer, on the theory that at that time the transactions being made available.’’ 60 necessary to ensure that dealers are issuer is still in a position to rescind the Another commenter also is concerned aware of arrangements that their branch award of business if the disclosed facts about disclosure reaching the public offices or local personnel may have with are sufficiently unpalatable.’’ 54 The domain, and states that any disclosure consultants. The requirement also will commenter also believes that ‘‘[l]imiting to issuers should be made to their assist dealers in developing mechanisms the disclosure obligation to consultants governing bodies ‘‘for inclusion in the to monitor such arrangements, and will with whom the dealer has already publicly available records thereof’’ assist enforcement agencies to inspect entered into an agreement * * * would otherwise the goal of public disclosure for compliance with rule G–38. With seem to create unnecessary timing of consultant relationship can easily be regard to commenters’ concern over the issues as well as unnecessary frustrated.61 timing of this requirement (i.e., that a opportunities for manipulation.’’ 55 Board Response written agreement must be entered into Accordingly, the commenter proposes before the consultant provides any extending the disclosure requirement to In response to commenters’ concerns, services on behalf of the dealer), the all consultants used by the dealer in particularly over timing, the Board has Board believes that by limiting the connection with the relevant issuer or modified the proposed rule’s scope of the definition of consultant (as the relevant securities offering, requirement concerning disclosure of discussed above) and by revising the regardless of the status of the written consulting arrangements to issuers. timing of the agreement (i.e., before any agreement between them. Proposed rule G–38 now requires each communication by the consultant with One of the commenters believes that dealer to disclose to an issuer with an issuer on the dealer’s behalf), it has the disclosure of consultant which it is engaging or seeking to ameliorated many, if not all, of these relationships should only be made upon engage in municipal securities business, concerns. the request of the issuer, and notes that in writing, information on consulting Disclosure of Consulting Arrangements issuers can include a request for such arrangements relating to such issuer. to Issuers information in their Request for The written disclosure must include, at Proposal and that if the issuer wants a minimum, the name, company, role The April 1995 Draft Rule would have additional information, it can simply and compensation arrangement with the required dealers to disclose to issuers in ask the dealer for further details.56 The consultant or consultants. Dealers are writing all consultants with which they commenter also believes that ‘‘a specific required to make such written have entered into a Consultant description of a consultant’s role is disclosures no later than the issuer’s selection of any dealer in connection 48 difficult to set forth at the onset of a Artemis; Morgan Stanley. with the municipal securities business 49 Morgan Stanley. relationship’’ and therefore disclosure of 50 In its Request for Comments, the Board asked a consultant relationship should include sought, regardless of whether the dealer whether it should require that all written only a general description of the role to making the disclosure ultimately is the agreements with consultants be approved by the one to obtain or retain that business. head of the dealer’s municipal finance group and 51 PSA. Artemis shares this view. the general counsel’s office. Morgan Stanley 52 PSA. 57 Id. supports such a requirement, while Chemical 53 58 ‘‘believes it is not beneficial or necessary. . . .’’ Morgan Stanley. JP Morgan. Artemis supports a requirement that the agreement 54 Id. 59 Id. be approved by the head of the municipal finance 55 Id. 60 Id. group. 56 Chemical Securities. 61 Willkie Farr. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62283

Thus, while dealers have an obligation of rule G–37.62 In the alternative, two of and to note when any such arrangement to disclose their consulting these commenters suggest removing the has concluded * * *. However, if the arrangements to all issuers from which disclosure requirements from rule G–37 compensation arrangements remain the they are seeking municipal securities and incorporating them into a modified same * * * [the commenter business, they have more leeway in the version of the April 1995 Draft Rule.63 recommends] that dealers not be timing of their disclosures as long as the One such commenter believes that required to restate these terms disclosure is made before the issuer ‘‘consolidation and combination is quarterly.’’ 72 selects a dealer for the municipal sensible not only from an administrative securities business sought. However, the and compliance point of view but will Board Response Board cautions dealers that the time help ensure * * * consistency in The proposed rule’s requirement period set forth in the proposed rule terminology and interpretation in this concerning disclosure to the Board is represents the last possible opportunity complex area.’’ 64 similar to the April 1995 Draft Rule. The to comply with the disclosure Another commenter notes that rule G– proposed rule requires dealers to submit requirement, and therefore strongly 37 currently requires disclosure of to the Board, on a quarterly basis, recommends that dealers make such consulting relationships if business is reports of all consultants used by the disclosures as early as possible. For obtained or retained, i.e., ‘‘after the dealer. For each consultant, dealers example, a dealer seeking certain fact.’’ 65 This commenter believes that must report, in the prescribed format, municipal securities business may not the public would benefit if information the consultant’s name, company, role be aware of the issuer’s selection of were available ‘‘before a piece of and compensation arrangement, as well another dealer for that business. So too, business was awarded or a transaction as the dollar amount of any payment an issuer may select a pool or group of completed’’ and thus recommends that made to the consultant during the dealers from which the issuer intends to dealers be required to report all quarterly reporting period. If any choose underwriters for particular consulting relationships entered into by payment made during the reporting issues over the next few years. If a (or ongoing with) firms during quarterly period is related to the consultant’s dealer has used a consultant to help reporting periods, regardless of whether efforts on the dealer’s behalf which secure any of this business, the Board business is obtained during that resulted in particular municipal believes that dealers should make their reporting period.66 Similarly, another securities business, whether the required disclosures to issuers as soon commenter believes that dealers should municipal securities business was as possible to ensure that the disclosure be required to report all consultant completed during that or a prior is received by the issuer prior to the arrangements whether or not such reporting period, then the dealer must selection of any dealer for the municipal arrangements result in the awarding of separately identify that business and the securities business. business to the dealer.67 And another dollar amount of the payment. In commenter also supports disclosure of Disclosure of Consulting Arrangements addition, as long as the dealer continues ‘‘all existing business consulting to use the consultant to obtain or retain to the Public Through Disclosure to the arrangements * * * whether or not they Board municipal securities business (i.e., has a have resulted in a particular transaction. continuing arrangement with the The April 1995 Draft Rule would have * * *’’ 68 This commenter further consultant), the dealer must report required a dealer to submit reports to suggests that ‘‘such ‘bulk disclosure’ be information concerning such consultant the Board of all consultants with which organized by reference to the every quarter, whether or not the dealer entered into Consultant jurisdictions (from largest to smallest) in compensation is paid to the consultant Agreements, not just those consultants which each consultant is directly or during the reporting period. The Board that are connected with particular indirectly employed to operate and, if believes that the reporting of these municipal securities business awarded applicable, to the issuers with which continuing consulting arrangements during the reporting period (i.e., as such consultant is employed, directly or each quarter will assist enforcement 69 currently required under rule G–37). indirectly, to intercede.’’ Finally, the agencies and the public in their review These reports would have been commenter supports linking particular of such arrangements. submitted on Form G–38 on a quarterly consulting relationships with particular As recommended by certain basis, within one month after the end of transactions in order to avoid ‘‘a commenters, the Board has determined, each calendar quarter. Form G–38 blizzard of accurate but general for ease of compliance and reporting, to would have required dealers to list the information [that] could conceal more delete the current reporting 70 names of all consultants and complete than it reveals.’’ requirements regarding consultants from for each consultant an Attachment to One of the commenters suggests that rule G–37. It also has determined to Form G–38 that provides in the dealers be required to report ‘‘a merge the reporting requirements of prescribed format the consultant’s continuing arrangement, rather than both rules G–37 and G–38 into a single company, the role to be performed by 71 report it repeatedly, each quarter.’’ form—Form G–37/G–38. Dealers must the consultant, and the compensation Another commenter ‘‘believes that submit two copies of such reports on arrangement. Dealers also would have dealers should be required to list proposed Form G–37/G–38.73 The been required to report all dollar continuing arrangements each quarter quarterly due dates are the same as the amounts paid to each consultant during due dates currently required under rule the reporting period and, if any amounts 62 A.G. Edwards; Artemis; Chemical; GFOA; PSA; G–37 (i.e. within 30 calendar days after paid were connected with particular and Smith Barney. 63 the end of each calendar quarter, which municipal securities business, such A.G. Edwards; Morgan Stanley. 64 corresponds to each January 31, April issue and the amount paid would have Morgan Stanley. 65 Smith Barney. 30, July 31, and October 31). Finally, been separately identified. 66 A number of commenters believe that Id. consistent with current rule G–37, 67 Chemical Securities. disclosures to the Board should be 68 Morgan Stanley. 72 merged with the reporting requirements Artemis. 69 Id. 73 Proposed Form G–37/G–38 is included in 70 Id. Exhibit 3 to the proposed rule change, along with 71 Chemical Securities. instructions for filing the Form. 62284 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices dealers are required to submit these concerning whether the proposed rule registration on the Pacific Stock reports to the Board by certified or change is consistent with Section Exchange Incorporated (‘‘PSE’’). registered mail, or some other equally 15(b)(2)(C) of the Act, commentators The reasons alleged in the application prompt means that provides a record of address whether the proposed definition for withdrawing the Securities from sending.74 The Board will then make of consultant needs to be amended to listing and registration include the these documents available to the public encompass instances in which third following: for inspection and photocopying at its parties initiate contact with prospective According to the Company, it cannot Public Access Facility in Alexandria, underwriters to offer their services in justify the direct and indirect costs and Virginia, and for review by agencies obtaining or retaining municipal expenses attendant to maintaining the charged with enforcement of Board securities business through direct or dual listing of the Securities on the rules. indirect communications by such American Stock Exchange, Inc. (‘‘AMEX’’) and on the PSE. The Recordkeeping Requirements person with an issuer official. Persons making written submissions should file Company is paying $2,000.00 per year To facilitate compliance with, and six copies thereof with the Secretary, to maintain its listings on the PSE with enforcement of, proposed rule G–38, the Securities and Exchange Commission, no significant benefit to its Board also proposes to amend existing 450 Fifth Street, NW., Washington, DC shareholders. The Company believes rules G–8 and G–9, concerning 20549. Copies of the submissions, all that a single listing on the Amex will be recordkeeping and record retention, subsequent amendments, all written sufficient to serve the needs of its respectively. The proposed amendments statements with respect to the proposed shareholders. to rule G–8 require dealers to maintain: rule change that are filed with the Any interested person may, on or (i) A listing of the name, company, role Commission, and all written before December 19, 1995, submit by and compensation arrangement of each communications relating to the letter to the Secretary of the Securities consultant; (ii) a copy of each proposed rule change between the and Exchange Commission, 450 Fifth Consultant Agreement; (iii) a listing of Commission and any person, other than Street, N.W., Washington, D.C. 20549, the compensation paid in connection those they may be withheld from the facts bearing upon whether the with each Consultant Agreement; (iv) public in accordance with the application has been made in where applicable, a listing of the provisions of 5 U.S.C. 552, will be accordance with the rules of the municipal securities business obtained available for inspection and copying in exchanges and what terms if any, or retained in connection with each the Commission’s Public Reference should be imposed by the Commission Consultant Agreement; (v) a listing of Room. Copies of the filing will also be for the protection of investors. The the issuers and a record of disclosures available for inspection and copying at Commission, based on the information made to such issuers concerning the Board’s principal offices. All submitted to it, will issue an order consultants used by the dealer to obtain submissions should refer to File No. granting the application after the date or retain municipal securities business SR–MSRB–95–15 and should be mentioned above, unless the with each such issuer; and (vi) the date submitted by December 26, 1995. Commission determines to order a of termination of any consultant hearing on the matter. arrangement. The amendment to rule For the Commission by the Division of G–9 requires dealers to maintain these Market Regulation, pursuant to delegated For the Commission, by the Division of records for a six-year period. authority, 17 U.S.C. 200.30–3(a)(12). Market Regulation, pursuant to delegated Margaret H. McFarland, authority. III. Date of Effectiveness of the Deputy Secretary. Jonathan G. Katz, Proposed Rule Change and Timing for [FR Doc. 95–29513 Filed 12–4–95; 8:45 am] Secretary. Commission Action BILLING CODE 8010±01±M [FR Doc. 95–29512 Filed 12–4–95; 8:45 am] Within 35 days of the date of BILLING CODE 8010±01±M publication of this notice in the Federal Register or within such longer period (i) [File No. 1±3779] As the Commission may designate up to SMALL BUSINESS ADMINISTRATION 90 days of such date if it finds such Issuer Delisting; Notice of Application [Declaration of Disaster Loan Area #2821] longer period to be appropriate and to Withdraw From Listing and publishes its reasons for so finding, or Registration; San Diego Gas & Electric Alaska; Declaration of Disaster Loan (ii) as to which the self-regulatory Company, (5.0% Cumulative Preferred, Area organization consents, the Commission $20 Per Value, 4.5% Cumulative will: (A) By order approve such Preferred Stock, $20 Par Value, 4.4% Kenai Peninsula Borough and the proposed rule change, or (B) institute Cumulative Preferred Stock, $20 Par contiguous areas of Lake and Peninsula proceedings to determine whether the Value, Cumulative Preferred Stock, Borough, Matanuska-Susitna Borough, proposed rule change should be $7.20 Series, No Par Value, Cumulative the Municipality of Anchorage, the disapproved. Preferred Stock, $1.82 Series, No Par Chugach Regional Education Attendance Area and the Iditarod IV. Solicitation of Comments Value) Regional Education Attendance Area in Interested persons are invited to November 28, 1995. the State of Alaska constitute a disaster submit written data, views, and San Diego Gas & Electric Company area as a result of damages caused by arguments concerning the foregoing. (‘‘Company’’) has filed an application flooding which occurred from The Commission requests that, in with the Securities and Exchange September 18 through September 24, addition to any general comments Commission (‘‘Commission’’), pursuant 1995. Applications for loans for to Section 12(d) of the Securities physical damages as a result of this 74 For ease of compliance, the Board has included Exchange Act of 1934 (‘‘Act’’) and Rule disaster may be filed until the close of the Rule G–37 Filing Procedures within the language of rule G–37, and has included the Rule 12d2-2(d) promulgated thereunder, to business on January 29, 1996, and for G–38 Filing Procedures within the language of new withdraw the above specified securities economic injury until the close of rule G–38. (‘‘Securities’’) from listing and business on August 28, 1996, at the Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62285 address listed below: U.S. Small Description: Application of Horizon SUPPLEMENTARY INFORMATION: This Business Administration, Disaster Area Air Industries, Inc. d/b/a Horizon Air notice announces that the FAA has 4 Office, P.O. Box 13795, Sacramento, pursuant to 49 U.S.C. Section 41102, given its overall approval to the noise CA 95853–4795 or other locally applies for a certificate of public compatibility program for Southwest announced locations. convenience and necessity authorizing Florida International Airport, effective The interest rates are: service between any point in the United November 13, 1995. States and any point in Canada, subject Under Section 104(a) of the Aviation Per- however to the restrictions on service to Safety and Noise Abatement Act of 1979 cent Toronto, Montreal and Vancouver (hereinafter referred to as ‘‘the Act’’), an contained in the most recent bilateral air airport operator who has previously For Physical Damage: submitted a noise exposure map may Homeowners With Credit Avail- service treaty between the United States able Elsewhere ...... 8.000 and Canada. submit to the FAA a noise compatibility Homeowners Without Credit Avail- Myrna F. Adams, program which sets forth the measures able Elsewhere ...... 4.000 Acting Chief, Documentary Services Division. taken or proposed by the airport Businesses With Credit Available operator for the reduction of existing [FR Doc. 95–29500 Filed 12–04–95; 8:45 am] Elsewhere ...... 8.000 noncompatible land uses and Businesses and Non-Profit Orga- BILLING CODE 4910±62±P prevention of additional noncompatible nizations Without Credit Avail- land uses within the area covered by the able Elsewhere ...... 4.000 Federal Aviation Administration noise exposure maps. The Act requires Others (Including Non-Profit Orga- such programs to be developed in nizations) With Credit Available consultation with interested and Elsewhere ...... 7.125 Approval of Noise Compatibility For Economic Injury: Program, Southwest Florida affected parties including local Businesses and Small Agricultural International Airport, Ft. Myers, FL communities, government agencies, Cooperatives Without Credit airport users, and FAA personnel. Available Elsewhere ...... 4.000 AGENCY: Federal Aviation Each airport noise compatibility Administration, DOT. program developed in accordance with The number assigned to this disaster ACTION: Notice. Federal Aviation Regulations (FAR) Part for physical damage is 282106 and for 150 is a local program, not a Federal economic injury the number is 868700. SUMMARY: The Federal Aviation program. The FAA does not substitute its judgment for that of the airport Catalog of Federal Domestic Assistance Administration (FAA) announces its Program Nos. 59002 and 59008. findings on the noise compatibility proprietor with respect to which measure should be recommended for Dated: November 28, 1995. program submitted by the Lee County Port Authority under the provisions of action. The FAA’s approval or Philip Lader, Title I of the Aviation Safety and Noise disapproval of FAR Part 150 program Administrator. Abatement Act of 1979 (Pub. L. 96–193) recommendations is measured [FR Doc. 95–29525 Filed 12–4–95; 8:45 am] and 14 CFR Part 150. These findings are according to the standards expressed in BILLING CODE 8025±01±P made in recognition of the description Part 150 and the Act, and is limited to of Federal and nonfederal the following determinations: responsibilities in Senate Report No. a. The noise compatibility program DEPARTMENT OF TRANSPORTATION 96–52 (1980). On November 21, 1994, was developed in accordance with the the FAA determined that the noise provisions and procedures of FAR Part Notice of Applications for Certificates exposure maps submitted by the Lee 150; of Public Convenience and Necessity Country Port Authority under Part 150 b. Program measures are reasonably and Foreign Air Carrier Permits Filed were in compliance with applicable consistent with achieving the goals of Under Subpart Q During the Week requirements. On May 17, 1995, the reducing existing noncompatible land Ending September 15, 1995 FAA determined that the revised future uses around the airport and preventing noise exposure map was in compliance the introduction of additional The following Applications for with applicable requirements. On noncompatible land uses; Certificates of Public Convenience and November 13, 1995, the Administrator c. Program measures would not create Necessity and Foreign Air Carrier approved the Southwest Florida an undue burden on interstate or foreign Permits were filed under Subpart Q of International Airport noise commerce, unjustly discriminate against the Department of Transportation’s compatibility program. All of the types or classes of aeronautical users, Procedural Regulations (See 14 CFR recommendations of the program were violate the terms of airport grant 302.1701 et. seq.). The due date for approved. agreements, or intrude into areas Answers, Conforming Applications, or preempted by the Federal government; Motions to modify Scope are set forth EFFECTIVE DATE: The effective date of the and below for each application. Following FAA’s approval of the Southwest d. Program measures relating to the the Answer period DOT may process the Florida International Airport noise use of light procedures can be application by expedited procedures. compatibility program is November 13, implemented within the period covered Such procedures may consist of the 1995. by the program without derogating adoption of a show-cause order, a FOR FURTHER INFORMATION CONTACT: safety, adversely affecting the efficient tentative order, or in appropriate cases Mr. Tommy J. Pickering, P.E., Federal use and management of the navigable a final order without further Aviation Administration, Orlando airspace and air traffic control systems, proceedings. Airports District Office, 9677 Tradeport or adversely affecting other powers and Docket Number: OST–95–634. Drive, Suite 130, Orlando, Florida responsibilities of the Administrator Date filed: September 11, 1995. 32827–5397, (407) 648–6583, Extension prescribed by law. Due Date for Answers, Conforming 29. Documents reflecting this FAA Specific limitations with respect to Applications, or Motion to Modify action may be reviewed at this same FAA’s approval of an airport noise Scope: October 9, 1995. location. compatibility program are delineated in 62286 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

FAR Part 150, Section 150.5. Approval noise exposure maps were determined deemed to be an approval of such is not a determination concerning the by FAA to be in compliance with program. acceptability of land uses under Federal, applicable requirements on November The submitted program contained state, or local law. Approval does not by 21, 1994. The revised future noise map fifteen (15) proposed actions for noise itself constitute an FAA implementing was determined by FAA to be in mitigation on and off the airport. The action. A request for Federal action or compliance with applicable FAA completed its review and approval to implement specific noise requirements on May 17, 1995. Notice of determined that the procedural and compatibility measures may be these determinations was published in substantive requirements of the Act and required, and an FAA decision on the the Federal Register. FAR Part 150 have been satisfied. The decision on the request may require an overall program, therefore, was environmental assessment of the The Southwest Florida International approved by the Administrator effective proposed action. Approval does not Airport study contains a proposed noise November 13, 1995. constitute a commitment by the FAA to compatibility program comprised of The noise compatibility program, financially assist in the implementation actions designed for phased pages VII–1 through VII–4, incorporate of the program nor a determination that implementation by airport management by reference all of the noise all measures covered by the program are and adjacent jurisdictions from the date compatibility program measures eligible for grant-in-aid funding from the of study completion to the year 2000. It previously approved by the FAA in FAA. Where Federal funding is sought, was requested that FAA evaluate and 1990. A copy of the FAA’s 1990 Record requests for project grants must be approve this material as a noise of Approval is included as Appendix H submitted to the FAA Airports District compatibility program as described in to this noise compatibility program. The Office in Orlando, Florida. Section 104(b) of the Act. The FAA airport operator proposes to maintain as The Lee County Port Authority began its review of the program on May effective all previously approved submitted to the FAA on November 7, 17, 1995, and was required by a measures except a modification to 1994, the noise exposure maps, provision of the Act to approve or reduce thrust on departures (page VII– descriptions, and other documentation disapprove the program within 180-days 2). produced during the noise compatibility (other than the use of new flight Out right approval was granted for all planning study conducted from January procedures for noise control). Failure to of the specific program controls. The 1994 through April 1995. The approve or disapprove such program approval action was for the following Southwest Florida International Airport within the 180-day period shall be program controls:

OPERATIONAL MEASURES

Operational con- trol No. Description NCP pages

1 ...... The Alico One SID is recommended to continue. Adjustments to account for drift pgs. VII±2 to VII±6; Exhibit 17; Tables 11 should be made by ATC to avoid drift into residential communities. FAA Action: & 12; and Appendix G. Approved. 2 ...... It is recommended that once a full Stage 3 fleet occurs at the Airport, destination pgs. VII±2 to VII±6; Exhibit 17; Tables 11 turns related to the Alico One SID should not begin until the aircraft reach an al- & 12; and Appendix G. titude of 4,000 feet to increase use of the Alico Corridor and increase altitude over residential areas. FAA Action: Approved. 3 ...... In ATC's upcoming airspace evaluation, include in the evaluation the directing of pgs. VII±6 to VII±7; Exhibit 17; Tables 11 commuter aircraft departing on Runway 24 to northern destinations to turn over & 12; and Appendix G. I±75 to reduce noise over residential areas north of the Alico Corridor. In the in- terim, use the Alico Corridor as much as possible for commuter departures. FAA Action: Approved. 4 ...... Establish a 1,600 foot minimum altitude to be maintained over the outer marker pgs. VII±7 to VII±8 and Table 12. for IFR arrivals to Runway 6. This will maintain altitude over residential areas. FAA Action: Approved. 5 ...... It is recommended that the Airport maintain the current ILS approach until the pgs. VII±7 to VII±9 and Table 12. GPS is available. At that time, the GPS should be analyzed for possible imple- mentation of GPS arrival procedures. This will provide for future flexibility in re- ducing arrival noise by avoiding densely developed residential areas. FAA Ac- tion: Approved. 6 ...... Eliminate the close-in turn for departures off Runway 6 to reduce impacts on pgs. VII±8 to VII±9; Exhibit 17; and Ta- Gateway Elementary School by having ATC tower personnel delay switching to bles 11 & 12. departure control until aircraft have cleared the northeast end of the Runway. FAA Action: Approved. 7 ...... It is recommended that the ``distant'' procedures for departures from RSW be im- pg. VII±10 and Table 12. plemented consistent with FAA Advisory Circular No. 91±53A, Noise Abatement Departure Profiles. FAA Action: Approved. 8 ...... When operating simultaneous departures, divergence should occur on Runways pgs. VII±10 and VII±11. 6L and 24L to maximize the use of noise abatement procedures. With the pro- posed divergence, departures on Runway 6 would continue to follow noise abatement turns north of Gateway. FAA Action: Approved. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62287

LAND USE MEASURES

Land use control measure No. Description NCP pages

1 ...... This measure is recommended to provide for noise and avigation easements over pgs. VII±12 to ±13, VII±25 to ±26, VII±33 property within the extended Airport Noise Overlay Zones 2 and 3 to be dedi- to ±34, VII±40 to ±42 & VII±44 to ±45; cated to Lee County for any use permitted by these zoning codes. This results Exhibits 16, 20 & 21; and Table 13. in notification to those proposing future development within the Noise Overlay Zones and will provide protection to the airport from development near the air- port. FAA Action: Approved. 2 ...... It is recommended that Noise Overlay Zones 2 and 3 be extended in the Airport pgs. VII±12 to ±13, VII±17, VII±25 to vicinity based on the 1999 (with parallel runway and runway extensions) NEM. ±26, VII±40 to ±46; Exhibits 16, 20 & Zone 2 and Zone 3 consists of those areas of land encompassed by the 60 21; and Table 13. DNL and 65 DNL respectively. No mobile homes are permitted in Zone 2. Zone 3 does not allow homes, churches, libraries, schools, hospitals, correctional in- stitutions or nursing homes in the area. This will help promote future land use compatibility development in new areas in Lehigh Acres, Timber Trails and south of Alico Road, will extend protection within Alico Corridor, and will assist in the implementation of Land Use Control Measures 1 and 4. Noise Overlay Zones in Southeast Gateway should be maintained. FAA Action: Approved. 3 ...... It is recommended that current and future land use designations in the Lee Plan pgs. VII±12 to ±16, VII±41, VII±43 & VII± be maintained within the Alico Corridor and Timber Trails areas. This will main- 45, Exhibits 14 & 21; and Table 13. tain areas for future compatible development (Alico Corridor) and effectively dis- courage incompatible residential development (Timber Trails). FAA Action: Ap- proved. 4 ...... It is recommended that the building code be amended to provide the property pgs. VII±14 to ±15, VII±37 to ±38 & VII± owner with optional sound attenuation specifications for new dwellings located 44 to ±45; and Table 13. with the boundary of Noise Overlay Zone 3. This will address noise impacts on new noise sensitive uses that are vested and can be constructed in both the Alico Corridor and Timber Trails areas. FAA Action: Approved The FAA strongly discourages any new noncompatible construction within the DNL 65 dB noise contour. Any new construction within this noise contour may not be eligible for Federal funding for airport noise mitigation.. 5 ...... It is recommended that the Lee Plan Future Land Use Designation be amended to pgs. VII±17, VII±26 to ±32 and VII±42 to designate an area south of Alico Road and immediately east and west of I±75 ±43; Exhibits 14 & 20; and Table 13. for Industrial Commercial use (University spin-off area). This will promote land use compatibility and allow for a more logical and cohesive development in an area that will experience aircraft overflights and noise from the proposed new parallel runway. FAA Action: Approved. 6 ...... It is recommended that the Lee County Zoning regulations be amended to support pgs. VII±17, VII±21 to 25 and VII±42; commercial use zoning in areas south of Alico Road and immediately east and Exhibits 15 & 20; and Table 13. west of I±75. This will ensure that residential development does not occur in areas that will be subject to overflights and sideline noise from the proposed new parallel runway. FAA Action: Approved. 7 ...... It is recommended that information regarding noise exposure in the vicinity of the pgs. VII±34 to ±35 & VII±46; and Table Airport and sample disclosure statements be distributed to all real estate agents 13. in the area. This will provide the agents with a written notice of a property's lo- cation relative to the Airport and certain aircraft noise levels that may be incom- patible with residential and other noise-sensitive land uses. The dissemination of this information may also enhance the Airport's position in the event of legal action. FAA Action: Approved.

These determinations are set forth in [Summary Notice No. PE±95±43] dispositions of certain petitions detail in a Record of Approval endorsed previously received, and corrections. by the Administrator on November 13, Petitions for Exemption; Summary of The purpose of this notice is to improve Petitions Received; Dispositions of 1995. The Record of Approval, as well the public’s awareness of, and Petitions Issued as other evaluation materials and the participation in, this aspect of FAA’s documents comprising the submittal, AGENCY: Federal Aviation regulatory activities. Neither publication are available for review at the FAA Administration (FAA), DOT. of this notice nor the inclusion or office listed above and at the ACTION: Notice of petitions for omission of information in the summary administrative office of the Lee County exemption received and of dispositions is intended to affect the legal status of Port Authority. of prior petitions. any petition or its final disposition. DATES: Comments on petitions received Issued in Orlando, Florida on November SUMMARY: Pursuant to FAA’s rulemaking must identify the petition docket 28, 1995. provisions governing the application, number involved and must be received Charles E. Blair, processing, and disposition of petitions on or before December 26, 1995. Manager, Orlando, Airports District Office. for exemption (14 CFR Part 11), this [FR Doc. 95–29566 Filed 12–4–95; 8:45 am] notice contains a summary of certain ADDRESSES: Send comments on any BILLING CODE 4910±13±M petitions seeking relief from specified petition in triplicate to: Federal requirements of the Federal Aviation Aviation Administration, Office of the Regulations (14 CFR Chapter I), Chief Counsel, Attn: Rule Docket (AGC– 62288 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices

200), Petition Docket No. llll, 800 Sections of the FAR Affected: 14 CFR Notice of Intent to Rule on Application Independence Avenue, SW., 121.359(a). To Impose and Use the Revenue From Washington, D.C. 20591. Description of Relief Sought: To a Passenger Facility Charge (PFC) at Comments may also be sent permit, as part of a 6-month NTSB Ogdensburg International Airport, electronically to the following internet investigation, USAir, Southwest Ogdensburg, NY address: [email protected]. Airlines, and Continental Airlines AGENCY: Federal Aviation The petition, any comments received, Boeing 737 flightcrews experiencing an Administration (FAA), DOT. and a copy of any final disposition are uncommanded flight control input to filed in the assigned regulatory docket deactivate the cockpit voice recorder ACTION: Notice of intent to rule on and are available for examination in the upon clearing the active runway after application. Rules Docket (AGC–200), Room 915G, landing. FAA Headquarters Building (FOB 10A), SUMMARY: The FAA proposes to rule and 800 Independence Avenue, SW., Docket No.: 28370. invites public comment on the Washington, D.C. 20591; telephone Petitioner: Cessna Aircraft Co. application to impose and use the (202) 267–3132. Sections of the FAR Affected: 14 CFR revenue from a PFC at Ogdensburg International Airport under the FOR FURTHER INFORMATION CONTACT: 25.562. provisions of the Aviation Safety and Mr. D. Michael Smith, Office of Description of Relief Sought: To Capacity Expansion Act of 1990 (Title Rulemaking (ARM–1), Federal Aviation permit Cessna exemption from the IX of the Omnibus Budget Administration, 800 Independence emergency landing dynamic conditions Reconciliation Act of 1990) (Pub. L. Avenue, SW., Washington, DC 20591; of FAR for side-facing multiple seating 101–508) and Part 158 of the Federal telephone (202) 267–7470. as applied to their new Model 750 Aviation Regulations (14 CFR Part 158). This notice is published pursuant to (Citation X) airplane. paragraphs (c), (e), and (g) of § 11.27 of DATES: Comments must be received on Part 11 of the Federal Aviation [FR Doc. 95–29573 Filed 12–4–95; 8:45 am] or before January 4, 1996. Regulations (14 CFR Part 11). BILLING CODE 4910±13±M ADDRESSES: Comments on this Issued in Washington, D.C., on November application may be mailed or delivered 30, 1995. Research, Engineering and in triplicate to the FAA at the following Donald P. Byrne, Development Advisory Committee; address: Mr. Philip Brito, Manager; New Assistant Chief Counsel for Regulations. Challenge 2000 Subcommittee York Airports District Office; 600 Old Country Road, Suite 446; Garden City, Docket No.: 127CE. New York 11530. Petitioner: Beech Aircraft Pursuant to section 10(A)(2) of the In addition, one copy of any Corporation. Federal Advisory Committee Act (Public comments submitted to the FAA must Sections of the FAR Affected: 14 CFR Law 92–463; 5 U.S.C. App. 2), notice is be mailed or delivered to Danny L. 23.807(d)(1)(l). hereby given of a meeting of the Description of Relief Sought: To allow Challenge 2000 Subcommittee of the Duprey, Executive Director of the a single emergency exit, in addition to Federal Aviation Administration (FAA) Ogdensburg Bridge and Port Authority the cabin door, for Models B300 and Research, Engineering and Development at the following address: Bridge Plaza; B300C aircraft having nine passenger Advisory Committee to be held Monday, Ogdensburg, New York 13669. seats or less. December 18, 1995, 1 p.m. to 3 p.m. The Air carriers and foreign air carriers may submit copies of written comments Docket No.: 28296. meeting will take place at the FAA, 800 Petitioner: FlightSafety International. Independence Avenue, SW., Rooms previously provided to the Ogdensburg Sections of the FAR Affected: 14 CFR 8AB, Washington, DC. Bridge and Port Authority under section 61.57(c) and (d), 61.58(b), and 61.157(a) This purpose of this meeting is to 158.23 of Part 158. and (f)(1). present preliminary findings of the FOR FURTHER INFORMATION CONTACT: Description of Relief Sought: To Challenge 2000 subcommittee. Mr. Philip Brito, Manager, New York permit FlightSafety International to Attendance is open to the interest Airports District Office; 600 Old establish a continuous qualification public but limited to the space Country Road, Suite 446; Garden City, training program for pilots flying for available. With the approval of the New York 11530; telephone number operations conducted under part 91 that subcommittee chairman, members of the (516) 227–3803. The application may be would allow the participants to (1) public may present oral statements at reviewed in person at this same satisfy certain training and recent flight the meeting. Persons wishing to present location. experience requirements in Level B, oral statements, obtain information, or SUPPLEMENTARY INFORMATION: The FAA Level C, and Level D simulators; (2) act attend the meeting should contact Ms. proposes to rule and invites public as pilot in command of aircraft type Nancy Lane, AIR–510, 800 comment on the application to impose certificated for more than one required Independence Ave., SW., Washington, and use the revenue from a PFC at pilot by satisfactorily completing an DC at (202) 267–7061, the FAA Ogdensburg International Airport under approved aircraft-specific recurrent Designated Federal Official to the the provisions of the Aviation Safety training program, with the previous 24 Subcommittee. and Capacity Expansion Act of 1990 calendar months, in lieu of the pilot in Members of the public may present a (Title IX of the Omnibus Budget command evaluation required in written statement to the Subcommittee Reconciliation Act of 1990) (Pub. L. § 61.58(b); and (3) obtain an airline at any time. 101–508) and Part 158 of the Federal transport pilot certificate or an Aviation Regulations (14 CFR Part 158). additional type rating without passing Issued in Washington, DC, on November On October 20, 1995, the FAA the practical test prescribed in 28, 1995. determined that the application to § 61.157(a). Clyde A. Miller, impose and use the revenue from a PFC Docket No.: 28355. Manager, Research Division. submitted by Ogdensburg Bridge and Petitioner: National Transportation [FR Doc. 95–29568 Filed 12–4–95; 8:45 am] Port Authority was substantially Safety Board. BILLING CODE 4910±13±M complete within the requirements of Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62289 section 158.25 of Part 158. The FAA range and has designated one such amended by deleting Application Note will approve or disapprove the amendment for inclusion in policy 1 of the Commentary as follows: application, in whole or in part, no later statement § 1B1.10 (Retroactivity of ‘‘1. ‘Offense guideline applicable to than January 27, 1996. Amended Guideline Range). An earlier any underlying offense’ means the The following is a brief overview of amendment (effective November 1, offense guideline applicable to any the application. 1994) was also designated for inclusion conduct established by the offense of Level of the proposed PFC: $3.00 in policy statement § 1B1.10. Two conviction that constitutes an offense Proposed charge effective date: April amendments, previously passed by the under federal, state, or local law (other 1, 1996 Commission, concerning crack cocaine than an offense that is itself covered Proposed charge expiration date: and money laundering were under Chapter Two, Part H, Subpart 1). February 28, 2006 disapproved by Congress (Pub. L. 104– In certain cases, conduct set forth in Total estimated PFC revenue: 38, 109 Stat. 34 (Oct. 30, 1995)). the count of conviction may constitute $125,050 DATES: The effective date of these policy more than one underlying offense (e.g., Brief description of proposed statement and commentary amendments two instances of assault, or one instance project(s): is November 1, 1995. of assault and one instance of arson). In —Passenger Facility Charge Application FOR FURTHER INFORMATION CONTACT: such cases, determine the number and —Runway 9–27 Rehabilitation (Design) Michael Courlander, Public Information nature of underlying offenses by —Runway 9–27 Rehabilitation Specialist, Telephone: (202) 273–4590. applying the procedure set forth in (Construction) SUPPLEMENTARY INFORMATION: The Application Note 5 of § 1B1.2 Class or classes of air carriers which United States Sentencing Commission is (Applicable Guidelines). If the Chapter the public agency has requested not be an independent agency in the judicial Two offense level for any of the required to collect PFCs: Not branch of the U.S. Government. The underlying offenses under subsection Applicable, all requested to collect Commission is empowered by 28 U.S.C. (a)(1) is the same as, or greater than, the PFCs. 994(a) to promulgate sentencing alternative base offense level under Any person may inspect the guidelines and policy statements for subsection (a)(2), (3), or (4), as application in person at the FAA office federal sentencing courts. Sections applicable, use subsection (a)(1) and listed above under FOR FURTHER 994(o) and (p) of title 28, United States treat each underlying offense as if INFORMATION CONTACT and at the FAA Code, further direct the Commission to contained in a separate count of Regional Airports Office located at periodically review and revise conviction. Otherwise, use subsection Fitzgerald Federal Building #111; John guidelines and policy statements (a)(2), (3), or (4), as applicable, to F. Kennedy International Airport; previously promulgated, and require determine the base offense level.’’, Jamaica, New York 11430. that guideline amendments be and inserting in lieu thereof: In addition, any person may, upon submitted to Congress for review. ‘‘1. ‘Offense guideline applicable to request, inspect the application, notice Absent action of the Congress to the any underlying offense’ means the and other documents germane to the contrary, guideline amendments become offense guideline applicable to any application in person at the Ogdensburg effective following 180 days of conduct established by the offense of Bridge and Port Authority. Congressional review on the date conviction that constitutes an offense specified by the Commission (i.e., Issued in Jamaica, New York on November under federal, state, or local law (other 24, 1995. November 1, 1995). Unlike new than an offense that is itself covered guidelines and amendments to existing Anthony P. Spera, under Chapter Two, Part H, Subpart 1). guidelines issued pursuant to 28 U.S.C. Manager, Airports Division, Eastern Region. In certain cases, conduct set forth in 994(a) and (p), sentencing policy the count of conviction may constitute [FR Doc. 95–29567 Filed 12–4–95; 8:45 am] statements, commentary, and more than one underlying offense (e.g., BILLING CODE 4910±13±M amendments thereto promulgated by the two instances of assault, or one instance Commission are not required to be of assault and one instance of arson). In submitted to Congress for 180 days’ such cases, use the following UNITED STATES SENTENCING review prior to their taking effect. comparative procedure to determine the COMMISSION In connection with its ongoing review applicable base offense level: (i) of the Guidelines Manual, the determine the underlying offenses Revisions to the Sentencing Commission continues to welcome encompassed within the count of Guidelines for the United States Courts comment on any aspect of the conviction as if the defendant had been AGENCY: United States Sentencing sentencing guidelines, policy charged with a conspiracy to commit Commission. statements, and official commentary. multiple offenses. See Application Note Comments should be sent to: United ACTION: 5 of § 1B1.2 (Applicable Guidelines); (ii) Notice of final action regarding States Sentencing Commission, One amendments to sentencing guidelines determine the Chapter Two offense level Columbus Circle, N.E., Suite 2–500, (i.e., the base offense level, specific and policy statements effective Washington, DC 20002–8002, Attn: November 1, 1995. offense characteristics, cross references, Office of Communications. and special instructions) for each such SUMMARY: The Sentencing Commission Authority: Section 217(a) of the underlying offense; and (iii) compare hereby gives notice of several Comprehensive Crime Control Act of 1984 each of the Chapter Two offense levels amendments to policy statements and (28 U.S.C. 994(a)). determined above with the alternative commentary made pursuant to its Richard P. Conaboy, base offense level under subsection authority under section 217(a) of the Chairman. (a)(2), (3), or (4). The determination of Comprehensive Crime Control Act of the applicable alternative base offense 1984 (28 U.S.C. 994(a) and (u)). The Additional Revisions to the Guidelines level is to be based on the entire Commission has reviewed amendments Manual conduct underlying the count of submitted to Congress on May 1, 1995, 1. The replacement guideline for conviction (i.e., the conduct taken as a that may result in a lower guideline § 2H1.1 (see 60 FR 25082 (1995)) is whole). Use the alternative base offense 62290 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices level only if it is greater than each of the sale of an additional 15 grams of cocaine straightforward, although even in such Chapter Two offense levels determined that is part of the same course of cases a precise determination may not above. Otherwise, use the Chapter Two conduct for which the defendant has be possible. offense levels for each of the underlying been convicted and sentenced in state It is not intended that the above offenses (with each underlying offense court (the defendant received a nine- methodology be applied in a manner treated as if contained in a separate month sentence of imprisonment, of that unduly complicates or prolongs the count of conviction). Then apply which he has served six months at the sentencing process. Additionally, this subsection (b) to the alternative base time of sentencing on the instant federal methodology does not, itself, require the offense level, or to the Chapter Two offense). The guideline range applicable court to depart from the guideline range offense levels for each of the underlying to the defendant is 10–16 months established for the instant federal offenses, as appropriate.’’. (Chapter Two offense level of 14 for sale offense. Rather, this methodology is This amendment clarifies the of 45 grams of cocaine; 2-level reduction meant to assist the court in determining operation of this guideline in cases for acceptance of responsibility; final the appropriate sentence (e.g., the involving multiple underlying offenses. offense level of 12; Criminal History appropriate point within the applicable 2. Section 5G1.3 is amended by Category I). The court determines that a guideline range, whether to order the deleting: sentence of 13 months provides the sentence to run concurrently or ‘‘(c) (Policy Statement) In any other appropriate total punishment. Because consecutively to the undischarged term case, the sentence for the instant offense the defendant has already served six of imprisonment, or whether a shall be imposed to run consecutively to months on the related state charge, a departure is warranted). Generally, the the prior undischarged term of sentence of seven months, imposed to court may achieve an appropriate imprisonment to the extent necessary to run concurrently with the remainder of sentence through its determination of an achieve a reasonable incremental the defendant’s state sentence, achieves appropriate point within the applicable punishment for the instant offense.’’, this result. For clarity, the court should guideline range for the instant federal and inserting in lieu thereof: note on the Judgment in a Criminal Case offense, combined with its Order that the sentence imposed is not determination of whether that sentence ‘‘(c) (Policy Statement) In any other will run concurrently or consecutively case, the sentence for the instant offense a departure from the guidelines because the defendant has been credited for to the undischarged term of may be imposed to run concurrently, imprisonment. partially concurrently, or consecutively guideline purposes under § 5G1.3(b) with six months served in state custody. Illustrations of the Application of to the prior undischarged term of Subsection (c): imprisonment to achieve a reasonable 3. Where the defendant is subject to (A) The guideline range applicable to punishment for the instant offense.’’. an undischarged term of imprisonment the instant federal offense is 24–30 The Commentary to § 5G1.3 captioned in circumstances other than those set months. The court determines that a ‘‘Application Notes’’ is amended in forth in subsections (a) or (b), subsection total punishment of 36 months’ Note 1 by inserting ‘‘Consecutive (c) applies and the court shall impose a imprisonment would appropriately sentence—subsection (a) cases.’’ consecutive sentence to the extent reflect the instant federal offense and immediately before ‘‘Under’’; and by necessary to fashion a sentence resulting the offense resulting in the deleting ‘‘where the instant offense (or in a reasonable incremental punishment undischarged term of imprisonment. any part thereof)’’ and inserting in lieu for the multiple offenses. In some The undischarged term of imprisonment thereof ‘‘when the instant offense’’. circumstances, such incremental is an indeterminate sentence of The Commentary to § 5G1.3 captioned punishment can be achieved by the imprisonment with a 60-month ‘‘Application Notes’’ is amended by imposition of a sentence that is maximum. At the time of sentencing on deleting: concurrent with the remainder of the the instant federal offense, the ‘‘2. Subsection (b) (which may apply unexpired term of imprisonment. In defendant has served ten months on the only if subsection (a) does not apply), such cases, a consecutive sentence is undischarged term of imprisonment. In addresses cases in which the conduct not required. To the extent practicable, this case, a sentence of 26 months’ resulting in the undischarged term of the court should consider a reasonable imprisonment to be served concurrently imprisonment has been fully taken into incremental penalty to be a sentence for with the remainder of the undischarged account under § 1B1.3 (Relevant the instant offense that results in a term of imprisonment would (1) be Conduct) in determining the offense combined sentence of imprisonment within the guideline range for the level for the instant offense. This can that approximates the total punishment instant federal offense, and (2) achieve occur, for example, where a defendant that would have been imposed under an appropriate total punishment (36 is prosecuted in both federal and state § 5G1.2 (Sentencing on Multiple Counts months). court, or in two or more federal of Conviction) had all of the offenses (B) The applicable guideline range for jurisdictions, for the same criminal been federal offenses for which the instant federal offense is 24–30 conduct or for different criminal sentences were being imposed at the months. The court determines that a transactions that were part of the same same time. It is recognized that this total punishment of 36 months’ course of conduct. determination frequently will require an imprisonment would appropriately When a sentence is imposed pursuant approximation. Where the defendant is reflect the instant federal offense and to subsection (b), the court should serving a term of imprisonment for a the offense resulting in the adjust for any term of imprisonment state offense, the information available undischarged term of imprisonment. already served as a result of the conduct may permit only a rough estimate of the The undischarged term of imprisonment taken into account in determining the total punishment that would have been is a six-month determinate sentence. At sentence for the instant offense. imposed under the guidelines. Where the time of sentencing on the instant Example: The defendant has been the offense resulting in the federal offense, the defendant has convicted of a federal offense charging undischarged term of imprisonment is a served three months on the the sale of 30 grams of cocaine. Under federal offense for which a guideline undischarged term of imprisonment. In § 1B1.3 (Relevant Conduct), the determination has previously been this case, a sentence of 30 months’ defendant is held accountable for the made, the task will be somewhat more imprisonment to be served Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices 62291 consecutively to the undischarged term Example: The defendant is convicted of result. To impose a partially concurrent of imprisonment would (1) be within a federal offense charging the sale of 30 sentence, the court may provide in the the guideline range for the instant grams of cocaine. Under § 1B1.3 Judgment in a Criminal Case Order that federal offense, and (2) achieve an (Relevant Conduct), the defendant is the sentence for the instant offense shall appropriate total punishment (36 held accountable for the sale of an commence (A) when the defendant is months). additional 15 grams of cocaine, an released from the prior undischarged (C) The applicable guideline range for offense for which the defendant has sentence, or (B) on a specified date, the instant federal offense is 24–30 been convicted and sentenced in state whichever is earlier. This order months. The court determines that a court. The defendant received a nine- provides for a fully consecutive total punishment of 60 months’ month sentence of imprisonment for the sentence if the defendant is released on imprisonment would appropriately state offense and has served six months the undischarged term of imprisonment reflect the instant federal offense and on that sentence at the time of on or before the date specified in the the offense resulting in the sentencing on the instant federal order, and a partially concurrent undischarged term of imprisonment. offense. The guideline range applicable sentence if the defendant is not released The undischarged term of imprisonment to the defendant is 10–16 months on the undischarged term of is a 12-month determinate sentence. In (Chapter Two offense level of 14 for sale imprisonment by that date. this case, a sentence of 30 months’ of 45 grams of cocaine; 2-level reduction 5. Complex situations. Occasionally, imprisonment to be served for acceptance of responsibility; final the court may be faced with a complex consecutively to the undischarged term offense level of 12; Criminal History case in which a defendant may be of imprisonment would be the greatest Category I). The court determines that a subject to multiple undischarged terms sentence imposable without departure sentence of 13 months provides the of imprisonment that seemingly call for for the instant federal offense. appropriate total punishment. Because the application of different rules. In (D) The applicable guideline range for the defendant has already served six such a case, the court may exercise its the instant federal offense is 24–30 months on the related state charge as of discretion in accordance with months. The court determines that a the date of sentencing on the instant subsection (c) to fashion a sentence of total punishment of 36 months’ federal offense, a sentence of seven appropriate length and structure it to imprisonment would appropriately months, imposed to run concurrently run in any appropriate manner to reflect the instant federal offense and with the three months remaining on the achieve a reasonable punishment for the the offense resulting in the defendant’s State sentence, achieves this instant offense. undischarged term of imprisonment. result. For clarity, the court should note 6. Revocations. If the defendant was The undischarged term of imprisonment on the Judgment in a Criminal Case on federal or state probation, parole, or is an indeterminate sentence with a 60- Order that the sentence imposed is not supervised release at the time of the month maximum. At the time of a departure from the guideline range instant offense, and has had such sentencing on the instant federal because the defendant has been credited probation, parole, or supervised release offense, the defendant has served 22 for guideline purposes under § 5G1.3(b) revoked, the sentence for the instant months on the undischarged term of with six months served in state custody offense should be imposed to run imprisonment. In this case, a sentence that will not be credited to the federal consecutively to the term imposed for of 24 months to be served concurrently sentence under 18 U.S.C. § 3585(b). the violation of probation, parole, or with the remainder of the undischarged 3. Concurrent or consecutive supervised release in order to provide term of imprisonment would be the sentence—subsection (c) cases. In an incremental penalty for the violation lowest sentence imposable without circumstances not covered under of probation, parole, or supervised departure for the instant federal offense. subsection (a) or (b), subsection (c) release. See § 7B1.3 (Revocation of 4. If the defendant was on federal or applies. Under this subsection, the court Probation or Supervised Release) state probation, parole, or supervised may impose a sentence concurrently, (setting forth a policy that any release at the time of the instant offense, partially concurrently, or consecutively. imprisonment penalty imposed for and has had such probation, parole, or To achieve a reasonable punishment violating probation or supervised supervised release revoked, the sentence and avoid unwarranted disparity, the release should be consecutive to any for the instant offense should be court should consider the factors set sentence of imprisonment being served imposed to be served consecutively to forth in 18 U.S.C. § 3584 (referencing 18 or subsequently imposed).’’. the term imposed for the violation of U.S.C. § 3553(a)) and be cognizant of: The Commentary to § 5G1.3 captioned probation, parole, or supervised release (a) The type (e.g., determinate, ‘‘Background’’ is amended by deleting: in order to provide an incremental indeterminate/parolable) and length of ‘‘This guideline provides direction to penalty for the violation of probation, the prior undischarged sentence; the court when a term of imprisonment parole, or supervised release (in accord (b) The time served on the is imposed on a defendant who is with the policy expressed in §§ 7B1.3 undischarged sentence and the time already subject to an undischarged term and 7B1.4)’’, likely to be served before release; of imprisonment. See 18 U.S.C. § 3584. (c) The fact that the prior Except in the cases in which subsection and inserting in lieu thereof: undischarged sentence may have been (a) applies, this guideline is intended to ‘‘2. Adjusted concurrent sentence— imposed in state court rather than result in an appropriate incremental subsection (b) cases. When a sentence is federal court, or at a different time punishment for the instant offense that imposed pursuant to subsection (b), the before the same or different federal most nearly approximates the sentence court should adjust the sentence for any court; and period of imprisonment already served (d) Any other circumstance relevant that would have been imposed had all as a result of the conduct taken into to the determination of an appropriate the sentences been imposed at the same account in determining the guideline sentence for the instant offense. time.’’, range for the instant offense if the court 4. Partially concurrent sentence. In and inserting in lieu thereof: determines that period of imprisonment some cases under subsection (c), a ‘‘In a case in which a defendant is will not be credited to the federal partially concurrent sentence may subject to an undischarged sentence of sentence by the Bureau of Prisons. achieve most appropriately the desired imprisonment, the court generally has 62292 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Notices authority to impose an imprisonment No. 225, 98th Cong., 1st Sess. 177 (stating that, under section 3584, sentence on the current offense to run (1983). Without the ability to fashion ‘‘Congress has expressly granted federal concurrently with or consecutively to such a sentence, the instruction to the judges the discretion to impose a the prior undischarged term. 18 U.S.C. Commission in 28 U.S.C. § 994(l)(1) to sentence concurrent to a state prison § 3584(a). Exercise of that authority, provide a reasonable incremental term’’), aff’d en banc, 977 F.2d 1347 (9th however, is predicated on the court’s penalty for additional offenses could not Cir. 1992). consideration of the factors listed in 18 be implemented successfully in certain 3. Section 1B1.10(c) is amended by U.S.C. § 3553(a), including any situations, particularly when the deleting ‘‘and 506’’ and inserting in lieu applicable guidelines or policy defendant’s release date on an thereof ‘‘505, 506, and 516’’. statements issued by the Sentencing undischarged term of imprisonment The Commentary to § 1B1.10 Commission.’’. cannot be determined readily in captioned ‘‘Background’’ is amended in This is a two-part amendment. First, advance (e.g., in the case of an the fourth paragraph by inserting an this amendment clarifies the application indeterminate sentence subject to parole asterisk immediately following ‘‘old of subsections (a) and (b) of this release). guidelines’’; and by inserting, as a note, guideline. Second, in circumstances Prior to the SRA, only the Bureau of following the Background Commentary: covered by the policy statement in ‘‘*So in original. Probably should be subsection (c), this amendment affords Prisons had the authority to commence a federal sentence prior to the ‘to fall above the amended guidelines’.’’. the sentencing court additional This amendment expands the listing defendant’s release from imprisonment flexibility to impose, as appropriate, a in § 1B1.10(d) to implement the on a state sentence. See, e.g., United consecutive, concurrent, or partially directive in 28 U.S.C. § 994(u) in respect States v. Segal, 549 F.2d 1293, 1301 (9th concurrent sentence in order to achieve to guideline amendments that may be Cir. 1977). SRA legislative history a reasonable punishment for the instant considered for retroactive application. pertaining to 18 U.S.C. § 3584 indicates offense. The amendment also makes an editorial that this new section was intended to Authority to impose a partially addition to the Commentary to § 1B1.10 authorize imposition of a federal prison concurrent sentence is found in the (Retroactivity of Amended Guideline sentence to run concurrently or Sentencing Reform Act of 1984 (SRA). Range). consecutively to a state prison sentence. In enacting 28 U.S.C. § 994(l)(1), In addition, the Commission has ‘‘This * * * [section 3584] changes the Congress contemplated that 18 U.S.C. updated the ‘‘Historical Notes’’ law that now applies to a person § 3584 would allow imposition of following the amended guideline partially concurrent sentences, in sentenced for a Federal offense who is sections, and has made a number of addition to fully concurrent or already serving a term of imprisonment additional minor conforming and consecutive sentences. (‘‘It is the for a state offense.’’ S. Rep. No. 225, editorial revisions to improve the Committee’s intent that, to the extent supra at 127. ‘‘Thus, it is intended that internal consistency and appearance of feasible, the sentences for each of the this provision be construed contrary to the Manual. multiple offenses be determined the holding in United States v. Segal. separately and the degree to which they ** *’’ Id. (at 127 n.314). See United [FR Doc. 95–29514 Filed 12–4–95; 8:45 am] should overlap be specified.’’) S. Rep. States v. Hardesty, 958 F.2d 910, 914 BILLING CODE 2210±40±P 62293

Sunshine Act Meetings Federal Register Vol. 60, No. 233

Tuesday, December 5, 1995

This section of the FEDERAL REGISTER MATTERS TO BE CONSIDERED: The (Contact: Denny Crutchfield, 301–415– contains notices of meetings published under following matters have been placed on 1199) the ``Government in the Sunshine Act'' (Pub. the agenda for the open Parole 2:00 p.m. L. 94-409) 5 U.S.C. 552b(e)(3). Commission meeting: Briefing on Generic Implications of Recent Events Involving Ingestion of 1. Approval of minutes of previous Radioactive Material at Research DEPARTMENT OF JUSTICE Commission meeting. Facilities (Public Meeting) 2. Reports from the Chairman, Week of December 25—Tentative UNITED STATES PAROLE COMMISSION Commissioners, Legal, Chief of Staff, Case Operations, and Administrative Sections. There are no meeting schedule for the Public Announcement 3. Revisiting the twelve-month custody Week of December 25. Pursuant To The Government In the reduction program under 28 C.F.R. § 2.60. Note: The Nuclear Regulatory Commission 4. Discussion of the application of the Sunshine Act is operating under a delegation of authority Ninth Circuit policy on street time forfeiture to Chairman Shirley Ann Jackson, because (Public Law 94–409) [5 U.S.C. Section at FTC, Oklahoma City, Oklahoma. with three vacancies on the Commission, it 552b] is temporarily without a quorum. As a legal AGENCY CONTACT: Tom Kowalski, Case matter, therefore, the Sunshine Act does not DATE AND TIME: 9:30 a.m., Tuesday, Operations, United States Parole apply; but in the interests of openness and December 5, 1995, by telephone Commission, (301) 492–5962. public accountability, the Commission will conference call. Dated: November 30, 1995. conduct business as though the Sunshine Act were applicable. PLACE: 5550 Friendship Boulevard, Michael A. Stover, Suite 400, Chevy Chase, Maryland General Counsel, U.S. Parole Commission. The schedule for Commission 20815. [FR Doc. 95–29622 Filed 11–30–95; 4:25 pm] meetings is subject to change on short STATUS : Closed—Meeting. BILLING CODE 4410±01±M notice. To verify the status of meetings MATTERS CONSIDERED: The following call (Recording)—(301) 415–1292. matter will be considered during the CONTACT PERSON FOR MORE INFORMATION: closed portion of the Commission’s NUCLEAR REGULATORY COMMISSION Bill Hill (301) 415–1661. Business Meeting: DATE: Weeks of December 4, 11, 18, and This notice is distributed by mail to several Appeals to the Commission involving 25, 1995. hundred subscribers; if you no longer wish approximately 6 cases decided by the to receive it, or would like4 to be added to National Commissioners pursuant to a PLACE: Commissioners’ Conference it, please contact the Office of the Secretary, reference under 28 C.F.R. 2.27. These cases Room, 11555 Rockville Pike, Rockville, Attn: Operations Branch, Washington, D.C. were originally heard by an examiner panel Maryland. 20555 (301–415–1963). wherein inmates of Federal prisons have In addition, distribution of this meeting applied for parole or are contesting STATUS: Public. notice over the internet system is available. revocation of parole or mandatory release. If you are interested in receiving this MATTERS TO BE CONSIDERED: Commission meeting schedule electronically, AGENCY CONTACT: Tom Kowalski, Case Week of December 4 please send an electronic message to Operations, United States Parole [email protected] or [email protected]. Friday, December 8 Commission, (301) 492–5962. Dated: November 30, 1995. Dated: November 30, 1995. 1:30 p.m. William M. Hill, Jr., Michael A. Stover, Meeting with Advisory Committee on Reactor Safeguards (ACRS) (Public SECY Tracking Officer, Office of the General Counsel, U.S. Parole Commission. Meeting) Secretary. [FR Doc. 95–29621 Filed 11–30–95; 4:15 pm] (Contact: John Larkins, 301–415–7360) [FR Doc. 95–29659 Filed 12–1–95; 12:27 pm] BILLING CODE 7590±01±M BILLING CODE 4410±01±M Week of December 11—Tentative Tuesday, December 12 DEPARTMENT OF JUSTICE 2:00 p.m. ASSASSINATION RECORDS REVIEW BOARD Briefing on Materials Events Data Base UNITED STATES PAROLE COMMISSION (Public Meeting) DATES: December 12–13, 1995 Public Announcement (Contact: Samuel Pettijohn, 301–415–6822) PLACE: ARRB, 600 E Street, NW, Washington, DC. Pursuant To The Government In the Thursday, December 14 STATUS: Closed. Sunshine Act 10:00 a.m. Briefing on Industry Restructuring and MATTERS TO BE CONSIDERED: December (Public Law 94–409) [5 U.S.C. Section Deregulation (Pubic Meeting) 12–13, 9:00 a.m. 552b] 2:00 p.m. 1. Review and Accept Minutes of Closed Briefing on EEO Program (Public Meeting) TIME AND DATE: 1:30 p.m., Tuesday, Meetings. (Contact: Vandy Miller, 301–415–7380) December 5, 1995, by telephone 2. Review of Assassination Records. conference call. Week of December 18—Tentative 3. Other Business. PLACE: 5550 Friendship Boulevard, Tuesday, December 19 CONTACT PERSON FOR MORE INFORMATION: Suite 400, Chevy Chase, Maryland 10:00 a.m. Thomas Samoluk, Associate Director for 20815. Briefing on Mechanism for Addressing Communications, 600 E Street, NW, STATUS: Open. Generic Safety Issues (Public Meeting) Second Floor, Washington, DC 20530. 62294 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Sunshine Act Meetings

Telephone: (202) 724–0088; Fax: (202) CONTACT PERSON FOR MORE INFORMATION: 1. Personnel actions (appointments, 724–0457. Evan M. Koster, Assistant Secretary to promotions, assignments, reassignments, and David G. Marwell, the Board of Directors, (703) 841–3812. salary actions) involving individual Federal Reserve System employees. Executive Director. Dated: November 1, 1995. 2. Any items carried forward from a [FR Doc. 95–29684 Filed 12–1–95; 12:27 pm] Evan M. Koster, previously announced meeting. BILLING CODE 6118±01±P Acting Sunshine Act Officer. [FR Doc. 95–29707 Filed 12–1–95; 1:25 pm] CONTACT PERSON FOR MORE INFORMATION: BILLING CODE 7023±01±M Mr. Joseph R. Coyne, Assistant to the INTER-AMERICAN FOUNDATION BOARD Board; (202) 452–3204. You may call MEETING (202) 452–3207, beginning at BOARD OF GOVERNORS OF THE FEDERAL approximately 5 p.m. two business days TIME AND DATE: December 15, 1995, RESERVE SYSTEM before this meeting, for a recorded 10:00 a.m. announcement of bank and bank TIME AND DATE: 11:00 a.m., Monday, PLACE: 901 N. Stuart Street, Tenth Floor, holding company applications December 11, 1995. Arlington, Virginia 22203. scheduled for the meeting. PLACE: Marriner S. Eccles Federal STATUS: Closed session as provided in Reserve Board Building, C Street Dated: December 1, 1995. 22 CFR Part 1004.4(b). entrance between 20th and 2lst Streets, Jennifer J. Johnson, MATTERS TO BE CONSIDERED: Executive N.W., Washington, D.C. 20551. Deputy Secretary of the Board. Session on Personnel Implications in STATUS: Closed. [FR Doc. 95–29765 Filed 12–1–95; 3:22 pm] Fiscal Year 1996 (closed session). MATTERS TO BE CONSIDERED: BILLING CODE 6210±01±P 62295

Corrections Federal Register Vol. 60, No. 233

Tuesday, December 5, 1995

This section of the FEDERAL REGISTER On page 56574, in the third column, ‘‘(≤60,000)’’ should read ‘‘(>60,000)’’ contains editorial corrections of previously in the table, in the second column, the each time it appears. published Presidential, Rule, Proposed Rule, PRC-wide rate, ‘‘61.7’’ should read BILLING CODE 1505±01±D and Notice documents. These corrections are ‘‘61.67.’’ prepared by the Office of the Federal Register. Agency prepared corrections are BILLING CODE 1505±01±D issued as signed documents and appear in SECURITIES AND EXCHANGE the appropriate document categories COMMISSION elsewhere in the issue. DEPARTMENT OF HEALTH AND 17 CFR Part 200 HUMAN SERVICES [Release No. 34-35833; File No. S7-40-92] DEPARTMENT OF COMMERCE Center for Disease Control and Prevention Rules of Practice International Trade Administration Fees for Sanitation Inspections of Correction [A-570-843] Cruise Ships In rule document 95–14750 beginning on page 32738, in the issue of Friday, Notice of Preliminary Determination of Correction Sales at Less Than Fair Value: June 23, 1995, make the following Bicycles From the People's Republic In notice document 95–28164 correction: of China beginning on page 57433 in the issue of § 200.43 [Corrected] Correction Wednesday, November 15, 1995, make On page 32795, in the second column, the following correction: In notice document 95–27832, in amendatory instruction 21, ‘‘Section beginning on page 56567, in the issue of On page 57434, in the first column, in 200.43’’ should read ‘‘Section Thursday, November 9, 1995, make the Appendix A, in the tables, in the entries 200.43(a)(1)(iii)’’. following correction: for Extra large, in the second column, BILLING CODE 1505±01±D federal register December 5,1995 Tuesday Proposed Rule Education, andInformationOrder; Sheep andWoolPromotion,Research, 7 CFRPart1280 Agricultural MarketingService Agriculture Department of Part II 62297 62298 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules

DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: The purpose of RFA is to fit Ralph L. Tapp, Chief, Marketing regulatory actions to the scale of the Agricultural Marketing Service Programs Branch, 202/720–1115. businesses that are subject to such actions so that small businesses would 7 CFR Part 1280 SUPPLEMENTARY INFORMATION: Prior documents: Notice-Invitation to submit not be unduly or disproportionately [No. LS±94±015] proposals published January 4, 1995 (60 burdened. FR 381); Proposed Rule-Sheep and Wool According to the January 27, 1995, Sheep and Wool Promotion, Research, Promotion, Research, Education, and issue of ‘‘Sheep and Goats,’’ published Education, and Information Order Information Order published June 2, by the Department’s National AGENCY: Agricultural Marketing Service, 1995 (60 FR 28747); Proposed Rule: Agricultural Statistics Service, there are USDA. Procedures for Conduct of Referendum approximately 87,350 sheep operations in the United States, nearly all of which ACTION: Proposed rule. published August 8, 1995 (60 FR 40313); Notice-Certification of would be classified as small businesses SUMMARY: The Sheep Promotion, Organization for Eligibility to Make under the criteria established by the Research, and Information Act of 1994 Nominations to the Proposed Board Small Business Administration (13 CFR (Act), authorized the establishment of a published August 8, 1995 (60 FR 121.601). Additionally, there are national, industry-funded and -operated 40343); Proposed Rule-Rules and approximately 9,000 importers of sheep sheep and wool promotion, research, Regulations published October 3, 1995 and sheep products, nearly all of which education, and information program. On (60 FR 51737). would be classified as small businesses. January 4, 1995, the Agricultural This proposed Order would require Marketing Service (AMS) published in Regulatory Impact Analysis each person who makes payment to a the Federal Register an invitation to Executive Orders 12866 and 12778 and sheep producer, feeder, or handler of submit proposals for a sheep and wool the Regulatory Flexibility Act sheep or sheep products to be a promotion, research, education, and collecting person, and to collect an information order (Order). AMS This proposed rule has been assessment from that sheep producer, received an entire industry proposal as determined to be not significant for feeder, or handler of sheep or sheep well as four other partial proposals, all purposes of Executive Order 12866 and products. Any person who buys of which were published for public therefore has not been reviewed by the domestic live sheep or greasy wool for comment in the June 2, 1995, issue of Office of Management and Budget processing must also collect the the Federal Register. A public meeting (OMB). assessment and remit it to the Board. was held on June 26, 1995, at the This proposed rule was reviewed Each person who processes or causes to Department of Agriculture (Department) under Executive Order 12778, Civil be processed sheep or sheep products of to discuss the proposed Order and to Justice Reform. It is not intended to that person’s own production and who solicit comments on the proposal. After have a retroactive effect. This rule markets the processed products would evaluating the written comments would not preempt any State or local pay an assessment and remit the submitted, the transcript from the laws, regulations, or policies unless they assessment to the Board. Any person public meeting, and other available present an irreconcilable conflict with who exports live sheep or greasy wool material, an Order is issued pursuant to this rule. would be required to remit an the provisions of the Act and will be The Act provides that any person assessment to the Board. Finally, each subject to a referendum. subject to the Order may file with the person who imports into the United Before the Order is made effective, a Secretary a petition stating that the States sheep, sheep products, wool, or referendum must be conducted among Order, any provision of the Order, or wool products, other than raw wool, sheep producers, sheep feeders, and any obligation imposed in connection would pay an assessment. The U.S. importers of sheep and sheep products, with the Order is not in accordance with Customs Service (Customs) would except importers of raw wool. A final the law, and requesting a modification collect the assessments on imported referendum rule will be published of the Order or an exemption from sheep and sheep products (except raw separately in the Federal Register. If certain provisions or obligations of the wool) and forward them to AMS for sheep producers, feeders, and importers Order. The petitioner would have the disbursement to the Board. voting in the referendum approve the opportunity for a hearing on the The rate of assessment on domestic proposed Order, all producers, feeders, petition. Thereafter the Secretary would sheep producers, feeders, and exporters and importers would be required to pay issue a decision on the petition. The Act of live sheep and greasy wool would be assessments, which would be used in a provides that the district court of the 1-cent-per-pound on live sheep sold and national program of sheep and wool United States in the district in which 2-cents-per-pound on greasy wool sold. promotion, research, education, the petitioner resides or carries on Importers would be assessed 1-cent-per- consumer, industry, and producer business has jurisdiction to review the pound on live sheep and the equivalent information. Secretary’s decision, if the petitioner of 1-cent-per-pound of live sheep for The certification and nomination files a complaint for that purpose not sheep products and 2-cents-per-pound procedures for the establishment of the later than 20 days after the date of the of degreased wool or the equivalent of National Sheep Promotion, Research, entry of the decision. The petitioner degreased wool for wool and wool and Information Board (Board) as well must exhaust his or her administrative products. Imported raw wool would be as other implementing regulations will remedies before filing such a complaint exempt from assessments. Each person be published separately in the Federal in the district court. who processes or causes to be processed Register. Pursuant to requirements set forth in sheep or sheep products of that person’s ADDRESSES: Ralph L. Tapp, Chief; the Regulatory Flexibility Act (RFA)(5 own production and markets the Marketing Programs Branch, Room U.S.C. 601 et seq.), the Administrator of processed products would be assessed 2606–S; Livestock and Seed Division, AMS has considered the economic the equivalent of 1-cent-per-pound of AMS–USDA; P.O. Box 96456; impact of this proposed action on small live sheep sold and 2-cents-per-pound Washington, D.C. 20090–6456. entities. of greasy wool sold. All assessment rates Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62299 may be adjusted in accordance with the would submit one response per year, Lamb Committee of the National applicable provisions of the Act. and the estimated average reporting Livestock and Meat Board each burden is 0.5 hour per response. submitted a partial proposal. Paperwork Reduction The Department also received letters In accordance with the Paperwork Background from other interested parties. The Reduction Act of 1980 (44 U.S.C. The Act (7 U.S.C. 7101–7111), Department did not consider these Chapter 35), the information collection approved October 22, 1994, authorizes letters to be proposals because they requirements contained herein were the Secretary to establish a national primarily addressed information related submitted to OMB for approval and sheep and wool promotion, research, to provisions of the Act itself. Copies of assigned OMB No. 0581–0093. This education, and information program. these letters and the comments received action sets forth the provisions for The program would be funded by a in response to the proposed Order, are establishing a nationwide, industry- mandatory assessment on domestic available for public inspection. funded sheep and wool promotion, sheep producers, sheep feeders, and The Department published ASI’s research, education, and information exporters of live sheep and greasy wool proposal as Proposal I, the New Zealand program. The information collection of 1-cent-per-pound on live sheep sold Meat Producers Board’s proposal as requirements as required by this action and 2-cents- per-pound on greasy wool Proposal II, the Australian Meat and and necessary for the implementation of sold. Importers would be assessed 1- Live-stock Corporation’s proposal as this Order include: cent-per-pound on live sheep imported Proposal III, the Wools of New (1) A report by each collecting person and the equivalent of 1-cent-per-pound Zealand’s proposal as Proposal IV, and required to remit assessments to the of live sheep for sheep products the National Lamb Feeders Board for live sheep or greasy wool imported and 2-cents-per-pound of Association’s proposal as Proposal V. purchased from the producer, feeder, or degreased wool or the equivalent of The Department modified these handler of sheep or sheep products; by degreased wool for wool and wool proposals slightly in order to (1) make each person marketing sheep or sheep products imported. Imported raw wool them consistent with the Act and other products of that person’s own would be exempt from assessments. similar national research and promotion production; and by each exporter of Each person who processes or causes to programs supervised by the Department, sheep or greasy wool. The estimated be processed sheep or sheep products of (2) simplify the language and format of number of respondents for this report is that person’s own production, and who some provisions, and (3) add certain 700. Each respondent would submit one markets the processed products, would sections necessary for the proper report per month, unless otherwise be assessed the equivalent of 1-cent-per- administration of the Order by the prescribed by the Board, and the pound of live sheep sold and 2-cents- Department. The Department rejected estimated average reporting burden is per-pound of greasy wool sold. All the proposal submitted by the Lamb 0.5 hours per response; assessment rates may be adjusted in Committee of the National Livestock (2) A requirement to maintain accordance with applicable provisions and Meat Board and discussed that sufficient records to verify reports of the Act. proposal in the proposed rule. Each submitted under the Order. The The Act provides for the submission proposal was published in the June 2, estimated number of recordkeepers of proposals for a Sheep and Wool 1995, issue of the Federal Register (60 needed to comply with this requirement Promotion, Research, Education, and FR 28747). Interested persons were is 700, each of whom would have an Information Order (Order). The invited to submit comments on the estimated annual reporting burden of Secretary may propose the issuance of proposals until July 17, 1995. 0.5 hours; an Order, or an association of sheep The Department received 137 written (3) An application for certification of producers may submit and request the comments concerning the proposed organization, to be completed by eligible issuance of an Order. The Act provides Order from individual sheep producers, organizations that request certification that when the Secretary decides to sheep feeders, importers of sheep and in order to be eligible to nominate propose an Order or receives a request sheep products, State sheep producer producers, feeders, and importers to the and proposal for an Order, the Secretary organizations, general farm Board. The estimated number of shall publish the proposed Order and organizations, universities, and other respondents is 70 (with each submitting give due notice and opportunity for interested parties. Ninety-three one response), and the estimated public comment. As established by the comments were filed on time and forty- average reporting burden is 0.5 hour per Act, the Order provides for the four comments were filed after the response; establishment of a Board comprised of comment period closed. The late (4) A nomination form by which 85 sheep producers, 10 sheep feeders, comments generally expressed the same certified organizations will nominate and 25 importers of sheep and sheep views as the timely comments that are producers, feeders, and importers for products. The Act further provides that discussed herein, and the commenters membership on the Board. The any State with one member may have an generally supported the primary estimated number of respondents is 60 alternate member. proposed Order with certain for the first year of the Order, and 20 The Department issued an invitation qualifications. each year thereafter. Each respondent to submit proposals for an initial Order The substantive changes suggested by would submit one response per year, in the January 4, 1995, (60 FR 381) issue commenters are discussed below, and the estimated average reporting of the Federal Register. In response to together with a description of changes burden is 0.5 hour per response; and that invitation, the American Sheep made by the Department upon review of (5) An advisory committee Industry Association (ASI), the sheep the proposed Order and the comments. membership background information industry’s producer member The Department has also made other form, to be completed by candidates organization, submitted a proposed minor changes of a nonsubstantial nominated by certified organizations for Order. In addition, the New Zealand nature for clarity and accuracy. appointment to the Board. The Meat Producers Board, the Australian Of the ninety-three timely comments, estimated number of respondents is 240 Meat and Live-stock Corporation, the sixty-two comments supported the during the first year of the Order, and Wools of New Zealand, the National proposed Order as published or 80 each year thereafter. Each respondent Lamb Feeders Association, and the expressed support with some 62300 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules modifications or clarifications. Six definition should mirror the Act’s one who breeds sheep for the comments opposed the entire Order or definition. Accordingly, this suggestion production of lamb and wool. Three portions thereof. The remaining is not adopted. other commenters opposed the comments neither supported nor definition of ‘‘producer’’ but did not Section 1280.113 Feeder opposed the proposal in its entirety, but provide an alternative definition. The rather addressed specific sections in the Five commenters opposed the Act defines ‘‘producer’’ as any person, proposed Order or made general definition of ‘‘feeder’’ in the proposed other than a feeder, who owns or comments relating to the Act or the Order. One commenter suggested that a acquires ownership of sheep. The Order. Forty-two comments did not ‘‘feeder’’ should be defined as ‘‘a person Department finds that the definition in express opposition to Proposal II which that is the second owner of the lamb’’ the proposed Order should mirror that would provide for 6 of the 25 importer because the definition in the Act and in found in the Act. Accordingly, we have Board members to represent importers the proposed Order was ambiguous and not adopted these suggestions. of sheep meat and that 1 member of the could allow a person who was primarily One commenter suggested that the Executive Committee be an importer of a producer to occupy a feeder seat on definitions of ‘‘feeder,’’ ‘‘importer’’ and sheep meat and that organizations that the Board but prohibit a person who is ‘‘producer’’ include a minimum age represent importers of sheep or sheep primarily a feeder to occupy a producer restriction and thus require an products may make nominations for seat on the Board. The same commenter individual to be at least 18 years of age representation of the importer unit. Two also stated that according to the to ensure that those eligible to vote in comments opposed Proposal II. Fifty- definition in the proposed Order many the referendum are actually engaged in nine comments opposed Proposal III producers could be feeders, but few the commercial feeding, importation or which would prohibit the use of feeders could be producers. Another production of sheep and sheep assessments for specific country of commenter suggested that ‘‘feeder’’ products. The Act does not specify any origin promotion programs and two should be defined as ‘‘a producer who age limit or restriction as an eligibility comments supported Proposal III. Forty- purchases more than 500 head of lambs requirement, and there are no age limits eight comments opposed Proposal IV a year, to be finished for the commercial or restrictions on persons who are which would provide that funds market.’’ The commenter believes that required to pay assessments. The generated under the Act be used to the intent of the Act was not to include Department believes that Congress promote (1) a wide range of wool 4–H club members who show market intended that each person who is products in the United States, including sheep or other individuals who sell only subject to the assessment should be interior textile product; e.g., carpet rugs, a few market lambs in the definition of entitled to vote. Accordingly, we have and upholstery; and (2) wool generically ‘‘feeder’’. Another commenter suggested not adopted this suggestion. rather than to promote wool specifically that ‘‘feeder’’ should be defined as ‘‘any person other than a producer who Section 1280.126 Qualified State grown in the United States and four Sheep Board comments supported Proposal IV. purchases lambs to be finished for the Finally, fifty-two comments supported commercial market.’’ Another One commenter opposed the Proposal V, which would provide that commenter suggested that a ‘‘feeder’’ definition of ‘‘Qualified State Sheep domestic assessments could be used to should be defined as one whose main Board (QSSB)’’ because § 1280.126 of promote ‘‘Fresh American Lamb.’’ The source of income (over 50 percent) the proposed Order was inconsistent discussions are organized by headings comes from lambs purchased for the with § 2(5), ‘‘Findings and Declaration of the proposed Order’s provisions. purpose of feeding to market weight. Policy,’’ of the Act, which states that Another commenter opposed the existing State organizations which Definitions definition of ‘‘feeder’’ but did not conduct sheep and sheep product Two commenters recommended that provide an alternate definition. The Act promotion, research, industry, and we review all of the terminology in itself defines ‘‘feeder’’ as any person consumer education programs that are § 1280.101 through § 1280.136 in the who feeds lambs until the lambs reach invaluable to the efforts of promoting proposed Order and clarify any terms slaughter weight. The Department finds the consumption of sheep and sheep that are ambiguous, in order to ensure that the definition in the proposed products. The commenter further that the definitions in the proposed Order should mirror that found in the believes that the definition of ‘‘QSSB’’ Order generally conform with or mirror Act. Accordingly, we have not adopted would allow any private trade those in the Act. We agree, and any of these suggestions. association to be recognized as a reviewed the definitions and ‘‘QSSB,’’ because they are entities Section 1280.122 Producer determined that the definitions in the organized and operating within the proposed Order either mirror the Five commenters opposed the State. Additionally, the commenter definitions in the Act or conform to the definition of ‘‘producer’’ in the states that § 1280.126 in the proposed Act’s intent. proposed Order. One commenter Order defines QSSB as a sheep and suggested that ‘‘producer’’ be defined as wool promotion entity but also appears Section 1280.108 Degreased Wool any person involved in certain industry to include entities that conduct One commenter stated that the segments * * * to include but not be promotion, research or consumer definition of ‘‘degreased wool’’ has limited to * * * a ‘‘commercial’’ ewe information programs with respect to created some confusion because the flock, purebred operation, speciality sheep or wool or both. Finally, the same term for ‘‘degreased wool’’ used both in lamb and/or wool market segment, 4–H commenter suggested that § 1280.126 in the United States and abroad, is member or youth, because that the proposed Order be amended to ‘‘scoured wool.’’ The commenter definition is more representative of the include the following subsection ‘‘(d)’’: recommended that the term ‘‘degreased producer segment of the sheep industry. ‘‘(d) * * * has agreed to maintain books wool’’ be changed to ‘‘scoured wool.’’ Another commenter suggested that and records as specified in regulations We have not adopted this ‘‘producer’’ be defined as any producer approved by the Secretary, to be subject recommendation because the Act who markets less than 500 purchased to audit by or at the direction of the defines the term ‘‘degreased wool’’ and lambs per year. Another commenter Secretary, to abide by all terms of the we believe that the proposed Order’s suggested that ‘‘producer’’ be defined as Act and the Order and to immediately Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62301 suspend any and all activities funded by the proposed Order. In general, the developing its operating principles and assessments collected pursuant to the commenters felt that (1) the Board was procedures. Accordingly, this Act and Order upon receipt of such a too large and cumbersome for the sheep suggestion is not adopted. request from the Secretary.’’ The industry, (2) the Board should realign its One commenter suggested that the Department believes that the Board membership on a 3-year basis based on Board be selected in a manner similar to would have the authority to certify a actual collections from each industry that used by the Consolidated Farm ‘‘QSSB’’ in each State. Furthermore, the segment, (3) the Board should include a Service Agency for county and State Department believes that the Board packer/breaker/retailer member because committee elections. The Act requires should have the latitude to establish including representatives of all or some that the Secretary appoint the Board requirements, subject to Departmental of these entities would enhance from nominations submitted by certified approval, to ensure that funds expended communication and lead to greater organizations. Accordingly, we have not by ‘‘QSSB’s’’ are spent in accordance promotional efficiency and cooperation, adopted this suggestion. with the Act and the Order. The Act (4) the Board is not fairly representative Forty-two commenters indicated that defines a ‘‘QSSB’’, as a sheep and wool of producer, feeder and importer groups they did not oppose proposal II, which promotion entity that is authorized by based on total assessment contributions, proposed that 6 of the 25 importer State statute or organized and operating and (5) a certain number of seats on the members would represent importers of within a State, receives voluntary Board should be held by each member sheep meat, that 1 member of the contributions or dues and conducts category—sheep producers, sheep Executive Committee be an importer of promotion, research, or consumer feeders and importers of sheep and sheep meat, and that organizations information programs with respect to sheep products—based on total representing importers of sheep or sheep or wool, or both, and is assessments collected from these sheep products may make nominations recognized by the Board as the sheep groups. for representation for the importer unit. and wool promotion entity within the The Act provides for the Two commenters opposed Proposal II State; except that not more than one establishment and membership of the because allocating six seats for meat QSSB shall exist in any State at any one Board, including the number of importers would give meat importers a time. Therefore, we believe that the members from each industry segment to greater number of seats than they would definition in the proposed Order should be represented on the Board. The Act have if representation were based on mirror that found in the Act. does not authorize the Board’s contributions to the annual revenue. Accordingly, we have not adopted these membership to (1) be adjusted on a 3- Additionally, commenters suggested suggestions. year basis, (2) include a packer/breaker/ that § 1280.201(c) of the proposed Order retailer seat or (3) be based on total be amended to read as follows: ‘‘The Section 1280.127 Raw Wool contributions from each industry importer positions shall be allocated Six commenters suggested that the segment. Accordingly, we have not proportionally to importers of wool definition of ‘‘raw wool’’ should be adopted any of these suggestions. products, sheep meat, sheep, and sheep expanded to include wooltop, noils of One commenter suggested amending products according to the relative wool and wool waste so that the § 1280.201 to include the following contributions to checkoff revenues.’’ definition is both clear and consistent subsection: ‘‘(e) in accordance with The Act does not provide for a specified with the North American Free Trade regulations approved by the Secretary, number of seats on the Board or the Agreement ‘‘Yarn Forward’’ rule of at least every 3 years and not more than Executive Committee for each importer origin for wool and other textile every 2 years, the Board shall review the segment; i.e., sheep meat and wool. imports. The Department has reviewed relative investments made by producers, However, the Department has the definition of ‘‘raw wool,’’ and feeders, and importers through payment determined that the Secretary should believes that Congress intended to of assessments and, if warranted, shall have the latitude to appoint assess processed sheep and sheep reapportion representation on the Board representatives to the Board in a manner products but not raw wool. The Act in order to best reflect the current state that best reflects the interests of the defines ‘‘raw wool’’ as greasy wool, of the sheep and sheep products various importer segments. Accordingly, industry and ensure equitable pulled wool, degreased wool, or we have not adopted these suggestions. representation in relation to respective One commenter perceived that the carbonized wool. Furthermore, the groups total assessments.’’ The Act proposed Order lacks any minimum Department finds that wooltop, noils of authorizes the establishment of a 120- qualifications for entities seeking wool, and wool waste result from the member Board comprised of 85 recognition as Qualified State Sheep processing of raw wool as defined in the producers, 10 feeders and 25 importers. Boards and suggested that the Act and we believe that Congress The Act does not authorize Department compare § 1280.207 and intended that all processed products reapportionment of the Board for any § 1280.126. Additionally, the would be subject to the assessment. reason. Accordingly, we have not commenter indicated that the proposed Therefore, to expand the definition adopted this suggestion. The same Order appears to establish such would not be consistent with the intent commenter also suggested amending standards for those organizations of the Act. We have determined that the § 1280.201 to include a subsection ‘‘(f)’’ certified to nominate candidates for the definition in the proposed Order mirrors to read: ‘‘(f) a quorum of the Board shall Board, but not for those who handle the that found in the Act. Accordingly, we consist of the producer representatives, assessments collected under the have not adopted this suggestion. importer representatives and feeder program. The Department has reviewed National Sheep Promotion, Research, representatives or their respective these sections and determined that both and Information Board alternates and a majority vote of are consistent with the intent of the Act. representatives at a meeting in which a Thus, we have made no changes to this Section 1280.201 Establishment and quorum is present shall constitute an act section in this proposed rule. Membership of the Board on the Board.’’ The Department has Eighteen commenters opposed one or determined that the Board should have Section 1280.202 Nominations more aspects of the ‘‘Establishment and the latitude to determine what Two commenters suggested that the Membership of the Board’’ portion of constitutes a quorum of the Board in industry representatives nominated to 62302 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules the Board should be elected by the qualifying as producers. In addition, the words ‘‘Board’’ and ‘‘from.’’ There was, members of each industry segment commenters believe that the definition in fact, a misprint and we have because the Secretary is unfamiliar with of ‘‘feeder’’ and ‘‘producer’’ may also amended the language in the abilities of individuals in the invite First Amendment challenges by § 1280.205(b)(2) of the Order to mirror various industries. The Department individuals claiming to occupy, or to the language in the Act. believes that the certification and have an opportunity to occupy a feeder One commenter was concerned that nomination process would give the seat, but who are required to join a producer nominees would have to be Secretary the opportunity to appoint producer trade association and pay dues members of a certified organization in members who best represent each to such association to be eligible to be order to be nominated to the Board. The industry segment because certified nominated to the Board. The Act requires producer organizations to organizations comprised of members of Department carefully reviewed the Act, submit only nominations from the those segments will submit nominations the proposed Order, and the nomination membership of the organization for the to the Board. Additionally, the Act procedures to ensure that the unit in which the organization is requires the Secretary to appoint the nomination process would be located. Accordingly, we have not Board. Accordingly, we have not conducted as provided for in the Act. changed this subsection in this adopted this suggestion. The Act provides for certified producer proposed rule. One commenter stated that the organizations to submit only Section 1280.207 Certification Department had modified the language nominations from their membership for of its initial proposal concerning the unit in which the certified One commenter suggested that the nomination of importers in a way that organization is located. There is no National Lamb Feeders Association be made it appear that importer similar restriction on certified feeder the exclusive nominator of lamb feeder representatives need not be actual and importer organizations. The representatives, and be eligible to importers. The commenter suggests that Department finds no need to change the submit the names of the 15 sheep the term ‘‘importer representatives’’ be Order as a result of these comments. feeders for appointment to the 10 sheep used rather than ‘‘importer’’ because the One commenter suggested that the feeder positions on the Board. The term ‘‘importer representatives’’ would Secretary should not be authorized to Department considered a similar be less restrictive and does not imply appoint the Board. The Act specifically comment proposed during the that the Board members must actually authorizes the Secretary to appoint the development of the proposed Order and import wool products. The Department Board from nominations submitted by did not accept it for inclusion in the did not include this portion of the certified organizations. Accordingly, we proposed Order. This suggestion, if proposal as submitted. However, the have rejected this suggestion. accepted, would prevent other existing Department has again reviewed the organizations or new organizations from Section 1280.205 Method of Obtaining original language in the initial proposal being eligible to nominate feeders to the Nominations and believes that its slight modification Board, thereby restricting the did not materially change the proposal’s One commenter suggested that opportunity for all qualified meaning. The Act requires the Secretary § 1280.205(a) (1) and (2) in the proposed organizations to participate in the to appoint importers to seats established Order should provide that individuals nomination process in contravention of under the Act from nominations as well as certified organizations be the Act. Accordingly, we have rejected submitted by qualified organizations certified as eligible to submit this suggestion. that represent importers. Furthermore, nominations. The Act provides for all Section 1280.208 Term of Office the Act defines ‘‘importer’’ as any nominations to be made from certified person who imports sheep or sheep producer, feeder and importer One commenter noted that the word products into the United States and a organizations. If no organization is ‘‘proportionally’’ was substituted for the ‘‘person’’ as any individual, group of certified for an industry segment or for word ‘‘proportionately’’ in the proposed individuals, partnership, corporation, a State in the case of producers, the Order. To make the Order’s language association, cooperative, or any other proposed Order permits the Secretary to consistent with the language in the Act, legal entity. Consequently, the obtain nominees by other means. we have replaced the word Department believes that the Act Accordingly, we have not adopted this ‘‘proportionally’’ with intended that persons who import sheep suggestion. The commenter further ‘‘proportionately’’ in § 1280.208 in this and sheep products should be eligible suggested that § 1280.205(2)(C) in the proposed Order. proposed Order be amended to read as for appointment to the Board. Section 1280.211 Powers and Duties of Accordingly, we have not adopted this follows: ‘‘The organization has a the Board suggestion. primary and overriding interest in One commenter opposed the representing the feeder or importer Two commenters suggested that inclusion of 25 importers on the Board segment of the sheep industry as § 1280.211(h) in the proposed Order because U.S. producers do not have the opposed to some other aspect of the should be amended to read as follows: opportunity to influence policy in industry.’’ The Act establishes the ‘‘to contract with entities, if necessary, foreign countries. The Act provides that criteria for certification, and it is not to implement plans or projects in 25 importers of sheep and sheep necessary to modify the Order in order accordance with the Act and whenever products are to be represented on the to carry out the Act’s provisions. The possible, the Board shall use existing Board. Accordingly, we have not Department finds that the proposed national organizations representative of adopted this suggestion. changes to § 1280.205 enumerated above feeders, importers, or producers to Two commenters suggested that are unnecessary. Accordingly, we have implement plans and projects in order § 1280.202 of the proposed Order limits not adopted them. to increase efficiency and minimize nominations to members of certified One commenter noted that costs.’’ The Act does not require the organizations because the definition of § 1280.205(b)(2) in the proposed Order Board to utilize existing national ‘‘feeder’’ and ‘‘producer’’ appears to contained a misprint and suggested that organizations to implement plans and allow a producer to qualify as a feeder the language ‘‘shall be made by the projects. The Department believes that but specifically prohibits feeders from Secretary’’ be inserted between the the Board could use such organizations Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62303 if it determined that they could The Department believes that the assessments collected should be used effectively carry out certain projects, Board should have the latitude to fund for overhead and administrative however, we believe that this language promotion plans and projects which expenses, in order to limit the amount would unduly restrict the Board’s specifically make reference to sheep and of assessments used for such expenses. authority to enter into contracts. The wool produced in the U.S. with the The Act does not limit administrative Department finds that § 1280.211(h) limitation that funding for such and overhead expenses. The Department mirrors the Act which states: ‘‘* * * to domestic country of origin plans and expects that the Board would maintain contract with entities, if necessary, to projects cannot exceed the combined its administrative and overhead carry out plans and projects in domestic assessments collected on expenses at a reasonable level. accordance with the Act.’’ Accordingly, sheep and sheep products and further Accordingly, we have not adopted this we have not adopted this language. that the percentage of domestic suggestion. One commenter suggested that the assessments spent on the promotion of Some commenters suggested that any Board should contract directly with domestic sheep and sheep products funds used for export promotion or in existing national lamb organizations like shall not exceed the percentage of furtherance of other export activity the other existing livestock checkoff import assessments spent on the generic should be separately accounted for, a programs that contract with national promotion of sheep and sheep products. percentage of total Board funds used in organizations because this would ensure Accordingly, § 1280.215 is revised in this manner should be refunded to continued funding for such existing this proposed Order to allow Board importers who pay the assessments, and national organizations. The Act funding of promotion plans and projects that expenditures for production-related provides the Board with the power to which involve identification of research or information programs contract with such entities, if necessary, domestic sheep and sheep products as specifically targeted for promotion or to implement plans or projects in being U.S. produced but limit the product quality and safety-related accordance with the Act. However, this amount of assessments the Board can expenditures should be treated similarly suggestion if adopted as a requirement spend on such plans and projects. because such expenditures would not would limit the Board’s ability to One commenter suggested that at least benefit importers. The Department has conduct its program in the most one-half of the assessments collected concluded that the Board should have efficient and effective manner. should be spent on promotion activities the latitude to determine how funds are Accordingly, we have not adopted this because the industry is changing and in to be spent, subject to the approval of suggestion. a crisis. The Department believes that the Secretary. Further, the Act does not establishing a specific amount of Section 1280.215 Use of Assessments provide for reimbursements. assessments to fund a specific program Accordingly, we have not adopted these Fifty-nine commenters suggested that area in the Order would limit the suggestions. funds collected under the program Board’s flexibility to administer the should be used to fund promotion program effectively. Accordingly, we Executive Committee programs of ‘‘Fresh American Lamb’’ have not adopted this suggestion. This Section 1280.217 Membership and other U.S. sheep products because same commenter also suggested that the the majority of funds collected would be National Lamb Feeders Association One commenter suggested that each of generated from U.S. producers and (NLFA) receive funding from the new the seven regions established under feeders. Additionally, some commenters Board. We previously determined that § 1280.211(n) in the proposed Order suggested using domestic assessments to the Act does not authorize such funding should be represented by one member of fund promotion projects for ‘‘Fresh and do not adopt this suggestion in this the Executive Committee for a total of American Lamb’’ and other U.S. sheep proposed Order. seven members representing producers. products would provide the Board with Two commenters suggested that funds The commenter further suggested that the flexibility to establish the most generated under the Act and the Order (1) each member be elected by a effective program to enhance the should promote a wide range of wool majority vote of the directors from their markets for lamb and other sheep products in the United States, including respective region; (2) three members products. Furthermore, many interior textile products; e.g., carpets, represent feeders and be elected by a commenters believe that this program is rugs, and upholstery. The Department majority vote of the 10 feeder directors; a domestic program funded primarily by believes that the Board should be given and (3) three members represent U.S. growers, and because other the latitude to use funds for programs in importers and be elected by a majority livestock research and promotion a manner that would benefit the vote of the 25 importer directors. The programs do not prohibit country of industry most effectively. The Department believes that the Board origin promotion, funds generated Department anticipates that the Board should have the latitude to determine under this program should not prohibit would fund projects according to the how the Executive Committee is country of origin promotion. However needs of the industry. Accordingly, we structured, within the requirements of other commenters contend that funds have not adopted this suggestion. the Act, and that the Board should generated under the program should not Two commenters suggested that establish voting requirements in its be used for specific country of origin assessments collected on wool should policies and procedures, subject to the promotion, but to promote lamb and be spent on wool projects and Secretary’s approval. In addition, the wool generically because generic assessments collected on lamb should Act provides for one ‘‘feeder,’’ member promotion would provide for more be spent on lamb projects. The on the Executive Committee, not three. equitable use of funds and be less Department believes that the Board Accordingly, we have not adopted this subject to legal challenge. In addition, should have the latitude to spend funds suggestion. the same commenters pointed out that on projects that would best address the One commenter suggested that the promotion of lamb and wool economic needs of the entire industry. § 1280.217 in the proposed Order generically would ensure that importers Accordingly, we have not adopted this implicates both equal protection and are not disadvantaged in light of their suggestion. compelled association clauses of the limited representation on the Board and One commenter suggested that no Constitution because feeder and the Executive Committee. more than 4 percent of the annual importer members would be elected by 62304 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules producer members. The commenter be elected by the Board which includes domestic products. Customs merely asked that § 1280.217 be amended to produces, feeders, and importers. The serves as a collecting agent as allow the various industry segments to Department believes that the Board authorized by the Act. Using Customs as name their own representatives to the should have the latitude to establish the a collecting agent in other similar Executive Committee. The Department procedures for filling a vacancy on the checkoff programs has proven to be an believes that the Board should establish Executive Committee consistent with exceptionally economical way of procedures for the nomination and the requirements of the Act and subject collecting importer assessments and election of Executive Committee to the approval of the Secretary. ensuring compliance. members in its policies and procedures, Accordingly, we have not adopted this Several commenters suggested that subject to the requirements of the Act, suggestion. the Department work with Customs or and approval of the Secretary. Thus, we develop a joint committee to develop have rejected the request to amend Assessments and publish the Harmonized Tariff § 1280.217 of the proposed Order, and Section 1280.224 Sheep Purchases Schedule (HTS) classification numbers, have published the language as initially assessment amount, and the conversion Four commenters were concerned proposed without change. factors for the various HTS numbers Several commenters recommended about the high assessment rate subject to assessment. Furthermore, that of the three importer members who compared to other commodity checkoff these commenters asked for clarification serve on the Executive Committee, one programs, and two of these commenters on how the clean wool equivalent member should represent importers of were concerned that the rate of would be calculated or determined on sheep meat to ensure that the sheep assessment could increase over time. the various types of imported wool and meat industry has a voice on the The Act establishes the initial wool products. The Department Executive Committee. The Act does not assessment rate and specifies the published a proposed rule in the specify the consist of the 3 importer manner in which the initial assessment Federal Register (60 FR 51737) that (1) members who serve on the Executive rate may be adjusted. Such adjustments identifies the HTS classification Committee. The Act merely provides must be recommended by the Board and numbers for imported sheep and sheep that the Executive Committee would be approved by the Secretary. Accordingly, products subject to assessment; (2) elected by the membership of the Board. this section is not amended in the describes how the assessment would be The Department believes that the Board Order. calculated if the proposed Order were should have the latitude to allocate the One commenter suggested that the approved in referendum; and (3) three importer member seats on the domestic and import rate of assessment identifies the conversion factors that Executive Committee among importers should increase or decrease would be used to convert sheep meat to of sheep, sheep meat, and wool and proportionately when the Board a live weight equivalent and wool wool products. Accordingly, we have recommends a change in the assessment products to a degreased wool not adopted this suggestion. rate. The Act authorizes increases or equivalent. decreases in the assessment rate for both Some commenters expressed concern Section 1280.221 Quorum domestic and imported sheep and sheep about multiple assessments being We received two comments products. The Department believes that collected on wool or wool products concerning the establishment of a Congress intended that any adjustments imported into the U.S. after having been quorum of the Executive Committee. in the initial assessment rate should be previously exported on one or more One commenter suggested that a the same for all persons subject to occasions to other countries for further quorum should be 11 members to assessment under the Act. processing (ie., weaving, cutting and/or ensure the presence of at least one Consequently, the Secretary will assembly) and suggested that a nonproducer member. In addition, carefully review any Board drawback or refund of the assessment another commenter suggested that a recommended assessment adjustments should be authorized if multiple quorum should consist of eight to ensure that such adjustments are assessments are collected. The members, including the feeder applied equally to all persons who are Department believes that this comment representative and at least one importer required to pay an assessment. would be more appropriately addressed representative. The language in the Accordingly, § 1280.224(d), in the implementing rules and proposed Order mirrors the Act’s § 1280.225(d) and § 1280.228 (c) and (d) regulations published in the Federal requirement, which says that a quorum have been revised to reflect the intent of Register (60 FR 51737). of the Executive Committee shall consist this suggestion. One commenter suggested that rates of eight members. The Act does not One commenter felt that the method set forth in § 1280.228 (c) and (d) in the require a feeder or importer of collecting money at the various stages proposed Order should be reduced representative to be included. Importer in the production chain would not be yearly by a percentage calculated by and feeder representation within the 8- workable. The Act establishes the dividing the amounts provided to States member quorum could be considered by method of collecting assessments and pursuant to paragraphs (a) and (b) of the Board in developing its policies and identifies those persons responsible for § 1280.229 in the proposed Order by the procedures. Accordingly this suggestion collecting and remitting the assessment. total assessments collected by the Board is not adopted. Thus, we have not adopted this on domestic marketings in the year suggestion. funding is given to the States. Section Section 1280.222 Vacancies 1280.229 of this subpart applies to One commenter suggested that any Section 1280.228 Imports QSSBs and as required by the Act sets vacancy on the Executive Committee be One commenter expressed opposition forth the amount of annual assessments filled by the process established to Customs or any other government collected by the Board that must be pursuant to § 1280.217 in the proposed agency collecting funds from importers returned to each QSSB. Section Order, except that the Executive to promote the use of wool and sheep 1280.229 also specifies the minimum Committee members would be elected on the grounds that it is improper for amount QSSBs would receive and by each industry segment. The Act the U.S. government to promote U.S. requires that procedures be established requires that the Executive Committee domestic consumption of imported or to account for the funds. Accordingly, Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62305 we have not adopted this suggestion. inadequate representation of lamb Act. Accordingly, we have not adopted The same commenter suggested that ‘‘as feeders, and inclusion of importers. The this suggestion. adjusted pursuant to § 1280.229,’’ be Act specifically exempts raw wool and Two commenters suggested that added at the end of the first sentence sets forth the composition of the Board. importers receive a credit similar to the under § 1280.228 (c) and (d) in the Several commenters suggested that 20 percent share of funding returned to proposed Order. The provisions of processors of wool and wool products State QSSBs, contending that State § 1280.229, as previously discussed be allowed to retain 5 to 10 percent of funding defeats the basic purpose of the relate to the distribution of collected the total amount of assessments law which is to promote sheep products assessments to QSSBs and are not collected to cover additional nationwide. The Act does not authorize applicable to the assessment rate administrative costs associated with the Board to distribute to importers a provisions for imported sheep and collecting and remitting assessments. portion of the annual assessments sheep products set forth in § 1280.228. The Act does not permit collecting similar to that distributed to QSSBs. Thus, we have not adopted this persons to retain a portion of the Thus, we have not adopted this suggestion. assessments collected to offset suggestion. One commenter suggested that the administrative costs. Accordingly, we Section 1280.230 Collection phrase ‘‘and importer representatives’’ have not adopted this suggestion. be inserted after ‘‘domestic sheep One commenter suggested that Section 1280.229 Qualified State industry’’ under § 1280.228(c). The § 1280.230(b), Late Payment Charges, in Sheep Boards language in the proposed Order mirrors the proposed Order should include a that found in the Act. Accordingly, we One commenter suggested that the provision stating that any collector shall have not adopted this suggestion. Qualified State Sheep Boards (QSSBs), have the right to submit a written One commenter suggested that the the Board and those who contract with petition to the Board to have these Order require a specific finding that a the QSSBs and the Board should charges waived or adjusted under this proposed increase in the assessment rate separately account for checkoff funds. subpart. The commenter indicated the does not violate the U.S. GATT The commenter also suggested that each provisions should also state: ‘‘The Board obligations, preferably in consultation QSSB should (1) be required to give a shall consider such petitions and is with the U.S. Trade Representative written plan showing how it plans to empowered to waive or reduce penalties (USTR). The Secretary is already protect against improper uses of upon a two-thirds majority vote.’’ directed to consult with USTR pursuant assessments; (2) certify each year that it Although, the Department believes that to 7 U.S.C. 2278. Accordingly, this has not used assessments for forbidden the Board should have the flexibility to suggestion is not adopted. purposes; and (3) permit the Secretary establish collection procedures Several commenters suggested that and the Board the opportunity to audit consistent with the Act’s intent and raw wool should not be exempt from the QSSBs and groups that contract with the Order provisions, we have not adopted assessment collection provisions of the Board and QSSBs. Section 1280.229(c) this suggestion concerning late Act because the exemption of raw wool in the proposed Order provides that the payments. would create ‘‘free rides’’ because Board would establish procedures with Another commenter suggested that certain importers of raw wool would the approval of the Secretary to account the 2-percent per month late payment benefit from the program without for funds expended by the QSSBs. charge is usurious and should be pegged actually paying an assessment on raw Additionally, § 1280.213, Books and to the 30-year Treasury bill. The 2- wool. The Act exempts imported raw Records of the Board, provides that (1) percent late payment charge is designed wool from assessments. Accordingly, we the Secretary may inspect and audit to encourage people to remit have not adopted this suggestion. books and records of the Board; (2) the assessments on a timely basis. The Two commenters requested an Board must prepare and submit from Department does not believe that explanation of how the equivalent in time-to-time such reports as prescribed reducing the late payment charge would wool and wool products is to be by the Secretary; and (3) the Board’s further the purposes of the Act. calculated—specifically for wooltop, books are to be audited by an Accordingly, we have not adopted this noils of wool, and wool wastes and independent auditor at the end of each suggestion. generally for wool products that have fiscal year, and auditor’s report Fifty-three commenters supported been further processed. The Department submitted to the Secretary. § 1280.230(d) in the proposed Order has published in the Federal Register Additionally, the Department believes which provides that the Secretary is (60 FR 51737) proposed rules and the Act intends that the Board, the authorized to receive assessments if the regulations concerning the method of QSSBs and any organizations receiving Board is not in place by the date the first calculation to be used in determining funds to conduct program activities assessments are to be collected. We have the assessment amount for live sheep, would be accountable for all funds adopted this section as proposed. sheep meat, and wool and wool received, and would be required to Section 1280.231 Prohibitions on Use products. expend those funds in accordance with One commenter noted that the Act and the Order. Therefore, of Funds § 1280.228(d) in the proposed Order although the Department agrees that Fifty-six commenters opposed and substituted the word ‘‘clean’’ for accountability for funds is important, two supported the language of ‘‘degreased.’’ The Department did we have not made changes in this § 1280.231(d) in the proposed Order, substitute the word and believes that the proposed Order as a result of these which provides that no plans or projects language in the proposed Order should suggestions because the proposed Order shall be undertaken to promote or mirror the language in the Act. Thus, already provides for such advertise any sheep or sheep products the word ‘‘clean’’ is replaced with accountability. The Department believes by brand or trade name without the ‘‘degreased’’ in § 1280.228(d) in this that the Board would develop operating approval of the Board and the proposed Order. procedures and guidelines to ensure concurrence of the Secretary. The One commenter suggested that ‘‘equal that any funds collected under the commenters opposed the language protection’’ problems could arise authority of this subpart would be because Board approval and Secretary because of the exemption of raw wool, accounted for as authorized under the concurrence is already authorized under 62306 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules the Act and in the proposal submitted determined pursuant to the delaying implementation of this by the proponents of Proposal I. requirements set forth in the Regulatory program. Therefore, the commenters feel that Flexibility Act that the economic impact One commenter suggested that the there is no need to address these plans on small entities would not be Department ensure that importers are separately from the Board’s other significant. The Department does not eligible to participate in the referendum. activities and that doing so will result anticipate a significant increase in costs The Act provides that sheep producers, in additional bureaucracy and and paperwork burden to those persons sheep feeders, and importers of sheep administration costs. The Act and subject to the provisions of the Act and and sheep products who, during a proposed Order already authorize the Order because most of the records representative period established by the Board and the Secretary to approve required to be maintained are normally Department, were engaged in sheep plans and projects for funding with maintained by all businesses in the production, sheep feeding or assessments collected under the sheep industry and the calculation of importation of sheep and sheep authority of this subpart. However, assessments is a one step procedure that products—excluding importers of raw based on the Department’s experience uses readily available records. wool—are eligible to vote in the with other similar commodity Accordingly, we have not adopted this referendum. The Department believes promotion and research programs under suggestion. that Congress intended that each person the Department’s oversight, branded One commenter asked how the vote who is subject to the assessment is promotion projects involve joint on the referendum would be conducted entitled to vote. Consequently, the funding with participating private firms and how seats on the Executive Department has proposed and published and a cooperative agreement. Committee and the Board would be referendum rules in the Federal Consequently, the Department believes assigned because the Board is heavily Register (60 FR 40313). that such arrangements are more weighted toward sheep growers. The List of Subjects in 7 CFR Part 1280 complex than the usual plans and Department published proposed projects and thus require additional referendum rules for public comment on Administrative practice and review and evaluation to insure that August 8, 1995, in the Federal Register procedure, Advertising, Agricultural branded promotions are in compliance (60 FR 40313). These proposed rules research, Marketing agreements, Sheep with the Act and the proposed Order include the registration and voting and sheep products, Reporting and and Departmental policy. Based on the procedures. Also, the Act establishes the recordkeeping requirements. Department’s past experience, jointly number of seats for the Executive For the reasons set forth in the funded branded advertising projects Committee and the Board. We have preamble, it is proposed that chapter XI have been reviewed and approved made no changes in this proposed Order of title 7 of the Code of Federal without added expense or undue delays. based on these questions. Regulations be amended as follows: Accordingly, § 1280.231(d) of the Several commenters suggested that 1. Part 1280 is proposed to be added proposed Order is published in this rule additional hearings be conducted as follows: with no modifications. One commenter suggested that throughout the country to allow time for PART 1280ÐSHEEP PROMOTION, § 1280.231, Prohibition on Use of the necessary revisions and allow for RESEARCH, AND INFORMATION Funds, be deleted because it would additional public comment. The restrict the sheep industry’s ability to Department conducted a public meeting Subpart AÐSheep and Wool Promotion, Research, Education, and Information Order defend against detrimental legislation. on June 26, 1995, and provided a 45-day The Act prohibits funds generated comment period so that any person Definitions interested in the sheep and wool under this program from being used in Sec. any manner for the purpose of checkoff program would have the 1280.101 Act. influencing legislation or government opportunity to present testimony or 1280.102 Board. action or policy. Accordingly, we have submit comments by the July 17, 1995, 1280.103 Carbonized wool. not adopted this suggestion. deadline. The Department does not feel 1280.104 Certified organization. One commenter suggested that it is necessary to hold additional public 1280.105 Collecting person. 1280.106 Consumer information. § 1280.231(b)(2) should be strengthened meetings. Also, there are timeframes set forth in the Act. Further, all costs 1280.107 Customs Service. because no assessments should be used 1280.108 Degreased wool. to influence government decision- incurred by the Department in 1280.109 Department. making under the guise of providing conducting the additional meetings are 1280.110 Education. information requested by a friendly reimbursable by the sheep industry. 1280.111 Executive Committee. government official who is actually Accordingly, we have not adopted this 1280.112 Exporter. helping the industry to support or suggestion. 1280.113 Feeder. oppose legislation in which it has A few commenters suggested that the 1280.114 Greasy wool. 1280.115 Handler. interest. The Department believes that implementation of the program be delayed to allow sheep on feed 1280.116 Importer. the language provided in the Act and in 1280.117 Industry information. the proposed Order addresses this inventories to be more manageable and 1280.118 National feeder organization. concern. Accordingly, we have not allow producers to be assessed their fair 1280.119 Part and subpart. adopted this suggestion. share. The sheep industry has requested 1280.120 Person. that assessments begin as soon as 1280.121 Processor. Additional Comments possible so that promotional and other 1280.122 Producer. One commenter suggested that the activities can begin. Because of the time 1280.123 Producer information. Department conduct an economic frames set forth in the Act, the 1280.124 Promotion. impact study because of (1) the Department believes that Congress 1280.125 Pulled wool. 1280.126 Qualified State Sheep Board. recordkeeping burden on the industry; intended for the Department to proceed 1280.127 Raw wool. (2) the loss of the Wool Act; and (3) the in an expeditious manner. The 1280.128 Research. addition of the new program. The Department has determined that no 1280.129 Secretary. Administrator, AMS, previously useful purpose would be served in 1280.130 Sheep. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62307

1280.131 Sheep products. Subpart AÐSheep and Wool § 1280.108 Degreased wool. 1280.132 State. Promotion, Research, Education, and The term degreased wool means wool 1280.133 Unit. Information Order from which the bulk of impurities has 1280.134 United States. been removed by processing. 1280.135 Wool. Definitions 1280.136 Wool products. § 1280.109 Department. § 1280.101 Act. The term Department means the U.S. National Sheep Promotion, Research, and The term Act means the Sheep Information Board Department of Agriculture. Promotion, Research, and Information 1280.201 Establishment and membership of Act of 1994, 7 U.S.C. 7101–7111; Public § 1280.110 Education. the Board. Law No. 103–107; 108 Stat. 4210, 1280.202 Nominations. The term education means activities enacted October 22, 1994, and any 1280.203 Nominee’s agreement to serve. providing information relating to the amendments thereto. 1280.204 Appointment. sheep industry or sheep products to 1280.205 Method of obtaining nominations. § 1280.102 Board. producers, feeders, importers, 1280.206 Vacancies. consumers, and other persons. The term Board means the National 1280.207 Certification of organizations. Sheep Promotion, Research, and § 1280.111 Executive Committee. 1280.208 Term of office. Information Board established pursuant 1280.209 Compensation. The term Executive Committee means 1280.210 Removal. to § 1280.201. the Executive Committee of the Board established under § 1280.216. 1280.211 Powers and duties of the Board. § 1280.103 Carbonized wool. 1280.212 Budgets. The term carbonized wool means § 1280.112 Exporter. 1280.213 Books and records of the Board. The term exporter means any person 1280.214 Investment of funds. wool that has been immersed in a bath, who exports domestic live sheep or 1280.215 Use of assessments. usually of mineral acids or acid salts, that destroys vegetable matter in the greasy wool from the United States. Executive Committee wool, but does not affect the wool fibers. § 1280.113 Feeder. 1280.216 Establishment. § 1280.104 Certified organization. 1280.217 Membership. The term feeder means any person 1280.218 Powers and duties. The term certified organization means who feeds lambs until the lambs reach 1280.219 Term of office. any organization that has been certified slaughter weight. by the Secretary pursuant to this part as 1280.220 Chairperson. § 1280.114 Greasy wool. 1280.221 Quorum. being eligible to submit nominations for 1280.222 Vacancies. membership on the Board. The term greasy wool means wool that has not been washed or otherwise Expenses § 1280.105 Collecting person. cleaned. 1280.223 Expenses. The term collecting person means any § 1280.115 Handler. Assessments person who is responsible for collecting an assessment pursuant to the Act, this The term handler means any person 1280.224 Sheep purchases. subpart and regulations prescribed by who purchases and markets greasy 1280.225 Wool purchases. the Board and approved by the wool. 1280.226 Direct processing. Secretary, including processors and any § 1280.116 Importer. 1280.227 Exports. other persons who are required to remit The term importer means any person 1280.228 Imports. assessments to the Board pursuant to 1280.229 Qualified State Sheep Board. who imports sheep or sheep products this part, except that a collecting person into the United States. 1280.230 Collection. who is a market agency; i.e., 1280.231 Prohibition on use of funds. commission merchant, auction market, § 1280.117 Industry information. Reports, Books, and Records or livestock market in the business of The term industry information means 1280.232 Reports. receiving such sheep or sheep products information and programs that would 1280.233 Books and records. for sale on commission for or on behalf lead to increased efficiency in 1280.234 Use of information. of a producer or feeder shall pass the processing and the development of new 1280.235 Confidentiality. collected assessments on to the markets, marketing strategies, increased subsequent purchaser pursuant to the marketing efficiency, and activities to Miscellaneous Act, this subpart and the regulations enhance the image of sheep or sheep 1280.240 Right of the Secretary. prescribed by the Board and approved products on a national or international 1280.241 Proceedings after termination. by the Secretary. basis. 1280.242 Effect of termination or amendment. § 1280.106 Consumer information. § 1280.118 National feeder organization. 1280.243 Personal liability. The term consumer information The term national feeder organization 1280.244 Patents, copyrights, inventions, means nutritional data and other means any organization of feeders that and publications. information that would assist has been certified by the Secretary 1280.245 Amendments. consumers and other persons in making pursuant to the Act and this part as 1280.246 Separability. evaluations and decisions regarding the being eligible to submit nominations for Subpart BÐ[Reserved] purchase, preparation, or use of sheep membership on the Board. products. Subpart CÐ[Reserved] § 1280.119 Part and subpart. § 1280.107 Customs Service. Subpart DÐ[Reserved] Part means the Sheep and Wool The term Customs Service means the Promotion, Research, Education, and Subpart EÐ[Reserved] U.S. Customs Service of the Department Information Order and all rules and Authority: 7 U.S.C. 7101–7111. of the Treasury. regulations issued pursuant to the Act 62308 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules and the Order, and the Order itself shall feeding of sheep), processing, Board be a subpart of such part. distribution, or use of sheep or sheep Unit members products, to encourage, expand, § 1280.120 Person. improve, or make more efficient the Arkansas ...... 1 The term person means any marketing of sheep or sheep products. California ...... 5 individual, group of individuals, Colorado ...... 4 partnership, corporation, association, § 1280.129 Secretary. Connecticut ...... 1 Delaware ...... 1 cooperative, or any other legal entity. The term Secretary means the Florida ...... 1 Secretary of Agriculture of the United § 1280.121 Processor. Georgia ...... 1 States or any other officer or employee Hawaii ...... 1 The term processor means any person of the Department to whom authority Idaho ...... 2 who slaughters sheep or processes has been delegated, or to whom Illinois ...... 1 greasy wool into degreased wool. authority may be delegated, to act in the Indiana ...... 1 Secretary’s stead. Iowa ...... 2 § 1280.122 Producer. Kansas ...... 1 The term producer means any person, § 1280.130 Sheep. Kentucky ...... 1 other than a feeder, who owns or The term sheep means ovine animals Louisiana ...... 1 acquires ownership of sheep. of any age, including lambs. Maine ...... 1 Maryland ...... 1 § 1280.123 Producer information. § 1280.131 Sheep products. Massachusetts ...... 1 Michigan ...... 1 The term producer information means The term sheep products means Minnesota ...... 2 activities designed to provide products produced in whole or in part Mississippi ...... 1 producers, feeders, and importers with from sheep, including wool and Missouri ...... 1 information relating to production or products containing wool fiber. Montana ...... 5 marketing efficiencies or developments, Nebraska ...... 1 program activities, or other information § 1280.132 State. Nevada ...... 1 that would facilitate an increase in the The term State means each of the 50 New Hampshire ...... 1 consumption of sheep or sheep States. New Jersey ...... 1 New Mexico ...... 2 products. § 1280.133 Unit. New York ...... 1 § 1280.124 Promotion. The term unit means each State, group North Carolina ...... 1 North Dakota ...... 2 The term promotion means any action of States, or class designation that is represented on the Board. Ohio ...... 1 (including paid advertising) to advance Oklahoma ...... 1 the image and desirability of sheep or § 1280.134 United States. Oregon ...... 2 sheep products, to improve the The term United States means the 50 Pennsylvania ...... 1 Rhode Island ...... 1 competitive position, and stimulate States and the District of Columbia. sales, of sheep products in the domestic South Carolina ...... 1 and international marketplace. § 1280.135 Wool. South Dakota ...... 4 Tennessee ...... 1 The term wool means the fiber from § 1280.125 Pulled wool. Texas ...... 10 the fleece of a sheep. Utah ...... 3 The term pulled wool means wool Vermont ...... 1 that is pulled from the skin of § 1280.136 Wool products. Virginia ...... 1 slaughtered sheep. The term wool products means Washington ...... 1 products produced, in whole or in part, West Virginia ...... 1 § 1280.126 Qualified State Sheep Board. from wool and products containing Wisconsin ...... 1 The term Qualified State Sheep Board wool fiber. Wyoming ...... 5 means a sheep and wool promotion entity that: National Sheep Promotion, Research, (b) Feeders. The feeder sheep industry (a) Is authorized by State statute or and Information Board shall be represented by 10 members. organized and operating within a State; § 1280.201 Establishment and membership (c) Importers. Importers shall be (b) Receives voluntary contributions of the Board. represented by 25 members. or dues and conducts promotion, (d) Alternates. A unit represented by There is hereby established a National only one producer member may have an research, or consumer information Sheep Promotion, Research, and programs with respect to sheep or wool, alternate member appointed to ensure Information Board (Board) of 120 representation at meetings of the Board. or both; and members. Members of the Board shall be (c) Is recognized by the Board as the appointed by the Secretary from § 1280.202 Nominations. sheep and wool promotion entity within nominations submitted in accordance the State; except that not more than one (a) Producers. The Secretary shall with this subpart. The seats shall be appoint producers and alternates to QSSB shall exist in any State at any one apportioned as follows: time. represent units as specified under (a) Producers. For purposes of § 1280.201(a) from nominations § 1280.127 Raw wool. nominating producers to the Board, submitted by organizations certified each State shall be represented by the The term raw wool means greasy under § 1280.207. A certified following number of members: wool, pulled wool, degreased wool, or organization may submit only carbonized wool. nominations for producer Board representatives and alternates if Unit members § 1280.128 Research. appropriate from the membership of the The term research means Alabama ...... 1 organization for the unit in which the development projects and studies Alaska ...... 1 organization operates. To be represented relating to the production (including the Arizona ...... 1 on the Board, each certified organization Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62309 shall submit to the Secretary at least 1.5 staggered terms. If the Secretary rejects the feeder or importer segment of the nominations for each seat on the Board any nominations submitted and there sheep industry. for which the unit is entitled to are insufficient nominations submitted (b) Subsequent appointment—(1) representation. If a unit is entitled to from which appointments can be made, Producer nominations. The solicitation only one seat on the Board, the unit the Secretary may request additional of nominations for subsequent shall submit at least two nominations nominations under paragraph (a), (b), or appointment to the Board from eligible for the appointment. (c) of this section. organizations certified under § 1280.207 (b) Feeders. The Secretary shall shall be initiated by the Secretary, with appoint representatives of the feeder § 1280.203 Nominee's agreement to serve. the Board securing the nominations for sheep industry to seats established Any producer, feeder, or importer the Secretary. under § 1280.201(b) from nominations nominated to serve on the Board, or as (2) Feeder and importer nominations. submitted by qualified national an alternate, shall file with the Secretary The solicitation of feeder and importer organizations that represent the feeder at the time of the nomination a written nominations for subsequent sheep industry. To be represented on agreement to: appointment to the Board shall be made the Board, the industry shall provide at (a) Serve on the Board if appointed; by the Secretary from organizations least 1.5 nominations for each (b) Disclose any relationship with any certified in accordance with paragraph appointment to the Board to which the organization that operates a qualified (a)(2) of this section. feeder sheep industry is entitled. State or regional program or has a (c) Importers. The Secretary shall contractual relationship with the Board; § 1280.206 Vacancies. appoint importers to seats established and To fill any vacancy occasioned by the under § 1280.201(c) from nominations (c) Withdraw from participation in death, removal, resignation, or submitted by qualified organizations deliberations, decisionmaking, or voting disqualification of any member of the that represent importers. The Secretary on matters that concern the relationship Board, the Secretary shall appoint a shall receive at least 1.5 nominations for disclosed under paragraph (b) of this successor from the most recent list of each appointment to the Board to which section. nominations for the position or from importers are entitled. nominations submitted by the Board. (d) As soon as practicable, the § 1280.204 Appointment. Secretary shall obtain nominations from From the nominations made pursuant § 1280.207 Certification of organizations. certified organizations. If no to § 1280.202, the Secretary shall (a) In general. The eligibility of any organization is certified in a unit the appoint the members of the Board on State organization to represent Secretary may use other means to obtain the basis of representation provided in producers and to participate in the nominations. A certified organization § 1280.201. making of nominations under this shall only submit nominations for subpart shall be certified by the positions on the Board representing § 1280.205 Method of obtaining Secretary. The Secretary shall certify units in which such certified nominations. any State organization that the Secretary organization can establish that it is (a) Initially established Board. (1) determines meets the eligibility criteria certified as eligible to submit Producer and alternate nominations. established under paragraph (b) of this nominations for representation of that The Secretary shall solicit, from section. An eligibility determination by unit of individual producers, feeders, or organizations certified under the Secretary shall be final. importers residing in that unit. § 1280.207, nominations for each (b) Basis for certification. Certification (e) After the establishment of the producer’s or alternate member’s seat on shall be based upon, in addition to other initial Board, the Department shall the initially-established Board to which available information, a factual report announce when a vacancy does or will a unit is entitled. If no such organization submitted by the organization that shall exist. Nominations shall be initiated not exist, the Secretary shall solicit contain information considered relevant less than 6 months before the expiration nominations for appointments in such and specified by the Secretary, of the terms of the members whose manner as the Secretary determines including: terms are expiring, in the manner appropriate. (1) The geographic territory covered described in § 1280.205(b). In the case of (2) Feeder and importer nominations. by the active membership of the vacancies due to reasons other than the The Secretary shall solicit, from organization; expiration of term of office, successor certified organizations that represent (2) The nature and size of the active Board members shall be appointed feeders and importers, nominations for membership of the organization, pursuant to § 1280.206. each seat to which feeders or importers including the proportion of the total (f) Where there is more than one are entitled. If no such organization number of active producers represented eligible organization representing exists, the Secretary shall solicit by the organization; producers, feeders, or importers in a nominations for appointments in such (3) Evidence of stability and State or unit, they may caucus and manner as the Secretary determines permanency of the organization; jointly nominate a minimum of 1.5 appropriate. In determining whether an (4) Sources from which the operating qualified persons for each position organization is eligible to submit funds of the organization are derived; representing that State or unit on the nominations under this subparagraph, (5) The functions of the organization; Board for which a member is to be the Secretary shall determine whether: and appointed. If joint agreement is not (i) The organization’s active (6) The ability and willingness of the reached with respect to any such membership includes a significant organization to further the aims and nominations, or if no caucus is held, number of feeders or importers in objectives of the Act. each certified organization may submit relation to the total membership of the (c) Primary considerations. A primary nominations for each appointment to be organization; consideration in determining the made to represent that State or unit. (ii) There is evidence of stability and eligibility of an organization under this (g) Nominations should be submitted permanency of the organization; and paragraph shall be whether: in order of preference and, for the initial (iii) The organization has a primary (1) The membership of the Board, in order of preference for and overriding interest in representing organization consists primarily of 62310 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules producers who own a substantial (k) To recommend to the Secretary Federal Reserve System, or in quantity of sheep; and amendments to this subpart; obligations fully guaranteed as to (2) An interest of the organization is (l) To provide the Secretary with prior principal and interest by the United in the production of sheep. notice of meetings of the Board to States. Any income from any such permit the Secretary or a designated investment may be used for any purpose § 1280.208 Term of office. representative to attend such meetings; for which the invested funds may be Each appointment to the Board shall (m) To provide not less than annually used. be for a term of 3 years, except that a report to producers, feeders, and appointments to the initially established importers, accounting for the funds § 1280.215 Use of assessments. Board shall be proportionately for 1- expended by the Board, and describing (a) Assessments received by the Board year, 2-year, and 3-year terms. No programs implemented under the Act; shall be used by the Board: person may serve more than two and to make such report available to the (1) To fund promotion, research, consecutive 3-year terms, except that public upon request; education, and information plans and elected officers shall not be subject to (n) To establish seven regions that, to projects authorized under this subpart, the term limitation while they hold the extent practicable, contain including promotion plans and projects office. geographically contiguous States and which make specific reference to § 1280.209 Compensation. approximately equal numbers of sheep domestic sheep and sheep products producers and sheep production; originating or being produced and/or Board members shall serve without (o) To employ or retain necessary marketed in the U.S., except that the compensation, but shall be reimbursed staff; and combined expenditures for such for their reasonable expenses incurred (p) To invest funds in accordance promotion plans and projects involving in performing their duties as Board with § 1280.214. domestic country of origin shall be members. limited to no more than the combined § 1280.212 Budgets. § 1280.210 Removal. domestic assessments collected on If the Secretary determines that any (a) In general. The Board shall review sheep and sheep products and the person appointed under this part fails to the budget submitted by the Executive percentage of domestic assessments perform his or her duties properly or Committee, on a fiscal year basis, of spent on the promotion of domestic engages in acts of dishonesty or willful anticipated expenses and disbursements sheep and sheep products shall not misconduct, the Secretary shall remove by the Board, including probable costs exceed the percentage of import the person from office. The Secretary of administration and promotion, assessments spent on the generic may remove a person appointed or research, consumer information, promotion of sheep and sheep products; certified under this part, or any education, industry information, and and employee of the Board, if the Secretary producer information projects. The (2) For the payment of expenses determines that the person’s continued Board shall submit the budget to the incurred in administering this subpart, service would be detrimental to the Secretary for the Secretary’s approval. including a reasonable reserve. purposes of the Act. (b) Limitation. No expenditure of (b) The Board shall reimburse the funds may be made by the Board unless Secretary, from assessments collected, § 1280.211 Powers and duties of the such expenditure is authorized under a for costs incurred in implementing and Board. budget or budget amendment approved administering the Order as provided for The Board shall have the following by the Secretary. under the Act. powers and duties: (a) To elect officers of the Board, § 1280.213 Books and records of the Executive Committee Board. including a chairperson, vice § 1280.216 Establishment. chairperson, and secretary/treasurer; The Board shall: (b) To administer this subpart in (a) Maintain such books and records, The Board shall establish an accordance with its terms and which shall be made available to the Executive Committee of the Board to provisions; Secretary for inspection and audit, as assist the Board in the administration of (c) To recommend regulations to the Secretary may prescribe; the terms and provisions of this subpart, effectuate the terms and provisions of (b) Prepare and submit to the under the direction of the Board, and this subpart; Secretary, from time-to-time, such consistent with the policies determined (d) To hold at least one annual reports as the Secretary may prescribe; by the Board. meeting and any additional meetings it and § 1280.217 Membership. deems appropriate; (c) Account for the receipt and (e) To elect members of the Board to disbursement of all funds entrusted to The Executive Committee shall be serve on the Executive Committee; it. The Board shall cause its books and comprised of 14 members as follows: (f) To approve or reject budgets records to be audited by an independent (a) Eleven members of the Executive submitted by the Executive Committee; auditor at the end of each fiscal year, Committee shall be elected by the Board (g) To submit budgets to the Secretary and a report of such audit to be annually. Of these members: for approval; submitted to the Secretary. (1) One member shall represent each (h) To contract with entities, if of the seven regions established under necessary, to implement plans or § 1280.214 Investment of funds. § 1280.211(n) for a total of seven projects in accordance with the Act; The Board may invest, pending members representing producers; (i) To conduct programs of promotion, disbursement, funds it receives under (2) One member shall represent research, consumer information, this subpart, only in obligations of the feeders; and education, industry information, and United States or any agency thereof, in (3) Three members shall represent producer information; general obligations of any State or any importers. (j) To receive, investigate, and report political subdivision thereof, in any (b) The remaining three members of to the Secretary complaints of violations interest-bearing account or certificate of the Executive Committee shall be the of this subpart; deposit of a bank that is a member of the elected officers of the Board. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62311

§ 1280.218 Powers and duties. (1) keep accurate records of all of its producer, feeder, or handler shall pay (a) Plans and projects. The Executive transactions; such assessment to the collecting person Committee shall develop plans or (2) account for funds received and at the rate set forth in paragraph (d) of projects of promotion and advertising, expended, including staff time, salaries, this section. research, consumer information, and expenses expended on behalf of (b) Remittances. Each processor education, industry information, and Board activities; making payment to a producer, feeder, producer information, which plans or (3) make periodic reports to the Board handler, or collecting person for wool projects shall be paid for with of activities conducted; and purchased from the producer, feeder, assessments collected by the Board. The (4) make such other reports as the handler, or collecting person shall be a plans or projects shall not become Board or the Secretary may require. collecting person and shall collect an effective until approved by the Assessments assessment from the producer, feeder, Secretary. handler, or other collecting person on (b) Budgets. The Executive Committee § 1280.224 Sheep purchases. all wool sold by the producer, feeder, shall be responsible for developing and (a) In general. Each person making handler, or collecting person, and each submitting to the Board, for Board payment to a producer or feeder for such producer, feeder, handler, or approval, budgets on a fiscal year basis sheep purchased from the producer or collecting person shall pay such of the Board’s anticipated expenses and feeder shall be a collecting person and assessment to the processor at the rate disbursements, including the estimated shall collect an assessment from the set forth in paragraph (d) of this section costs of advertising and promotion, producer or feeder on each sheep sold and such processor shall remit the research, consumer information, by the producer or feeder. Each such assessment to the Board. producer or feeder shall pay such education, industry information, and (c) Processing. Any person purchasing assessment to the collecting person at producer information projects. The greasy wool for processing shall collect the rate set forth in paragraph (d) of this Board shall approve or disapprove such the assessment and remit the assessment budgets and, if approved, shall submit section. (b) Remittances. Each processor to the Board. them to the Secretary for the Secretary’s (d) Rate. Except as otherwise approval. making payment to a producer, feeder, or collecting person for sheep purchased provided, the rate of assessment shall be § 1280.219 Term of office. from the producer, feeder, or collecting 2-cents-per-pound. The rate of Terms of appointment to the person shall be a collecting person and assessment may be raised or lowered no Executive Committee shall be for 1 year. shall collect an assessment from the more than 0.2 of a cent per pound in producer, feeder, or other collecting any 1 year as recommended by the § 1280.220 Chairperson. person on each sheep sold by the Executive Committee and approved by The Chairperson of the Board shall producer, feeder, or collecting person, the Board and the Secretary. However, serve as chairperson of the Executive and each such producer, feeder, or if the Board makes a recommendation to Committee. collecting person shall pay such the Secretary to raise or lower the assessment to the processor at the rate assessment rates, the domestic rate and § 1280.221 Quorum. set forth in paragraph (d) in this section, the import rate must be raised or A quorum of the Executive Committee and such processor shall remit the lowered simultaneously by an shall consist of eight members. assessment to the Board. equivalent amount. The rate of assessment shall not exceed 4-cents-per- § 1280.222 Vacancies. (c) Processing. Any person who purchases sheep for processing shall pound of greasy wool. To fill any vacancy caused by the collect the assessment from the seller death, removal, resignation, or § 1280.226 Direct processing. and remit the assessment to the Board. disqualification of any member of the (d) Rate. Except as otherwise Each person who processes or causes Executive Committee, the Board shall provided, the rate of assessment shall be to be processed sheep or sheep products elect a successor for the position 1-cent-per-pound of live sheep sold. The of that person’s own production, and pursuant to § 1280.217. rate of assessment may be raised or markets such sheep or sheep products, Expenses lowered no more than 0.15 of a cent in shall pay an assessment on such sheep any 1 year as recommended by the or sheep products at the time of sale at § 1280.223 Expenses. Executive Committee and approved by a rate equivalent to the rate established (a) The Board shall be responsible for the Board and the Secretary. However, in § 1280.224(d) or § 1280.225(d), as all expenses of the Board and the if the Board makes a recommendation to appropriate, and shall remit such Executive Committee. the Secretary to raise or lower the assessment to the Board. (b) Contracts and Agreements. Any assessment rates, the domestic rate and § 1280.227 Exports. contract or agreement entered into by the import rate must be raised or the Board shall provide that: lowered simultaneously by an Each person who exports live sheep (1) The contracting party shall equivalent amount. The rate of or greasy wool shall remit the develop and submit to the Board a plan assessment shall not exceed 21⁄2-cents- assessment on such sheep or greasy or project of promotion, research, per-pound. wool at the time of export, at a rate education, consumer information, equivalent to the rate established in industry information, and producer § 1280.225 Wool purchases. § 1280.224(d) or § 1280.225(d), as information, together with a budget or (a) In general. Each person making appropriate, and shall remit such budgets that shall show estimated costs payment to a producer, feeder, or assessment to the Board. to be incurred for such plan or project; handler of wool for wool purchased and from the producer, feeder, or handler § 1280.228 Imports. (2) No plan, project, contract, or shall be a collecting person and shall (a) In general. Each person who agreement shall become effective until it collect an assessment from the imports sheep or sheep products or who has been approved by the Secretary. producer, feeder, or handler on each imports wool or products containing (c) The contracting party shall: pound of greasy wool sold. The wool (with the exception of raw wool) 62312 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules into the United States shall pay an § 1280.230 Collection. (1) To the development and assessment to the Board. (a) Each person responsible for the recommendation of amendments to this (b) Collection. The Customs Service is collection and remittance to the Board subpart; or authorized to collect and remit such of assessments under this subpart shall (2) To the communication to assessment to the Secretary for do so on a monthly basis, unless the appropriate government officials, in disbursement to the Board. Board, with the approval of the response to a request made by the (c) Rate for sheep and sheep products. Secretary, has specifically authorized officials, of information relating to the The assessment rate for sheep shall be otherwise. conduct, implementation, or results of 1-cent-per-pound of live sheep. The (b) Late payment charges. Any unpaid promotion, research, consumer assessment rate for sheep products shall assessments due the Board or from a information, education, industry be the equivalent of 1-cent-per-pound of person responsible for remitting information, or producer information live sheep, as determined by the assessments to the Board, shall be activities under this subpart. Secretary in consultation with the increased by 2 percent each month (c) A plan or project conducted domestic sheep industry. Such rates beginning with the day after the date pursuant to this part shall not make may be raised or lowered no more than such assessments were due under this false or misleading claims on behalf of 0.15-cent-per-pound in any 1 year as subpart. Any assessments or late sheep or sheep products or against a recommended by the Executive payment charges that remain unpaid competing product. Committee and approved by the Board shall be increased at the same rate on (d) No such plans or projects shall be and the Secretary, but shall not exceed the corresponding day of each month undertaken to promote or advertise any thereafter until paid. 21⁄2-cents-per-pound. However, if the sheep or sheep products by brand or (c) Any unpaid assessments due to the Board makes a recommendation to the trade name without the approval of the Board pursuant to § 1280.224, Secretary to raise or lower the Board and the concurrence of the § 1280.225, § 1280.226, and § 1280.227 assessment rates, the domestic rate and Secretary. shall be increased 2 percent each month the import rate must be raised or beginning with the day following the Reports, Books, and Records lowered simultaneously by an date such assessments were due. Any equivalent amount. § 1280.232 Reports. remaining amount due, which shall (d) Rate for wool and wool products. include any unpaid charges previously (a) Each collecting person, including The assessment rate for wool and made pursuant to this paragraph, shall processors and other persons required to products containing wool shall be 2- be increased at the same rate on the remit assessments to the Board pursuant cents-per-pound of degreased wool or corresponding day of each month to § 1280.224(b) for live sheep, each the equivalent of degreased wool. The thereafter until paid. For the purposes of person who markets sheep products of rate of assessment may be raised or this paragraph, any assessment that person’s own production and each lowered no more than 0.2-cents-per- determined at a date later than the date exporter of sheep shall report to the pound in any 1 year, as recommended prescribed by this subpart because of a Board information pursuant to by the Executive Committee and person’s failure to submit a timely regulations prescribed by the Board and approved by the Board and the report to the Board shall be considered approved by the Secretary. Such Secretary, but shall not exceed 4-cents- to have been payable by the date it information may include: per-pound of degreased wool or the would have been due if the report had (1) The number of sheep purchased, equivalent. However, if the Board makes been timely filed. The date of payment initially transferred or which, in any a recommendation to the Secretary to is the applicable postmark date or the other manner, are subject to the raise or lower the assessment rates, the date of receipt by the Board, whichever collection of assessment, and the dates domestic rate and the import rate must is earlier. of such transaction; be raised or lowered simultaneously by (d) If the Board is not in place by the (2) The number of sheep imported or an equivalent amount. date the first assessments are to be exported, or the equivalent thereof of (e) The Secretary shall issue collected, the Secretary shall have the sheep products imported; regulations regarding the assessment authority to receive assessments and (3) The amount of assessment rates for imported sheep and sheep invest them on behalf of the Board, and remitted; products. The Secretary may exclude shall pay such assessments and any (4) An explanation for the remittance from assessment certain imported interest earned to the Board when it is of any assessment that is less than the products that contain de minimis levels formed. The Secretary shall have the pounds of sheep multiplied by the of sheep or sheep products and waive authority to promulgate rules and assessment rate; and the assessment on such products. regulations concerning assessments and (5) The date any assessment was paid. (b) Each collecting person, including § 1280.229 Qualified State Sheep Board. the collection of assessments if the Board is not in place or is otherwise processors and other persons required to (a) Except as provided in paragraph unable to develop such rules and remit assessments to the Board pursuant (b) of this section, 20 percent of the total regulations. to § 1280.225(b) for wool purchased assessments collected by the Board on from the producer or handler of wool or the marketings of domestic sheep and § 1280.231 Prohibition on use of funds. wool products, each person purchasing domestic sheep products in any 1 year (a) Except as otherwise provided in greasy wool for processing, each from a State shall be returned to the paragraph (b) of this section, no funds importer of wool or wool products QSSB of the State. collected by the Board under this (except raw wool), each exporter of (b) No QSSB shall receive less than subpart shall be used in any manner for greasy wool, and each person who $2,500 under paragraph (a) of this the purpose of influencing any action or markets wool of that person’s own section in any 1 year. (c) The Board policy of the United States Government, production shall report to the Board shall establish procedures with the any foreign or State Government, or any information pursuant to regulations approval of the Secretary to account for political subdivision thereof. prescribed by the Board and approved funds expended pursuant to paragraphs (b) The prohibition in paragraph (a) of by the Secretary. Such information may (a) and (b) of this section. this section shall not apply: include: Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules 62313

(1) The amount of wool purchased, addition, the Secretary shall authorize § 1280.241 Proceedings after termination. initially transferred or in any other the use under this part of information (a) Upon the termination of this manner subject to the collection of that is accumulated under laws or subpart, the Board shall recommend not assessment, and the dates of such regulations other than the Act or more than five of its members to the transaction; regulations issued under the Act Secretary to serve as trustees for the (2) The amount of wool imported regarding persons paying producers, purpose of liquidating the affairs of the (except raw wool) or the equivalent feeders, importers, handlers, or Board. Such persons, upon designation thereof of wool products imported or processors. by the Secretary, shall become trustees the amount of greasy wool exported; of all the funds and property owned, in § 1280.235 Confidentiality. (3) The amount of assessment the possession of or under the control of remitted; (a) All information from records or the Board, including any claims of the (4) An explanation for the remittance reports required pursuant to this subpart Board against third parties that exist at of an assessment that is less than the shall be kept confidential by all officers the time of such termination. pounds of wool multiplied by the and employees of the Department and of (b) The trustees shall: assessment rate; and the Board. Such information may be (1) Act as trustees until discharged by (5) The date any assessment was paid. disclosed only if the Secretary considers the Secretary; (2) Carry out the obligations of the § 1280.233 Books and records. the information relevant, the information is disclosed only in a suit Board under any contracts or (a) Each collecting person, including or administrative hearing brought at the agreements entered into by the Board processors and other persons required to direction or on the request of the pursuant to § 1280.223(b); remit assessments to the Board, each Secretary, or to which the Secretary or (3) From time to time account for all importer of sheep or sheep products any officer of the United States is a receipts and disbursements and deliver (except raw wool), and exporter of party, and the information relates to the all property on hand, together with all sheep or greasy wool, and each person Act. books and records of the Board and of who markets sheep products of that the trustees, to such persons as the (b) Administration. No information person’s own production, shall maintain Secretary may direct; and and make available for inspection such obtained under the authority of this (4) Upon the request of the Secretary, books and records as may be required by subpart may be made available to any execute such assignment of other regulations prescribed by the Board and agency or officer of the Federal instruments necessary or appropriate to approved by the Secretary, including Government for any purpose other than transfer to such persons full title and records necessary to verify any required the implementation of the Act and any right to all of the funds, property, and reports. Such records shall be investigatory or enforcement action claims of the Board or the trustees maintained for the period of time necessary for the implementation of the pursuant to this subpart. prescribed by the regulations issued Act. (c) Any person to whom funds, hereunder. (c) General statements. Nothing in property or claims have been transferred (b) Document evidencing payment of paragraph (a) of this section may be or delivered pursuant to this subpart assessments. Each collecting person deemed to prohibit: shall be subject to the same obligation responsible for collecting an assessment (1) The issuance of general imposed upon the Board and upon the paid pursuant to this subpart, other than statements, based on the reports of the trustees. a person who slaughters sheep or number of persons subject to this (d) Any residual funds not required to markets sheep products of his or her subpart or statistical data collected pay the necessary costs of liquidation own production for sale, is required to therefrom, which statements do not shall be turned over to the Secretary to give the person or collecting person identify the information furnished by be used, to the extent practicable, for from whom the collecting person any person; or continuing one or more of the collected an assessment written promotion, research, consumer evidence of payment of the assessments (2) The publication, by direction of information, education, industry paid pursuant to this subpart. Such the Secretary, of the name of any person information, and producer information written evidence serving as a receipt violating this subpart and a statement of plans or projects authorized pursuant to shall include: the particular provisions of this subpart this subpart. (1) Name and address of the collecting violated by such person. person; (d) Penalty. Any person who willfully § 1280.242 Effect of termination or (2) Name of the producer who paid violates the provisions of this subpart, amendment. the assessment; on conviction, shall be subject to a fine Unless otherwise expressly provided (3) Number of head of sheep or of not more than $1,000, or to by the Secretary, the termination of this pounds of wool sold; imprisonment for not more than 1 year, subpart or of any regulation issued (4) Total assessments paid by the or both, and if the person is an officer pursuant thereto, or the issuance of any producer; or employee of the Board or the amendment to either thereof, shall not: (5) Date; and Department, that person shall be (a) Affect or waive any right, duty, (6) Such other information as the removed from office. obligation, or liability that has arisen or Board, with the approval of the may hereafter arise in connection with Secretary, may require. Miscellaneous any provision of this subpart or any § 1280.240 Right of the Secretary. regulation issued thereunder; or § 1280.234 Use of information. (b) Release or extinguish any violation Information from records or reports All fiscal matters, programs or of this subpart or any regulation issued required pursuant to this subpart shall projects, bylaws, rules or regulations, thereunder; or be made available to the Secretary as is reports, or other substantive actions (c) Affect or impair any rights or appropriate to the administration or proposed, and prepared by the Board remedies of the United States, the enforcement of the Act, this subpart or shall be submitted to the Secretary for Secretary or any person with respect to any regulation issued under the Act. In approval. any such violation. 62314 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules

§ 1280.243 Personal liability. Government as represented by the any person or circumstances is held No member, employee, or agent of the Board, and shall, along with any rents, invalid, the validity of the remainder of Board, including employees, agents, or royalties, residual payments, or other this subpart of the applicability thereof Board members of the QSSB, acting income from the rental, sales, leasing, to other persons or circumstances shall pursuant to the authority provided in franchising, or other uses of such not be affected thereby. this subpart, shall be held personally patents, copyrights, inventions, or responsible, either individually or publications, inure to the benefit of the Subpart BÐ[Reserved] jointly, in any way whatsoever, to any Board. Upon termination of this subpart, person for errors in judgment, mistakes, § 1280.240 shall apply to determine Subpart CÐ[Reserved] or other acts of either commission or disposition of all such property. omission, of such member, employee, or Subpart DÐ[Reserved] agent except for acts of dishonesty or § 1280.245 Amendments. Amendments to the subpart may be willful misconduct. Subpart EÐ[Reserved] proposed, from time to time, by the § 1280.244 Patents, copyrights, inventions, Board or by any interested person Dated: November 29, 1995. and publications. affected by the provisions of the Act, Lon Hatamiya, Any patents, copyrights, inventions, including the Secretary. or publications developed through the Administrator. use of funds remitted to the Board under § 1280.246 Separability. [FR Doc. 95–29528 Filed 12–1–95; 3:00 pm] the provisions of this subpart shall be If any provision of this subpart is BILLING CODE 3410±02±P the property of the United States declared invalid or its applicability to federal register December 5,1995 Tuesday Rule andProposed Removal ofObsoleteRegulations;Final 10 CFRParts475,476,and478 Energy Department of Part III 62315 62316 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations

DEPARTMENT OF ENERGY 10 CFR Part 475—Electric and Hybrid Regulatory Affairs of the Office of Vehicle Research, Development and Management and Budget. Demonstration Program 10 CFR Parts 475, 476, and 478 Federalism The Electric and Hybrid Vehicle Removal of Obsolete Regulations Research, Development and The Department has analyzed this Demonstration Act of 1976, 15 U.S.C. rulemaking in accordance with the AGENCY: Department of Energy. 2501 et seq., authorized the Department principles and criteria contained in Executive Order 12612, and has ACTION: Direct final rule. to support research, development and demonstration of electric and hybrid determined that there are no federalism vehicle technologies. Part 475 contains implications that would warrant the SUMMARY: The Department of Energy is preparation of a Federalism Assessment. amending the Code of Federal performance standards for electric Regulations (CFR) to remove obsolete vehicles which DOE developed for Regulatory Flexibility Act regulations relating to defunct programs purposes of the demonstration program. The demonstration period extended, by Given that the programs for which of financial assistance for electric and law, through fiscal year 1986. 15 U.S.C. these regulations were promulgated are hybrid vehicle research and methane 2506(c)(3). Because the demonstration now inactive, the Department certifies transportation research. This action is program has ended, these regulations that this rulemaking will not have a being taken in furtherance of the are obsolete. ‘‘significant economic impact on a President’s Regulatory Reinvention substantial number of small entities.’’ Initiative to eliminate obsolete 10 CFR Part 476—Electric and Hybrid National Environmental Policy Act regulations and streamline existing Vehicle Research, Development and rules. Demonstration Program Small Business This rule amends Title 10 of the Code Planning Grants of Federal Regulations by removing EFFECTIVE DATE: This action is effective Section 9 of the Electric and Hybrid regulations governing programs that are on January 16, 1996, unless significant Vehicle Research, Development and funded. This rulemaking will not adverse or critical comments are Demonstration Act of 1976, 15 U.S.C. change the environmental effect of the received by January 4, 1996. The 2508(c)(2), authorized the Department to programs governed by the regulations Department will publish a timely notice make grants to qualified small being eliminated because the programs in the Federal Register if comments are businesses that needed assistance in have been inactive for many years and received that require the effective date developing and submitting proposals for have no current environmental effect. to be suspended or delayed for any of contracts. Part 476 contains regulations The Department has therefore the CFR parts included in this direct implementing the Act’s provision for determined that this rule is covered final rule. these small business planning grants. under the Categorical Exclusion found FOR FURTHER INFORMATION CONTACT: Mr. Congress has not appropriated funds for at paragraph A.5 of Appendix A to Romulo L. Diaz, Jr., Director, this program for the past 15 years. DOE Subpart D, 10 CFR Part 1021, which Rulemaking Support, Office of the does not expect the program to be applies to a rulemaking amending an General Counsel, (GC–75), U.S. revived. existing regulation that does not change the environmental effect of the Department of Energy, 1000 10 CFR Part 478—Methane regulation being amended. Independence Avenue, S.W., Transportation Research and Washington, DC 20585, (202) 586–2902. Development; Review and Certification Paperwork Reduction Act of Contracts, Grants, Cooperative SUPPLEMENTARY INFORMATION: In Agreements and Projects This rulemaking contains no reporting furtherance of the President’s requirement that is subject to OMB Regulatory Reinvention Initiative, the Part 478 provides procedures for approval under 5 CFR Part 1320, Department of Energy is engaged in a grants, contracts, or cooperative pursuant to the Paperwork Reduction continuing and comprehensive review agreements to support research and Act of 1980 (44 U.S.C. 3501 et seq.). development for methane-fueled of its regulatory program. As part of that Direct Final Rulemaking review, the Department is removing vehicles. The regulations implement section 4(d) of the Methane from Title 10 of the CFR regulations for The Code of Federal Regulation parts Transportation Research, Development, which statutory authority has expired or being removed by this rule are and Demonstration Act. 15 U.S.C. 3801 has been superseded by subsequent regulations that involve programs for et seq. The Department has not legislation, as well as regulations which there has not been an requested, and Congress has not appropriation since the mid-1980’s. It is governing nonfunctioning and provided, funds for this program for unfunded programs. Elimination of unlikely that the President will request, many years. The Department has no or that Congress will again provide, an these regulations will not interfere with plans to seek revival of this program, the Department’s ongoing activities in appropriation for these programs. In the and it considers these regulations to be absence of funding, retention of these the area of alternative fueled vehicles. obsolete. On September 22, 1995, the Department regulations does not serve any useful purpose. Their removal will have no published a final rule that eliminated Rulemaking Analyses direct effect on any person and, numerous obsolete regulations from Regulatory Planning and Review therefore, this action is expected to be Title 10 of the CFR. 60 FR 49195. As a The elimination of obsolete uncontroversial. Accordingly, the result of this and prior actions, the regulations does not constitute a Department has determined, pursuant to Department has reduced its pages in the ‘‘significant regulatory action’’ as 5 U.S.C. 553, that there is good cause to CFR by 514 pages, or 71 percent of its defined in section 3(f) of Executive conclude that prior notice and goal of 726 pages. Order 12866 (58 FR 51735); therefore, opportunity for public comment is Today’s action will remove the this rulemaking has not been reviewed unnecessary and contrary to the public following obsolete regulations: by the Office of Information and interest. Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Rules and Regulations 62317

Nevertheless, in a separate document which incorporates the substance of this 10 CFR Part 478 in this Federal Register publication, the action, will be addressed in a Department is publishing a notice of subsequent final rule. The Department Energy conservation, Government proposed rulemaking to remove these will not institute a second comment contracts, Methane, Motor vehicles, regulations. If the Department receives period on this action. If no significant Natural gas, Research. significant adverse or critical comments, adverse or critical comments are Issued in Washington, DC on November 29, it will withdraw this action before the received, this action will be effective 1995. effective date by publishing a January 16, 1996. Robert R. Nordhaus, subsequent notice of withdrawal in the Federal Register. If significant adverse List of Subjects General Counsel. comments clearly apply only to removal 10 CFR Part 475 PARTS 475, 476, 478Ð[REMOVED] of certain of the affected CFR parts, the Department will withdraw this action Electric Power, Energy conservation, For the reasons set forth in the only for the parts that are the subject of Motor vehicles, Research. preamble, under the authority of 42 adverse or critical comments. This U.S.C 7101, Title 10 of the Code of 10 CFR Part 476 action would become effective for the Federal Regulations is amended by part or parts that were not the subject of removing parts 475, 476, and 478. such comments. Electric power, Energy conservation, Any public comments received on the Grant programs-business, energy, Motor [FR Doc. 95–29575 Filed 12–4–95; 8:45 am] separate notice of proposed rulemaking, vehicles, Research, Small businesses. BILLING CODE 6450±01±P 62318 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Proposed Rules

DEPARTMENT OF ENERGY Department will have reduced its pages agreements to support research and in the CFR by 514 pages. development for methane-fueled 10 CFR Parts 475, 476, and 478 The Department is proposing to vehicles. The regulations implement remove from the CFR the following section 4(d) of the Methane Removal of Obsolete Regulations regulations, which it has determined to Transportation Research, Development, AGENCY: Department of Energy. be obsolete: and Demonstration Act. 15 U.S.C. 3801 ACTION: Proposed rule. 10 CFR Part 475—Electric and Hybrid et seq. The Department has not Vehicle Research, Development and requested, and Congress has not SUMMARY: The Department of Energy is Demonstration Program provided, funds for this program for proposing to amend the Code of Federal many years. The Department has no Regulations (CFR) to remove obsolete The Electric and Hybrid Vehicle plans to seek revival of this program, Research, Development and regulations relating to defunct programs and it considers these regulations to be Demonstration Act of 1976, 15 U.S.C. of financial assistance for electric and obsolete. hybrid vehicle research and methane 2501 et seq., authorized the Department transportation research. This action is to support research, development and The Department of Energy is being taken in response to the demonstration of electric and hybrid publishing, elsewhere in this issue, a President’s Regulatory Reinvention vehicle technologies. Part 475 contains direct final rule, to remove these CFR Initiative to eliminate obsolete performance standards for electric parts. As explained in the preamble for regulations and streamline existing vehicles which DOE developed for the direct final rule, the Department rules. purposes of the demonstration program. considers this removal action to be uncontroversial and unlikely to generate DATES: Comments on this proposed rule The demonstration period extended, by significant adverse or critical comments. must be received in writing by January law, through fiscal year 1986. 15 U.S.C. If no significant adverse comments are 4, 1996. 2506(c)(3). Because the demonstration received by the Department, the direct ADDRESSES: Written comments should program has ended, these regulations are obsolete. final rule will become effective on be submitted to Mr. Romulo L. Diaz, Jr., January 16, 1996, and there will be no Director, Rulemaking Support, Office of 10 CFR Part 476—Electric and Hybrid further action on this proposal. If such the General Counsel, (GC–75), U.S. Vehicle Research, Development and comments are received, the direct final Department of Energy, 1000 Demonstration Program Small Business rule will be withdrawn for those parts Independence Avenue, S.W., Planning Grants that are the subject of significant Washington, DC 20585, (202) 586–2902. Section 9 of the Electric and Hybrid adverse comments. The public FOR FURTHER INFORMATION CONTACT: Mr. Vehicle Research, Development and comments then will be addressed in a Romulo L. Diaz, Jr., Director, Demonstration Act of 1976, 15 U.S.C. subsequent final rule based on this Rulemaking Support, Office of the 2508(c)(2), authorized the Department to proposed rule. The Department will not General Counsel, (GC–75), U.S. make grants to qualified small institute a second comment period on Department of Energy, 1000 businesses that needed assistance in this action. Independence Avenue, S.W., developing and submitting proposals for Washington, DC 20585, (202) 586–2902. Issued in Washington, DC on November 29, contracts. Part 476 contains regulations 1995. SUPPLEMENTARY INFORMATION: In implementing the Act’s provision for connection with the President’s these small business planning grants. Robert R. Nordhaus, Regulatory Reinvention Initiative, the Congress has not appropriated funds for General Counsel. Department of Energy is engaged in a this program for the past 15 years. DOE continuing and comprehensive review does not expect the program to be PARTS 475, 476, 478Ð[REMOVED] of its regulatory program. As part of that revived. review, the Department is removing For the reasons set forth in the from Title 10 of the CFR regulations for 10 CFR Part 478—Methane preamble, under the authority of 42 which statutory authority has expired or Transportation Research and U.S.C 7101, Title 10 of the Code of has been superseded by subsequent Development; Review and Certification Federal Regulations is proposed to be legislation, and other regulations of Contracts, Grants, Cooperative amended by removing parts 475, 476, governing nonfunctioning and Agreements and Projects and 478. unfunded programs. As a result of this Part 478 provides procedures for [FR Doc. 95–29576 Filed 12–4–95; 8:45 am] proposed action and prior actions, the grants, contracts, or cooperative BILLING CODE 6450±01±P i

Reader Aids Federal Register Vol. 60, No. 233 Tuesday, December 5, 1995

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Public inspection announcement line 523±5215 the revision date of each title. 21 CFR Laws 3 CFR Public Laws Update Services (numbers, dates, etc.) 523±6641 Proclamations: 176...... 62207 177...... 61654 For additional information 523±5227 6853...... 62185 6854...... 62187 182...... 62208 Presidential Documents 186...... 62208 7 CFR Executive orders and proclamations 523±5227 Proposed Rules: The United States Government Manual 523±5227 29...... 62172 801...... 61670 31...... 62172 803...... 61670 Other Services 32...... 62172 804...... 61670 Electronic and on-line services (voice) 523±4534 51...... 62172 897...... 61670 Privacy Act Compilation 523±3187 52...... 62172 24 CFR TDD for the hearing impaired 523±5229 53...... 62172 54...... 62172 81...... 61846 56...... 62172 ELECTRONIC BULLETIN BOARD 58...... 62172 26 CFR Free Electronic Bulletin Board service for Public Law numbers, 70...... 62172 1 ...... 62024, 62026, 62209 Federal Register finding aids, and list of documents on public 160...... 62172 53...... 62209 inspection. 202±275±0920 401...... 62189 301...... 62209 1002...... 62017, 62018 Proposed rules: FAX-ON-DEMAND 1260...... 62019 1...... 62229 You may access our Fax-On-Demand service. You only need a fax Proposed Rules: machine and there is no charge for the service except for long 226...... 62227 29 CFR distance telephone charges the user may incur. The list of 985...... 62229 2606...... 61740 documents on public inspection and the daily Federal Register’s 1280...... 62298 2616...... 61740 table of contents are available using this service. The document 8 CFR 2617...... 61740 numbers are 7050-Public Inspection list and 7051-Table of 2629...... 61740 Contents list. The public inspection list will be updated 214...... 62021 Proposed Rules: immediately for documents filed on an emergency basis. 10 CFR 102...... 61679 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 475...... 62316 30 CFR FILE AND NOT THE ACTUAL DOCUMENT. Documents on 476...... 62316 Proposed Rules: public inspection may be viewed and copied in our office located 478...... 62316 913...... 62229 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand Proposed Rules: telephone number is: 301±713±6905 475...... 62318 34 CFR 476...... 62318 668 ...... 61760, 61776, 61796, FEDERAL REGISTER PAGES AND DATES, DECEMBER 478...... 62318 61830 674...... 61796 61645±62016...... 1 12 CFR 675...... 61796 62017±62188...... 4 Proposed Rules: 676...... 61796 250...... 62050 62189±62318...... 5 682...... 61750, 61796 13 CFR 685 ...... 61790, 61796, 61820 140...... 62190 690...... 61796 14 CFR 36 CFR 39 ...... 61645, 61647, 61649, Poposed Rules: 62192 1...... 62233 71 ...... 61652, 61653, 62194 13...... 62233 Proposed Rules: 37 CFR 39...... 62051 71 ...... 61666, 61667, 61668, 253...... 61654 61669, 62053 255...... 61655 259...... 61657 15 CFR Proposed Rules: Proposed Rules: 202...... 62057 960...... 62054 39 CFR 16 CFR 20...... 61660 455...... 62195 40 CFR 1145...... 62023 70...... 62032 17 CFR Proposed Rules: 200...... 62295 61...... 61681 ii Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Reader Aids

81...... 62236 HEALTH AND HUMAN due by 12-15-95; LABOR DEPARTMENT SERVICES DEPARTMENT published 11-30-95 42 CFR Mine Safety and Health Food and Drug Pesticides; tolerances in food, Administration Proposed rules: Administration animal feeds, and raw 413...... 62237 agricultural commodities; Metal and nonmetal mine Food additives: safety and health: Paper and paperboard exemptions: 43 CFR First aid safety standards; components-- 1,2-ethanediamine, polymer 10...... 62134 comments due by 12-11- Silver chloride-coated with oxirane and methyloxirane; comments 95; published 10-27-95 44 CFR titanium dioxide; published 12-5-95 due by 12-15-95; PENSION BENEFIT 65...... 62213 published 11-15-95 GRAS or prior-sanctioned GUARANTY CORPORATION Pesticides; tolerances in food, ingredients: Privacy Act; implementation; 47 CFR animal feeds, and raw comments due by 12-15-95; 0...... 61662 Japan wax; published 12-5- agricultural commodities: 95 published 11-15-95 73 ...... 62218, 62219, 62220 1-[[2-(2,4-dichlorophenyl)-4- 90...... 61662 TREASURY DEPARTMENT propyl-1,3-dioxolan-2- PERSONNEL MANAGEMENT Proposed Rules: Internal Revenue Service yl]methyl]-1H-1,2,4-triazole OFFICE 73...... 62060, 62061 Excise taxes: (propiconazole); comments Prevailing rate systems; due by 12-15-95; comments due by 12-14-95; 49 CFR Charitable organizations; political expenditures; published 11-15-95 published 11-14-95 219...... 61664 published 12-5-95 FEDERAL SECURITIES AND 553...... 62221 COMMUNICATIONS EXCHANGE COMMISSION Proposed Rules: Comments Due Next COMMISSION 571...... 62061 Week Common carrier services: Securities: Public mobile services-- Ownership reports and 50 CFR AGRICULTURE Enhanced 911 services trading by officers, 25...... 62035 DEPARTMENT compatibility with directors, and principal 32...... 62035 Consolidated Farm Service wireless services; security holders (insider 649...... 62224 Agency comments due by 12- trading) 650...... 62224 North American Free Trade 15-95; published 11-28- Correction; comments due 651...... 62224 Agreement (NAFTA): 95 by 12-15-95; published 652...... 62226 End-use certificate program; HEALTH AND HUMAN 10-26-95 Proposed Rules: comments due by 12-14- SERVICES DEPARTMENT STATE DEPARTMENT 642...... 62241 95; published 11-14-95 Food and Drug Visas; immigrant COMMERCE DEPARTMENT Administration documentation: National Oceanic and Food additives: REMINDERS Diversity immigrant visa Atmospheric Administration Adhesive coatings and The rules and proposed rules program; requirements to components-- in this list were editorially Fishery conservation and prevent fraudulent compiled as an aid to Federal management: Silver chloride-coated practices; comments due Register users. Inclusion or Pacific Coast groundfish; titanium dioxide; by 12-13-95; published exclusion from this list has no comments due by 12-13- comments due by 12- 11-13-95 legal significance. 95; published 11-28-95 15-95; published 11-15- 95 TRANSPORTATION EDUCATION DEPARTMENT INTERIOR DEPARTMENT DEPARTMENT Rules Going Into Effect Bilingual education: Fish and Wildlife Service Federal Aviation Today Graduate fellowship Administration program; comments due Endangered and threatened AGRICULTURE by 12-11-95; published species: Class C airspace; comments DEPARTMENT 11-9-95 Bruneau hot springsnail due by 12-15-95; published 11-1-95 Federal Crop Insurance ENVIRONMENTAL Comment period Corporation PROTECTION AGENCY extension; comments Class E airspace; comments due by 12-15-95; due by 12-11-95; published Crop insurance regulations: Clean Air Act: published 11-13-95 11-1-95 Florida citrus endorsement; State operating permits JUSTICE DEPARTMENT published 12-5-95 programs-- TREASURY DEPARTMENT Executive Office for Fiscal Service FEDERAL Puerto Rico; comments Immigration Review: COMMUNICATIONS due by 12-14-95; Representation and Financial management COMMISSION published 11-14-95 appearance, nominal fees services: Radio stations; table of Hazardous waste: requirement; and free Federal process agents of assignments: Identification and listing-- legal services lists; surety companies; Arkansas et al.; published Dye and pigment comments due by 12-14- comments due by 12-11- 12-5-95 production; comments 95; published 11-14-95 95; published 11-9-95 Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 / Reader Aids iii

LIST OF PUBLIC LAWS

This is a continuing list of public bills from the current session of Congress which have become Federal laws. It may be used in conjunction with ``P L U S'' (Public Laws Update Service) on 202±523± 6641. The text of laws is not published in the Federal Register but may be ordered in individual pamphlet form (referred to as ``slip laws'') from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 (phone, 202±512± 2470). H.R. 2126/P.L. 104±61 Department of Defense Appropriations Act, 1996 (Dec. 1, 1995; 109 Stat. 636)

Note: Upon expiration of the 10-day period prescribed by the Constitution of the United States, H.R. 2126 became law on Dec. 1, 1995, without the President's signature.

Last List November 30, 1995